This section should not be let pass without some mention being made of it because it genuinely intrigues me. It provides for a penalty for concealing an offence. I appreciate how an offence could be concealed and I understand how a person could conspire to conceal an offence and might be forced to do so. Although this section creates a new statutory offence of concealing the commission of an arrestable offence and carries a penalty of up to three years imprisonment, from my reading of the legislation it is not an arrestable offence. Remarkably, the Bill does not propose that it be made such. Perhaps the Minister might enlighten me? Am I to take it that we have a new category of offence in this section known as an unarrestable offence? If that is the position, there will be a new category of offenders known as "the unarrestables"? I suppose it is something a pop group might consider naming themselves but, for the present, we will deal with it in the context of this legislation. Will the unarrestables be arrestable?
SECTION 8.
For the purposes of this Bill, felonies and misdemeanours are abolished and replaced by arrestable and non-arrestable offences. Crimes which were heretofore known as felonies and misdemeanours are being redefined. Not everything in this Bill is being made an arrestable offence. This section deals with the penalty for concealing an offence and this will not be an arrestable offence. We are creating a new offence which replaces the offence of compounding a felony and a misdemeanour if it is an offence. It will be an offence for a person to accept or agree to accept any consideration for not disclosing information about an arrestable offence which has been committed. The person concerned must know or believe his information might be of material assistance. This offence will have a maximum sentence of three years.
We are not necessarily creating new arrestable offences. We are turning what is known as a felony or misdemeanour into an arrestable offence where we think it suitable to allow for arrest without warrant. The new offence of concealing an arrestable offence will be a non-arrestable offence in the sense of this legislation because it does not have the maximum sentence of five years or more. The concealment of the offence is less significant than the arrestable offence concealed. This is the same as in other legislation where someone may have committed an offence and someone else may have assisted, aided or abetted them. It would not be as serious for that person as it would be for the person who committed the principal offence. The Deputy is right to query whether we are creating a new offence but it will have a penalty of less than five years' imprisonment so it is not an arrestable offence with a sentence of five years or more which is covered under the arrest without warrant.
It must be remembered that here we are just modernising some felonies and misdemeanours and putting into statute law powers of arrest without warrant dealing the arrestable offences. It is an adjunct to the tidying up of the felony and misdemeanour language in legislation. It creates the offence of concealing an offence liable to less than five years' imprisonment. This is not unusual. The Garda will not be able to use the power of arrest without warrant for this offence because it has a maximum penalty of three years' imprisonment. A garda cannot arrest someone without a warrant for the concealment of an offence. A warrant would be required if they wanted to arrest a person for that whereas they can arrest without warrant where the offence carries a penalty of five years or more imprisonment.
It occurs to me that this puts on a statutory basis the common law offence of misprision or compounding a felony. Is that correct?
Yes. There is no offence of misprision but there is of felony and we are abolishing felonies. We are therefore abolishing misprision and replacing it with the concealment of an offence. It is modernising by disposing of antiquated and archaic language.
I raise this in the context of the non-reporting of sexual offences and crimes against children. This is something which has come up from time to time. I remember tabling questions to the Minister for Justice relating to the difficulty we have with the non-reporting of child abuse. There is much debate about making it mandatory for a person to report knowledge or suspicion that a child is being abused. That is still at the consultative stage in the Department of Health. When I asked the Minister for Justice whether the matter could be dealt with by criminal law, it was said that misprision was the common law equivalent to deal with such a matter. In other words, where a person failed to report that a child had been abused, that would constitute a crime.
It occurs to me, therefore, that it may be appropriate to apply this new offence to such matters because, as we have seen in the past, various authorities, such as the church, and various individuals or persons who had knowledge of child abuse failed to take appropriate action. To date, there has been an inability to criminalise or take action against such persons for failure to report the abuse of children. Perhaps, by way of this new offence now being put on the Statute Book which makes it an offence to conceal an offence, mandatory reporting of child sexual abuse can be introduced. When I asked the Minister for Justice and her predecessor about the response of criminal law to the non-reporting of child abuse, I was told there was, at common law, some sanction but that this, in effect, had never been used. Now we are updating our law by putting it on a modern statutory basis, this might be an appropriate way in which to indicate and criminalise the non-reporting of child abuse.
This matter was also raised by the Deputy on Second Stage when I indicated there are specific instances we should target where it is an offence to conceal an offence, which we are doing specifically in this legislation. We also did it in section 57 of the Criminal Justice Act, 1995, which obliges designated bodies such as financial institutions to report suspicion of money laundering offences to the Garda Síochána. The non-reporting of that is an offence. The Deputy is correct in saying this issue will have to be dealt with if and when the mandatory reporting decision is made. The Minister of State, Deputy Currie, has been dealing with that and there was a major conference on the subject in Malahide. I cannot say what stage that process is at as he is doing it in his capacity of Minister of State at the Department of Health rather than the Department of Justice. If decisions are made to bring in mandatory reporting, it will have be covered in legislation.
The Deputy is correct to raise the matter, but this is not the appropriate place.
The penalty in this section covers particular circumstances relating to this legislation. As I referred to earlier, I have borrowed sections from the Criminal Damage Act, 1991, and the Criminal Law (Jurisdiction) Act, 1976. I have no doubt that this section will also be borrowed in other legislation where it is considered necessary to create an offence of concealing an offence. I cannot cover Deputy O'Donnell's concerns in this section as it is not an offence not to report sexual abuse as mandatory reporting does not exist. It is the kind of measure which should be available when and if that situation arises. It is wrong to conceal a felony.
It is never applied.
Yes. Somebody can be prosecuted for not reporting a felony, regardless of whether it is sexual abuse. I do not know why this measure is not used. It is included in this section in a proactive manner, where it will be an offence to conceal an offence which is covered under this legislation.
Will the Minister confirm that the sexual abuse of children is a felony? Does it depend on the gravity of the abuse?
Yes. I have to take advice as the Deputy is raising new information for which I am not prepared. Some child sexual abuse crimes do not carry five years' sentence or more but a great deal of them do. I understand, and I am open to correction, that it is an offence to hide or conceal a felony. One is obliged to report it. It will not be an offence under this change. We are inserting a new offence of concealing an offence, where a bribe is involved and where, for example, there is no restitution of stolen goods. We are not dealing with the totality of the concealment of crimes that are heretofore known as felonies.
There is a case for examining specific areas of law to see if there is a need for reporting requirements in particular cases. There are cases where it is right to create an offence of concealing an offence. I assume that if and when a law is introduced to make mandatory reporting of sexual abuse cases necessary, it would be up to the Minister who introduces it to deal with the matter.
The absence of mandatory reporting is not necessary if it is an offence to conceal information. Does it not automatically follow, with or without mandatory reporting, that the offence of concealing an offence would cover any crime?
The Minister said it did not cover any crime.
It covers any crime that entails five years or more sentence.
I am concerned we are diminishing the law rather than enhancing it. In common law, there is, theoretically, a situation where anybody who fails to report an offence such as that of child abuse can be charged with misprision of a felony. Will this be abolished and are we replacing it with anything else?
Yes. Misprision is available now but is not used. In this section we are making the uncertain use of misprision certain. We are replacing misprision with a penalty for the concealment of an offence, where there is a bribe. When this Bill is introduced, people cannot be charged with misprision. It will be up to individual Ministers to sort out where they think this removal of misprision will damage their area of law. At the moment, misprision of a felony is a wide offence and can result in very strange consequences.
We are abolishing a provision which is not used and replacing it with a particular offence of concealing an offence, which covers bribes and restitution of stolen goods. There is no certainty whether compounding a misdemeanour is an offence.
Will the Minister accept that child abuse is a crime in which there are difficulties about reporting? For that reason, would it not be a better idea, rather than removing whatever protection there is now, even theoretically, to create an offence for non-reporting of offences of a sexual nature against children? At a time when the Oireachtas is trying to protect children from child abuse by enhancing the reporting mechanisms by the authorities and individuals, removing the common law obligation to report an offence such as child abuse is wrong if it is not replaced with a positive statutory obligation to report.
That is precisely what is being examined at present. The existing provision does not afford any protection.
Whose fault is it that the prosecuting authorities cannot use it?
That is precisely why the issue of mandatory reporting is being given such an airing. Minister of State, Deputy Currie, has been involved with various caring agencies and people involved and I hope they reach a decision soon. I have not been briefed on mandatory reporting as it is not relevant to this Bill, but it is a valid point and I will raise the concerns of the Deputy with Deputy Currie. I will get him to contact the Deputy to inform her of the current position on the issue.
I am relatively well informed. I attended a conference in Malahide and it is clear from many of the agencies which were represented, apart from the ISPCC, the Rape Crisis Centre, GPs and social workers have come down in a formal way against mandatory reporting. The Minister of State has not come to a decision on the matter but there is a strong impression that there has been a great deal of backsliding on the commitment towards mandatory reporting. It is five years since the Law Reform Commission recommended acceptance of this.
This is not the forum for such a discussion.
I do not know whether a commitment was given.
It is five years since the Law Reform Commission report was at discussion document stage. Now the common law is being unravelled without being replaced by a statutory obligation. It is a poor outlook.
I hate to be disingenuous, but during those five years, the Deputy's party, with every other party, has been in power. The matter is being handled but I cannot say whether there will be a change. There is a real and substantial debate taking place and I hope it will come to some finality.
The committee does not want to think about it.
That is not fair.
Mandatory reporting is something a person reports. If somebody knows that children are being abused, that person comes under the provisions of this Bill. If they know about it and conceal it, it differs from a social worker having suspicion.
It does not apply.
Unless a bribe is involved.