Withholding Information I
2012 Act
The Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012 provides an offence of withholding information in relation to specified offences against children and vulnerable persons. It arises where a person knows or believes that a specified offence is being committed against a child or vulnerable person and is information which would be of material assistance in securing apprehension, prosecution or conviction of that other person for the offence and fails without reasonable cause to disclose that information as soon as practicable to do so to a member from Garda SÃochána.
Offences Covered
A scheduled offence is an offence listed in Schedule 1, in respect of which, is an offence to withhold information where the offence is committed against a child. See below.
AÂ Schedule 2 offence is an offence listed in Schedule 2 where it is an offence to withhold information in respect its commission against the vulnerable person. See below.
Vulnerable Persons
A vulnerable person is a person suffering from a mental, intellectual or physical disability which is of such nature as to severely restrict his capacity to guard against serious exploitation or abuse or in the case of physical disability to report it to the Garda SÃochána. References to the scheduled offences include references to attempts, conspiring to attempt, inciting or participating in those offences in so far as the offence of attempting etc. is also an arrestable offence.
In the case of sexual offences, any reference to the commission of an offence against a child or vulnerable person includes references to where the child or vulnerable adult was the other party to the offence but not the person who committed it.
The legislation is not retrospective in the sense that withholding of information will only arise in relation to information received by a person after passing of the Act. However the specified offence in relation to which the person receives information may have been committed prior to the legislation.
A child against whom the offence is committed is not guilty of an offence under the provision. This applies even if the person is no longer a child.
The obligation to disclose information is in addition to and not in substitution for any other obligation a person may have to disclose information to the Garda SÃochána or any other person. A number of existing professional codes provide for obligations to disclose suspicions or offences.
Defences
It is a defence if a child or vulnerable person against whom the offence was committed makes it known that they do not want the offence committed to be reported to An Garda SÃochána. The person accused of the offence must show that he knew and relied on this view.
There is a rebuttable presumption that a child under 14 does not have capacity to form a view as to whether the offence or information relating to it should be disclosed to the Garda SÃochána. Similar presumption arises in respect of a vulnerable person.
Where a person against whom an offence is committed lacks capacity above, the offences maybe raised by a person accused of the offence. A defence allows an accused person to align the views of a parent or guardian who acting on behalf of the child or vulnerable person makes it know that they do not want the information to be disclosed. This defence rises where the circumstances above regarding the lack of capacity of the victim are shown.
A parent or guardian of a child or vulnerable person in the circumstances mentioned above may rely on the defence of acting on behalf of that child or vulnerable person.
The defences above require the parent or guardian must have reasonable grounds for forming the view on behalf of the child or vulnerable person and must act in bona fide best interest of the child or a vulnerable person.The defences do not apply where the parent or guardian who acts on behalf of the child in circumstances where the person who is known or believed to have committed the offence is a family member of that parent or guardian.
Defences & Designated Persons
Where a designated professional makes it known on behalf of the child or vulnerable person that the information relating to the offence should not be disclosed (in circumstances where the perpetrator is a family member, parent or guardian), any person who knew of or relied on that view can claim a defence.
The designated professional must be treating the child in respect of injury or harm arising from the specified offence. The designated professional is a health professional as mentioned in the legislation.
A parent, guardian or a designated professional shall for the purpose of considering on behalf of the child whether to disclose the information relating to the offence shall have regard to the wishes of the child or the vulnerable person.
It is a defence for a designated professional who is treating the child where he has formed the view the information relating to offence should not be disclosed. The defence is limited by providing that reliance on the defence requires that there are reasonable grounds for so believing. It must be shown that the designated professional in forming his opinion acted by reference to apply those standards of practice and care and could reasonably be expected of a member of that profession.
A Minister may prescribe organisations or bodies or classes of persons within them for the above purposes.
Offences
It is an offence for designated professionals to show that where persons providing services in respect of the injury or harm caused to the child, has formed the view that the offence relating to it should not be disclosed. Above provisions are largely replicated.
There are graduated penalties for withholding information which reflect the gravity of the underlying offence.
List 1 Offfences
Offences against children for purposes of offence under section 2
Section 2 .
- Murder.
- Manslaughter.
- Common law offence of false imprisonment.
- Rape.
- Rape under section 4 of the Criminal Law (Rape) (Amendment) Act 1990 .
- Sexual assault.
- Aggravated sexual assault within the meaning of section 3 of the Criminal Law (Rape) (Amendment) Act 1990 .
- An offence under section 1 of the Punishment of Incest Act 1908 (incest by males).
- An offence under section 2 of the Punishment of Incest Act 1908 (incest by females of or over 17 years of age).
- An offence under section 6 (1) of the Criminal Law (Sexual Offences) Act 1993 .
- An offence under section 2 of the Criminal Law (Sexual Offences) Act 2006 (defilement of child under 15 years of age).
- An offence under section 3 of the Criminal Law (Sexual Offences) Act 2006 (defilement of child under the age of 17 years).
- An offence under either of the following provisions of the Child Trafficking and Pornography Act 1998 —
- section 3 (child trafficking and taking, etc., child for sexual exploitation),
- section 4 (allowing child to be used for child pornography).
- 14. An offence under section 2 of the Sexual Offences (Jurisdiction) Act 1996 insofar as it relates to an offence specified in the Schedule to that Act that is also specified in this Schedule.
- 15. An offence under any of the following provisions of the Criminal Law (Human Trafficking) Act 2008 —
- section 2 (trafficking, etc., of children),
- section 5 insofar as it relates to a child who has been trafficked for the purpose of his or her exploitation (soliciting or importuning for purposes of prostitution of trafficked person),
- section 7 insofar as it relates to an offence under section 2 of that Act or section 3 (other than subsections (2A) and (2B)) of the Child Trafficking and Pornography Act 1998 .
- An offence under section 249 of the Children Act 2001 (causing or encouraging sexual offence upon a child).
- An offence under section 176 of the Criminal Justice Act 2006 (reckless endangerment of children).
- An offence under any of the following provisions of the Non-Fatal Offences against the Person Act 1997 —
- section 3 (assault causing harm),
- section 4 (causing serious harm),
- section 5 (threats to kill or cause serious harm),
- section 13 (endangerment),
- section 15 (false imprisonment),
- section 16 (abduction of child by parent, etc.),
- section 17 (abduction of child by other persons).
- An offence under section 246 of the Children Act 2001 (cruelty to children).
- An offence under any of the following provisions of the Criminal Justice (Female Genital Mutilation) Act 2012 —
- section 2 (offences of female genital mutilation, etc.),
- section 3 (offence of removal from State for purpose of female genital mutilation),
- section 4 (acts, etc., done outside State).
LIST 2 Offences
Offences against vulnerable persons for purposes of offence under section 3
- Common law offence of false imprisonment.
- Rape.
- Rape under section 4 of the Criminal Law (Rape) (Amendment) Act 1990 .
- Sexual assault.
- Aggravated sexual assault within the meaning of section 3 of the Criminal Law (Rape) (Amendment) Act 1990 .
- An offence under section 1 of the Punishment of Incest Act 1908 (incest by males).
- An offence under section 2 of the Punishment of Incest Act 1908 (incest by females of or over 17 years of age).
- An offence under either of the following provisions of the Criminal Law (Sexual Offences) Act 1993 —
- (a) subsection (1) of section 5 insofar as it provides for an offence of having sexual intercourse, or committing an act of buggery, with a person who is mentally impaired within the meaning of that section (other than a person to whom the alleged offender is married or to whom he or she believes with reasonable cause he or she is married),
- (b) subsection (2) of section 6 insofar as it provides for an offence of soliciting or importuning a person who is mentally impaired within the meaning of that section (whether or not for the purposes of prostitution) for the purposes of the commission of an act that would constitute an offence under section 5(1) (insofar as it is referred to in paragraph (a)) of that Act or an offence referred to in section 2 of the Criminal Law (Rape) (Amendment) Act 1990 .
- An offence under section 2 of the Sexual Offences (Jurisdiction) Act 1996 insofar as it relates to an offence specified in the Schedule to that Act that is also specified in this Schedule to the extent that it is so specified.
- An offence under any of the following provisions of the Criminal Law (Human Trafficking) Act 2008 —
- section 4 (trafficking of persons other than children),
- section 5 insofar as it relates to a person in respect of whom an offence under subsection (1) or (3) of section 4 of that Act has been committed (soliciting or importuning for purposes of prostitution of trafficked person),
- section 7 insofar as it relates to an offence under section 4 of that Act.
- Â An offence under section 3 of the Non-Fatal Offences against the Person Act 1997 (assault causing harm).