Withholding Information II

Table of Contents

Legislation

Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012 establishes an offence of withholding information in relation to specified offences committed against a child or vulnerable person. The offence arises where a person knows or believes that a specified offence has been committed against a child or vulnerable person and he or she has information which would be of material assistance in securing the apprehension, prosecution or conviction of another person for that offence and fails without reasonable excuse to disclose that information as soon as it is practicable to do so to a member of the Garda Síochána. There are a number of defences against a charge of withholding information.

Vulnerable Person

“A vulnerable person” means a person (including, insofar as certain offences are concerned, a child aged 17 years old)—

who is suffering from a disorder of the mind, whether as a result of mental illness or dementia, or has an intellectual disability, which is of such a nature or degree as to severely restrict the capacity of the person to guard himself or herself against serious exploitation or abuse, whether physical or sexual, by another person, or
who is suffering from an enduring physical impairment or injury which is of such a nature or degree as to severely restrict the capacity of the person to guard himself or herself against serious exploitation or abuse, whether physical or sexual, by another person or to report such exploitation or abuse to the Garda Síochána or both.

Offence of Withholding Information re Offence Children

A person is guilty of an offence if—

he or she knows or believes that an offence, that is a List 1 Offence, has been committed by another person against a child, and
he or she has information which he or she knows or believes might be of material assistance in securing the apprehension, prosecution or conviction of that other person for that offence,

and fails without reasonable excuse to disclose that information as soon as it is practicable to do so to a member of the Garda Síochána.

This applies only to information that a person acquires, receives or becomes aware of after the passing of the 2012 Act irrespective of whether the List 1 Offence concerned was committed before or after that passing.

The child against whom the List 1 Offence concerned was committed (whether or not still a child) is not guilty of this offence.

The legislation does not affect any right or privilege that may arise in any criminal proceedings by virtue of any rule of law or other enactment entitling a person to refuse to disclose information.

The obligation imposed on a person to disclose information that he or she has to a member of the Garda Síochána is in addition but it does ubsection shall not require the first-mentioned person to disclose that information to the Garda Síochána more than once.

Offence of Withholding Information re Offences Vulnerable Persons.

A person is guilty of an offence if—

he or she knows or believes that an offence, that is a List 2 Offence, has been committed by another person against a vulnerable person, and
he or she has information which he or she knows or believes might be of material assistance in securing the apprehension, prosecution or conviction of that other person for that offence,

and fails without reasonable excuse to disclose that information as soon as it is practicable to do so to a member of the Garda Síochána.

This applies only to information that a person acquires, receives or becomes aware of after the passing of the 2012 Act irrespective of whether the List 2 Offence concerned was committed before or after that passing.

The vulnerable person against whom the List 2 Offence concerned was committed (whether or not still a vulnerable person) is not guilty of an offence under the provision.

This is without prejudice to any right or privilege that may arise in any criminal proceedings by virtue of any rule of law or other enactment entitling a person to refuse to disclose information.

Penalties

A person guilty of the above offence unshall be liable—

on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or
on conviction on indictment, to a fine or imprisonment or both according to the gravity of the List 1 Offence or List 2 Offence, as the case may be, concerned in respect of which the person failed to disclose information that he or she had as soon as it was practicable to do so to a member of the Garda Síochána, in the following manner:
- if the List 1 Offence or List 2 Offence, as the case may be, concerned is one for which the maximum sentence is imprisonment for life, he or she shall be liable to imprisonment for a term not exceeding 10 years;
- if it is one for which a person of full capacity and not previously convicted may be sentenced to imprisonment for a term of 14 years, he or she shall be liable to imprisonment for a term not exceeding 7 years;
- if it is not one included in subparagraph (i) os (ii) but is one for which a person of full capacity and not previously convicted may be sentenced to imprisonment for a term of 10 years, he or she shall be liable to imprisonment for a term not exceeding 5 years;
- in any other case, he or she shall be liable to imprisonment for a term not exceeding 3 years.

Defences

It is a defence for the accused person to show—

that the child or vulnerable person against whom the List 1 Offence or the List 2 Offence, as the case may be, concerned was committed made known his or her view (provided that he or she was capable of forming a view on the matter) that the commission of that offence, or information relating to it, should not be disclosed to the Garda Síochána, and
that he or she (the accused person) knew of and relied upon that view.

Without prejudice to the right of the child or vulnerable person against whom the List 1 Offence or the List 2 Offence, as the case may be, concerned was committed to disclose the commission of that offence, or information relating to it, to the Garda Síochána, it is presumed for the purposes of the offence that unless the contrary is shown, that if—

the child concerned has not attained the age of 14 years, or
the vulnerable person concerned falls within the definition of vulnerable person (whether or not he or she also falls under another part of that definition),

he or she does not have the capacity to form a view as to whether the commission of that offence, or information relating to it, should be disclosed to the Garda Síochána.

Where the presumption is not rebutted, then, any of the defences provided for below may be raised by an accused person in any proceedings for an offence.

Defences Parents & Guardians

In any proceedings for the above offences, shall be a defence for the accused person to show, in the circumstances specified that a parent or guardian of the child or vulnerable person concerned against whom the List 1 Offence or the List 2 Offence, as the case may be, concerned was committed made known his or her view, on behalf of that child or vulnerable person, that the commission of that offence, or information relating to it, should not be disclosed to the Garda Síochána, and that he or she (the accused person) knew of and relied upon that view.

In any proceedings for an offence it is a defence for a parent or guardian of a child or vulnerable person against whom a List 1 Offence or List 2 Offence, as the case may be, was committed to show, in the circumstances specified , that he or she formed the view, on behalf of that child or vulnerable person, that the commission of that offence, or information relating to it, should not be disclosed to the Garda Síochána.

The defence provided for is established only if the parent or guardian concerned had reasonable grounds for forming the view concerned on behalf of the child or vulnerable person concerned and, in so doing, he or she acted and is continuing to act bona fide in the best interests of that child or vulnerable person.

The above defence does not apply if the parent or guardian of the child or vulnerable person concerned who formed the view that the commission of the List 1 Offence or the List 2 Offence, as the case may be, concerned, or information relating to it, should not be disclosed to the Garda Síochána is a family member of the person who is known or believed to have committed that List 1 Offence or List 2 Offence, as the case may be.

Designated Professions & Defences

In any proceedings for the above offence, it is a defence for the accused person (including a parent or guardian of the child or vulnerable person concerned) to show,

that a member of a designated profession who provided or is providing services to the child or vulnerable person concerned in respect of the injury, harm or damage caused to him or her as a result of the List 1 Offence or the List 2 Offence, as the case may be, concerned made known his or her view, on behalf of that child or vulnerable person, that the commission of that offence, or information relating to it, should not be disclosed to the Garda Síochána, and
that he or she (the accused person) knew of and relied upon that view.

A parent or guardian of a child or vulnerable person or a member of a designated profession shall, for the purposes of considering on behalf of the child or vulnerable person whether or not the commission of the List 1 Offence or the List 2 Offence, as the case may be, concerned against that child or vulnerable person, or information relating to it, should be disclosed to the Garda Síochána, insofar as practicable have regard to the wishes of that child or vulnerable person.

It is a defence for the accused person who is a member of a designated profession to show that—

he or she is a member of a designated profession who provided or is providing services to the child or vulnerable person concerned in respect of the injury, harm or damage caused to him or her as a result of the List 1 Offence or the List 2 Offence, as the case may be, concerned, and
he or she formed the view, in relation to that child or vulnerable person, that the commission of that offence, or information relating to it, should not be disclosed to the Garda Síochána.

The defence shall be established only if—

the member of the designated profession concerned had reasonable grounds for forming the view concerned in relation to the child or vulnerable person concerned for the purpose of protecting the health and well-being of that child or vulnerable person, and
the member of the designated profession concerned, in forming that view in relation to the child or vulnerable person, as the case may be, concerned acted and continues to act in a manner, and applied and continues to apply the standards of practice and care,

that can reasonably be expected of a member of that profession in forming such a view in the circumstances concerned.

It is a defence for the accused person who is a prescribed person to show that—

he or she is a prescribed person employed or otherwise engaged by a prescribed organisation who provided or is providing services to the child or vulnerable person concerned in respect of the injury, harm or damage caused to him or her as a result of the List 1 Offence or the List 2 Offence, as the case may be, concerned, and
he or she formed the view, in relation to that child or vulnerable person, that the commission of that offence, or information relating to it, should not be disclosed to the Garda Síochána.

This defence is established only if—

the prescribed person concerned had reasonable grounds for forming the view concerned in relation to the child or vulnerable person concerned for the purpose of protecting the health and well-being of that child or vulnerable person, and
the prescribed person concerned, in forming that view in relation to the child or vulnerable person, as the case may be, concerned acted and continues to act in a manner, and applied and continues to apply the standards of practice and care,

that can reasonably be expected of a prescribed person forming such a view in the circumstances concerned.

A “family member”, in relation to a person, means—

a parent, grandparent, child, brother, sister, nephew, niece, uncle or aunt, whether of the whole blood, of the half blood or by affinity, of the person,
a spouse, a civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 or a cohabiting partner of the person,
any other person who is ordinarily a member of the person’s household, or
any child who has been placed in foster care with the person or any person referred to in paragraphs (a) to (c);

“member of a designated profession” means—

a registered medical practitioner within the meaning of section 2 of the Medical Practitioners Act 2007 ,
a registered nurse or a registered midwife both within the meaning of section 2 of the Nurses and Midwives Act 2011 ,
a psychologist and, following the establishment of the register of members of psychologists under section 36 of the Act of 2005, only a person whose name is entered in that register, or
a social worker whose name is entered in the register of members of social workers established and maintained under section 36 of the Act of 2005;

“prescribed organisation” means an organisation or body prescribed by the Minister under section 5 ;

“prescribed person”, in relation to a prescribed organisation, means one of a class of persons prescribed by the Minister under section 6 ;

“services” means in relation to a member of a designated profession, services relating to—

the preservation or improvement of the health or well-being of persons to whom the services are provided,
the diagnosis, treatment or care of persons who are injured, harmed or damaged,
the resolution, through guidance, counselling or otherwise, of personal, social or psychological problems,
the care of persons in need of protection, guidance or support,

Services also mean in relation to a prescribed organisation, services relating to—

the resolution, through guidance, counselling or otherwise, of personal, social or psychological problems,
the care of persons in need of protection, guidance or support,

and, in either case, being services that require a person providing them to exercise skill or judgement in relation to them.

Prescribed Organisations

An organisation or body which provides services to children or vulnerable persons or both who have suffered injury, harm or damage as a result of physical or sexual abuse may apply to the Minister, to be a prescribed organisation. The application by an organisation or body shall be made in the manner specified by the Minister and shall be accompanied by particulars in writing of the following matters in relation to the organisation or body:

the nature and type of services provided by the organisation or body to children or vulnerable persons or both;
the numbers of children or vulnerable persons or both to whom services were provided by the organisation or body before the date of the application for such period or periods as the Minister may specify;
the legal status of the organisation or body; and
the code of practice (if any) of the organisation or body (by whatever name called) with regard to the provision of its services and, in particular, its procedures and protocols for ensuring compliance with this Act.

If, the Minister is satisfied that it is appropriate to do so, he or she may prescribe the organisation or body concerned as a prescribed organisation. There are procedures for refusal of recognition.Where the Minister is of opinion that it is no longer appropriate for the organisation or body to be so prescribed, revoke that prescription of the organisation or body by order made under this subsection for that purpose. Procedures apply.

Prescribed Persons

A prescribed organisation or body or an organisation or body applying to be so prescribed, which provides services to children or vulnerable persons or both who have suffered injury, harm or damage as a result of physical or sexual abuse may apply to the Minister, for a class or classes of persons employed or otherwise engaged by the organisation or body in the provision of those services to be prescribed person.

An application by an organisation or body shall be made in the manner specified by the Minister and shall be accompanied by particulars in writing of the following matters in relation to the class or classes of persons concerned:

the nature and type of services provided by such persons to children or vulnerable persons or both;
the expertise and qualifications of such persons to provide such services;
the accreditation or certification (if any) held by such persons in relation to the provision of such services;
the arrangements that the organisation or body has in place for the training and development of such persons to provide such services; and
the procedures and systems that the organisation or body has in place for assessing the quality of the services provided by such persons.

A class or classes of persons employed or otherwise engaged by an organisation or body may not be prescribed if the organisation or body is not prescribed. Simial provisions to those above apply.