Duties to report and preserve evidence TJ McIntyre Lecturer in Law, UCD Digital Investigations and the Law 2011-12
Introduction <ul><li>Significant underreporting of computer crime </li></ul><ul><li>Mandatory reporting laws may deter bus...
Duties to report crime? <ul><li>Pre-1997: </li></ul><ul><li>Misprision of felony </li></ul><ul><ul><li>“ The offence of mi...
Duties to report crime <ul><li>Offences Against State (Amendment) Act, 1998 </li></ul><ul><ul><li>Duty to report certain “...
Criminal Justice Act 2011 <ul><li>19 .—(1) A person shall be guilty of an offence if he or she has information which he or...
What are “relevant offences”?  <ul><li>See Schedule 2 </li></ul><ul><li>Approximately 130 offences of dishonesty </li></ul...
Who is obliged to report?  <ul><li>“ Any person” </li></ul><ul><li>Not merely designated individuals / professionals / etc...
When must reports be made? <ul><li>“ As soon as practicable” </li></ul><ul><ul><li>Internal investigations permitted? </li...
What is “reasonable excuse”? <ul><li>No definition </li></ul><ul><li>Some legal privileges likely to be included </li></ul...
Protections for persons making reports? <ul><li>Penalisation of whistleblowers under this provision a criminal offence and...
Offences Against State (Amendment) Act 1998 <ul><li>Withholding information. </li></ul><ul><li>9.—(1) A person shall be gu...
Serious offence? <ul><li>(a) it is an offence for which a person of full age and capacity and not previously convicted may...
Child pornography <ul><li>International trend towards mandatory reporting </li></ul><ul><li>No Irish equivalent </li></ul>...
Risks of reporting <ul><li>Defamation </li></ul><ul><ul><li>Qualified privilege likely to be available unless report made ...
Duties to preserve evidence? <ul><li>S.7 Criminal Law Act 1997: </li></ul><ul><li>7.-(2)  Where a person has committed an ...
s.51 Criminal Justice (Theft and Fraud Offences) Act 2001 <ul><li>51.—(1) Any person who— </li></ul><ul><ul><li>(a) knows ...
s.17 Criminal Justice Act 2011 <ul><li>In effect, extends s.51 of the 2001 Act to “relevant offences” under 2011 Act. </li...
Concealment – Criminal Law Act 1997 <ul><li>8.—(1) Where a person has committed an arrestable offence, any other person wh...
Thank you Questions or comments? Email: [email_address] Blog:  www.tjmcintyre.com Twitter:  @tjmcintyre
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Reporting and related issues

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Reporting and related issues

  1. 1. Duties to report and preserve evidence TJ McIntyre Lecturer in Law, UCD Digital Investigations and the Law 2011-12
  2. 2. Introduction <ul><li>Significant underreporting of computer crime </li></ul><ul><li>Mandatory reporting laws may deter businesses from establishing in Ireland </li></ul><ul><li>Deletion of evidence presents criminal risks </li></ul><ul><li>Failure to preserve evidence may also result in civil risks or failure to mount successful criminal prosecutions </li></ul>
  3. 3. Duties to report crime? <ul><li>Pre-1997: </li></ul><ul><li>Misprision of felony </li></ul><ul><ul><li>“ The offence of misprision of a felony is committed if a person conceals or procures the concealment of a felony known to have been committed. It is the duty of all citizens to disclose to the proper authorities all material facts as to the commission of a felony of which the citizen has definite knowledge.” </li></ul></ul><ul><li>Abolished in 1997 </li></ul>
  4. 4. Duties to report crime <ul><li>Offences Against State (Amendment) Act, 1998 </li></ul><ul><ul><li>Duty to report certain “terrorist” crimes </li></ul></ul><ul><li>Criminal Justice Act 2011 </li></ul><ul><ul><li>Duty to report “white collar” crimes </li></ul></ul>
  5. 5. Criminal Justice Act 2011 <ul><li>19 .—(1) A person shall be guilty of an offence if he or she has information which he or she knows or believes might be of material assistance in— </li></ul><ul><ul><li>( a ) preventing the commission by any other person of a relevant offence, or </li></ul></ul><ul><ul><li>( b ) securing the apprehension, prosecution or conviction of any other person for a relevant offence, </li></ul></ul><ul><li>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. </li></ul>
  6. 6. What are “relevant offences”? <ul><li>See Schedule 2 </li></ul><ul><li>Approximately 130 offences of dishonesty </li></ul><ul><li>Includes all thefts, however minor. </li></ul>
  7. 7. Who is obliged to report? <ul><li>“ Any person” </li></ul><ul><li>Not merely designated individuals / professionals / etc. </li></ul>
  8. 8. When must reports be made? <ul><li>“ As soon as practicable” </li></ul><ul><ul><li>Internal investigations permitted? </li></ul></ul><ul><ul><li>Time to take legal advice? </li></ul></ul><ul><li>Has retrospective effect! </li></ul>
  9. 9. What is “reasonable excuse”? <ul><li>No definition </li></ul><ul><li>Some legal privileges likely to be included </li></ul><ul><li>May be unconstitutionally vague? </li></ul><ul><ul><li>Dokie v DPP [2010] IEHC 110 </li></ul></ul><ul><ul><ul><li>“ Satisfactory explanation” too vague </li></ul></ul></ul><ul><li>Unclear whether e.g. compliance with an internal reporting procedure sufficient </li></ul>
  10. 10. Protections for persons making reports? <ul><li>Penalisation of whistleblowers under this provision a criminal offence and employment law remedies available </li></ul><ul><li>But note making a false report is itself a crime </li></ul>
  11. 11. Offences Against State (Amendment) Act 1998 <ul><li>Withholding information. </li></ul><ul><li>9.—(1) A person shall be guilty of an offence if he or she has information which he or she knows or believes might be of material assistance in— </li></ul><ul><ul><li>(a) preventing the commission by any other person of a serious offence, or </li></ul></ul><ul><ul><li>(b) securing the apprehension, prosecution or conviction of any other person for a serious offence, </li></ul></ul><ul><li>and fails without reasonable excuse to disclose that information as soon as it is practicable to a member of the Garda Síochána. </li></ul>
  12. 12. Serious offence? <ul><li>(a) it is an offence for which a person of full age and capacity and not previously convicted may, under or by virtue of any enactment, be punished by imprisonment for a term of 5 years or by a more severe penalty, and </li></ul><ul><li>(b) it is an offence that involves loss of human life, serious personal injury (other than injury that constitutes an offence of a sexual nature), false imprisonment or serious loss of or damage to property or a serious risk of any such loss, injury, imprisonment or damage, </li></ul>
  13. 13. Child pornography <ul><li>International trend towards mandatory reporting </li></ul><ul><li>No Irish equivalent </li></ul><ul><ul><li>But reporting has grown up as a de facto obligation </li></ul></ul><ul><li>Hotline.ie available for reports re online material (only!) </li></ul><ul><ul><li>Note that it operates in a legal limbo </li></ul></ul>
  14. 14. Risks of reporting <ul><li>Defamation </li></ul><ul><ul><li>Qualified privilege likely to be available unless report made with malice </li></ul></ul><ul><ul><li>Internal procedures to be carefully considered </li></ul></ul><ul><ul><li>Specific privilege available re reports of child pornography </li></ul></ul><ul><li>Criminal liability </li></ul><ul><ul><li>Making copies, etc. of child pornography likely to constitute an offence </li></ul></ul><ul><ul><li>No statutory immunity </li></ul></ul><ul><ul><li>UK CPS / ACPO guidance should be followed </li></ul></ul>
  15. 15. Duties to preserve evidence? <ul><li>S.7 Criminal Law Act 1997: </li></ul><ul><li>7.-(2) Where a person has committed an arrestable offence, any other person who, knowing or believing him or her to be guilty of the offence or of some other arrestable offence, does without reasonable excuse any act with intent to impede his or her apprehension or prosecution shall be guilty of an offence. </li></ul>
  16. 16. s.51 Criminal Justice (Theft and Fraud Offences) Act 2001 <ul><li>51.—(1) Any person who— </li></ul><ul><ul><li>(a) knows or suspects that an investigation by the Garda Síochána into an offence under this Act is being or is likely to be carried out, and </li></ul></ul><ul><ul><li>(b) falsifies, conceals, destroys or otherwise disposes of a document or record which he or she knows or suspects is or would be relevant to the investigation or causes or permits its falsification, concealment, destruction or disposal, </li></ul></ul><ul><li>is guilty of an offence. </li></ul>
  17. 17. s.17 Criminal Justice Act 2011 <ul><li>In effect, extends s.51 of the 2001 Act to “relevant offences” under 2011 Act. </li></ul>
  18. 18. Concealment – Criminal Law Act 1997 <ul><li>8.—(1) Where a person has committed an arrestable offence, any other person who, knowing or believing that the offence or some other arrestable offence has been committed and that he or she has information which might be of material assistance in securing the prosecution or conviction of an offender for it, accepts or agrees to accept for not disclosing that information any consideration other than the making good of loss or injury caused by the offence, or the making of reasonable compensation for that loss or injury, shall be guilty of an offence ... </li></ul>
  19. 19. Thank you Questions or comments? Email: [email_address] Blog: www.tjmcintyre.com Twitter: @tjmcintyre

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