Brady - A legal question. (Main Forum)

by James, Australia, Saturday, May 05, 2012, 17:02 (385 days ago) @ desi

This is the article in the Irish Times about Brady's obligation under the Irish Criminal Law. I'm surprised about this "Legal Affairs" Editor's lack of knowledge of Irish law which even someone in the Antipodes can check with simple searches on the Internet.

LAST WEEK Minister for Justice Alan Shatter published the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Adults) Bill.

This creates a criminal offence of withholding information in relation to serious offences, including sexual offences, committed against a child or vulnerable person.

The Bill will make it mandatory for a person who has or receives such information to pass it on to the Garda, except in certain limited circumstances, including when the child requests the person not to.

In announcing the Bill the Minister said: “The primary purpose of this Bill is to close an existing loophole in our current law.”

That loophole was the absence of any legal obligation on people to report to gardaí the fact that such an offence had been committed, something highlighted in the Ryan and Cloyne reports.

The Offences Against the State (Amendment) Act 1998 did provide for an offence of withholding information in relation to serious offences but specifically excluded sexual offences.

This meant that in 1976 there was no clear law in place that put an obligation on Fr Seán Brady, as he then was, to report to gardaí the fact that a crime had been committed against two boys.

Nor was there any obligation on him to report to the civil authorities that other children might be in danger.

There is no mention in the article of the common law offence of misprision of felony. That offence was abolished by the Criminal Law Act 1997 that came into force in July 1997. The fact that the Criminal Law Act made a specific point of abolishing it, must mean that it was in force immediately before July 1997.

The fact of its existence is confirmed in a report of the Irish Law Reform Commission in 1989,

No statute lays down in express terms a duty on any person, private or official, to report child sexual abuse or suspected child sexual abuse. This applies to health care and child care workers, as it does to teachers, friends and neighbours. The criminal law does still contain a little known and seldom used offence called Misprision of Felony , which punishes failure to report the actual commission of certain serious offences (or felonies ) such as rape and buggery.1 However, misprision does not extend to many of the offences relevant in the context of child sexual abuse (i.e. incest, indecent assault, unlawful carnal knowledge of a girl between fifteen and seventeen years of age). It possibly does not extend to felonies disclosed professionally to a lawyer, doctor or clergyman. In Sykes v DPP2 Lord Denning conceded that certain relationships, including those of doctor and patient and clergyman and parishioner, might give rise to a claim in good faith that it would not be in the public interest to disclose the felony .3 This concession has been criticised.4 The crime of misprision does not extend to a mere suspicion that a felony has been committed.

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ie/other/IELRC/1989/4.html&query=misp...

One has to understand that the Law Reform Commission was then describing how the current misprision of felony was inadequate to deal with all cases of sex abuse of children, because it only applied to "felonies". And the exception for confidential communications between doctor and patient, clergyman and parishioner only reflects the same considerations that apply to S.316 of the NSW Crimes Act that allows for avoidance of the crime if there was a "reasonable excuse".

So, one has to ask how Brady could have been protected under Irish law from a charge of misprision of felony. The relationship between a Canonical investigator acting pursuant to Crimen Sollicitationis is not one of those usual relationships of confidence between doctor and patient, priest and penitent. I would think that an Irish Court would give short shrift to an argument that the communication was confidential because Canon Law made it confidential.

Then there is the question of conspiracy to pervert the course of justice by administering the oath to the boy to preserve secrecy under pain of excommunication. The letter writer has a good argument that Brady had committed that crime as well.