A number of enactments in Ireland address the making of disclosures of suspected wrongdoing to an appropriate regulatory or law enforcement agency (what may be termed ‘whistleblowing’).
The majority of ‘whistleblowing’ provisions in Irish law seek to protect a person who makes a disclosure in good faith. Examples are to be found in financial services legislation, anti-corruption legislation, employment legislation, in laws that protect children and vulnerable adults and in competition legislation. Indeed, a general law on the protection of ‘whistleblowers’ is anticipated: the Protected Disclosures Bill 2013 is currently before the Houses of the Oireachtas (the houses of parliament in Ireland).
However, a small number of provisions not merely protect a ‘whistleblower’, but positively oblige a person to ‘blow the whistle’ in particular circumstances. The principal disclosure obligations are:
- the broad-based section 19 of the Criminal Justice Act 2011 (the “CJA Reporting Obligation”), which is applicable to every person;
- the obligation on every person to report a suspicion of the commission of a serious offence to the Garda Síochána (the Irish police) (section 9 of the Offences Against the State (Amendment) Act 1998) (this obligation is due to lapse on 29 June 2014 unless it is extended before then);
- the obligation on most senior personnel of a regulated financial services entity to alert the Central Bank of Ireland to any suspicion that the particular entity has breached a regulatory requirement or an obligation in financial services legislation (section 38(2) (a) of the Central Bank (Supervision and Enforcement) Act 2013);
- the obligation on a designated person to report to the Garda Síochána any suspicion of the commission of an offence of money laundering or terrorist financing (section 42(1) of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010); and
- the obligation on the auditor of a company or other entity to report to the Garda Síochána information of which the auditor may become aware in the course of the audit which suggests the commission by the audited entity of any of a number of offences of dishonesty (section 59 of the Criminal Justice (Theft and Fraud Offences) Act 2001).
It should be recalled that the CJA Reporting Obligation (and each of the few other mandatory disclosure obligations that exist in Irish law) describes the circumstances in which a disclosure of suspected wrongdoing must be made. Subject to professional duties of confidentiality that may exist in some scenarios, it always is open to a person to make, to the appropriate authorities, a good faith voluntary disclosure of a suspicion of the commission of a criminal offence.
It has been seen that, in many circumstances, the making of such a voluntary good faith disclosure is protected expressly by statute. However, depending on the circumstances, even a good faith voluntary disclosure to the appropriate law enforcement authority which is not expressly protected by statute may benefit from the protection of “qualified privilege” in the law of defamation.
Nonetheless, a voluntary disclosure must always be considered carefully before it is made to ensure that the person who may make the disclosure is adequately protected in law before doing so, particularly if it transpires that, notwithstanding the suspicion, no offence had in fact been committed.
The remainder of this article considers the CJA Reporting Obligation.
Criminal Justice Act 2011
The CJA Reporting Obligation came into force on 9 August 2011. Under the terms of section 19(1) (the text of which is set out in the textbox below), it is an offence for a person to, without reasonable excuse, fail to report (as soon as it is practicable to do so) to the Garda Síochána information that he or she knows or believes might be of material assistance in:
- preventing the commission by any other person of a “relevant offence” , or
- securing the apprehension, prosecution or conviction of any other person for a relevant offence.
Therefore, strictly, the CJA Reporting Obligation penalises a failure to disclose relevant information rather than imposing an obligation to disclose it.
However, in practice the effect is the same, as the existence of the sanction for nondisclosure seems likely to create a strong incentive to make a disclosure. A breach of the CJA Reporting Obligation is itself a serious criminal offence.
Although introduced primarily to deal with concerns in the financial services industry, and while the bulk of the crimes to which the CJA Reporting Obligation applies are indeed related to the provision of financial services, the scope of the obligation is not limited to that sector and applies to certain offences (such as theft) irrespective of the circumstances in which or the person by whom the offence is suspected to have been committed. Therefore the CJA Reporting Obligation is potentially relevant to every person in every sector of industry and in private life.
Click here to view textbox.
Triggering the CJA Reporting Obligation
Although short, section 19 of the 2011 Act is a reasonably complex provision (see the text above).
As the CJA Reporting Obligation itself is a criminal offence, the threshold at which the obligation to disclose (ie the sanction for nondisclosure) arises itself must be relatively high: proof of the offence of failing to make a disclosure under section 19(1) would be required beyond reasonable doubt. The fact that the offence of failing to make a disclosure would itself derive from an alleged failure to disclose a suspicion of the commission of a separate criminal offence leads to a complex interaction of two related (suspected) offences.
This difficult situation has not yet been considered by the courts in Ireland. Pending clarification by the courts, it may be that an appropriate threshold to apply is that a person is subject to the CJA Reporting Obligation when he or she becomes aware of prima facie evidence of the commission of a relevant offence, ie evidence on the basis of which a court could, not necessarily “would”, convict a person of the underlying relevant offence.
If a person becomes aware of prima facie evidence of the commission of a relevant offence, further considerations then arise:
Does the person know or believe that information that he or she has might be of material assistance in preventing an anticipated relevant offence or in securing the apprehension, prosecution or conviction of any other person for a relevant offence?
- Does the person disclose that information as soon as it is practicable to do so to a member of the Garda Síochána?
- Does the person have a “reasonable excuse” for any failure to make the relevant disclosure?
The CJA Reporting Obligation does not develop the concept of a “reasonable excuse” and so it will be for the courts to do so. However, the concept seems likely to provide a defence for a person who (for example) honestly believes that the information has already been reported to the Garda Síochána.
Organisations and Individuals
The CJA Reporting Obligation applies to every “person”, a concept that in law includes both natural persons (ie humans) and legal persons (eg companies and statutory corporations) as well as unincorporated bodies (section 18 of the Interpretation Act 2005). Therefore, in a company (for example), the CJA Reporting Obligation applies both to the company itself (as a legal person) and to every officer and employee of it (as natural persons).
This legal reality may present a significant practical difficulty for an employer -- how can a duplicity or multiplicity of reports from the organisation be avoided yet the company be assured that it is complying with the CJA Reporting Obligation?
The answer may differ from organisation to organisation but seems likely to lie in clear and effective lines of responsibility, culminating in the organisation’s compliance, legal or similar function, through which the relevant report would be made, if it is determined that the obligation to make a report arises.
It seems likely that, in such a clear and effective arrangement, an officer or employee of an organisation would have a “reasonable excuse” not to disclose relevant information for the purposes of the CJA Reporting Obligation in circumstances in which he or she is aware that the particular concern is being addressed in the proper section or functional area of the organisation (such as the compliance or legal departments), by persons whose responsibility it is to ensure that the organisation complies with the CJA Reporting Obligation.