Section 19 of the Criminal Justice Act 2011 introduced the offence of “withholding information” and with it widespread mandatory reporting obligations with consequent liabilities for failure to do so.
Section 19 is a remarkable provision. Although introduced to facilitate the investigation of white collar offences generally, it was intended primarily as a check on wrongdoing in the financial sector, and while the bulk of the crimes to which section 19 applies are related to the provision of financial services, the scope of the obligation is not limited to that sector and applies to certain offences irrespective of the circumstances in which or the person by whom they may be committed.
Section 19(1) provides that:
“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 -
a) preventing the commission by any other person of a relevant offence, or b) securing the apprehension, prosecution or conviction of any other person for a relevant 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.”
The maximum penalty for an offence is an unlimited fine and imprisonment for up to 5 years or both.
The obligation to make a notification under section 19 applies to any “person”. This is a very wide definition. It is not restricted in any way, for example, to professional advisors. It includes corporate entities as well as natural persons.
In addition, where an offence is committed by a body corporate and it is proved that this was done with the consent or connivance, or was attributable to any wilful neglect, of a director, manager, secretary or other officer of that body corporate, or a person purporting to act in that capacity, that person will also be guilty of an offence and may be proceeded against and punished as if guilty of the original offence. This liability also extends to members of a body corporate where its affairs are managed by its members.
A notification may be made to any member of the Irish police force, An Garda Síochána. More serious offences tend to be reported to the Garda National Economic Crime Bureau.
A list of “relevant offences” is set out in the schedule to the 2011 Act. These include a broad range of arrestable offences1 in the areas of:
- Banking, investment of funds and other financial activities;
- Company law;
- Money laundering and terrorism;
- Theft and fraud;
- Bribery and corruption;
- Consumer protection;
- Criminal damage to property;
This list of offences is very wide and is amended from time to time. For example, it was recently amended to take account of the new Criminal Justice (Offences Relating to Information Systems) Act 2017. The range of offences covered can also be extended by ministerial order. It is also important to note that the reporting obligation exists in respect of the aiding, abetting, counselling or procuring the commission of these offences as well as conspiring to commit, or inciting the commission of them. There are certain protections in place to ensure that whistleblowers are not unfairly penalised.
The obligations imposed by this legislation are far-reaching and onerous. They should not be ignored.