Criminal Justice Act 2011.

Below are a series of questions to and answers from the Department of Justice in September of interest to anybody considering blowing a whistle in the media where it relates to white collar crime.

DISCLAIMER NOTICE

Nothing in the information below should be construed as qualified legal advice. Whistleblowers Ireland are not responsible for any inaccuracies. However, we have gone to considerable lengths to ensure the accuracy of the information below. The piece is strictly for guidance purposes only. Anybody wishing to act on any of the information contained below is actively encouraged to seek professional legal advice.

Question 1: Have the new provisions come into effect?

Answer: The provisions of the Criminal Justice Act 2011 relating to the investigation of white collar crime came into operation on 9th August 2011.  The remaining provisions (sections 5, 7(c) and 9 to 14) will be brought into operation at a later date.

Question 2: If a journalist receives information about white collar crime during the course of their work, where do they stand?

Answer: Section 19 of the Act provides for the offence of withholding information. It provides that a person commits an offence if he or she has information which he or she knows or believes might be of material assistance in preventing the commission of a relevant offence (within the meaning of the Act) or in securing the apprehension, prosecution or conviction of a person for such an offence and fails without reasonable excuse to disclose the information as soon as practicable to a member of the Garda Síochána. Whether an offence is disclosed in any particular circumstances depends on the facts of the case and would ultimately be a matter for the court to decide.

Question 3: Under what circumstances can journalists publish information they receive that relates to white collar crime and how is their ability to work as a journalist protected in any way by the act?

Answer: The Act does not provide specific restrictions on publication.

Question 4: If a member of the public has a whistle to blow about a white collar crime, and they come forward to blow that whistle in a newspaper – where does the member of public stand?

Answer: Section 19 of the Act provides for the offence of withholding information. It provides that a person commits an offence if he or she has information which he or she knows or believes might be of material assistance in preventing the commission of a relevant offence (within the meaning of the Act) or in securing the apprehension, prosecution or conviction of a person for such an offence and fails without reasonable excuse to disclose the information as soon as practicable to a member of the Garda Síochána. Whether an offence is disclosed in any particular circumstances depends on the facts of the case and would ultimately be a matter for the court to decide.

Question 5: If a member of public comes forward with information about white collar crime but they have also previously signed a confidentiality agreement when they started work with the employer they wish to blow the whistle about, what specific protection does the act have against that employee being sued in a civil court for breaching the terms of that confidentiality agreement? Where is this specifically covered in the act?

Answer: An agreement compelling a person to commit an offence is not enforceable at law. Section 20 and Schedule 2 contain extensive  whistleblower protections against penalisation by employers.

Question 6. Under the terms of the act, can a journalist face prosecution for not reporting an alleged white collar crime to the Gardai before writing and getting published a story about the alleged crime? Where is this specifically covered in the act?

Answer: Section 19 of the Act provides for the offence of withholding information. It provides that a person commits an offence if he or she has information which he or she knows or believes might be of material assistance in preventing the commission of a relevant offence (within the meaning of the Act) or in securing the apprehension, prosecution or conviction of a person for such an offence and fails without reasonable excuse to disclose the information as soon as practicable to a member of the Garda Síochána.  Whether an offence is disclosed in any particular circumstances depends on the facts of the case and would ultimately be a matter for the court to decide.

Question 7: Under the terms of the act, can a member of the public face prosecution for not reporting an alleged white collar crime to the gardai before contacting a journalist? Where is this specifically covered in the act?

Answer: Section 19 of the Act provides for the offence of withholding information. It provides that a person commits an offence if he or she has information which he or she knows or believes might be of material assistance in preventing the commission of a relevant offence (within the meaning of the Act) or in securing the apprehension, prosecution or conviction of a person for such an offence and fails without reasonable excuse to disclose the information as soon as practicable to a member of the Garda Síochána. Whether an offence is disclosed in any particular circumstances depends on the facts of the case and would ultimately be a matter for the court to decide.

Question 8: Is the act retrospective?

Answer: While the Act is not retrospective that does not mean that its requirements will not have implications for persons who, for example, have information in relation to a relevant offence committed prior to the coming into effect of the Act.

The Minister explained this  in a press statement. He said: ‘People who have information relating to current investigations into financial wrongdoing, even if it predates the enactment of this legislation, who have not made that information available to An Garda Síochána, need to be aware that following the commencement of this Act, they will be under a legal obligation to assist the Gardaí in their investigations.

‘Should it emerge, following the commencement of this Act, that they failed to do so, they themselves will be liable to criminal charges. This is just one of the reasons why this Act is so important in the context of current investigations.’

Whistleblowersireland postscript. You cannot be bound by law to do anything that is contrary to the law. By that, an employer cannot sue for breach of contract if by doing so, the employee is being bound to conceal a crime. However, it is worth bearing in mind that the information that gets revealed would have to relate to a criminal offence.

You can download a .pdf of the act from the Oireachtas website in its Bills and Legislation section or by clicking  here .

Have you a whistle to blow? Call 087 919 9113 or email contact @ irishwhistleblower.com in the strictest of confidence