THERE SHOULD be a legal obligation on citizens to report to the authorities knowledge that a serious crime had been committed or was about to be committed, according to former minister for justice Michael McDowell.
Mr McDowell was speaking at an international conference on the codification of the criminal law in Dublin at the weekend.
He said that an old common-law offence of "misprision of felony" had effectively disappeared with the abolition of the distinction between felonies and misdemeanours in the 1997 Criminal Law Act.
This raised the question as to whether Irish citizens, who might previously have been at risk of prosecution for failing to give information about serious offences, "are now wholly excused from any criminal liability", with some exceptions, he said.
Such exceptions arose in the emergency legislation introduced after the Omagh bombing, when it was made an offence to withhold information about a crime, punishable by at least five years' imprisonment.
However, if the amended Offences against the State Act were allowed to lapse due to a fall in the number of terrorism-type offences, the question would arise as to whether citizens would be totally and absolutely absolved of any positive duty, backed by criminal sanction, to report knowledge of the intended or actual commission of grave offences, Mr McDowell added.
"Personally, I believe that a 'withholding of information' type offence could and should be created under Irish law," he said, where the offence involved carried a maximum sentence of life imprisonment and where it involved actual or possible loss of life, serious injury or kidnapping. He said that, in relation to organised crime, a major problem was that of obtaining evidence on which to convict those who organised it.
The Criminal Justice Act of 2006 contained provision for the use of "informer evidence". The common element in prosecuting organised crime and dealing with withholding information about crime was the mobilisation of citizens within a society based on the rule of law, said Mr McDowell.
The codification of the entire body of criminal law is an undertaking of fundamental importance to the maintenance of law and order, according to Mr Justice Hedigan. The former judge of the European Court of Human Rights said that a complete catalogue of offences will lead to a more complete understanding of the law for the public, legal scholars, the legal profession and the judiciary.
The European Convention on Human Rights could help in this process, he said. It extolled the general principles of clarity and autonomy, and Articles 6 and 7 provided protection for the individual when being prosecuted for a criminal offence. It had already impacted on criminal law, and, along with the Constitution, it had helped to define the limits of criminalisation, he said.
Lia O'Hegarty, a member of the Expert Group on the Codification of the Criminal Law, told the conference that the codifier must be sensitive to the interpretive role of the judiciary. "Too much specificity could foreclose this," she said.
There were dangers in over-defining things in the process of codification, Ms Hegarty added.
The constitutional balance would still require a balance between the legislature and the judiciary, and the codifier must not try to oust the interpreter.
"The criminal law is destined to proceed as a partnership between the legislature and the judiciary. The code will take on a life of its own," she said.
The Bar Council
TEN NEW members, five senior counsel and five junior, have been elected to the Bar Council, which elects 10 members each year who serve for a period of two years. There are 20 members on the council, from whom a chairman is then elected. The five senior counsel members are: David Barniville SC, Mel Christle SC, Michael Collins SC, Declan Doyle SC and Shane Murphy SC. The five junior counsel are: Helen Boyle BL, Feargal Foley BL, Paul McGarry BL, Roderick Maguire BL and Gerry Meehan BL.