Explains the exercise of the duty to report an offence under the Irish Criminal Justice Act 2011 s.19. Defines the "relevant offence" that will engage the duty, as well as the penalties for failing to report an offence. Explains the difficulties in determining the existence of a "reasonable excuse" and reporting "as soon as it is practicable".

1. Commercial Law Practitioner—June 2013 123
The Duty to Report under
the Criminal Justice Act
2011
Catherine Allen*
Introduction
Section 19 of the Criminal JusticeAct 2011 (the “2011
Act”)provides thata person shallbe guiltyofanoffence
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.
A “relevant offence” is defined in the 2011 Act to
include a broad range of offences, such as those
relating to banking and finance, money laundering,
company law, fraud, theft, competition, consumer
protection, cybercrime and corruption.
Where a person is guilty of the offence of withholding
information, he or she may be prosecuted either
summarily or on indictment. In the case of a summary
conviction, the defendant may be subject to a class A
fine or imprisonment for a term not exceeding 12
months or both (s.19(2)(a)). On conviction on
indictment, the defendant may be subject to a fine or
imprisonment for a term not exceeding five years or
both (s.19(2)(b)).
With such possible sanctions, the necessity to
report is (or should be) a priority consideration for
those in organisations who become aware of the
possible commission of a relevant offence by, for
example, an employee.
In particular, what is often of concern to clients
seeking advice on the reporting obligation is the
meaning of “information which he or she knows or
believes may be of material assistance”, “reasonable
excuse” and “as soon as is practicable”.
In relation to “information which he or she knows
or believes may be of material assistance”, it has
been noted, in a paper on statutory duties to inform,
that it may be difficult for an individual to assess and
judge the value of his or her suspicions or knowledge,
and, for example, to decide whether any information
would be of “material assistance in securing the
apprehension, prosecution or conviction of that
person for that arrestable offence”.1
This is a difficult
judgment for any individual, if the person does not
have a knowledge of the offences concerned. The
description of the “relevant” offences in Sch.1 to the
2011Act is less than helpful, given that it refers in turn
to other legislation setting out the offences in question.
However, it is to be hoped that, with the assistance, if
necessary, of a suitably experienced legal adviser, a
client could be guided satisfactorily in this regard.
What is less easy to advise upon, regardless of
experience, are the issues of “reasonable excuse”
and “as soon as is practicable”, as may be seen from
a consideration of the case law which follows.
“reasonable excuse”
The phrase “reasonable excuse” appears in a great
number of Acts and statutory instruments, but has
received remarkably little judicial consideration of a
general nature on the meaning of the phrase—at least
in reported case law; most reported cases focus on
whether specific facts in a specific case constituted
a reasonable excuse in the particular circumstances
concerned.
However, some useful, more general guidance, can
be gleaned by looking further afield. For example,
s.37(7) of the Australian Safety, Rehabilitation and
Compensation Act 1988 provides that “where an
employee refuses or fails, without reasonable excuse,
to undertake a rehabilitation programme provided
for the employee under this section, the employee’s
rights to compensation under this Act … are
suspended …”.
The Federal Court of Australia considered the
meaning of “without reasonable excuse” in s.37(7)
in Australian Postal Corp v Forgie2
in some detail
and concluded that:
“The inclusion of the words ‘without
reasonable excuse’ introduces a distinctive
requirement for some deliberative human
action. An assessment needs to be made at
some point—by a person—as to a refusal or
failure to undertake a rehabilitation program,
and to the reasonableness or
unreasonableness of that refusal or failure.
Such process requires that the person at least
consider the circumstances surrounding the
employee’s failure or refusal to undertake a
rehabilitation program and to evaluate what
* Catherine Allen BCL, LLM, is a Partner in Mason Hayes &
Curran, specialising in public and administrative law.
1
SeeDisclosureofInformation:DutytoInformandWhistleblowing,
Spotlight paper prepared by the Oireachtas Library & Research
Service (December 16, 2011), p.4.
2
[2003] FCAFC 223 (October 8, 2003).

2. 124 Commercial Law Practitioner—June 2013
is reasonable in the circumstances. This
intellectual process involves matters of
judgment and degree … .”
In the criminal law context in the UK, s.19 of the
Firearms Act 1968 makes it an offence for a person,
“without lawful authority or reasonable excuse (the
proof whereof lies on him) [to have] with him in a
public place” certain specified firearms. The
interpretation of “reasonable excuse”, and whether
this is for the judge or jury to determine, was
considered in the English Court of Appeal decision,
R. v Jones.3
In that case, Auld J. stated that:
“Whether matters believed by a defendant are
capable, if true, of amounting to a defence of
reasonable excuse is for the judge to
determine. Whether he did have that belief
and, if so, whether it amounts in the
circumstances of the case to a reasonable
excuse are for the jury to decide, the burden
of proof being on the defendant on a balance
of probabilities … In our view, where there is
an honest, but mistaken, belief of facts which,
if true, would have constituted lawful authority,
it is capable of being a reasonable excuse
within the section, and the judge should so
direct the jury, leaving them to determine
whether the defendant has proved his belief
of the requisite facts and whether in the
circumstances that belief amounts to a
reasonable excuse.”
Returning to Australia for consideration of a further
case of interest, this time in a financial context, s.63
of the Australian Securities Commission Act 1989
provides that a person should not, “without
reasonable excuse”, fail to comply with a requirement
made under s.33 of that Act to produce specified
books relating to a corporation. In Australian Securities
Commission v Ampolex Ltd,4
a solicitor, who held
some documents of the respondent, was issued with
a notice by the Australian Securities Commission
(ASC) to produce the documents in the course of an
insider trading investigation.
The solicitor concerned had previously signed an
undertaking to the court not to disclose those
documents. The ASC was not listed on the schedule
as a person with whom the solicitor could share the
documents.
Kirby P. in his judgment held that:
“[The] exemption of ‘reasonable excuse’ has
been held to apply to physical or practical
difficulties in conforming to a statutory notice.
It has been held inappropriate to a claimed
reliance upon the privilege against self-
incrimination. Whatever be the limit of
‘physical or practical difficulties’, they do not
extent to the pre-existing duty to a court in a
case such as this. That duty is more
analogous to the legal excuses against
compliance with such notices which have
been held to be outside the contemplation of
the exemption. In any case, the exemption is
a defence to a criminal prosecution. Given
the expectation of the Law, that the notice will
be immediately complied with, it is hard to
see how disputed issues of release from an
undertaking would readily lend themselves to
a ‘reasonable excuse’ as s 63 of the ASC Law
provides.”
The judge concluded that it was not a “reasonable
excuse” that the recipient of the notice had the
documents in question under conditions which would
otherwise require release by a court of law, and that
such constructions are inconsistent with the terms of
the relevant sections and with the achievement of
their intended purposes.
So it can be concluded from the above that, if the
Irish courts were to follow the above authorities, a
reasonable excuse requires deliberative human
action, that it is for the trial judge to determine whether
matters believed by a defendant are capable, if true,
of amounting to a defence of reasonable excuse, but
it is for the jury to decide whether he did have that
belief and, if so, whether it amounts, in the
circumstances of the case, to a reasonable excuse,
and that a reasonable excuse may extend to physical
or practical difficulties, but not legal difficulties.
This is, needless to say, a less than clear-cut
position on which to base advice to a client.
“as soon as it is practicable”
Even if that hurdle is overcome and it has been
decided that there is a duty to report, how soon must
that reporting obligation be fulfilled? A number of Irish
cases have involved a consideration of the phrase
“as soon as it is practicable”, giving some assistance
in this regard.
In O’Donovan v Attorney General,5
the High Court
was required to consider the provision in Art.16.2.3°
of the Constitution which stipulates that the ratio
between the number of members to be elected to
Dáil Éireann at any time for each constituency and
the population of each constituency, as ascertained
3
[1995] 2 W.L.R. 64.
4
(1995) 18ACSR 735.
5
[1961] I.R. 114.

3. Commercial Law Practitioner—June 2013 125
at the last preceding census, shall “as far as it is
practicable be the same throughout the country”.
Budd J., in the course of his judgment, referred to
the decision of Lord Goddard L.C.J. in Lee v Nursery
Furnishing Ltd,6
in which he accepted the meaning
of “practicable”, as contained in the Oxford English
Dictionary, as being “capable of being … carried out
in action … feasible”. Applying that test, he rejected
the contention that a mathematical parity of ratio was
to be attained. He added:
“I construe the subclause as meaning that a
parity of ratio of members to population in the
constituencies throughout the country is to be
attained by the Oireachtas, so far as that is
capable of being carried into action in a
practical way, having regard to such practical
difficulties as exist and may legitimately,
having regard to the context and provisions of
the Constitution generally, be taken into
consideration.”
In Application of Butler,7
the words “as soon as
practicable” in a policy of motor insurance were
considered by the Supreme Court and it was said
that, “regard must be paid to the context in which the
words are used and the surrounding circumstances”.
In MinisterforAgriculturevKelly,8
theCourtofAppeal
in Northern Ireland was concerned with a statute
which created an obligation to display a notice of
seizure of livestock at the nearest police barracks “as
soon as practicable” after it had taken place. In the
course of his judgment, Lord McDermott L.C.J.,
having pointed out that the word “practicable” was
not synonymous with “possible”, added:
“In this context it must, I think, be taken to
signify what is reasonable in the
circumstances and appropriate to the
requirements of the situation.”
These authorities were considered by Costello J. (as
he then was) in Hobbs v Hurley,9
where he was
concerned with a provision of the Road Traffic Act
1961 by virtue of which the Medical Bureau of Road
Safety was required to forward a particular certificate
to the relevant Garda station “as soon as practicable
after compliance with subs.(1)”. Subsection (1), in
turn, required the Bureau to carry out a particular
analysis “as soon as practicable”. Costello J. held
that, in construing the words “as soon as is
practicable” in a statute, the surrounding
circumstances and, in particular, the nature and
purpose of the obligation imposed by the statute, must
be borne in mind.
Costello J., in the course of his judgment, adopted
the view which had also found favour in the earlier
cases that the words “as soon as practicable” were
not synonymous with “as soon as possible”. He also
considered that, in deciding whether the Bureau’s
statutory obligation was carried out “as soon as
practicable”, the surrounding circumstances had to
be considered and, in particular, the nature and
purpose of the statutory obligation on the Bureau.
Finally, Keane C.J., delivering the judgment of the
Supreme Court in McD & McD v Eastern Health
Board,10
stated that he was satisfied that the
authorities listed above correctly identified the
approach which should be taken by the court in the
case before it and confirmed that “as soon as is
practicable” was not to be equated with “as soon as
possible”.
Analysis
It seems, therefore, that the requirement to report “as
soon as practicable” is a little easier to advise upon
than “without reasonable excuse”, but there is still no
concrete guidance in this regard. In particular, it is
not clear whether an organisation can await the
outcome of its internal investigation before reporting
the matter.
As can be seen from the above, the position is
anything but clear and much depends on the facts
and circumstances at issue. Probably due to this lack
of clarity, much commentary on s.19 to date has
advocated a conservative and cautious approach of
reporting at the first available opportunity.
However, there are arguments against such an
approach, mainly based on the lack of protection for
those making a report, in the event that the suspicions
subsequently prove to be misplaced.
Those operating in the child safeguarding sphere
will be familiar with the provisions of the Protections
for Persons Reporting Child Abuse Act 1998, s.3 of
which provides that a person shall not be liable in
damages in respect of a communication by him or
her to the relevant civil authorities of his or her opinion
that a child is at risk, unless it is proved that he or she
has not acted reasonably and in good faith in forming
that opinion and communicating it to the appropriate
person. Note that it is for the person bringing the
defamation or other action, for example, for breach
of confidentiality, to prove that the reporter did not act
reasonably and in good faith. However, note also the
protection of persons against whom false reports are
made, which is provided for in s.5—a person found
6
(1945) 61T.L.R. 263.
7
[1970] I.R. 45.
8
[1953] N.I. 151.
9
Unreported, High Court, Costello J., June 10, 1980. 10
[1997] 1 I.L.R.M. 369.

4. 126 Commercial Law Practitioner—June 2013
guilty of making a false report is liable following
conviction to fines or imprisonment or both.
These provisions sit neatly with s.2(1) of the
Criminal Justice (Withholding of Information on
Offences against Children and Vulnerable Persons)
Act 2012, which provides, in ss.2 and 3, for offences
similar to that contained in s.19 of the 2011 Act.
An interesting comparison also arises with the
provisions of the Criminal Justice (Money Laundering
and Terrorist Financing) Act 2010 (the “2010 Act”),
s.42(1) of which provides that a designated person
who knows, suspects or has reasonable grounds to
suspect, on the basis of information obtained in the
course of carrying on business, that another person
has been or is engaged in an offence of money
laundering, must report this to the Garda Síochána
and the Revenue Commissioners. However, a
designated person is taken not to have reasonable
grounds to know or suspect that another person
commits an offence on the basis of having received
information until the person has scrutinised the
information in the course of reasonable business
practice (including automated banking
transactions).11
Further, the 2010 Act contains protection in s.47 for
persons making reports to the Garda Síochána,
11
Criminal Justice (Money Laundering andTerrorist Financing)Act
2010s.42(3).
confirming that such reports shall not be treated, for
any purpose, as a breach of any restriction on the
disclosure of information imposed by any other
enactment or rule of law.
No such similar guidance or protections exist for
those making reports to the Garda Síochána pursuant
to s.19 of the 2011 Act and, therefore, it is unclear the
extent to which an organisation can or should carry
out an investigation in order to determine whether
the information which has come to its attention would
be of “material assistance” to the Gardaí.
Other concerns also arise, such as the necessity
to advise an employee, suspected of possible
involvement in criminal activity, of his rights, such as
the taking of separate legal advice and the privilege
against self-incrimination, prior to any investigation
by a company, in order to avoid potentially
jeopardising a future prosecution.
Summary
All of the above point to the necessity for guidance for
organisations on the implementation of the reporting
obligations in the 2011 Act, particularly in relation to
the issues of the conduct of internal investigations,
the timing at which reports should be made when
necessitated, and what will consist of a reasonable
excuse if required reports are not made.