Draft only: do not cite.
OFFENCES OF FAILURE TO REPORT: A REPRISE OF MISPRISION?
Andrew Ashworth
This paper explores the rationale(s) for offences of failure to report suspected crimes – their nature, their elements and their justifications. The focus will be on English law, with some references to the United States. These legal systems share a heritage, in the common law offence of misprision of felony, which existed for many centuries and was abolished in
English law in 1967. According to Blackstone, misprision of felony was ‘the concealment of a felony of which a man knows, but never assented to.’ 1
If D had assented to the commission of the felony he would have been either a principal or an accomplice. Liability for the misdemeanour of misprision of felony was therefore a lesser form, not tied to the gravity of the particular felony but rather based on a failure to assist in the enforcement of the law, by reporting the felony to a constable. Since in most cases in which misprision might be relevant D would have been present during or immediately after the commission of the felony, D would usually know the identity of the felon. But it seems that the essence of misprision lay in the failure to report the commission of the felony, not failure to identify the felon. However, this and many other features of the offence were never clarified at common law, 2 and the requirements of the offence were disputed even until it was abolished by the
Criminal Law Act 1967.
3
1 4 Blackstone’s Commentaries (1813 ed) 110.
2 For analyses of the history, compare the House of Lords in Sykes v. D.P.P.
[1962] A.C. 528 with P.R.
Glazebrook, ‘Misprision of Felony – Shadow or Phantom?’ (1964) 8 Am. J. Legal Hist.
189, 283.
3 Ibid; see also J.F. Stephen, Digest of the Criminal Law (1887), 372, criticizing the offence as ‘extremely vague’, and C. Howard, ‘Misprisions, Compounding and Compromises’ [1959] Crim.L.R. 750.
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The abolition was prompted by the Seventh Report of the Criminal Law Revision Committee, which offered four arguments against the survival of the offence.
4
First, its application to all felonies meant that it covered some minor crimes, such as small thefts, which is inappropriate.
5
Secondly, the offence did not include a requirement that the omission to report was dishonest. Thirdly, there was no defence or exception for offences committed by near relatives. And fourthly, the idea of a crime of failing to answer police questions was inappropriate in modern society, and yet in some cases this would be the substance of the charge. If the privilege against self-incrimination and right of silence are to mean anything, they ought to stand in the way of such an offence. We will have occasion to reflect on these arguments below.
‘Failure to Report’ Offences in English Law
In this section, consideration is given to four omissions offences in English law which consist of a failure to report a crime: a) failure to report suspected money-laundering; failure to report suspected financial offences related to terrorism, b) in the regulated sector and c) generally; and d) failure to report suspected terrorist activity. These offences (and other obligations imposed by English law) have been discussed in an important essay by Shlomit
Wallerstein, of which I was unaware when drafting this paper but from which I have benefitted since.
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(a) Failure to Report Suspected Money-Laundering (Regulated Sector): sections
330 and 331 of the Proceeds of Crime Act 2002 create two offences of failure to disclose money-laundering activities, applicable only to persons working in the regulated sector who have reasonable grounds for knowing or suspecting that another person is engaged in moneylaundering.
7 Some 240,582 SARs (suspicious activity reports) were made in the year ending
September 2010, slightly more than in the previous year: over three-quarters came from
4 Criminal Law Revision Committee, Seventh Report – Felonies and Misdemeanours , Cmnd. 2659 of 1965,
[39-42].
5 One of the criticisms advanced by Glanville Williams, Criminal Law: the General Part (1 st ed., 1953), 236.
6 S. Wallerstein, ‘On the Legitimacy of Imposing Direct and Indirect Obligations to Disclose Information on
Non-Suspects’, in G.R. Sullivan and I. Dennis (eds), Seeking Security (Hart, 2012), 37-58. The essay draws a distinction between direct and indirect duties to provide information (at 50-51), and my concern here is chiefly with direct duties.
7 For discussion in the financial services context, see E.P. Ellinger, E. Lomnicka and C.V.M. Hare, Ellinger’s
Modern Banking Law (5 th ed., 2011), 101-105.
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banks, with money service providers, lawyers, accountants, casinos and others making up the remainder.
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It is not clear how many of these reports led to a prosecution, a statistic of some importance for the justification of this duty. It is easy to claim that such duties to report are indispensable to law enforcement, and to claim that organised criminals, particularly those involved in the drugs trade or in terrorism, rely on the laundering of money in order to thrive;
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but we are entitled to require objective evidence before accepting the argument for imposing criminal law duties with substantial maximum penalties.
(b) Failure to Report Suspected Financial Offences related to Terrorism (Regulated
Sector): section 21A of the Terrorism Act 2000 creates a similarly-structured offence for persons working in the ‘regulated sector’ who fail to disclose suspicions of an offence under sections 15 to 18 of the Terrorism Act – offences of fund-raising for the purposes of terrorism, the use or possession of money or other property for the purposes of terrorism, being concerned in an arrangement to fund terrorism, and ‘laundering’ terrorist property.
10
The range of defences is similar, and the maximum sentence is also five years’ imprisonment.
The number of SARs made in respect of terrorist finance was 599 in the last full year, or some 0.25% of all SARs made, with three-quarters coming from the banks;
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it is not known how many led to prosecutions.
(c) Failure to Report Suspected Financial Offences related to Terrorism (General
Employment): wider than the above offences is the offence in section 19 of the Terrorism Act
2000, which now applies to information that comes to any person in the course of employment (whether or not in the course of a trade, profession or business). The original section 19 was aimed at professional people who handled financial matters, but in 2008 it was broadened so as to include information coming to all persons in the course of their employment, and by section 22A (inserted into the 2000 Act) ‘employment’ includes work experience, voluntary work and work under a contract for services.
12
This considerably extends the reach of the offence, but on the other hand the fault element is somewhat narrower than the ‘regulated sector’ offences since it does not include the objective
8 Serious Organised Crime Agency, Suspicious Activity Reports Regime Annual Report 2010 (2011), 13.
9 Cf. the similar provisions in the United States, requiring financial institutions to make SARs when they suspect money-laundering or another criminal transaction. The provisions of the U.S. Patriot Act extended the reporting requirements to sellers of high-value goods (e.g. jewellery, luxury cars, boats and planes). See S.G.
Thompson, ‘The White-Collar Police Force: “Duty to Report” Statutes in Criminal Law Theory’ (2002) 11
William and Mary Bill of Rights Journal 3, at 25-31.
10 For analysis, see C.P. Walker, Blackstone’s Guide to the Anti-Terrorism Legislation (2 nd ed., 2009), 97-100.
11 Serious Organised Crime Agency (above, n. 8), 58.
12 See Walker, above n. 10, 97-98.
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‘reasonable grounds’ condition. Thus the prosecution must prove that D knew or suspected that one of the four terrorist offences was being committed by another person, and that D failed to report that. The defences are broadly similar to the ‘regulated sector’ offences, and the maximum penalty is five years’ imprisonment.
(d) Failure to Report Information about Acts of Terrorism: moving away from financial offences, section 38B of the Terrorism Act 2000 makes it an offence to fail to disclose information which D ‘knows or believes might be of material assistance (a) in preventing the commission by another person of an act of terrorism, or (b) in securing the apprehension, prosecution or conviction of another person, in the United Kingdom, for an offence involving the commission, preparation or instigation of an act of terrorism.’ 13
Section
38B thus creates two offences, one relating to the prevention of future acts of terrorism and one relating to terrorist acts that have already occurred (albeit that this may include acts of preparation, encouragement or assistance). The fault element of these offences is knowledge or belief, and suspicion is not enough. However, the referential point of that knowledge or belief is different from the financial offences above, since the knowledge or belief need only be as to a possibility of material assistance (‘might be’). The prosecution is required to prove that the offence involved is an ‘act of terrorism’, rather than an ‘ordinary’ crime.
14
The conduct element is a failure to disclose the relevant information to a constable as soon as is practicable. The maximum sentence is five years’ imprisonment.
Section 38B(4) provides that it is a defence for P to prove that there was a reasonable excuse for not making the disclosure, but the cases make it clear that family ties, however close, cannot amount to a reasonable excuse.
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Failure to Report: Crime or merely Civic Duty?
The offences of failure to report suspected money-laundering and other financial offences, discussed in (a) and (b) above, apply only to the regulated sector. Would it be fair to rely on
13 For analysis, see C. Walker, ‘Conscripting the Public in Terrorism Policing: Towards Safer Communities or a
Police State?’ [2010] Crim.L.R. 441, and Walker (above, n. 10), 124-131.
14 Attorney-General’s Reference (No. 3 of 1993) [1993] N.I. 50, applying Rock , 29 June 1990 (Northern
Ireland, unreported).
15 Abdul Sherif [2009] 2 Cr. App. R. (S.) 235, particularly at [45]; Esayas Girma [2010] 1 Cr. App. R. (S.) 172.
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‘voluntary obligation’ reasoning here, arguing that by deciding to work in the regulated financial sector a person assumes some responsibility for ensuring the lawfulness of transactions of which he or she becomes aware? The force of this cannot derive simply from the argument that if one voluntarily takes on a position one must accept all the duties that go with it, because that is to assume the answer to the question. Nor is it persuasive to maintain that a person who reaps the benefits of working in that sector should submit to certain burdens (including that of reporting) – there might be no great ‘benefit’ for a lowly employee, and the burden is that of acting as an unpaid law enforcement officer, which may be quite demanding. Why should that burden be imposed on workers in the financial sector and not
(on the basis that they accept the benefits of the security provided by the state) on all citizens? Insofar as part of the reasoning for co-opting the regulated sector into law enforcement stems from the limitations of conventional policing, should we not review those limits in order to see what other groups of workers ought to be co-opted as required reporters? If the argument is that the police have no access to bank accounts and other details in the financial sector, can it not also be said that they have insufficient access to accounts within companies and other organizations? This reasoning would embrace (c), the duty imposed on persons who do not work in the regulated sector but who simply have some form of employment (even unpaid) which brings them within range of financial dealings that may be related to terrorism. Given the broad definition of ‘employment,’ that falls little short of a general duty on citizens, of the kind in (d) that relates to past or future acts of terrorism.
However, the duty in (d) may be thought to be considerably more powerful, since it concerns not mere financial dealings but the priority of life, the principle of opportunity and capacity, and (in some cases) urgency. Money-laundering is an evil, but, even if the claims about organized crime and gang culture are sustained,
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it is a crime that should not be ranked as high as significant physical or sexual abuse. In the United States all jurisdictions go further and impose a duty to report child abuse, applicable to those who may come into professional contact with children, whether as doctors, nurses, educators, child care workers etc.
17 In all states there is also a duty to report elder abuse, imposed on relevant professionals.
18 In some states these duties have been extended to all citizens who come to know of an incident of child abuse or elder abuse, and the offence of failing to report child abuse has been used in
16 For a sceptical view, see M. Levi, ‘The Organisation of Serious Crimes for Gain’, in M. Maguire, R. Morgan and R. Reiner (eds), Oxford Handbook of Criminology (5 th ed., 2012), 609-612.
17 Thompson (above, n. 9), 13-19
18 Ibid., 19-24.
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some states against a parent who knows that her partner is abusing a child.
19
Some states go even wider, and have laws penalising failure to report any serious offence of which a person becomes aware (with a relatively low maximum penalty, usually a fine, for failing to summon help).
20
These American developments raise three questions: should there be a general duty on citizens to report serious offences? Is there a strong argument for a special duty to report abuse of the vulnerable? What is the appropriate level of seriousness of these offences, for sentencing purposes?
The first question raises the spectre of the common law offence of misprision of felony, which was described at the beginning of the paper. All the four objections that became the basis for the abolition of the offence in English law could be met to some extent. Improved drafting of the offence could limit the duty to serious offences and dishonest failures to report. Whether the objection based on family loyalty is sufficiently strong has been doubted here, particularly where death or physical abuse is involved. We have noted that the duty to report information relevant to terrorist acts overrides this objection by placing the saving of lives and bodily integrity above family loyalty.
The final objection is the most difficult, and raises profound questions about the appropriate relationship between citizens and the State. A combination of careful drafting and sensible prosecutorial guidelines could reduce the practical problems, but there may be a lingering belief that the criminal law should not be used to force citizens to become collaborators. We must confront the question whether there is a fundamental political or social objection to offences such as misprision of felony, which (even if limited to dishonest failures to report serious offences) would compel citizens to align themselves with the police and to betray their fellow-citizens. In the first place, we should remove some of the terminological difficulties. A general duty to report serious crime does not ‘align’ citizens with the police: it requires citizens to assist the police in one of the state’s primary obligations, which is to prevent and to investigate crimes. However, that remains controversial: the common law imposes no duty to answer police questions, 21 and public opinion may not be supportive of any such legal duty.
22
On the other hand, can such a duty be said to require the ‘betrayal’ of
19 Ibid., 15-16; Thompson states that prosecutions are rare in most states, and that the duty is used to ground civil actions against health professionals and educators who fail to report.
20 D.B. Yeager, ‘A Radical Community of Aid: a Rejoinder to Opponents of Affirmative Duties to Help’
(1993) 71 Washington U.L.Q.
1, 23; S.J. Heyman, ‘Foundations of the Duty to Rescue’, (1994) 47 Vanderbilt
L.R.
673, 689.
21 Rice v. Connelly [1966] 2 Q.B. 414.
22 Wallerstein, above n. 6, 44-45.
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fellow-citizens? If a person has committed a serious offence, what strings of loyalty can be said to be more important than bringing an offender to justice?
23
We will leave that question hanging until the next paragraph, and move on to consider what the state may properly demand of citizens in this regard. It is normal to have a constitutional
‘principle of compulsory process’, which ensures that a witness can be compelled to attend and to give evidence at a person’s trial, subject to being found in contempt of court for refusal.
24 This is currently one of several duties of citizenship, alongside the duty to serve on a jury (unless excused), and the duty to submit to arrest if a constable reasonable suspects a person of an arrestable offence, and so forth. There are two exceptions to the principle of compulsory process -- legal professional privilege (not discussed further here), and spousal immunity. English law excuses a spouse or civil partner from being a compellable witness in order not to jeopardise the ‘special status of marriage’ by forcing one party to testify against the other.
25
However, there is an exception to that exception, where the trial involves an assault on the spouse or civil partner or on a person under 16, or a sexual offence against a person under 16.
26
These exceptions leave the law in a somewhat incoherent state: the immunity applies to a spouse but not to a long-time partner, sister, brother, parent or child; and the immunity does not apply to a spouse alleged to have kissed a 15 year-old but does apply to one alleged to have committed the murder or rape of anyone over 16.
27
The problem of principle is whether the importance of the marital bond should be placed so high as to outweigh the desirability of bringing serious offenders to justice. That is close to the issue here, which is whether the rationale of the constitutional ‘principle of compulsory process’ might extend to imposing on citizens a duty to report serious offences. One can understand the historical reasons for beginning with duties to report child abuse and elder abuse, but the principle is surely no different for other serious offences, particularly those committed in private places.
This part of the argument brings us to English law’s ‘failure to protect’ offence. This offence imposes a further-reaching criminal law duty on an adult member of the household in relation
23 Distinct from the ‘betrayal’ suggestion is the possibility of intimidation or violence from the family or friends of the person reported. This possibility needs to be addressed on a practical level, as well as through the criminal law defence of duress.
24 P. Roberts and A. Zuckerman, Criminal Evidence (2 nd ed., 2010), 307.
25 Per Lord Salmon in Hoskyn v. Commissioner of Police for the Metropolis [1979] A.C. 474, at 495.
26 Police and Criminal Evidence Act 1984 (England and Wales), s. 80(3).
27 See the comments by Roberts and Zuckerman (above, n. 24), 314-317.
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to children and vulnerable adults in the same household.
28
This is the duty to take such steps as are reasonable to protect such children or vulnerable adults from death or serious bodily harm, a duty borne of proximity to the abuse (the principles of opportunity and capacity) rather than the professional responsibility of a person whose employment brings them into contact with children or vulnerable people. The duty typically falls upon family members, and therefore the argument in (d) above about the acute personal conflicts and hardship of imposing on a close family member (wife, brother) a duty to report terrorist acts is absolutely off the table here. Because such events often take place within the household, the protection of the private sphere is rightly regarded as less valuable than the protection of the life and limb of children and vulnerable adults. The priority of life must be maintained, and in many cases there will be urgency. A parallel argument can be made in support of the duty to disclose information relevant to preventing terrorist acts (discussed in (d) above), treating the values at stake (life and limb) as more important than the ‘special status of marriage’ and other family relationships.
29
In relation to ‘failure to protect’ offences, doubts may be raised about the opportunity and capacity of women who, as wives or partners of abusers, may be subject to abuse themselves and therefore unable to take protective action because of fear.
30
This is undoubtedly a problem that should be taken seriously, but one wonders whether it might not be better approached through a broader defence and sensitive prosecution policy than by abolishing the
‘failure to protect’ offence. The duty to protect can often be fulfilled by raising the alarm and reporting the abuse. In those situations, the offence bears some similarity to the American
‘failure to report’ offences in cases of child abuse and elder abuse. It is because children and elders are at risk through being in some kind of private sphere that they require special protection from abuse – reporting is likely to be the most appropriate course for professionals and for members of the household.
31 Whether the law is justified in demanding more if the abuse is taking place or about to take place at the very time, as by requiring those who are ‘on the spot’ to intervene physically rather than simply reporting and standing back, is a much more difficult question.
28 Domestic Violence, Crime and Victims Act 2004, s. 5.
29 See also Wallerstein (above, n. 6), 57-58.
30 These arguments are made by J. Herring, ‘Familial Homicide, Failure to Protect and Domestic Violence:
Who’s the Victim?’ [2007] Crim.L.R. 923.
31 Failure to report, by a parent or other person standing in loco parentis , may be sufficient to amount to the offence of wilful neglect of a child in English law: Emma W.
[2006] EWCA Crim 2723.
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There is long-established common law authority for a duty to go to the assistance of a police officer if such assistance is necessary and is requested. The authority is that of the Court for
Crown Cases Reserved in Brown ,
32
where the duty was said to apply if assistance was necessary and could be given ‘without any physical impossibility or lawful excuse’. While those exceptions are significant, there is no reference to the risk that the citizen might be harmed in the encounter. If an officer is outnumbered by an angry crowd – as was the situation in Brown , where two illegal prize fights were taking place – requesting one citizen to assist means, almost certainly, requesting that citizen to place herself or himself in physical danger. Whatever the position was in the early days of policing, one might doubt the acceptability today of requiring a citizen to run the risk of physical injury; yet, in their brief endorsement of the rule only six years ago, two members of the House of Lords made no reference to this implication of the duty.
33
There would be a much stronger argument for requiring the citizen to summon assistance, not least in these days of mobile phones.
34
That should place the citizen in no danger, particularly if it were subject to a ‘without reasonable excuse’ exception. Thus, while it may be appropriate that a police officer should be required to take action to prevent a serious crime from being committed, perhaps intervening physically,
35
at least unless the prospects appear hopeless without support from other officers, the citizen should have an obligation only to summon assistance and not to give physical support. It is suggested that the Brown rule requires more than should fairly be expected of a citizen, and that the decision to give physical support to a police officer should be left to morality and conscience.
The next question is whether there should be a general duty to report all serious crimes, or a specific duty in relation to vulnerable people such as children and the mentally disordered.
For example, is English law right to hold that going to watch a crime in progress should not incur criminal conviction? There is no duty to intervene (unless the victim is someone with respect to whom D stands in loco parentis ), and so long as the witness does not encourage or in any way assist the offender, there can be no liability, even if the witness went to the place
32 (1841) Car. & M. 314
33 In R (Laporte) v. Chief Constable of Gloucestershire [2007] 2 A.C. 105, at [83] per Lord Rodger and at
[123] per Lord Brown.
34 See Wallerstein (above n. 6) 55, on Israeli law.
35 E.g. Dytham [1979] QB 722 (police officer saw a man being severely beaten outside a club but turned away rather than intervening, and was convicted of the common law offence of misconduct in a public office).
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knowing that a serious crime was occurring.
36
However, if the ongoing offence appears serious enough to cause injury or sexual violation, surely there is a strong argument for extending the duty to report to such cases. The argument is not presented as conclusive, not least because the special considerations of life-threatening situations, vulnerable victims and private spheres are not necessarily present. The fact that such an offence would be exceptional in imposing a positive obligation on a citizen might be reflected in assigning to it a modest maximum penalty – indicating that it is a breach of a duty of citizenship, not some form of assent to the ongoing offence itself.
Finally, we should return to the criticism, adopted by the Criminal Law Revision Committee when recommending the abolition of the offence of misprision of felony, that such an offence would in practice amount to a crime of failing to answer police questions, which would be unacceptable in contemporary society.
37
The fear is that the police would abuse their power to question people on reasonable suspicion of having failed to report a serious offence, and that this would run counter to the right of silence and the privilege against self-incrimination.
Much depends on the approach the police would take to such an offence; but, in principle, they should respect an individual’s right not to have to respond to accusations unless and until the evidential basis for reasonable suspicion is produced.
38
The privilege against selfincrimination should apply in full vigour here: a defendant is not required to give evidence at his or her own trial, or to answer police questions. No inferences should be drawn from a failure to answer questions, at least before the evidential basis for suspicion is put to the person being questioned and the situation is one ‘which clearly calls for an explanation from him.’ 39
The individual’s right to have legal representation during police questioning ought to protect against this, to an extent that it did not at the time the Committee reported in the
1960s.
36 Clarkson and Carroll [1971] 1 W.L.R. 1402 (soldiers who entered room knowing that another soldier was committing rape there and watched the offence; question whether they could be convicted as accomplices to the rape; Court held not, without proof of actual encouragement and of an intention to encourage).
37 See above notes 4, 21 and 22, and accompanying text.
38 See the classic article by K. Greenawalt, ‘Silence as a Moral and Constitutional Right’ (1981) 23 William and Mary L.R.
15.
39 The words of the European Court of Human Rights in John Murray v. United Kingdom (1996) 22 E.H.R.R.
29, at [49].
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Conclusions
How strong are the arguments in favour of recognising criminal-law duties to report crimes?
The context must be set by a conception of the appropriate political relationship between the
State and its citizens. This is a vast issue, but two elements stand out here. First, the State has an obligation to make provision for the prevention of harm, and for the prevention and investigation of crimes; this should entail duties to protect children, to support the family, to provide police and emergency services, and so forth. Secondly, the State also has an obligation of justice, which includes respect for individual rights – for example, rights such as the presumption of innocence and the privilege against self-incrimination should be respected by any procedural or substantive criminal laws. The State’s obligation of justice means also that it has a general duty to publicise its criminal laws and, given their unusual or exceptional nature, particularly its omissions offences. As for the citizen, she or he must accept certain strong limits on behaviour (the prohibitions of the criminal law), and also certain obligations such as those flowing from the ‘principle of compulsory process’ (e.g. the duty to give evidence, to serve on a jury if required, etc).
In principle, the criminal law should not reinforce a duty unless one can say that failing to do x in a given situation is morally wrong. The strongest sense of moral wrongness arises when three principles can be triangulated – the principle of urgency, the priority of life, and the principle of opportunity and capacity. The priority of life suggests that where a situation involves possible death this points in favour of a duty to act, particularly in terms of reporting an event (or, if conditions are favourable, making some physical intervention).
40
The arguments are therefore much stronger for life-threatening situations than for ‘terrorism’ (as a general proposition, i.e. not confined to life-threatening situations), or for money-laundering.
There are also strong arguments for the recognition of duties in ‘closed’ situations such as the home or household, where vulnerable people (such as children or the physically or mentally challenged) might be particularly at risk.
40 Cf. the protestations of George Fletcher, Rethinking Criminal Law (1978), 633: ‘As a category of
“criminals”, people who fail to avert harm are hardly dangerous to society. Bank robbers, rapists, hired assassins, muggers – they are dangerous because they take the initiative in causing harm.’ What little purchase this statement has is derived from the choice of the term ‘dangerous’ and its implication of positive action.
Conceding that omissions may be less reprehensible than acts, but insisting on the priority of life, would indicate a different conclusion.
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Finally, and again considering the appropriate political relationship between the State and its citizens, any criminalization of omissions should require of the citizen only what can be reasonably expected in the situation. Heroism should not be required; some physical intervention might appropriately be required in exceptionally strong situations such as police officer-victim, parent-child, or perhaps household member-vulnerable person, but generally should not be expected of ordinary citizens. Whether it is politically acceptable to require individuals to report serious offences (or, further, their suspicions about serious offences likely to occur) is a much more sensitive issue. At present legal systems tend to have a mixture of ad hoc reporting requirements, reflecting the priority of life, the importance of protecting children, fear of terrorist activity and other concerns. A general reporting requirement for serious crimes would therefore be a major step, and some concomitant dangers were outlined above. All such requirements raise the issue of conflicting loyalties, and it has been argued here that the priority of life should be treated as outweighing the pull of loyalty to family and friends.
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