The purpose of this note is to remind practitioners of the provisions of the reporting obligation contained in section 19 of the Criminal Justice Act 2011 (as amended). Information about section 19 is summarised below, together with recommendations as to good practice. This practice note does not constitute a legal interpretation of the act. Solicitors may need to obtain independent legal advice when considering this reporting obligation. As section 19 is based on a subjective test in each particular set of circumstances, the assessment as to whether the reporting obligations arise must be made by each solicitor. 

The act contains a reporting obligation in relation to certain ‘relevant offences’. Section 19 makes it an offence for a person to fail, without reasonable excuse, to disclose information to the gardaí that he knows or believes might be of material assistance in (a) preventing the commission of a relevant offence or (b) securing the apprehension, prosecution, or conviction of any other person for a relevant offence.

The ‘relevant offences’ scheduled to the act are very broad and include company law, competition law, financial activities, fraud and theft. Examples of relevant offences include the provision of unlawful financial assistance and carrying on the business of a company with intent to defraud creditors. Examples of situations where solicitors may come across relevant offences and therefore need to consider the legislation include:

• When carrying out a due diligence investigation for a transaction,
• When considering the financial affairs of spouses in family law matters,
• When advising on the conduct of departing employees,
• When advising on internal investigations,
• When advising on competition law matters, and
• When acting in litigation matters.

The reach of the legislation is potentially very extensive and can be increased by ministerial order.

The obligation to make a report under section 19 is broad in scope, applying to any ‘person’ (which would include a solicitor). A person must disclose information that he “knows or believes might be of material assistance” to the gardaí in relation to the investigation of a relevant offence. The offence of failing to disclose information does not apply if a person has a “reasonable excuse” for the non-disclosure. By analogy with similar provisions in other legislation, the courts are likely to interpret ‘reasonable excuse’ restrictively, as relating only to a physical or practical difficulty in obtaining information.

It is important for solicitors to be aware that there is no statutory exemption for legal professional privilege in the act, although it may be that the legal professional privilege (legal advice privilege and litigation privilege) may not be drastically curtailed. If a document or communication is received by a legal advisor within the recognised circumstances of legal professional privilege, it may be protected and not required to be disclosed by a solicitor under section 19. Solicitors are reminded that the ambit of legal privilege is not absolute and is subject to a number of significant limitations. For example, legal professional privilege does not apply where communications are made for a fraudulent or illegal purpose, or where communications are made by a client to a solicitor before the commission of a crime for the purpose of being guided or helped in the commission of that crime.

Accordingly, when considering whether legal professional privilege prohibits the making of a report under section 19, solicitors need to carefully consider whether they are working in privileged circumstances when the particular information or matter comes to them. This is an important consideration, as a solicitor may be providing a variety of services to a client. Accordingly, it is suggested that a careful record is maintained of the origin of information considered when a decision is made on the applicability of legal privilege. The reasons for the conclusion reached as to whether legal privilege applies should also be carefully documented. Solicitors should refer to chapter 4 of the Guide to Good Professional Conduct of Solicitors for guidance on the ambit of privilege. For comprehensive information in relation to legal professional privilege, solicitors may wish to refer to Healy (2004), Irish Laws of Evidence (Round Hall), chapter 13, and McGrath (2005), Evidence (Round Hall), chapter 10.

If circumstances require a solicitor to make a report under section 19 about a client or a related person or body, the solicitor may be required to cease to represent the client. Clearly, once a solicitor makes a report to the authorities in relation to their client or the business of their client, the fundamental element of trust upon which the solicitor/client relationship is based is fatally affected. The Society recommends that a solicitor should carefully consider whether it is appropriate to continue to act, upon forming a suspicion that a relevant offence is being or has been committed, whether or not a reporting obligation has arisen and regardless of the legal service being provided.

Solicitors should be aware of the ethical difficulties of acting in cases where it is possible that the solicitor will be called as a prosecution witness against their own client. The Society strongly recommends that a solicitor should exercise extreme caution before reaching a decision to so proceed and, in particular, having regard to the ethical difficulties referred to above. Even in circumstances where a report might be exempted by reason of legal professional privilege, the solicitor should consider whether they should continue to act.

The disclosure to the person affected of a report made, or to be made, is not dealt with in the act. However, the common law offence of perverting the course of justice could apply, meaning that ‘tipping off’ a person in relation to whom a disclosure was made could be an offence of obstructing An Garda Síochána. The Society recommends that a solicitor who has made a report should immediately cease to act for that client and should not maintain the solicitor/client relationship for any purpose, including any purpose that might be proposed by the authorities to whom the report is made. Accordingly, while it is unclear whether a solicitor can inform a person that a report has been made about them, solicitors can inform clients that they intend to cease to act for them.

Solicitors should amend their terms of engagement to reflect the possibility that the solicitor may be obliged to make a disclosure about the client to relevant authorities, and to set out the possible consequences of section 19.