OPINION:AS PART of an RTÉ news report on the continuing fallout from the Dublin archdiocesan commission more commonly known as the Murphy report, an elderly man was approached as he left a church and when asked to comment on the report simply replied "they should all be locked up" as he gestured towards the church.
I’m not entirely sure who he had in mind but from the context of the report and the question put to him I imagine he was referring to those responsible for the dreadful abuse perpetrated on young children of the archdiocese or their superiors for covering up.
Unlike the Ferns report and the Ryan report, the Murphy report was specifically set up to examine the handling of complaints made by victims of clerical abuse in the Dublin archdiocese from 1975 to 2004.
Judge Murphy cites countless failures and mishandling of complaints. The report briefly touches on the offence of "misprision of felony" and indeed refers to a previous investigation carried out by the Garda into whether or not such an offence had been committed in respect of alleged abuse by a number of priests referred to in a Prime Timeprogramme.
The offence of misprision of felony was knowing a felony had been committed but concealing it from the authorities. However, the Criminal Law Act 1997 introduced a significant change. It abolished the distinction between a felony (murder, rape etc.) and a misdemeanour, a less serious offence. The 1997 Act created a new statutory offence under section 7 sub section (2) which provides “where a person has committed an arrestable offence, any other person who, knowing or believing him or her to be guilty of the offence or of some arrestable offence, does without reasonable excuse any act with intent to impede his or her apprehension or prosecution shall be guilty of an offence”.
An “arrestable offence” is defined as an offence for which a person of full capacity and not previously convicted may under or by virtue of any enactment be punished by imprisonment for five years or by a more severe penalty and includes an attempt to commit any such offence.
It follows that if the sexual abuse of a child is taken as an arrestable offence, anyone who impedes the prosecution of someone who has committed such an offence is themselves committing an offence. It is reasonable to conclude the failure to report such an offence to the authorities would constitute an act intended to impede a prosecution. The penalty is up to 10 years in jail.
Furthermore, Section 176 of the Criminal Justice Act 2006 created the offence of reckless endangerment of children which more specifically provides under sub section (2) as follows:
A person having authority or control over a child or abuser, who intentionally or recklessly endangers a child by: (a) causing or permitting any child to be placed or left in a situation which creates a substantial risk to the child of being a victim of serious harm or sexual abuse, or (b) failing to take reasonable steps to protect a child from such a risk while knowing that the child is in such a situation, is guilty of an offence.
Accordingly, the law ensures there can be no hiding place for anyone who seeks to cover up or fails to report child sexual abuse. Dermot Ahern, on publishing the Murphy report, assured us the clerical collar would no longer afford the protection that it may have before.
Abusers are being prosecuted on a regular basis but no one has to my knowledge been prosecuted under Section 7 of the Criminal Law Act 1997 for impeding the prosecution of someone guilty of such an offence. The Murphy report identifies many incidents where the prosecution of offenders was impeded by others. It is to be hoped the Assistant Garda Commissioner entrusted with looking into the Murphy report will do so with particular regard to the above legislation.
The Murphy report deserves it and that man in the street outside his church demands it.
Pearse Mehigan is a solicitor in private practice and legal adviser to the One in Four organisation.