What defences are available to a mandatory reporter who fails to report a crime?

Question

Many countries have mandated reporting laws. In North America for example medical professionals are required to mandatorily report crimes (specifically sexual offences against children). Some laws intentionally leave out clauses which provide an exception for reasonable excuse while keeping it in other similar laws. In these kinds of cases what types of affirmative defences are used? If someone intentionally doesn't report a crime or if a police officer intentionally doesn't investigate or record information about a crime?

Answer 1

It isn't possible to identify the "usual defences," because mandatory reporting offences are relatively new, technical in nature, and different in each jurisdiction. Also, they are usually minor offences which involve very sensitive information. Even when the facts are disputed, it will often be in the interest of all parties for these offences to be dealt with quietly in a regulatory tribunal or magistrates' court, rather than appealed to a higher court which publishes its decisions.

However, I am aware of one case which analyses an attempted defence to a mandatory reporting charge in some detail: Webb v Tang [2021] WASC 344. The appellant was a teacher who was convicted of failing to report a belief on reasonable grounds that a child had been the subject of sexual abuse, a mandatory reporting offence introduced in Western Australia in 2008. He appealed to the state Supreme Court, including on the ground that the verdict was unsafe and unsupported by the evidence, so the decision includes a lot of detail about how this offence could potentially be defended in Western Australia, and perhaps other jurisdictions.

The teacher was on an international trip arranged by a school sports team. One of the students told the teacher that he had been sexually assaulted by some other students the night before. The student refused to name the perpetrators and said he wanted nothing done about it. The teacher did not report this. Explaining his failure to report at a later date, the teacher said "it's not that I didn't believe him, but … I just didn't think that the group would – that that could have happened." The teacher argued that he did not believe on reasonable grounds that sexual abuse had occurred. However, the court found that the prosecution had established the required state of mind. The teacher received a spent conviction and was fined $1,200.

The teacher did not rely on the statutory defence in s 124B(3) (belief that the issue had already been reported to, or was being dealt with, by the authorities) and there was no generic "reasonable excuse" defence available. However, it is likely that other mandatory reporting offences will also involve disclosures that come as a surprise to the mandatory reporter and leave them with some uncertainty about the meaning or credibility of the disclosure. In these cases there will be scope for the mandatory reporter to give evidence about their own state of mind and claim that they did not know or believe the information required to trigger the reporting obligation.

Answer 2

There isn’t one

new-south-wales

Mandatory reporting has common law roots in the now obsolete crimes of misprision of treason and misprision of felony. These have been replaced in all states and territories by statutory crimes of failing to report.

In every jurisdiction except New South Wales, the general duty to report requires some benefit to flow from the crime to the non-reporter. For certain crimes (e.g. child abuse) the duty to report is absolute.

However, in NSW, this element is absent and everyone “who knows or believes that a serious indictable offence has been committed by [a person], and who knows or believes that they have information that might be of material assistance in securing the apprehension, prosecution or conviction [that person], fails without reasonable excuse to bring that information to the attention of the NSW Police or other appropriate authority.”

The prosecution of certain professionals requires the permission of the Director of Public Prosecutions. These professions are “ legal and medical practitioners, psychologists and nurses, social workers including support workers for victims of crime and counsellors who treats persons for emotional or psychological conditions, members of the clergy, researchers for professional or academic purposes, school teachers and principals (in some cases) and arbitrators and mediators.” This doesn't mean they can’t be prosecuted, just that it must be initiated at the highest level (the DPP is the highest level prosecutor in NSW - the Attorney General is a politician with responsibility for the Justice system but does not participate in prosecutions).

Missing from the list are journalists

While I have been unable to find a case against a journalist and this section is primarily used by police as leverage against informants, this forbearance appears to be a policy decision by the administration rather Ethan something the law requires.

Answer 3

england-and-wales

Although recent Report of the Independent Inquiry into Child Sexual Abuse recommended mandatory reporting for those offences, it has not (yet) been implemented.

The only, statutory and mandatory reporting law is the duty to notify the police of female genital mutilation under section 5B of the Female Genital Mutilation Act 2003:

(1) A person who works in a regulated profession in England and Wales must make a notification under this section (an “FGM notification”) if, in the course of his or her work in the profession, the person discovers that an act of female genital mutilation appears to have been carried out on a girl who is aged under 18.

(2) For the purposes of this section—

• (a) a person works in a “regulated profession” if the person is—

(i)a healthcare professional,

(ii)a teacher, or

(iii)a social care worker in Wales;

This section goes on to say:

(6) The duty of a person working in a particular regulated profession to make an FGM notification does not apply if the person has reason to believe that another person working in that profession has previously made an FGM notification in connection with the same act of female genital mutilation.

• No criminal offence is created by the failure to make an FGM notification, instead:

Sanctions for not reporting will be determined by the regulatory authority for the relevant professional. Source

Answer 4

canada

The duty to report is created in provincial statutes relating to child welfare. E.g. British Columbia's Child, Family and Community Service Act, s. 14; Alberta's Child, Youth and Family Enhancement Act, s. 4. Both of those (and those in other provinces) make it a regulatory offence to fail to report. The offence is punishable by a fine of up to $10,000 or imprisonment for up to 6 months.

The Crown must prove the offence

The most common defence would be simply arguing that the prosecution failed to establish the elements of the offence. Generally the offence requires:

• the person to have reason to believe that the child needs protection
• that the person failed to make the required report

An exception for solicitor–client privilege

There is no statutory defence listed. However, there is an exception that says the duty to report does not apply to information that is privileged as a result of a solicitor–client relationship. That is not technically a defence; instead, the statutes say that the section "does not apply" or applies "except as..."

A due diligence defence

It is presumed that legislatures do not intend regulatory offences to be absolute-liability offences (Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, paras. 74-76.) Absent clear legislative language, regulatory offences leave open the possibility of a due diligence defence:

by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event

(R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299)

For example, if the person who had a duty to report and failed to report reasonably believed that they had reported, this could make out a due diligence defence.