5. Omission to reveal Intended Crimes

themselves (conspiracy). It might indeed appear that as this crime of conspiracy is complete so soon as the ingredients required by its definition exist, the disclosure cannot be calculated to prevent it as it can come only after its consummation. But Roberti thinks that in the case of conspiracy the words “execution or attempt” in the provision under discussion (Section 60) must be referred to the crime which the conspirators had in view and for the accomplishment of which the means to be employed have been agreed upon, and not to the execution (i.e., consummation of the crime of conspiracy itself). This interpretation has in its support the consideration that Section 60 applies to all the crimes dealt with the proceeding sections of the title among which is the crime of conspiracy. If a different interpretation were to be given there would be no case in which the provision of Section 60 could apply in the case of conspiracy.

Lastly it is essential that in order to obtain impunity the disclosure must be made before any proceedings. It is important to understand that by “proceedings” here is meant the very first steps which the Government or its authorities take for the discovery of the offenders; in other words, the expression “Proceedings” includes any act by which the search for and collection of evidence is taken in hand. Therefore, if the police have already succeeded in obtaining knowledge of the criminal project and initiated appropriate measures for its discovery and prevention and disclosure made by any of the co-offenders would be late and would not insure him impunity.

For the same purpose for which the law grants impunity to any of the offenders who reveals the crime as aforesaid, the law also makes it an offence for any person being aware that a crime against the safety of the Government is to be committed, to fail to reveal to the Government or the public authorities within twenty-four hours all the circumstances which are to his knowledge. This crime is very similar to the English “misprision of treason”. In English law, even when no active assistance is given to a person who has committed a treason, anyone who knows of his guilt can give information that might lead to his arrest will commit an offence if he omits to communicate that information to some justice of the peace. This misprision (i.e., high misdemeanour) of thus concealing the treason is usually termed briefly “misprision of

treason”. There is some authority says Kenny27 for saying that a misprision may also be committed in the case of a treason that is merely being planned, if anyone who knows of the design refrains (however much he may disapprove of the project) from disclosing it to a justice of the peace in order to prevent its accomplishment. It is this last statement that makes “the misprision of treason” more closely akin to our provision under discussion, under which the duty of giving information refers to the case in which knowledge is had of an intended crime under the preceding sections of Title I. In other words, according to our law the failure to disclose knowledge obtained of a crime which has already been committed does not constitute the offence under Section 61. “Il fine del legislatore essendo principalmente quello di dare al governo i mezzi onde arrestare dei misfatti contro la sicurezza dello stato, come un tal scopo non pu' piu' conseguirsi per mezzo del rivelamento quando essi si sono già eseguiti, così non può applicarsi la pena nel caso in cui il non rivelatore ne avesse avuto - conoscenza dopo la cennata esecuzione." (Roberti - op. it, p. 204).

The duty of communicating the information does not by an express provision of the law (Section 62) extend to the spouse, the ascendants and the descendants, the brothers and sisters, the mother-in-law and the father-in-law, the son-in-law or daughter-in-law, the uncles and aunts, the nephews and nieces, and the brother-inlaw and the sister-in-law of the principal or the accomplices in the crime not disclosed. In making this exception the law has paid a tribute to the principles of the dignity of man and of the sentiments of trust and concord which it is so necessary to maintain in the family.

In connection with this provision an interesting point is discussed by text-writers, that is whether in view of the restricted wording of this provision, the privilege extends also to the confessor who may have obtained knowledge of a conspiracy or of a projected crime against the safety of the government through a confession and to the legal practitioner who may have come to know of any such conspiracy or project through professional communications made to him. Roberti has no hesitation in solving the doubt in the affirmative in both cases. As regards the confessor he says that it could not have been the intention of the legislator to require the breach of the secrecy which the Catholic Religion uncompromisingly commands to be observed whatever may be

27 Op. cit., pg. 320

the reasons which might in a particular case seem to advise to the contrary28 . Regarding legal practitioners Roberti observes that the law itself makes it an offence for any legal practitioner to commit a breach of secrecy in respect of professional confidences made to him. It is true that Article 371 of the Neapolitan Code (similar to Section 270 of our Criminal Code) which creates this offence saves from its operation the cases in which the law requires the depository of a secret to disclose it to the public authority. But this saving, Roberti thinks, does not apply to the case in question chiefly because the law so far protects the professional communications between legal practitioners and clients that the former cannot be compelled to depose in respect of circumstances the knowledge whereof may have been obtained from the confidence which the parties themselves shall have placed in their professional assistance or advice.

It must however be clearly pointed out that according to English doctrine, when a legal practitioner is a party with his client to an illegal purpose no privilege attaches to the communications with him upon the subject. Likewise, a communication made to a legal practitioner in furtherance of any criminal purpose does not come within the scope of professional employment, and therefore, communication made to a legal practitioner by his client before the commission of a crime for the purpose of being guided or helped to the commission of it are not privileged and this whether the legal practitioner was or was not aware of his client’s intention; if he was so aware, then the communication would not be in the course of any professional employment; if he was not aware then there is no professional confidence29 .

In view of this and bearing in mind that our Section 60 requires the disclosure of crimes which one knows it is intended to commit (i.e., not already committed). It is difficult to conceive how the necessity of the privilege which Roberti claims for legal practitioners can arise in practice. In fact, he himself says that it is natural to suppose that the persons responsible for a conspiracy or a criminal project against the state do not disclose the same to legal practitioners except after the public authorities have already got wind of what is on, and consequently proceedings (in the broad sense in which we have already defined the word) have already started. So that, rather than saying, apart

28 See also Carnot "Commento del Codice Penale Francese”, Art. 103, N. 4 29 Vide Powell, “Law of Evidence” 9th Edition, pg. 238