Is it a crime to keep mum?

A member of your family has committed a serious crime and you know all about it - but can you really be expected, asks Jonathan Hall, to inform on them?

The British terrorist suspect Richard Reid has a family. But did any of them know he was planning to blow up a transatlantic airliner with a bomb in his shoe? Last week, his mother made it clear that she had no prior knowledge.

Nevertheless, many relatives of criminals in this country choose to ignore their loved ones' business in crime.

There is no general liability for harbouring criminals, as there is, for example, for knowingly harbouring an escaped prisoner. The approach in law is to ask whether the relative or friend is a secondary party to a particular crime or, in the old phrase, did he or she aid or abet, counsel or procure the offence committed? This often gives rise to great difficulties. Take the situation where a husband is able to deal drugs from the marital home only because of the acquiescence of his wife. Is she guilty of aiding or abetting her husband, even though the person who deals the drugs is her husband alone?

Or take the case of the mother of a terrorist who leaves home to plant a bomb, and who makes him a packed lunch the night before, knowing what he intends to do. It has been accepted by the Court of Appeal that to congratulate a man about to commit a murder and say "Oh goody" is sufficient to make one a party to the crime. How much more so, then, where practical assistance is provided to the would-be murderer. Yet in practice, relatively few family members of criminals are prosecuted for giving what might be termed domestic assistance.

One reason for this may be that it is frequently impossible to establish a causal link between the assistance and the crime. In the case of the mother making a packed lunch for her terrorist son, it is highly likely that he will commit the crime without a packed lunch.

There is undoubtedly an argument for being more severe, particularly where the gravest crimes are in issue. Whether related by marriage or blood, or not, each individual has the capacity to refuse to assist the commission of crimes, whether it is terrorism, drug dealing or fraud, and indeed to discourage them, or to frustrate them by contacting the police. The law that a man cannot enter into a criminal conspiracy with his wife or vice versa, which still exists, seems like a relic of a past where marriage connoted unquestioning loyalty. Similarly, the rule that a husband or wife cannot be compelled to testify against his or her spouse promotes domestic harmony at the expense of prosecuting crime. The richest source of evidence may be within the home.

On the other hand, the consequences of such an intrusion of the criminal law into domestic life would be potent. Many would be liable to criminal proceedings for doing no more than the duties of marriage or family required. By in effect criminalising certain relationships, society would close off the route to social rehabilitation that marriage and family often represent to those who would go on to commit more crimes.

An alternative mechanism for attacking a criminal's domestic arrangements is confiscation, by making a criminal's assets liable to seizure. The reality, however, is that this costly procedure is rarely used. Neither is it effective against those who harbour the most dangerous criminals, whose motives are not economic and who have nothing to lose.

It might therefore be argued that what is needed is a different sort of criminal liability according to which it is a criminal offence for individuals not to stop certain serious crimes being committed, if it lies within their power to do so.

Politicians in future may indeed propose laws that place positive obligations on individuals, such as duties to inform the police of suspicious activities. They may ask whether serious crime can be combated without individual members of society taking clearer responsibility for those in their midst.

That said, the legal tradition of the UK is one of strong resistance to imposing positive duties on individuals, save where the individual has voluntarily assumed certain roles that reasonably import greater responsibilities, such as those of a parent towards a child.

How to punish and deter those who "harbour criminals" questions the extent to which the sanctity of family and personal relationships can be sacrificed to the interests of the public at large. However, it cannot be ignored that in many cases, crime, and sometimes terrorism, begins at home.