The crime of compounding

If you have been the victim of a crime and neglect to report or prosecute the accused or suppress any evidence against him or her in exchange for money or any other form of compensation you have committed a crime yourself, and if convicted, you may be fined or worse, face imprisonment.    A compounding offense consists of three basic elements: (1) knowledge of the crime; (2) the agreement not to prosecute or inform; and (3) the receipt of consideration.  The offense is concluded when there is an agreement to either withhold evidence of the crime, conceal it, or fail to prosecute it.

A prime example of this in practice is where a party presents written communication to another that unless he or she pays an amount of money and settlement of a debt, legitimate or otherwise that the former will lay criminal charges against the latter. “The wording of such correspondence is crucial as in certain instances a particular clause, incorrectly worded or that falls foul of public policy could amount to a criminal offence,” cautions Charles De Meillon, candidate attorney at commercial law firm Gillan & Veldhuizen Inc.  It bears mentioning that the Code of Conduct for Legal Practitioners specifically forbids this type of threat.

“English common law states:  The “crime of compounding” is committed when a perpetrator, prosecutor, any other official or another person enters into an agreement with the victim of a crime or an official, whereby some or other benefit is transferred between the parties in order to stop, withdraw or alter the reporting or prosecution of an offense,” explains De Meillon.

These agreements when executed, have the overall effect of defeating the ends of justice and obscuring the due process of the law. “Given that the State is required to uphold the interests of justice and effectively promote the legal convictions of the community, any person who commits an act that unlawfully and intentionally has the effect of obstructing the course or administration of justice is guilty of a secondary offence as this can undermine the fair application of the law,” says De Meillon.

These agreements have further been prohibited through the application of the Preventing and Combatting of Corrupt Activities Act1.

In essence, corruption may be committed in two parts, namely through:

  1. the offer of a benefit in favour of the offeror or another person in exchange for an unlawful advantage, as well as
  2. the acceptance of the same.

Other notable and potential offences that may be committed in the process of engaging in the compounding of a crime include:

  1. extortion – the unlawful and intentional application of pressure to the body of another person in exchange for a patrimonial advantage,
  2. aiding and abetting a criminal – by assisting another person further the commission of a crime, as well as
  3. being charged as an accessory after the fact – any person who intentionally associates themselves with the commission of a crime, once completed e.g. assisting the perpetrator with evading prosecution, arrest or the discovery of evidence etc.

Moral of the story: don’t withhold evidence or be coerced into doing so, and more importantly still, be careful what you agree to. Consulting with a lawyer will help you navigate through any potential difficulties and provide valuable insight into the   appropriate measures to be undertaken when  dealing with the construction of letters of demand, settlement agreements and other legal correspondence that avoid inadvertently contradicting or violating  public policy.