The Supreme Court has delivered an important judgment in Sweeney v Ireland  IESC 39. In a leap frog appeal, the High Court order of 21 February 2018 has been overturned and the constitutionality of section 9(1)(b) of the Offences Against the State (Amendment) Act 1998 (the “1998 Act”) upheld. The High Court had previously held that the offence of withholding information created under section 9(1)(b) of the 1998 Act constituted an infringement on the constitutionally protected right to silence and the privilege against self-incrimination. The Supreme Court judgment can be found here.
The Supreme Court’s decision has wider impact in the context of other provisions of Irish law which criminalise failures to report certain offences, including for example, under section 19 of the Criminal Justice Act 2011 (“Section 19”). Section 19, in certain circumstances, compels persons to report information relating to a range of white collar offences and other crimes to An Garda Siochana. Particularly since the implementation of the Criminal Justice (Corruption Offences) Act 2018, Section 19 reporting requirements have been considered closely by companies, board directors and senior managers as they implement policies and procedures to ensure compliance with their respective obligations under the act.
Sweeney v Ireland involved a constitutional challenge of section 9(1)(b) of the 1998 Act, which provides that it is a criminal offence for a person to withhold information from the Gardaí which they know or believe is of ‘material assistance’ in preventing the commission of or securing the apprehension, prosecution or conviction of a person for a serious offence. In this context, a ‘serious offence’ is one which carries a penalty of five years imprisonment and involves the loss of life, serious personal injury or serious loss or damage to property, or serious risk of any of these acts. There is an exception under the 1998 Act whereby somebody cannot be compelled to provide this information where they have a “reasonable excuse”.
In this case the plaintiff, Sweeney, was charged with failing to disclose information relating to the murder of Thomas Ward in Sligo in 2007. The plaintiff argued that the 1998 Act compelled him to provide information in breach of his right to silence and his privilege against self-incrimination.
Supreme Court Decision
Delivering the unanimous decision of the Supreme Court, Mr Justice Charleton overturned the decision of the High Court and upheld the constitutionality of the provision under the 1998 Act. In finding that the provision was sufficiently certain the Court held that the 1998 Act was clear in what it obliges witnesses to do - to disclose information pertaining to serious offences which they know will aid the prosecution of such an offence.
In holding that the provision did not infringe the right to silence or the privilege against self-incrimination, the Supreme Court held that this provision did not compel individuals who had committed crimes to disclose such information, thus incriminating themselves as a result. Mr Justice Charleton held that this obligation was only imposed on witnesses, noting that it is not an offence to witness a serious crime. Mr Justice Charleton also referred to the ‘reasonable excuse’ exemption, indicating that a ‘reasonable excuse’ would include a disclosure which would cause the witness to incriminate himself or herself. Mr Justice Charleton further held that the right to silence was also not infringed as such a right to silence is protected where to speak would incriminate that person. It does not change the principle that unless a participant wishes to speak of their own volition, the law should not compel them to self-incriminate as to their commission of a crime.
Mr Justice Charleton also referred to comparative legislation in other jurisdictions, including England. He noted that there is debate in the UK as to whether a suspect’s privilege against self-incrimination provides a reasonable excuse to non-disclosure. This contrasts with the position in Ireland which following this decision appears to be clear cut in excluding persons involved in a serious crime from the mandatory reporting obligation.
While this case involved a challenge specifically relating to withholding evidence relating to serious offences, such as murder, it provides guidance as to how the courts would approach similar provisions for other offences. The judgment discussed the similar reporting obligation under Section 19 of the Criminal Justice Act 2011, which provides that it is a criminal offence for a person to withhold information from the Gardaí which they know or believe is of material assistance in relation to a relevant offence including a number of offences relating to banking law, company law, money laundering, theft and fraud, bribery and corruption, consumer protection and competition law. Whilst the Supreme Court noted that no comment was been made as to the constitutionality of such similar provisions, the decision provides clarification that such reporting obligations would be likely to withstand any legal challenge and thus, will trigger criminal offences if not complied with.