The offence under s.9 (1)(b) of the Offences Against the State (Amendment) Act 1998 (the "1998 Act") of failing to comply with a positive obligation to report information that could lead to the prosecution of an individual for a serious offence was recently declared unconstitutional. This judgment could be of particular relevance to individuals that are subject to the Central Bank of Ireland's fitness and probity regime in light of the nearly identical provision contained in s.19 of the Criminal Justice Act 2011 (the "2011 Act"). It will be interesting to see if the Central Bank's approach will be impacted by this judgment.

Sweeney v Ireland, Attorney General and Director of Public Prosecutions 1

A person charged with withholding information pursuant to S.9 (1)(b) of the 1998 Act after exercising his right to silence during an interview with An Garda Síochána has successfully challenged the constitutionality of this provision in the High Court in Sweeney v Ireland, Attorney General and Director of Public Prosecutions.

Failure to Disclose Information

Mr Sweeney was interviewed by An Garda Síochána as part of an investigation into a suspected murder. During the interviews, he exercised his right to remain silent. While Mr Sweeney was not ultimately charged with murder, he was charged with the offence of failing to disclose information pursuant to s.9 (1)(b) of the 1998 Act and sent forward for trial. He subsequently brought a constitutional challenge in respect of s.9(1)(b) of the 1998 Act.

Section 9(1)(b) of the 1998 Act provides that a person shall be guilty of an offence where he/she has information which he/she knows or believes might be of material assistance in securing the apprehension, prosecution or conviction of any other person for a serious offence (as defined in the 1998 Act) and fails without reasonable excuse to disclose that information as soon as it is practicable to a member of An Garda Síochána.

Right to Silence v Obligation to Report

In her judgment, Ms Justice Baker confirmed that the right to silence is not an absolute right but that the extent of any interference to this right would depend on statutory protections in place to balance the competing rights. The Court found that s.9(1)(b) of the 1998 Act contained no such protections as it did not require a garda to inform or caution a person under questioning that the exercise of the right to silence itself could lead to a prosecution. The Court distinguished the facts of this case from other previous cases challenging the constitutionality of provisions relating to the drawing of inferences in circumstances where the right to silence is exercised. In those cases, there were sufficient statutory protections in place which ensured the right to silence was abrogated proportionally. The wide scope of s.9(1)(b) of the 1998 Act meant that the relationship between the right to silence and the offence in s.9(1)(b) was unclear and in the absence of statutory or regulatory protection, it was impermissibly uncertain and vague. As a result, s.9(1)(b) was declared as offending the constitutional right to silence. While this judgment in respect of s.9(1)(b) of the 1998 Act is currently under appeal, it should be noted s.9(1)(a) which concerns information that might be of material assistance in preventing the commission of an offence remains unaffected by this judgment.

Implications

Similar mandatory reporting obligations can be found dotted across the statute book including the obligation to report white collar crimes pursuant to s.19 of the 2011 Act. The wording of s.19(1)(b) of the 2011 Act is identical to s.9(1)(b) of the 1998 Act except that the 2011 Act applies to a "relevant offence" whereas the 1998 Act applies to a "serious offence".

The outcome of the appeal will be monitored carefully to assess what impact it may have on other similar reporting obligations.