Speed Read

  1. Ireland has unique mandatory reporting laws. These laws require individuals/entities to report to the authorities certain information concerning third parties' involvement in certain crimes, including 'white collar' crimes, unless they have a 'reasonable excuse' for not doing so. Non-compliance is an offence.
  2. Earlier this week Ireland's Supreme Court confirmed the constitutionality of one of these mandatory reporting laws. The law in question concerns information related to serious crimes such as murder, kidnapping and serious assault.
  3. Other statutory reporting obligations, including the requirement to report certain information relating to 'white collar' crime, closely resemble the one which was examined by the Supreme Court in the Sweeney case.
  4. The Court noted that "no comment" was made as to the constitutionality of those other reporting obligations. However, the Sweeney decision provides a strong indication that those similar reporting obligations, such as that concerning 'white collar' crime, will be difficult to challenge (even if, in theory at least, they remain susceptible to such challenge).
  5. As matters stand, Ireland's mandatory reporting obligations, and the criminal offences they can trigger if not complied with, should be presumed lawful.
  6. The decision as to whether an obligation to report has been triggered remains potentially complex. It can involve a high degree of subjectivity as to the import of the information at hand and/or a careful examination of what a 'reasonable excuse' for not reporting may be.
  7. Significantly, the Supreme Court in Sweeney recognised that an individual's reasonable belief that reporting information would incriminate him/herself would be a 'reasonable excuse' for not reporting information relating to serious crimes. That being so, we believe self-incrimination would also be a 'reasonable excuse' for an individual not to report information relating to 'white collar' crimes. Whether companies could rely on self-incrimination as a 'reasonable excuse' remains to be seen.

Background

In Sweeney v Ireland, the Attorney General and the Director of Public Prosecutions [2019] IESC 39 the Supreme Court found that s.9(1)(b) of the Offences Against the State (Amendment) Act 1998 is compatible with the Constitution, in that it is not a disproportionate interference with the constitutional right to silence, nor is it impermissibly vague.

The provision is mirrored by s.19 of the Criminal Justice Act 2011, which makes it an office to withhold, without reasonable excuse, certain information in respect of 'white collar' crime that may have been committed by other parties.

Mr Sweeney, a suspect in a murder investigation, was repeatedly interviewed by Gardaí in 2007. He was cautioned about his right to silence, and exercised it on each occasion.

He was subsequently charged with the 'withholding information' offence created by s.9(1)(b) of the 1998 Act. He had not been warned that his silence could lead to prosecution.

In his initial High Court case he challenged the constitutionality of the offence on the basis that (i) it breached his constitutional right to silence, in that he was being effectively prosecuted for its exercise, and (ii) the offence is impermissibly vague and uncertain.

Judge Baker, in the High Court, found in favour of Mr Sweeney on both grounds. However, significantly, Judge Baker's judgment did not address the 'reasonable excuse' defence that is built into both the offence under s.9(1)(b), and the mirror offence under s.19 of the 2011 Act.

Click here to read our previous article on Judge Baker's High Court decision.

Supreme Court

In reversing the High Court decision, Judge Charleton said that the 'failure to report' offence does not change the principle that the law should not compel a person to self-incriminate as to their commission of a crime. He found that the Mr Sweeney was not being prosecuted for failure to speak in a police interview, but rather for alleged awareness of a murder and not assisting the authorities.

He emphasised that the section includes six distinct elements, and that the prosecution must establish that the failure to report must have been "without reasonable excuse". The State must prove the absence of reasonable excuse beyond reasonable doubt. The possibility of self-incrimination would constitute a 'reasonable excuse', and thus preclude a successful prosecution for failure to report; "[p]articipation by the accused in the crime means that the section does not apply."

The Supreme Court noted that six distinct elements must each be proven for a successful prosecution under the section:

"…the prosecution must prove precise and clearly defined elements. These are: firstly, that a serious offence was committed, secondly that it was committed by a person or persons other than the accused, thirdly that the accused had information which was of material assistance to apprehending or proceeding against that person or persons, fourthly that the accused was aware that he or she had such information in the sense that they both had the information and knew or believed that it might be of assistance to the authorities, fifthly that the accused made no disclosure of that information to the authorities, and sixthly that the accused had no reasonable excuse for not so disclosing"

Thus, the court concluded that the offence could not be struck down on the basis of impermissible vagueness.

What happens next?

The Supreme Court acknowledged that the right to silence and the right not to self-incriminate have been described by the European Court of Human Rights as securing the aims of Article 6 of the Convention. It considered, however, that the mandatory reporting regime under consideration did not represent a breach of those rights.

A challenge to the provision in the European Court of Human Rights remains a possibility, but does not impact the validity or enforceability of domestic law unless the Government takes action on foot of any adverse finding.