Section 19 of the Criminal Justice Act 2011 sets out the offence of “withholding information” and with it mandatory reporting obligations in relation to many white collar offences with criminal liability for failure to do so. The constitutionality of the provision had been called into question by a 2018 High Court judgment in relation to an almost identical provision in the Offences Against the State (Amendment) Act 1998.
Section 19(1) of the Criminal Justice Act 2011 provides that:
“A person shall be guilty of an offence if he or she has information which he or she knows or believes might be of material assistance in –
b) securing the apprehension, prosecution or conviction of any other person for a relevant offence, and fails without reasonable excuse to disclose that information as soon as it is practicable to do so to a member of the Garda Síochána.”
The maximum penalty for the offence of withholding information is an unlimited fine and imprisonment for up to 5 years or both.
While most of the offences to which section 19 applies are related to the provision of financial services, the obligation to report also extends to areas such as company law; money laundering and terrorism; theft and fraud; bribery and corruption; consumer protection; criminal damage to property, including information systems; and competition.
In Sweeney v Ireland, Mr Sweeney had been questioned in relation to a murder in which he was originally a suspect. He was not charged in relation to that murder but faced prosecution under section 9(1)(b) of the Offences Against the State (Amendment) Act 1998 (“1998 Act”) for failing to disclose, without reasonable excuse, information which he knew or believed might be of material assistance in securing the apprehension, prosecution or conviction of another person for the offence.
The High Court upheld his challenge to the constitutionality of that section. Significantly, section 9(1)(b) of the 1998 Act is almost identical to section 19(1)(b) of the Criminal Justice Act 2011. The decision in Sweeney therefore cast doubt on the constitutionality of section 19. However, this High Court decision has now been reversed by the Supreme Court on appeal.
In the High Court, Mr Sweeney had argued that the section 9(1)(b) offence breached his constitutional right to silence and had the effect that an accused might be prosecuted for exercising this right. He also argued that the offence was impermissibly and unconstitutionally vague and uncertain. In the High Court, Baker J agreed. However, on appeal by the State, these arguments were rejected by the Supreme Court.
In giving judgment for the court, Charleton J looked in detail at the ingredients of the section 9(1)(b) offence. He made the point that witnessing a crime is not an offence. He was satisfied that section 9(1)(b) only applied to those who had information about the commission of a serious offence. Those who had such information and who knew or believed that disclosing it to the police might be of material assistance to securing the apprehension, prosecution or conviction of any other person were obliged to so.
He concluded that the crime was clearly defined and consequently did not infringe the constitutional prohibition against vagueness. There was no question of an inconsistent application of the section and it was not likely to lead to arbitrary enforcement. The right to silence was protected for any person who did not wish to speak about their own involvement in a crime and so incriminate themselves.
The High Court decision in Sweeney had created some uncertainty as to whether section 19 of the Criminal Justice Act 2011 could withstand a similar constitutional challenge. The Supreme Court decision brings welcome clarity for all about the status of section 19 and its centrality in any consideration of making a report concerning suspected white collar or business crime.