Section 19 of the Criminal Justice Act 2011 sets out the offence of “withholding information” and with it widespread mandatory reporting obligations in respect of many white collar offences with consequent liabilities for failure to do so. However, the constitutionality of aspects of the provision must now be in question given a recent High Court judgment.
Section 19(1) 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 -
a) preventing the commission by any other person of a relevant offence, or
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.
This provision was introduced to facilitate the investigation of white collar offences generally. While the bulk of the crimes to which section 19 applies are related to the provision of financial services, the scope of the obligation is not limited and 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.
However, in the recent judgment of Sweeney v Ireland,1 the High Court has upheld a challenge to the constitutionality of another offence of withholding information, namely, section 9(1)(b) of the Offences Against the State (Amendment) Act 1998 (“1998 Act”). That offence is in almost identical terms to section 19(1)(b) of the Criminal Justice Act 2011.2
In that case, Mr Sweeney was questioned in relation to a murder in which he was originally a suspect. He was not charged in relation to that murder but now faced prosecution 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. He had never been informed that his failure to respond to questioning could lead to an alternative charge being levied under section 9(1)(b) of the 1998 Act.
He 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.
Baker J agreed. She observed that, in essence, the provision made silence of itself an offence. She said that the dilemma created by the offence was apparent. A suspect must be told of the right to remain silent but there was no statutory or regulatory requirement that he also be told that by exercising that right, a crime might then be committed under section 9(1)(b).
There was also no provision for a person to be advised that he had a right to obtain legal advice. Thus, a person might not know that there was a real risk that the exercise of the established right to remain silent, of which he was expressly required to be informed, could result in this separate prosecution. The legislation did not temper or modify the way in which questioning could occur. There was nothing to advise a person as to the possible effect of section 9(1)(b) where the evidence might be either wholly or partially related to a time when the accused was himself a suspect and under questioning.
Section 9(1)(b) provided that silence in itself could form the basis of a conviction, and the section did not permit a nuanced or careful approach by the trial judge with regard to whether the fact of that silence once accepted could lead to conviction. The prosecution of a person under the provisions of section 9(1)(b) did not engage questions of the admissibility of evidence, or of the weight of such evidence. A person could not legitimately challenge the admissibility of evidence of the fact that he remained silent. There was no structure for protection of an accused.
Baker J also held that whilst section 9(1)(b) required that the information concerned be of objectively material assistance and the essential mens rea in the offence meant that the offence was committed only when the accused person knew or believed the information might be of material assistance, the offence was impermissibly uncertain as, in the absence of statutory protection, it could result in a person being unable to discern the relationship between the right to remain silent and the consequences of so doing.
The criticisms of section 9(1)(b) of the 1998 Act are equally applicable to section 19 of the Criminal Justice Act 2011. However, it is likely the State will appeal this decision. In the meantime, uncertainty will remain as to the legal effectiveness of section 19 on mandatory reporting of white collar crime.