The High Court has ruled that the offence of withholding information created under s.9 (1)(b) of the Offences Against the State (Amendment) Act, 1998 violates the constitutional right to silence.
Mr. Sweeney was charged with an offence by the Gardaí following his decision to engage his right to remain silent while being interviewed over the course of a murder investigation. Mr. Sweeney was interviewed informally twice before being arrested on November 30th 2007 at which point he was interrogated again. He was cautioned of his right to remain silent on each occasion but at no time was advised that his failure to respond to questioning could result in a charge being levied against him. Following his arrest Mr. Sweeney was not charged with murder but was charged with “failing, without reasonable excuse, to disclose information which he knew or believed might be of material assistance in securing the other person for a serious offence” under Section 9 (1)(b) of the Offences against the State (Amendment) Act 1998.
As a defence to this charge Mr. Sweeney challenged the constitutionality of s. 9(1)(b) Counsel for Mr Sweeney argued that the provision breached his constitutional right to silence and created an offence that in effect prosecuted an accused for exercising their constitutionally protected rights and secondly that the offence was impermissibly and unconstitutionally vague and uncertain.
Ms. Justice Marie Baker, applied principles set out in the decisions of Heaney & Anor. v. Ireland and Rock v. Ireland and those of proportionality when deciding the case. Justice Baker noted that the right to remain silent is intrinsically allied with the principle against self-incrimination but that this association was not the sole consideration as to the existence of the right rather it extends from a spectrum of constitutional principles. Furthermore Justice Baker recognised that the right to silence is “not absolute” and “is subject to public order and morality”. The extent to which the interference of the right to this end is permissible was considered by the Court to “depend on the protections that are put in place to minimise any loss of the essence of that right”.
The charge levied at Mr. Sweeney was not that he failed to answer questions of the Gardaí but rather that he did not give information. Considering the elements of the crime Justice Baker determined there to be “no moderating element in the legislation… to balance the competing rights of the State to investigate crime and of the person to remain silent”. Pivotal to the courts considerations was the irresolvable dilemma in which individuals would find themselves forced to choose either to “answer questions regarding a crime and possibly incriminate himself or herself or refuse to answer any question and thereby commit a criminal offence”. Moreover the failure of the legislation to provide for suspects to be informed of the possibility of them incurring an offence in not answering questions proved to be particularly damning in the eyes of the Court.
While noting the potential benefits of having a charge against those who withhold information in the interest of security Justice Baker held that s.9(1)(b) was too broad in scope and offends the Constitution. It was however noted that the legislation may be saved by the requirement the person under questioning be afforded a suitable warning. The Court also held the offence created by the provision to be impermissibly vague and uncertain.
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