Irish Supreme Court overturns finding that ‘withholding of information’ offence breaches ‘right to remain silent’

The Supreme Court has overturned a decision of the High Court that declared section 9(1)(b) of the Offences against the State Act unconstitutional for breaching the ‘right to remain silent’.

The case concerned a man who was being questioned by Gardaí in relation to a criminal investigation in Sligo. When first questioned, the man was cautioned that he had the right to remain silent. He chose to remain silent but was not informed that his failure to answer the questions posed by the Gardaí could lead to a charge for withholding information under the Offences against the State Acts (OASA). When later charged for refusing to assist the Gardaí in their investigation under the OASA, the man brought a challenge to Section 9(1)(b) of the OASA for infringement of his constitutional right to remain silent. This was accepted by the High Court as it made silence itself an offence and for being “impossibly vague and uncertain”.

In reversing the decision of the High Court, the Supreme Court acknowledged that the man admitted nothing incriminating or exculpatory. However, he was not being prosecuted for saying anything in a police context but for alleged awareness of the crime and not assisting the Gardaí in accordance with the statutory definition. The legislation would not have permitted the interview to be used as evidence or in enabling a conviction.

The section obliges those who have information on serious offences which may materially assist the Gardaí in the apprehension, prosecution or conviction of another person. Therefore, witnessing a crime, being at the scene of a crime or having information about a crime is not an offence. The Court found the obligations under the section to be clear, and unlikely to result in arbitrary enforcement.

Ultimately the Court held that Section 9(1)(b) does not alter the fundamental principle that unless a person wishes to speak of their own volition, the law should not compel them to self-incriminate as to their commission of a crime. The Court was of the view that the section protected the right to remain silent where to speak would incriminate that person.

The Irish Human Rights and Equality Commission, which intervened as amicus curiae, welcomed the Court’s clarifications in relation to the right to silence, the importance of people having access to legal advice, and the State’s agreement that the privilege against self-incrimination could amount to a reasonable excuse for withholding information in certain circumstances.

Click here for full judgment in Sweeney v Minister for Justice, Ireland and the Attorney General.

Click here for the press release from the Irish Human Rights and Equality Commission.



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