Positive Reporting Obligation Does Not Erode Right to Silence
This article considers the recent Supreme Court decision which found the criminal offence of "withholding information" to be constitutional. This may have reverberations in a regulatory context as similar offences are provided for across many pieces of legislation.

Background

In February 2018 the High Court declared s.9(1)(b) of the Offences Against the State (Amendment) Act 1998 unconstitutional.  This section of the 1998 Act provides that a person shall be guilty of an offence where he/she has information which he/she knows or believes might be of material assistance in securing the apprehension, prosecution or conviction of any other person for a serious offence (as defined in the 1998 Act) and fails without reasonable excuse to disclose that information as soon as it is practicable to a member of An Garda Síochána. 

We considered this judgment previously here in the context of the nearly identical provision contained in s.19 of the Criminal Justice Act 2011 (the "2011 Act") and  individuals that may be subject to the Central Bank of Ireland's fitness and probity regime.

Mr Sweeney was interviewed by An Garda Síochána as part of an investigation into a suspected murder. During the interviews, he exercised his right to remain silent. While Mr Sweeney was not ultimately charged with murder, he was charged with the offence of failing to disclose information pursuant to s.9 (1)(b) of the 1998 Act and sent forward for trial. He subsequently brought a constitutional challenge in the High Court in respect of s.9(1)(b) of the 1998 Act.

High Court declares section unconstitutional

Baker J. for the High Court was of the opinion that section 9(1)(b) of the Offences Against the State (Amendment) Act 1998 was unconstitutional because it was vague. The wide scope of s.9(1)(b) of the 1998 Act meant that the relationship between the right to silence and the offence in s.9(1)(b) was unclear and in the absence of statutory or regulatory protection, it was impermissibly uncertain and vague.

Supreme Court Decision

Vagueness

The Supreme Court held that s.9(1)(b) is capable of clear construction and that the elements of the offence are certain.  Section 9(1)(b) requires the prosecution to prove:

  1. that a particular serious offence as defined within the legislation was committed,
  2. that someone other than the accused committed it,
  3. that the accused had information which was of material assistance to apprehending or proceeding against that person or persons,
  4. that the accused was aware that he or she had such information in the sense of having the information and knew or believed that it might be of assistance to the authorities,
  5. that the accused made no disclosure of that information to the authorities, and,
  6. that the accused had no reasonable excuse for not so disclosing. 

"Without Reasonable Excuse"

The Court held that the mental element in this offence is subjective - it is not what a reasonable person would know or believe, it is not reasonably believing that information may assist, but instead depends on the perception of the accused. A person who does not reason out that the information they have might be of material assistance is not guilty where a person who came to that realisation would infringe the section by not coming forward.

Privilege against self-incrimination

Mr Sweeney had argued that section 9(1)(b) of the 1998 Act demanded that anyone involved in a crime would be obliged to confess their participation to the authorities.  The Court held that while other similar legislation often provides for an express saver which excludes self-incrimination, the absence of such a clause, when seen against the backdrop of the existing law and constitutional obligations, does not put any duty on a suspect to reveal participation in a crime. 

The Court considered both the Irish case law and the European Court of Human Rights decisions and held that section 9(1)(b) of the 1998 Act could in no rational way be construed as enabling a conviction merely because a person when officially questioned remained silent. 

In reversing the High Court decision, the Supreme Court held that:

  • the definitional elements of the crime are clear and do not consequently infringe the constitutional prohibition against vagueness.
  • the section protects the right to silence where to speak would incriminate that person. It does not change the principle that unless a participant wishes to speak of their own volition, the law should not compel them to self-incriminate as to their commission of a crime.  

Key implications

As we noted previously this case is important to note from a regulatory perspective as similar mandatory reporting obligations can be found dotted across the statute book including the obligation to report white collar crimes pursuant to s.19 of the 2011 Act. The wording of s.19(1)(b) of the 2011 Act is identical to s.9(1)(b) of the 1998 Act except that the 2011 Act applies to a "relevant offence" whereas the 1998 Act applies to a "serious offence". 

The upshot of this Supreme Court decision means that any further challenges to similar offences in a white-collar crime context are unlikely. 

Sweeney v Ireland [2019] IESC 39

 

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