Supreme Court: Offence of failing to disclose information not incompatible with the Constitution

Supreme Court
Supreme Court

The Supreme Court has overturned a decision of the High Court which declared that section 9(1)(b) of the Offences Against the State (Amendment) Act 1998 offended the constitutional right to remain silent.

Also finding that the definitional elements of the crime under this section were clear, Mr Justice Peter Charleton concluded that the section did not infringe the constitutional prohibition against vagueness. 


In 2007, Michael Sweeney, became a suspect in the investigation into the killing of a man in Sligo. Mr Sweeney was interviewed informally twice by Gardaí, and was cautioned that he had the right to remain silent. Mr Sweeney was then arrested on suspicion of murder, detained and interrogated by Gardaí – but he was not charged with the murder.

At no time during interview was Mr Sweeney told that his failure to respond to questioning could lead to a charge being levied under section 9(1)(b) of the Offences Against the State (Amendment) Act 1998.

In 2014, Mr Sweeney was sent forward for trial to Sligo Circuit Criminal Court having been charged with an offence of failing to disclose information which could assist in “the apprehension, prosecution or conviction of any other person for a serious offence” contrary to section 9(1)(b) – namely the 2007 murder.

Challenge to the constitutionality of the section

The trial was stayed pending the outcome of the present proceedings challenging the constitutionality of section 9(1)(b).

In the High Court in November 2017, Mr Sweeney argued that he faced prosecution for having remained silent, and for exercising a right deriving from the Constitution.

Ms Justice Marie Baker found section 9(1)(b) to be incompatible with the Constitution, concluding that it infringed the right to silence, and that it infringed the certainty principle. Ms Justice Baker held that it imposed obligations which were impermissibly vague but nonetheless were subject to penal sanction.

Ms Justice Baker proposed making a declaration that section 9(1)(b) “offends the constitutional right to remain silent and is impermissibly vague and uncertain”. By order dated 21 February 2018, the High Court declared section 9(1)(b) unconstitutional.

Supreme Court

In October 2018, the Supreme Court granted leave to the State to directly appeal the High Court decision on the basis that “there were exceptional circumstances warranting a direct appeal” under Article 34.5.4° of the Constitution, and also gave leave to extend the time for bringing the appeal.

The Irish Human Rights and Equality Commission (IHREC) also made submissions to the Supreme Court as amicus curiae.

Mr Justice Peter Charleton said that the construction of section 9(1)(b) put forward by Mr Sweeney was “to require that the section demand that anyone involved in a crime would be obliged to confess their participation to the authorities”.

He said that this was distinctly at variance with the construction submitted by the IHREC that “those who commit a crime are not to be prosecuted for not coming forward to help the authorities”. Mr Justice Peter Charleton said the IHREC’s submission conformed to the principle of constitutional construction and was clearly correct. He said that the section was expressly aimed at witnesses to crime or those who have information about a crime and is aimed at nothing else.

Considering Ms Justice Baker’s judgment, Mr Justice Charleton explained that no evidence was called by either side in the High Court, and therefore the factual circumstances were not the subject of any proper evidence or analysis. He said that because of “the fact-free zone in which the case was presented, the trial judge appears to have not had clear information as to whether any fact elicited from the plaintiff … might be used against him in prosecuting him. It now emerges that there is no such evidence and that he never incriminated himself”.

Mr Justice Charleton said that it seemed as if it had been assumed that answers to questions might form part of the prosecution case, but that it was clear now that Mr Sweeney said absolutely nothing to the Gardaí – “incriminating or exculpatory or otherwise”.

Mr Justice Charleton explained that Mr Sweeney was not being prosecuted for not saying anything in a police context – rather for “awareness of this murder and not assisting the authorities in accordance with the statutory definition”. He said there was nothing in the legislation to permit any aspect of any such interview to be used in evidence against an accused person; that the law did not permit the prosecution to question an accused person at trial as to why, or for what reason, he chose not to answer a particular question; and that section 9(1)(b) could in no rational way be construed as enabling a conviction merely because a person when officially questioned remained silent.

Concluding that the Order of the Court should “simply be to reverse the order of the High Court whereby Section 9(1)(b) of the Offences Against the State Act 1998 was declared to be incompatible with Bunreacht na hÉireann”, Mr Justice Peter Charleton said the definitional elements of the crime were clear and did not consequently infringe the constitutional prohibition against vagueness.

He said it did 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.

  • by Seosamh Gráinséir for Irish Legal News

© Irish Legal News Ltd 2020

Other judgments by Mr Justice Peter Charleton

Related posts