High Court: Offence of failing to disclose information is unconstitutional

A man who exercised his right to remain silent while being interrogated for murder in 2007 has successfully challenged the constitutionality of s. 9(1)(b) of the Offences Against the State (Amendment) Act 1998 – with which he was charged for failing to disclose information regarding the murder for which he was arrested.

In the High Court, he successfully argued that the offence created by that section breached his right to silence and that the section had the effect that an accused could be prosecuted for exercising his constitutionally protected right.


The plaintiff, Michael Sweeney, became a suspect in the investigation into the killing of Tom Ward in Sligo in 2007.

Mr Sweeney was interviewed informally twice by Gardaí, and was cautioned that he had the right to remain silent. Mr Sweeny 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 s. 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 s. 9(1)(b) of the Offences Against the State (Amendment) Act 1998 – namely Mr Ward’s murder.

Mr Sweeney argued that he faced prosecution for having remained silent, and for exercising a right deriving from the Constitution.

The proceedings concern the sole question of whether it is constitutionally permissible to create an offence of remaining silent in regard to the possible commission of an offence by another.

Ms Justice Baker stated that this dilemma was explained in R. v. Director of Serious Fraud Office Ex p. Smith AC 1 and in Re National Irish Bank Ltd. (No.1) 3 I.R. 145

Justice Baker rejected the argument’s on behalf of The State that the case had not been proved in evidence (Order 19, r. 13 of the Rules of the Superior Courts considered by the Court), and that the relief sought was more properly a matter for the trial court

(Bita v. DPP & Ors. IEHC 288, Wall v. DPP IESC 56, Ryan v. Director of Public Prosecutions I.R. 232, McFarlane v. DPP (Unreported, Supreme Court, 2016), and McNulty v. DPP 3 I.R. 572 distinguished by the Court)

The right to remain silent under interrogation

Justice Baker identified The State (McCarthy) v. Lennon I.R. 485 as a useful starting point to understand the nature of the right to silence; which she said remained a “useful guide to the source of the right to remain silent, and roots it firmly in the allied principle against self-incrimination, recognised by all of the judges in the Supreme Court in that case as being one of antiquity and soundness”.

Because the offence created by s. 9(1)(b) relates to the withholding of information in regard to the commission of an offence by another, the creation of the offence does not readily admit itself to an argument that it offends the right not to self-incriminate.

Considering Heaney & Anor. v. Ireland 1 I.R. 580, Justice Baker was satisfied that the right had an origin in broad constitutional principles and was “not wholly founded in the principle against self-incrimination”.

The Hederman report

The Hederman report, produced by the committee to review the Offences against The State did not recommend any change to s. 9(1)(b); however in a dissenting view, Professor Dermot Walsh argued that the majority position did not “take sufficient cognisance of human right norms”.

Professor Walsh regarded the offence of withholding information created by s. 9(1)(b) as “fundamentally objectionable in a society which seeks to strike a fair balance between the autonomy of the individual and the intrusive demands of the State”.

Justice Baker stated that this was “compelling” up on an examination of the elements of the crime created by s. 9(1)(b).

Elements of the crime

While the elements of the crime of withholding information involve the fact of silence, that silence must be shown to amount to a failure to provide material evidence. Along with the necessary mens rea included as an element in the crime, the action of choosing to remain silent may constitute the crime.

As such, Justice Baker held that that the statutory provisions could be offensive to the constitutional protection of the right to remain silent; the offence may be committed by a person not otherwise at risk of prosecution, and the present case revealed that s. 9(1)(b) may make a person amenable to a charge arising from the failure to answer questions while being detained.

Section s. 9(1)(b) created a compulsion that a person under questioning could be compelled to answer questions, as the failure to do so exposed them to the risk of conviction of a crime separate from that under investigation.

The Gardaí were not be able to balance the competing rights of the State to investigate crime and of the person under questioning to remain silent.

Justice Baker stated that the wide scope of the legislation was “the primary source of the constitutional difficulty”; as it meant that a person in custody and lawfully being questioned in the course of a criminal investigation could find themselves in an irresolvable dilemma to answer questions regarding the crime, could possibly incriminate themselves, or to refuse to answer any questions and thereby commit a criminal offence.

In the course of her judgment Justice Baker distinguished the present case from Rock v. Ireland & Anor; Re National Irish Bank Ltd. (No. 1); and People (DPP) v. Finnerty 4 I.R. 364

Considering all the circumstances, Justice Baker made a declaration that section 9(1)(b) of the Offences Against the State (Amendment) Act 1998 offended the constitutional right to remain silent, and that it was impermissibly vague and uncertain.

  • by Seosamh Gráinséir for Irish Legal News