Offence of withholding information ruled as unconstitutional

A man charged with withholding information possibly leading to arrest or prosecution of another person in connection with a man's killing in Sligo has won his High Court challenge to the constitutionality of the law under which he is charged.

Michael Sweeney, Bog Road, Ballinrobe, Co Mayo, was a suspect in the Garda investigation into the killing of 23-year-old Tom Ward in August 2007, was never charged with that offence but was charged in 2011 with withholding information which might have lead to arrest or prosecution of another person in relation to it.

He was due for trial in 2014 but that was placed on hold pending the outcome of his High Court proceedings.

In her judgment on Thursday, Ms Justice Marie Baker said the relevant law under which Mr Sweeney is charged - Section 9.1.b of the Offences Against the State (Amendment) Act 1998 - offends the constitutional right to remain silent and is "impermissibly vague and uncertain". She has deferred to December 21st making a formal declaration to that effect.

Section 9.1.b makes it an offence for any person who has information they know or believe might be of “material assistance” in securing the “apprehension, prosecution or conviction of any other person for a serious offence” but who fails “without reasonable excuse” to disclose that “as soon as practicable” to the Garda.

It is “constitutionally impermissible” to create an offence of remaining silent in regard to the possible commission of an offence by another person, the judge said. Section 9.1.b essentially “makes silence of itself an offence”.

The judge noted, while a majority of the committee set up to review the Offences Against the State Acts 1939-1998 had not recommended any change in its 2002 report, Professor Dermot Walsh had in his dissenting view argued the majority did not take sufficient cognisance of human rights norms.

Prof Walsh had described Section 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”.

His analysis was “compelling” when one examines the elements of the crime created by Section 9.1.b, including the choice to remain silent may constitute the crime, the offence may be committed by a person not otherwise at risk of prosecution and, as this case showed, a person could be charged under it arising from their failure to answer questions while being detained.

Section 9.1.b means a person under questioning is compelled to answer questions as failure to do so exposes them to the risk of conviction of a crime separate from that under investigation, she said.

While it may be desirable to have a crime of withholding information, the “wide scope” of this legislation creates the constitutional difficulty. A person in custody and lawfully being questioned during a criminal investigation may find themselves in an “irresolvable dilemma” to answer questions and possibly incriminate themselves or refuse to answer and thereby commit a criminal offence.

The problem is Section 9.1.b can be used, as it was in this case, to charge a person arising from the fact they failed to give information in relation to a crime by another person when the crime (of withholding information) is alleged to have been committed in the course of questioning.

Section 9.1.b is also “impermissibly uncertain” as, in the absence of statutory protection, it can result in a person being unable to discern the relationship between the right to remain silent and the consequences of that.

Earlier, the judge said Mr Sweeney had become a suspect during the Garda investigation into the killing of Mr Ward at Joe McDonnell Drive, Cranmore, Sligo. Mr Ward was beaten to death outside his parents’ home and died on August 13th 2007.

Mr Sweeney was twice interviewed informally by gardaí before he was arrested and detained for questioning in connection with the killing, she said. He was not charged with the killing but in January 2014 was sent forward for trial under Section 9.1.b.

At no time during his interviews with gardaí was Mr Sweeney told his failure to answer questions could lead to a charge being levied under Section 9.1.b, she said.