Struck-down law does not ‘criminalise’ silence, court told

The State and Director of Public Prosecutions (DPP) have urged the Supreme Court to overturn the striking down of a law under which a man was charged with withholding information in connection with the killing of a young man in Sligo.

The appeal is against a High Court finding that Section 9.1.b of the Offences Against the State (Amendment) Act 1998 is unconstitutional because it offends the constitutional right to remain silent and is “impermissibly vague and uncertain”.

That finding was made in proceedings by Michael Sweeney, Bog Road, Ballinrobe, Co Mayo, who was a suspect in the Garda investigation into the killing of Tom Ward (23) in August 2007.

Mr Sweeney was charged in 2011 with withholding information which might have led to arrest or prosecution of another person in relation to the killing.

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” who fails “without reasonable excuse” to disclose that “as soon as practicable” to the Garda.

In striking it down, the High Court’s Ms Justice Marie Baker said it was “constitutionally impermissible” to create an offence of remaining silent in regard to the possible commission of an offence by another person. Mr Sweeney was due for trial in 2014 but that remains on hold pending the Supreme Court’s ruling on the State’s appeal.

On Thursday, having heard submissions, Mr Justice Donal O’Donnell, presiding at the five-judge court, said it was reserving judgment on the appeal.

In submissions for the State and DPP, Paul McGarry SC argued the High Court fell into “very serious error” in approaching the case on a “wrong premise” relating to the factual circumstances surrounding the questioning of Mr Sweeney and his response to questions.

Right to silence

The case was not about questions asked of Mr Sweeney during interviews; it was about whether the section itself infringes what was described as the right to silence, he said. He disagreed the section “criminalises” silence.

Sean Guerin SC, for Mr Sweeney, argued there was no error by the High Court.

The “true” interpretation of the section was that it “compels speech” regardless of the existence of the privilege of silence, he said.

Micheál P. O’Higgins SC, for the Irish Human Rights and Equality Commission, involved in the appeal as assistant to the court on legal issues, submitted the section is unconstitutional because it renders conduct unconstitutional without building in statutory safeguards.

Even if a person arrested under Section 9.1.b was not charged, there were potential reputational and employment consequences from their arrest, he said.

During exchanges with counsel, Mr Justice O’Donnell said there was no “absolute” right to silence but rather an entitlement to remain silent from which inferences may be drawn.