The High Court has ruled that the offence of withholding information under section 9(1)(b) of the Offences Against the State (Amendment) Act 1998 infringes the constitutional right to silence and is impermissibly vague and uncertain.
Ms Justice Baker delivered the judgment on 23 November 2017 in a challenge brought by Michael Sweeney. He had been sent forward for trial in Sligo Circuit Criminal Court on a charge of failing to disclose information that might assist in securing another person’s apprehension, prosecution or conviction for a serious offence involving loss of life. The charge related to the killing of Tom Ward in Sligo in 2007. Sweeney was not charged with Ward’s murder. His trial had been stayed while the High Court challenge was determined.
Sweeney argued that the law exposed him to prosecution for exercising his right to remain silent, and that the offence was too uncertain. The State defendants argued, among other things, that he had not established the factual basis for his claim and that the issues could be dealt with at his criminal trial. The judge rejected those preliminary arguments. She held that the pleaded facts had not been disputed and that the challenge concerned whether the offence itself could lawfully form the basis of a trial, rather than the admissibility or weight of evidence.
The judge distinguished the offence from laws permitting a court to draw an inference from silence. Under those provisions, an inference is evidence and cannot alone support a conviction. Section 9(1)(b), she said, could make silence itself the basis of a conviction. It contained no requirement that a suspect be warned that remaining silent could result in a separate criminal charge.
The judgment said the provision could place a person under investigation in a dilemma: answering questions might risk self-incrimination, while refusing to answer could expose the person to prosecution for withholding information. The judge found no statutory safeguards to moderate that effect. She concluded that the section’s broad reach could criminalise a failure to provide information during questioning and that the lack of protection left a constitutional flaw.
The judge also upheld the challenge on uncertainty grounds. Although the offence required information to be materially helpful and the accused to know or believe that it might be helpful, she found that a person could be unable to understand how the offence interacted with the right to silence.
The court proposed making a declaration that section 9(1)(b) was unconstitutional on both grounds. The judgment does not record a final order beyond that stated intention, and it does not determine Sweeney’s guilt or the outcome of the criminal charge.