Heaney v Ireland

JudgeO'Flaherty J.
Judgment Date01 January 1997
Neutral Citation1996 WJSC-SC 3768
CourtSupreme Court
Docket Number247/94,[S.C.
Date01 January 1997









1996 WJSC-SC 3768

Hamilton C.J.,

O'Flaherty J.,

Blayney J.,

Denham J.,

Barrington J.,




23rd day of July,1996by O'Flaherty J.[New diss]


This is an appeal from the judgment and order of the High Court (Costello J., as he then was) of 29th June, 1994, [1994] 3 IR 593,dismissing the plaintiff's claim for a declaration that s. 52 of the Offences Against the State Act, 1939is invalid having regard to the provisions of the Constitution.

The Impugned Section

Section 52 of the Offences Against the State Act, 1939 provides:-


2 (1)Whenever a person is detained in custody under the provisions in that behalf contained in Part IV of this Act, any member of the Garda Siochana may demand of such person, at any time while he is so detained, a full account of such person's movements and actions during any specified period and all information in his possession in relation to the commission or intended commission by another person of any offence under any section or sub-section of this Act or any scheduledoffence.


3 (2)If any person, of whom any such an account or information as is mentioned in the foregoing subsection of this section is demanded under that sub-section by a member of the Garda Siochana, fails or refuses to give to such member such account or any such information or gives to such member any account or information which is false or misleading, he shall be guilty of an offence under this section and shall be liable on summary conviction thereof to imprisonment for a term not exceeding sixmonths.

Background Facts

On the 25th October, 1990, each of the appellants was required, pursuant to this provision, to provide an account of their respective movements during stated periods in the preceding days. They both refused to do so. On 26th June, 1991 they were each convicted of an offence under the section. They were sentenced to imprisonment for six months, which sentences have been served. Nonetheless, appeals against conviction are pending in the Court of Criminal Appeal and they await the disposal of these proceedings.

High Court Judgement

The trial judge concluded that the right of a suspect not to answer questions as regards his movements was founded on Article 38.1 of the Constitution, rather than Article 40.


Having pointed out that the case dealt with suspects in custody, and not with accused persons on trial, he said that to hold that a suspect cannot obtainprotection under Article 38 would be to take too restrictive a view of the Article. He said at p. 606:-

"The fairness of a trial may be compromised by what has happened prior to it and this is why, for example, evidence which has been obtained prior to the trial by improper means may vitiate the trial itself. It would follow, in my opinion, that if the right to silence of a suspect can properly be regarded as a basic requirement for our system of criminal justice then it would be protected by thisArticle."


The learned trial judge then went on to examine whether the State was entitled to curtail that right in the impugned provision. He reached the conclusion that the State was so entitled and that it did not offend against the principle of proportionality as adumbrated in Cox .v.Ireland [1992] 2 IR 503.


Neither did he think that the section abridged the presumption of innocence nor did it breach the plaintiff's right to a trial based on long established adversarial principles or impose, instead, one of an inquisitorial nature.


He then went on to conclude that there had been no breach of the provisions of Article 40.1 which contains the guarantee of equality before the law, nor was it in breach of any unspecified personal right within the meaning of Article 40.3.1.

This Court's Assessment

The Court concludes that the learned trial judge was right in his conclusion that the section did not infringe the Constitution. While the learned trial judge held that Article 38 was applicable to a case such as this, the Court does not reach any conclusion on whether Article 38 is applicable or not. It is clear on the facts of the cases grounding the instant appeal that, on each appellant not answering in accordance with the requirement of the section, an offence contrary to the section was made out. While, therefore, nothing touching the due courseof a trial arose as a result of the appellant's failure so to answer, the Court accepts that on occasion what happens prior to trial mayhave an adverse impact on the trial. Pre-trial activities concerning the obtaining of confession-statements, or the failure to allow an accused to prepare for his trial by withholding essential information, are but two examples of what might be held to vitiate a trial so that it could not properly be said to be a trial held in due courseof law.

Freedom of Expression Clause

The Court, prefers instead, to rest its judgment on the proposition that the right to silence is but a corollary to the freedom of expression that is conferred by Article 40 of the Constitution. This approach is in harmony with the decision of the Court in The Educational Company of Ireland Ltd. and Anor .v. Fitzpatrick and Others (No. 2) [1961] IR345, to the effect that just as a person has a constitutional right to join an association, equally a person is entitled to disassociate.


Then, the question is: can this right be abrogated or qualified?

Qualification of Right

Just as the freedom of expression clause in the Constitution is itselfqualified, so must the entitlement to remain silent be qualified. Beforecoming to relevant statute law, it is, of course, well established thatso far as the administration of justice is concerned the exercise of thejudicial power carries with it the entitlement of a judge to compel theattendance of witnesses and, a fortiori, the answeringof questions by witnesses. "This is the ultimatesafeguard of justice in the State, whether it be in pursuit of theguilty or the vindication of the innocent": per Walsh J.,delivering the judgment of the Court of Criminal Appeal in the case of In Re Kevin O'Kelly 108 ILTR 97 at p. 101 (cf. Murphy .v.Dublin Corporation and Minister for Local Government [1972] IR215). Of course, at common law no witness is punishable for refusing toanswer a question which he claims may incriminate him. As Dr. GlanvilleWilliams has pointed out "the rule has not been doubted for fourcenturies". 1

However, the immunity is expressly abrogated in the case of an accused who gives evidence (section 1(e) of the CriminalJustice ( Evidence) Act, 1924)
Misprision of Felony

Going outside the confines of the courtroom, the offence of misprision of a felony is committed if a person conceals or procures the concealment of a felony known to have been committed. It is the duty of all citizens to disclose to the proper authorities all material facts as to the commission of a felony of which the citizen has definiteknowledge.


There is a dichotomy to be noticed: it is between the absolute entitlement to silence as against the entitlement to remain silent when to answer would give rise to self-incrimination. Where a person is totally innocent of any wrongdoing as regards his movements, it would require a strong attachment toone's apparent constitutional rights not to give such an account when asked pursuant to statutory requirement. So, the Court holds, that the matter in debate here, can more properly be approached as an encroachment against the right not to have to say anything that might afford evidence that is self-incriminating.

Statutory Interference

To move then to some examples of statutory interference with the right against self-incrimination, as Lord Mustill pointed out in the course of his speech in Reg. .v. Director of Serious Fraud Office, Ex p.Smith [1993] AC 1, at p. 40. "statutory interference with the right is almost as old as the right itself." He went on tosay:-

"Since the 16th century legislation has established an inquisitorial form of investigation...

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