Sweeney v Ireland

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton
• Judgment Date: 28 May 2019
• Neutral Citation: [2019] IESC 39
• Court: Supreme Court
• Docket Number: Supreme Court appeal number: S:AP:IE:2018:000079 High Court record number: 2014 6531 P [2017] IEHC 702,[S.C. No. 79 of 2018]
• Date: 28 May 2019

Between

Michael Sweeney

Plaintiff/Respondent

- and -

Ireland, the Attorney General

and

the Director of Public Prosecutions

Defendant/Appellant

- and intervening by leave of the Court -

The Irish Human Rights and Equality Commission

[2019] IESC 39

Charleton J.

O'Donnell Donal J.

MacMenamin J.

Dunne J.

Charleton J.

Finlay Geoghegan J.

Supreme Court appeal number: S:AP:IE:2018:000079

[2019] IESC 039

High Court record number: 2014 6531 P

[2017] IEHC 702

An Chúirt Uachtarach

The Supreme Court

Constitutionality – Offences Against the State (Amendment) Act 1998 s. 9(1)(b) – Right to silence – Appellants seeking to appeal High Court decision – Whether s. 9(1)(b) of the Offences Against the State (Amendment) Act 1998 is unconstitutional

Facts: The High Court, by order dated 21 February 2018, declared unconstitutional s. 9(1)(b) of the Offences Against the State (Amendment) Act 1998. The section imposes an obligation on those who are aware of evidence about certain defined and very serious crimes to come forward and help the authorities. The serious crime in question was the murder of Mr Ward at his residence in Joe McDonnell Drive, Cranmore, County Sligo on Monday 13 August 2007. In the judgment of 23 November 2017, the High Court found that the section infringed the right to silence, infringed the certainty principle and imposed obligations which were impermissibly vague but nonetheless were subject to penal sanction. By determination dated 24 October 2018, the Supreme Court granted leave to the State to directly appeal the High Court decision on the basis that “there were exceptional circumstances warranting a direct appeal” under Article 34.5.4° of the Constitution and also gave leave to extend the time for bringing the appeal.

Held by the Court that s. 9(1)(b) had not been impossible to define in such a way as to make clear its inherent obligations and that there was nothing in the elements of the offence that were beyond clear exposition. The Court held that the section as it applied to the commission by another of murder was not productive of inconsistent application and nor was it likely to lead to arbitrary enforcement; thus, the definitional elements of the crime were clear and did not consequently infringe the constitutional prohibition against vagueness. The Court held that s. 9(1)(b) protects the right to silence of any person who does not wish to speak about their own involvement in a crime and protects the right to silence where to speak would incriminate that person. The Court held that it does not change the principle that unless a participant wishes to speak of their own volition, the law should not compel them to self-incriminate as to their commission of a crime.

The Court held that it would reverse the order of the High Court whereby s. 9(1)(b) was declared to be incompatible with Bunreacht na hÉireann.

Appeal allowed.

Judgment of Mr Justice Peter Charleton delivered on Tuesday 28 May 2019

1 By order dated 21 February 2018, the High Court declared unconstitutional section 9(1)(b) of the Offences Against the State (Amendment) Act 1998. The section imposes an obligation on those who are aware of evidence about certain defined and very serious crimes to come forward and help the authorities. The serious crime here in question was the murder of Thomas Ward at his residence in Joe McDonnell Drive, Cranmore, County Sligo on Monday 13 August 2007. In the judgment of the High Court of 23 November 2017, Baker J found the section to be incompatible with the Constitution. She, firstly, found that it infringed the right to silence. Secondly, she reasoned that it infringed the certainty principle. She held that it imposed obligations which were impermissibly vague but nonetheless were subject to penal sanction. By determination dated 24 October 2018, this Court granted leave to the State to directly appeal the High Court decision on the basis that ‘there were exceptional circumstances warranting a direct appeal’ under Article 34.5.4° of the Constitution and also gave leave to extend the time for bringing the appeal.

Absence of evidence

2 This was a plenary action seeking declaratory relief. While not a judicial review, it was an attempt to pre-empt a criminal trial by seeking a ruling outside of the court of trial and in the High Court that the offence which the plaintiff Michael Sweeney faced was inconsistent with the Constitution. It is unsatisfactory that the factual circumstances were not the subject of any proper evidence or analysis in the High Court. That was not in any way the fault of Baker J. No evidence was called by either side. The plaintiff was facing a criminal charge under section 9(1)(b) of the 1998 Act. On such a charge, a book of the evidence against an accused is prepared and served on him or her, the plaintiff in this case. The High Court was expected to determine such a serious issue as the compatibility of a section of a criminal statute with the fundamental rights provisions of the Constitution in the absence of any clear analysis of what the circumstances leading to the charge were and what exactly the evidence proposed against the person accused was to be. It should be clearly stated that any issue as to whether a charge was capable of being dealt with in a constitutional fashion and as to whether there had in fact been any trammelling on the right to silence or undermining of the privilege against self-incrimination could only be analysed in the context of the nature of the evidence which the State proposed to lead against Michael Sweeney. Instead, facts were agreed by the State on the basis of a statement of claim from the plaintiff. The full facts, however, as to how the prosecution might construct such a charge were not put before the High Court, or on appeal before this Court. Since the case was about the right to silence, in the sense of not obliging a citizen to incriminate himself or herself, the central issue was whether the State was proposing to rely on any statement generated in consequence of a statutory compulsion. It is agreed, however, that the plaintiff Michael Sweeney never made any statement incriminating himself; neither when arrested nor before his arrest and, furthermore, that he never offered any assistance to the authorities as to the circumstances leading to the murder of Thomas Ward or as to those who may have been responsible.

3 Properly, the forum to adjudicate the interpretation of any criminal offence and the admissibility of any evidence in support of it is the court of trial. Within that forum, the trial judge has the advantage of access to the entirety of the book of evidence and may also call for any other statement or correspondence that is relevant to such adjudication. In some European criminal law systems, statements taken by police officers from witnesses and the results of relevant enquiries are referred to as the file. Our common heritage is the access by any judge adjudicating on a criminal charge to that file. Both the High Court and this Court on appeal were deprived of such access. Central to the role of a trial judge is hearing submissions on the nature of a charge and ruling on the ingredients of an offence: what conduct constitutes the crime, both as to its external element and its mental element. Based upon that analysis, the trial judge is in a position to adjudicate on the admissibility of evidence in the context of whatever case being brought by the prosecution. This is set out in our system in the book of evidence, and in kindred systems, in the investigation file. If a claim is made, for instance, that a particular item of evidence should not be admitted, that can be seen within the setting of the case being made, and, if an answer to that case is then forthcoming from the accused, any relevant response can also be considered by the trial judge.

4 In CC v Ireland [2006] 4 IR 1, two persons who had not yet been returned for trial, and against whom no indictment had been laid, challenged the constitutionality of sections of the Criminal Law (Amendment) Act 1935 relating to offences with which they had been charged of under-age sexual relations, including with a girl of 14 years. The accused persons wished to raise a defence that they were mistaken as to the age of the girls and asserted that a mistake made in good faith that the girls were of full age for consent to sexual relations entitled them to an acquittal. Absent such a defence of genuine mistake, they claimed that the relevant legislation was contrary to the Constitution. The majority of the Supreme Court were clear that the function of the trial judge was to interpret legislation and to rule on the admissibility, or otherwise, of any defence evidence as to the state of mind of the accused. Nonetheless, the High Court, in the context of a judicial review, and not as the court of trial, had adjudicated on the matter and held that knowledge as to the age of the victims in the context of under-age sexual relations offences was not an element of the offence. In the Supreme Court, Geoghegan J felt constrained to entertain an appeal, but stated at paragraph 95 that he felt ‘great sympathy with’ the proposition that any such ‘substantive issue should be raised at the trial and not in judicial review proceedings.’ Fennelly J expressed this view at paragraph 134 as follows:

It is, of course, commonplace for applications to be made to prohibit criminal trials. Such applications are brought by way of Judicial Review. It is, however, quite inappropriate and a usurpation of the function of the court of trial for an accused person-or the prosecution, for that matter- to seek advance rulings from the High Court as to how any legal provisions should be interpreted in the course of a pending trial. It happens that the present case concerns a trial pending in the Circuit Criminal Court. Judicial Review is not available...