Sweeny v Ireland

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 23 November 2017
• Neutral Citation: [2017] IEHC 702
• Docket Number: [2014 No. 6531 P]
• Court: High Court
• Date: 23 November 2017

[2017] IEHC 702

THE HIGH COURT

Baker J.

[2014 No. 6531 P]

BETWEEN

MICHAEL SWEENEY

PLAINTIFF

AND

IRELAND

ATTORNEY GENERAL

DIRECTOR OF PUBLIC PROSECUTIONS

DEFENDANTS

Constitution – Constitutionality of s. 9(1)(b) of the Offences Against the State (Amendment) Act, 1998 – Breach of right to silence – Arrest on suspicion of murder – S. 4 of the Criminal Justice Act 1984 – Withholding information – Principle against self-incrimination – Fair procedures – Lack of procedural safeguards

Facts: The plaintiff sought a declaration that s. 9(1)(b) of the Offences Against the State (Amendment) Act, 1998 was invalid as it was contrary to the constitutional right of the plaintiff to remain silent. The plaintiff alleged that he was arrested on suspicion of murder but not charged with the murder; instead he was sent forward for trial for committing an offence under s. 9(1)(b). The plaintiff argued that he was not advised during the interview that his failure to respond to questioning could have led to a charge being levied under that section. The defendants claimed that the present application was premature as the plaintiff's objection could have been dealt with at trial.

Ms. Justice Baker granted a declaration that s. 9(1)(b) offended the constitutional right to remain silent and was impermissibly vague and uncertain. The Court held that the elements of crime of withholding information involved the fact of silence and that silence must have been shown to amount a failure to provide material evidence; thus, the crime involved mens rea, which was the action of choosing to remain silent. The Court scrutinised that s. 9(1)(b) warranted the conviction of a person by merely remaining silent and did not engage questions of the admissibility of evidence or weight of such evidence. The Court further held that there existed no statutory scheme to provide advice to an accused under interrogation or detention that his failure to respond to the question would amount to the committal of an offence under s. 9(1)(b). The Court noted that the statutory obligation to answer self-incriminatory questions should have been qualified by providing enough safeguards to ensure the right to fair trial to an accused person.

JUDGMENT of Ms. Justice Baker delivered on the 23rd day of November, 2017.

1 This judgment is given in a challenge to the constitutionality of s. 9(1)(b) of the Offences Against the State (Amendment) Act, 1998 (‘the Act of 1998’). The plaintiff argues that the offence created by that section breaches his right to silence and that the creation of an offence by that section has the effect that an accused may be prosecuted for exercising his constitutionally protected right. The plaintiff also makes the case that the offence created by the section is impermissibly and unconstitutionally vague and uncertain.

Material facts

2 There is no factual dispute in the proceedings. The plaintiff became a suspect in the Garda investigation into the killing of a Mr. Tom Ward Jnr. at Joe McDonnell Drive, Cranmore, Sligo. Mr. Ward died on 13th August, 2007, and, three days later, on 16th August, 2007, the plaintiff was interviewed informally at his home by Gardaí as part of its investigation into a suspected murder. The plaintiff was cautioned in the usual terms, that he had the right to remain silent but that anything that he might say in the course of the interview could be used in the course of a trial.

3 He was interviewed again informally on 14th September, 2007, and similarly cautioned.

4 On both occasions, a memorandum of the interview was recorded and, accordingly, it is fair to say that the plaintiff was being questioned in the course of an investigation, in respect of which he was a suspect.

5 On 30th November, 2007, the plaintiff was arrested on suspicion of having murdered Mr. Ward and was detained in Carrick-on-Shannon Garda Station pursuant to s. 4 of the Criminal Justice Act 1984. He was interrogated during the course of his detention and cautioned again.

6 The plaintiff was not charged with the murder of Mr. Ward.

7 On 30th January, 2014, the plaintiff was sent forward for trial to Sligo Circuit Criminal Court having been charged with an offence of failing to disclose information contrary to s. 9(1)(b) of the Act of 1998. The charge sheet reads as follows:

‘… on the dates between 13/08/2007 and the 01/12/2007 in the State did fail without reasonable excuse to disclose as soon as practicable to a member of An Garda Síochána information which [he] knew or believed might be of material assistance in securing the apprehension, prosecution or conviction of any other person for a serious offence to wit an offence that involved the loss of human life, namely the killing of Tom Ward.’

8 At no time during interview was the plaintiff told that his failure to respond to questioning could lead to a charge being levied under s. 9(1)(b) of the Act of 1998.

9 The trial had been stayed pending the determination of these proceedings.

The statutory provisions

10 The marginal note at s. 9 of the Act of 1998 reads ‘Withholding information’ and the offence is commonly known by that name.

11 Section 9 provides as follows:

‘(1) A person shall be guilty of an offence if he or she has information which he or she knows or believes might be of material assistance in—

(a) preventing the commission by any other person of a serious offence, or

(b) securing the apprehension, prosecution or conviction of any other person for a serious offence,

and fails without reasonable excuse to disclose that information as soon as it is practicable to a member of the Garda Síochána.

(2) A person guilty of an offence under this section shall be liable on conviction on indictment to a fine or imprisonment for a term not exceeding five years or both.

(3) In this section ‘serious offence’ has the same meaning as it has in section 8.’

12 Section 8 defines a ‘serious offence’ as including an offence that involves loss of human life. The provisions of s. s. 9(1)(b) are therefore engaged in regard to the investigation of what is believed to be the unlawful killing of Mr. Ward.

13 The constitutional challenge is brought in respect of the second limb of s. 9, s. 9(1)(b).

The question raised

14 The plaintiff argues that he faces prosecution for having remained silent, and for exercising a right which has been recognised as deriving from the Constitution. The plaintiff was cautioned, as was proper, in the course of the interviews that he had a right to remain silent, but he was not at any time during the course of any of the relevant interviews advised of the risk that he took in exercising that right. The proceedings concern the sole question of whether it is constitutionally permissible to create an offence of remaining silent in regard to the possible commission of an offence by another. The issue is not one regarding the admissibility or weight of evidence, nor the lawfulness of drawing an inference from a choice made by a person during interrogation to remain silent.

15 The question could be said to present precisely the dilemma as was explained by Mustill L. in R. v. Director of Serious Fraud Office Ex p. Smith [1993] AC 1 at p. 32:

‘…there is the instinct that it is contrary to fair play to put the accused in a position where he is exposed to punishment whatever he does. If he answers, he may condemn himself out of his own mouth; if he refuses he may be punished for his refusal…’

16 The dilemma was noted by Barrington J. giving the judgment of the Supreme Court in Re National Irish Bank Ltd. (No.1) [1999] 3 I.R. 145 at p. 177. Barrington J. described the historical and philosophical source of the right to silence and the principle against self-incrimination as follows:

‘It grew out of the revulsion of the judges for forced confessions as being both unjust in their origin and unreliable in practice. Some judges also seemed to have felt that it was unfair to place a man in a position where he was condemned no matter what he did.’

17 I will return later to the judgment of the Supreme Court in Re National Irish Bank Ltd. (No.1).

The procedural ground of defence: the case is not proved in evidence

18 The plaintiff did not call evidence. The defendant argues therefore that the plaintiff has not established any evidential basis for the claim.

19 The statement of claim is broadly drafted, and pleads sufficient facts regarding the detention and questioning on the relevant dates of the plaintiff and that he has been charged with a breach of the impugned section. The plaintiff seeks a declaration that s. 9(1)(b) of the Act of 1998 ‘is invalid having regard to the provisions of Bunreacht na hÉireann’, or ‘is in breach of the plaintiff's personal rights guaranteed by Bunreacht na hÉireann’. It is pleaded in the alternative that the subsection is incompatible with the State's obligation pursuant to the European Convention on Human Rights.

20 The defence is nine paragraphs long. The first two paragraphs of substance expressly make no denial of the factual pleas in the statement of claim. There is a specific plea that the plaintiff's rights can be vindicated in the course of the trial and that the court should not interfere either with the decision of the Director of Public Prosecutions to prosecute, or with the trial process. There is a general denial of the particulars of the alleged constitutional frailty.

21 The function of pleadings is to identify and define the issues of fact and law between the parties: A.S.I. Sugar Limited v. Greenore Group plc & Ors. [2003] IEHC 131, per Finnegan P. and the earlier case of Mahon v. Celbridge Spinning Co. Limited [1967] I.R. 1 where Fitzgerald J. identified the purpose of pleadings as ‘to confine the evidence at the trial to the matters relevant to those issues.’ (p. 3)

22 Order ...