Supreme Court Upholds The Mandatory Reporting Obligation For Serious Crimes

The Supreme Court has delivered an important judgment in Sweeney v Ireland [2019] IESC 39. In a leap frog appeal, the High Court order of 21 February 2018 has been overturned and the constitutionality of section 9(1)(b) of the Offences Against the State (Amendment) Act 1998 (the "1998 Act") upheld. The High Court had previously held that the offence of withholding information created under section 9(1)(b) of the 1998 Act constituted an infringement on the constitutionally protected right to silence and the privilege against self-incrimination. The Supreme Court judgment can be found here.

The Supreme Court's decision has wider impact in the context of other provisions of Irish law which criminalise failures to report certain offences, including for example, under section 19 of the Criminal Justice Act 2011 ("Section 19"). Section 19, in certain circumstances, compels persons to report information relating to a range of white collar offences and other crimes to An Garda Siochana. Particularly since the implementation of the Criminal Justice (Corruption Offences) Act 2018, Section 19 reporting requirements have been considered closely by companies, board directors and senior managers as they implement policies and procedures to ensure compliance with their respective obligations under the act.

Background

Sweeney v Ireland involved a constitutional challenge of section 9(1)(b) of the 1998 Act, which provides that it is a criminal offence for a person to withhold information from the Gardaí which they know or believe is of 'material assistance' in preventing the commission of or securing the apprehension, prosecution or conviction of a person for a serious offence. In this context, a 'serious offence' is one which carries a penalty of five years imprisonment and involves the loss of life, serious personal injury or serious loss or damage to property, or serious risk of any of these acts. There is an exception under the 1998 Act whereby somebody cannot be compelled to provide this information where they have a "reasonable excuse".

In this case the plaintiff, Sweeney, was charged with failing to disclose information relating to the murder of Thomas Ward in Sligo in 2007. The plaintiff argued that the 1998 Act compelled him to provide information in breach of his right to silence and his privilege against self-incrimination.

Supreme Court Decision

Delivering the unanimous decision of the Supreme Court, Mr Justice Charleton overturned the decision...