Ireland: Supreme Court Upholds The Mandatory Reporting Obligation For Serious Crimes

Last Updated: 14 June 2019
Article by Karen Reynolds

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 of the High Court and upheld the constitutionality of the provision under the 1998 Act.  In finding that the provision was sufficiently certain the Court held that the 1998 Act was clear in what it obliges witnesses to do - to disclose information pertaining to serious offences which they know will aid the prosecution of such an offence.

In holding that the provision did not infringe the right to silence or the privilege against self-incrimination, the Supreme Court held that this provision did not compel individuals who had committed crimes to disclose such information, thus incriminating themselves as a result.  Mr Justice Charleton held that this obligation was only imposed on witnesses, noting that it is not an offence to witness a serious crime.  Mr Justice Charleton also referred to the 'reasonable excuse' exemption, indicating that a 'reasonable excuse' would include a disclosure which would cause the witness to incriminate himself or herself.  Mr Justice Charleton further held that the right to silence was also not infringed as such a right to silence is protected where to speak would incriminate that person.  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.

Mr Justice Charleton also referred to comparative legislation in other jurisdictions, including England. He noted that there is debate in the UK as to whether a suspect's privilege against self-incrimination provides a reasonable excuse to non-disclosure. This contrasts with the position in Ireland which following this decision appears to be clear cut in excluding persons involved in a serious crime from the mandatory reporting obligation.  

Conclusion

While this case involved a challenge specifically relating to withholding evidence relating to serious offences, such as murder, it provides guidance as to how the courts would approach similar provisions for other offences.  The judgment discussed the similar reporting obligation under Section 19 of the Criminal Justice Act 2011, 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 relation to a relevant offence including a number of offences relating to banking law, company law, money laundering, theft and fraud, bribery and corruption, consumer protection and competition law. Whilst the Supreme Court noted that no comment was been made as to the constitutionality of such similar provisions, the decision provides clarification that such reporting obligations would be likely to withstand any legal challenge and thus, will trigger criminal offences if not complied with.

This article was co-authored by senior associate Ciara Dunny.  

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions