State likely to appeal High Court ruling on withholding information

It is likely that the State will appeal the decision of Ms Justice Marie Baker that the "withholding information" offence, contained in the Offences Against the State Act, is unconstitutional.

The case may go to the Court of Appeal, and from there to the Supreme Court, or the State could try have the matter “leapfrogged” so that it goes straight to the higher court, according to legal sources.

In the meantime, the few cases that are understood to be before the courts will have to be stayed, or withdrawn, pending a final view from the legal system as to the constitutionality of the measure.

While it is not a charge that is often used for prosecutions, the withholding information offence has been a useful tool for gardaí investigating serious gang crime, according to one source.

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Threats or suggestions that a family member, a mother or a sibling or a wife, might be charged with withholding evidence, can sometimes be used “as a lever” to encourage co-operation from gang members with investigations into serious crime, the source said.

However the provision has now been found to offend the constitutional right to silence. The right to silence, according to a University College Cork lecturer in criminal law, Fiona Donson, has a type of "mythological status" in the legal system and is designed to protect the individual from the weight of the forces of the State. "It is at the heart of criminal law."

Legal dilemma

The case before Ms Justice Baker involved a particularly stark instance of the difficulties with section 9.1.b of the 1998 Offences against the State (Amendment) Act.

Michael Sweeney was a suspect in a Garda investigation into a killing, and was interviewed under caution.

That means he was told he had the right to remain silent. Later, however, he found himself facing a charge of withholding evidence, arising directly from the interviews where he exercised the right to silence he was told was his.

“The dilemma is apparent,” the judge noted. “A person is to be told of the right to remain silent but not told that, by exercising that right, a crime may be committed.”

Stated in those stark terms, it is hard to see how the appeal courts could decide to disagree with the High Court. However, the law is designed to apply both to people who may be connected with crime or a criminal gang, and entirely innocent people who may have involuntarily witnessed a criminal act.

Omagh bombing legacy

In England a similar law is much more restricted in its use, only being available in cases of terrorist investigations.

The 1998 Act was introduced in the wake of the Real IRA bombing in Omagh, Co Tyrone, that killed 29 people (including a woman pregnant with twins) and injured 220.

A review of the Offences Against the State Acts, 1939 to 1998, which completed its work in 2002, upheld the measures contained in those Acts, including the one successfully challenged by Mr Sweeney.

However, in a dissenting view, mentioned by Ms Justice Baker in her ruling, Prof Dermot Walsh said that the section 9 law was "fundamentally objectionable in a society that seeks to strike a fair balance between the autonomy of the individual and the intrusive demands of the State".