Commission Exercised Amicus Curiae Role in Case
The Supreme Court has today delivered judgment in the case of Sweeney v. Minister for Justice, Ireland and the Attorney General. The Irish Human Rights and Equality Commission (‘the Commission’) appeared in the Sweeney case as an amicus curiae (‘friend of the court’) as the case examined the fundamental right to remain silent and not to incriminate yourself, in response to questioning by Gardaí. The case relates to a man who was questioned, but not charged, in relation to a criminal investigation. When interviewed by Gardaí investigating the original case, he was cautioned that he had the right to remain silent, but he was not informed that his failure to respond to questioning could lead to a separate charge of withholding information from the Gardaí, as subsequently happened when he was charged under the Offences Against the State Acts (“the OASA”). The Supreme Court today reversed the earlier High Court order declaring the specific section (9(1)(b)) of the OASA unconstitutional. The High Court had held that the legislation “makes silence of itself an offence” and was “impermissibly vague and uncertain”. Today, the Supreme Court explained the scope of the offence, stating in its judgment that: “Section 9(1)(b) of the OASA protects the right to silence of any person who does not wish to speak about their own involvement in a crime. The section protects the right to silence 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.” At the hearing in April, for the first time in the case, the State adopted the Commission’s argument that the right to silence (or the privilege against self-incrimination) could amount to a reasonable excuse for failing to provide information to the Gardaí. The Court agreed with the Commission’s analysis stating that: “The section is expressly aimed at witnesses to crime or those who have information about a crime and is aimed at nothing else.” The Court further clarified that: “Witnessing a crime is not an offence. Being at the scene of the crime or having information about a crime is not an offence.” Whilst the judgment does not contain a detailed examination of the Commission’s submissions about the lack of procedural safeguards, the Court recognised the importance of effective legal advice during the course of criminal investigations. The Commission will wait to see how this provision operates in practice in light of the Court’s guidance. Orders arising from the judgment will be made next week and therefore the Commission will make no further comment at this time. Emily Logan, Chief Commissioner of the Irish Human Rights and Equality Commission responded to the ruling today:“Today’s judgment raises important issues about the balance between individuals’ rights to remain silent and the State’s role in preventing criminal offences. The broad sweep of the legislation posed risks to the fundamental right to silence and privilege against self-incrimination. “The Commission notes the Supreme Court’s clarifications in relation to the right to silence, the importance of people having access to legal advice, and the State’s agreement that the privilege against self-incrimination could amount to a reasonable excuse for withholding information in certain circumstances. “The Commission in exercising our amicus curiae role in this case considered that the criminal offence being challenged in this case was unclear and amounted to an excessive encroachment on the autonomy of the individual, without adequate safeguards. Today’s judgment helps to clarify the parameters of the offence.”ENDS/ For further information, please contact: Brian Dawson, IHREC Communications Manager, 01 8589601 / 087 0697095 bdawson@ihrec.ie Follow us on twitter @_IHREC