Supreme Court reaffirms the right to silence and fundamental privilege against self-incrimination

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.”




The Commission’s written submissions in Sweeney v. Minister for Justice, Ireland and the Attorney General [2019] IESC are available at the following link:

The full judgment of the Supreme Court is available at the following link: 


For further information, please contact:

Brian Dawson, IHREC Communications Manager,

01 8589601 / 087 0697095

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Editor’s Note


Background to the case

The case had been appealed directly from the High Court to the Supreme Court due to the important constitutional issues at question The case explored the nature and extent of the right to silence, privilege against self-incrimination, and the offence of withholding information under section 9(1)(b) of the Offences Against the State Acts (“the OASA”).

The Commission provided assistance to the court in its capacity as amicus curiae (friend of the court), exploring the nature of the right to silence, as well as the constitutional and human rights aspects of whether a genuine fear of self-incrimination is a reasonable excuse for failing to provide information when questioned as part of a criminal investigation.

In its submissions the Commission provided comparative examples from other jurisdictions, and argued that section 9(1)(b) of the OASA is unconstitutional, having regard to its vagueness and the lack of safeguards provided for under this legislation.

The amicus curiae function of the Irish Human Rights and Equality Commission.

The Commission’s functions under the Irish Human Rights and Equality Commission Act 2014 include that of applying for liberty to appear as an amicus curiae (friend of the court) before the superior courts in proceedings that involve, or are concerned with, the human rights or equality rights of any person.

Irish Human Rights and Equality Commission

The Irish Human Rights and Equality Commission is an independent public body, appointed by the President and directly accountable to the Oireachtas. The Commission has a statutory remit set out under the Irish Human Rights and Equality Commission Act 2014 to protect and promote human rights and equality in Ireland, and build a culture of respect for human rights, equality and intercultural understanding in the State.

The Irish Human Rights and Equality Commission is Ireland’s national human rights institution and is recognised as such by the United Nations. The Commission is also Ireland’s national equality body for the purpose of a range of EU anti-discrimination measures.




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