Suspects released after the right to silence court ruling

GARDAÍ have been instructed to release suspects detained on suspicion of withholding evidence after the High Court ruled the offence was unconstitutional.

The order was issued following the decision last month by Ms Justice Marie Baker. She said she believed the offence, which has been in force for almost two decades, affected the constitutional right to silence and was “impermissibly vague and uncertain”. The judge deferred making a formal declaration until this Thursday, December 21.

However, according to the Irish Independent gardaí have already taken action. An instruction issued by An Garda Síochána’s legal section stated anyone who was being held in custody on suspicion of withholding information should be immediately released.

Any officers with ongoing prosecutions for the offence were instructed to consult with the Office of the Director of Public Prosecutions (DPP).A further instruction was given that no one was to be arrested for the offence until further notice.

Ms Baker’s ruling strikes down Section 9(1) (b) of the Offences Against the State (Amendment) Act 1998. This made it an offence for a person to fail to disclose information that might lead to the apprehension, prosecution or conviction of another person for a serious offence.

The offence was a major investigative tool for gardaí probing serious crime and arrests under the section helped crack difficult cases where individuals were uncooperative. It is not yet clear whether the DPP will appeal the ruling. The Garda circular said the DPP was consider- ing its position on the matter. The constitutionality of the offence was successfully challenged by Michael Sweeney, of Bog Road, Ballinrobe, Co Mayo. He was a suspect in the Garda investigation into the killing of 23-year-old Tom Ward Jnr in Cranmore, Co Sligo, in August 2007.

While he was never charged in relation to the killing, Mr Sweeney (pictured) was charged in 2011 with withholding information that might have led to arrest or prosecution of another person in relation to it. He was sent forward for trial but this was placed on hold pending the outcome of his challenge to the constitutionality of the law. In the High Court challenge Mr Sweeney argued that the offence created by the section breached his rights.

He said it allowed for a situation where a person could be prosecuted for exercising their constitutionally protected right to silence. Ms Justice Baker found in his favour. She determined it was “constitutionally impermissible” to create an offence of remaining silent in regard to the possible commission of an offence by another person. The judge said the section of the act made “silence of itself an offence”.She quoted Professor Dermot Walsh in her ruling.

He described the section as “fundamentally objectionable in a society which seeks to strike a fair balance between the autonomy of the individual and the intrusive demands of the State”.

Mr Sweeney was twice interviewed informally by gardaí before he was arrested and detained for questioning in connection with the killing. At no time during his interviews was he told his failure to answer questions could lead to a charge against him.