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Supreme Court reverses High Court unconstitutionality ruling on right to silence
Pic: Ireland's Content Pool

30 May 2019 / human rights Print

Supreme Court reverses High Court silence ruling

The Supreme Court has delivered judgment in the case of Sweeney v Minister for Justice, Ireland and the Attorney General

The case relates to a man who was questioned, but not charged, in relation to a criminal investigation into the killing of 23-year-old Tom Ward who was beaten to death outside his parents’ home in Sligo and died on 13 August 2007.


When originally interviewed by gardaí, Michael Sweeney of Bog Road, Ballinrobe, Co Mayo, was cautioned that he had the right to remain silent.

Sweeney said “absolutely nothing”, whether incriminating or exculpatory, the Supreme Court judgment says.

Failure to respond

The suspect was not informed that his failure to respond to questioning could lead to a separate charge of withholding information.

Sweeney was interviewed twice before being arrested for questioning about the death.

He was subsequently charged in 2011 under the Offences Against the State Acts (OASA) with withholding information which might have led to arrest or prosecution of another person in relation to the death.

Alleged awareness

He was being prosecuted for alleged awareness of the murder and with not assisting authorities with their inquiries.

He was expected to stand trial in 2014 but made a challenge under  section 9(1)(b) of the Offences Against the State Act, against the State and the DPP.

The Supreme Court judgment has 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”.

The Supreme Court judgment states 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 wishes to speak of their own volition, the law should not compel them to self-incriminate as to their commission of a crime.”

The judgment says that the law also does not permit the prosecution to question an accused at trial about why they chose not to answer a particular question.

Right to silence

Section 9.1.6 protects the right to silence of any person who does not wish to speak about their own involvement in a crime and protects the right to silence where to speak would incriminate that person, the judgment continues.

The Irish Human Rights and Equality Commission (IHREC) appeared in the Sweeney case as an amicus curiae.

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: “The section is expressly aimed at witnesses to crime or those who have information about a crime and is aimed at nothing else.” 

Not an offence

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.”

The court recognised the importance of effective legal advice during the course of criminal investigations.

Emily Logan of IHREC said “This 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 here.


The case was appealed directly from the High Court to the Supreme Court due to the important constitutional issues in question. 

It examined 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.

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