David Prendergast (Trinity College (Dublin) - Faculty of Arts, Humanities and Social Sciences) has posted The Crime Of Failing To Come Forward on SSRN. Here is the abstract:
Withholding information" in s.9 of the Offences Against the State (Amendment) Act 1998 is the crime of failing to come forward to the police as soon as is practicable with information about another person's commission or prospective commission of certain kinds of serious offences. While s.9 criminalises silence and inaction, its constitutionality has been upheld by the Irish Supreme Court in Sweeney v Ireland [2019] IESC 39. The court held that the offence was not unconstitutionally vague and did not encroach on the right to silence. It resolved the constitutional challenge by interpreting the offence's reasonable excuse clause as exempting from s.9 liability a person whose well-founded concern about self-incrimination is their reason for not telling the police about another's crime. This article surveys the offence in detail and critically analyses the Supreme Court's interpretive resolution in Sweeney. Several claims are argued: One, the offence, as interpreted in Sweeney, can nullify itself in many instances by admitting a concern about s.9 liability to serve as a reasonable excuse for not coming forward as s.9 obliges. This possibility is opened up as a result of the Supreme Court's holding that a self-incrimination risk in respect of any offence, not just complicity in respect of the duty-triggering serious offence, will constitute an exculpating reasonable excuse under s.9. Two, while the Sweeney Supreme Court judgment is ostensibly highly protective of the right to silence, in truth it undermines it by ignoring the free-speech based right to silence set out in Heaney v Ireland [1996] 1 I.R. 580; by downplaying the practical implications of exercising the right; and, in effect, by distinguishing, more or less, between the guilty and innocent pre-conviction. This problematic distinction arises since there must be a "genuine risk" of self-incrimination in order to have a privilege against self-incrimination based exemption from s.9 liability and it is self-incrimination in respect of any offence, not just the relevant serious offence. In other words, as the Supreme Court reads it, the s.9 duty, for the most part, applies only to the innocent; those with criminal guilt are free of it. Three, Sweeney's upholding of the s.9 offence as not unconstitutionally vague rests on the prior conclusion that the right to silence is not encroached upon and, even at that, there is missing recognition of how an offence may be very vague and yet still be constitutional. Four, Sweeney leaves no constitutional norm left standing against the potential expansion of s.9-type omission liability.
