A LIMITED exception to the "night to silence, provided for in the 1939 Offences Against the State Act, was upheld in a ruling by the Supreme Court yesterday.
The State was entitled to encroach on the right of the citizen I to remain silent in pursuit of its entitlement to maintain public peace and order, the Supreme Court held.
The court upheld a High Court decision to dismiss a constitutional challenge by two men to Section 52 of the 1939 Offences' Against the State Act.
The men, Anthony Heaney and William McGuinness, both natives of Derry, were required under Section 52 to account for their movements when detained at Letterkenny, Co Donegal Garda station on October 25th, 1990. Both refused and subsequently were served six month prison sentences.
Referring to the exception contained in the Offences Against the State Act, Mr Justice O'Flaherty said the State, in pursuing its entitlement to encroach on the right of the citizen in order to maintain peace and order, must ensure the constitutional rights of the citizen were affected as little as possible.
The judge said the innocent person had nothing to fear from giving an account of his or her movements even though, on grounds of principle, or in the assertion of constitutional rights, such a person might wish to take a stand.
The prima facie entitlement of citizens to take such a stand must yield to the right of the State to protect itself.
Mr Justice O'Flaherty said it followed that the entitlement of those with something relevant to disclose concerning the commission of a crime to remain mute, must be regarded as of a lesser order.
The court concluded there was a proper proportionality in Section 52 between any infringement of the citizen's rights with the entitlement of the State to protect itself.
Just as the freedom of expression clause in the Irish Constitution was itself qualified, so must the entitlement to remain silent be qualified.