Attorney General (S.P.U.C.) v Open Door Counselling Ltd

Judgment Date16 March 1988
Date16 March 1988
Docket Number[1985 No. 5652P]
CourtSupreme Court
A.G. (S.P.U.C.) v. Open Door Counselling Ltd.
The Attorney General (at the relation of The Society for the Protection of Unborn Children Ireland Limited)
Open Door Counselling Limited and Dublin Wellwoman Centre Limited, Defendants
[1985 No. 5652P]

High Court

Supreme Court

Constitution - Right to life of the unborn - Pregnancy counselling services - Abortion considered as an option - Referral to medical clinic in Great Britain - Whether the giving of such assistance unlawful - Whether admitted activities of defendants amounted to conspiracy to corrupt public morals.

Local standi - Locus standi of relator - Whether constitutional provisions self-executing in the absence of legislation - Offences against the Person Act, 1861 (24 & 25 Vict., c. 100) ss. 58 and 59 - Health (Family Planning) Act, 1979 (No. 20) s. 10 - Constitution of Ireland, 1937, Articles 6, 15, 38 and 40.

The defendants provided a service to pregnant women which inter alia included counselling women who had an unwanted pregnancy and who sought assistance on the options open to them Termination of pregnancy might be one of the options discussed and if the pregnant woman wished to consider this further the defendants would refer her to a medical clinic in Great Britain where abortions were performed.

The plaintiff commenced proceedings which sought inter alia (1) a declaration that the activities of the defendants were unlawful having regard to the provisions of Article 40, s. 3, sub-s. 3 of the Constitution; (2) a declaration that the activities of the defendants amounted to a conspiracy to corrupt public morals; and (3) an injunction prohibiting the defendants from carrying on such activities.

Held by Hamilton P., in granting the first declaration, in refusing the second declaration and in granting an injunction, 1, that the plaintiff had the locus standi to maintain the proceedings. That the public interest was committed to the care of the plaintiff and it was his function to represent the public in litigation. He was entitled to sue to restrain the commission of an unlawful act, to protect and vindicate a right acknowledged by the Constitution and to prevent the corruption of public morals. When the Attorney General sues with a relator, the relator need have no personal interest in the subject except his interest as a member of the public.

Moore v. The Attorney General & Ors. [1930] I.R. 471 and The Attorney General v. Logan [1891] 2 Q.B. 100 applied.

2. That the right to life of the unborn had always been recognised in Ireland at common law, by statute law, and also by the Constitution as one of the unenumerated personal rights which the State guaranteed to protect and since the passing of the Eighth Amendment to the Constitution, specific recognition has been given to such right.

3. That the judicial organ of government was obliged to lend its support, if sought, to the enforcement of the right to life of the unborn, to defend and vindicate that right and, if there was a threat to that right from whatever source, to protect that right from such threat.

4. That a right guaranteed by the Constitution carried with it its own right to a remedy, and did not require legislation for its enforcement unless expressly stated by the Constitution.

Educational Company of Ireland Ltd. v. Fitzpatrick (No. 2) [1961] I.R. 345; Byrne v. Ireland[1972] I.R. 241; Meskell v. C.I.E.[1973] I.R. 121 and In re Mead (Unreported, Supreme Court, 26th July, 1972) applied.

5. That the offence of conspiracy to corrupt public morals could be committed even when the agreement between two or more persons was to assist in the commission of a lawful act. The giving of assistance to obtain an abortion in another jurisdiction where it was not a crime, could constitute a conspiracy to corrupt public morals however the declaration sought on this ground would not be granted as it was an offence triable on indictment and it was for a jury to decide in each case whether or not persons were likely to be corrupted.

Knuller v. Director of Public Prosecutions [1973] A.C. 435 and Attorney General v. Able[1984] Q.B 795 considered.

6. That the activities of the defendants amounted to counselling and assisting pregnant women to travel abroad to obtain further advice on abortion and to secure an abortion and as such were unlawful having regard to the provisions of Article 40, s. 3, sub-s. 3 of the Constitution and as such constituted a violation of the fundamental law of the State and if damage had been suffered such activities would amount to an actionable conspiracy.

7. That the qualified right to privacy, the rights of association and freedom of expression and the right to disseminate information cannot be invoked to interfere with the fundamental right to life of the unborn.

8. That the provisions of the law of the European Communities were not applicable because the relevant activities took place within the State.

On appeal by the defendants its was

Held by the Supreme Court (Finlay C.J., Walsh, Henchy, Griffin and Hederman JJ.) in dismissing the appeal and varying the orders of the High Court, 1, that the jurisdiction of the courts could be invoked by a party who had a bona fide concern and interest for the protection of the constitutionally guaranteed right to life of the unborn and it was not necessary that any specific pregnant woman and her unborn child be represented before the courts. The Attorney General was an especially appropriate person to invoke the jurisdiction of the court.

The State (Quinn) v. Ryan [1965] I.R. 70 followed.

2. That it was not necessary in order to assist in the destruction of the life of the unborn for the defendants to advise or encourage the procuring of abortions, it was enough that their admitted activities were assisting pregnant women to travel outside the jurisdiction in order to have an abortion.

3. That there was no implied or unenumerated constitutional right to information about the availability of abortion outside the State, the purpose of which was to defeat the constitutional right to life of the unborn child.

4. That the order of the High Court was directed to the giving of assistance to a pregnant woman to have an abortion in another jurisdiction and did not prevent a pregnant woman herself from becoming aware of the existence of abortion outside the State accordingly no question arose as to the interpretation of the Treaty of the European Economic Community.

Cases mentioned in this report:—

G. v. An Bord Uchtála [1980] I.R. 32; (1978) 113 I.L.T.R. 25.

McGee v. The Attorney General [1974] I.R. 284; (1973) 109 I.L.T.R. 29.

Norris v. The Attorney General [1984] I.R. 36.

Caldwell v. Paghan Habour Reclamation Company (1875-76) 2 Ch. D. 221.

Moore v. The Attorney General & Others [1930] I.R. 471.

Attorney General v. Logan [1891] 2 Q.B. 100.

Educational Company of Ireland v. Fitzpatrick (No. 2) [1961] I.R. 345; (1961) 97 I.L.T.R. 16.

Byrne v. Ireland and The Attorney General [1972] I.R. 241.

Meskell v. Córas Iompair Éireann éireann [1973] I.R. 121.

In re Mead (Unreported, Supreme Court, 26th July, 1972).

R. v. Bourne [1939] 1 K.B. 687.

Paton v. British Advisory Services Trustees [1979] 1 Q.B. 276; [1978] 3 W.L.R. 687; [1978] 2 All E.R. 987.

Shaw v. Director of Public Prosecutions [1962] A.C. 220; [1961] 2 W.L.R. 897; [1961] 2 All E.R. 446.

Mayo-Perrott v. Mayo-Perrott [1958] I.R. 336; (1959) 93 I.L.T.R. 185.

Knuller v. Director of Public Prosecutions [1973] A.C. 435; [1972] 3 W.L.R. 143; [1972] 2 All E.R. 898; 56 Cr. App. R. 633.

Attorney General v. Able [1984] Q.B. 795; [1983] 3 W.L.R. 845; [1984] 1 All E.R. 277; 78 Cr. App. R. 197.

Ferguson v. Weaving [1951] 1 K.B. 814; [1951] 1 All E.R. 412; (1951) 1 T.L.R. 465.

Attorney-General's Reference (No. 1 of 1975) [1975] Q.B. 773; [1975] 3 W.L.R. 11; [1975] 2 All E.R. 684; 61 Cr. App. R. 118; [1975] R.T.R. 473.

The State (Quinn) v. Ryan [1965] I.R. 70.

Attorney General v. Birmingham District Drainage Board [1910] 1 Ch. 48.

Attorney General v. Harris [1960] 1 Q.B. 31; [1959] 3 W.L.R. 205; [1959] 2 All E.R. 393.

Attorney General v. Bastow [1957] 1 Q.B. 514; [1957] 2 W.L.R. 340; [1957] 1 All E.R. 497.

Cahill v. Sutton [1980] I.R. 269.

In re The Housing (Private Rented Dwellings) Bill, 1981 [1983] I.R. 181; [1983] I.L.R.M. 246.

Thomson & Co. Ltd v. Deakin [1952] 1 Ch. 646; [1952] 2 T.L.R. 105; [1952] 2 All E.R. 361.

The Attorney General for England and Wales v. Brandon Book Publishers Ltd.[1986] I.R. 597; [1987] I.L.R.M. 135.

In re O'Kelly (1974) 108 I.L.T.R. 97.

The People v. Campbell 2 Frewen 131.

Attorney General and Minister for Posts and Telegraphs v. Paperlink Ltd. [1984] I.L.R.M. 373.

Dillon-Leetch v. Calleary & Ors. (Unreported, Supreme Court, 31st July, 1974).

The People v. Shaw [1982] I.R. 1.

The People v. O'Shea [1982] I.R. 384; [1983] I.L.R.M. 549.

Tormey v. Ireland and Attorney General [1985] I.R. 289; [1985] I.L.R.M. 375.

Bigelow v. Virginia (1974) 421 U.S. 809.

Regina v. Saunders [1971] 1 E.C.R. 1129.

Rutili v. Minister for Interior [1975] 2 E.C.R. 1219; [1976] 1 C.M.L.R. 140.

Brockmeulen v. Huisarts Registratie Commissie [1981] 3 E.C.R. 2311; [1982] C.M.L.R. 91.

The State (Healy) v. Donoghue [1976] I.R. 325; (1975) 110 I.L.T.R. 9; (1976) 112 I.L.T.R. 37.

Campus Oil Ltd. v. Minister for Industry and Energy [1983] I.R. 82; [1983] I.L.R.M. 258.

Doyle v. An Taoiseach [1986] I.L.R.M. 693.

McLoughlin v. Minister for Social Welfare [1958] I.R. 1.

Shannon v. Ireland [1984] I.R. 548; [1985] I.L.R.M. 449.

Walrave & Koch v. Association Union Cyliste Internationale [1974] E.C.R. 1405; [1975] 1 C.M.L.R. 320.

Luisi v. Ministero Del Tesoro [1984] E.C.R. 377; [1985] 3 C.M.L.R. 52.

CILFIT v. Italian Ministry for Health [1984] E.C.R. 1128.

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