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

JurisdictionIreland
CourtSupreme Court
Judgment Date16 March 1988
Date16 March 1988
Docket Number[1985 No. 5652P]

High Court

Supreme Court

[1985 No. 5652P]
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)
Plaintiff
and
Open Door Counselling Limited and Dublin Wellwoman Centre Limited, Defendants

Cases mentioned in this report:—

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ferguson v. WeavingELRUNKUNK [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)ELRWLRUNKUNKUNK [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. RyanIR [1965] I.R. 70.

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

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

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

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

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

Thomson & Co. Ltd v. DeakinELRUNKUNK [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.IRDLRM[1986] I.R. 597; [1987] I.L.R.M. 135.

In re O'KellyDLTR (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.DLRM [1984] I.L.R.M. 373.

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

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

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

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

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

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

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

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

The State (Healy) v. DonoghueIRDLTRDLTR [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 EnergyIRDLRM [1983] I.R. 82; [1983] I.L.R.M. 258.

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

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

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

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

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

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

Procureur du Roi v. DebauveUNKUNK [1980] E.C.R. 833; [1981] C.M.L.R. 362.

Moser v. Land Baden-WiirttembergUNK (1984) E.C.R. 2539.

Van Binsbergen v. Board of Trade Association of the Engineering IndustryUNKUNK [1974] E.C.R. 1299; [1975] C.M.L.R. 298.

Morson & Thanjan v. The NetherlandsUNKUNK [1982] E.C.R. 3723; [1983] 2 C.M.L.R. 221.

Van Duyn v. Home OfficeUNKUNK [1974] E.C.R. 1337; [1975] C.M.L.R. 1.

R. v. Henn and DarbyUNKUNK [1979] E.C.R. 3975; [1980] C.M.L.R. 246.

Coenen v. Sociaal-Economische RaadUNKUNK [1975] E.C.R. 1547; [1976] C.M.L.R. 30.

Foglia v. Novello (No. 2)UNKUNK [1981] E.C.R. 3045; [1982] C.M.L.R. 585.

Da Costa en Schaake v. The NetherlandsUNKUNK [1963] E.C.R. 31; [1963] C.M.L.R. 224.

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.

Plenary Summons.

The proceedings were originally instituted by the relator (The Society for the Protection of Unborn Children Ireland Limited). On the 28th June, 1985, the defendants challenged the locus standi of the Society and by order of the High Court dated 24th September, 1986, the proceedings were amended and converted into the name of the Attorney General at the relation of the Society. The hearing of the case in the High Court proceeded not on oral evidence but on the basis of admitted facts which are listed in the judgment of the learned President.

Article 40, s. 3, sub-s. 3 of the Constitution provides:—

"The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right."

The action was tried by Hamilton P. on 7th, 8th, 9th and 10th October, 1986.

The defendants appealed to the Supreme Court pursuant to Notice of Motion dated 5th June, 1987, from the order and judgment of the High Court. The appeal was heard on the 9th, 10th, 11th and 12th February, 1988. The grounds of appeal are set out in the judgment of Finlay P. The Court dismissed the appeals and varied the order of the High Court as set out in the judgment infra.

It was argued inter alia by the defendants that the proceedings should not have been entertained because they did not relate to a particular unborn person; that they sought to provide a proper counselling service and that they could not do this without providing full information; and that an abortion was an option which the client herself must raise.

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.IR [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.

  1. G. v. An Bord UchtálaIR [1980] I.R. 32; McGee v. The Attorney GeneralIR[1974] I.R. 284; andNorris v. The Attorney GeneralIR[1984] I.R. 36 considered.

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)IR [1961] I.R. 345; Byrne v. IrelandIR[1972] I.R. 241; Meskell v. C.I.E.IR[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...

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