Attorney General v X

• Jurisdiction: Ireland
• Judgment Date: 05 March 1992
• Date: 05 March 1992
• Docket Number: [1992 No. 846P]
• Court: Supreme Court

The Attorney General v. X

The Attorney General

Plaintiff

and

X. and Others

Defendants

[1992 No. 846P]

High Court

Supreme Court

Supreme Court

Constitution - Personal rights - Right to life - Unborn - Abortion outside jurisdiction - Avowed intention - Mother - Injunction restraining exit - Right to travel - Liberty - Risk to life - "Due regard" - Suicide - Magnitude of risk - Balance - Offences Against the Person Act, 1861 (24 & 25 Vict., c. 100), s. 58 - Civil Liability Act, 1961 (No. 41) s. 58 - Constitution of Ireland, 1937, Article 40, s. 3, sub-s. 3.

European Communities - Free movement - Services - Recipient - Travel - Service lawful in arrival but not departure State - Whether right to travel to receive service - Public policy - Derogation - Criteria - Proportionality - Council Directive 73/148/EEC - Treaty of the European Economic Community, 1957, Articles 48, 59, 60.

Injunction - Permanent - Criteria - Supervision - Enforcement - Extra-territoriality - Practicability - Discretion.

Article 40, s. 3, sub-s. 3 as inserted by the Eighth Amendment to 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 first defendant, a fourteen year old school girl, discovered she was pregnant as the result of an alleged rape. The gardaí were informed of the matter. The girl and her parents concluded that the best course to adopt in relation to the girl's circumstances was to travel to England and obtain an abortion there. The parents informed the gardaí of this proposed course and also raised with them the possibility of having scientific tests carried out on die foetus for the purpose of ascertaining the identity of the father. A legal opinion was sought by the gardaí on to the admissibility of such evidence from the Director of Public Prosecutions. The Director of Public Prosecutions informed the Attorney General of the matter. On the next day the Attorney General obtained interim injunctions in the High Court restraining the girl and her parents from interfering with the right to life of the unborn; restraining the same defendants from leaving the jurisdiction for nine months; and restraining them from procuring or arranging an abortion within or outside the jurisdiction. When notice of the making of such orders reached the defendants in England, they cancelled the arrangements for the abortion and returned to Ireland and contested the motion for interlocutory injunctions on the grounds that they had a right to travel from the jurisdiction to do what was lawful elsewhere; that the mother's right to life was itself in peril; and that such injunctions were unprecedented and ought not to have been granted. The motion was then treated by consent as the full trial and the defendants led oral testimony from inter alia a senior psychologist to the effect that, in view of the girl's threatened intentions, there was a risk that she might commit suicide.

Held by Costello J., in granting the permanent injunctions sought, 1, that the court's duty to defend and vindicate the right to life of the unborn was imposed by the clear rule of law of Article 40, s. 3, sub-s. 3 of the Constitution, notwithstanding that no law had yet been passed by the Oireachtas in implementation of that provision.

The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd. [1988] I.R. 593 applied.

2. That in the instant case the court had a duty to protect the girl from danger arising not only from the actions of others but also from her own actions.

3. That there was a real and imminent danger to the life of the unborn if the permanent injunctions were not granted, but that the risk that the girl might take her own life if the injunctions were granted was of a less and different order of magnitude than the otherwise certain death of the unborn.

4. That the defendants' contentions that the girl's right to liberty was being unlawfully infringed were unfounded since the court had power to restrain the abuse of a constitutional right when exercised for the purposes of committing a wrong notwithstanding the necessary curtailment of such constitutional right.

The People v. O'Callaghan [1966] I.R. 501 and Ryan v. Director of Public Prosecutions[1989] I.R. 399 distinguished.

5. That, as a matter of European Community law, the defendants had a prima facie right under Article 59 establishing the Treaty of the European Economic Community to travel to another Member State to receive a service consisting of medical termination of pregnancy performed in accordance with the law of that Member State.

• S.P.U.C. v. Grogan (No. 2) Case 159/90 [1991] 3 C.M.L.R. 849 and Luisi and Carbone v. Ministero del Tesoro Cases 286/82 and 26/83 [1984] 1 E.C.R. 377 applied.

6. That in ruling upon Ireland's powers of derogating on the grounds of public policy from the right to travel to receive services implicit in Article 59 the court could properly note that that concept of public policy might vary from one country to another and from one period to another and that each Member State was allowed an area of discretion within the limits of the Treaty and its implementing provisions and that the Eighth Amendment incorporated into Article 40, s. 3, sub-s. 3 of the Constitution was clearly an expression arising from deeply held moral convictions of that public policy.

Regina v. Bouchereau Case 30/77 [1977] E.C.R. 1999 applied.

7. That the derogation by Ireland on this issue did not infringe European Community law which recognised that wide cultural differences existed throughout the Community and permitted derogations arising therefrom and, moreover, the attainment of the fundamental objectives of the Treaty was enhanced by laws assisting the development of that Community in which legitimate differences on moral issues were recognised without seeking to impose a spurious or divisive uniformity on such issues.

8. That upon further examination of the development of European Community law, including its incorporation of the jurisprudence of the European Court of Human Rights, the measure taken by Ireland to protect the unborn in this case, viz. restraining the defendants from travelling abroad, was not disproportionate to the necessary achievement of that public policy derogation.

The defendants appealed from the judgment and order of the High Court. In the Supreme Court counsel for the Attorney General conceded that on the facts the injunction restraining the defendants from leaving the jurisdiction for nine months was too wide and should be varied to restrain them from travelling abroad for the purposes of abortion. Counsel further conceded that the Eighth Amendment envisaged lawful abortion in the jurisdiction but only where the mother's life was in imminent and inevitable danger of death.

Held by the Supreme Court (Finlay C.J., McCarthy, O'Flaherty and Egan JJ.: Hederman J. dissenting) in allowing the appeal and discharging the injunctions, 1, (Hederman J. concurring) that the Attorney General had properly exercised his duties in the performance of his office in bringing the matter before the High Court.

Dictum of Finlay C.J. in The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd.[1988] I.R. 593 at 623 applied.

2. (Hederman J. concurring): That notwithstanding the absence of "laws" enacted by the Oireachtas, Article 40, s. 3, sub-s. 3 of the Constitution itself provided its own clear rule of law authorising the courts, as organs of the State, to defend and vindicate the constitutional rights guaranteed by the Article.

The State (Quinn) v. Ryan [1965] I.R. 70; The People v. Shaw[1982] I.R. 1 and The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd.[1988] I.R. 593 considered.

3. (Hederman J. concurring): That the Constitution requires that its provisions be interpreted harmoniously and that the rights thereby guaranteed be interpreted in concert. Where a conflict of rights in any case cannot be avoided, a changing hierarchy of rights was envisaged, headed generally by the right to life, the destruction of which right was irreversible.

McGee v. Attorney General [1974] I.R. 284 and The State (Healy) v. Donoghue[1976] I.R. 325 and The People v. Shaw[1982] I.R. 1 followed.

4. (Hederman J. dissenting): That the true interpretation of Article 40, s. 3, sub-s. 3 of the Constitution required that termination of pregnancy was permissible only when it was established as a matter of probability that there was a real and substantial risk to the life of the mother if such termination were not effected. To prevent termination except in circumstances where there was a risk of immediate or inevitable death of the mother did not sufficiently vindicate the right to life of the mother.

McGee v. The Attorney General [1974] I.R. 284 and The State (Healy) v. Donoghue[1976] I.R. 325 applied; Rex v. Bourne[1939] 1 K.B. 687 considered.

Per Hederman J. The evidence required to justify a termination of pregnancy must be of such a weight and cogency as to leave open no other conclusion but that the consequences of the continuance of the pregnancy will, to an extremely high degree of probability, cost the mother her life and medical evidence must be based on the most competent medical opinion available. In the instant case the evidence adduced fell short of this standard.

5. (Hederman J. dissenting): That the risks to the life of the mother which should be considered by the Court included a real and substantial risk that the mother might commit suicide.

Per Finlay C.J., Hederman and Egan JJ.: That, notwithstanding the difficulties in proofs, supervision or enforcement and the likelihood of widespread evasion of any such injunctions, Article 40, s. 3, sub-s. 3 required the courts in proper cases and upon the exercise, as far as...