Attorney General v X

JurisdictionIreland
CourtSupreme Court
Judgment Date05 Mar 1992
Docket Number[1992 No. 846P]

High Court

Supreme Court

Supreme Court

[1992 No. 846P]
The Attorney General v. X
The Attorney General
Plaintiff
and
X. and Others
Defendants

Cases mentioned in this report:—

The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd.IRDLRM [1988] I.R. 593; [1987] I.L.R.M. 477.

Avonmore Creameries Ltd. v. An Bord Bainne Co-Operative Ltd.(Unreported, Supreme Court, 21st March, 1991).

Cowan v. Trésor PubliqueECASUNKUNK Case 186/87 [1989] E.C.R. 195; [1990] 2 C.M.L.R. 613.

In re the Criminal Law Jurisdiction Bill, 1975IRDLTR [1977] I.R. 129; (1976) 110 I.L.T.R. 69.

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

In re the Electoral (Amendment) Bill, 1961IR [1961] I.R. 169.

Ellis v. O'DeaIRDLRM [1989] I.R. 530; [1990] I.L.R.M. 87.

Finucane v. McMahonIR [1990] 1 I.R. 165.

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

Lennon v. GanlyDLRM [1981] I.L.R.M. 84.

Lett v. LettIR [1906] 1 I.R. 618

Luisi and Carbone v. Ministero del TesoroECASUNKUNK Cases 286/82 and 26/83 [1984] 1 E.C.R. 377; [1985] 3 C.M.L.R. 52.

Kutchera v. Buckingham International Holdings Ltd.IRDLRM [1988] I.R. 61; [1988] I.L.R.M. 1.

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

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

O'Donovan v. The Attorney GeneralIRDLTR [1961] I.R. 114; (1962) 96 I.L.T.R. 121.

In re the Offences Against the State (Amendment) Bill, 1940IR [1940] I.R. 470.

The People (Attorney General) v. Moscow (Unreported, Court of Criminal Appeal, 19th July, 1950).

The People (Attorney General) v. O'BrienIR [1965] I.R. 142.

The People v. O'CallaghanIR [1966] I.R. 501.

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

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

Quinn's Supermarket v. The Attorney GeneralIRDLTR [1972] I.R. 1; (1969) 104 I.L.T.R. 13.

Regina v. BouchereauECASUNKUNKELRWLRUNK Case 30/77 [1977] E.C.R. 1999; [1977] 2 C.M.L.R. 800; [1978] Q.B. 732; [1978] 2 W.L.R. 250; [1981] 2 All E.R. 924.

Rex v. BourneELRUNK [1939] 1 K.B. 687; [1938] 3 All E.R. 615.

Ryan v. The Attorney GeneralIR [1965] I.R. 294.

Ryan v. Director of Public ProsecutionsIRDLRM [1989] I.R. 399; [1989] I.L.R.M. 333.

S.P.U.C. v. CooganIR [1989] I.R. 734.

S.P.U.C. v. GroganIRDLRMUNK [1989] I.R. 783; [1990] I.L.R.M. 350; [1990] 1 C.M.L.R. 689.

S.P.U.C. v. Grogan (No. 2)ECAS Case 159/90 [1991] 3 C.M.L.R. 849.

The State (Browne) v. FeranIR [1967] I.R. 147.

The State (Burke) v. Lennon and The Attorney GeneralIR [1940] I.R. 136.

The State (Director of Public Prosecutions) v. WalshIR [1981] I.R. 412.

The State (Healy) v. DonoghueIRDLTR [1976] I.R. 325; (1976) 110 I.L.T.R. 9.

The State (M.) v. The Attorney GeneralIR [1979] I.R. 73.

The State (Quinn) v. RyanIRDLTR [1965] I.R. 70; (1964) 100 I.L.T.R. 105.

Van Duyn v. Home OfficeECASUNKUNKELRWLRUNKWLRUNK Case 41/74 [1974] E.C.R. 1337; [1975] 1 C.M.L.R. 1; [1975] Ch. 358; [1974] 1 W.L.R. 1107; [1974] 3 All E.R. 178; [1975] 2 W.L.R. 760; [1975] 3 All E.R. 196 E.C.J.

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.

Plenary Summons.

By plenary summons issued on the 6th February, 1992, the Attorney General commenced proceedings against "X" a fourteen year old girl and her parents claiming:—

  1. (a) An order restraining the defendants, their servants or agents, or anyone having knowledge of the order, from interfering with the right to life of the unborn as contained in Article 40, s. 3, sub-s. 3 of the Constitution of Ireland on such terms as to this honourable court shall seem meet and just.

  2. (b) An injunction restraining the first defendant from leaving the jurisdiction of this honourable court or the second and third defendants, their servants or agents, or anyone having knowledge of the said order, from assisting the first defendant to leave the aforesaid jurisdiction for a period of nine months from the date hereof or such other period as may be specified by this honourable court.

  3. (c) An order restraining the first defendant, her servants or agents, or anyone having knowledge of the said order, from procuring or arranging a termination of pregnancy or abortion whether within or without the jurisdiction of this honourable court.

On the same day the Attorney General applied to the High Court (Costello J.) and was granted interim orders in those terms effective until and returnable for the 10th February, 1992, when an application for interlocutory orders was listed for hearing. By agreement between the parties, at the suggestion of the court, the hearing of the motion was treated as the hearing of the action and was heard on affidavit and on oral evidence.

The application was heard by the High Court (Costello J.) on the 10th and 11th February, 1991.

By notice of appeal of the 21st February, 1992, the defendants appealed from the judgment and order of the High Court to the Supreme Court. (Finlay C.J.; Hederman, McCarthy, O'Flaherty and Egan JJ.) The appeal in the Supreme Court was heard on 24th, 25th and 26th February, 1992.

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.IR [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'CallaghanIR [1966] I.R. 501 and Ryan v. Director of Public ProsecutionsIR[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.

  1. S.P.U.C. v. Grogan (No. 2)ECAS Case 159/90 [1991] 3 C.M.L.R. 849 and Luisi and Carbone v. Ministero del TesoroECASUNK 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...

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