Irish Family Planning Association v Ryan

Judgment Date27 July 1978
Neutral Citation1978 WJSC-SC 2834
Date27 July 1978
Docket Number(198-77),[1976 No. 5622P.]
CourtSupreme Court

1978 WJSC-SC 2834



O'Higgins C.J.

Henchy J.

Griffin J.

Kenny J.

Parke J.




JUDGMENT delivered the 27th day of July 1978by O'HIGGINS C.J.(Henchy, Griffin and Parke concurring


This is an Appeal brought by the Defendants against the Judgment and Order of Mr. Justice Hamilton made in this matter on the 1st day of July 1977. The first-named Plaintiff is a company concerned with family planning in Ireland, and the second-named Plaintiff is a director of that company and a medical practitioner engaged in general practice. The first five Defendants are the members of the Censorship of Publications Board (hereinafter referred to as "the Board") established under the Censorship of Publications Acts. The other two Defendants are joined in the proceedings because of the questions raised. The Board having on the 24th November 1976 prohibited on the grounds that it was "indecent or obscene" a book entitled"Family Planning" published by the Plaintiff Company this action was commenced. In this action the Plaintiffs sought declarations that the proceedings of the Board in relation to the said Prohibition Order were irregular, ultra vires and unconstitutional, that the Order was of no force and effect, and that sections 6 and 7 of the Censorship of Publications Act were repugnant to the Constitution. In support of this claim it was urged before the learned trial Judge


1. That having regard to the contents of the book in question the Board could not, acting reasonably, have concluded that it was obscene or indecent,


2. That in declaring the book to be indecent or obscene the Prohibition Order contained a lack of precision which was fatal to itsvalidity,


3. That the Order should not have been made without affording the Plaintiffs an opportunity of being heard, and


4. That even if the procedure followed was permitted by sections 6 and 7 of the Censorship of Publication Act 1946those sections were repugnant to the Constitution.


The learned trial Judge having heard these submissions came to the conclusion that the claim could be decided and disposed of on the basis, as was admitted, that prior to making the Order the Board had not communicated with or heard the Plaintiffs. He had regard to the provisions of section 6(3) of the Censorship of Publication Act 1946which provides as follows:

"(3) When examining a book under this section, the Censorship Board may communicate with the author, editor or publisher of the book and may take into account any representation made by him in relationthereto."


With this sub-section in mind the learned trial Judge said asfollows:

"They are by the Act given power to communicate with the author, editor or publisher of the book and to take into account any representations made by him in relation thereto. I fail to see how they could exercise their powers fairly and judicially in accordance with the principles of natural justice if they failed to notify the author, editor or publisher of the fact that the book is being examined and to afford him an opportunity of making representations in relation thereto prior to the making of an order by them which would affecttheirrights in relation to the said book. I consider that in the purported exercise by the Censorship Board of the powers granted to them by section 7 of the Act they failed to have regard to the canons of fair and judicial procedure as laid down by the Supreme Court in EastDonegal Co-Operative Livestock Marts Limited v. The AttorneyGeneral 1970 Irish Reports page 317."


Accordingly he made a declaration that the Prohibition Order in question was null and void. He did not feel it necessary to deal with the question of constitutionality or the other matters raised by the Plaintiffs. Against his decision this Appeal has been brought.


In the circumstances this Appeal relates only to the limited field covered by the trial Judge in his Judgment. He held that the Board before making a prohibition order were bound to notify the author, editor or publisher of the book in question that it was being examined and were bound to afford these people an opportunity of making representations He felt himself driven to this conclusion by the decision of this Court in the East Donegal Co-Operative LivestockMarts case. The question to be decided in this Appeal, therefore, is whether the sub-section in question ismandatory on the Board as the Judge held, or whether it gives to the Board a discretion as to whether it will in fact communicate in the manner provided for by the sub-section.


I have come to the clear conclusion that the sub-section is not mandatory and that a discretion is conferred on the Board to avail or not to avail of the powers thereby given. One might have thought that representations made by the author, editor or publisher as a result of a communication from the Board could have been regarded as a relevant matter by the Board under the provisions of sub-section (2) paragraph (e). This paragraph of sub-section (2) entitles the Board, when examining a book under section 6, to have regard to

"(e) Any other matter relating to the book which appears to them to be relevant."


The fact that the Oireachtas provided especially for a power to communicate with the author, editor or publisher, and only with these, and to take into account any representation made by them, seems to me to indicate that an additional power was thereby being conferred. Oncethepower is additional it must, logically, be discretionary, in so far as its exercise, is concerned. This interpretation is, I think, made quite clear by the use of the word "may" simpliciter in thesub-section.


I am, therefore, of the opinion that the learned trial Judge erred in construing the sub-section as imposing on the Board the obligation in all cases to give notice to and to communicate with the author, editor or publisher of a book being examined.


I feel, however, that something more should be said. The learned trial Judge was quite correct in having regard to the nature of the legislation which he was asked to construe. The Censorship of Publications Act 1946is a post-Constitution statute. Accordingly it is presumed to be constitutional. As has been pointed out by this Court on previous occasions East Donegal Co-Operative Livestock Marts Ltd. v. The Attorney General & Ors. 1970 I.R. at p. 317: Loftus v. The Attorney General & Ors. (at present unreported)] this presumption of constitutionality carries with it the consequent presumption that powers of adiscretionary nature conferred by the statute in question are not intended to be arbitrary powers and are only exercisable in a constitutional manner. It is only when the clear words of the statute exclude this presumption that the statute's unconstitutionality arises. Here, there being, in my view, a discretionary power, and there being nothing in the statute to exclude the presumption which I have mentioned, the intention is that this power must be exercised in a manner which is just and fair. This requires, at the very least, an exercise of the power, at a time and in circumstances, in which it is fair and proper to do so. A prohibition order carries with it the inevitable implication that those responsible for the publication have been guilty of conduct deserving of public condemnation and probably have also been guilty of a criminal offence.


In such circumstances when is it fair and proper to exercise this additional and discretionary power? Obviously the Board's main concern must be to prohibit "the sale and distribution of unwholesome literature". This is the objectof the Acts as expressed in the long title to the Censorship of Publications Act 1929. It follows that the exercise of this power must be subject to the achievement of the overriding object of the statutes and that it should not be exercised in such a manner and in such circumstances as to render this object unattainable. No clear or precise guide-line is possible because the facts and surrounding circumstances in each particular case ought to indicate whether fairness and justice require communication with the author, editor or publisher of the particular publication under examination. Where the publication is clearly indecent or obscene such communication would be pointless and indeed to exercise the powers given to the Board under Section 6(3) would in relation to such a publication defeat the very object of the statutes. Again where the editor, author or publisher cannot be traced or contacted, or where to attempt to do so would lead to undue delay, then the exercise of this discretionary power would, not only be not called for, but would be clearly wrong and improper. Where, however, no question of the publication being manifestly obscene orindecent arises and where fair questions or points of view arise in relation to the matters to be regarded under Section 6(2) then, in my view, the Board should consider the appropriateness of exercising its power to communicate with the author, editor or publisher and to consider what they may have to say. I accept that the vast majority of publications dealt with by the Board consist of books and periodicals of an obvious pornographic and obscene nature. These generally emanate from authors and publishers who specialise in this form of writing. In such cases, a swift and clear exercise of the powers to prohibit sale and distribution, without any communication or notice, is required - for this is the very object and purpose of the statute. The discretionary power, however, to communicate with those responsible for a...

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