McNally and Another v Ireland and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 17 December 2009
• Neutral Citation: [2009] IEHC 573
• Docket Number: [2009 No. 7844 P]
• Date: 17 December 2009

McNally & Reilly v Ireland & Ors

BETWEEN/

THOMAS McNALLY AND MARIE REILLY

PLAINTIFFS

AND

IRELAND, THE ATTORNEY GENERAL, MINISTER OF STATE FOR COMMUNITY, RURAL AND GAELTACHT AFFAIRS AND THE GARDA COMMISSIONER

RESPONDENTS

[2009] IEHC 573

[No. 7844 P./2009]

THE HIGH COURT

CONSTITUTION

Religion

Freedom of religious practice - Recognition of religious denomination - Whether impugned section discriminates in religious way - Whether discrimination between persons on grounds of religious profession or belief - Whether creating preferential distinction in favour of Roman Catholic church - Interpretation - Presumption of constitutionality - Persuasive value of foreign authority - Whether foreign constitutional provisions "sufficiently comparable" - Whether foreign authority "authoritative" in representing settled law - Presumption of innocence - Doctrine of proportionality - Whether onus of proof reversed - Curtin v Dáil Éireann [2006] IESC 14, [2006] 2 IR 556, People (DPP) v Kelly [2006] IESC 20, [2006] 3 IR 115, McGrath and Ó Ruairc v Trustees of the College of Maynooth [1979] ILRM 166, O'Leary v Attorney General [1995] 1 IR 254 and Mulloy v Minister for Education [1975] IR 88 applied - Charities Act 2009 (No 6), ss10 and 99 - Constitution of Ireland, 1937, Articles 38.1, 44.2.1, 44.2.3 and 44.2.5 - Claim dismissed (2009/7844P - MacMenamin J - 17/12/2009) [2009] IEHC 573

McNally v Ireland

EUROPEAN UNION

Products

Technical standards of products - Industrially manufactured product - Whether impugned section affected product - Whether selling Mass cards "technical specification" - Commission v Germany (Case C-317/92) [1994] ECR I-02039, Commission v Netherlands (Case C-52/93) [1994] ECR I-03591 and Criminal Proceedings against Lars Erik Staffan Lindberg (Case C-267/03) [2005] ECR I-03247 distinguished - Council Directive 98/34/EC - Council Directive 98/48/EC - Claim dismissed (2009/7844P - MacMenamin J - 17/12/2009) [2009] IEHC 573

McNally v Ireland

Facts: The plaintiff sought to challenge the validity of s. 99 of the Charities Act 2009. S. 99 rendered it an offence to sell Mass cards which were not the subject of an arrangement made with a bishop or order of priests of the Roman Catholic Church and the offence attracted penalties (pursuant to s. 20 thereof) of €300,000 and ten years imprisonment. The plaintiff ran a major enterprise which engaged in the business of distribution and sale of Mass cards, unsigned and pre-signed. The plaintiff alleged that s. 99 was inter alia valid on three grounds, namely on competition grounds, on product grounds and constitutional grounds. He asserted that it was unconstitutionally vague and disproportionate in breach of Article 38 and in violation of the terms of Article 44, infringing freedom of religious practice. The plaintiff contended in particular that s. 99 interfered with the plaintiff's free profession and practice of religion as guaranteed in Article 44.2.1. The plaintiff also argued that a Mass card was an industrially manufactured product for the purposes of Directive 98/34/ EC and Directive 98/48/EC. The issue arose as to whether there was unjustifiable preferential discrimination pursuant to Article 44.2.3 and whether the plaintiff had locus standi for the claims advanced or whether he was invoking jus tertii. The plaintiff also contended that s. 99 reversed the onus of proof, was unjustifiably vague and arbitrary and attracted a disproportionate penalty, in breach of Article 38 of the Constitution.

Held by MacMenamin J. that this was a secular issue of public order albeit having a religious aspect. The claims as to Articles 81, 82 and 86 EC failed and would be dismissed. As to the product claim, the directives dealt with product specification, i.e. the thing sold and not the person selling it. The Directives invoked were not relevant to the immediate facts. The provisions of s. 99 were quite distinct and was not a technical regulation governing the marketing of Mass cards but those who would market them. The sub-clauses of Article 44 had to be interpreted harmoniously. The US jurisprudence was not relevant to the Irish context, as it was possible for the State to justifiably lend its weight to the support of one denomination. The claim of the plaintiff as to Article 44.2.1 could not succeed as he lacked locus standi to invoke jus tertii. There was no evidence of negative discrimination pursuant to Article 44.2.3 and the plaintiff and his business were not a religious denomination, group or sect. Positive discrimination was possible but was not prejudicial where the status of a priest or organized religion was advanced justifiably over a lay person or business. The claims as to Article 38 failed in so far as reasonably consumers could be deluded easily by misrepresentations and bogus Mass cards and so the onus of proof was important in that the information necessary for a prosecution would be peculiarly within the knowledge of an accused. The section was not unconstitutionally vague and the penalty, while large, was appropriate as a sanction against the reprehensible operation of a bogus charity.

Reporter: E.F.

CHARITIES ACT 2009 (COMMENCEMENT) ORDER SI 284/2009

CHARITIES ACT 2009 S2

CHARITIES ACT 2009 S5

CHARITIES ACT 2009 S10

CHARITIES ACT 2009 S99

EC TREATY ART 81

EC TREATY ART 82

EC TREATY ART 86

CONSTITUTION ART 38

CONSTITUTION ART 40.3

CONSTITUTION ART 40.6

CONSTITUTION ART 44

CARMODY v MIN FOR JUSTICE & ORS UNREP SUPREME 23.10.2009 2009 IESC 71

OXFORD ENGLISH DICTIONARY 2ED

CONSTITUTION ART 44.2.1

CONSTITUTION ART 44.2.3

EEC DIR 1998/48

EEC DIR 1998/34 ART (1)

EEC DIR 1998/34 ART1(3)

EEC DIR 1998/34 ART 10

EEC DIR 1998/34 ART 2(1) ANNEXE 1

EEC DIR 1998/34 ART 2(1) ANNEXE 2

EEC DIR 1983/189

COMMISSION OF EUROPEAN COMMUNITIES v FEDERAL REPUBLIC OF GERMANY ECR 1994 I.02039

COMMISSION v KINGDOM OF THE NETHERLANDS 1994 ECR I-03591

LINDBERG 2005 ECR 1-3247

CAMPAIGN TO SEPARATE CHURCH & STATE IN IRELAND v MIN FOR EDUCATION & ORS 1998 3 IR 321

WALLACE v JAFFREE 1985 472 US 38

LEE v WEISMAN 1992 505 US 1992 505 US 577

ROSSENBERGER v RECTORS & VISITORS OF THE UNIVERSITY OF VIRGINIA 1995 515 US 819

ABINGTON SCHOOL DISTRICT v SCHEMPP 1963 374 US 203

QUINN SUPERMARKET v AG 1972 1 IR

CURTIN v DAIL EIREANN 2006 2 IR 556 2006 2 ILRM 99 2006 IESC 14

DPP PEOPLE v KELLY 2006 3 IR 115 2006 2 ILRM 321 2006 IESC 20

LARKIN v GRENDELS DEN INC 459 US 116

BARGHOUT v BUREAU OF KOSHER MEAT 1995 66F 3D 1337 4TH CIR.1995

COMMACK SELF-SERVICE KOSHER MEATS INC v WEISS 2002 294 F 3D 415

LEMON v KURTZMAN 1971 403 US 602

LYNCH v DONNELLY 1984 465 US 668

COUNTY OF ALLEGHENY v ACLU 1989 492 US 573

SULLIVAN & GUNTER CONSTITUTIONAL LAW 15ED FOUNDATION PRESS NEW YORK 2004 PP 1546-1547

CONSTITUTION ART 44.2.2

KEOGH & MCCARTHY MAKING OF THE IRISH CONSTITUTION MERCIER PRESS 2007 CH 6

CORWAY v INDEPENDENT NEWSPAPERS (IRL) 1999 4 IR 484

MCDONAGH PHILOSOPHICAL-THEOLOGICAL REFLECTIONS ON THE CONSTITUTION

LITTON CONSTITUTION OF IRELAND 1937-1987 INSTITUTE OF PUBLIC ADMINISTRATION 1988

CONSTITUTION ART 44.2.4

CONSTITUTION ART 44.2.5

CONSTITUTION ART 44.2.6

CONSTITUTION ART 44.1

CONSTITUTION ART 40.1

CONSTITUTION ART 26

O'RUAIRC v MAYNOOTH COLLEGE 1979 ILRM 166

EMPLOYMENT EQUALITY BILL, RE ARTICLE 26 1997 2 IR 321

CORPORATION OF PRESIDING BISHOPS v AMOS 1987 483 US 327

MULLOY v MIN FOR EDUCATION 1975 IR 88

BRADY CONSTITUTIONAL LAW IN IRELAND 3ED ROUND HALL 2000

CAHILL v SUTTON 1980 IR 269

CIVIL REGISTRATION ACT 2004 S49

REGISTATION OF MARRIAGES (IRELAND) ACT 1863 S11

O'LEARY v AG 1993 1 IR 102

OFFENCES AGAINST THE STATE ACT 1939 S24

OFFENCES AGAINST THE STATE ACT 1939 S21

OFFENCES AGAINST THE STATE ACT 1939 S12

OFFENCES AGAINST THE STATE ACT 1939 S24

MONTEMUINO v MIN FOR COMMUNICATIONS & ORS UNREP FEENEY 30.5.2008 2008 IEHC 157

WHELAN v MIN FOR JUSTICE & ORS 2008 2 IR 148

1 Mr. Justice John MacMenamin dated 17th day of December, 2009.

2 1. On 28 ^th July, 2009, the third defendant ("the Minister") promulgated the Charities Act 2009 (Commencement) Order 2009 [S.I. No. 284 of 2009]. This commenced in effect the provisions of ss. 2, 5, 10 and 99 of the Charities Act 2009 ("The 2009 Act" or "The Act") as from 1 ^st September, 2009.

3 2. As identified in the preamble, the 2009 Act was introduced for the purpose of better regulating charitable organisations. The Act provides for the establishment of a body known as An t Údarás Rialála Carthanas (The Charities Regulatory Authority) to fulfil a regulatory and supervisory role to achieve this aim. The intent of the legislature is, inter alia, to ensure that charitable donations from the public are devoted to their intended objects, and to counteract the activities of bogus charitable organisations.

4 3. Section 99 of the Act is impugned in these proceedings. The effect of that section is to render it an offence to sell Mass cards which are not the subject of an "arrangement" made with a bishop or the provincial of an order of priests of the Roman Catholic Church. A Mass card conveys the message that a Mass will be celebrated by a Roman Catholic priest for an intention stipulated by the purchaser or donor. The section is best seen as being intended for the protection of consumers.

The plaintiffs

5 4. Thomas McNally, the first named plaintiff, is engaged in the business of the distribution and sale of Mass cards. He buys these wholesale from printers. He trades under the name "MCC". He sells cards of various descriptions to retailers such as newsagents, grocery shops and supermarkets. He is one of the major commercial distributors of Mass cards in the State. He contends that the effect of section 99 will be detrimental to his business. He says there has already been adverse publicity with regard to the effect of...