Murray and Murray v Ireland

• Jurisdiction: Ireland
• Judge: FINLAY C.J.,McCarthy J.
• Judgment Date: 14 February 1991
• Neutral Citation: 1991 WJSC-SC 999
• Court: Supreme Court
• Date: 14 February 1991

1991 WJSC-SC 999

THE SUPREME COURT

Finlay J.

Hamilton P.

McCarthy J.

O'Flaherty J.

Keane J.

240/85

MURRAY v. IRELAND & AG

MARIE MURRAY AND NOEL MURRAY

Plaintiffs/

Appellants

and

IRELAND AND THE ATTORNEY GENERAL

Defendants

Citations:

CONSTITUTION ART 40

CONSTITUTION ART 41

DPP V TIERNAN 1989 ILRM 149

N (ORSE K) V K 1985 IR 733

MCGEE V AG 1974 IR 284

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.4.1

DPP V SHAW 1982 IR 1

SPUC, AG V OPEN DOOR COUNSELLING LTD 1987 ILRM 477

CONSTITUTION ART 13.6

CONSTITUTION ART 16

Synopsis:

CONSTITUTION

Organs of State

Powers - Separation - Conviction - Imprisonment - Conditions - Regulation - Executive function - Prisoner serving term of imprisonment for life - Claim of right to beget children - (240/85 - Supreme Court - 14/2/91) - [1991] ILRM 465

|Murray v. Ireland|

CONSTITUTION

Personal rights

Procreation - Prisoners - Married couple - Childless couple - Convictions for murder - Each sentenced to imprisonment for life - Suspension of right - Wife aged 37 years - Appeal - Further evidence - Disallowance - Sentence of imprisonment - Conditions of imprisonment - Regulation - Executive function of Government - Supervision by Courts- Constitution of Ireland, 1937, Articles 13, 40, 41 - (240/85 - Supreme Court - 14/2/91) - [1991] ILRM 465

|Murray v. Ireland|

CRIMINAL LAW

Trial

Conclusion - Sentence - Imprisonment - Conditions - Regulation - Executive function - Prisoner serving term of imprisonment for life - Claim of right to beget children - (240/85 - Supreme Court - 14/2/91) - [1991] ILRM 465

|Murray v. Ireland|

1 JUDGMENT delivered on the 14th day of February 1991by FINLAY C.J. [Hamilton P., O'Flaherty J. Keane J. agr]

2 This is an appeal by the Plaintiffs who are husband and wife, against an order dismissing their claim for certain declarations, which order was made by Costello J. in the High Court on the 2nd July 1985.

Facts found by the High Court

3 The following facts relevant to the issues of law arising were found as primary findings of fact on oral evidence by the learned trial Judge and are not the subject matter of any appeal to this Court. They are:

4 1. The Plaintiffs are husband and wife and each was found guilty of having murdered a member of the Garda Siochana and eventually convicted of non-capital murder, and each was at the time of the trial in the High Court serving a sentence of penal servitude for life, and had not been granted any temporary release.

5 2. The Plaintiffs were permitted by the prison authorities to meet regularly in visits which were strictly supervised, but the ordinary intimacies of married life were not permitted to them.

6 3. The Plaintiffs were married in August 1973 and lived together until they were arrested in October 1975. Due to what they stated was their deliberate decision, no child was conceived during thatperiod.

7 4. The Plaintiffs in evidence stated a desire to have two or threechildren.

8 5. Mrs. Murray was born in October 1948, and at the time of the trial before Costello J. in the High Court, was 36 years of age.

9 6. Medical evidence was given that Mrs. Murray was capable of having a child but that a woman's fertility declines rapidly after the age of 35 and that after the age of 45 the chances of a married couple conceiving a child are very low indeed. Certain evidence was also given with regard to the risk of conceiving a mongoloid child increasing with the age of the mother.

10 7. At the date of the trial the prison population in the State was approximately 1,900, of which between 1,100 and 1,200 were marriedpersons.

11 8. Though it is not an express finding of the learned trial Judge in his judgment, the evidence given by Mr. Cole of the Prisons Sections of the Department of Justice, upon which the findings with regard to prison population were made, included evidencethat there were fifty women in the prison population at the time of the trial, and of these five to six were married.

12 9. At the time of trial the prison authorities only permitted the visits between the two Plaintiffs to take place in the presence and the hearing of prison officers and evidence was given that this was for security reasons.

Application to this Court to consider further facts

13 Counsel on behalf of the Plaintiffs sought to have considered as facts matters which he stated, without any affidavit or other form of proof, and which he submitted were material to the consideration of this appeal at this time.

14 Counsel on behalf of the Respondents objected to the admission of any new evidence.

15 The matters in respect of which these facts were stated by Counsel on behalf of the Appellant were the question as to whether the Plaintiff Marie Murray wasstill capable of bearing a child (which was submitted to the Court merely as a matter of instructions received); the question of the form of interviews permitted within the prison at present between the two Plaintiffs and the fact that the two Plaintiffs had received a temporary release last Christmas for a period of two and a half days.

16 With regard to this application which I am satisfied must be refused, certain facts concerning the course of these proceedings would appear to be relevant.

17 The proceedings were commenced by Summons dated July 1981.

18 They were not brought to trial in the High Court until May 1985, and judgment was delivered in them, having been reserved on the 2nd July 1985. The papers necessary for the hearing of this appeal in the High Court were not completed until June 1989, and the first application for priority in the list of this Court was made in the Michaelmas Term of 1990 when a hearing inJanuary 1991 was provided.

19 There is no explanation of the delay by the Appellants between 1985 and 1989, or indeed of the delay in seeking priority in the list of this Court, and no attempt was made during that period to bring before the Court any motion to adduce further or up-to-date evidence relevant to the appeal.

20 The clear procedure of this Court and of the Rules of the Superior Courts indicates that such an application can be made in any case where justice requires it. It must, of course, be made on notice to the respondent in the appeal and he may, if appropriate, be given liberty to adduce further evidence also.

21 I am quite satisfied that it would be inconsistent with a fair procedure for the Court to accept, as was requested on the hearing of this appeal, statements by Counsel as to facts which had occurred since 1985, without the consent of the Respondent and in the absence of giving to the Respondent an opportunity of updatingevidence concerning prison conditions which was given over five yearsago.

22 In these circumstances I am satisfied that this appeal must be determined on the basis which is, of course, the usual basis of appeals, as to whether upon the facts found by him and accepted as being properly found by him, the learned trial Judge was correct in law in the decision which he reached.

Grounds of appeal

23 In the notice of appeal filed on behalf of the Appellants a number of grounds were set out. Three only of these grounds were pursued on the hearing before this Court, and they are as follows:

"That the learned trial Judge misdirected himself in law and in fact, and in a mixture of law and facts"

(4) In holding expressly or by necessary implication that the right of the Plaintiffs/Appellants to beget children outside of prison, whether on parole or on temporary release or otherwise, is incompatible with the restriction on their liberty.

(5) In holding expressly or by necessary implication that the denial of the exercise of the Plaintiffs/Appellants' right to beget children is determined by the demands of the prison service.

(6) In holding expressly or by necessary implication that the denial of the exercise of the Plaintiffs/Appellants' right to beget children is determined by the security requirements of the prison in which they areheld."

The decision in the High Court

24 In summary, the decision of Costello J. in the High Court dismissing the claim of the Plaintiffs to declarations of their entitlement for opportunities whilst serving these sentences to exercise conjugal rights in order to beget children was as follows:

25 1. The Constitution by explicitly recognising and protecting the concept of the institution of marriage implicitly recognises and protects the right of each spouse in marriage to beget children.

26 2. That right obtains its protection from Art. 40 of the Constitution and not, as was contended by thePlaintiffs, from Art. 41.

27 3. The right asserted is one to which each spouse to a lawful marriage is entitled, and it follows that it is an irrelevent factor that in this case both spouses happen to be in prison. The right to beget children which each spouse enjoys would be restricted by the imprisoment of either Plaintiff.

28 4. The Plaintiffs through their Counsel expressly conceded that the rights they claim may in certain circumstances be validly restricted by the State and have accepted that not every married prisoner undergoing sentence can justifiably demand liberty to exercise it.

29 5. When the State lawfully exercises its power to deprive a citizen of his constitutional rights to liberty many consequences result, including the deprivation of liberty to exercise many other constitutionally protected rights, which prisoners must accept. Those rights which may be exercisedby a prisoner are those

30 (a) which do not depend on the continuance of his personal liberty (so a prisoner cannot exercise his constitutional right to earn a livelihood) or

31 (b) which are compatible with the reasonable requirements of the place in which he is imprisoned or, to put it in another way, do not impose unreasonable demands on it.

32 6. As the Plaintiffs" claim that they be permitted to leave prison from time to time to exercise their...