S.P.U.C. v Grogan (No. 3)

• Jurisdiction: Ireland
• Judge: Mr. Justice Morris
• Judgment Date: 07 August 1992
• Neutral Citation: 1992 WJSC-HC 4224
• Docket Number: 11056p/1989,[1989 No. 11056P]
• Court: High Court
• Date: 07 August 1992

1992 WJSC-HC 4224

THE HIGH COURT

11056p/1989

SPUC v. GROGAN

BETWEEN

THE SOCIETY FOR THE PROTECTION OF UNBORN CHILDREN IRELANDLIMITED

PLAINTIFF

AND

STEPHEN GROGAN & ORS.

DEFENDANTS

Citations:

CONSTITUTION ART 40.3.3

TREATY OF ROME ART 177

CONSTITUTION ART 29.4.3

EUROPEAN COMMUNITY ACT 1977 S2

MURPHY V BORD TELECOM 1988 ILRM 53

CROTTY V AN TAOISEACH 1987 ILRM 400

SPUC, AG V OPEN DOOR COUNSELLING LTD 1988 IR 593

SPUC V GROGAN & ORS 1989 IR 753

SPUC V COOGAN & ORS 1989 IR 734

MAASTRICHT TREATY ART R

LLEWELLYN, STATE V UA DONNCHADHA 1973 IR 151

AG V X UNREP SUPREME 3.5.92

Synopsis:

ACTION

Cause

Issue - Determination - Law - Change - Possibility - Irrelevance - Ratifications of Maastricht Treaty pending - Issue determined in accordance with existing law - (1989/11056 P - Morris J. - 7/8/92) - [1994] 1 I.R. 46

|Society for the Protection of Unborn Children (Ireland) Ltd. v.

Grogan|

CONSTITUTION

Personal rights

Right to life - Human foetus - Protection - Abortion - Information - Access - Rights of women - Prohibition of publication of abortion information - Interlocutory order - Defendant restrained from furnishing abortion information pending decision of Court of Justice - Domestic prohibition validated by Court of Justice - Defendants" breaches of interlocutory injunction - Plaintiff's motion for permanent injunction - Equality before the law - Constitution of Ireland, 1937, Article 40 - (1989/11056 P - Morris J. - 7/8/92) - [1994] 1 I.R. 46

|Society for the Protection of Unborn Children (Ireland) Ltd. v. Grogan|

PRACTICE

Action

Issue - Determination - Law - Change - Possibility - Irrelevance - Ratifications of Maastricht Treaty pending - Issue determined in accordance with existing law - (1989/11056 P - Morris J. - 7/8/92) - [1994] 1 I.R. 46

|Society for the Protection of Unborn Children (Ireland) Ltd. v. Grogan|

1 Judgment delivered by Mr. Justice Morristhe 7th day of August 1992

2 (1)The Plaintiff in this action is a Company limited by guarantee having among its objectives to

"A. To prevent the decriminalization of abortion and the legalisation of the direct killing of the unborn child for any reason whatsoever and the doing of all such other things as are incidental or conducive to the attainment thereof."

3 The first to fourteenth named Defendants are sued in their representative capacity as Officers of the Union of Students of Ireland, of the University College Dublin Students" Union and of the Trinity College Dublin Students" Union. The fifteenth named Defendant has not entered a Defence and was not represented in Court. He is the printer of the material which is the subject-matter of theseproceedings.

4 The Plaintiffs seek

5 2 "1. A declaration that any publication printed published or distributed under the aegis of the Defendants, their servants or agents, which contains information calculated to inform persons (including pregnant women) of the identity and location of and the method of communication with a specified clinic or clinics where abortions are performed is contrary to the provisions of the Constitution of Ireland and in particular Article 40.3.3 thereof.

6 2. An injunction restraining the Defendants their servants or agents or anyone having knowledge of the said Order from printing publishing distributing or assisting in the printing publication or distribution of any publication produced under the aegis of such persons which contains information calculated to inform persons (including pregnant women) of the identity and location of and the method of communication with a specified clinic or clinics where abortions are performed orotherwise.

7 3. An injunction restraining the Defendants their servants or agents or anyone having knowledge of the said Order from printing publishing or distributing or assisting in the printing publication or distribution of any publication advocating the matters aforesaid."

8 To these claims a comprehensive Defence and counterclaim has been delivered by the Defendants. I believethe most convenient way to identify the issues which arise in this action is to state the arguments which have been advanced by the Defendants in the course of their submissions. This, appears to me, to be the appropriate procedure to adopt because this matter has already come before the High Court and also the Supreme Court at a stage where the Plaintiffs were seeking and were granted an Interlocutory Injunction. At that hearing the Supreme Court ruled on a number of issues which arise from the Defence and therefore they no longerarise.

9 The Supreme Court has, in my view, also ruled on some of the arguments that have been advanced by Counsel for the Defence before me.

10 The matter has been the subject-matter of a referral to the European Court of Justice under Article 177 of the Treaty of Rome and Judgment has been given in this matter on the 4th of October 1991.

11 The acts which the Plaintiffs seek to restrain is the publication and distribution of information of the identity and location of and the method of communication with specified abortion clinics in the United Kingdom. This information is contained in the Trinity CollegeStudents" Guide Book and Diary and in the USI News and in the UCD Welfare Guide. These publications were published and distributed by the named Defendants. These facts were accepted by the Defendants and the only qualification which they sought to make was that they only published the names of clinics, in these publications, where a pregnant woman, attending these clinics, would receive counselling and the appropriate examination so as to make the abortion which might be carried out in the clinic lawful within thejurisdiction of the United Kingdom. This is a qualification which does not, in my view, affect the issues that arise in the case.

FACTS ESTABLISHED OR ADMITTED

12 The facts which have been established before me by the Plaintiffs are as follows. It has been established that the first fourteen named Defendants were at the relevant time the Officers of the respectiveStudents" Unions as alleged in the Statement of Claim and the Plaintiffs have also established that the Defendants have published and distributed publications which contain information calculated to inform persons of the identity and location of and the method of communication with specified clinics where abortions are performed. The Defendants have not sought to deny this fact. On the contrary the third named Defendant in evidence not only confirmed this fact but stated that the Defendants continued to distribute the information subsequent to the making of the Supreme Court Order and she said that she proposed to continue to do so notwithstanding any Order which this Court maymake.

13 Accordingly insofar as the evidence before me is concerned the only new relevant facts which have been established other than those contained in the Affidavits filed in Court at the interim stage are as follows.

14 1. That the Defendants have continued to distribute the information notwithstanding the injunction.

15 2. That no payment is made to the Defendants by any of the clinics mentioned in the publication nor is there any association or connection between them.

16 3. That the reference to the European Court of Justice under Section 177 made by the High Court by Order dated the 5th of March 1990 has been heard and determined by theEuropean Court of Justice and Judgment thereon was deliverd on the 4th of October 1991.

17 4. That the Plaintiffs have not sought to have the Defendants committed for their failure to obey the Order of the Supreme Court made herein on the 19th of December 1989.

SUBMISSIONS & ARGUMENTS

18 Counsel for the Defendants made the following submissions which I propose to consider seriatim.

19 (1) Counsel submits that under the Treaty of Rome a right to travel between States is established for the purpose of availing of services within another State. He submits, as is the case, that the Judgment of the European Court delivered on the 4th of October 1991 in dealing with question number l held that "medical termination of pregnancy, performed in accordance with the law of the State in which it is carried out, constitutes a service within the meaning of Article 60 of the Treaty". Accordingly, he submits, a pregnant woman within the State has a right to travel to the United Kingdom to avail of such services. This right, he argues, has a collateral right to receive information relating to the clinics where the service is provided and accordingly there is a corresponding right vested in the Defendants to provide pregnant women with this information. Accordingly it is submitted that any attempt to create a barrier to the circulation and distribution of this information by a State other than a Host State is contrary to Community law in that it infringes that right.

20 This argument in my view completely ignores the findings of the European Court of Justice in relation to the second and third questions in the reference. These questions were considered together by the Court and in the Judgment ofthe Court it is clearly stated

"It is not contrary to Community law for a Member State in which...