Society for the Protection of Unborn Children (Ireland) Ltd v Stephen Grogan and Others (No 5)

JurisdictionIreland
JudgeHamilton C.J.,BLAYNEY J.,DENHAM J.,Mr. Justice Barrington,Keane J.
Judgment Date01 January 1998
Neutral Citation[1997] IESC 4
Date01 January 1998
CourtSupreme Court
Docket Number[S.C.
SOCIETY FOR THE PROTECTION OF UNBORN CHILDREN IRL LTD v. GROGAN

BETWEEN:

THE SOCIETY FOR THE PROTECTION OF UNBORN CHILDREN IRELANDLIMITED
Respondents/Plaintiffs

and

STEPHEN GROGAN, ANNEMARIE KEARY, KAREN QUINLIVAN, MARTINWHELAN, MICHAEL MURPHY, MAXINE BRADY, TOM DUKE, JOAN O'CONNOR, EOINO'NEILL, LORCAN FULHAM, IVANA BACIK, GRAINNE MURPHY, OWEN LANIGAN, JAMESDAVIS AND ANDREW CUNNINGHAM
Appellants/Defendants

[1997] IESC 4

HAMILTON C.J.

BLAYNEY J.

DENHAM J.

BARRINGTON J.

KEANE J.

317/92

THE SUPREME COURT

Synopsis:

Injunctions

Appeal; interlocutory injunction granted prohibiting dissemination of abortion services information; whether injunction should be set aside; present state of law; Fourteenth Amendment to the Constitution; Regulation of Information (Services outside the State for Termination of Pregnancies) Act, 1995; whether decision in Attorney General (SPUC) v. Open Door Counselling Ltd. [1988] I.R. 593 correct; whether implied constitutional right to information; right to life of unborn; harmonisation of rights; changes in law; whether present state of law or law at time order was made should be applied Held: Injunction lifted; information now lawful subject to conditions in 1995 Act; per Hamilton C.J., Blayney J. and Barrington J., decision in Open Door Counselling not erroneous; per Denham J. and Keane J. Open Door Counselling decision erroneous (Supreme Court: Hamilton C.J., Blayney J., Denham J., Barrington J., Keane J. 06/03/1997)- [1998] 4 IR 343

S.P.U.C. Ltd. v. Grogan & Ors.

Citations:

TREATY OF ROME ART 177

TREATY OF ROME ART 60

MURPHY V BORD TELECOM EIREANN 1988 ILRM 53

CROTTY V AN TAOISEACH 1987 ILRM 400

FOURTEENTH AMDT TO THE CONSTITUTION

REGULATION OF INFORMATION (SERVICES OUTSIDE THE STATE FOR TERMINATION OF PREGNANCIES) ACT 1995 S4

CONSTITUTION ART 26

ART 26 REGULATION OF INFORMATION (SERVICES OUTSIDE THE STATE FOR TERMINATION OF PREGNANCIES) BILL 1995, IN RE 1995 1 IR 1

SPUC, AG V OPEN DOOR COUNSELLING 1988 IR 593

SPUC V GROGAN 1989 IR 753

EIGHTH AMDT TO THE CONSTITUTION

AG V X 1992 1 IR 1

MOGUL (IRL) LTD V TIPPERARY (NORTH RIDING) CO COUNCIL 1976 IR 260

CONSTITUTION ART 40.3.3

DPP, PEOPLE V O'SHEA 1982 IR 384

CONSTITUTION ART 40.6.1

BEAN ON INJUNCTIONS 7ED 14

GAZ V FALKS VERITAS LTD 1974 CH 381

TREATY OF ROME ART 85

TREATY OF ROME ART 86

REGULATION OF INFORMATION (SERVICES OUTSIDE THE STATE FOR TERMINATION OF PREGNANCIES) ACT 1995 S5

REGULATION OF INFORMATION (SERVICES OUTSIDE THE STATE FOR TERMINATION OF PREGNANCIES) ACT 1995 S10

AG V PAPER LINK LTD 1994 ILRM 373

QUINN, STATE V RYAN 1965 IR 70

AG V RYANS CAR HIRE LTD 1965 IR 642

CONSTITUTION ART 40.3

OPEN DOOR COUNSELLING & DUBLIN WELL WOMAN V IRELAND 15 EHRR 244

CAHILL V SUTTON 1980 IR 269

OFFENCES AGAINST THE PERSON ACT 1861 S58

OFFENCES AGAINST THE PERSON ACT 1861 S59

R V BOURNE 1939 1 QB 687

HEALTH (FAMILY PLANNING) ACT 1979 S10

MCGEE V AG 1974 IR 284

NORRIS V AG 1984 IR 36

CONSTITUTION ART 40.3.1

MCGIMPSEY V IRELAND 1977 IR 129

DPP, PEOPLE V KENNY 1990 2 IR 110

FINUCANE V MCMAHON 1990 1 IR 165

DPP V SHAW 1982 IR 1

CONSTITUTION ART 13.6

CONSTITUTION ART 40.4.5

M, STATE V AG 1979 IR 73

KELLY IRISH CONSTITUTION 3ED 809–810

1

Judgment delivered on the 6th day of March 1997by Hamilton C.J.

2

This is an appeal brought by the Defendants in these proceedings (hereinafter referred to as the Appellants) against the judgment of the High Court (Morris J.) delivered on the 7th day of August 1992 and theordermade in pursuance thereof. By the said order the Defendants (Appellants) their servants or agents or anyone having knowledge of the said order were to be permanently restrained from printing, publishing or distributing or assisting in the printing, publishing or distribution of any publication produced under their aegis providing information to persons (including pregnant women) of the identity and location of, and the methods of communication with a specified clinic or clinics where abortions are performed.

3

This order was sought by the Plaintiff company (hereinafter referred to as the Respondent) in proceedings instituted by it by way of plenary summons issued on the 25th day of September 1989.

4

As appears from the Statement of Claim delivered on behalf of the Respondents on the 29th day of January 1990 the first to sixth named Defendants are sued in their representative capacities as the officers of the Union of Students in Ireland, an unincorporated association with its headoffice at 16 North Great Georges Street in the City of Dublin; the seventh to tenth named Defendants are sued in their representative capacities as the officers of the University College Dublin Students Union, an unincorporated association with offices at the temporary Union Centre, University College Dublin, Belfield and the eleventh to fourteenth named Defendants are sued in their capacities as the officers of the Trinity College Dublin Students Union, an unincorporated association with offices at Trinity College in the City of Dublin. The fifteenth named Defendant is a printer carrying on business from premises at 375 North Circular Road in the City of Dublin and printed a welfare guide on behalf of the University College Dublin Students Union for the years 1987–1988 and 1988–1989. This latter Defendant has taken no part in these proceedings.

5

The Appellants other than the 15th named Defendant are persons who are members of three separate groups, namely, the Union of Studentsof Ireland, the Students" Union of University College Dublin, and the Students" Union of Trinity College Dublin.

6

By Notice of Motion dated the 25th September 1989 and made returnable for the 9th October 1989, the Plaintiff sought an interlocutory injunction restraining the Defendants from publishing, distributing or assisting in the printing, publishing or distribution of any publication produced under their aegis providing information to persons (including pregnant women) of the identity and location of and the method of communication with a specified clinic or clinics where abortions areperformed.

7

Having heard submissions on the application for the said interlocutory injunction the learned High Court Judge (Carroll J.) decided to refer certain questions to the Court of Justice of the European Communities for a preliminary ruling in accordance with Article 177 of the Treaty establishing the European Economic Community and made no orderon the application for the interlocutory injunction other than referring the following questions to the Court of Justice:-

8

1. Does the organised activity or process of carrying out an abortion or the medical termination of pregnancy come within the definition of "services" provided for in Article 60 of the Treaty establishing the European Economic Community?

9

2. In the absence of any measures providing for the approximation of the laws of Member States concerning the organised activity or process of carrying out an abortion or the medical termination of pregnancy, can a Member State prohibit the distribution of specific information about the identity, location and means of communication with a specified clinic or clinics in another Member State where abortions areperformed?

10

3. Is there a right at Community law in a person in Member State "A" to distribute specific information about the identity, location and meansof communication with a specified clinic or clinics in Member State "B" where abortions are performed, where the provision of abortion is prohibited under both the Constitution and criminal law of Member State "A" but is lawful under certain conditions in Member State "B"?

11

Though there was no express order refusing or adjourning the application for an interlocutory injunction, the Respondent in these proceedings appealed to the Supreme Court against the failure of the learned High Court Judge to grant the said application for an interlocutoryinjunction.

12

By its judgments delivered on the 19th day of December 1989 and the order made in pursuance thereof, the Supreme Court allowed the appeal and made the order sought.

13

It did, however, grant

"liberty to any party to apply to the High Court before the said trial or determination for a variation of the said order in the light of the preliminary ruling by the Court of Justice of the European Communities on the questions referred to it by the High Court under Article 177 of the Treaty".

14

By its judgment delivered on the 4th day of October, 1991 the European Court ruled in relation to Question No. 1 that "medicaltermination of pregnancy, performed in accordance with the law of the State to which it is carried out, constitutes a service within the meaning of Article 60 of the Treaty".

15

Questions 2 and 3 of the Reference were considered together by the European Court and its ruling was:-

"It is not contrary to community law for a Member-State in which medical termination of pregnancy is forbidden to prohibit students, associations from distributing information about the identity and location of clinics in another Member-State where voluntary termination of pregnancy is lawfully carried out and the means of communicating withthose clinics, where the clinics in question have no involvement in the distribution of the said information."

16

The ruling of the European Court of Justice is binding on the national court. (See Murphy .v. Bord Telecom Eireann (1988) I.R.L.M. page 53 and Crotty .v. An Taoiseach (1987) I.L.R.M. page400).

17

The Respondents" claim in these proceedings was heard by Morris J. on the 17th, 23rd and 24th day of July 1992. The proceedings on the 17th day of July related to the evidence and on the 23rd and 24th days of July contained submissions by both parties.

18

In the course of his judgment, delivered on the 7th day of August, 1992 the learned trial judge stated:-

"I accordingly accept that by virtue of this ruling [the...

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