Personal Rights

Cases

McGee v. Attorney General

[1974] IR 286
FitzGerald C.J.
Supreme Court

The plaintiff’s real complaint is that s. 17 of the Act of 1935, by its prohibition of sale and importation, effectively prevents her from obtaining the jelly or making it available to herself. In my opinion, the evidence adduced on behalf of the plaintiff does not establish that she is prohibited from making or obtaining this product. Notwithstanding the fact that it is not commercially on the market for sale, it should be borne in mind that she obtained a quantity of it from her doctor. He committed no offence by supplying it to her, and whoever manufactured it committed no offence either.
I think it well to make it quite clear that, while it is pleaded that the plaintiff and her husband are of the Roman Catholic religion, the issue to be determined is not based, and was not argued, on any issue related to any particular religion. The issue is confined strictly to the legal effect of the Constitution on the law as laid down by s. 17 of the Act of 1935.
It is alleged by the plaintiff that s. 17 of the Act of 1935 is inconsistent with the following articles in the Constitution: sections 1 and 3 of Article 40, section 1 and sub-s. 1 of s. 2 of Article 41, section 1 of Article 42, section 2 of Article 44, and Article 45. The benefit of s. 1 of Article 40 is conferred on all citizens, and confers upon the plaintiff a benefit which she shares with all other citizens. She has, however, personal characteristics which are not common to all citizens. First, she is a female and not a male; secondly, she is a married woman, not a spinster or a widow; thirdly, she is of a child-bearing age; fourthly, her state of health is such that a further pregnancy would expose her to dangerous risks beyond those which a healthy married woman might be prepared to face. This latter distinction and the additional risk to the plaintiff if she should become pregnant again constitute the real basis of the plaintiff’s claim. The economic situation of her husband and herself is no different to thousands of other couples. I find myself unable to hold that any portion of s. 17 of the Act of 1935 contravenes section 1 of Article 40 of the Constitution. Section 17 does not create any inequality affecting the plaintiff’s rights. The real basis of her complaint is that the section, in affecting all citizens, fails to make special provision exempting her because of her own particular disability.
[The Chief Justice quoted s. 3 of Article 40 of the Constitution, and continued . . .] The right to marry and the intimate relations between husband and wife are fundamental rights which have existed in most, if not all, civilised countries for many centuries. These rights were not conferred by the Constitution in this country in 1937. The Constitution goes no further than to guarantee to defend and vindicate and protect those rights from attack. If s. 17 of the Act of 1935 prohibited the use of contraceptives, it might reasonably be held to contravene Article 40. However, the section does not do so and, in my opinion, it is not inconsistent with any of the clauses of that Article.
It was further submitted on the plaintiff’s behalf that s. 17 of the Act of 1935 was inconsistent with Article 41 of the Constitution. The material provisions of Article 41 upon which reliance was placed are s. 1 and sub-s. 1 of s. 3; it is also material to refer to sub-s. 2 of s. 3 of that Article. There is no definition of the word”family” in the Constitution. It was submitted on behalf of the plaintiff that in some way, in addition to the rights of herself and her husband based on their married state, the four infant children of the marriage were entitled to be considered by the law as being entitled to protection as having an interest in seeing that the family was not further enlarged. This contention appears to me to be completely untenable. It appears to me to be fundamental to the married state that the husband and wifeand they aloneshall decide whether they wish to have children, or the number of children they wish to have. It does not appear to me that s. 17 of the Act of 1935 contravenes in any way the provisions of Article 41 of the Constitution.
Article 42 of the Constitution recognises the family as the natural educator of a child, and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children. It is, I think, unnecessary to set out this articlein extenso; suffice to say that it recognises the parents’ right to choose the form of education for the child, that it recognises the duty of the parents to provide such an education, and accepts the responsibility for providing free primary education, and to give further reasonable aid in further educational establishments. I see nothing in s. 17 of the Act of 1935 which in any way is inconsistent with Article 42 of the Constitution. This article is concerned with, and only with, the duties and rights of parents and the duty of the State in relation to the education of children. While s. 3, sub-s. 1, of Article 42 provides that parents shall not be obliged “in violation of their conscience” to send their children to a State school, or any particular type of school, it is quite unjustifiable, in my opinion, to take the word “conscience”out of its context and seek to apply it to the wish of the parents as to whether they would have children or not.
Article 44 of the Constitution, which deals with religion and religious institutions, was recently amended by referendum. It confers no special status on any religion; every citizen is entitled to profess the religion of his choice, or no religion. Reliance was sought to be placed on sub-s. 1 of s. 2 of that Article which states:”Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.” In my opinion the freedom of conscience referred to in that sub-section relates to the choice and profession of a religion, and to it alone; the word “conscience” can not be taken out of its context and applied to the decision of the plaintiff and her husband, or any other married couple, as to whether they should or should not have children.
Article 45 refers to principles of social policy which are intended for the general guidance of the Oireachtas in its making of laws and which are declared to be exclusively its province and not cognisable by any Court. In my opinion, the intervention by this, or any other Court, with the function of the Oireachtas is expressly prohibited under this article. To hold otherwise would be an invalid usurpation of legislative authority.
While it is the fact that in her statement of claim the plaintiff claimed a declaration that the seizure by the second defendants of the packet of “Staycept Jelly”was unauthorised and illegal, no argument was addressed to this Court or, so far as I can ascertain, to the President of the High Court in relation to any interference by those defendants with the property rights, if any, of the plaintiff in the product. I do not know whether the plaintiff was in any difficulty in establishing ownership of the packet before it was delivered to her. Whatever the reason, as there was no argument upon the issue of the ownership of the packet, I find it unnecessary to decide such issue.
It is, perhaps, worthy of note that the product popularly referred to as “the pill” can be imported and sold in the open market quite lawfully. Apparently, it is not in the schedule which prohibits the importation or sale of contraceptives. Its omission from the list of prohibited articles is due, apparently, to the fact that it has other properties which are unconnected with contraception.
I can find no guidance or help from my consideration of the three decisions of the American Federal Supreme Court which were cited to us. Poe v. Ullman 48 was concerned with the constitutionality of a Connecticut statute which prescribed criminal penalties for any person using any contraceptive drug. As I have pointed out, s. 17 of the Act of 1935 does not prohibit the use of a contraceptive. Griswold v. Connecticut 49, decided in the Supreme Court of the United States, was again concerned with a Connecticut statute which made the use of a contraceptive a criminal offence. Finally, Eisenstadt v. Baird 50 was concerned with a Massachusetts statute which made it a crime to sell, lend or give away a contraceptive to a person who was not married. Quite apart from the obvious discrimination by the statute between married and unmarried persons, it is worthy of note that only two of the nine judges appear to have observed that no offence had in fact been proved against the defendant, as there was no evidence that the recipient of the contraceptive was either married or unmarried.
It is well to realise that the plaintiff’s claim here is as a citizen and that, if any portion of s. 17 of the Act of 1935 is declared unconstitutional, the benefit to be derived from such a decision is equally to be enjoyed by every other citizen, be they married or not.
To summarise, it appears to me that the fact that the plaintiff professes a particular religion, or that she and her husband have agreed upon the course which they wish to adopt, is quite irrelevant. To hold otherwise, would be to distinguish between citizens of different religions; and to distinguish between cases where the spouses were of the same mind and cases where one or other, for reasons of health, economics or social considerations, might wish to avoid a further pregnancy independently of the wish of the other spouse.
One must naturally be sympathetic with the plaintiff in the dilemma in which she finds herself and which is attributable to her own physical health. It surely, however, must be recognised that the physical and mental health of either spouse in a marriage may effectively preclude a pregnancy either temporarily or, in some instances, permanently. Having regard to the provision in the Constitution prohibiting divorce, the physical or mental illness of one spouse necessarily has its repercussions on both, perhaps for their joint lives. These appear to me to be natural hazards which must be faced by married couples with such fortitude as they can summon to their assistance.
In my opinion, the plaintiff has failed to establish a case entitling her to the relief claimed, and this appeal should be dismissed.

WALSH J. :
The facts of this case are not in dispute and I do not find it necessary to recite them in any detail. The central facts are that the plaintiff is a young married woman and that the case is concerned with the impact of the provisions of s. 17 of the Criminal Law Amendment Act, 1935, upon the sexual relations between the plaintiff and her husband.
The effect of the statutory provision in question is to make it a criminal offence for any person to sell or expose, offer, advertise, or keep for sale or to import or to attempt to import into the State any contraceptive. Section 17 of the Act of 1935 invokes s. 42 of the Customs Consolidation Act, 1876, and thereby includes contraceptives among the list of prohibited imports with the result that an importation of such an article could lead to the person importing the article being prosecuted and convicted under s. 186 of the Act of 1876. For the purpose of s. 17 of the Act of 1935 the word”contraceptive” means “any appliance, instrument, drug, preparation or thing, designed, prepared, or intended to prevent pregnancy resulting from sexual intercourse between human beings.” I thought it necessary to give this definition in the detail in which it appears in the Act of 1935 so as to make clear that this case is not in any way concerned with instruments, preparations, drugs or appliances, etc., which take effect after conception, whether or not they are described as or purport to be contraceptives. Whether any such article is designed to or in fact takes effect after conception is a question which in each particular case can be decided only as one of fact based on the best available scientific evidence.

The event which led immediately to the present proceedings was the refusal of the second defendants to permit the importation by the plaintiff of a contraceptive jelly for use by her in her sexual relations with her husband, with the consent of her husband, and which had been prescribed for her by her medical adviser. It does not appear to be in dispute that the article in question is a contraceptive within the statutory definition to which I have already referred.
There is no law in force in the State which prohibits the use of contraceptives, either in or outside of marriage, or the manufacture or distribution of contraceptives within the State. It appears to be the accepted fact that at present there are no contraceptives manufactured within the State and, therefore, that any contraceptives presently available within the State must necessarily have been imported in breach of the statutory provisions; although if innocently imported it would not attract a penalty to the importer. Such importation, however, would leave the goods liable to seizure.
The plaintiff seeks a declaration that s. 17 of the Act of 1935 is inconsistent with the Constitution and was not carried forward by Article 50 of the Constitution and no longer forms part of the law of the State. She also seeks a declaration that the seizure by the second defendants of the commodity in question was unauthorised by law and was illegal. In consequence she also seeks damages for detinue or conversion.
Article 50, s. 1, of the Constitution provides:”Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstát Éireann immediately prior to the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas.” I have referred to the wording of s. 1 of Article 50 because, apart from being the foundation of the present proceedings, one of the submissions made on behalf of the Attorney General was to the effect that a statutory provision in force prior to the Constitution could continue to be in force and to be carried over by Article 50 even though its provisions were such as could not now be validly enacted by the Oireachtas Supreme because of the provisions of the Constitution. Stated as a general proposition, I find that this is in direct conflict with the very provisions of Article 50 and is quite unsustainable. However, in my opinion, there are circumstances in which the proposition could be partially correct.
If a pre-Constitution statute was such that it was not in conflict with the Constitution when taken in conjunction with other statutory provisions then in existence and with a particular state of facts then existing, and if such other statutory provisions continued in effect after the coming into force of the Constitution and the particular state of facts remained unaltered, the provisions of the first statute might not in any way be inconsistent with the provisions of the Constitution. If, however, subsequent to the coming into force of the Constitution the other statutory provisions were repealed and the state of facts was altered to a point where the joint effect of the repeal of the other statutes and the alteration of the facts was to give the original statute a completely different effect, then the question would arise of its continuing to be part of the law. In my view, Article 50, by its very terms (both in its Irish and English texts), makes it clear that laws in force in Saorstát Éireann shall continue to be in force only to the extent to which they are not inconsistent with the Constitution; and that, if the inconsistency arises for the first time after the coming into force of the Constitution, the law carried forward thereupon ceases to be in force.
The relevance of this to the present case is clear. There is no evidence in the case to indicate what was the state of facts existing at the time of the passing of the Act of 1935 and the years subsequent to it up to the coming into force of the Constitution, and even for a period after that. It appears to have been assumed, though there is no evidence upon which to base the assumption, that contraceptives were not manufactured within the State at that time or were not readily available otherwise than by sale. The validity or otherwise of a law may depend upon an existing state of facts or upon the facts as established in litigation, as was clearly indicated by this Court in Ryan v. The Attorney General .51To control the sale of contraceptives is not necessarily unconstitutional per se; nor is a control on the importation of contraceptives necessarily unconstitutional. There may be many reasons, grounded on considerations of public health or public morality, or even fiscal or protectionist reasons, why there should be a control on the importation of such articles. There may also be many good reasons, grounded on public morality or public health, why their sale should be controlled. I use the term “controlled”to include total prohibition. What is challenged here is the constitutionality of making these articles unavailable. Therefore, the decision in this appeal must rest upon the present state of the law and the present state of the facts relating to the issues in dispute. Therefore, even if it were established that in 1935, 1936 or 1937, or even 1940, contraceptives were reasonably available without infringement of the law, that would not necessarily determine that s. 17 of the Act of 1935 now continues to be in full force and effect.
The relevant facts, which are not in dispute in this case, are that at the present time the effect of s. 17 of the Act of 1935, if it is still in force, is effectively to make contraceptives unavailable to persons within the State without an infringement of the law and the possibility of a criminal prosecution and conviction.
The plaintiff claims that s. 17 of the Act of 1935 is inconsistent with ss. 1 and 3 of Article 40 of the Constitution. In respect of s. 1 of Article 40, it is claimed that s. 17 of the Act of 1935 discriminates unfairly against the plaintiff and fails to hold her, as a human person, equal before the law in that it fails to have due regard to her physical capacity, her moral capacity and her social function in the situation in which she now finds herself. The latter reference is to the plaintiff’s particular condition of health. So far as s. 3 of Article 40 is concerned, it is claimed that, by reason of s. 17 of the Act of 1935, the State has failed to guarantee in its laws to respect and as far as practicable by its laws to vindicate her personal rights or to protect them from unjust attack, and has failed to vindicate her life, her person and her good name and her property rights. It is also claimed that s. 17 of the Act of 1935 is inconsistent with Article 41 of the Constitution in that it violates the inalienable and imprescriptible rights of the family in a matter which the plaintiff claims is peculiarly within the province of the family itself, in that the section attempts to frustrate a decision made by the plaintiff and her husband for the benefit of their family as a whole and thereby attacks and fails to protect the family in its constitution and authority: that claim was based on s. 1 of Article 41. Section 2 of Article 41 is invoked by the plaintiff in her claim that s. 17 of the Act of 1935 fails to recognise and give due weight to a private family decision of the plaintiff and her husband touching her life within the home and by attempting to frustrate that decision endangers the plaintiff’s life and refuses to allow her to live her life within her home as she and her husband think best in the interests of the family.
The plaintiff has also invoked the provisions of s. 1 of Article 42 of the Constitution by relating the decision taken by herself and her husband to practise contraception as being partly motivated by their desire to provide for the better education of their existing children; and she submits that s. 17 of the Act of 1935 attempts to frustrate that decision. The plaintiff also says that her decision to practise contraception is in accordance with the dictates of her own conscience, and she invokes s. 2 of Article 44 of the Constitution which guarantees to every citizen freedom of conscience and the free profession and practice of religion, subject to public order and morality. The plaintiff claims that s. 17 of the Act of 1935 prevents her from leading her private life in accordance with the dictates of her own conscience. Article 45 of the Constitution, which is the Article which deals with the directive principles of social policy, is also invoked by the plaintiff. She relies on s. 1 of that Article wherein it is stated that the State shall strive to promote the welfare of the whole people by securing and protecting, as effectively as it may, a social order in which justice and charity shall inform all the institutions of the national life. In the same vein, the plaintiff also invoked that portion of the preamble to the Constitution in which the people, in giving themselves the Constitution, express the intention to seek “to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured . . .”
Articles 40, 41, 42 and 44 of the Constitution all fall within that section of the Constitution which is titled”Fundamental Rights.” Articles 41, 42 and 43 emphatically reject the theory that there are no rights without laws, no rights contrary to the law and no rights anterior to the law. They indicate that justice is placed above the law and acknowledge that natural rights, or human rights, are not created by law but that the Constitution confirms their existence and gives them protection. The individual has natural and human rights over which the State has no authority; and the family, as the natural primary and fundamental unit group of society, has rights as such which the State cannot control. However, at the same time it is true, as the Constitution acknowledges and claims, that the State is the guardian of the common good and that the individual, as a member of society, and the family, as a unit of society, have duties and obligations to consider and respect the common good of that society. It is important to recall that under the Constitution the State’s powers of government are exercised in their respective spheres by the legislative, executive and judicial organs established under the Constitution. I agree with the view expressed by O’Byrne J. in Buckley and Others (Sinn Féin) v. The Attorney General 52 that the power of the State to act for the protection of the common good or to decide what are the exigencies of the common good is not one which is peculiarly reserved for the legislative organ of government, in that the decision of the legislative organ is not absolute and is subject to and capable of being reviewed by the Courts. In concrete terms that means that the legislature is not free to encroach unjustifiably upon the fundamental rights of individuals or of the family in the name of the common good, or by act or omission to abandon or to neglect the common good or the protection or enforcement of the rights of individual citizens.

Turning to the particular submissions made on behalf of the plaintiff, I shall deal first with the submission made in relation to the provisions53 of Article 41 of the Constitution which deals with the family. On the particular facts of this case, I think this is the most important submission because the plaintiff’s claim is based upon her status as a married woman and is made in relation to the conduct of her sexual life with her husband within that marriage. For the purpose of this Article I am of opinion that the state of the plaintiff’s health is immaterial to the consideration of the rights she claims are infringed in relation to Article 41. In this Article the State, while recognising the family as the natural primary and fundamental unit group of society and as a moral institution possessing inalienable and imprescriptible rights antecedent and superior to all positive law, guarantees to protect the family in its constitution and authority as the necessary basis of social order and as indispensable to the welfare of the nation and the State. The Article recognises the special position of woman, meaning the wife, within that unit; the Article also offers special protection for mothers in that they shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home. The Article also recognises the institution of marriage as the foundation of the family and undertakes to protect it against attack. By this and the following Article, the State recognises the parents as the natural guardians of the children of the family and as those in whom the authority of the family is vested and those who shall have the right to determine how the family life shall be conducted, having due regard to the rights of the children not merely as members of that family but as individuals.
It is a matter exclusively for the husband and wife to decide how many children they wish to have; it would be quite outside the competence of the State to dictate or prescribe the number of children which they might have or should have. In my view, the husband and wife have a correlative right to agree to have no children. This is not to say that the State, when the common good requires it, may not actively encourage married couples either to have larger families or smaller families. If it is a question of having smaller families then, whether it be a decision of the husband and wife or the intervention of the State, the means employed to achieve this objective would have to be examined. What may be permissible to the husband and wife is not necessarily permissible to the State. For example, the husband and wife may mutually agree to practise either total or partial abstinence in their sexual relations. If the State were to attempt to intervene to compel such abstinence, it would be an intolerable and unjustifiable intrusion into the privacy of the matrimonial bedroom. On the other hand, any action on the part of either the husband and wife or of the State to limit family sizes by endangering or destroying human life must necessarily not only be an offence against the common good but also against the guaranteed personal rights of the human life in question.
The sexual life of a husband and wife is of necessity and by its nature an area of particular privacy. If the husband and wife decide to limit their family or to avoid having children by use of contraceptives, it is a matter peculiarly within the joint decision of the husband and wife and one into which the State cannot intrude unless its intrusion can be justified by the exigencies of the common good. The question of whether the use of contraceptives by married couples within their marriage is or is not contrary to the moral code or codes to which they profess to subscribe, or is or is not regarded by them as being against their conscience, could not justify State intervention. Similarly the fact that the use of contraceptives may offend against the moral code of the majority of the citizens of the State would not per se justify an intervention by the State to prohibit their use within marriage. The private morality of its citizens does not justify intervention by the State into the activities of those citizens unless and until the common good requires it. Counsel for the Attorney General did not seek to argue that the State would have any right to seek to prevent the use of contraceptives within marriage. He did argue, however, that it did not follow from this that the State was under any obligation to make contraceptives available to married couples. Counsel for the second defendants put the matter somewhat further by stating that, if she had a right to use contraceptives within the privacy of her marriage, it was a matter for the plaintiff to prove from whence the right sprang. In effect he was saying that, if she was appealing to a right anterior to positive law, the burden was on her to show the source of that right. At first sight this may appear to be a reasonable and logical proposition. However, it does appear to ignore a fundamental point, namely, that the rights of a married couple to decide how many children, if any, they will have are matters outside the reach of positive law where the means employed to implement such decisions do not impinge upon the common good or destroy or endanger human life. It is undoubtedly true that among those persons who are subject to a particular moral code no one has a right to be in breach of that moral code. But when this is a code governing private morality and where the breach of it is not one which injures the common good then it is not the State’s business to intervene. It is outside the authority of the State to endeavour to intrude into the privacy of the husband and wife relationship for the sake of imposing a code of private morality upon that husband and wife which they do not desire.
In my view, Article 41 of the Constitution guarantees the husband and wife against any such invasion of their privacy by the State. It follows that the use of contraceptives by them within that marital privacy is equally guaranteed against such invasion and, as such, assumes the status of a right so guaranteed by the Constitution. If this right cannot be directly invaded by the State it follows that it cannot be frustrated by the State taking measures to ensure that the exercise of that right is rendered impossible. I do not exclude the possibility of the State being justified where the public good requires it (as, for example, in the case of a dangerous fall in population threatening the life or the essential welfare of the State) in taking such steps to ensure that in general, even if married couples could not be compelled to have children, they could at least be hindered in their endeavours to avoid having them where the common good required the maintenance or increase of the population.

That, however, is not the present case and there is no evidence whatever in the case to justify State intervention on that ground. Similarly it is not impossible to envisage a situation where the availability of contraceptives to married people for use within marriage could be demonstrated to have led to or would probably lead to such an adverse effect on public morality so subversive of the common good as to justify State intervention by restricting or prohibiting the availability of contraceptives for use within marriage or at all. In such a case it would have to be demonstrated that all the other resources of the State had proved or were likely to prove incapable to avoid this subversion of the common good while contraceptives remained available for use within marriage.
In my opinion, s. 17 of the Act of 1935, in so far as it unreasonably restricts the availability of contraceptives for use within marriage, is inconsistent with the provisions of Article 41 of the Constitution for being an unjustified invasion of the privacy of husband and wife in their sexual relations with one another. The fundamental restriction is contained in the provisions of sub-s. 3 of s. 17 of the Act of 1935 which lists contraceptives among the prohibited articles which may not be imported for any purposes whatsoever. On the present state of facts, I am of opinion that this provision is inconsistent with the Constitution and is no longer in force.
For the reasons I gave earlier in this judgment, the prohibition of the importation of contraceptives could be justified on several grounds provided the effect was not to make contraceptives unavailable. For example, the law might very well prohibit for health reasons the importation of some if not all contraceptives from sources outside the country if, for example, there is a risk of infection from their use. No such reason has been offered in the present case and in any such instance, for the reasons already given, the law could not take other steps to see that contraceptives were not otherwise available for use in marriage.
As this particular case arose primarily out of the ban on importation, I think that, in so far as Article 41 is concerned, the declaration sought should only go in respect of sub-s. 3 of s. 17 of the Act of 1935. That does not necessarily mean that the provisions as to sale in sub-s. 1 of s. 17 cannot be impugned. If, in the result, notwithstanding the deletion of sub-s. 3, the prohibition on sale had the effect of leaving a position where contraceptives were not reasonably available for use within marriage, then that particular prohibition must also fall. However, for the moment I do not think it is necessary to make any declaration in respect of that.
So far I have considered the plaintiff’s case only in relation to Article 41 of the Constitution; and I have done so on the basis that she is a married woman but without referring to her state of health. I now turn to the claim made under Article 40 of the Constitution. So far as this particular Article is concerned, and the submissions made thereunder, the state of health of the plaintiff is relevant. If, for the reasons I have already given, a prohibition on the availability of contraceptives for use in marriage generally could be justified on the grounds of the exigencies of the common good, the provisions of s. 1 of Article 40 (in particular, the proviso thereto) would justify and would permit the State to discriminate between some married persons and others in the sense that, where conception could more than ordinarily endanger the life of a particular person or persons or particular classes of persons within the married state, the law could have regard to this difference of physical capacity and make special exemptions in favour of such persons. I think that such an exemption could also be justified under the provisions of s. 3 of Article 40 on the grounds that one of the personal rights of a woman in the plaintiff’s state of health would be a right to be assisted in her efforts to avoid putting her life in jeopardy. I am of opinion also that not only has the State the right to do so but, by virtue of the terms of the proviso to s. 1 and the terms of s. 3 of Article 40, the State has the positive obligation to ensure by its laws as far as is possible (and in the use of the word”possible” I am relying on the Irish text of the Constitution) that there would be made available to a married woman in the condition of health of the plaintiff the means whereby a conception which was likely to put her life in jeopardy might be avoided when it is a risk over and above the ordinary risks inherent in pregnancy. It would, in the nature of things, be much more difficult to justify a refusal to do this on the grounds of the common good than in the case of married couples generally.
Next I turn to the submissions made on behalf of the plaintiff which relate to the provisions of s. 2 of Article 44 of the Constitution. In my view these submissions are based on a mistaken interpretation of the constitutional provision in question. In particular the reference to the decision of this Court in Quinn’s Supermarket v. The Attorney General 54 is misinterpreted. That particular case dealt with a situation where a law might be in such terms as to impose upon a member of a particular religion the choice of exercising his religion and thereby suffering some economic or other loss, or foregoing the practice of his religion to avoid the loss in question. It was held that any such law would be invalid having regard to the provisions of s. 2 of Article 44. In the present case the plaintiff says that, so far as her conscience is concerned, the use of contraceptives by her is in accordance with her conscience and that, in using them, she does not feel that she is acting against her conscience. It was submitted that social conscience, as distinct from religious conscience, falls within the ambit of Article 44. I do not think that is so. The whole context in which the question of conscience appears in Article 44 is one dealing with the exercise of religion and the free profession and practice of religion. Within that context, the meaning of s. 2, sub-s. 1, of Article 44 is that no person shall directly or indirectly be coerced or compelled to act contrary to his conscience in so far as the practice of religion is concerned and, subject to public order and morality, is free to profess and practise the religion of his choice in accordance with his conscience. Correlatively, he is free to have no religious beliefs or to abstain from the practice or profession of any religion. Because a person feels free, or even obliged, in conscience to pursue some particular activity which is not in itself a religious practice, it does not follow that such activity is guaranteed protection by Article 44. It is not correct to say, as was submitted, that the Article is a constitutional guarantee of a right to live in accordance with one’s conscience subject to public order and morality. What the Article guarantees is the right not to be compelled or coerced into living in a way which is contrary to one’s conscience and, in the context of the Article, that means contrary to one’s conscience so far as the exercise, practice or profession of religion is concerned.
However, the reference to Quinn’s Supermarket v. The Attorney General 55 is relevant to this case in another way. The judgment in that case pointed out that the Constitution recognises and reflects a firm conviction that the people of this State are a religious people and that, as it then stood, the Constitution referred specifically to a number of religious denominations which coexisted within the State, thereby acknowledging the fact that while we are a religious people we also live in a pluralist society from the religious point of view. In my view, the subsequent deletion of sub-ss. 2 and 3 of s. 1 of Article 44 by the fifth amendment to the Constitution has done nothing to alter this acknowledgment that, religiously speaking, the society we live in is a pluralist one. It was also pointed out in that case that the guarantees of religious freedom and freedom of conscience were not confined to the different denominations of the Christian religion but extended to other religious denominations: see s. 2 of Article 44 which guarantees freedom of conscience and the free profession and practice of religion to every citizen, whether of the Christian religion or not.
Both in its preamble and in Article 6, the Constitution acknowledges God as the ultimate source of all authority. The natural or human rights to which I have referred earlier in this judgment are part of what is generally called the natural law. There are many to argue that natural law may be regarded only as an ethical concept and as such is a re-affirmation of the ethical content of law in its ideal of justice. The natural law as a theological concept is the law of God promulgated by reason and is the ultimate governor of all the laws of men. In view of the acknowledgment of Christianity in the preamble and in view of the reference to God in Article 6 of the Constitution, it must be accepted that the Constitution intended the natural human rights I have mentioned as being in the latter category rather than simply an acknowledgment of the ethical content of law in its ideal of justice. What exactly natural law is and what precisely it imports is a question which has exercised the minds of theologians for many centuries and on which they are not yet fully agreed. While the Constitution speaks of certain rights being imprescriptible or inalienable, or being antecedent and superior to all positive law, it does not specify them. Echoing the words of O’Byrne J. in Buckley and Others (Sinn Féin) v. The Attorney General 56, I do not feel it necessary to enter upon an inquiry as to their extent or, indeed, as to their nature. It is sufficient for the court to examine and to search for the rights which may be discoverable in the particular case before the court in which these rights are invoked.
In a pluralist society such as ours, the Courts cannot as a matter of constitutional law be asked to choose between the differing views, where they exist, of experts on the interpretation by the different religious denominations of either the nature or extent of these natural rights as they are to be found in the natural law. The same considerations apply also to the question of ascertaining the nature and extent of the duties which flow from natural law; the Constitution speaks of one of them when it refers to the inalienable duty of parents to provide according to their means for the religious, moral, intellectual, physical and social education of their children: see s. 1 of Article 42. In this country it falls finally upon the judges to interpret the Constitution and in doing so to determine, where necessary, the rights which are superior or antecedent to positive law or which are imprescriptible or inalienable. In the performance of this difficult duty there are certain guidelines laid down in the Constitution for the judge. The very structure and content of the Articles dealing with fundamental rights clearly indicate that justice is not subordinate to the law. In particular, the terms of s. 3 of Article 40 expressly subordinate the law to justice. Both Aristotle and the Christian philosophers have regarded justice as the highest human virtue. The virtue of prudence was also esteemed by Aristotle as by the philosophers of the Christian world. But the great additional virtue introduced by Christianity was that of charitynot the charity which consists of giving to the deserving, for that is justice, but the charity which is also called mercy. According to the preamble, the people gave themselves the Constitution to promote the common good with due observance of prudence, justice and charity so that the dignity and freedom of the individual might be assured. The judges must, therefore, as best they can from their training and their experience interpret these rights in accordance with their ideas of prudence, justice and charity. It is but natural that from time to time the prevailing ideas of these virtues may be conditioned by the passage of time; no interpretation of the Constitution is intended to be final for all time. It is given in the light of prevailing ideas and concepts. The development of the constitutional law of the United States of America is ample proof of this. There is a constitution which, while not professing to be governed by the precepts of Christianity, also in the Ninth Amendment recognises the existence of rights other than those referred to expressly in it and its amendments. The views of the United States Supreme Court, as reflected in the decisions interpreting that constitution and in the development of their constitutional law, also appear firmly to reject legal positivism as a jurisprudential guide.
Three United States Supreme Court decisions were relied upon in argument by the plaintiff: Poe v. Ullman 57; Griswold v. Connecticut 58; and Eisenstadt v. Baird 59 My reason for not referring to them is not because I did not find them helpful or relevant, which indeed they were, but because I found it unnecessary to rely upon any of the dicta in those cases to support the views which I have expressed in this judgment.
Lastly, I wish to emphasise that I have given no consideration whatsoever to the question of the constitutionality or otherwise of laws which would withhold or restrict the availability of contraceptives for use outside
of marriage; nothing in this judgment is intended to offer any opinion on that matter.
For the reasons I have given, I would grant the plaintiff a declaration that sub-s. 3 of s. 17 of the Criminal Law Amendment Act, 1935, is not, and was not at any time material to these proceedings, of full force and effect as part of the laws of the State.

BUDD J. :
The plaintiff is a married woman and has four children, two of them twins. She has suffered from very serious complications during and after her three confinements. So severe have these complications been that she has been advised by her doctor that she should not undergo the hazards of another confinement which might endanger her life or have a crippling effect.
In these circumstances she came to the conclusion, although at first reluctant to do so, that she should adopt some form of contraception which would avoid these dire results but would still allow her to lead a natural married life with her husband. Having sought medical advice on the matter, she was advised by her doctor that a suitable contraceptive for her case would be an intra-uterine device to be used with a contraceptive jelly called “Staycept Jelly”. She was supplied with some of this preparation but was advised to order some from England as the preparation is not manufactured in this country. She ordered some from England but the preparation was impounded on arrival; the second defendants stating in a letter dated the 29th April, 1971, that the preparation, being a contraceptive preparation, was prohibited to be imported under s. 17, sub-s. 3, of the Criminal Law Amendment Act, 1935, and consequently that they were not empowered to release it for delivery in the State. Section 17, sub-s. 3, of the Act of 1935 provides60 that contraceptives shall be deemed to be included among the goods enumerated and described in the Table of Prohibitions and Restrictions Inwards contained in s. 42 of the Customs Consolidation Act, 1876, and that the provisions of that Act (as amended or extended by subsequent Acts) relating to the importation of prohibited goods shall apply accordingly. Section 42 of the Act of 1876 provides that the goods enumerated in the table therein contained of prohibitions and restrictions are prohibited to be imported and, if imported, should be forfeited. The said table contains a list of such goods, and contraceptives are now deemed to be included in the goods enumerated therein pursuant to the provisions of s. 17, sub-s. 3, of the Act of 1935.
The plaintiff then commenced these proceedings claiming that s. 17 of the Act of 1935 was inconsistent with the Constitution and was not carried forward by Article 50 of the Constitution and that the section no longer forms part of the law of the State; and she claims a declaration that the seizure of the packet was illegal.
The plaintiff based her contentions upon certain Articles of the Constitution which I shall mention. Article 40, s. 1, declares61 that all citizens shall be held equal before the law, and s. 3, sub-s. 1, of that Article declares that “the State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.” By Article 41 the State recognizes the family as the natural primary and fundamental unit group of society possessing inalienable rights antecedent to all positive law, and the State guarantees to protect its constitution and authority. By Article 43 the State acknowledges that man has the natural right, antecedent to positive law, to the private ownership of external goods. It is also necessary to mention Article 50 which provides that, subject to the Constitution and to the extent that they are not inconsistent therewith, the laws in force in Saorstát Éireann immediately prior to the date of the coming into operation of the Constitution shall continue to be of full force and effect.
There is no presumption in favour of the constitutionality of a pre-Constitution statute. Section 17 of the Act of 1935, therefore, was only carried forward if not inconsistent with the Constitution; and the construction of the Constitution is a matter for the Courts. It is not contested that the plaintiff considered her decision to be the best open to her. Her husband agreed with her. The State guarantees as far as practicable by its laws to vindicate the personal rights of the citizen. What more important personal right could there be in a citizen than the right to determine in marriage his attitude and resolve his mode of life concerning the procreation of children? Whilst the “personal rights” are not described specifically, it is scarcely to be doubted in our society that the right to privacy is universally recognized and accepted with possibly the rarest of exceptions, and that the matter of marital relationship must rank as one of the most important of matters in the realm of privacy. When the preamble to the Constitution speaks of seeking to promote the common good by the observance of prudence, justice and charity so that the dignity and freedom of the individual may be assured, it must surely inform those charged with its construction as to the mode of application of its Articles.
When I apply what I have stated about the principles of the Constitution to Article 40, I am driven to the conclusion that the Act of 1935 is in particular conflict with the personal rights of the citizen which the State in sub-s. 1 of s. 3 of Article 40 guarantees to respect, defend and vindicate as far as practicable. The other Articles which I have quoted from are in no way inconsistent with the construction I have placed on sub-s. 1 of s. 3 of Article 40. This Act does not defend or vindicate the personal rights of the citizen or his or her privacy relative to matters of the procreation of children and the privacy of married life and marital relations. Section 17, sub-s. 3, of the Act of 1935 is inconsistent with the Article already referred to and is therefore unconstitutional and invalid in law. I would allow this appeal.

HENCHY J. :
The essential facts of this case may be summarised as follows. The plaintiff, who is aged 29, lives in the restricted quarters of a mobile home with her husband, who is a fisherman earning about £20 per week, and their four children who were born in December, 1968, in January, 1970, and (the twins) in November, 1970. Her medical history shows that during each pregnancy she suffered from toxaemia; that during her second pregnancy she developed a serious cerebral thrombosis from which she nearly died, and which left her temporarily paralysed on one side; and that during her last pregnancy she suffered from toxaemia which was complicated by hypertension. She has been advised by her doctor that if she becomes pregnant again there will be a very great risk that she will suffer a further cerebral thrombosis, which is an illness that apparently has a mortality rate as high as 26% in married women of her age and which would be apt to cause her a disabling paralysis if it did not prove fatal.
Confronted with that dire prospect, she has had to decide between sexual abstinence and the use of a contraceptiveno question apparently having arisen as to a surgical intervention. With the agreement of her husband, and having due regard to her obligations to her husband, her children and herself, she decided in favour of contraception. Because of her medical history of vascular thrombosis and hypertension, her doctor advised against an oral contraceptive and recommended instead an intrauterine device which was to be used with a contraceptive jelly. The doctor fitted the device and gave her a small supply of the contraceptive jelly. This jelly is not made in this State, so she had to order a further supply from England. When the packet containing it was sent to her by post, it was intercepted and seized by the Customs authorities because, being a “contraceptive” as defined by sub-s. 4 of s. 17 of the Criminal Law Amendment Act, 1935, its importation is prohibited by s. 42 of the Customs Consolidation Act, 1876, as applied by sub-s. 3 of s. 17 of the Act of 1935.
In the present proceedings the plaintiff has challenged the constitutional validity of s. 17 of the Act of 1935 and has claimed that it was not carried over by Article 50 of the Constitution because it is inconsistent with certain provisions in Articles 40, 41, 42, 44 and 45 of the Constitution. The primary contention is that it trenches on her rights under sub-s. 1 of s. 3 of Article 40 which provides that:”The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.”

The Act of 1935, as its long title shows, is not aimed at population control but at the suppression of vice and the amendment of the law relating to sexual offences. Section 17 follows immediately on a section directed against the practice of prostitution in public and immediately precedes a section making criminal certain acts which offend modesty or cause scandal or injure the morals of the community. The section creates a criminal prohibition in an area in which the legislature has thought fit to intervene in the interests of public morality. What it seeks to do, by means of the sanction of the criminal law, is to put an end, as far as it was possible to do so by legislation, to the use of contraceptives in the State. It does not in terms make the use of contraceptives a crime, but the totality of the prohibition aims at nothing less. Presumably because contraceptives are of differing kinds and vary in the ways, internal and external, they can be used, and because of the difficulty of proving their use in the intimacy of the sexual act, the section strikes at their availability. Sub-section 1 of s. 17 of the Act of 1935 makes it an offence to sell, or expose, offer, advertise, or keep for sale or to import or attempt to import for sale any contraceptives. In effect, this makes it legally impossible to sell or buy a contraceptive in the State. Had the prohibition stopped there, it would have left the loophole that contraceptives could be imported otherwise than for sale. That loophole, however, is sealed by sub-s. 3 of s. 17 which makes contraceptives prohibited articles under the customs code so that their importation for any purpose, if effected with the intention of evading the prohibition, is an offence: see s. 186 of the Customs Consolidation Act, 1876; Frailey v. Charlton 62; Attorney General v. Deignan .63
Because contraceptives are not manufactured in this State, the effect of s. 17 of the Act of 1935 as a whole is that, except for contraceptives that have been imported without the intention of evading the prohibition on importation, it is not legally possible to obtain a contraceptive in this State. It is doubtful if the legislature could have taken more effective steps by means of the criminal law to put an end to their use in the State.
It is the totality and absoluteness of the prohibition effected by s. 17 of the Act of 1935 that counsel for the plaintiff impugn as infringing what they say are her constitutionally guaranteed rights as a citizen. As has been held in a number of cases64, the unspecified personal rights guaranteed by sub-s. 1 of s. 3 of Article 40 are not confined to those specified in sub-s. 2 of that section. It is for the Courts to decide in a particular case whether the right relied on comes within the constitutional guarantee. To do so, it must be shown that it is a right that inheres in the citizen in question by virtue of his human personality. The lack of precision in this test is reduced when sub-s. 1 of s. 3 of Article 40 is read (as it must be) in the light of the Constitution as a whole and, in particular, in the light of what the Constitution, expressly or by necessary implication, deems to be fundamental to the personal standing of the individual in question in the context of the social order envisaged by the Constitution. The infinite variety in the relationships between the citizen and his fellows and between the citizen and the State makes an exhaustive enumeration of the guaranteed rights difficult, if not impossible.
The dominant feature of the plaintiff’s dilemma is that she is a young married woman who is living, with a slender income, in the cramped quarters of a mobile home with her husband and four infant children, and that she is faced with a considerable risk of death or crippling paralysis if she becomes pregnant. The net question is whether it is constitutionally permissible in the circumstances for the law to deny her access to the contraceptive method chosen for her by her doctor and which she and her husband wish to adopt. In other words, is the prohibition effected by s. 17 of the Act of 1935 an interference with the rights which the State guarantees in its laws to respect, as stated in sub-s. 1 of s. 3 of Article 40?
The answer lies primarily in the fact that the plaintiff is a wife and a mother. It is the informed and conscientious wish of the plaintiff and her husband to maintain full marital relations without incurring the risk of a pregnancy that may very well result in her death or in a crippling paralysis. Section 17 of the Act of 1935 frustrates that wish. It goes further; it brings the implementation of the wish within the range of the criminal law. Its effect, therefore, is to condemn the plaintiff and her husband to a way of life which, at best, will be fraught with worry, tension and uncertainty that cannot but adversely affect their lives and, at worst, will result in an unwanted pregnancy causing death or serious illness with the obvious tragic consequences to the lives of her husband and young children. And this in the context of a Constitution which in its preamble proclaims as one of its aims the dignity and freedom of the individual; which in sub-s. 2 of s. 3 of Article 40 casts on the State a duty to protect as best it may from unjust attack and, in the case of injustice done, to vindicate the life and person of every citizen; which in Article 41, after recognising the family as the natural primary and fundamental unit group of society, and as a moral institution possessing inalienable and imprescriptible rights antecedent and superior to all positive law, guarantees to protect it in its constitution and authority as the necessary basis of social order and as indispensable to the welfare of the nation and the State; and which, also in Article 41, pledges the State to guard with special care the institution of marriage, on which the family is founded, and to protect it against attack.
Section 17, in my judgment, so far from respecting the plaintiff’s personal rights, violates them. If she observes this prohibition (which in practice she can scarcely avoid doing and which in law she is bound under penalty of fine and imprisonment to do), she will endanger the security and happiness of her marriage, she will imperil her health to the point of hazarding her life, and she will subject her family to the risk of distress and disruption. These are intrusions which she is entitled to say are incompatible with the safety of her life, the preservation of her health, her responsibility to her conscience, and the security and well-being of her marriage and family. If she fails to obey the prohibition in s. 17, the law, by prosecuting her, will reach into the privacy of her marital life in seeking to prove her guilt.
In Griswold v. Connecticut 65 the American Supreme Court held that a Connecticut statute which forbade the use of contraceptives was unconstitutional because it violated a constitutional right of marital privacy which, while unexpressed in the American Constitution, was held to be within the penumbra of the specific guarantees of the Bill of Rights. In a judgment concurring in the opinion of the court, Goldberg J. said at p. 498 of the report:”The State, at most, argues that there is some rational relation between this statute and what is admittedly a legitimate subject of state concernthe discouraging of extra-marital relations. It says that preventing the use of birth-control devices by married persons helps prevent the indulgence by some in such extra-marital relations. The rationality of this justification is dubious, particularly in light of the admitted widespread availability to all persons in the State of Connecticut, unmarried as well as married, of birth-control devices for the prevention of disease, as distinguished from the prevention of conception, see Tileston v. Ullman .66 But, in any event, it is clear that the state interest in safeguarding marital fidelity can be served by a more discriminately tailored statute, which does not, like the present one, sweep unnecessarily broadly, reaching far beyond the evil sought to be dealt with and intruding upon the privacy of all married couples.” At p. 499 Goldberg J. cites with approval the words of Harlan J. in Poe v. Ullman 67:”. . . the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected. It is one thing when the State exerts its power either to forbid extra-marital sexuality altogether, or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy.”
It has been argued that Griswold’s Case 68 is distinguishable because the statute in question there forbade the use of contraceptives, whereas s. 17 of the Act of 1935 only forbids their sale or importation. This submission was accepted in the High Court. However, I consider that the distinction sought to be drawn is one of form rather than substance. The purpose of the statute in both cases is the same: it is to apply the sanction of the criminal law in order to prevent the use of contraceptives. What the American Supreme Court found in Griswold’s Case 69 to be constitutionally objectionable was that the sweep of the statute was so wide that proof of an offence would involve physical intrusion into the intimacy of the marriage relationship, which the court held to be an area of constitutionally protected privacy. If the plaintiff were prosecuted for an offence arising under or by virtue of s. 17 of the Act of 1935, while there might not be the same degree of physical intrusion, there would necessarily be a violation of intimate aspects of her marital life which, in deference to her standing as a wife and mother, ought not to be brought out and condemned as criminal under a glare of publicity in a courtroom. Furthermore, if she were found guilty of such an offence, in order to have the penalty mitigated to fit the circumstances of her case, she would have to disclose particulars of her marital dilemma which she ought not to have to reveal.
In my opinion, s. 17 of the Act of 1935 violates the guarantee in sub-s. 1 of s. 3 of Article 40 by the State to protect the plaintiff’s personal rights by its laws; it does so not only by violating her personal right to privacy in regard to her marital relations but, in a wider way, by frustrating and making criminal any efforts by her to effectuate the decision of her husband and herself, made responsibly, conscientiously and on medical advice, to avail themselves of a particular contraceptive method so as to ensure her life and health as well as the integrity, security and well-being of her marriage and her family. Because of the clear unconstitutionality of the section in this respect, I do not find it necessary to deal with the submissions made in support of the claim that the section violates other provisions of the Constitution.
What stands between the plaintiff and the exercise of any constitutional right claimed by her in this case is sub-s. 3 of s. 17 of the Act of 1935. With that subsection out of the way, her cause of complaint would disappear because what she wishes to do (to import the required contraceptive by post) would then be legal as the importation, not being for sale, would not be forbidden by sub-section 1. Since s. 17 without sub-s. 3 can stand as a self-contained entity, independently operable and representing the legislative intent, sub-s. 3 is capable of being severed and declared unconstitutional. Therefore, I would allow the appeal to the extent of declaring that sub-s. 3 of s. 17 of the Act of 1935 is without validity as being inconsistent with the Constitution. In the particular circumstances of this case, I do not find it necessary to make any adjudication on the constitutionality of the remaining part of the section.

 

 

 

T.D. v. Minister for Education

[2001] 4 IR 259
Keane C.J.
S.C.
expedition: within that framework, it remained for the State to determine how best to satisfy those constitutional rights.
As to the submission that the court had no jurisdiction to grant a mandatory injunction of this nature, he submitted that, while this might be so in an ordinary lis inter partes, different considerations arose where the court was being asked to ensure the proper protection of constitutional rights. Nor was it a case in which, as the respondents claimed, the court had failed properly to balance the interests of the parties in a proportionate manner: the damage suffered by the applicants in the present case as a result of the absence of the facilities was real and substantial and, given that the respondents themselves had framed the programme which the order of the court required them to implement within the specified time, it could not be said that it imposed a disproportionate burden on them. As to the objection that compliance with the injunction would require constant supervision by the court, he submitted that this alleged difficulty was overstated: the obligations imposed on the applicants by the order were clear and specific and in accordance with their own programme and there should be no need for any supervision of their compliance. The fact that they would have to come to court if they proposed to depart from the time scale prescribed by the court meant that they were in no different position from any other party who was the subject of an injunction and who sought to have its terms varied.
Counsel for the applicants submitted that the respondents were, in effect, saying that the courts were precluded from granting mandatory injunctions so as to ensure that the other organs of government carried out their constitutional duties. If that were the law, it would mean that the courts would be powerless to ensure the upholding of the Constitution. In fact, he urged, the courts had on more than one occasion recognised that circumstances could arise in which the courts would grant mandatory relief as against the other organs of government, citing Byrne v. Ireland [1972] I.R. 241. In the present case, the only way in which the applicants’ rights could be upheld was by the granting of such a mandatory injunction.
The constitutional rights of the applicants
The right claimed on behalf of each of the applicants can be defined as:-
“a right to be placed and maintained in secure residential accommodation so as to ensure, so far as practicable, his or her appropriate religious and moral, intellectual, physical and social education”
No such right is expressly recognised by the Constitution and, to the extent that it exists, it must be as one of the unenumerated personal rights guaranteed under Article 40.3.1 of the Constitution in accordance with the construction of that Article adopted by the High Court and this court in Ryan v. The Attorney General [1965] I.R. 294.
Article 42.1 of the Constitution provides that:-
“The State acknowledges that the primary and natural educator of the child is the family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.”
Article 42.5 provides that:-
“In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State, as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.”
In G. v. An Bord Uchtála [1980] I.R. 32 at pp. 55 to 56, O’Higgins C.J., referred to the rights of children as follows:-
“The child also has natural rights. Normally, these will be safe under the care and protection of its mother. Having been born, the child has the right to be fed and to live, to be reared and educated, to have the opportunity of working and of realising his or her full personality and dignity as a human being. These rights of the child (and others which I have not enumerated) must equally be protected and vindicated by the State. In exceptional cases the State, under the provisions of Article 42, s. 5, of the Constitution, is given the duty, as guardian of the common good, to provide for a child born into a family where the parents fail in their duty towards that child for physical or moral reasons.”
It was also made clear by Finlay C.J., giving the judgment of this court in In re The Adoption (No. 2) Bill, 1987 [1989] I.R. 656, that Article 42.5 was not to be confined, in its reference to the duty of parents towards their children, to the duty of providing education for them. He said at p. 663:-
“In the exceptional cases envisaged by that section where a failure in duty has occurred, the State by appropriate means shall endeavour to supply the place of the parents. This must necessarily involve supplying not only the parental duty to educate but also the parental duty to cater for the other personal rights of the child.”
In F.N. v. Minister for Education [1995] 1 I.R. 409, Geoghegan J. expressed the view that the right claimed on behalf of the applicant in that case – broadly similar to the right asserted on behalf of the applicants in the present case – was one of the unenumerated rights of children which parents were obliged to protect and uphold and that their failure to do so rendered that case an exceptional case within the meaning of Article 42.5 in which the State was obliged to uphold and protect the right.
In the judgments which they deliver this morning, Hardiman J. reserves the question as to whether this case was correctly decided and Murphy J. expresses the view that it was wrong in law and should not now be followed. The correctness of the decision, however, was not challenged on behalf of the respondents in the present case or indeed in any of the previous cases to which they were parties.
Geoghegan J. arrived at his conclusion in F.N. v. Minister for Education [1995] 1 I.R. 409, at least in part, in the light of the passage I have already cited from the judgment of O’Higgins C.J. in G. v. An Bord Uchtála [1980] I.R. 32. In his judgment in this case, Murphy J. points out that the proposition there laid down by the learned Chief Justice was not expressly assented to by a majority of the court. It is also clear that the passage in question is an application to the particular case of children of the doctrine of unenumerated rights first laid down by the High Court and endorsed by this court in Ryan v. The Attorney General [1965] I.R. 294.
The implications of that doctrine have not at this stage been fully explored by the courts. Two questions, in particular, merit further consideration. The first is as to the criteria by which the unenumerated rights are to be identified. In the High Court in that case, Kenny J. said that there were many personal rights of the citizen which flow from “the Christian and democratic nature of the State” which are not mentioned in Article 40. There was no explicit endorsement of that view in this court, perhaps because the right under discussion in that case was conceded on behalf of the Attorney General to be such an unenumerated right. Whether the formulation adopted by Kenny J. is an altogether satisfactory guide to the identification of such rights is at least debatable. Secondly, there was no discussion in the judgment of this court as to whether the duty of declaring the unenumerated rights, assuming them to exist, should be the function of the courts rather than the Oireachtas.
In my judgment in I. O’T. v. B [1998] 2 I.R. 321, I said at p. 370 that:-
“save where such an unenumerated right has been unequivocally established by precedent, as, for example, in the case of the right to travel and the right of privacy, some degree of judicial restraint is called for in identifying new rights of this nature. (See, in this context, the remarks of McCarthy J. writing extra-judicially in”Observations on the Protection of Fundamental Rights in the Irish Constitution”, Constitutional Adjudication in European Community and National Law, (Dublin, 1992) at pp. 179 to 182) and of G.W. Hogan in “Unenumerated Personal Rights: Ryan’s Case Re-evaluated”(1990 to 1992) Irish Jurist N.S. 95).”
For the reasons there set out and in the light of the considerations so forcefully urged by Murphy J. in his judgment in this case, I would have the gravest doubts as to whether the courts at any stage should assume the function of declaring what are today frequently described as “socio-economic rights” to be unenumerated rights guaranteed by Article 40. In my view, however, the resolution of that question must await a case in which it is fully argued.
For the purposes of this case, it is sufficient to say that, assuming that the passage from the judgment of O’Higgins C.J. in G. v. An Bord Uchtála [1980] I.R. 32 correctly states the law, Geoghegan J. was clearly correct in holding that the right claimed on behalf of the applicant in that case was one of the unenumerated rights of children which parents were obliged to protect and uphold.
It should, however, be pointed out that the right thus identified, and which I have endeavoured to formulate with as much precision as possible, is one which arises from the special position of children. They are dependent in their childhood for the nurture, care and education, which is essential for their physical, intellectual and emotional growth, on their parents. In the great majority of cases, those needs are met by the parents, making use, obviously, in modern conditions of the great range of educational facilities now provided by the State, directly or indirectly. It is clear that the applicants in these and similar cases, because of behavioural problems deriving from various causes, require special treatment in secure units and, in the result, they clearly constitute exceptional cases in which the State is under a duty to ensure that that their right to such treatment is upheld.

 

MR -v- TR & Ors

 

[2006] IEHC 359 (15 November 2006)

JUDGMENT of Mr. Justice McGovern delivered on the 15th day of November 2006.
1. The Facts
The plaintiff and the first named defendant were married on the 5th March, 1992. In 1994 they sought fertility advice from their General Practitioner and were referred to Holles Street Hospital. In July 1995 the Plaintiff underwent a laparoscopy which did not indicate any particular fertility problem. In March 1996 the plaintiff was checked for a possible cyst on her ovary due to the fact that she was experiencing some pain in her abdomen. In December 1996 she underwent a medical procedure at the National Maternity Hospital Holles Street, Dublin. This involved a HCG injection in mid cycle. She became pregnant in January 1997 and a son was born in October 1997.
Shortly after the birth of her son the plaintiff underwent surgery for an ovarian cyst and she lost two thirds of her right ovary. She was referred back to the National Maternity Hospital in Holles Street in 1999. On the 5th May, 2000 she underwent another laparoscopy. She had fertility treatment in 2001 at Holles Street which proved to be unsuccessful. In July 2001 the plaintiff and the first named defendant were referred for IVF treatment. They elected to have the treatment at the Sims Clinic (the fourth named defendant). Their first appointment at the fourth named defendant’s clinic was in October 2001. They returned to the clinic in January 2002. On the 29th January, 2002 the plaintiff signed a document entitled “Consent to Treatment Involving Egg Retrieval”. In this document the plaintiff agreed to the removal of eggs from her ovaries and a mixing of the eggs with the sperm of the first named defendant. On the same date the plaintiff and the first named defendant signed a document entitled “Consent to Embryo Freezing”. In that document it was stated, inter alia, “we consent to the cryo preservation (freezing) of our embryos and take full responsibility on an ongoing basis for these cryo preserved embryos.” The first named defendant signed a document entitled “Husband’s Consent” in which he acknowledged that he was the husband of the plaintiff and consented to the fertilisation of the plaintiff’s eggs and the implantation of three embryos. He also acknowledged in that document that he would become the legal father of any resulting child. On the same date the first named defendant signed a “Semen Collection Form” confirming that the sample produced was his. On the 1st of February, 2002 the plaintiff signed a form entitled “Consent to Embryo Transfer”. In this she agreed to the placing in her uterus of three embryos and the administration of any drugs or anaesthetics that might be found necessary in the course of the procedure.
As a result of the IVF treatment six viable embryos were created. Three were inserted in the plaintiff’s uterus and the remaining three were frozen. The plaintiff became pregnant as a result of the transfer of the three embryos and gave birth to a daughter on the 26th of October, 2002.
Towards the end of the plaintiff’s pregnancy following IVF treatment, marital difficulties arose between the plaintiff and the first named defendant which resulted in the first named defendant leaving the family home. He had entered into a second relationship. An attempt at reconciliation failed and the parties eventually entered into a judicial separation although they still remain legally husband and wife. The plaintiff wishes to have the three frozen embryos implanted in her uterus and the first defendant does not wish this to happen and does not wish to become the father of any child that might be born as a result of the implantation of the frozen embryos.
I have already held, after the hearing of a preliminary issue, there was no agreement between the plaintiff and the first named defendant as to what would happen the frozen embryos if the implantation of the initial three embryos resulted in a successful pregnancy. I also held that the first named defendant did not give his consent either express or implied to the implantation of the frozen embryos and it is clear that the fourth named defendant is unwilling to release the embryos into the care and custody of the plaintiff without the consent of the first named defendant. There is an issue concerning the storage of the embryos. The second, third or fourth named defendant have indicated they will abide by any order of the court. They pointed out that the stored embryos could only be removed from their storage unit and transferred elsewhere if the plaintiff and the first named defendant agreed. On the 24th June, 2005 the fourth named defendant wrote to the plaintiff and the first named defendant stating “we have not received any payment for storage of your embryos since June 2003. This failure of payment despite a request for same is a breach of unit policy which renders our implied storage contract null and void.” They did state that they were prepared “as an act of altruism” to maintain the integrity of the embryos for an additional year and pointed out that the clinic and its agents had no further ongoing responsibility for the embryos. It is against this background that the proceedings have been commenced.
2. The Issues
While the issues are set out in the pleadings, I was informed by Counsel for the Plaintiff that the issues had been resolved into more specific topics set out in a draft list of issues agreed between the parties and furnished with the book of pleadings. The issues are stated to be as follows:
“1. Whether the frozen embryos are ‘unborn’ for the purposes of Article 40.3.3 of the Constitution of Ireland.
2. Whether the plaintiff and the first named defendant had agreed that the said embryos would be returned to the plaintiff’s uterus and, if so, whether the said agreement still binds the parties irrespective of the subsequent marital separation.
3. Irrespective of the answer to 2, is the plaintiff entitled to the return of the said embryos to her uterus whether by virtue of Article 40.3.3 and/or Article 41 of the Constitution or otherwise?
4. Is the first named defendant entitled to withdraw his consent to the said return of the embryos by virtue of the subsequent breakdown of the marriage and/or by virtue of any constitutional right to determine how the said embryos might be used, stored, maintained or kept.”
After hearing legal argument it was agreed that issue No. 2 should be dealt with first by the Court, this being a private law issue. Evidence was heard on the issue and judgment was delivered by this Court on the 18th July, 2006. In that judgment I held that the first named defendant did not give his express or implied consent to the implantation of the three frozen embryos in the plaintiff’s uterus. That preliminary hearing disposed of item 2 on the list of issues. Of the remaining issues the principle one is issue number 1 namely, whether the frozen embryos are “unborn” for the purposes of Article 40.3.3 of the Constitution of Ireland. The other issues are subsidiary to that question and depend on the answer to that question although there is also the question of Article 41 which arises in the third issue which I will come to later in this judgment. A number of witnesses were called on behalf of the plaintiff who gave evidence as to when, in their view, life begins. Some of these witnesses argued that from the moment of fertilisation of the ovum by the sperm a new human life begins. Other witnesses called to give evidence in this case postulated that it was only when the embryo became implanted in the uterus that the potential to be born existed and that human life began at that point. Yet other witnesses indicated that human life began at the formation of the primitive streak and some witnesses offered the view that it was impossible to say when human life begins. What is clear is that a debate which has existed over centuries continues to this day even with the major advances which have been made in medicine and science. In opening the case Mr. Hogan for the plaintiff stated that the court “… in the context of this case, is confronted with the most difficult decision of all, a decision which probably or at least to date, eluded the most gifted and brilliant of medical scientists, scientists… and those in the medical community and indeed in other communities who have reflected on this; at what point does human life begin?” It is possible for Scientists and Embryologists to describe in detail the process of development from the ovum to the embryo and on to the stage when it becomes a foetus after implantation of the embryo in the wall of the uterus, but in my opinion, it is not possible for this Court to state when human life begins. The point at which people use the term “human being” or ascribe human characteristics to such genetic material depends on issues other than science and medicine. For example, it is a matter which may be determined by one’s religious or moral beliefs and, even within different religions, there can be disagreements as to when genetic material becomes a “human being”. But it is not the function of the courts to choose between competing religious and moral beliefs. This issue was considered by Munby J. in The Queen on the application of Smeaton v. Secretary of State for Health [2002] 2 FLR 146. This was a judicial review proceeding brought by the society for the protection of unborn children (SPUC) challenging the making of a statutory instrument which permitted the sale of the “morning-after pill” to women of 16 years and over. It was alleged by the applicant that such a pill was an abortifacient substance used with intent to procure miscarriage and, therefore, a substance whose supply, administration and use was a criminal offence under the Offence Against the Person Act 1861 ss. 58 and/or 59. Munby J. said at p. 157:
“I have said that this case raises moral and ethical questions of great importance. It would be idle to suggest otherwise. For those who view such matters in religious terms it raises religious and theological questions of great – and to some, transcending importance. But I must emphasis that so far as the Court is concerned, this case has nothing to do with either morality or religious belief. The issue which I have to decide is not whether the sale and use of the morning after pill is morally or religiously right or wrong, nor whether it is socially desirable or undesirable. What I have to determine is whether it may constitute an offence under the 1861 Act.
Cases such as this, and others in the field of medicine…raise moral, religious and ethical issues on which, as Lord Browne – Wilkinson pointed out in Airedale NHS Trust v. Bland [1993] AC 789, [1993] 1 FLR 1026, at 879 E, 880 A and 1050 F, 1051 B respectively, ‘society is not all of one mind’ and on which indeed ‘society as a whole is substantially divided’. Our society including the most thoughtful and concerned sections of our society, are deeply troubled by and indeed deeply divided over, such issues. These are topics on which men and women of different faiths, or indeed of no faith at all, may and do hold passionately and with the utmost sincerity, starkly differing views. All of those views are entitled to the greatest respect but it is not for a judge to choose between them.”
I adopt those words as being relevant and applicable to the facts and issues in this case.
Having heard the evidence in this matter and submissions of counsel I take the view that what I have to decide is whether the three frozen embryos at issue in this case constitute the “unborn” for the purposes of Article 40.3.3 of the Constitution. In carrying out that task I must, of course, have regard to principles of constitutional interpretation.

Principles of Constitutional Interpretation
Article 40.3.3 of the Constitution provides:
“3° The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.
This subsection shall not limit freedom to travel between the State and another state.

This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.”

The Irish text reads:

“3° Admhaíonn an Stát ceart na mbeo gan breith chun a mbeatha agus, ag féachaint go cuí do chomhcheart na máthar chun a beatha, ráthaíonn sé gan cur isteach lena dhlíthe ar an gceart sin agus ráthaíonn fós an ceart sin a chosaint is a shuíomh lena dhlíthe sa mhéid gur féidir é.

Ní theorannóidh an fo-alt seo saoirse chun taisteal idir an Stát agus stát eile.

Ní theorannóidh an fo-alt seo seoirse chun faisnéis a fháil nó a chur ar fáil sa Stát maidir le seibhísí atá ar fáil go dleathach i stát eile ach sin faoi chuimsiú cibé coinníollacha a fhéadfar a leagan síos le dlí.”

The Article does not define what is meant by “unborn” in the English version and “beo gan breith” in the Irish version.
I have been referred to the Constitution Review Group’s report published in July, 1996. The review group pointed out that:
“Definition is needed as to when the ‘unborn’ acquires the protection of the law. Philosophers and scientists may continue to debate when human life begins but the law must define what it intends to protect”.
In considering the meaning of the words in Article 40.3.3 the Court can have regard to the legislative history of the amendment to Article 40.3 but not to debates in the Oireachtas. See Maher v. Minister for Agriculture [2001] 2 IR 139 at 145. See also Campaign to Separate Church and State v. Minister for Education [1998] 3 I.R. 321 at 360. In Curtain v. Dail Eireann [2006] 2 ILRM 99 at 128 Murray C.J. stated that Article 34.4.1 contained no guidance on the power of the houses of the Oireachtas to appoint investigating committees or the powers that they may delegate to such committees. “In these circumstances, it is reasonable to consider whether there is any history or background to the enactment of the Constitution capable of elucidating what was in the contemplation of the framers”. So in the circumstances of this case one can look at the history or background to the amendment of the Constitution which resulted in Article 40.3.3 being adopted by the people. In The State (Healy) v. Donoghue [1976] I.R. 325 O’Higgins C.J. stated at p. 347 that the preamble to the Constitution:
“…makes it clear that rights given by the Constitution must be considered in accordance with concepts of prudence, justice and charity which may gradually change or develop as society changes and develops, and which fall to be interpreted from time to time in accordance with prevailing ideas. The preamble envisages a constitution which can absorb or be adapted to such change in other words the Constitution did not seek to impose for all time the ideas prevalent or accepted with regard to these virtues at the time of its enactment”.
He went on to quote Walsh J. in McGee v. The Attorney General [1994] I.R. 284 at 319 when he said:
“According to the preamble, the people gave themselves the Constitution to promote the common good with due observance of prudence, justice and charity so that the dignity and freedom of the individual might be assured. The judges must, therefore, as best as they can from their training and their experience interpret these rights in accordance with their ideas of prudence, justice and charity. It is but natural that from time to time the prevailing ideas of these virtues may be conditioned by the passage of time; no interpretation of the Constitution is intended to be final for all time. It is given in the light of prevailing ideas and concepts.”
These views expressed by O’Higgins C.J. and Walsh J. acknowledge that changing values in society may mean that rights which were not acknowledged in the past may now be accepted as firmly established under the Constitution. They are not, in my view, authority for the proposition that the word “unborn” in Article 40.3.3 should be given a different meaning to that which was understood by the people at the time when they approved the amendment, if it can be ascertained, from the historical context, what the word was understood to mean.

Are the Frozen Embryos “Unborn” Within the Meaning of Article 40.3.3 of the Constitution of Ireland?
The word “unborn” appears in Article 40.3.3 and also appears in s. 58 of the Civil Liability Act 1961. It is not defined in either case. Section 58 of the Civil Liability Act, 1961 provides as follows:
“For the avoidance of doubt it is hereby declared that the law relating to wrongs shall apply to an unborn child for his protection in like manner as if the child were born, provided the child is subsequently born alive.”
The rights given in s. 58 can only be invoked if:
“…the child is subsequently born alive”
Thus, to take a simple example, if a pregnant woman is involved in a car accident and the child in her womb sustains injuries due to someone’s negligence, that child, on birth, would be entitled to have proceedings brought on his behalf to recover damages for such injuries. It would seem, on the face of it, that “unborn” in s. 58 of the Civil Liability Act 1961 refers to a child in the womb. But it could be argued that if a child, created as a result of IVF treatment, was born with injuries resulting from a negligent act done to the embryo in vitro that the child subsequently born might come within the section. One could think of a number of arguments which might be made if this issue ever came before the Courts but it is not necessary for me to decide such issues here. Suffice it to say that the word “unborn” as set out in the Civil Liability Act does not offer much assistance to my determination of the issues in this case.
What is the meaning of “unborn” in Article 40.3.3? Is it the fertilised ovum or, life from the moment of conception, or does it mean something else? The plaintiff argues that where there is uncertainty the Courts must favour life in interpreting the word “unborn”. The plaintiff urges that there is at least significant and weighty evidence that the frozen embryos at issue in this case could be human life and that if this is an issue which cannot be determined one way or the other the Court should err in favour of life and hold that such embryos are constitutionally protected.
In making this argument the plaintiffs refer to the evidence of Dr. Clinch
where he stated:-
“The commission on assisted reproduction actually made a statement about life starting, but it produced no biological or scientific evidence to prove that implantation was the start of life. So, while there is any doubt whatsoever, you come down on the side of life and since the embryo has all the genetic material it needs to turn into a human being, you would instinctively come down on the side of life.” (Transcript day 6, answer 31).
It seems to me that it is precisely because of this uncertainty and lack of agreement among the scientific and medical community as to when life begins that most people agree that embryos in vitro are deserving of special respect and that their very creation raises serious moral and ethical issues which in themselves impose restraints on what may or may not be done with them. There are also formal ethical restraints imposed on the medical profession by their governing body. I have been referred to the Medical Council’s Guide to Ethical Conduct and Behaviour (Sixth Edition 2004). In that guide section F deals with “Genetic Testing and Reproductive Medicine.” Clause 24.1 states inter alia; “the creation of new form of life for experimental purposes or the deliberate and intentional destruction of in-vitro human life already formed is professional misconduct.” Clause 24.5 deals with in vitro fertilisation (I.V.F.) and states, inter alia, “any fertilised ovum must be used for normal implantation and must not be deliberately destroyed”.
In The Attorney General (S.P.U.C.) v. Open Door Counselling Limited [1988] 593 at 598 Hamilton P. stated:
“…the right to life of a foetus, the unborn, is afforded statutory protection from the date of its conception.”
He stated that prior to the enactment of the Eight Amendment to the Constitution the right to life of the unborn had been referred to and acknowledged by Walsh J. in the course of his judgment in G. v. An Bord Uchtála [1980] I.R 32 where he stated at p. 69:-
“Not only has the child born out of lawful wedlock the natural right to have its welfare and health guarded no less well than of a child born in lawful wedlock, but a fortiori it has the right to life itself and the right to be guarded against all threats directed to its existence whether before or after birth… the right to life necessarily implies the right to be born, the right to preserve and defend (and to have preserved and defended that life… the child’s natural right to life and all that flows from that right are independent of any right of the parent as such.”
The statement of Hamilton P. that:
“…the right to life of the foetus, the unborn, is afforded statutory protection from the date of its conception”
was criticised by Munby J. in the Smeaton case at p. 202 when he said:
“It may be observed that the point with which I am concerned did not arise for decision in that case. Moreover unless he was using the word ‘conception’ in the sense of the medical definitions given by Reiss’s Reproductive Medicine: from A – Z (1998) and Stedman’s Medical Dictionary (27th Edn. 1999) … the judge’s comments would seem to display some internal inconsistency since he refers to the statutory protection as being both to ‘the foetus in the womb’ and as existing from ‘the date of … conception’”.
Munby J. goes on to say that there is nothing in the subsequent proceedings in the Irish Supreme Court which throws any light on the point. The complete paragraph in which the observation of Hamilton P. is contained reads as follows:-
“Sections 58 and 59 of the Offences Against the Person Act, 1861, protected and protect the foetus in the womb and having regard to the omission of the words ‘Quick with child’ which were contained in the statute of 1803 hereinbefore referred to, the protection dates from conception. Consequently, the right to life of the foetus, the unborn, is afforded statutory protection of the date of its conception.”
Sections 58 and 59 of the 1861 Act made it a criminal offence to administer any poison or other noxious thing or use any instrument or other means with intent to procure the miscarriage of any woman. In plain language it made it a criminal offence to procure or carry out an abortion. Since Hamilton P. was talking about the unborn in the context of the statutory protection afforded by the 1861 Act it seems to me that he was talking about the ‘unborn’ in the womb. I am reinforced in that view because at p. 614 he stated:
“As late as 1983, the people enacted the Eight Amendment to the Constitution. Consequently, there can be no doubt but that abortion, which is an interference with and destruction of the right to life of the unborn, is contrary to national policy, public morality, contrary to law, both common law and statute law, to the fundamental right of the unborn and contrary to that right to life as acknowledged by the Eight Amendment to the Constitution.”
Here he was clearly talking in the context of “abortion” or the termination of a pregnancy.
In The Attorney General v. X [1992] 1 IR 1 at p. 72 Hederman J. stated:-
“The Eight Amendment establishes beyond any dispute that the constitutional guarantee of the vindication and protection of life is not qualified by the condition that life must be one which has achieved an independent existence after birth. The right of life is guaranteed to every life born or unborn. One cannot make distinctions between individual phases of the unborn life before birth or between unborn and born life.”
The plaintiff argues that from the moment of conception there is a continuum and that one cannot or should not make distinctions between the various stages of development of the embryo and the foetus. When one looks further at the judgment of Hederman J. in the X case it seems clear that he is talking about “unborn” life in the context of pregnancy. He says at p. 72:
“The State’s duty to protect life also extends to the mother. The natural connection between the unborn child and the mother’s life constitutes a special relationship. But one cannot consider the unborn life only as part of the maternal organism. The extinction of unborn life is not confined to the sphere or private life of the mother or family because the unborn life is an autonomous human being protected by the Constitution. Therefore the termination of pregnancy other than a natural one has a legal and social dimension and requires a special responsibility on the part of the State. There cannot be a freedom to extinguish life side by side with guarantee and protection of that life because the termination of pregnancy always means the destruction of an unborn life. Therefore no recognition of a mother’s right of self determination can be given priority over the protection of the unborn life. The creation of a new life, involving as it does pregnancy, birth and raising the child, necessarily involves some restriction of a mother’s freedom but the alternative is the destruction of the unborn life. The termination of pregnancy is not like a visit to the doctor to cure an illness. The State must, in principle, act in accordance with the mother’s duty to carry out the pregnancy and, in principle must also outlaw termination of pregnancy.”
There can be no doubt that Hederman J. was speaking in the context of the termination of a pregnancy and that the “unborn” that he referred to in his judgment was to be construed in that context. The same can be said of the judgment of McCarthy J. in this case where he stated at pg.79:-
“The right of the girl here is a right to a life in being; the right of the unborn is to a life contingent; contingent on survival in the womb until successful delivery. It is not a question of setting one above the other but rather of vindicating, as far as practicable, the right to life of the girl/mother (Article 40, s.3, sub-s. 2) whilst with due regard to the equal right to life of the girl/mother indicating as far as practicable the right to life of the unborn. (Article 40, s.3, sub-s.3).”
At pg.81 of the judgment McCarthy J. stated:-
“Before the enactment of the Amendment, the provisions of s.58 of the Offences Against the Person Act, 1861, made it a criminal offence to procure a miscarriage. The terms were wide enough to make the act of the prospective mother or anyone taking part in the procedure guilty of an offence. Abortion, for any purpose, was unlawful. The Eight, like any Amendment to the Constitution, originated in the legislature and, in this instance, was initiated by the executive. The relevant bill was passed by both houses of the Oireachtas and in accordance with the Constitution, it was then voted on by the people in a referendum. Its purpose can be readily identified – it was to enshrine in the Constitution the protection of the right to life of the unborn thus precluding the legislature from an unqualified repeal of s.58 of the Act of 1861 or otherwise, in general, legalising abortion.”
This view was confirmed by the Supreme Court Baby O. v. The Minister for Justice [2002] 2 IR 169. In the judgment of the Court, Keane C.J. said at p.183 that Article 40.3.3:-
“…as explained by the judgments of the majority in this Court in Attorney General v. X. [1992] 1 IR 1, was intended to prevent the legalisation of abortion either by legislation or judicial decision within the State, except where there was a real and substantial risk to the life of the mother which could only be avoided by the termination of the pregnancy.”
It is interesting to note that O’Flaherty J. at p.86 states:-
“The enactment of Article 40, s.3, sub-s.3, in 1983 did not I believe bring about any fundamental change in our law. Already, s.58 of the Offences Against the Person Act, 1861, made it an offence unlawfully to bring about the miscarriage of a woman.”
These remarks seem to further confirm the linking of Article 40.3.3 with the abortion issue. If this is correct then it equates “unborn” with an embryo which has implanted in the womb, or a foetus.
In the Smeaton case Munby J. looked that the history of the 1861 Act and in his judgement stated at p.185-:-
“The fact is that some of the leading and most authoritative medical works of the time available to parliament in 1861 – I have in mind John Ramsbotham, Burns and, in particular, Francis Ramsbotham are strongly supportive of the idea that miscarriage becomes possible only after implantation.”
What clearly emerges from the authorities I have referred to is that the Courts have declared that the Eight Amendment to the Constitution giving rise to the wording in Article 40.3.3 was for the purpose of making secure the prohibition on abortion expressed in s.57 and 58 of the Offences Against the Person Act, 1861 and not to permit abortion or termination of pregnancy except where it is established as a matter of probability that there is a real and substantial risk to the life of the mother if such termination were not effected. The Courts have never, thus far, considered whether the word “unborn” in Article 40.3.3 includes embryos in vitro. In the Smeaton case Munby J. referred to a number of commentaries on the issue of law and medical ethics and medical legal aspects of reproduction. He cited a publication called Post-Coital Anti Pregnancy Techniques and the Law by K. Norrie who, he said puts the argument very clearly:-
“…The question of when human life begins as a matter of morality, or indeed biology, is not the same as the question of when pregnancy begins for the purpose of the law. Human life may – or may not – begin in a test-tube, but the mere existence of a fertilised egg in a test-tube does not make the woman who produced the egg pregnant…” See p.211.
If Article 40.3.3 and the 1861 Act are concerned with the termination of pregnancy this does not mean that they are concerned with embryos in vitro. There has been no evidence adduced to establish that it was ever in the mind of the people voting on the Eight Amendment to the Constitution that “unborn” meant anything other than a foetus or child within the womb. To infer that it was in the mind of the people that “unborn” included embryos outside the womb or embryos in vitro would be to completely ignore the circumstances in which the amendment giving rise to Article 40.3.3 arose. While I accept that Article 40.3.3 is not to be taken in isolation from its historical background and should be considered as but one provision of the whole Constitution, this does not mean that the word “unborn” can be given a meaning which was not contemplated by the people at the time of the passing of the Eight Amendment and which takes it outside the scope and purpose of the amendment. In P.J. Carroll & Co. v. Minister for Health [2005] 2 I.L.R.M., 481 at 486, Geoghegan J. stated at 486:-
“Although Courts in this jurisdiction interpret statutes by reference to the words used, they do not do so in a vacuum. There is always a contextual background of which the Courts are perfectly well aware. There can be no question of course in a constitutional challenge, of the State adducing evidence as to what were the intentions as such of the Oireachtas or particular members thereof. But that is quite different from suggesting that there cannot be evidence of objective external facts existing at the time that the legislation was enacted.”
The Courts have already pronounced on the purpose of the Eight Amendment to the Constitution. The plaintiff in this case assumes the burden of proving that the word “unborn” meant something more than the foetus or child in the womb since the clear purpose of the amendment was to deal with the issue of termination of pregnancy. Evidence has been adduced by the plaintiff as to when human life begins, but there is much disagreement on this question among the medical and scientific community and, indeed, among the witnesses in this case. The question of when human life begins is not what the Court is concerned with in the interpretation of Article 40.3.3. No evidence has been adduced by the plaintiff which would enable the Court to hold that the word “unborn” in Article 40.3.3 includes embryos outside the womb or in vitro. I have therefore come to the conclusion that the word “unborn” within Article 40.3.3 does not include embryos in vitro and therefore does not include the three frozen embryos which are at the heart of the dispute between the plaintiff and the first named defendant.
It is not for the Courts to decide whether the word “unborn” should include embryos in vitro. This is a matter for the Oireachtas, or for the people, in the event that a Constitutional Amendment is put before them. In 2000 the Government established a Commission on Assisted Human Reproduction to make recommendations in the area of in vitro fertilisation practices. The members of the Commission included a wide range of experts in the fields of reproductive medicine embryology genetics law and other relevant areas which can be ascertained from the description of the members of the Commission published at the commencement of their report. The Commission also invited a number of additional experts with complementary expertise in specific areas including Philosophers, Sociologists, a Director of Ecumenical Studies and a Roman Catholic Theologian. In March, 2005 the Commission published its report in which it made forty recommendations, most of which were unanimous. The first recommendation (unanimous) was that “a regularity body should be established by an Act of the Oireachtas to regulate A.H.R. services in Ireland”. (By A.H.R. they meant Assisted Human Reproduction). A majority of the Commission recommended that “the embryo formed by IVF should not attract legal protection until placed in the human body, at which stage it should attract the same level of protection as the embryo formed in vivo”. It is a matter for the Oireachtas as to whether they implement the recommendations of the Commission. In the meantime the Courts are being ask to deal with a complex dispute involving social issues which should be governed by a regulatory regime established by an Act of the Oireachtas.
If the frozen embryos which are the subject matter of this case are not “unborn” within the meaning of Article 40.3.3 of the Constitution and are not given protection by the Constitution they do not have “personal rights” under the Constitution.
Since the three frozen embryos are not “unborn” within the meaning of article 40.3.3, this raises the issue as to what protection (if any) is currently afforded these embryos. While there is considerable disagreement as to whether embryos, before implantation in the womb, constitute viable human life, there seems to be almost complete agreement on the fact that, because of their nature, embryos are deserving of respect. I have already referred to the ethical guidelines of the Medical Council. These ethical guidelines do not have the force of law and offer only such limited protection as derives from the fear on the part of a doctor that he might be found guilty of professional misconduct with all the professional consequences that might follow.
The fact that something is not prohibited by the law does not of itself mean that it is morally acceptable to carry out that act. There may be many people who, because of their moral or religious outlook regard the process of IVF as unacceptable even though it is permitted by the law. There are others who see this a great advance in medical science giving the opportunity to infertile couples to have children. In issues such as this there may well be a divide between Church and State, and between one religion and another. It is not for the Courts to weigh the views of one religion against another, or to choose between one moral view point and another. All are entitled to equal respect provided they are not subversive of the law, and provided there are no public policy reasons requiring the Courts to intervene. Moral responsibility exists even in the absence of law and arises out of the freedom of choice of the individual. People have many different ideas of morality. Society is made up of people of various religious traditions and none. If the law is to enforce morality then whose morality is it to enforce? The function of the Courts is to apply the law, which are the rules and regulations that govern society. Where these rules and regulations are to be found in articles of the Constitution they are approved of by the people, and where they are to be found in legislation they are passed by the Houses of the Oireachtas. Laws should, and generally do, reflect society’s values and will be influenced by them. But at the end of the day it is the duty of the Courts to implement and apply the law, not morality.
In many countries I.V.F. treatment is governed by strict rules and regulations. It seems to me that in the absence of any rules or regulations in this jurisdiction embryos outside the womb have a very precarious existence. In the present case I have held that the first named defendant did not give his consent to the transfer of the three frozen embryos into the uterus of the plaintiff. The second named defendant has indicated that it will not release the frozen embryos without the consent of both parties. It is clear that there is no agreement between the plaintiff and the first defendant as to what is to happen to the frozen embryos. It is most unlikely that agreement can be reached on this matter. That being so the likely fate of the embryos is to remain in a state of cryo-preservation for an indefinite period. Eventually there will come a time when these embryos cannot be implanted in the plaintiff’s uterus with any hope of success as she is getting older. But that doesn’t appear to be any basis on which the Court can intervene in this matter.
I have considered the arguments made by the first defendant that it would be abhorrent to force him to become a parent against his will. For the plaintiff it is argued that he cannot simply change his mind once he has agreed to his sperm being mixed with the plaintiff’s ova. Since I have already concluded that these embryos are not “unborn” within the meaning of Article 40.3.3 the issue of whether or not the first defendant, as a matter of law, can be forced to become a parent by the implantation of the embryos in the plaintiff’s uterus does not arise. Until the law or the Constitution is changed this issue remains within the sphere of ethics and morality. In closing submissions counsel for the plaintiff accepted that the first defendant could not have paternity imposed on him if the un-implanted embryos are not “unborn” for the purposes of Article 40.3.3.

Other Issues
One of the issues raised by the plaintiff in this case is whether or not she is entitled to the return of the embryos to her uterus by virtue of Article 41 of the Constitution. In McGee v- the Attorney General [1974] IR 284 the Supreme Court decided that a married couple enjoy a right of privacy and a right of autonomy in making decisions with regard to their family and issues such as family planning. Neither the Courts nor the Oireachtas can interfere with such decisions except in limited circumstances. For example the Courts could intervene if a decision was made to carry out an abortion other than where there was a real and substantial risk to the life of the mother. Since the issue of when human life begins is so uncertain and not capable of resolution by this Court and since I have held that the frozen embryos are not “unborn” within the meaning of Article 40.3.3. it seems to me that the question of rights arising under Article 41 of the Constitution does not arise in this case.
In the course of submissions made on behalf of the Attorney General the Court was invited to consider, whether, in adopting Article 40.3.3. the People intended that the use of widely available forms of contraception would in fact be rendered unconstitutional. In this context reference is made, inter alia, to “the morning-after pill”. In view of the conclusions I have reached I do not think it is necessary for me to consider this issue.
Another issue which arose in the course of the evidence was the question of the attrition rate of embryos in the in vivo situation. There was general agreement that in the in vitro situation there is a significant attrition rate insofar as embryos are concerned. Professor Clynes and Professor Rager disagreed that the attrition rate to be found in in vitro embryos could properly be applied to the situation of in vivo embryos. Counsel for the Attorney General argued that if it were necessary to resolve the matter that it is appropriate to extrapolate from known attrition rates in in vitro fertilisation to the in vivo situation. He argued that while one cannot be certain about the attrition rates in the in vivo situation all the circumstantial evidence suggests that as a matter of probability there is a very high attrition rate and that nature is quite wasteful. Insofar as this is an argument to be considered in determining when human life begins I do not feel it necessary to form a view on this. Furthermore, whether or not there is a significant attrition rate of embryos in the in vitro situation does not appear to be relevant to determining whether they are “unborn” for the purposes of Article 40.3.3.
I have also considered the arguments of the first named defendant indicating that the Court should take into account what he describes as:-
“…The two key stages of the biological process following sexual intercourse.”
These are fertilisation and implantation. These matters may be of relevance in seeking to determine when human life begins or at what stage embryos should be given legal protection. But they are not matters the Court can decide.
All I can do as a judge is to decide whether or not the three frozen embryos have the protection of the Constitution or the law. I cannot amend the law, that is the function of the Oireachtas. In Norris v. The Attorney General [1984] IR 36 at p.33, O’Higgins C.J said:-
“The sole function of this Court…is to interpret the Constitution and the law and to declare with objectivity and impartiality the result of that interpretation on the claim being considered. Judges may, and do, share with other citizens a concern and interest in desirable changes in reform in our laws; but, under the Constitution, they have no function in achieving such by judicial decision. It may be regarded as emphasising the obvious, but, nevertheless, I think it proper to remind the plaintiff and others interested in these proceedings that the sole and exclusive power of altering the laws of Ireland is, by the Constitution, vested in the Oireachtas. The Courts declare what the law is – it is for the Oireachtas to make changes if it so thinks proper.”
In my opinion those words eloquently express the different functions of the Courts and the Oireachtas, and the extent to which it is permissible for the Courts to review or interpret legislation.
Having considered the evidence and the submissions in this case and reviewed the law I have come to the conclusion that the three frozen embryos are not “unborn” with the meaning of Article 40.3.3. and it is a matter for the Oireachtas to decide what steps should be taken to establish the legal status of embryos in vitro.

 

 

A. and B. v. Eastern Health Board

[1998] IR 465
Geoghegan J.

 

The applicants’ case
At this point it is appropriate to deal in turn with each of the grounds on which the applicants seek to impugn the second respondent’s order. As I have already indicated the first of these grounds is that the applicants were not given a fair hearing. There are several respects in which this is alleged. They are:-
1. That counsel for the applicants was unable to do proper justice to his clients’ case, in that he had no knowledge that an authority to terminate the pregnancy was being sought until the morning of the hearing.

2. That the second respondent refused his request to make a direction under s. 17 (4) of the Child Care Act, 1991 and C. be assessed by a psychiatrist nominated by the applicants.
3. That an application made in the late evening for a short adjournment until the Monday to enable the applicants’ lawyers consult with a psychiatrist in order to be in a position to challenge the psychiatric evidence before the Court was refused.
4. That a stay on the order pending an appeal was also refused.
There can be no doubt that in a conventional situation it might be a breach of fair procedures to embark upon the hearing of an application for an important order when the complaining party had had no prior notice of the particular order sought. But the situation in this case was exceptional. Quite a long period had already elapsed from the commencement of the pregnancy and if there was going to be a termination it was essential that the matter be dealt with as quickly as possible. Whatever of his counsel, the applicant A., for the reasons which I have indicated and I have little doubt his wife would have been well aware that the question of the termination of the pregnancy was a very live issue and had become all the more so as a result of their change of mind and it had been indicated to them that it would be dealt with on the Friday. Furthermore, the proceedings in my view under the Child Care Act, 1991 are in the nature of an inquiry rather than an adversarial nature. The second respondent was entitled to take the view that as the girl had been assessed by two psychiatrists, one on behalf of the Health Board and one on behalf of the girl herself, she was entitled to proceed with the hearing. It might of course have been a different matter if it was appropriate for her to have acceded to the applicants’ application to have the girl assessed by yet another psychiatrist. This indeed is the second ground of objection. She did not accede to that request and in my opinion quite rightly so. There was evidence before her that further investigations either by a new psychiatrist or indeed by the psychiatrists who had already questioned C. were not in the interests of C.’s own mental health. The Court had the benefit of two very reputable psychiatrists, Dr. McC. and Dr. B., the paediatric psychiatrist who regularly gives evidence in the family courts. The second respondent was entitled in my view to decide what witnesses were necessary for her to make up her mind what was in the best interests of the child, while of course giving a fair hearing to all relevant parties. She did this, in as much as she heard the evidence of each of the applicants. She did not think it desirable that another psychiatrist should be introduced into the case and I believe that not only was she entitled to take that
view but that it was the correct view. In expressing the view that the proceedings should be regarded as an inquiry rather than as alis inter partes I find support in the judgment of O’Flaherty J. in Southern Health Board v. C.H. [1996] 1 I.R. 219. Having regard to the clear urgency of the matter the second respondent was entitled also to proceed with the case notwithstanding the late notice of the direction sought.
The third of counsel for the applicants’ procedural objections is rather different and I believe it to be well-founded. Towards the end of a very long day of hearing counsel for the applicants applied to the second respondent that he should have the benefit at least of a short adjournment until the Monday so that he could consult a psychiatrist with a view to cross-examining Dr. B. In my view, she wrongly and unreasonably refused the application as, although the matter was urgent, there had to be a balance between the urgency and the adoption of fair procedures. It was obvious that this case was at any rate going to end up in the High Court and the Supreme Court. In other circumstances and in a different type of case, this Court might take the view that the order ought to be quashed and that the matter be sent back to the District Court for further hearing because of the refusal of that adjournment. Butcertiorari is a discretionary remedy and I am quite satisfied that in all the circumstances of this case, including the nature of the hearing which did in fact take place and the absolute urgency for finality and the firm belief that even if such an adjournment had been granted it would have made no difference to the order made by the second respondent that as a matter of discretion I ought not to quash the order on this ground.
The fourth procedural objection of the applicants is not sustainable in my view. The second respondent had a discretion whether to grant a stay or not. She chose not to do so but even if she ought to have done so the applicants have not suffered in that they went the route of judicial review and got an immediate leave accompanied by an injunction in the form of a stay from Flood J. I therefore refuse to quash the order of the District Court on any of the natural justice grounds.
I now turn to the second main ground of challenge as summarised above. This is the question of the interpretation of the expression”medical or psychiatric examination, treatment or assessment of the child”. Counsel for the applicants argues that the expression “medical treatment”could never include termination of pregnancy. I disagree. Counsel for C. has drawn my attention to the fact that in the English abortion legislation, termination of pregnancy is regarded as a medical treatment. I do not think much importance can be attached to that as there could have been
political and other reasons for such definition. But where a psychiatrist, as in this case, gives strong evidence to the effect that a child is likely to commit suicide unless she has a termination of pregnancy, that termination of pregnancy, which is a medical procedure, is clearly in my view also a medical treatment for her mental condition. It is not necessary therefore to consider whether all terminations of pregnancy come within the expression “medical treatment” I am satisfied that on the facts of this case it would come within that expression. At this point, it might be useful to refer briefly to some of the relevant evidence of Dr. B. In answer to question 336 in the transcripti.e. “Did she go any further in regard to what her intentions were if she did have a child?” he replied that she said “I would kill myself if I had the child”. He explained that he asked her why she might do that and she replied “Because it is not my child”. He then went on to say that she was very vehement when she said that. At question 364 Dr. B. was asked did he form any clinical judgment in regard to her thoughts about suicide, he said that he did and that he felt they were real and he further felt that if she did not achieve the termination of the pregnancy that she would act on them. When asked about the degree of the risk, he said it was a very significant risk and he had very little doubt about that. When he was asked at question 374 how great were his fears for her, he said they were very great but the threat was to her life. In answer to question 376 he said that the risk of suicide was becoming more immediate because as time went on she was getting less and less able to deny the existence of the pregnancy. It was becoming more and more real that up to now she has been able to avoid facing up to it in the hope of having the termination carried out and that if that did not happen the suicidal risk was immeasurably increased making the termination a matter of urgency.
At question 381 Dr. B. said there was an urgent situation because of the suicidal risk which was an immediate risk. At question 392 Dr. B. was asked about time scales. He said that the termination of pregnancy should take place as soon as possible. Although agreeing that therapy was required, Dr. B. also made it clear in answer to question 395 that he was still of the view, whether there was therapy or not, that the termination of the pregnancy was the priority. In the light of this evidence coming from a consultant psychiatrist, including the advice that she undergo medical procedures involving the termination of her pregnancy because of her suicidal tendencies, such medical procedures must, in my view, constitute “medical treatment” within any normal definition. I am therefore of opinion that the direction of the second respondent did involve medical treatment and came within the statutory provision.
This brings me to the next main ground of challenge put forward by counsel for the applicants. He says that if a termination of pregnancy was ever to be included in the expression “medical treatment” which he disputes, it could only be a termination of pregnancy which was lawful, having regard to the Irish Constitution, and that in order to consider whether such termination was constitutional or not the second respondent would have to reconcile different rights under the Constitution including above all the right of the unborn and would have to deal with conflicts of rights. He seems to think that that is not appropriate for the District Court and certainly not an exercise that should be done in the context of an application to the District Court under the Child Care Act, 1991. I agree with the arguments put forward by counsel for the respondents and the Attorney General that underlying that submission of counsel for the applicants is a misconception as to the powers and jurisdiction of the District Court. The District Court is a court established under the Constitution. Its judges are sworn in to uphold the Constitution. In relation to every matter that a District Court Judge decides, he or she must always be conscious of the Constitution and rights under it. The only constitutional area in respect of which there is no jurisdiction in the District Court is the question of the validity of any statutory enactment having regard to the Constitution. That function is peculiarly reserved to the High Court or on appeal to the Supreme Court. But every other area of the Constitution comes within the province of both the District Court and the Circuit Court in the carrying out of their ordinary jurisdiction. Far from considering that a District Court Judge dealing with applications under the Child Care Act, 1991, is an inappropriate court to determine whether in any given case a termination of pregnancy should occur, I think that the opposite is the case. If anything, with the regular experience of dealing with children and their welfare, he or she may well be better equipped than a judge of the High Court. Furthermore, I think it highly undesirable for the courts to develop a jurisprudence under which questions of disputed rights to have a termination of pregnancy can only be determined by plenary action in the High Court. The High Court undoubtedly has a function in granting injunctions to prevent unlawful terminations taking place and it may in certain circumstances properly entertain an action brought for declarations and consequential orders if somebody is being physically prevented without just cause from having a termination. But it would be wrong to turn the High Court into some kind of licensing authority for abortions and indeed it was for this reason that I have rejected a suggestion made by counsel for C. in this case that I should effectively convert the judicial review proceedings into an independent application invoking the inherent jurisdiction of the High Court and grant leave for such a termination to take place. I took the view that the case should continue in the form of a judicial review and nothing more. The Child Care Act, 1991 is a perfectly appropriate umbrella under which these questions can be determined. I therefore wholly reject the argument that a termination of pregnancy could not be included within the expression “medical treatment” because it would involve the consideration of various constitutional rights which is not the province of the District Court.
It is obvious from what I have already said that I totally reject the fourth and alternative ground of challenge put forward by the applicants, namely, that the relevant statutory provision under the Child Care Act, 1991, under which this direction was made is unconstitutional. In this regard I accept and adopt the arguments that have been made in court for the upholding of the constitutionality of those provisions and particularly the arguments of counsel for the Attorney General.
The next main ground of challenge is a somewhat related one. Section 24 of the Child Care Act, 1991, provides as follows:-
“In any proceedings before a court under this Act in relation to the care and protection of a child, the court, having regard to the rights and duties of parents, whether under the Constitution or otherwise, shall –
(a) regard the welfare of the child as the first and paramount consideration, and
(b) in so far as is practicable, give due consideration, having regard to his age and understanding, to the wishes of the child.”
It is suggested that in disregarding the wishes of the applicants the second respondent failed in the application of s. 24, to have proper regard to the presumption that the paramount welfare of the child and her unborn child is best served by the care and control of the applicants as her parents contrary to the guarantee given by the State to protect the family in its Constitution. The first point to be made is that in relation to the unborn child the applicants would be grandparents and they have no constitutional rights as such but they would,prima facie, of course, have rights in relation to their daughter. However, it is quite clear from the transcript that full regard was given to the rights and duties of the natural parents. First of all the second respondent took the view and was entitled to take the view that the parents were neglectful parents and that the child should properly

be in temporary care and secondly, not only did the second respondent listen to the evidence of the father A. but she specially asked that the mother B. should give evidence. It is clear that she listened to and absorbed the submissions made to her in relation to The Attorney General v. X [1992] 1 I.R. 1. It is perfectly obvious, in my view, that she would have had regard to the constitutional right to life of the unborn, though it is not an absolute right. Under s. 24 the court must undoubtedly regard the welfare of the child as the first and paramount consideration and must give due consideration to the wishes of the child but it must do so within a constitutional framework and there is nothing whatsoever in s. 24 to indicate that the court is to ignore the right to life of the unborn conferred by the Constitution. Accordingly, there can be no question of s. 24 being invalid, having regard to the Constitution, which is the alternative claim.
The last ground of challenge relates to the actual findings of the second respondent. Counsel for the applicants argues that she did not find that, as a matter of probability, there is a real and substantial risk to the life of C. which can only be avoided by the termination of her pregnancy but, that rather, she made her order without regard to The Attorney General v. X. [1992] 1 I.R. 1 and in the belief that she could make it pursuant to “the travel amendment”. The second respondent heard this case over many hours on the one day and gave judgment that evening. It is perfectly understandable that when the judgment was not reserved it could contain an unintended ambiguity, as I think there is in this case but I do not say that by way of any criticism of the second respondent who obviously prepared it under great pressure. What has given rise to the controversy is the wording of the following two paras. in the judgment which follow criticism of the parents:-
“Therefore I am not satisfied that their daughter’s welfare is the most important consideration for them. Having talked to (C.) and having regard to the professional medical evidence from Dr. McC. and Dr. B., I am of the opinion that the test as set down in The Attorney General v. X. [1992] 1 I.R. 1, has not been met, as I do not believe that the threat of suicide is imminent.
However, I am satisfied that if the pregnancy is allowed to continue the risk will increase substantially and therefore I make the order that the child be afforded the right to travel to another jurisdiction to avail of the facility of termination of her pregnancy, with all ancillary services to include counselling for her to be provided.”
Those two passages in her judgment must be put in the context of the evidence as a whole with special reference to the evidence of Dr. B. and also to the legal submissions made to the second respondent by counsel. When she says that the threat of suicide is not imminent, I am satisfied that she is not intending to say anything different from what Dr. B. had said in evidence. What she is saying is that it is not immediately imminent and of course it is not required by The Attorney General v. X that the danger of suicide be immediate or imminent. But importantly she goes on to say that she is satisfied that if the pregnancy is allowed to continue the risk will increase substantially and I think that the use of that word “substantially” was deliberate and intended to correspond with the wording of the test under The Attorney General v. X . It is true that she does refer to Dr. McC. as well as Dr. B. Dr. McC. had carried out an assessment which was largely directed at competency and was never directed at the question of whether the girl had suicidal intentions. Although it did not occur to him that she could have suicidal intentions, he did not in any way demur from the report and evidence of Dr. B. When one reads the transcript as a whole, including the various interjections by the second respondent, I cannot interpret those passages in the judgment as being tantamount to saying that the grounds for a lawful termination of pregnancy in Ireland do not exist and that the termination of pregnancy can only take place in a foreign jurisdiction pursuant to an alleged right to travel. I am bound to say that on a reading of the transcript of the evidence, I fail to see how any judge could have avoided the conclusion that as a matter of probability there was a real and substantial risk to the life as distinct from the health of C. which could only be avoided by the termination of her pregnancy and I do not interpret the second respondent as coming to any different conclusion. I believe that her reference to “imminent” related in part to the answer which Dr. B. gave to question 322 in which he said that he had asked C. if she had any immediate intent of killing herself with a knife and she had said that she did and partly also from the evidence of Dr. B. to the effect that the suicidal intention would become real and immediate once she realised a court was not going to permit termination of her pregnancy.
The acceptance by the judge of the medical evidence is further indicated by her question to A., when he gave evidence at question 494:-
“Q. Do you accept anything of the evidence that was given by the medical people here. I am sure that you listened to it?
A. I did and I accept quite a lot of Dr. B.’s evidence. It was quite sufficient to me and he seemed to be a very educated man. I took a lot of it in and I know what he is talking about. The little girl herself is talking suicidal and I know if she says something it is more likely that there is a danger that she will do it. She is head strong and that is being honest with you. She is head strong, but at the same time if we can avoid an abortion, if she is counselled a bit more and given a little bit more help let her have the baby if she can have it and if not then go for the abortion.”
However, B. then gave evidence to the effect that she did not believe that if the child was back with her parents she would be suicidal. All the indications from the transcript, however, are that the second respondent accepted the evidence of Dr. B. An example of this is at p. 137 of the transcript where the second respondent, in dealing with submissions by counsel for the applicants, says the following:-
“Well as I understand that medical evidence, I understand what the doctor said was that the threat of suicide would increase as the pregnancy progressed.”
As I have earlier indicated, counsel for C. argues that even if the second respondent was not holding that there was a substantial risk of suicide which could only be avoided by the termination of the pregnancy, she was still lawfully entitled to make an order in all the circumstances permitting C. to travel to another jurisdiction to have an abortion. His argument is that as a result of “the travel amendment”, the child, in the care of her parents, can be brought to England by her parents to have an abortion on one of the grounds for which abortions are done in England. He says that if that is so, why should a child who is in care be disadvantaged and be not permitted to do so. He concludes from that, that a District Court Judge, exercising the jurisdiction under the Child Care Act, 1991, could authorise such travel. While of course I see the force of his argument and the anomaly in the eyes of a layman, (though possibly not in the eyes of a lawyer), which arises if he is wrong. On the other hand, counsel for the applicants points out that some pregnant children who might want an abortion in England would not be allowed to travel to have it by their parents whereas others would be and therefore he says that there is not necessarily anything unique about a child in care being prevented from doing so. Whether it throws up an anomaly or not, I cannot really accept counsel for C.’s argument in this regard. The original part of Article 40.3.3 of the Constitution reads as follows:-
“The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”

If there had not been the two amendments, that provision of the Constitution quite clearly not merely prohibits abortion but gives a positive right to life to the unborn, subject only to the exception where the mother’s life is endangered. The so-called travel amendment provides as follows:-
“This subsection shall not limit freedom to travel between the State and another State.”
This amendment is framed in negative terms and must, in my view, be interpreted in the historical context in which it was inserted. There was, I think, a widespread feeling in the country that a repetition of The Attorney General v. X. [1992] 1 I.R. 1, should not occur in that nobody should be injuncted from actually travelling out of the country for the purpose of an abortion. It must be remembered that three out of the five judges of the Supreme Court took the view that in an appropriate case a travel injunction could be granted. It was in that context, therefore that the amendment was made and I do not think it was ever intended to give some new substantial right. Rather, it was intended to prevent injunctions against travel or having an abortion abroad. A court of law, in considering the welfare of an Irish child in Ireland and considering whether on health grounds a termination of pregnancy was necessary, must, I believe, be confined to considering the grounds for termination which would be lawful under the Irish Constitution and cannot make a direction authorising travel to another jurisdiction for a different kind of abortion. The amended Constitution does not now confer a right to abortion outside of Ireland. It merely prevents injunctions against travelling for that purpose. I think that the view which I have taken conforms with the view of the Supreme Court in the Article 26 reference relating to the Information (Termination of Pregnancies) Bill, 1995 [1995] 1 I.R. 1 and as expressed in the judgment of the Court at p. 47. The Court says the following:-
“As already stated, the effect of the decision of this Court and the judgments of the majority of the Court in The Attorney General v. X. [1992] 1 I.R. 1 was that where there is a real and substantial risk to the life, as distinct from the health, of the mother and that risk can only be avoided by the termination of the mother’s pregnancy, then such termination is permissible and not unlawful having regard to the provisions of Article 40.3.3 of the Constitution.
The position as therein set forth is unaltered by either the provisions of the Thirteenth or Fourteenth Amendment to the Constitution or of the Bill.”

 

The provisions of the Thirteenth Amendment are the provisions relating to travel. Counsel for C. in his argument relies particularly on the judgment of Keane J. in the Supreme Court in the Society for the Protection of Unborn Children Ireland Ltd. v. Grogan (Unreported, Supreme Court, 6th March, 1997) where at p. 34 Keane J. says the following:-
“Apart altogether from the reasons which I have already given, there are other matters to be taken into account in deciding whether the declaration and injunctions granted by the High Court in this case should be upheld. In Attorney General v. X ., differing views were expressed by the members of the Court as to whether the right to travel of the plaintiff was abridged to an unconstitutional extent by the injunction granted by the High Court in that case. Since those observations wereobiter (as was made clear by the learned Chief Justice in that case), it is open to this Court without any departure fromstare decisisto choose between the differing views. I would prefer the view of McCarthy J. and O’Flaherty J. that it did impermissibly violate the plaintiff’s right to travel.”
Keane J. then goes on to refer to the importance of the right to travel as a constitutional right and as discerned by Finlay P. (as he then was) in the State (M.) v. Attorney General [1979] I.R. 73. But the fact that there may be different views as to the importance of the constitutional right to travel does not in my view affect the issue of whether the District Court under the Child Care Act, 1991, can actually exercise a jurisdiction authorising travel for a particular purpose, namely, for an abortion in circumstances where the proposed abortion would not be allowed under Irish law. I think that the court would be prevented from doing so by the terms of the right to life of the unborn expressed in the Constitution and as the Supreme Court have held, unaffected by “the travel amendment”.
But, as I have at any rate taken the view that the termination of pregnancy which was authorised by the second respondent was one which, both in her view and in my view, was lawful under the Irish Constitution, the question which I have just been discussing does not arise. But in case, as seems likely, this judgment is appealed to the Supreme Court, I think I should make clear that while I am refusing the judicial review sought for the reasons which I have indicated, I would have taken a different view and would have granted the order if contrary to my view on a true analysis the effect of the order is to authorise an abortion outside Ireland of a kind which would not be in conformity with the Irish Constitution. In the event, however, I refuse the orders and reliefs sought.

 

 

 

In re Haughey

[1971] IR 217
O’Dalaigh C.J.
Supreme Court
to me what his attitude would be if such requests were made to him as the matter never arose between us. Again, referring to reports, which I have read, of alleged evidence given before this Committee, I definitely state I never received or gave money, or received or gave any cheque, or any valuable security in the name of George Dixon; nor did I ever use the name of George Dixon in any connexion with any financial or banking dealings.
I also wish to state that no moneys from the Grant-in-Aid for Northern Ireland Relief issued from subhead J, Vote 16, Miscellaneous Expenses for 1969/70, were ever paid to me, nor did I ever have any control over any of these moneys; nor had I ever any say in the disbursement of this money. Further, I wish to state positively that my brother, Charles Haughey, never discussed the moneys voted for Northern Ireland relief with me until Iuntil after I had received the subpoena to attend before this Committee. I now wish to state that the reasons why I am not prepared to be examined by the Committee are as follows: I am advised by my lawyers that Statute No. 22 of 1970, The Committee of Public Accounts of Dail Eireann (Privilege and Procedure) Act, 1970, does not give any privilege or immunity to any newspaper, periodical, radio or television which publishes any evidence allegedly given by a witness before this Committee. At present my legal advisers are considering my position in civil law as a result of the reports of alleged evidence already given by witnesses here in so far as that alleged evidence relates to me personally. I am advised that by giving evidence before this Committee I might be liable in civil law and under the laws of the land for any answer I might make. I wish to state that, while I appreciate that the laws of evidence may well be stretched by a non-legal body, such as this, nevertheless I am not prepared to submit to examination arising out of so-called principles of justice. I am advised that, because of the publicity already given to allegations not based on best evidence or admissions made against me, I am entitled as of right to make this sworn statement and I am further advised not to answer any questions for the reasons already given. I have copies now which I will hand out to you all.”=
I turn now to a consideration of the several grounds of appeal which raise questions which are independent of the constitutionality of the Act of 1970, and I follow the order in which these grounds have been dealt with in the judgment of Mr. Justice Henchy.
First, Mr. Haughey objected to such part of the Committee’s terms of reference as refers to an examination of expenditure of moneys of the Irish Red Cross Society. The terms65 of the order of Dail Eireann of the 1st December, 1970, contemplate an examination not only into the expenditure of the grant-in-aid for Northern Ireland issued from Subhead J of Vote 16, Miscellaneous Expenses for 1969/70, but also an examination into the expenditure of the Irish Red Cross Society’s moneys transferred by the Irish Red Cross Society to a bank account into which moneys from the Vote were, or may have been, lodged. The examination in question here is not being conducted by a select committee established under Standing Order 67, but by the Committee of Public Accounts whose powers are defined in Standing Order 127. Those powers are “to examine and report to the Dáil upon the accounts showing the appropriation of the sums granted by the Dáil to meet thepublic expenditure and to suggest alterations and improvements in the form of the estimate submitted to the Dáil.” The examination of the expenditure of moneys belonging to the Irish Red Cross Society, not being moneys granted by the Dáil to meet the public expenditure, is not a matter which, as such, falls within the jurisdiction of the Committee of Public Accounts. If, however, moneys issued from Subhead J of Vote 16 were lodged in a bank account and Irish Red Cross Society moneys were transferred to that account, forming a mixed fund, then for the purpose of segregating the funds the expenditure of the moneys of the Irish Red Cross Society might incidentally be disclosed but, upon the moneys being duly segregated, any further examination into the expenditure of the Irish Red Cross Society moneys would be outside the functions of the Committee of Public Accounts as defined in Standing Order 127.
Secondly, Mr. Haughey has also objected to any examination whatsoever into the expenditure of the grant-in-aid even though conducted within the terms of Standing Order 127. The ground of his objection is that the standing orders relative to public business (of which Standing Order 127 forms part) have not been adopted as the standing orders of the House of Representatives, called Dail Eireann , established under the Constitution of Ireland, but are the standing orders of the former Dail Eireann , i.e., the chamber of deputies, called Dail Eireann , established under the Constitution of Saorstát Éireann . It is surprising that the new Dail Eireann did not formally adopt a new body of standing orders when the Constitution came into force on the 29th December, 1937, and has not done so since. Article 15, s. 10, of the Constitution contemplated that the new Dáil should make its own rules and standing orders. The section reads:”Each House shall make its own rules and standing orders . . .” or “Déanfaidh gach Tigh ar leith a rialacha agus a bhuan-orduithe féin . . .” Instead, it appears that the new House has continued to operate under the standing orders of the

Supreme Court
old Dail Eireann , subject to amendment. On the eve of the coming into force of the Constitution, the Committee of Procedure and Privileges met under the chairmanship of the Ceann Comhairle to consider the “amendment of Standing Orders relative to Public Business consequent on the coming into operation of the Constitution.”The Committee’s report, printed on the 17th December, 1937, recommended certain amendments which were set out in a schedule to the report. The report said that further amendments would be required after the assembly of Seanad Éireann , and it added that the committee considered that a reprint of the standing orders might await these further revisions. The Oireachtas, it may be noted, was then a uni-cameral House. The suggested amendments were adopted by the new Dáil on the 12th January, 1938. This, in my opinion, was a tacit adoption by the new Dail Eireann of the standing orders of the former House, as amended, as the standing orders of the new House. It may indeed be that taciturnity is uncharacteristic of parliaments, but it seems to me that the action of Dail Eireann on the 12th January, 1938, is susceptible of no other construction than that the new House was “making”its Standing Orders within the meaning and intention of Article 15.
Thirdly, Mr. Haughey has objected that the Committee had no power to administer an oath. Mr. Justice Henchy, in the High Court, referred to this objection as unmeritorious as shown by the fact that Mr. Haughey initiated his appearance before the Committee by stating that he wished to make a statement on oath, and then in fact did so. The ground of Mr. Haughey’s objection is that the Oireachtas Witness Oaths Act, 1924, which applied to the House of the former Oireachtas and any committee or joint-committee thereof, has not been “carried over. “The sustainability of this objection turns on the meaning of the words “governmental authority” in s. 4, sub-s. 1, of the Constitution (Consequential Provisions) Act, 1937, which was enacted in preparation for the coming into operation of the Constitution of Ireland. The relevant portion of s. 4, sub-s. 1, of the Act of 1937 says that every mention or reference in a statute in force before the coming into force of the Constitution of, or to, any governmental authority, whether legislative, judicial, or executive, established by virtue of the Constitution of Saorstát Éireann shall, in relation to anything to be done after the coming into operation of the Constitution, be construed and have effect as a mention of the governmental authority established by the Constitution of Ireland which corresponds to, or has like functions as, such governmental authority established by the Constitution of Saorstát Éireann . The term “governmental authority” by itself might not be clear, but the sub-section refers to a legislative governmental authority and this, it seems to me, points to the former Oireachtas and its committees. The corresponding legislative governmental authority under the new Constitution, in my opinion, can be none other than the new Oireachtas and its committees. It may be added that the Act of 1937, although passed before the coming into operation of the Constitution of Ireland, was expressed at s. 1 to come into operation immediately after the coming into operation of the Constitution; and Article 50, s. 2, of the Constitution provides that laws enacted before, but expressed to come into force after, the coming into operation of the Constitution should come into force in accordance with the terms thereof, unless otherwise enacted by the Oireachtas. In my opinion the Committee hud, and has, authority to administer an oath.
Fourthly, Mr. Haughey objected that the certificate under the hand of the chairman of the Committee was not made with sufficient particularity. The certificate baldly stated an offence in the terms of the sub-section and gave no particulars of the questions, being questions to which the Committee could legally require answers, which it was alleged Mr. Haughey had refused to answer. The validity of this objection depends on the purpose which, in the intention of the Act of 1970, the certificate is to serve. The judgment of the Court has accepted66 that the Committee’s certificate is a step preliminary to the commencement of the trial of a criminal offence. In all criminal proceedings, whether tried summarily in the District Court or on indictment in the Circuit Court or Central Criminal Court, it is required that “particulars of the offence” be furnished: see Rule 44 of the District Court Rules, 1948, and r. 4, sub-r. 4, of the First Schedule to the Criminal Justice (Administration) Act, 1924. The certificate is the only document in which will be found the complaint that the witness has to answer. It should, therefore, furnish all necessary particulars. In this instance these should include the question or questions which it is alleged the witness refused to answer and, coupled with this, an assertion that the Committee could legally require an answer to such question or questions. The transcript of the proceedings discloses that when Mr. Haughey had made his preliminary statement and had dialogue with the chairman of the Committee, the Committee retired and, after an interval of about three-quarters of an hour, it resumed its public sitting and thereupon the chairman put certain questions to Mr. Haughey with the object of reminding him of the possible consequence of his refusal to answer them, and then the chairman asked him two specific questions to which the chairman failed to elicit answers. The chairman, it would appear, thought it necessaryand correctly soto have on record the specific questions which were put, together with the refusals to answer them, for the purpose of certifying an offence under sub-s. 4 (b)of s. 3 of the Act; of 1970. This point does not appear to have been pursued in any great detail in the High Court where the view was erroneously taken that Mr. Haughey’s initial statement, in which he indicated that he would not answer questions for the reasons which he gave, constituted an offence under sub-s. 4 (b). If this conduct constituted an offence, it fell to be dealt with under sub-s. 4 (d) which makes it an offence to do anything which would be contempt of court if the Committee were a court of justice having power to commit for contempt. The offence created by sub-s. 4 (b) is the offence of refusing to answer questions to which the Committee may legally require an answer. Quite clearly the Committee is not legally entitled to an answer to any question which is not relevant to the proceedings and which is not within its terms of reference; before anyone can be convicted of a refusal to answer a question, contrary to sub-s. 4 (b), the court would have had to be satisfied that the question put was relevant and within the terms of the inquiry. The court could not so satisfy itself unless a specific question, or questions, has or have first been put.
Fifthly, Mr. Haughey also objected to the validity of the Committee’s certificate on the ground that it should have been made by the unanimous decision of all the members of the Committee. The High Court, in the judgment of Mr. Justice Henchy, held that a majority decision sufficed at common law. The High Court was not referred to Standing Order 72 which, by clear inference, says that a select committee may make its decisions by a majority. The words of the standing order are:”in the event of there being an equality of votes the question shall be decided in the negative.”This, in effect, says that for a positive decision a simple majority suffices. The Committee of Public Accounts is itself a select committee by the terms of Standing Order 127. Therefore, the position is that Standing Order 72 furnishes an adverse answer to Mr. Haughey’s contention, without need to resort to the common law.
The sixth and last of Mr. Haughey’s complaints was that his rights under s. 3 of Article 40 of the Constitution were, and would be, disregarded. Article 40, s. 3, provides as follows:
“1 The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
2 The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”
Mr. Haughey’s counsel formulated this complaint under two heads(a) with regard to the conduct of the trial in the High Court and (b) with regard to the procedures of the Committee.
In the High Court, the court heard no oral evidence, with the exception of the evidence of the clerk of the Committee who was called to prove his authority to administer oaths. The substantive evidence in support of the Committee’s complaint was put forward by affidavitthat of the chairman of the Committeeand leave to cross-examine the chairman was refused by the court on the ground that the indicated purpose of the cross-examination was irrelevant to the issue before the court. Mr. Haughey complains of the admission of evidence otherwise than viva voce and, further, that he was denied the right to cross-examine.
In a criminal trial, evidence must be given orally; a statute may authorise otherwise but the Act of 1970 in this instance has made no exceptions. The High Court, therefore, should not have allowed the affidavit evidence of the chairman of the Committee.
As to the disallowance of cross-examination, an accused person has a right to cross-examine every witness for the prosecution, subject, in respect of any question asked, to the court’s power of disallowance on the ground of irrelevancy. An accused, in advance of cross-examination, cannot be required to state what his purpose in cross-examining is. Moreover, the right to cross-examine “to credit” narrows considerably the scope of the irrelevancy rule. Mr. Haughey, in my opinion, was wrongly denied the right to cross-examine.
As to the procedures of the Committee, Mr. Haughey’s complaint is that in the special circumstances in which he found himself a witness, the procedures of the Committee failed to protect his rights under Article 40 of the Constitution. The procedures determined upon by the Committee in its interim report of the 1st December, 1970, by clause (iii) provide, inter alia, that:”the Committee will allow witnesses to be accompanied solely for the purpose of consultation by counsel, solicitor or advisers, as may be determined by the Committee in each relevant case. Such counsel, solicitor or advisers will not, however, be permitted to examine any witness nor to address the Committee.” The special circumstances in which Mr. Haughey appeared before the Committee were these. A week earlier, at the public sitting of the Committee on the 9th February, 1971, evidence was given by Chief Superintendent John P. Fleming. The Chief Superintendent at the outset explained the nature of the evidence which he proposed to give: all his information was, he said, from confidential sources which he was not at liberty to reveal. In terms of the law of evidence the entire of the evidence which he was about to offer was hearsay evidence.
The evidence in question purported to indicate (i) that Mr. Haughey had paid over money to the Chief of Staff of the I.R.A. in London; (ii) that Mr. Haughey was deeply involved in meetings with a certain I.R.A. Leader after August or September and in promising funds for the I.R.A. in the North; (iii) that Mr. Haughey made all the arrangements at Dublin Airport some time early in October to take in a consignment of arms and handed same over to two leading I.R.A. men; (iv) that Mr. Haughey went to London on the 16-17 November, 1969, for the purpose of purchasing arms; (v) that Mr. Haughey or Captain [name given] could well have been involved in other arms shipments.
As to item (iii), when asked if he had any knowledge of the source of the moneys which paid for the arms, the Chief Superintendent said:”I imagine it came from the grant-in-aid fund.” As to item (v), relating to the other arms shipments in which Mr. Haughey may have been involved, the witness said that he had no direct evidence and that “it was speculation or rumour.” The italics are mine.
Therefore, the position of Mr. Haughey was that at a public session of the Committee held on the 9th February, 1971, he had been accused of conduct which reflected on his character and good name and that the accusations made against him were made upon the hearsay evidence of a witness who asserted that he was not at liberty, and therefore was not prepared, to furnish the Committee with the names of Mr. Haughey’s real accusers. The question which arises in these circumstances is what rights, if any, is Mr. Haughey entitled to assert in defence of his character and good name? It should be noted that, in the statement which he read to the Committee on the 17th February, 1971, he denied on oath that he had been connected, in any way, with the expenditure of moneys issued out of Subhead J of Vote 16.
Mr. Haughey’s counsel offered no criticism of the immunity which the Act of 1970 gives to witnesses; he acknowledged that it would be unrealistic to expect witnesses to come forward without such/## immunity. Having thus apparently accepted the necessity for such immunity, counsel’s submission was that, in all the circumstances, the minimum protection which the State should afford his client was (a) that he should be furnished with a copy of the evidence which reflected on his good name; (b) that he should be allowed to cross-examine, by counsel, his accuser or accusers; (c)that he should be allowed to give rebutting evidence; and (d) that he should be permitted to address, again by counsel, the Committee in his own defence. Protection (c) was allowed by the Committee and no real difficulty arose with regard to (a), so far as I can see; therefore (b) and (d) are the crux. The Committee’s procedures ruled out the two latter protections.
For the Attorney General it was urged that a witness in the High Court is not allowed the protections mentioned at (b) and (d)suprathis is undoubtedly soand it was submitted that Mr. Haughey therefore could not be in any better position. The answer made by counsel for Mr. Haughey was that his client is not just a witness but that he has, in effect, become a party because his conduct has become the subject matter of the Committee’s inquiry or examination by reason of the charges which have been levelled against him. Counsel points out that Mr. Haughey cannot, in defence of his good name, make his accusers answerable in the civil courts as they are protected by the immunity granted by the statute; and counsel then urges that unless he is allowed on his client’s behalf to challenge and test the accusations by cross-examination and, further, to address the Committee, his client’s good name is left unprotected. Counsel supported his submission by reference to the well-established procedure, adopted by the several tribunals of inquiry set up by Dail Eireann to inquire into matters of urgent public importance. In all these instances persons accused in connection with the subject matter of the inquiry were granted the rights of parties and were allowed to appear by counsel, to cross-examine and to address the tribunal.
In my opinion counsel is right in his submission that Mr. Haughey is more than a mere witness. The true analogy, in terms of High Court procedure, is not that of a witness but of a party. Mr. Haughey’s conduct is the very subject matter of the Committee’s examination and is to be the subject matter of the Committee’s report.
No court is unaware that the right of an accused person to defend himself adds to the length of the proceedings. But the Constitution guarantees that the State “so far as practicable” (sa mhéid gur féidir é) will by its laws safeguard and vindicate the citizen’s good name. Where, as here, it is considered necessary to grant immunity to witnesses appearing before a tribunal, then a person whose conduct is impugned as part of the subject matter of the inquiry must be afforded reasonable means of defending himself. What are these means? They have been already enumerated at (a) to (d) above. Without the two rights which the Committee’s procedures have purported to exclude, no accusedI speak within the context of the terms of the inquirycould hope to make any adequate defence of his good name. To deny such rights is, in an ancestral adage, a classic case of clocha ceangailte agus madraí scaoilte.67Article 40, s. 3, of the Constitution68 is a guarantee to the citizen of basic fairness of procedures. The Constitution guarantees such fairness, and it is the duty of the Court to underline that the words of Article 40, s. 3, are not political shibboleths but provide a positive protection for the citizen and his good name. Clause (iii) of the Committee’s procedures,68 while valid in respect of witnesses in general, in this instance would, if applied in the circumstances of this case, violate the rights guaranteed to Mr. Haughey by the provisions of Article 40, s. 3, of the Constitution. This position, however, has not yet in fact arisen in this case because of Mr. Haughey’s non-participation in the proceedings of the Committee.
The provisions69 of Article 38, s. 1, of the Constitution apply only to trials of criminal charges in accordance with Article 38; but in proceedings before any tribunal where a party to the proceedings is on risk of having his good name, or his person or property, or any of his personal rights jeopardised, the proceedings may be correctly classed as proceedings which may affect his rights, and in compliance with the Constitution the State, either by its enactments or through the Courts, must outlaw any procedures which will restrict or prevent the party concerned from vindicating these rights.
The immunity of witnesses in the High Court does not exist for the benefit of witnesses, but for that of the public and the advancement of the administration of justice and to prevent witnesses from being deterred, by the fear of having actions brought against them, from coming forward and testifying to the truth. The interest of the individual is subordinated by the law to the higher interest, viz., that of public justice, for the administration of which it is necessary that witnesses should be free to give their evidence without fear of consequences. It is salutary to bear in mind that even in the High Court, if a witness were to take advantage of his position to utter something defamatory having no reference to the cause or matter of inquiry but introduced maliciously for his own purpose, no privilege or immunity would attach and he might find himself sued in an action for defamation. The witnesses before the present Committee are in no better position. The fact that a witness may have been permitted or even encouraged to venture into the area will afford him no defence in such an action. Furthermore, in the High Court it is the duty of the judge to warn a witness that he is privileged to refuse to answer any question if the answer would tend to incriminate him. That privilege is also enjoyed by witnesses before the Committee, but it does not appear from the documents before us that Mr. Haughey in this case was so warned.
In my opinion this appeal should be allowed and the conviction and sentence of the High Court set aside for the reasons I have stated under head (a) of Mr. Haughey’s sixth and last complaint, in addition to the reasons given in the judgment of the Court.

WALSH J. :
I agree.

BUDD J. :
I agree.

 

[1976]
1 I.R.

The State (C.) v. Frawley

[1976] IR
Finlay P. 365

 

Finlay P.
13th April, 1976

This is an application by the prosecutor for an order of release under Article 40 of the Constitution; pursuant to s. 4, sub-s. 2, of that Article the Supreme Court, on appeal from my decision in the High Court, directed an enquiry into his detention. The facts on which the prosecutor relies are as follows. He is at present detained in Mountjoy Prison on foot of a warrant issued by the Dublin Circuit Criminal Court in respect of a number of counts of breaking and entering and robbery with violence committing him to concurrent sentences of imprisonment of the maximum length of two years commencing on the 28th February, 1975. It is anticipated that on foot of that warrant he would, if not previously released by order of the Court, be discharged from prison in the month of July, 1976. No challenge is made to the validity of this conviction or of the warrant issued pursuant to it. The respondent has supplied the prosecutor with a prison record of his detention on this and on previous committals; its accuracy is accepted and, by agreement, it has been admitted in evidence.
The prosecutor did not give oral evidence before me but Dr. Brian McCaffrey, the clinical director of psychiatry for the Eastern Health Board who examined the prosecutor on his behalf; Dr. Smith, the senior psychiatrist to the Central Mental Hospital, Dundrum; Dr. Davies, the medical officer of Mountjoy Prison and Dr. Daly, the director of the Central Mental Hospital, Dundrum, were also called as witnesses on behalf of the prosecutor. No oral evidence was adduced on behalf of the respondent who showed cause by relying on the conviction and warrant. From this oral evidence, from the previous prison record to which I have referred, and from the prosecutor’s own original complaint I find the facts of this matter to be as follows. The prosecutor is now diagnosed, in the words of Dr. McCaffrey, as suffering from a personality trait disturbance of a sociopathic type and, in the words of Dr. Daly, from a disorder of personality which is sociopathic in nature. Between these two diagnoses there is not, I am satisfied, any substantial conflict. He is not, on the agreed medical evidence, either now or consistently a person who is insane, nor does he suffer from a psychotic disease. He does not come within the ordinary definition of a psychopath. No evidence was adduced before me, nor was any suggestion made on behalf of the respondent, that the prosecutor was feigning any part of this condition. Some minor conflict appears in the medical evidence as to whether the prosecutor has been at any relevant time even temporarily insane or of unsound mind but I have come to the conclusion on the evidence that, at some periods at least, the disturbance of his personality has been so acute that it rendered him for some time of legally unsound mind.
If the history of his childhood given by the prosecutor to Dr. McCaffrey is substantially accurate (and I have no reason to believe otherwise), then the origin of this condition is almost certainly an upbringing largely in institutions after a broken marriage of his parents. Having regard to the prosecutor’s innate personality and intelligence, this upbringing was almost unbelievably cruel. Whatever its origin, the prosecutor’s condition manifests itself in an aggressive and continuous hostility to authority and to the features of society which represent authority. To this is added a higher than average intelligence and an unusually athletic physique and capacity. In the pursuit of this hostility the prosecutor is endowed with a physical courage tantamount to recklessness. As a result, during the periods of his imprisonment (which have now continued with only short interruptions since 1969), he has displayed three main activities.
First, he has repeatedly climbed over the walls and on to the roofs of prisons and hospitals with an agility and skill which is practically unique. Secondly, he has repeatedly swallowed metal objects such as bed springs and handles of spoons and has inserted wire and sharp objects into his body not with a suicidal intent, in the opinion of the doctors, but rather for the reckless purpose of making his continued detention impossible. Of course, this tendency as well as the prosecutor’s climbing activities have seriously endangered his life and health. Thirdly, he militantly resists almost all forms of discipline and repeatedly, either on his own or with others, seeks by various methods to escape from detention.
During the entire period of his imprisonment, including the currency of his present detention, he has been certified as insane on a number of occasions and has been transferred to the Central Mental Hospital, Dundrum, usually for short periods of a month or less: he has then been certified as not insane and has been re-transferred to prison. For most of the time he has been in prison he has been kept in solitary confinement with the interruption of varying but short periods of exercise and association with other prisoners. Whilst out of solitary confinement he is usually kept handcuffed for some period. He is deprived of much of the ordinary equipment of a prisoner such as cutlery, a bed with springs and a transistor radio. The purpose and, I am satisfied, the only purpose of these very severe restrictions is to prevent his escape on the one hand and to prevent him swallowing metal and other objects on the other. He has, for example, at one time swallowed batteries and component parts of a radio.
During the relatively short periods of his detention in the Central Mental Hospital, Dundrum, he has received treatment which consisted only of sedation and custodial care. His hostility to that institution and its staff is apparently even greater than his hostility to prison; and this, apart from any other consideration, has prevented any effective therapy.
There is no doubt that to either the prison or hospital authorities he presents an extraordinarily difficult custodial problem; it is difficult to protect him from himself and to detain him, and he is entirely disruptive of the entire organisation of the prison and hospital. He has a particularly bad effect on the other patients confined to the hospital in Dundrum and, to the extent of his permitted association, on fellow prisoners. The requirements of his physical health originate, almost exclusively, from his self-inflicted injuries and wounds; and I am satisfied that those requirements have been adequately met during his detention largely by repeated visits to general hospitals for surgical treatment. Due to the number of operations he has undergone for the removal of foreign bodies from his stomach, he now represents a marked risk if he has to undergo further abdominal surgery.
It is the view of Dr. McCaffrey, which is not disputed by the other medical witnesses or challenged by the respondent, that the only long-term psychiatric treatment which would have a reasonable chance of success in the prosecutor’s case would be his involuntary detention in a specialised psychiatric unit which was capable of keeping him in custody while being specially equipped to provide outlets for his physical capacity and aggressiveness in harmless activities such as gymnastics and games, and which would provide educational and intellectual interests and companionship which he would find amenable, and specially-trained staff who would acquire his co-operation and confidence.
On the evidence it is agreed that no such institution exists in Ireland and that neither in the Central Mental Hospital, Dundrum, nor in any other psychiatric hospital do facilities for such treatment exist. The number of persons suffering from a similar though not identical condition in Ireland at present was estimated by Dr. McCaffrey at about six, and by Dr. Daly at from six to twenty. Dr. Daly expressed the opinion that, disregarding the finance which might be involved, such a unit could physically be installed in Dundrum and, provided appropriate trained staff could be obtained, put into operation. The building of it would involve not only complete segregation from the other patients now detained there, who are almost all psychotic in one form or another, but also the provision of physical barriers to escape which would have to be far beyond the barriers provided in that institution at the present time. Even if the provision of such a unit were immediately started, it would be a number of years before it could be operative.
On the medical evidence, the prosecutor has shown some improvement in his condition in the last six or seven months, though he remains a genuinely sick person. This improvement is considered as probably arising from his expected release next July and, possibly, it is also derived from the fact that he is reaching an age of maturity at which a spontaneous improvement of his condition might occur.
On these facts, Mr. MacEntee, on behalf of the prosecutor, submitted a number of written submissions which he subsequently developed in an able argument. On the facts as I find them, the submissions which remain relevant may be summarised into two broad contentions.
The first contention is that the right to bodily integrity is an unspecified constitutional right and that, in the context of a detained prisoner who is unable to obtain his own medical attention, it imposes upon the Executive an obligation to protect his health as far as is reasonably possible in all the circumstances. Further, counsel contends that the prosecutor’s present detention and its circumstances fail to secure to him that right and that, therefore, it is unconstitutional and unlawful. The second broad contention is that, even if the European Convention on Human Rights is not part of the substantive law of the State1, the freedom from torture and from inhuman and degrading treatment and punishment which is guaranteed by the Convention is, nevertheless, an unenumerated constitutional right; and it is submitted that the present detention of the prosecutor denies that freedom and, accordingly, is unconstitutional and unlawful.
In support of these contentions, counsel referred to the following cases, which I have considered: Ryan v. The Attorney General 2; In re Haughey 3; O’Brien v. Keogh 4: Byrne v. Ireland 5; and McGee v. The Attorney General. 6
Having regard to these submissions and to my findings of fact, I have come to the following conclusions. The right of bodily integrity as an unspecified constitutional right is clearly established by the decision of the Supreme Court in Ryan v. The Attorney General 7 by which I am bound and which I accept. Even though it was there laid down in the context of a challenge to the constitutional validity of a statute of the Oireachtas which, it was alleged, forced an individual to use water containing an additive hazardous to health, I see no reason why the principle should not also operate to prevent an act or omission of the Executive which, without justification, would expose the health of a person to risk or danger.
When the Executive, in exercise of what I take to be its constitutional right and duty, imprisons an individual in pursuance of a lawful warrant of a court, then it seems to me to be a logical extension of the principle laid down in Ryan’s Case 7 that it may not, without justification or necessity, expose the health of that person to risk or danger. To state, as Mr. MacEntee submits, that the Executive has a duty to protect the health of persons held in custody as well as is reasonably possible in all the circumstances of the case seems to me no more than to state in a positive manner the negative proposition which I have above accepted. Therefore, I am satisfied that such a proposition is sound in law.
The vital question, however, is whether the Executive has failed in that duty in this case on the facts as I find them. I am satisfied that the medical requirements of the prosecutor, as distinct from his psychiatric needs, have at all material times been adequately met by the respondent. The prosecutor has been regularly visited and examined by the medical officer of Mountjoy Prison and, when specialised surgical treatment has been required, that treatment has been afforded in the Mater Hospital by a senior consultant surgeon. In my view, the restraints of which the prosecutor most vehemently complains have been designed and implemented to eliminate or diminish, so far as is reasonably practical, the possibility of the prosecutor harming himself by swallowing foreign bodies, by self injury or by injury arising from his climbing and escaping activities.
The real failure in this duty alleged against the respondent is that he has failed to provide the special type of institution and treatment which was recommended by Dr. McCaffrey as a long-term treatment and that, to an extent, imprisonment in any other form is directly harmful to the progress of the prosecutor’s condition of personality disturbance. A failure on the part of the Executive to provide for the prosecutor treatment of a very special kind in an institution which does not exist in any part of the State does not, in my view, constitute a failure to protect the health of the prosecutor as well as possible in all the circumstances of the case. If one were to accept in full all the assumptions upon which Dr. McCaffrey’s opinion is based, it could be shown that there was a failure of an assumed absolute duty to provide the best medical treatment irrespective of the circumstances. I am satisfied, as a matter of law, that no such absolute duty exists.
It has been urged on behalf of the prosecutor that the respondent cannot be excused from his duty to provide this very specialised type of psychiatric treatment on the grounds of the non-availability of the appropriate facilities since that non-availability flows from an unconstitutional failure on the part of his superiors to provide this specialised type of institution with appropriate staff. Even though the number of persons suffering from a condition even generally akin to that of the prosecutor may be as low as six, not all of whom are in custody, a description of the progress and consequence of the prosecutor’s disturbance and the nature of his life in prison would make the availability of appropriate long-term treatment most desirable as a matter of compassion.
However, it is not the function of the Court to recommend to the Executive what is desirable or to fix the priorities of its health and welfare policy. The function of the Court is confined to identifying and, if necessary, enforcing the legal and constitutional duties of the Executive. I cannot conscientiously hold, no matter where my sympathy might lie, that an obligation to provide for prisoners in general the best medical treatment in all the circumstances can be construed as including a duty to build, equip and staff the very specialised unit which Dr. McCaffrey has recommended and which might be appropriate to the needs of the prosecutor and four or five other persons. Therefore, I am satisfied that the first main contention of the prosecutor fails.
With regard to the second contention, the position in law seems to me to be that the existence of constitutional rights which are not specified in Article 40 of the Constitution8 was first declared by Mr. Justice Kenny in the High Court in Ryan v. The Attorney General 9 and was subsequently confirmed by O’Dalaigh C.J. in the Supreme Court in that case. At p. 313 of the report Mr. Justice Kenny states: “It follows, I think, that the general guarantee in sub-s. 1 must extend to rights not specified in Article 40. Secondly, there are many personal rights of the citizen which follow from the Christian and democratic nature of the State which are not mentioned in Article 40 at allthe right to free movement within the State and the right to marry are examples of this.” If the unspecified personal rights guaranteed by Article 40 follow in part or in whole from the Christian and democratic nature of the State, it is surely beyond argument that they include freedom from torture, and from inhuman or degrading treatment and punishment. Such a conclusion would appear to me to be inescapable even if there had never been a European Convention on Human Rights, or if Ireland had never been a party to it.
The question which has given me the most trouble in this case is whether the conditions under which the prosecutor has been and is detained in prison constitute a failure to protect him from torture or from inhuman or degrading treatment and punishmentthus making his detention unlawful. Notwithstanding the harshness of the privations which he has undergone and, to a lesser extent, continues to suffer, I have finally come to the conclusion that those conditions do not constitute such failure.
I am quite satisfied that the purpose and intention of the restrictions and privations surrounding the prosecutor’s detention are neither punitive nor malicious. The strongest confirmation of this would appear to be that the restrictions have been somewhat relaxed since the improvement in his condition noted by Dr. McCaffrey in the last six or seven months. There was no evidence before me of any privation or hardship which does not appear related to one or other of the main purposes of keeping the prosecutor from escaping and preventing him from injuring himself. In seeking to achieve these two purposes, the respondent is discharging two duties which appear to me to be constitutional in origin.
I must construe the entire concept of torture, inhuman and degrading treatment and punishment as being not only evil in its consequences but evil in its purpose as well. It is most commonly inspired by revenge. retaliation, the creation of fear or improper interrogation. It is to me inconceivable to associate it with the necessary discharge of a duty to prevent self-injury or self-destruction.
Therefore, I am satisfied that the respondent has justified the detention of the prosecutor and, therefore, I must refuse the prosecutor’s application for an order releasing him pursuant to Article 40, s. 4. sub-s. 2, of the Constitution.
[The prosecutor appealed to the Supreme Court from the judgment and order of the High Court but the appeal was struck out (on consent) on the 4th October, 1976]

 

Murtagh Properties v. Cleary

[1972] IR 330
Kenny J.

In these three15 actions the plaintiffs, who are licensed vintners, seek in junctions to restrain the defendant, who is the secretary of the Irish National Union of Vintners, Grocers and Allied Trades Assistants, from authorising picketing of the plaintiffs’ premises in Dublin where they carry on their business. Two of the plaintiffs are members of the Licensed Grocers and Vintners Association which has entered into agreements with the Union which is a trade union holding a negotiation licence and catering for those employed in the licensed trade and in the grocery and provision business.
An agreement made in 1924 between the Association and the Union (in relation to the employment of apprentices, assistants and charge hands) stipulated that apprentices were to join the Union within six weeks from the date when they were employed, and that other employees were to be members. Another agreement was made in 1968 in relation to a new category of workers to be known as bar waiters. They were to be members of No. 3 branch of the Union and part of their work was to be the serving of customers, outside counters, in bars and lounges; while the employer was to have absolute freedom as to whom he should employ as an apprentice bar waiter or as a bar waiter, all those in this category had to be members of the Union. Clause 7 is headed “Part-time bar waiters” and it provided that any house, irrespective of size of staff, which employed at least one member of the No. 3 branch of the Union was to be entitled to employ one part-time bar waiter. There is nothing in the agreement which compels employers to ensure that part-time bar waiters are members of the Union.
In 1967 one of the plaintiffs employed bar waitresses on a part-time basis to serve customers at tables in the lounges, and other publicans have now done this. Bar waitresses work two or three nights in the week from 7 p.m. until closing time. None of them are members of the Union. While there are some female members of the Union who are employed in the grocery and provision business, employment in licensed premises was confined to males until 1967; the Union has never agreed to the employment of females (other than as cleaners) in any licensed premises where members of the Union work.
In May, 1971, the Union wrote to one of the plaintiffs objecting to the employment of female lounge staff and stating that it was a departure from the accepted practice and that there was no provision in the agreement “for the employment of such labour.” On the 1st October the Union threatened that their members would withdraw their labour and picket the premises in furtherance of a trade dispute and, although the matter was referred to a conciliation board of the Labour Court, agreement was not reached. The Union then stated that the premises would be picketed if an undertaking was not given to carry out the agreement which, they maintained, prevented the employment of female labour. On the 19th November this Court granted an interim injunction to restrain picketing until the 29th November; the question whether a further injunction should be granted, restraining picketing until the trial, was adjourned by consent until the 25th January when it was debated.
The plaintiffs’ first contention was that the objection by the Union to the employment of bar waitresses was based not on any suggestion that they were unsuitable for the work but solely on the ground that they were female, that this was a breach of the constitutional right of equality before the law (Article 40, s. 1) and that the picket was designed to compel the plaintiffs to infringe this right of the bar waitresses. The next contention was that each of the bar waitresses had a constitutional right to earn her livelihood without discrimination on the ground of sex. The plaintiffs conceded that the National Parliament may validly rule that men or women shall not engage in certain types of work, but the plaintiffs said that it had not done so and that the threat of a picket was therefore an attempt by the Union and the defendant to compel each of the plaintiffs to infringe this right. It followed therefore that the picketing was not protected by the Trade Disputes Act, 1906. The defendant’s principal submissions were that the employment of bar waitresses was a breach of the agreement of 1968, that the right of equality before the law had not been infringed, and that the Constitution did not create a right to earn a livelihood without distinction on the ground of sex.
As the parties do not wish to have this motion treated as the trial of the action, the question for decision now is whether the plaintiffs have established that they have a reasonable prospect of success in the suit. Important and difficult questions of law are involved and, if there is substance in them, the balance of convenience favours the granting of an injunction. If it is not granted the plaintiffs might well find themselves with no choice except either to close down their businesses or to act unconstitutionally by dismissing the bar waitresses whom they have employed: see Educational Company of Ireland Ltd. v. Fitzpatrick 16and, in particular, the judgment of O O’Dalaigh C.J. at p. 344 of the report.
Article 40, s. 1, of the Constitution states: “All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.” This article is not a guarantee that all citizens shall be treated by the law as equal for all purposes but it means that they shall, as human persons, be held equal before the law. It relates to their essential attributes as persons, those features which make them human beings. It has, in my opinion, nothing to do with their trading activities or with the conditions on which they are employed: see The State (Nicolaou) v. An Bord Uchtála 17; and Quinn’s Supermarket v. The Attorney General. 18
The plaintiffs contended that the Constitution recognises a right to earn a livelihood without discrimination of sex, though they conceded that an employer was entitled to refuse to employ anyone for any reason. They then said that this right is infringed when an employer who is willing to employ a female is prevented from doing so by a union whose objection is solely on the ground of sex. By article 40, s. 3, sub-s. 1, of the Constitution the State “guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen,”and those rights are not confined to the rights specifically mentioned in the Constitution: see Ryan v. The Attorney General. 19 The rights which have this guarantee may be derived from other clauses in the Constitution or from the Christian and democratic nature of the State. The right relied on in this case is derived, it was said, from Article 45 which is headed “Directive principles of social policy.”However, the defendants argued that the Court cannot have regard to this Article because it is expressed to be for the guidance of the Oireachtas only. The first two sentences of Article 45 state: “The principles of social policy set forth in this Article are intended for the general guidance of the Oireachtas. The application of those principles in the making of laws shall be the care of the Oireachtas exclusively, and shall not be cognisable by any Court under any of the provisions of this Constitution.” This passage does not mean that the Courts may not have regard to the terms of the Article but that they have no jurisdiction to consider the application of the principles in it in the making of laws. This does not involve the conclusion that the Courts may not take it into consideration when deciding whether a claimed constitutional right exists.
The part of Article 45 on which the plaintiffs rely is the passage in s. 2 which reads: “The State shall, in particular, direct its policy towards securing (i) That the citizens (all of whom, men and women equally, have the right to an adequate means of livelihood) may through their occupations find the means of making reasonable provision for their domestic needs.” The parenthesis recognises the right to an adequate means of livelihood and, while this is not enforceable against the State, its existence logically involves that each citizen has the right to earn a livelihood. The phrase “all of whom, men and women equally” shows that the right is one conferred equally on men and women. The Irish text (“agus ta ceart acu uile, idir fhear is bean”), though it does not refer to “equally,” also stresses that the right is one inherent in men and women. In Professor De Bhaldraithe’s English-Irish dictionary the phrase “both women and children” is translated as “idir mhná is pháistí”. If those who wrote the Constitution intended to refer to the right to an adequate means of livelihood only, it is impossible to understand why the phrase “all of whom, men and women equally” should have been inserted. Its purpose was to emphasise that, in so far as the right to an adequate means of livelihood was involved, men and women were to be regarded as equal. It follows that a policy or general rule under which anyone seeks to prevent an employer from employing men or women on the ground of sex only is prohibited by the Constitution. It was strenuously contended by Mr. Conolly that the consequence of this was that there could be no differences in salary on the ground of sex, and that the remuneration structure of the public service was therefore an infringement of this right. I do not think that this result follows. What is or is not an adequate means of livelihood is a matter for decision by the Oireachtas, but a demand backed by a threat of a picket that women should not be employed at all in any activity solely because they are women (and not because the work is unsuitable for them or too difficult or too dangerous) is a breach of this right.

Reference was made to Articles 9 and 16 of the Constitution. Article 9, which deals with citizenship, provides at s. 1, sub-s. 3, that no person may be excluded from Irish nationality and citizenship by reason of the sex of such person while Article 16, s. 1, sub-s. 1, stipulates that every citizen without distinction of sex shall be eligible for membership of Dail Eireann . Both of these provisions have been carried forward from the Constitution of 1922 (see Articles 3 and 14) and were passed at a time when the right of women to vote and to be members of parliament had just been recognised. They do not affect the view that the right claimed to have been created by Article 45 exists.”If this constitutional right exists, as I believe it does, the analogy with the law declared by the Supreme Court in Educational Company of Ireland Ltd. v. Fitzpatrick (No. 2) 20is compelling in this case. In that case picketing was held to be contrary to the law when its purpose was to compel employers to dismiss those in their employment who were not members of a union. The basis of the decision was that the State had guaranteed liberty for the exercise of the right of its citizens to form associations and unions, which necessarily involved a right not to join one. When giving the judgment of the High Court, Mr. Justice Budd said at p. 369 of the report: “Therefore, if and so far as the Trade Disputes Act, 1906, may purport to authorise picketing in the circumstances existing and with the object of forcing the non-union men to join a particular union against their wishes and their constitutional rights, such alleged effect of the Act is inconsistent with the provisions of the Constitution and any construction of the Act permitting picketing to achieve the unconstitutional purpose aimed at cannot be permitted to prevail. That is because that Act, under the terms of Article 50 of the Constitution, is only effective in so far as it is not inconsistent with the Constitution. To say otherwise would amount to admitting that a constitutional right could be flouted with impunity and to render the provisions of the Constitution nugatory.” These words have great cogency in their application to the circumstances of this case. The purpose of the threat of the picket is to compel the employers to dismiss the bar waitresses solely because they are women, and this is a breach of their constitutional rights.
The defendant argued that the agreement of 1968 precluded the employment of bar waitresses. I do not think that the use of the word “bar waiter” necessarily implies that men only should be employed in that position. There is a significant distinction between clause 1 which relates to bar waiters and clause 7 which relates to part-time bar waiters. Those within clause 1 must be members of No. 3 branch of the Union which is confined to men. There is no such stipulation in relation to part-time bar waiters and the condition which must be observed before any part-time bar waiters are employed, that they are to be employed in a house which employs at least one member of the No. 3 branch of the Union, was not necessary if the part-time bar waiters had to be members of the Union. I think it is reasonably clear on the interpretation of the agreement that part-time bar waiters have not to be members of the No. 3 branch of the Union. If this is the position, the agreement does not confine employment to members of the No. 3 branch of the Union and, therefore, does not confine it to men. I think that the plaintiffs have established that they have a reasonable prospect of success in their contention that the threat of the picket is an attempt to coerce them into infringing one of the rights of their employees and that the agreement does not preclude them from relying on this.
An injunction will be granted to each of the plaintiffs restraining the defendant from authorising persons to attend at or near the plaintiffs’ premises for the purpose of picketing them until the trial of the action or until further order.21 I may add that I will be able to hear the case in May or June.

 

 

Kinsella -v- Governor of Mountjoy Prison

[2011] IEHC 235

Hogan J
7. Article 40.3.2 of the Constitution requires the State by its laws to:-

“protect as best it may from unjust attack and, in the case of injustice done, to vindicate the life, person, good name and property rights of every citizen.”
8. So far as the present application is concerned, it is the State’s duty to protect and vindicate the person of Mr. Kinsella which is principally engaged here, although I do not overlook the fact that the applicant’s present conditions of confinement also arise, in part, at least, from the State’s duty to protect his right to life and, perhaps, the life of other persons as well. Yet it is undeniable that detention in a padded cell of this kind involves a form of sensory deprivation in that the prisoner is denied the opportunity of any meaningful interaction with his human faculties of sight, sound and speech – an interaction that is vital if the integrity of the human personality is to be maintained. I use the term “a form of sensory deprivation” advisedly, because it is only fair to say that confinement in such conditions as Mr. Kinsella has had to experience is nonetheless very far removed from the “five techniques” of sensory deprivation – such as intentionally subjecting the prisoner to constant “white” noise, sleep deprivation and the hooding of prisoners – condemned by the European Court of Human Rights in Ireland v. United Kingdom (1978) 2 EHRR 25 as inhuman and degrading treatment and, hence, a breach of Article 3 ECHR.
9. By solemnly committing the State to protecting the person, Article 40.3.2 protects not simply the integrity of the human body, but also the integrity of the human mind and personality. Counsel for the Governor, Mr. McDermott, observed in argument that no expert evidence had been led by the applicant with regard to the psychological harm which he might suffer. That is true, but it must be recalled that this application is one which of necessity was made as a matter of considerable urgency, so that the possibility of commissioning such an expert report within the short time period was probably not a realistic possibility. Moreover, one does not need to be psychologist to envisage the mental anguish which would be entailed by a more or less permanent lock-up under such conditions for an eleven day period. Nor, for that matter, does one need to be a psychiatrist to recognise that extended detention over weeks under such conditions could expose the prisoner to the risk of psychiatric disturbance.

10. While making all due allowances for the exigencies of prison life and the difficult and unenviable task of the prison service in making complex arrangements for a wide variety of different prisoners with different needs and who often must be protected from one another, it is nonetheless impossible to avoid the conclusion that a situation where a prisoner has been detained continuously in a padded cell with merely a mattress and a cardboard box for eleven days compromises the essence and substance of this constitutional guarantee, irrespective of the crimes he has committed or the offences with which he is charged. This is not to suggest that such a cell might never be used. Clearly somewhat different considerations may well arise in the case of disturbed prisoners or where other prisoners need to be accommodated on a temporary emergency basis for perhaps a day or two. But detention in such conditions for well over a week fails to meet the minimum standards of confinement pre-supposed by the constitutional guarantee in relation to the protection of the person contained in Article 40.3.2. I accordingly find that the conditions under which Mr. Kinsella have been detained constitute a violation of his constitutional right to the protection of the person and that the State has failed to vindicate that right in the manner required by Article 40.3.2 of the Constitution.
Whether the applicant is entitled to be released by reason of this breach of his constitutional rights?
11. It seems clear that the principal – and, perhaps, indeed, the exclusive – function of the High Court on an Article 40.4.2 application is to determine whether the applicant is detained in lawful custody, although the court may also may enjoy some residual jurisdiction for the purposes of making its orders effective: see, e.g., the comments of Murray C.J. in N. v. Health Service Executive [2006] 4 IR 470, [2006] IESC 60 and those of Clarke J. in H. v. Russell [2007] IEHC 7. In this context, therefore, the question is whether the breach of the applicant’s constitutional right which has occurred here – while undoubtedly serious in itself – is such as would entitle him to immediate and unconditional release in the course of an Article 40.4.2 application.

12. The starting point here is, of course, the well known jurisprudence commencing with the Supreme Court’s decision in The State (McDonagh) v. Frawley [1978] I.R. 131 where O’Higgins C.J. observed ([1978] I.R. 131, 137):-

“The confinement of orders of release under Article 40.4 to cases where the detention is not ‘in accordance with law’ in the sense that I have indicated means that application under Article 40.4 are not suitable for the judicial investigation of complaints as to conviction, sentence or conditions of detention which fall short of that requirement. These fall to be investigated, where necessary, under other forms of proceedings.”
13. A further factor is that the intentional violation of the prisoner’s right which Budd J. considered in Brennan v. Governor of Mountjoy Prison [1999] 1 ILRM 190, 205 might be a ground for ordering the release of a convicted prisoner in an Article 40.4.2 application is not present here. In H v. Russell, a case concerning the adequacy of treatment to be provided to a patient detained under the Mental Health Act 2001, the general approach of the courts to the raising of such matters in an Article 40.4.2 application was summed up thus by Clarke J.:-
“However by a parity of reasoning with the jurisprudence of the courts in respect of persons who are detained within the criminal justice process, it does not seem to me that anything other than a complete failure to provide appropriate conditions or appropriate treatment could render what would otherwise be a lawful detention, unlawful. See, for example, The State (Richardson) v. Governor of Mountjoy Prison [1980] I.L.R.M. 82. That is not to say that a person may not have a remedy in circumstances falling short of such complete failure. If there is a legal basis for suggesting that the conditions in which a person is detained or the treatment being afforded to a person so detained are less than the law requires, then an appropriate form of proceeding (whether plenary or judicial review) may be used as a means for enforcing whatever legal entitlements may be established. In many cases (and it would appear on the evidence that this case is one of them) the issues may well centre around the availability of resources for more appropriate treatment. Such cases are undoubtedly complex and require the court to consider the legal entitlements of persons in the context of there being argued to be a lack of resources available to provide more appropriate treatment. It does not seem to me that such cases are properly determined in the context of an application under Article 40.4 of the Constitution, which is concerned with the narrow question of the validity or otherwise of the detention of the person concerned. In my view counsel for Cavan General was correct when he argued that cases involving resources issues are not ones which can properly be dealt within the narrow parameters of an Article 40.4 inquiry.
In those circumstances I was not satisfied that the undoubted questions which arise as to the appropriateness or otherwise of the treatment of Mr. H. are ones which, even from the high watermark of his case, could conceivably result in a conclusion that his detention was, on that ground alone, unlawful. Therefore, if I had not been satisfied that there were grounds for deeming Mr. H.’s detention unlawful by reason of the process, I would not have been satisfied that his detention was unlawful by reason of the treatment (or the lack of it) which he has received. If (and I express no concluded view on the issue) there is any merit to his contention that his treatment falls short of that which the law entitles him to, then his entitlements should be determined in appropriate proceedings designed to obtain appropriate declarations or orders concerning the nature of the treatment to which he is entitled rather than in proceedings which question the validity of his detention.”

14. In the present case I cannot presently say that the applicant’s continued detention has been rendered entirely unlawful by this breach of his constitutional right or that the authorities have completely failed in their duties and obligations towards him in the manner indicated by Clarke J. in H. I have reached this conclusion regarding the lawfulness of his detention in light of what I consider is the real and genuine concern for Mr. Kinsella’s safety on the part of the prison authorities and having regard to the substantial difficulties which they have hitherto encountered in finding suitable accommodation for him, whether in Mountjoy Prison or elsewhere within the prison system. Furthermore, as illustrated by decisions such as The State (Richardson) v. Governor of Mountjoy Prison [1980] I.L.R.M. 82, absent something akin to an intentional violation or manifest negligence on the part of the authorities (which is not the case here), it would be only proper to give them a fair opportunity to remedy the situation in the light of this decision.
15. The proposed solution – i.e., upholding the claim of a violation of a constitutional right, but giving the authorities an opportunity to remedy this breach – is also perhaps the one which is the most apt having regard to the principles of the separation of powers, given that onerous duty of actually running the prisons rests with the executive branch. In his closing submission, Mr. McDermott urged me to take this step were I to hold that the applicant’s constitutional rights had been breached. The present case may yet prove to be an example of a constructive engagement of this kind between the executive and judicial branches which achieves a just solution in line with appropriate separation of powers concerns without the immediate necessity for a coercive or even a declaratory court order. At the same time, if the guarantee of Article 40.3.2 is to be rendered meaningful in the present case, then this further opportunity can really only be measured in terms of days having regard to the known facts concerning the applicant’s present conditions of confinement.
Conclusions
16. To sum up, therefore, I have concluded that:-

A. The detention of the applicant in the padded cell in the manner that I have described for a continuous eleven day period objectively amounts to a breach of the State’s obligation under Article 40.3.2 of the Constitution to protect the person of Mr. Kinsella.
B. It cannot presently be said that this breach is so serious that it immediately vitiates the lawfulness of his detention. It is clear from the Supreme Court’s decision in McDonagh that, so far as sentenced prisoners are concerned, the Article 40.4.2 jurisdiction can only be used in quite exceptional cases. Having regard to the fact that the prison authorities are acting from the best of motives in a complex and difficult situation, it would be only fair and proper to give them one further opportunity to remedy the situation. It cannot yet be said that the present case comes within the exceptional category of cases envisaged by O’Higgins C.J. in McDonagh and by Clarke J. in H. v. Russell.

O’Donnell & ors -v- South Dublin County Council & ors

[2015] IESC 28 (13 March 2015)
59. The criteria for assessment under s.9 are to be seen in light of the fact they are to be used in assessing the medium and long term accommodation needs of travelling people. The obligation placed on the housing authority under s.9(1) is to carry out such an assessment not less frequently than every three years.

60. But those same statutory criteria are very revealing when one looks at Ellen O’Donnell’s position from 2005 onwards. There is no dispute but that she was “living in accommodation that was unfit for human habitation” (see s.9(2)(c) above; that she was “living in overcrowded accommodation” (see s.9(2)(d) above; that she was “sharing accommodation with another person or persons and [had], in the opinion of the housing authority, …. a reasonable requirement for separate accommodation” (s.9(2)(e); that she was “in need of accommodation for medical or compassionate reasons” (s.9(2)(g); that she was “disabled or handicapped”; s.9(2)(i) and that she personally was:

“not reasonably able to meet the cost of the accommodation which they are occupying or to obtain suitable alternative accommodation.”
61. The Council knew and accepted that the mobile home was unfit for human habitation, Ellen O’Donnell was therefore a person who could not “reasonably occupy or remain in occupation of” the mobile home. Not only was she “homeless”, but she fulfilled seven of the other criteria identified under section 9.
62. With these considerations in mind, s.10 of the 1988 Act provides:

“10.-(1) A housing authority may, subject to such regulations as may be made by the Minister under this section –

(a) make arrangements, including financial arrangements, with a body approved of by the Minister … for the provision by that body of accommodation for a homeless person,
(b) provide a homeless person with such assistance, including financial assistance, as the authority consider appropriate, or

(c) rent accommodation, arrange lodgings or contribute to the cost of such accommodation or lodgings for a homeless person.

2. A request for accommodation may be made to a housing authority by or on behalf of a homeless person …” (emphasis added)
A duty devolves on a housing authority to act when a “request for accommodation has been made to it” (s.10(2)). Dolores Murphy’s letter had made such request. Can it then be said that the Council did not owe special duty to Ellen O’Donnell when they had specific notice of all of her problems?
63. Unfortunately, the loan application for €6,350 did not progress. There was a stand off. Such a loan would have improved the mobile home, and reduced a substantial degree of the day by day and night by night degradation and indignity to which Ellen O’Donnell was subject. It would have allowed her to function as a more autonomous, non-dependent young person, although not eliminating the over-crowding. The County Council was aware of the situation, and its impact on Ellen O’Donnell. But it took no further steps to process the loan or to initiate the repairs, or to ascertain why the O’Donnells themselves were not repairing the caravan. The Council had, however, made offers of permanent housing to Mr. and Mrs. O’Donnell.

64. How should the statutes be interpreted and applied in the case of Ellen O’Donnell? The process of statutory interpretation, in the first instance, must be informed by the Constitution.

65. In East Donegal Co-operative Livestock Mart Limited v. Attorney General [1970] I.R. 317 at 343, Walsh J. pointed out that:

“… an Act of the Oireachtas, or any provision thereof, will not be declared to be invalid where it is possible to construe it in accordance with the Constitution; and it is not only a question of preferring a constitutional construction to one which would be unconstitutional where they both may appear to be open but it also means that an interpretation favouring the validity of an Act should be given in cases of doubt. It must be added, of course, that interpretation or construction of an Act or any provision thereof in conformity with the Constitution cannot be pushed to the point where the interpretation would result in the substitution of the legislative provision by another provision with a different context, as that would be to usurp the functions of the Oireachtas. In seeking to reach an interpretation or construction in accordance with the Constitution, a statutory provision which is clear and unambiguous cannot be given an opposite meaning.”
Clearly, the established jurisprudence of this Court makes clear that, to interpret s.13(2) as mandating a housing authority to provide a mobile home for a travelling person would be to usurp the functions of the Oireachtas. But Acts of the Oireachtas are to be read and interpreted in the light of the Constitution. If, in an exceptional case such as this, statutory powers are given to assist in the realisation of constitutionally protected rights or values, and if powers are given to relieve from the effects of deprivation of such constitutionally protected rights, and if there are no reasons, constitutional or otherwise, why such statutory powers should not be exercised, then I think such powers may be seen as being mandatory. In so finding I do no more than reiterate a statement of interpretation in cases of this exceptional category expressed by Costello J in the High Court, in O’Brien v Wicklow Urban District Council (Unreported, High Court, 10th June, 1994)
66. Both Mr. and Mrs. O’Donnell were repeatedly offered housing. It is not possible to conclude that the County Council failed in its statutory duty to them. The extent and range of the offers is sufficient to negative any finding in their favour. The parents must be taken as having spoken for the other children. The Council cannot be fixed with notice of sufficient information as to the other children’s position, which would have placed them under a duty. The courts must apply the law on the evidence in the case.
The Statutory Duty owed to Ellen O’Donnell
67. But Ellen’s situation is distinct. The terms of s.10 of the Housing Act, 1988 are that a housing authority “may … provide a homeless person with such assistance as the authority would consider appropriate”; or “… may … rent accommodation, arrange lodgings or contribute to the cost of such accommodation or lodgings for a homeless person”. There is a distinction between paragraph (b) and paragraph (c) of s.10, in that the words “as the authority consider appropriate” do not arise in paragraph (c). Did the County Council’s duty to Ellen end with these offers?

68. The preamble to the Constitution outlines the values of promoting the common good with due observance of prudence, justice and charity, so that “the dignity and freedom of the individual may be assured”. It is clear that constitutional values established by our jurisprudence, specifically those of autonomy, bodily integrity and privacy, are engaged here (In the matter of A Ward of Court (withholding medical treatment) (No. 2) [1996] 2 I.R. 75, and Ryan v AG [1965] IR 294). The position of Ellen O’Donnell is distinct by virtue of the evidence. Of course, in every family situation, and in all forms of accommodation, the constitutional values just identified are compromised by the inevitable activities of other family members, or economics, or lack of space. But because of the exceptional overcrowding, and the destruction of the sanitation facilities, and in light of Ellen O’Donnell’s disability, her capacity to live to an acceptable human standard of dignity was gravely compromised. Her integrity as a person was undermined. Her rights to autonomy, bodily integrity and privacy were substantially diminished. The Council was aware of the issue.

69. The situation, as known to the County Council in 2005, was truly, exceptional. That situation was, to my mind, sufficient as to impose a special duty upon the County Council towards Ellen O’Donnell. The County Council says in this appeal that it complied with its duties to her. Insofar as privacy rights might arise under Article 8 of the Convention, the Council assessed her long term accommodation needs; provided temporary accommodation in 2003; upgraded and specially adapted the service unit and facilities on the bay; provided a wheelchair accessible caravan; offered a loan to the first and second named applicants for the purchase of a second-hand caravan to alleviate overcrowding, and made provision in its Traveller Accommodation Programme for the provision of a purpose built specially adapted group house designed to meet Ellen O’Donnell’s long term accommodation needs, having regard to her disability. There is considerable strength in each submission.

70. Arguably the situation was, partially, at least, the responsibility of Mr. and Mrs. O’Donnell. It can be said that, under Article 42 of the Constitution, the parents, as her guardians, were entitled to make decisions as to her education, upbringing and welfare; and that consequently the County Council was entitled, perhaps under a duty, to accept what the parents decided, in the words of Article 42, as “educators” of the children. But, insofar as Ellen O’Donnell is concerned, this is not only a case about parental choices, rights and duties (though these arise), but also about the duty of the Council, when faced with clear evidence of inhuman and degrading conditions, to ensure that it carried out its statutory duty. This was to vindicate, insofar as was practicable, in the words of Article 40.3 of the Constitution, the rights of one young woman with incapacities to whom, by virtue of the evidence, the Council owed a discrete and special duty under Article 40 of the Constitution. That statutory duty is to be informed with due regard to Ellen O’Donnell’s capacity as a human person (Article 40.1 Constitution of Ireland).

71. There are abundant examples in our jurisprudence as to the approach applied by the courts when considering socially “remedial” legislation such as this. Such statutes allow for a purposive interpretation, and are to be constructed as widely as can fairly be done, subject to the Constitution itself, and within the constitutional limits of the courts interpretive role. See: Bank of Ireland v. Purcell [1989] I.R. 327 and Gooden v. St. Otteran’s Hospital [2005] 3 I.R. 617. Is there a difference in principle between a council being fixed with knowledge and therefore a duty, in the context of a defectively repaired pavement creating a hazard to pedestrians, and the knowledge which it had in this case insofar as Ellen O’Donnell is concerned? I am not persuaded there is. Of course the extent of a duty, (if it exists), must be gauged against the degree of incursion into the constitutional and statutory rights engaged. A mere letter will not fix an authority with liability. It was the truly exceptional nature of what was in the letter, and its acceptance, which viewed in the circumstances, gave rise to the duty to interpret and apply “may” as “must”.

72. I do not seek to entirely absolve Mr. and Mrs. O’Donnell from potential liability for what occurred. But the degree of such liability is a matter which requires to be ascertained in a plenary hearing, affording an opportunity to examine and cross-examine. Speaking generally, as a matter of justice, adult persons who make negligent choices with legal consequences may be made answerable for those choices. A parent who is a defendant in a tort claim brought by a child in a car accident cannot seek the protection of Article 42 of the Constitution, if that child’s injuries occurred because the parent neglected to ensure that a child wore a seat belt. It is self-evident that Mr. & Mrs. O’Donnell were very aware of Ellen’s situation.

73. The exceptional evidence, and the acknowledgment of its truth, is sufficient to lead to the consequence of fixing the County Council with a duty under s.10 to take practicable steps on foot of the request for accommodation which was made to it (see s.10(2)). At its highest, that duty was, then, to “provide a homeless person with such assistance (including financial assistance) as the authority considered appropriate” (see s.10(1)(a)), or to “rent accommodation, arrange lodgings or contribute to the cost of such accommodation or lodging for this young person who was homeless” (see s.10(c)).

74. I appreciate that, if offered lodgings or accommodation, Ellen O’Donnell might well have responded that she would not, or could not, move without her family. This consideration does not absolve the County Council from taking such ‘practicable’ steps as might be taken to vindicate her position. Without being overly prescriptive, and without in any way trespassing into “judicial legislation”, or transgressing constitutional boundaries as to the separation of powers, the County Council, in compliance with its statutory duty under s.10(1)(b) of the 1988 Act quoted earlier, could, at minimum, have written in the clearest possible terms offering “financial assistance”, that is to say, that workers would be available on a specified date and time to carry out repairs to the caravan, and, if necessary, making arrangements to ensure repayment of the cost afterwards. This message could have been reinforced by a social worker visit explaining the contents of the letter, again in the clearest possible terms, together with a written acknowledgment of its contents. Even in light of the unfortunate experience with the Lunar Eclipse, the Council might, too, have contemplated lending a second caravan so as to make available temporary accommodation space for Ellen, her brothers and sisters. None of this happened. The evidence, therefore, does not show that the County Council performed its statutory duty, towards Ellen, “insofar as it was practicable” as the Constitution provides.
The ECHR Claim
75. As there is no basis, thus far, under the statutes or the Constitution, for a finding in favour of Mr, and Mrs. O’Donnell in their claim for a second caravan, I move to a consideration of potential ECHR rights. Many of the issues explored in this appeal bear resemblance to judgments by Laffoy J. in O’Donnell & Others v. South Dublin County Council [2007] IEHC 204 and Charleton J. in Doherty v. South Dublin County Council [2007] IEHC 4. While much may be gleaned from these prior authorities, the observations therein as to rights and duties under the Convention must now be seen in light of the more recent jurisprudence of this Court, specifically in the judgments in JMcD v. PL [2009] I.R.

76. The County Council is “an organ of State”. It is “established by law”. Through it, the “executive … powers of the State are exercised”. (see s.1 ECHR Act 2003). However, in order to establish that it has committed a wrong, it is necessary, by virtue of s.1 ECHR Act 2003, that a Council defaulted in its “functions” which include powers and duties. In engaging in the process of interpretation, pursuant to ECHR jurisprudence, a court is to take notice of any declaration, decision, advisory opinion or judgment of the ECtHR (s.4 ECHR Act, 2003). The courts are, subject to the Constitution to take “due account” of clear and consistent principles laid down in Strasbourg jurisprudence. This is to be seen in the context of the function of the ECtHR to adjudicate within its own powers, as identified under the its Treaty of establishment (see the judgments of Murray C.J., Denham J. and Fennelly J. in JMcD v. PL; and the references therein to R.(Ullah) v. Special Adjudicator [2004] 2 AC 323).

77. With regard to Mr. and Mrs. O’Donnell and the other children, the questions to be asked are the following:

1. Is there any statutory duty on the County Council, in the context the evidence regarding the other applicants, which, insofar as the claims for a second caravan are concerned, falls to be interpreted and applied in this case?
2. If so, can those statutory duties be interpreted in light of principles laid down in clear and constant Strasbourg jurisprudence?

3. In the absence of such principles, can any power or duty be interpreted or applied on the facts of this exceptional case, which might benefit the other applicants insofar as there is evidence?

78. For such duties to exist there must be an ECHR right, arising either under Article 3 or Article 8 of the Convention, cited earlier. As Murray C.J. pointed out in JMcD v. PL [2009], the ECHR may only become part of domestic law through what he described as the “narrow portal” of Article 29.6 of the Constitution; and then only to the extent determined by the Oireachtas and subject to the Constitution itself. The Convention does not in itself provide a remedy at national level to victims whose rights may have been breached by reference to the provisions of the Convention. Section 8 of the ECHR Act, 2003 permits a claimant, if there is no other remedy, to recover damages where an organ of State has failed to perform its functions in a manner compatible with the State’s obligations under the ECHR.
79. In Doherty Charleton J. pointed out that there is no positive obligation on a court to intervene to uphold the private and family life rights to be found in Article 8, and that, expressly, the text of Article 8 itself forbids “interference by a public authority with the exercise of this right”. The judgment points out that both the courts of England and Wales, and the European Court of Human Rights had attempted to address the issue in respect of housing or welfare conditions without formulating a principle as to when State welfare provision may be necessary in order to allow for the meaningful exercise of the rights protected. He observed:

“It may be that there is a positive duty cast upon public authorities to intervene under Article 8, consistent with the proper disposal of available resources, where special circumstances cause a direct interference of a serious kind in family life and where the subject of that interference has no available means to alleviate the absence of that right.”
80. In general, I consider that this expresses the hypothetical legal position correctly; but the existence and extent of such a duty would have to be discerned from clear and consistent Strasbourg jurisprudence.
81. Doherty pre-dated JMcD v. PL, and must be read subject to the later decision of this Court. Charleton J. (then a judge of the High Court) considered a number of authorities from England and Wales, where, on the basis of U.K. law as applied, the English courts had hypothesised on where situations potentially, a positive obligation of intervention might exist. He concluded it would be hard to conceive of a situation in which the predicament of an individual would be such that Article 8 would require that person to be provided with welfare support, where his/her predicament was not sufficiently severe also to engage Article 3. However, he thought Article 8 would be more readily engaged where a family unit is involved, or where the welfare of children was at stake. The Article might also be engaged where a family life was seriously inhibited by what are termed the “degrading conditions” prevailing in a claimant’s home.

82. However, it is clear that before an act or failure to act can amount to a lack of respect for private and family life, there must be some ground for criticising a failure to act. There must be an element of culpability. At the very least there must be knowledge that a claimant’s private and family life were at risk. Next, there must be a clear statement of principle to that effect discernible from the ECtHR jurisprudence. I would observe, the application of the principle must be subject to the conditions identified by this Court in JMcD v. PL.

83. A consideration of ECtHR case law demonstrates that, in fact, no judgment confers a right to be provided with a home of one’s choice, nor are there any positive obligations to provide alternative accommodation of an applicant’s choosing (see Chapman v. UK (Application no. 27238/95) (2001) 33 E.H.R.R. 442. However, an observation of the ECtHR in Marzari v. Italy [1999] 28 E.H.R.R. CD 175 is not without interest:

“The Court considers that, although Article 8 does not guarantee the right to have one’s housing problem solved by the authorities, a refusal of the authorities to provide assistance in this respect to an individual suffering from a severe disease might in certain circumstances raise an issue under Article 8 of the Convention because of the impact of such refusal on the private life of the individual.”

The decision in relation to the appellants other than Ellen O’Donnell
84. The difficulty here is that, in the case of Mr. and Mrs. O’Donnell, it is impossible to identify any right, however interpreted, which was not forgone, by their own actions in disposing of a usable caravan, and in refusing the range of housing solutions offered to them and their family. This was sufficient in law to discharge the County Council’s statutory duties. The same considerations also apply insofar as a claim could be said to arise deriving from consideration of ECtHR case law.
The order now proposed
85. There are passages in the High Court judgment herein where it might appear that the judge in fact gave “direct effect” to provisions of the ECHR. This would be at variance from the sub-constitutional status of the Convention. It is true that legislation is to be interpreted pursuant to s.2 of the ECHR Act, 2003. The judgment pre-dates the decision of this Court in JMcD v. PL. But this must be in a manner compatible with the State’s obligations. The interpretative obligation is limited, in that the Convention-compatible construction contended for, must be possible in accordance with existing legal rules concerning the interpretation and application of legislation. The interpretative obligation under s.2 cannot be relied on to support an interpretation which is manifestly inconsistent with the legislative intention behind the provisions. Moreover, a correct interpretation of a provision is irrelevant, unless there is actually some right of a claimant which is protected by the Convention and which has been breached by the manner in which the provision has been applied (see JMcD v. PL). Consequently, I would not alter the judgment insofar as concerns the other appellants.

86. I would vary the order of the learned High Court judge insofar as it concerns the fourth named applicant only. She is entitled to a declaration that she is entitled to damages (which may be moderate) by reason of the County Council’s breach of statutory duty toward her. I would remit her claim for damages for plenary hearing back to the High Court. I would add that the circumstances of the case pre-date the inception of the Charter of Fundamental Rights and Freedoms of the European Union, or the accession of the European Union to the United Nations Convention for the Protection of Persons with Disabilities. These instruments did not arise in the pleadings could not form part of the case.

87. The claim for damages for breach of statutory duty is of a quasi tortious nature. Therefore, it is one to which the Civil Liability Act, 1961, as amended, applies. While I express no view on this, issues may arise as to whether, in the assessment of damages to which Ellen O’Donnell is entitled, the question of the parents’ potential legal liability or part liability for what occurred may also arise. That question falls to be determined on facts as established at plenary hearing, and having regard to all the circumstances of the case.

 

 

 

 

 

 

 

 

Kennedy v. Ireland

[1987] IR 587

Hamilton P.
H.C.

 

The plaintiffs had in their statement of claim alleged that the activities of which they complained and which were admitted on behalf of the State were not authorised by law, were in breach of contract and in breach of the constitution.
It appears from a statement made by the then Minister for Justice on the 20th January, 1983, and which was by consent of the parties to these proceedings admitted in evidence, that he confirmed that both telephones were in fact “tapped”, that the facts showed that the system of safeguards which successive Ministers for Justice had publicly declared in Dail Eireann to be an integral part of the system was either disregarded in the cases in question or, what amounts to the same thing, was operated in such a way as to be rendered meaningless and that the facts showed that there was no justification for the ‘tapping’ of either of the two telephones and that what occurred went beyond what could be explained as just an error of judgment.
Warrants authorising the communication to Assistant Commissioner T.J. Ainsworth by the Minister for Posts and Telegraphs of particulars of all communications on the said telephone numbers were issued by the then Minister for Justice on the 14th May, 1982, in respect of telephone number 805575 and 30th July, 1982, in respect of telephone number 280006.
It is submitted on behalf of the defendants that the right to issue such warrants is recognised by the provisions of s. 56 of the Post Office Act, 1908.
It is conceded by the State that such warrants are issued only in very limited circumstances such as for security purposes or for the prevention and detection of serious crime. It is further conceded by the State, as appears from the statement of the then Minister for Justice made on the 20th January, 1983, already referred to, that there was no justification for the tapping of either of the two telephones in question in this case.
It is submitted by Mr. Fennelly on behalf of the defendants herein, the State and the Attorney General, that while the ‘tapping’ of the telephones was improper, it was not illegal and did not interfere with any constitutional rights of the plaintiffs or either of them.
This is a submission which I cannot accept.
Constitutional Rights
In their statement of claim the plaintiffs, inter alia, claim:

(1) that their rights under Article 40, s. 3 of the Constitution include the personal right to privacy and to be free from unlawful and unwarranted intrusions into their private telephone conversations,
(2) that the State has failed:
(a) to defend and vindicate their personal rights,
(b) to respect the privacy of the plaintiffs in the exercise of their profession as political journalists and in the living of their private lives by not interfering with, listening to and tapping their telephone conversations,
(c) to respect the guarantee to all citizens to express freely their convictions and opinions, including criticism of Government policy,
and
(3) that the State has:
(a) interfered without any lawful cause or justification into the private lives and liberties of the plaintiffs,
(b) tapped the telephones of the plaintiffs and taken transcripts of conversations in a manner intended to interfere with the plaintiffs in the exercise of their guaranteed rights.
The personal right to privacy is not one of the rights actually acknowledged by Article 40 of the Constitution but as stated by Mr. Justice Kenny in Ryan v. The Attorney General [1965] I.R. 294 at p. 313:
“[T]here are many personal rights of the citizen which follow from the Christian and democratic nature of the State which are not mentioned in Article 40 at all.”
The personal right to privacy is one of such rights. In the course of his judgment in Norris v. The Attorney General [1984] I.R. 36 at pp. 100 and 101 of the report, Mr. Justice McCarthy stated:
“The Constitution does not guarantee or, in any way, expressly refer to a right of privacy no more, indeed than does the United States Constitution, with which our Constitution bears so many apparent similarities. In the United States Constitution the right to privacy in one form or another has been founded upon the First Amendment ( Stanley v. Georgia (1969) 394 U.S. 557); the Fourth and Fifth Amendments ( Terry v. Ohio (1968) 392 U.S. 1); in the penumbras of the Bill of Rights ( Griswold v. Connecticut (1965) 381 U.S. 479) the contraceptives case; in the Ninth Amendment ( Griswold v. Connecticut ); and in the concept of liberty guaranteed by the first section of the Fourteenth Amendment ( Meyer v. Nebraska (1923) 262 U.S. 390).
In our Constitution a right of privacy is not spelt out. As stated by Mr. Justice Henchy in his judgment, there is a guarantee of privacy in voting under Article 16, s. 1, sub-s. 4 the secret ballot; a limited right of privacy given to certain litigants under laws made under Article 34; the limited freedom from arrest and detention under Article 40, s. 4; the inviolability of the dwelling of every citizen under Article 40, s. 5; the rights of the citizens to express freely their convictions and opinions, to assemble peaceably and without arms, and to form associations and unions-all conferred by Article 40, s. 6, sub-s. 1; the rights of the family under Article 41; the rights of the family with regard to education under Article 42; the right of private property under Article 43; freedom of conscience and the free profession and practise of religion under Article 44. All these may properly be described as different facets of the right of privacy, but they are general in nature (as necessarily they must be in a Constitution) and do not set bounds to the enumeration of the details of such a right of privacy when the occasion arises. In our jurisdiction this is best exemplified in the McGee Case [1974] I.R. 284 where, whilst Mr. Justice Walsh rested his judgment upon the provisions of Article 41, Mr. Justice Budd, Mr. Justice Henchy and Mr. Justice Walsh relied upon the guarantees of Article 40, section 3. I would respectfully share the latter view of the true foundation for what the McGee Case upheld the right of privacy in marriage.
Whilst the Constitution of the Irish Free State (Saorstát Éireann ) 1922, did not, as it were, isolate the fundamental rights of citizens in a manner in which the present Constitution of 1937 has done, articles 6, 7, 8, 9 and 10 of that Constitution indicate the manner in which certain rights were spelt out but, to a degree, highlight the absence of such guarantees as are contained in Article 40, s. 3, and Article 41 of the Constitution. There may well be historical reasons for these differences a greater awareness of the need for the annunciation of fundamental rights was present during the 1930s than at the time of the negotiations for the Treaty that led to the enactment of the Constitution of the Irish Free State. At all events, since 1937, the concept of judicial dynamism in constitutional law has grown, thereby identifying more readily the role of the Courts, and in particular, this Court as the judicial organ of government, not merely by way of a supervisory jurisdiction on the actions of the legislative and executive branches of government but by way of legal interpretation thus playing its part in “seeking to promote the common good, with due observance of prudence, justice and charity, so that the dignity and freedom of the individual may be assured . . .” as most strikingly evidenced by the decision in the McGee Case .
How then, to identify the nature of the personal right of privacy? The right to privacy has been called by Brandeis J. of the United States Federal Supreme Court “the right to be let alone” a quotation cited by the Chief Justice in this case and by Mr. Justice Walsh in his dissenting judgment as a member of the Court of Human Rights in Dudgeon v. United Kingdom (1981) 4 E.H.R.R. 149. By way of definition it has brevity and clarity and I would respectfully adopt it as accurate and adequate for my purpose but, to a degree, the very definition begs the question. The right to privacy is not in issue, the issue is the extent of that right or the extent of the right to be let alone.”
Though not specifically guaranteed by the Constitution, the right of privacy is one of the fundamental personal rights of the citizen which flow from the Christian and democratic nature of the State. It is not an unqualified right. Its exercise may be restricted by the constitutional rights of others, by the requirements of the common good and is subject to the requirements of public order and morality.
There are many aspects to the right to privacy, some of which have been dealt with in the cases referred to by Mr. Justice McCarthy in the passage which I have just quoted from his judgment in Norris’s Case [1984] I.R. 36 and the remaining aspects remain to be dealt with when suitable cases come before the courts for determination. The question to be determined in this case is whether the right to privacy includes the right to privacy in respect of telephonic conversations and the right to hold such conversations without deliberate, conscious and unjustified interference therewith and intrusion thereon by servants of the State, who listen to such conversation, record them, transcribe them and make the transcriptions thereof available to other persons.
I have no doubt but that it does.
As stated by Mr. Justice Henchy in his judgment in Norris v. The Attorney General [1984] I.R. 36 at p. 71:
“Having regard to the purposive Christian ethos of the Constitution, particularly as set out in the preamble (“to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations”), to the denomination of the State as “sovereign, independent, democratic” in Article 5, and to the recognition, expressly or by necessary implication, of particular personal rights, such recognition being frequently hedged in by overriding requirements such as”public order and morality” or “the authority of the State” or “the exigencies of the common good”, there is necessarily given to the citizen, within the required social, political and moral framework, such a range of personal freedoms or immunities as are necessary to ensure his dignity and freedom as an individual in the type of society envisaged. The essence of those rights is that they inhere in the individual personality of the citizen in his capacity as a vital human component of the social, political and moral order posited by the Constitution.
Amongst those basic personal rights is a complex of rights which vary in nature, purpose and range (each necessarily being a facet of the citizen’s core of individuality within the constitutional order) and which may be compendiously referred to as the right of privacy.”
The nature of the right to privacy must be such as to ensure the dignity and freedom of an individual in the type of society envisaged by the Constitution, namely, a sovereign, independent and democratic society. The dignity and freedom of an individual in a democratic society cannot be ensured if his communications of a private nature, be they written or telephonic, are deliberately, consciously and unjustifiably intruded upon and interfered with. I emphasise the words “deliberately, consciously and unjustifiably”because an individual must accept the risk of accidental interference with his communications and the fact that in certain circumstances the exigencies of the common good may require and justify such intrusion and interference. No such circumstances exist in this case.
There has been, as is admitted on behalf of the defendants, a deliberate, conscious and unjustifiable interference by the State through its executive organ with the telephonic communications of the plaintiffs and such interference constitutes an infringement of the constitutional rights to privacy of the three plaintiffs. Though the second plaintiff is not a citizen of this state, he is entitled to the same personal rights as if he were. Such interference constituted an infringement of the plaintiff’s constitutional right to privacy and, in the words of Mr. Justice Walsh spoken during the course of his judgment in Meskell v. Córas Iompair Éireann [1973] I.R. 121 at p. 134, such interference was “unlawful as constituting a violation of the fundamental law of the State.”
In the same case, Walsh J. further stated at pp. 132 and 133:
“[A] right guaranteed by the Constitution or granted by the Constitution can be protected by action or enforced by action even though such action may not fit into any of the ordinary forms of action in either common law or equity and that the constitutional right carries within it its own right to a remedy or for the enforcement of it.”
In this case the plaintiffs and each of them claim damages for breach of constitutional rights, abuse of power and breach of contract. In the events which have happened, the only remedy which the plaintiffs can obtain in this court, which, as one of the organs of the State is obliged to respect, defend and vindicate the personal rights of the citizens, lies in damages. Damages may be compensatory, aggravated, exemplary or punitive.

In the course of argument in this case I stated that, in my opinion, the plaintiffs were not entitled to punitive damages in this case. I still adhere to that view because of the action of the then Minister for Justice, in the course of the statement made by him on the 20th January, 1983, already referred to, in openly acknowledging that both the telephones referred to in this case were in fact “tapped”, that the system of safeguards which successive Ministers of Justice have publicly declared in Dail Eireann to be an integral part of the system was either disregarded or, what amounted to the same thing, was operated in such a way as to be rendered meaningless and that the facts showed that there was no justification for the tapping of either of the two telephones and that what occurred went beyond what could be explained as just an error of judgment. In doing so he, though belatedly, vindicated the good names of the plaintiffs herein, in particular the first and second plaintiffs.
It is quite clear from a consideration of the Civil Liability Act, 1961, and in particular s. 7, sub-s. 2 and s. 14, sub-s. 4 thereof that Irish law recognises a distinction as between “punitive damages” and “exemplary damages”. In determining the damages to which the plaintiffs are entitled, I must have regard not only to the distress which was suffered by the plaintiffs as a result of the infringement of their constitutional right to privacy, the implication thereof and the publicity consequent thereto but also to the fact that the infringement was carried out deliberately, consciously and without justification by the executive organ of the State which is under a constitutional obligation to respect, vindicate and defend that right.
In the course of his speech to the House of Lords in Rookes v. Barnard [1964] A.C. 1129, at p. 1226, Lord Devlin distinguished between aggravated and exemplary damages and stated that exemplary damages may be awarded where there has been “oppressive, arbitrary or unconstitutional action by the servants or the government”.
The action of the executive in this case in “tapping” the telephones of the plaintiffs without any lawful justification and in interfering with and intruding upon the privacy of the plaintiffs constituted an attack on their dignity and freedom as individuals and as journalists and cannot be tolerated in a democratic society such as ours is and our Constitution requires it to be and the injury done to the plaintiffs has been aggravated by the fact that it has been done by an organ of state which is under a constitutional obligation to respect, vindicate and defend their rights. The plaintiffs are in my opinion entitled to substantial damages and it is, in the circumstances of this case, irrelevant whether they be described as “aggravated” or “exemplary”damages.
I have carefully considered the evidence of the plaintiffs which I accept as honest and truthful with regard to the effect that the knowledge that their telephones had been “tapped” had on them and the distress that they suffered, which distress was accentuated by the realisation that the only justification for such tapping lay in security reasons or in connection with the investigation of serious crime. I am satisfied that the plaintiffs have not suffered any loss and am not satisfied that the change in the second plaintiff’s career as a journalist is attributable to the actions of the executive. I am also satisfied, particularly having regard to the statement of the Minister for Justice already referred to, that the reputations of the plaintiffs and each of them, have been vindicated. That being said however, the injury done to the plaintiffs’ right to privacy was serious, the distress suffered by them as a result thereof significant and in the case of the first and second plaintiffs was done consciously, deliberately and without justification. In the case of the third plaintiff, who is the spouse of the second plaintiff, the injury was not done consciously or deliberately but incidentally.
In all the circumstances of this case, I will award to the first plaintiff the sum of £20,000 damages, to the second plaintiff the sum of £20,000 damages and to the third plaintiff the sum of £10,000 damages.
[Reporter’s note: The final order further directed the defendants to return to the plaintiffs all transcripts of the conversations recorded on their respective telephone lines].

 

The State (Quinn) v. Ryan

[1965] IR 70
O’Dalaigh C.J.
Supreme Court.

…… Commissioner Quinn was Philip Anthony Quinn. Deputy Commissioner then told the Commissioner (in the words of the Commissioner) the full story of the making absolute of the order, of the re-arrest of the prosecutor and of his conveyance (sic), and of the arrangements that had been made for his conveyance to the Border.

1.10 p.m.
The Garda car crosses the Border at Carrickarnon and the prosecutor is taken to Belfast.

9.10 p.m.
The prosecutor is taken on board the Heysham boat for England by Detective Constable Johns and Constable Perry and in their custody.

It should be added that no notification was given to the prosecutor’s solicitor of the respondents’ intention to apply to the President to discharge the prosecutor, nor was the President informed when the application was made to him that it was proposed to re-arrest the prosecutor immediately and that police officers were then sitting in Court with a new warrant ready to execute this purpose.
From this survey of the evidence it becomes clear that a plan was laid by the police, Irish and British, to remove the prosecutor after his arrest on the new warrant from the area of jurisdiction of our Courts with such dispatch that he would have no opportunity whatever of questioning the validity of the warrant. It is also clear that the applicant’s solicitor was refused information (and in one instance supplied with misinformation) as to his client’s whereabouts while his client was still within the jurisdiction, and that this refusal was persisted in while the prosecutor was still in Northern Ireland.
It should be pointed out that in zeal for celerity of action the plan provided for sending the prosecutor into Northern Ireland where on no view of the law he was authorised to be sent. The authority of the warrant (if authority it had) was to transmit him to Britain. To have done this would, however, have involved delay in Dublin while the departure of aeroplane or ship was awaited. But any delay within the jurisdiction might have afforded the prosecutor’s solicitor an opportunity to challenge the validity of the new warrant in the Courts and this would have set at nought the whole purpose of this plan.
In plain language the purpose of the police plan was to eliminate the Courts and to defeat the rule of law as a factor in Government.
Two main questions have arisen on the argument of this appeal. The first concerns the construction of the Petty Sessions (Ireland) Act, 1851, and the second, arising out of the first, concerns the question of the constitutionality of the Act.
The question of construction is this: whether, when a person has been arrested under a British warrant which has been backed for execution under the provisions of s. 29 of the Act, the Act purports to authorise the immediate removal of the prisoner out of the jurisdiction without his being afforded a reasonable opportunity of applying to the Courts to question the validity of such warrant? If this is the correct construction of the Act, then, there arises the second question, whether or not the Act in so authorising is consistent with the Constitution? Article 50 of the Constitution continues in force the laws in force in Saorstát Eireann, subject however to the Constitution and to the extent to which they were not inconsistent therewith.
The submission made on behalf of the Attorney General (who is a notice party only) was both forceful and unequivocal. As to the construction of the Act, it was that the Act authorises a prisoner’s immediate removal without opportunity of having recourse to the Courts, even though this is deliberately contrived: it allows (as it was said) of his being”whisked” away. As to constitutionality, the submission was that the judgment of the Supreme Court in The State (Dowling) v. Kingston (No. 2) (1) and The State (Duggan) v.Tapley (2) had established, beyond recall, the validity of this procedure.
The position taken up on behalf of the respondents was more equivocal. The Attorney General’s submission, it was said, was “supported” and, then, “qualified.” The qualification was this: an arrested person has a right to question the validity of his arrest in the Courts, but the Act operates immediately unless the prisoner says he wants to apply to the Courts. The Act, it was said, contains no express prohibition of immediate removal.
In my opinion the Attorney General’s first submission is well founded. The Petty Sessions (Ireland) Act, 1851, does purport to authorise removal from the jurisdiction instanter without any opportunity, reasonable or otherwise, to invoke the Courts. There can be little doubt that this was the purpose of the Act when it was enacted. Ireland was then part of the entity known as the United Kingdom of Great Britain and Ireland and was in enjoyment of the benefits of the Act of Union. One of these benefits was the free interchange of alleged offenders subject to the formality of local backing of warrants.
However unreal, the theory was that an Irishman, as a subject of the Queen, should have been as happy, safe and as much at home in Britain as in Ireland. The backing provisions of s. 29 of the Act are the counterpart of the provisions of s. 27, para. 3, for the backing of Irish warrants into Britain; and both sets of provisions are a mere extension of the inter-district and inter-county backing provisions of sect. 26. The whole pattern (understandably in what was a homogeneous political system) is a pattern of domestic dealing; and no question could arise of an arrested person not being in a position to invoke the Courts: the Queen’s Courts were as much, if not more so, in Britain as in Ireland.
There is, in my opinion, no room here for the doctrine advanced in argument by counsel for the respondent police officers that the Act should be construed to accord with the Constitution. A basis can be found for such an approach in construing an Act of the Oireachtas; it is entirely lacking in the case of a statute of the British Parliament.
I now turn to an examination of the constitutionality of the provisions of the Petty Sessions (Ireland) Act, 1851, touching the backing of British warrants for execution in Ireland.
As I have already said, counsel for the Attorney General relied upon two cases as establishing the constitutionality of s. 29 having regard to the provisions of the Constitution of Ireland.
First, as to Dowling’s Case (No. 2) (1): (i) This is a decision based on the terms of Article 6 of the Constitution of the Irish Free State. (ii) It is a decision of the Supreme Court of the Irish Free State. (iii) The ratio of the decisions is an affirmation of The State (Kennedy) v. Little (2), in which the Court rejected an attack upon the constitutionality of the Fugitive Offenders Act, 1881. This Act does not permit of an arrested person being removed from the jurisdictioninstanter; on the contrary, it requires that he must be brought before a magistrate before removal.
Chief Justice Sullivan, at p. 731, says:”The same argument that Mr. Ryan addressed to us in this case was advanced on behalf of the prosecutor in The State (Kennedy) v. Little (2)in support of the contention that the Fugitive Offenders Act, 1881, was inconsistent with the Constitution, but it was rejected by the High CourtJohnston, Hanna, and O’Byrne JJ.and the decision of the High Court was affirmed by this Court on appeal. I am of opinion that s. 29 is not inconsistent with the Constitution, and it, therefore, continued to be of full force and effect after the Constitution had come into operation.”
Mr. Justice FitzGibbon, at p. 746, took the same ground:”Upon the other main question, the alleged inconsistency between the provisions of the Petty Sessions (Ireland) Act, 1851, s. 29, and the Constitution, I am of opinion that it is covered by the decision of this Court in The State (Kennedy) v.Little (1).”
Mr. Justice Meredith, at p. 758, also saw no distinction between the Fugitive Offenders Act and the Petty Sessions Act provisions, and he accepts The State (Kennedy) v. Little (1)as ruling the case (pp. 758-9).
Mr. Justice Geoghegan is to the same effect: see page 759.
Mr. Justice Murnaghan agreed with the Chief Justice and Mr. Justice FitzGibbon on the question of the constitutionality of the statute (p. 752).
Counsel referred the Court to a passage in the report of Dowling’s first application: The State (Dowling) v. Brennan (2).There Gavan Duffy J. (as he then was) in the course of the argument said to counsel for the Attorney General:”Under this procedure a man could be arrested and removed from this country without any opportunity of appearing before a Court here. Under the Fugitive Offenders Act, 1881, were there not safeguards?”
This seems to be an advertence by Mr. Justice Gavan Duffy to the point raised in this case, but the point was not taken by counsel nor was it considered by the Court. In fact Dowling in that application and in his second application was exercising the right which the prosecutor here complains he was not permitted to exercise, i.e., an opportunity to question the validity of the warrant on foot of which he was arrested.
It requires to be said that a point not argued is a point not decided; and this doctrine goes for constitutional cases (other than Bills referred under Article 26 of the Constitution and then by reason only of a specific provision) as well as for non-constitutional cases.
The second of the two cases relied upon, Tapley’s Case (3),was a decision under the Constitution of Ireland. The argument presented on behalf of the prosecutor was that Dowling’s Case (No. 2) (4) was to be distinguished by reason of the provisions of Article 29 of the Constitution, which deals with “international relations.” Gavan Duffy P. in the course of his judgment in the Divisional Court said, at p. 64:”I fail to discern in the present case anything in law (except Article 29 of the Constitution) to distinguish it in principle from the case of The State (Dowling) v. Kingston (No. 2) (1) . . . I shall therefore confine myself in the main to an examination of Article 29, governing our international relations.” Haugh and Kingsmill Moore JJ. concurred.
Chief Justice Maguire delivered the judgment of the Supreme Court. He said, at p. 75:”Apart from Article 29 of the Constitution, upon which the main reliance was placed, Mr. Ryan contended that the section was inconsistent with Articles 1, 5, 6 and 9 of the Constitution.
The Court agrees with the President of the High Court that there is nothing in the Constitution, save Article 29, to distinguish the present position from that existing in The State (Dowling) v. Kingston (1).
The question whether Article 29 of the Constitution has altered the position has been fully argued and is, in fact, as the learned President has said, the main question to be examined.”
This brief examination is enough to dispose of the cases of Dowling (No. 2) (1) and Tapley (2). It should be added that Tapley, like Dowling, had an opportunity of challenging the validity of the warrant under which it was proposed to send him out of the jurisdiction.
The Court had no argument advanced to it in support of the constitutionality of s. 29 of the Petty Sessions (Ireland) Act, 1851, by counsel for the Attorney General other than the argument based on the Dowling (No. 2) (1) and Tapley (2)cases.
Counsel for the respondent police officers did, however, say there was a constitutional right of resort to the Courts but only if one specifically asked for it. This matter has been fully examined by Mr. Justice Walsh in the judgment he is about to deliver. I agree with that judgment and the conclusion he reaches that the Petty Sessions (Ireland) Act, 1851, s. 29, and the consequential provisions are repugnant to the Constitution and invalid.
The claim made on behalf of the police to be entitled to arrest a citizen and forthwith to bundle him out of the jurisdiction before he has an opportunity of considering his rights is the negation of law and a denial of justice.
It remains now to consider what is the effect of s. 29 of the Petty Sessions (Ireland) Act, 1851, being held to be repugnant to the Constitution.

On behalf of Inspector Ryan it has been submitted that the return he makes to the order of this Court is good and sufficient: that he no longer has custody of the prosecutor.
The action which Inspector Ryan took with regard to the prosecutor was taken in disregard of the prosecutor’s constitutional rights, and the return he makes to the order of this Court is in effect this: that he should not be held answerable by this Court because he has succeeded by reason of careful planning and the celerity of his action in preventing the prosecutor from obtaining effective relief in the Courts.
It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at nought or circumvented. The intention was that rights of substance were being assured to the individual and that the Courts were the custodians of these rights. As a necessary corollary it follows that no one can with impunity set these rights at nought or circumvent them, and that the Courts’ powers in this regard are as ample as the defence of the Constitution requires. Anyone who sets himself such a course is guilty of contempt of the Courts and is punishable accordingly.
The proper order to be made in respect of Detective Inspector Matthew G. Ryan is that he be served with notice to show cause why he should not be held to be guilty of contempt of the Courts and dealt with accordingly.
As the Long Vacation intervenes he will have until the opening day of the Michaelmas Term to file such further affidavits as he may be advised. The matter will be listed again in this Court on Monday, 2nd November, at 11 o’clock in the forenoon.
It is not shown that the other respondents were concerned in the planning or execution of the police action taken in regard to the prosecutor; their returns may therefore be deemed good and sufficient. There is, however, evidence that others played an active role in either the planning or execution of the police action taken in regard to the prosecutor.
The evidence at present before the Court points to Deputy Commissioner Quinn as a person who was foremost in the planning of the police action and points to the two British policemen, Detective Constable Johns and Constable Perry, as persons who engaged in both the planning and execution of the police action, all with the same general purpose of depriving the prosecutor of a reasonable opportunity of exercising his constitutional right of applying to the Courts to question the validity of the warrant under which he was arrested.

Orders will therefore issue in respect of Deputy Commissioner Quinn and Detective Constable Johns and Constable Perry in the same terms as the order made in respect of Detective Inspector Ryan, with the same concessions with regard to the time for showing of cause and listing as is proposed in the case of Detective Inspector Ryan.
Notice of the Court’s orders in respect of Detective Constable Johns and Constable Perry will be sent to them by registered post, c/o The Commissioner of London Metropolitan Police.

 

Tuohy v. Courtney

[1994] 3 IR 1
Finlay C.J…
The Court is satisfied that no such difference exists on the particular facts and having regard to the particular rights involved in this case it is neither necessary nor appropriate therefore in this decision to reconcile or adjudicate upon the apparent inconsistencies to which attention has been drawn. It may well indeed be that this controversy may remain academic as is suggested at p. 1064 of The Irish Constitution, Kelly (1994) 3rd edition.
It has been agreed by counsel, and in the opinion of the Court, quite correctly agreed, that the Oireachtas in legislating for time limits on the bringing of actions is essentially engaged in a balancing of constitutional rights and duties. What has to be balanced is the constitutional right of the plaintiff to litigate against two other contesting rights or duties, firstly, the constitutional right of the defendant in his property to be protected against unjust or burdensome claims and, secondly, the interest of the public constituting an interest or requirement of the common good which is involved in the avoidance of stale or delayed claims.
The Court is satisfied that in a challenge to the constitutional validity of any statute in the enactment of which the Oireachtas has been engaged in such a balancing function, the role of the courts is not to impose their view of the correct or desirable balance in substitution for the view of the legislature as displayed in their legislation but rather to determine from an objective stance whether the balance contained in the impugned legislation is so contrary to reason and fairness as to constitute an unjust attack on some individual’s constitutional rights.
It is in accordance with these principles that the Court approaches the ultimate task of deciding upon the constitutional validity of these impugned statutory provisions.
It cannot be disputed that a person whose right to seek a legal remedy for wrong is barred by a statutory time limit before he, without fault or neglect on his part, becomes aware of the existence of that right has suffered a severe apparent injustice and would be entitled reasonably to entertain a major sense of grievance.
So to state however does not of itself solve the question as to whether a statute which in a sense permits that to occur is by that fact inconsistent with the Constitution.
Statutes of limitation have been part of the legal system in Ireland for very many years and were a feature of the system of law operating in force in Ireland apparently both before and after the Act of Union and have continued from 1922 up to the present (cf. the judgment of Griffin J. in Hegarty v. O’Loughran [1990] 1 I.R. 148 at page 157).

The primary purpose would appear to be, firstly, to protect defendants against stale claims and avoid the injustices which might occur to them were they asked to defend themselves from claims which were not notified to them within a reasonable time.
Secondly, they are designed to promote as far as possible expeditious trials of action so that a court may have before it as the material upon which it must make its decision oral evidence which has the accuracy of recent recollection and documentary proof which is complete, features which must make a major contribution to the correctness and justice of the decision arrived at.
Thirdly, they are designed to promote as far as possible and proper a certainty of finality in potential claims which will permit individuals to arrange their affairs whether on a domestic, commercial or professional level in reliance to the maximum extent possible upon the absence of unknown or unexpected liabilities.
The counter-balance to these objectives is the necessity as far as is practicable, or as best it may, for the State to ensure that such time limits do not unreasonably or unjustly impose hardship. Any time limit statutorily imposed upon the bringing of actions is potentially going to impose some hardship on some individual. What this Court must do is to ascertain whether the extent and nature of such hardship is so undue and so unreasonable having regard to the proper objectives of the legislation as to make it constitutionally flawed.
It has been suggested that the facts of this case are almost unique and that what is described as a saver inserted in the time limiting provisions to meet those facts would, if it had been inserted, make no significant difference to the protection which the Act of 1957 affords to potential defendants.
It has also been suggested that the jurisdiction of the courts as laid down in Ó Domhnaill v. Merrick [1984] I.R. 151 and Toal v. Duignan and others [1991] I.L.R.M. 135 to dismiss as unconstitutionally unjust, claims which are brought even within a statutorily permitted time but which are in fact grossly delayed is a “safety net” to protect the defendant sufficient to permit of a saver to protect the plaintiff who within the statutory time limit is unaware of his right of action. Such a “saver”, it is urged, would not in any way significantly diminish the certainty or finality of the time limit.
The Court does not accept that either of these contentions is of such strength as would make an inflexible time limit of six years for breach of contract and tort causing damage other than personal injuries clearly unconstitutional.
The period of six years is, objectively viewed, a substantial period. Historically, it has remained unchanged for this type of action since the Common Law Procedure (Ireland) Act, 1853, and no shortening of it has been legislatively created notwithstanding the very significant increase in literacy, understanding of legal rights and sophistication which has as a matter of common knowledge occurred in the years since that time.
The Act of 1957 contains in Part III thereof extensions of the periods of limitation in cases of disability, acknowledgment, part payment, fraud and mistake. These extensions constitute a significant inroad on the certainty of finality provided by the Act.
The right of a defendant having been sued within a permitted time limit to plead a gross or unreasonable delay sufficient to lead to the dismiss of the action against him as an exercise by the courts of its inherent jurisdiction renders him much less secure and much less protected against loss than a fixed time limit subject to the extensions only which are already contained in the Act of 1957. To mount such a plea in an action of substance is a burdensome and expensive process leading as it has done in some of the cases which have been decided by this Court to a trial in the High Court and an appeal to this Court. The time scale of such proceedings is quite extensive and the period of anxiety and uncertainty for the defendant even if eventually he or she is successful will frequently be very great unless in cases (which may not be frequent) where the plaintiff has substantial assets such a proceeding which the defendant must mount to protect his position will be done completely at his own expense.
These considerations are but some of the matters which the Oireachtas could properly consider in reaching a decision which is the real nub of this case as to whether it should or should not add to the grounds of extension of limitation periods already contained in the Act of 1957 a ground of discoverability of the cause of action. Together with those considerations of course must go the consideration of examples of injustice such as appear to have occurred in this case.
For the Oireachtas to reach a decision either to add or not to add to the extensions of limitation periods contained in Part III of the Act of 1957 an extension relating to discoverability with regard to this particular time limit imposed by that Act, is a decision which in the view of this Court can be supported by just and reasonable policy decisions and is not accordingly a proper matter for judicial intervention.
It has not therefore been established to the satisfaction of the Court that s. 11, sub-s. 1 (a) or s. 11, sub-s. 2 (a) of the Act of 1937 is invalid having regard to the provisions of the Constitution and this appeal must accordingly be dismissed.

 

Governor of X Prison -v- P McD

[2015] IEHC 259 (31 March 2015)Baker J

Conclusion on the evidence
92. Having heard the evidence and considered in particular the clearly expressed and articulate evidence of Mr. McD, I am of the view that he has the capacity to make the decision he has made to refuse food, and that the decision was made by him in the full understanding of its consequences and of the alternatives, and that his decision-making capacity is not vitiated by any frailty arising from his current living conditions or from his personality traits.

93. I consider that Mr. McD has fully and freely chosen his path of hunger strike, and that his decision has been fully informed. I turn now to consider whether the Sate has an obligation to take steps to protect Mr. McD’s life notwithstanding his stated and freely given choice.
The constitutional imperative and the question of respect for human rights
94. The sentence of imprisonment lawfully imposed upon Mr. McD has of course deprived him of his right to personal liberty, but it is not suggested, and cannot be suggested as a matter of law, that he has thereby lost all of his constitutional rights including the right of personal autonomy, and the right of bodily integrity. The law was very clearly and forcibly stated by Fennelly J. in Creighton v. Ireland & Ors. [2010] IESC 50:-

“Nonetheless, the prisoner may continue to exercise rights ‘which do not depend on the continuance of his personal liberty…’ I would say that among these rights is the right to personal autonomy and bodily integrity. Thus, it is common case that the state owes a duty to take reasonable care of the safety of prisoners detained in its prisons for the service of sentences lawfully imposed on them by the courts. This does not amount, however, to a guarantee that a prisoner will not be injured…”
95. Edwards J. expressed the view, in Devoy v. Governor of Portlaoise Prison & Ors. [2009] IEHC 288, that a prisoner might have “residual constitutional rights”, including the right to be “treated humanely and with human dignity.”
96. A person has under the Constitution certain fundamental rights including the right to life, the right to personal autonomy, the right to bodily integrity, and the right to self-determination, the right to live one’s life as one wishes provided those wishes do not impact upon or harm others, and provided no conflict arises between that individual right and the interests of society.

97. The court has an obligation to protect the sanctity of life but as is stated in the unanimous Supreme Court judgment given by Denham C.J. in Fleming v. Ireland [2013] IESC 19, the obligation of the court to protect life is not an absolute obligation and may in certain circumstances have to give way to a freely expressed decision of an adult competent to make a choice to renounce that right. Denham C.J. said:-

“It does not, however, necessarily follow that the State has an obligation to use all of the means at its disposal to seek to prevent a person in a position such as that of the appellant from bringing her own life to an end.”
98. The Divisional High Court in the case of P.P. v. HSE considered the question of “how far the Court should go in terms of trying to vindicate” the right to life. The Court quoted with approval the dicta of Denham J. in re a Ward of Court (withholding medical treatment) (No. 2) that while the State had an interest in preserving life, this interest is not absolute:-
“In respecting a person’s death we are also respecting their life — giving to it sanctity. That concept of sanctity is an inclusive view which recognises that in our society persons, whether members of religion or not, all under the Constitution are protected by respect for human life. A view that life must be preserved at all costs does not sanctify life.”

The jurisprudence of the European Court of Human Rights
99. In Nevmerzhitsky v. Ukraine (2006) 43 EHRR 32 the Court noted that the Convention did not solve the conflict between an individual’s right to physical integrity, which might involve a right to refuse food, and the State’s positive obligation under Article 2 of the Convention to protect life. In X. v. Germany (1984) 7 EHRR 152 the Commission noted that under German law this conflict had been solved in that it was possible under German law to force-feed a detained prisoner, if this person, due to hunger strike, would be subject to injuries of a permanent character and that force-feeding in German law was sometimes obligatory if an obvious danger for the individual’s life existed.
100. The Court in Nevmerzhitsky v. Ukraine stated the following:-

“The Court reiterates that a measure which is of therapeutic necessity from the point of view of established principles of medicine cannot in principle be regarded as inhuman and degrading. The same can be said about force-feeding that is aimed at saving the life of a particular detainee who consciously refuses to take food. The Convention organs must nevertheless satisfy themselves that the medical necessity has been convincingly shown to exist… Furthermore, the Court must ascertain that the procedural guarantees for the decision to force-feed are complied with.”
101. The applicant in Nevmerzhitsky v. Ukraine had gone on hunger strike on a number of occasions to protect his conditions in prison in Ukraine. The method by which he was force-fed was particularly objectionable in that it involved an amount of inhumane and forceful restraint. The state of Ukraine had also not established that the medical necessity for the force-feeding regime had been shown, and the Court held that there had been a violation of Article 3.
102. The position in European human rights law seems to be that there is no obligation under Article 3 to provide medical assistance to a person in detention against that person’s will but that the giving of such assistance by force if necessary will not be in principle a breach of Article 3.

103. In the dilemma was expressed as follows:-

“The Court notes that in previous case-law the Commission held that the ‘forced-feeding of a person does involve degrading elements which in certain circumstances may be regarded as prohibited by Article 3 of the Convention’. When, however, as in the present case, a detained person maintains a hunger strike this may inevitably lead to a conflict between an individual’s right to physical integrity and the High Contracting Party’s positive obligation under Article 2 of the Convention – a conflict which is not solved by the Convention itself’.”
104. The European Court of Human Rights has held that it is not in breach of the Convention to force-feed a prisoner, but that does not suggest that a breach is found if prison authorities ignore his stated wish not to be fed. One statement is expressed in the negative, that force-feeding is of itself a not violation of Convention rights, and the other in the positive, that the prison may fully respect Mr. McD’s wish even if these wishes mean that he will die. I do not believe that it is possible to legally extrapolate from the decisions of the European Court of Human Rights that force-feeding of itself is not a violation of the Convention rights of a prisoner, that not forcibly administering food or medicine is also a breach of those rights.
The case of Fleming v. Ireland
105. The Supreme Court in Fleming v. Ireland considered the very difficult question of whether the plaintiff was entitled to an order declaring that she was entitled to the benefit of assistance to end her life where she had found herself in a physical state of severe pain and disability as a result of advanced multiple sclerosis. The medical evidence was that there was no underlying mental illness or condition that affected her decision-making capacity. She expressed her unwillingness to live a life with what she perceived as little or no dignity, and in pain and isolation and unable to communicate. The Supreme Court held that there was not implied under the Constitution a positive right to commit suicide or to arrange for the termination of one’s life at the time of one’s choosing. The Court came to this conclusion having taken a view:-

“The concept of autonomy which extends not just to an entitlement, but to a positive right to terminate life and to have assistance in so doing, would necessarily imply a very extensive area of decision in relation to activity which is put, at least prima facie, beyond regulation by the State. When it is considered that recognition of such a right implies correlative duties on the State and others to defend and vindicate that right (and which must necessarily restrict those parties’ freedom of action), it is apparent that the right contended for by the appellant would sweep very far indeed. It cannot properly be said that such an extensive right or rights is fundamental to the personal standing of the individual in question in the context of the social order envisaged by the Constitution. The right to life which the State is obliged to vindicate, is a right which implies that a citizen is living as a vital human component in the social, political and moral order posited by the Constitution…. In particular the protection of the right to life cannot necessarily or logically entail a right, which the State must also respect and vindicate, to terminate that life or have it terminated.”
106. The decision of the Supreme Court in Fleming v. Ireland must be seen in the context of the already established jurisprudence that an adult person with full cognitive capacity is entitled to refuse medical treatment, even if that refusal is likely to inevitably lead to that person’s death. Thus it seems to me that while it could not be said that a person has a right to commit suicide, it can be said that he has a right to freely elect to refuse food, provided his choice is full, free and informed and he does not require assistance to achieve that end, and it is rather the case that he has refused such assistance. The distinction is between a positive right to directly end one’s life, and to make choices which have the indirect effect that death follows. The latter right is constitutionally recognised as flowing from the autonomy of the self.
107. The question for me is whether the court ought to weigh the right of Mr. McD to self-determination against the obligation of the State to protect what is the most fundamental right of all, namely the right to life, and whether the High Court should interfere in the progress of Mr. McD’s protest and order the Prison Service to administer to him such medicine and food therapy as is necessary to preserve that right.

108. I am mindful of, and adopt, the dicta of Denham J. in Re a Ward of Court (withholding medical treatment) (No. 2) that the right to life includes, and imports and carries with it, a right to die with dignity. That right was also considered as central to its deliberations by the Divisional Court in P.P. v HSE. I am satisfied that as a matter of law Mr. McD can elect to fully and freely continue his hunger strike, and that the plaintiff is fully respecting his rights by not administering food or medical treatment to him.
The English case law
109. Some assistance can be found from the English jurisprudence. Thorpe J. considered the question of the rights of a prisoner refusing food in Secretary of State for the Home Department v. Robb [1995] Fam.127. The adult prisoner in that case had begun to refuse all nutrition, and medical experts agreed that he was of sound mind and fully understood the consequence of his decision to refuse food and understood that death would result from his choice. The Home Secretary sought a declaration that the prison officers, and the medical staff at the prison, might lawfully observe and abide by his refusal to receive nutrition and the declaration was granted by Thorpe J. It has to be noted however that that decision was given without any opposition from Mr. Robb himself, and although he had initially expressed a wish to contest the making of any declaratory relief with regard to his future care, Mr. Robb had wavered in his determination to continue his hunger strike, and after he spent a long period in consultation with a medical expert of his choosing he decided to resume nutrition. The judgment of Thorpe J. is useful however for the principles it enunciates. He made the declaration that Mr. Robb was entitled to refuse nutrition and hydration, that the right was not diminished when he was a detained prisoner, that although the right was not absolute, no countervailing interest set the balance in favour of ignoring his wishes; and that accordingly there was no duty on the plaintiff or on the prison staff to provide him with nutrition against his will.

110. Thorpe J. delivered his judgment at the request of counsel and in view of the absence of any modern authority and notwithstanding that the issue had become a moot having regard to Mr. Robb’s choice to resume nutrition. I find the following statement helpful:-

“The first principle is that every person’s body is inviolate and proof against any form of physical molestation…. Secondly, the principle of self-determination requires that respect must be given to the wishes of the patient. So that if an adult of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged the doctors responsible for his care must give effect to his wishes even though they do not consider it to be in his best interest to do so….
The next proposition …is that a patient who is entitled to consent to treatment which might or would have the effect of prolonging his life and who refuses so to consent, and by reason of the refusal subsequently dies, does not commit suicide. A doctor who, in accordance with his duty, complied with the patient’s wishes in such circumstances does not aid or abet a suicide.”

111. Thorpe J. referred to the old case of Leigh v. Gladstone [1909] 26 T.L.R. 139 in which Lord Alverstone C.J. directed the jury that it was the duty of prison officials to preserve the health of prisoners in their custody, and that that duty extended to force-feeding. Thorpe J. held that that authority was “of no surviving application and can be consigned to the archives of legal history”. The plaintiff in that case was a suffragette who had been force-fed in prison, and the decision was made at a time when suicide was a criminal act, and where the political climate was a public conflict between the suffragette movement and the government of the day.
112. Thorpe J. went on to say as follows:-

“It seems to me that within this jurisdiction there is perhaps a stronger emphasis on the right of the individual’s self-determination when balance comes to be struck between that right and any countervailing interests of the state. So this decision is not a borderline one; this is a plain case for declaratory relief. The right of the defendant to determine his future is plain. That right is not diminished by his status as a detained prisoner.”
113. The decision of Thorpe J. was considered in the judgment of Mostyn J. in Nottinghamshire Healthcare NHS Trust v. R.C. [2014] EWCOP 1317, a decision of the Court of Protection, in regard to the respondent, the adult child of parents who were practicing Jehovah’s Witnesses. R.C was not brought up as a Jehovah’s Witness and was taken into care at the age of four. He embraced that religion after he reached his majority. He had a troubled childhood and had a long history of repeated self-harming and was diagnosed as suffering from an anti-social and emotionally unstable personality disorder. Mostyn J. held that R.C. had full capacity to refuse the administration of blood products and he followed the decision in Secretary of State for the Home Department v. Robb, and made the point that with the advent of the Human Rights Act 1996 “the argument for declaratory relief in such a case becomes appreciably stronger”.
114. I adopt the principles stated in Secretary of State for the Home Department v. Robb and in Nottinghamshire Healthcare NHS Trust v. R.C. and note in particular the statement of Mostyn J. that in the context of the UK Human Rights Act, and ipso facto in the context of the Irish Constitution, the argument for declaratory relief in respect of a choice of self-determination made by a competent adult is formidable.
Conclusion on Constitutional and human rights question
115. I conclude that the right of self-determination may prevail over the duty of the State to preserve the right to life. The duty of the State imposed upon it by the Constitution reflects the social order and the fact that the citizen is part of a community, and that the social contract requires that the State protect that citizen from an attack on his or her life and person. While the duty on the State may be stated in the affirmative and is not merely a reactive obligation, or an obligation to react or defend a right that is actively under attack, that duty, if it is to fully protect the citizen, must in an appropriate case give way to the express free choices of the individual. To consider otherwise would be in my view to give the State power to overbear the right of the individual not envisaged by the Constitution, and would fail to recognise the right of autonomy and individual self-determination that it promotes.

116. Thus, there is in my view no reason arising from considerations of the Constitution or human rights law that mandates the Court or the plaintiff to ignore Mr. McD’s express wishes, and that the constitutional imperative goes the other way, and requires that the plaintiff abide by his wishes.
Advance care direction
117. Mr. McD wrote two letters specially addressed to the Court. The first of these is dated the 19th March, 2015, and addressed for the attention of the High Court Judge. The first comment I wish to make about these letters is that Mr. McD expressed himself forcibly with regard to his prison conditions, and his attempts to resolve the two specific issues which gave him such concern. He stressed as he put that he did not “play school games in prison” and that he was not trying to “manipulate or blackmail the prison service”. He said he deserved his punishment in prison and that he did not complain about that. He was emphatic that he did not wish for or deserve sympathy, but that his complaints were rightful and just. He said that “money was more important that my wellbeing”. Nothing in this letter amounts to an advanced care directive or any statement of Mr. McD that he does not wish to be treated should he fall into unconsciousness or become incapable of making a decision.

118. The second letter from Mr. McD was dated the 26th March, 2015, and two pages of this letter outlined again his complaints and his specific fear and intolerance of the abuse that he stated he suffered from gangs in the prison. He made the following statement: “If I die because of inhuman treatment at this stage I don’t care now.”

Later in his letter he says:-

“I am sick and not able to explain anymore. I am refusing all medical help. I totally won’t be going to hospital now as truthfully I don’t care now and with so much inhumanity to man and grieving my sister’s death most recently and my mum and brother last year I don’t care about myself now. I have decided to just lay down and die. I know it won’t be long now anyway. I am 6 weeks and half now with no food or sugar.”
119. I find Mr. McD’s letters moving and carefully expressed. His complaints do not seem to me to be irrational, and there is nothing in the medical reports before me that would suggest that he is delusional in believing that the activities of some of the prison inmates might result in him being infected by AIDS or Hepatitis C. Even were there to be no such risk, the lack of sunlight and fresh air, and the absence of a tolerable way to deliver food to him are matters which go to the very heart of his dignity as a human being. It is clear that his despair at improving his conditions is profound. Neither letter to my mind could be said to be an advanced care direction, or a statement from Mr. McD that he does not wish to have medical or food treatment should he become more unwell.
120. He does however make a statement in his affidavit of the 24th March, 2015, which can be considered to be a direction and a stated wish with regard to his future treatment. I quote these paragraphs in full:-

“22. I understand about my hunger strike is likely to lead to organ failure and death. Nevertheless I wish to continue with my hunger strike as I will not consent to any form of sustenance until my two concerns regarding exercise and meals are properly met.
23. I feel that my health is declining as a result of my hunger strike. I suffer from headaches, dizziness and pain in my kidneys as well as having blood in my urine. I will be open to addressing the problems with my kidneys. I will be willing to accept antibiotics intravenously if necessary. However I do not want any form of food administered to me in hospital.

25. I do not at present, take issue with this Honourable Court making an order declaring that I currently have legal capacity to refuse medical assistance and food.”

121. He made a similar and forceful statement in his oral evidence, and clearly and fully stated a wish not to be afforded any medical or nutritional assistance should he fall into coma.
122. Laffoy J. in Fitzpatrick v. F.K. considered the judgment of the Court of Appeal of Ontario in Malette v. Shulman [1990] 67 D.L.R. (4th) 321 (Ont. C.A.) where Robins J.A. rejected the argument that nothing short of a conscious contemporaneous decision to refuse medical treatment would suffice to permit a hospital not to administer emergency treatment. The patient in that case had provided an advance care direction giving instructions that transfusion was not to be effected and Robins J.A. rejected the argument that the hospital could not safely respect the instructions given in the advanced directive. He said as follows:-

“The patient manifestly made the decision on the basis of her religious convictions. It is not for the doctor to second guess the reasonableness of the decision or to pass judgment on the religious principles which motivated it. The fact that he had no opportunity to offer medical advice cannot nullify instructions plainly intended to govern in circumstances where such advice is not possible. Unless the doctor had reason to believe that the instructions in the Jehovah’s Witness card were not valid instructions in the sense that they did not truly represent the patient’s wishes, in my opinion he was obliged to honour them. He had no authorisation under the emergency doctrine to override the patient’s wishes. In my opinion, she was entitled to reject in advance of an emergency a medical procedure inimical to her religious values.”
123. In that case, the Court of Appeal of Ontario held that the advance care direction had set out unequivocally and in an unqualified manner instructions applicable to the emergency circumstances which had arisen, and Laffoy J. accepted that by analogy to the approach adopted by that Court of Appeal that the instructions of a patient not to transfuse given verbally even in an emergency should be followed “unless there is evidence to cast doubt on the capacity for the patient to give instructions at the time”.
124. Laffoy J. in Fitzpatrick v. F.K. stated, albeit obiter, a general view that an expression of future intention with regard to care may lawfully be respected, and that a decision could be made in advance to decline medical treatment provided of course that the court was satisfied that the person was competent at the time. She quoted the decisions of the Court of Ontario in Malette v. Shulman and the English Court of Appeal in Re T (Adult Refusal of Medical Treatment) [1993] Fam 95.

125. Thorpe J. considered this question also in Nottinghamshire Healthcare NHS Trust v. R.C. Section 26 of the English Mental Capacity Act 2005 provides that the court may make a declaration as to whether an advance decision was valid and applicable to a treatment. Thorpe J. was satisfied that the advanced decision had complied with the statutory requirement and considered that as he was of the view that R.C. was competent to make a decision to refuse a blood transfusion in the circumstances which he was then considering, that were such capacity to disappear that the advance decision would be operative and that to “impose a blood transfusion would be a denial of the most basic freedom.”
Conclusion on advance care direction
126. I consider that as a matter of law, and finding the above statements persuasive, that a person may make a freely stated wish in regard to their future care and that this ought to be, and can in an appropriate case be, respected by those with care of that person.
Decision on the choice made by Mr. McD
127. I accept that I have jurisdiction to determine the validity of the decisions made by Mr. McD and also that the legal imperative is to engage a high degree of scrutiny having regard to the fact that the inevitable consequence of his chosen path is the end of his life. Mr. McD has stated that he does not wish to die. The medical evidence is that he is not suicidal. The choice he has made and expressed will inevitably lead to his death, but it could still be said that his stated wish is not a positive wish to die, that his wish is a conditional one that if he cannot achieve an improvement in his conditions then he accepts the inevitable result of his protest against these conditions.

128. The scrutiny that must be engaged is a fulsome one as to the level of insight, understanding and of the direct and inevitable, albeit not expressly chosen, result of the path which Mr. McD has taken. Death may not be his intended choice, but death is the indirect result of that choice. If the choice is freely made and fully informed it is one that must be respected.

129. I am satisfied that Mr. McD has freely made a choice to continue his hunger strike and to refuse treatment should he become incapacitated as a result and fall into coma.

130. I am also satisfied that the State may properly respect the personal autonomy and right of self-determination of Mr. McD by giving effect to his stated wish and direction not to be treated. I consider he has fully and freely expressed a decision that treatment not be afforded to him

131. I accordingly make declarations as follows:

(a) A declaration that the defendant’s decision to refuse medical and nutritional assistance is valid.

(b) A declaration that the defendant’s wish and direction should remain operative in the event that the defendant becomes incapable of making a decision whether to accept such treatment.

(c) A declaration that the plaintiff is entitled to give effect to the defendant’s wishes not to be fed and not to receive medical assistance.
The events on the third day of hearing
132. On the third day of hearing counsel for Mr. McD indicated that he had fresh instructions and now wished in separate proceedings to seek declaratory or other relief in regard to Mr. McD’s prison conditions. It was agreed by Mr. McD in that context that he would take up the offer of a bed in the Mater Hospital and that he would take intravenous medication and liquid nutrition, but no solids, pending the case management and prosecution of those intended proceedings. Mr. McD had help from Professor Kelly in coming to this decision, and he has agreed to go to hospital immediately, and his solicitor has agreed to keep him informed of the progress of the case and of my decision in this case which I reserved until today.

133. This development is welcome and shows indeed the extent of Mr. McD’s insight into his condition. In that context counsel for the State indicated a preference that I would deliver this judgment, and counsel for Mr. McD expressed equally that wish. This judgment must be seen as given in the light of the evidence available to me and the questions I was asked, and circumstances may evolve that might change the ultimate outcome.

Fleming v Ireland & ors

[2013] IESC 19 (29 April 2013)

Denham CJ

Cases
46. Counsel for both parties and the amicus curiae referred the Court to cases from at home and abroad.

47. Counsel for the appellant referred to and relied on passages in In Re a Ward of Court (withholding medical treatment) (No. 2) [1996] 2 I.R. 79, [1995] 2 ILRM 401. However, it may be distinguished from the circumstances of this case. In Re a Ward was about whether antibiotics and the provision of nutrition through a medical apparatus could be withheld from a ward of court in the circumstances. As Hamilton C.J. stated at p. 120:-

“… the issues in the present appeal … are not about euthanasia and are not about putting down the old and infirm, the mentally defective or the physically infirm but are about the question of whether, under our law and Constitution, artificial feeding and antibiotic drugs may be withheld from the ward, who is and has been for more than twenty three years in a coma and has no hope of recovery, when it is accepted that if that is done, the ward will shortly thereafter die.
It is important to emphasise that the Court can never sanction steps to terminate life.”

48. The Court has had regard to judgments delivered by constitutional and supreme courts in other jurisdictions.
49. In Rodriguez v. British Columbia [1993] 3 S.C.R. 519 the validity of the prohibition on assisted suicide contained in s.241(b) of the Canadian Criminal Code was upheld by a majority of the Supreme Court of Canada. The appellant’s claim, that the prohibition, in so far as it precluded a terminally-ill person from committing “physician-assisted” suicide, infringed her fundamental rights guaranteed under ss.7, 12 and 15(1) of the Canadian Charter of Rights and Freedoms, referred to as “the Charter”, was rejected by the Court.

50. Delivering the decision of the majority, Sopinka J. held that the “most substantial issue” to be determined by the court was whether the impugned provision infringed the appellant’s liberty and security of the person interests under s.7 of the Charter. He held that these interests could not be divorced from the sanctity of life, the third value protected by section 7. The court rejected the argument that for the terminally ill the choice is one of time and manner of death rather than death itself since the latter is “inevitable”. Sopinka J. stated at p. 586:-

“Death is, for all mortals, inevitable. Even when death appears imminent, seeking to control the manner and timing of one’s death constitutes a conscious choice of death over life. It follows that life as a value is engaged even in the case of the terminally ill who seek to choose death over life.”
51. The court held that security of the person guaranteed under s. 7 encompasses personal autonomy, at least with respect to the right to make choices regarding one’s own body, control over one’s physical and psychological integrity and basic human dignity. It was found that s. 241(b) of the Criminal Code operated to deprive the appellant of autonomy over her person and caused her physical pain and psychological stress in a manner which impinged on the security of her person. The court was satisfied, however, that any resulting deprivation was not contrary to the principles of fundamental justice.
52. In reaching its decision, the court examined the origins of the long-standing prohibition on assisted suicide and referred to the distinction between the withdrawal of medical treatment to bring about the death of a person and the active participation of a third party to achieve this purpose. Sopinka J. held at pp.606 to 607 that:

“The distinction between withdrawing treatment upon a patient’s request…and assisted suicide…has been criticized as resting on a legal fiction – that is, the distinction between active and passive forms of treatment. The criticism is based on the fact that the withdrawal of life supportive measures is done with the knowledge that death will ensue, just as is assisting suicide, and that death does in fact ensue as a result of the action taken […]
Whether or not one agrees that the active vs. passive distinction is maintainable, however, the fact remains that under our common law, the physician has no choice but to accept the patient’s instructions to discontinue treatment. […] The doctor is therefore not required to make a choice which will result in the patient’s death as he would be if he chose to assist a suicide or to perform active euthanasia.

The fact that doctors may deliver palliative care to terminally ill patients without fear of sanction, it is argued, attenuates to an even greater degree any legitimate distinction which can be drawn between assisted suicide and what are currently acceptable forms of medical treatment. […] However, the distinction drawn here is one based on intention-in the case of palliative care the intention is to ease pain, which has the effect of hastening death, while in the case of assisted suicide, the intention is undeniably to cause death.”

53. Later, at pp.607 to 608, Sopinka J. stated:
“While the principles of fundamental justice are concerned with more than process, reference must be made to principles which are ‘fundamental’ in the sense that they would have general acceptance among reasonable people. […]
Regardless of one’s personal views… the fact remains that these distinctions are maintained and can be persuasively defended. To the extent that there is a consensus, it is that human life must be respected and we must be careful not to undermine the institutions that protect it.”

54. Further, it was found that a blanket prohibition on assisted suicide akin to that contained in s.241 (b) of the Criminal Code was the “norm among Western democracies” and that such a prohibition has never been adjudged to be unconstitutional or contrary to fundamental human rights. Sopinka J. was satisfied that the impugned provision was “valid and desirable” and pursed the government’s objectives of “preserving life and protecting the vulnerable.” The court determined that, given the risks of abuse in a system that permits assisted suicide and the difficulty in creating safeguards to prevent such risks, it could not be said that the blanket prohibition on assisted suicide was arbitrary or unfair, or that it was not reflective of fundamental values at play in Canadian society.
55. Accordingly, the court held that the appellant’s rights under ss.7, 12 and 15 (1) of the Charter were not violated by the prohibition contained in s. 241(b) of the Criminal Code and dismissed the appeal.

56. Another case which was before the Court and which was considered was Washington v. Glucksberg et al 521 U.S. 702 in which it was held that the State of Washington’s prohibition against causing or aiding a suicide did not violate the due process clause in the Constitution of the United States of America. The court examined American history, legal traditions and practices and stated that for over 700 years the Anglo-American common law tradition had punished or otherwise disapproved of both suicide and assisted suicide. The court traced the law back to the 13th century, Henry de Bracton, through Sir William Blackstone’s Commentary on the Laws of England, through the early American colonies, and a movement away from the common law’s harsh sanctions. However, there was no acceptance of suicide in the states, it was considered to be a wrong, and assisted suicide was prohibited by the courts. The court traced the history of statutes outlawing assisting suicide in the states and current considerations of assisted suicide.

57. The court addressed the issue, described in a number of formats, as to whether there was a right to die, a liberty to choose how to die, a right to control one’s final days, a right to choose a humane, dignified death.

58. Before the court was a constitutional issue as to whether the Due Process Clause of the Constitution of the U.S.A. protects a right to commit suicide, which itself includes a right to assistance in so doing. The court concluded that the nation’s history, legal traditions and practices did not support such a right.

59. In the United Kingdom, the House of Lords considered a case of R (Pretty) v. DPP [2001] UKHL 61, in which the plaintiff, a 42-year-old woman who suffered from motor neuron disease and was at an advanced stage of this progressive degenerative illness. Her life expectancy was low; she had only a few months left to live. Though confined to a wheelchair, the plaintiff was mentally alert and wished to take control of when and how she died. More specifically, she wished to take the necessary steps to end her life in, what she regarded was, a peaceful and dignified manner. Her physical incapacity was such, however, that the plaintiff could not end her own life without enlisting the assistance of another. She wished for her husband to assist her and he agreed, provided he would not face prosecution under s.2 (1) of the Act of 1961 which provided:-

“A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding 14 years.”
In accordance with the terms of the impugned provision, were the plaintiff’s husband to assist her in the act of suicide, he would be liable to prosecution and imprisonment for the offence. However, in accordance with subsection 4 of section 2:
“… no proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions.”
60. The plaintiff therefore sought an undertaking from the DPP that, should her husband provide her with assistance to commit suicide, he would be immune from prosecution under s. 2(1) of the Act of 1961. The DPP refused to provide such an undertaking, stating that it could not grant immunities that “condone, require, or purport to authorise or permit the future commission of any criminal offence, no matter how exceptional the circumstances.” The plaintiff claimed that she had a right to her husband’s assistance in committing suicide and that s.2 of the Act of 1961, if it prohibits his assistance and prevents the DPP undertaking not to prosecute if he does, is incompatible with the Convention. The House of Lords however, rejected that the DPP’s refusal to give an undertaking or the blanket prohibition on assisted suicide engaged any of the rights relied upon by the appellant.
61. The House of Lords referred to the positive duty on the state to safeguard the life of the individual conferred by Article 2. Lord Hope observed that Article 2 is:-

“all about protecting life, not bringing it to an end. It is not possible to read it as obliging the state to allow someone to assist another person to commit suicide.”
With regard to the alleged violation of Article 3, Lord Bingham held that “[b]y no legitimate process of interpretation can that refusal be held to fall within the negative prohibition of Article 3.” Further, the House of Lords determined that a positive obligation on the state to ensure that a competent, terminally ill, person who wishes but is unable to take his or her own life should be entitled to seek the assistance of another without that other being exposed to the risk of prosecution could not be derived from Article 3.
62. Similarly, the contention that Article 8 of the Convention conferred a right to self-determination which encompassed a right to choose when and how to die was also rejected by the House of Lords. Lord Bingham observed at para. 23 that Article 8 is:-

“…expressed in terms directed to the protection of personal autonomy while individuals are living their lives, and there is nothing to suggest that the article has reference to the choice to live no longer.”
It was held that should this determination be incorrect however, and the impugned provision did in fact deprive the plaintiff of her rights guaranteed under Article 8(1), that such an infringement would be capable of justification under Article 8(2). The blanket prohibition on assisted suicide contained in s. 2(1) of the Act of 1961 was found to strike:-
“the right balance between the interests of the individual and the public interest which seeks to protect the weak and vulnerable”
and accordingly, was proportionate to the objective of the section.
63. Finally, the House of Lords rejected the argument that s.2 (1) of the Act of 1961 discriminated against those who can not, as a result of incapacity, take their own lives without the assistance of another. As the law creates no right to commit suicide, it was held that this argument was based on a “misconception.” Further, the House of Lords held that, as the criminal provision applies to all persons equally, the provision could not be found to be objectionably discriminatory.

64. The plaintiff failed to establish that the facts of her case fell within Articles 2, 3, 8, 9 and 14 of the Convention. In light of the forgoing, the House of Lords held that s.2(1) of the Act of 1961 was not incompatible with the Convention and accordingly, dismissed the appeal.

65. The claimant appealed to the European Court of Human Rights, which also dismissed her appeal on the grounds that while the rights in Article 8 of the Convention were engaged, the prohibition came within the exceptions identified in Article 8(2), which will be referred to later in the judgment.

66. Counsel for the appellant argued that as the most recent authority in the field, with a significant review of the available evidence, and experience in other countries, that Carter v. Canada [2012] BCSC 886 is of high persuasive authority, and is to be preferred. Counsel on behalf of the appellant submitted that Carter v. Canada was the most persuasive of the relevant foreign authorities because it undertook the most in-depth assessment of recent evidence regarding the risks associated with any relaxation of the criminalisation of assisted suicide.

67. The compatibility of the prohibition on assisted suicide contained in s. 241(b) of the Canadian Criminal Code with the Charter was considered, at first instance, by the Supreme Court of British Columbia in Carter v. Canada [2012] BCSC 886. This challenge was brought by persons, including Ms. Carter and Ms. Taylor, who sought to benefit from or facilitate others to benefit from an exception to the prohibition on assisted suicide.

68. Lynn Smith J. held that the prohibition on assisted suicide contained in s.241 (b) of the Criminal Code to be unconstitutional because it was inconsistent with the principles of fundamental justice and was disproportionate. She found that the impugned provision unjustifiably infringed the plaintiffs’ rights to life, liberty and security under s.7, and also the equality rights under s.15 of the Charter of the plaintiff, who suffered with a terminal illness.

69. In reaching her conclusion, Lynn Smith J. departed from the authority of the Canadian Supreme Court in Rodriguez v. Canada [1993] 3 SCR 519. In Rodriguez the Court determined that, notwithstanding the fact that the plaintiff’s right under s.7 of the Charter was engaged by the prohibition contained in s. 241(b) of the Criminal Code, the prohibition was justified because it was not a breach of fundamental justice. Lynn Smith J. provided two reasons for her departure from Rodriguez. First, proportionality analysis had been significantly developed since the decision in Rodriguez. Second, Lynn Smith J. was satisfied that new evidence from jurisdictions in which the ban on assisted suicide had been relaxed, which was not available to the Supreme Court in Rodriguez, had since become available.

70. Lynn Smith J. held that the purpose of the legislation was “pressing and substantial,” namely, to protect the vulnerable from being induced to commit suicide. This purpose, she determined, was grounded in the underlying state interest in the protection of life and the maintenance of the Charter value that human life should not be taken. Lynn Smith J. was also satisfied that there was a rational connection between this purpose and the prohibition on assisted suicide contained in s. 241(b) of the Criminal Code.

71. The prohibition on assisted suicide was found, however, to have “more burdensome” and “very severe and specific deleterious” effects on persons with physical disabilities. Lynn Smith J. rejected the argument for a distinction between the withdrawal of treatment to bring about the end of a persons life and the act of physician assisted suicide. Rather, she was of the opinion that such a “bright-line ethical distinction is elusive.” She concluded that, due to its unqualified nature, the impugned provision did not impair the Charter rights as little as possible. Rather, on the evidence before the Court, and summarising her findings in relation to her examination of the legislation, Lynn Smith J. stated at paragraph 16 that:-

“Less drastic means of achieving the legislative purpose would be to keep an almost absolute prohibition in place with a stringently limited, carefully monitored system of exceptions allowing persons in Ms. Taylor’s situation- grievously and irremediably ill adult persons who are competent, fully-informed, non-ambivalent and free from coercion or duress- to access physician assisted death.”
72. Thus, it was held, the legislation did not meet the requirement of minimal impairment, and it was found that the absolute prohibition on assisted suicide fell “outside the bounds of constitutionality.” Section 241(b) of the Criminal Code was declared invalid and struck down by the court. The operation of such declaration, however, was suspended for one year in order to afford the Parliament an opportunity to amend the impugned provision accordingly. A constitutional exemption was granted to Ms. Taylor, allowing her to avail of physician-assisted suicide during the period of suspension, subject to a number of court-imposed conditions. However, on the 4th October 2012, Ms. Taylor passed away unexpectedly due to the contraction of an infection.
73. The decision in Carter is a decision of the Supreme Court of British Columbia, a trial court for the province of British Columbia, which decision is currently under appeal to the British Columbia Court of Appeal. The appeal hearing commenced in that appeal court on 18th March, 2013 and concluded on 22nd March, 2013. It is probable that Carter will ultimately be appealed to the Supreme Court of Canada.

74. Although the judgment of Lynn Smith J. in Carter is enormously detailed and comprehensive, this Court is mindful of the fact that it is a decision of a trial court, currently under appeal; it is grounded on the Canadian Charter of Rights and Freedoms, not the Irish Constitution; the foundation of the judgment is a development of the principle of proportionality, and new evidence; and it is not consistent with many judgments from supreme and constitutional courts of other nations.

75. The Court considered carefully the above, and other cases. The Court found it significant that a claim to a right to assisted suicide has come before many common law and Convention bound courts, including those of the United Kingdom, the United States of America, Canada, and the European Court of Human Rights, without having succeeded in any of those Superior Courts.

However, the issue for this Court is whether there is the right sought by the appellant under the Constitution.

Decision
76. Suicide was regarded as a very serious offence, with draconian penalties, for hundreds of years. It was regarded as self murder. As the person was dead, and could not be sentenced, very harsh punishment was laid down in relation to his or her burial and to forfeiture of his or her property. Over the last two hundred years the situation has been mitigated, to the point where suicide has been decriminalised in many countries, including in Ireland in 1993.
Suicide ceased to be a crime
77. Suicide was a crime under the law until it ceased to be so by virtue of s. 2(1) of the Act of 1993. That section states:-

“Suicide shall cease to be a crime”.
Thus, suicide is no longer prohibited by law.
New Statutory Offence
78. The Oireachtas has created a new specific offence, as set out in s. 2(2) of the Act of 1993, which provides:-

“A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding 14 years”.
79. The Oireachtas created this new offence, having abolished the offence of suicide. While the section uses words such as “aids, abets, counsels or procures”, it is a separate and new statutory offence specifically established by the Oireachtas.
Prosecution for such an offence is exclusively a matter for the Director of Public Prosecutions in the exercise of the functions delegated to her by law pursuant to Article 30.3 of the Constitution, and it is not for the courts to give general directions as to how she should exercise those functions.

80. In any consideration of an alleged offence under s. 2(2), reference may be made to the terms “aids” etc., at common law, for the purpose of construing the offence. However, such would be in the context of construing the new statutory offence created by s. 2(2) and not the previous offence of suicide.

Locus Standi
81. In this case the Court is dealing with a hypothesis in the circumstances in which the appellant finds herself. There was a general discussion in counsel for the appellant’s submissions of several methods of suicide which have been in contemplation by the appellant. All of the methods referred to would require assistance in advance by another person, or persons, whether they remained present or not. From the facts advanced on behalf of the appellant, it is clear that it is contemplated that family members, including Mr. Curran, would be present.

82. It is the appellant’s wish to ensure that there would be no criminal liability if she proceeded, with assistance, to commit suicide in one or other, or another, of the methods described in the High Court proceedings.

83. The issue of who has standing to challenge the constitutionality of a statute has been analysed in many cases over the years. Most notably in Cahill v. Sutton [1980] I.R. 269 at 286 Henchy J. stated:-

“The primary rule as to standing in constitutional matters is that the person challenging the constitutionality of the statute, or some other person for whom he is deemed by the court to be entitled to speak, must be able to assert that, because of the alleged unconstitutionality, his or that other person’s interests have been adversely affected, or stand in real or imminent danger of being adversely affected by the operation of the statute.”
84. In this case standing is said to arise out of the indirect effect of s. 2(2) of the Act of 1993 on the appellant. The provision in the statute does not, of course, directly affect the appellant for it does not seek, on any view, to directly impose any criminal liability on her. What she asserts is that it has an indirect effect on the constitutional rights which she asserts. If she had either the general or the more specific constitutional rights which she maintained, then she argued that a person who cannot avail of those asserted rights without assistance has those rights interfered with if a criminal penalty is imposed on those who would assist. While most constitutional challenges will involve a provision which directly affects the individual who asserts an infringement of their constitutional rights, there is no reason in principle why, in an appropriate case, a person cannot seek to argue that their constitutional rights are interfered with by a measure which indirectly affects them in a way which prevents or seriously impairs their ability to exercise the asserted constitutional right in question. There may, of course, be further questions which would arise in analysing whether any interference with a relevant constitutional right was legitimate in that the considerations which may apply in balancing any competing interest may not be exactly the same as and between a case of direct interference, on the one hand, and indirect interference, on the other hand. However, such a difference in approach would arise on the substantive question of permissible interference and it would not deprive a plaintiff of standing to argue that indirect interference, if it can be shown, is a breach of a contended constitutional right.
85. The question of standing has arisen in this case out of a fear that the relevant measure under challenge would be applied in circumstances where such application is purely hypothetical. Such circumstances were addressed in Norris v. Attorney General [1984] IR 36. Thus, in an appropriate case, it is possible that someone may have standing even though there is no actual immediate threat of the measure sought to be challenged being applied to them. Persons should not be required to commit what might well be a criminal offence and subject themselves to the risk of criminal penalty in order that they be permitted to challenge a penal statute. To say that it could only be where one has been exposed (perhaps to the point of having been convicted) to the provision in question that one could challenge a statute would be unfair and unjust.

86. It was submitted that the appellant wished to have a system established whereby a lethal drug could be delivered to her by her, all of which would require assistance in the setting up of the system, so that she could take the final step. In other words, there would be complex steps involved before she could take her own life. On her premise that she has a constitutional right to commit suicide if she could, and that that implies a right of assistance, she has locus standi to challenge s. 2(2) of the Act of 1993.

87. In this case the State did not dispute the appellant’s contention that the statute would criminalise any assistance given to her.

88. In the circumstances of this case the appellant has standing where a direct effect on her has been established on her facts. In general it would only be in very special circumstances that a plaintiff would have standing in a hypothetical situation. A plaintiff must show a real and significant effect of the statute concerned on him or her, by reference to the facts of his or her case, and by reference to the constitutional rights with which he or she asserts have been interfered. In this case the appellant’s circumstances are within the parameters permissible. While her circumstances are hypothetical, in the limited sense that no one has actually assisted her, they are very real.

89. In this case members of the Court raised issues as to the scope of s. 2(2) of the Act of 1993. There may well be cases where it is necessary for a court, when considering a constitutional challenge, to reach a conclusion as to the scope and meaning of the statutory provision under challenge in order to determine its constitutionality. However, in general, the Court would be reluctant to reach a conclusion as to the scope of a penal statute outside the context of criminal proceedings.

90. While a court would ordinarily be reluctant to reach a definite conclusion on the scope of a challenged measure in the context of a hypothetical case, nonetheless if it were to transpire that coming to such a decision was necessary in order to determine whether the statute was constitutional then it might, in those limited circumstances, be necessary to reach a view. The Court would only interpret the challenged measure to the extent necessary to determine the constitutional issues arising, and would leave any other questions of interpretation over to a specific case in which they arose. A party may have standing because on one reasonable interpretation at least, the statute may affect them, but there may be cases where, even though the party has standing on that basis, the ultimate conclusion of the Court would require some degree of interpretation of the challenged measure, even if the constitutional challenge is run on a hypothetical basis.

91. In the special circumstances of this case, which include the fact that the appellant has a terminal illness and is facing imminent death, and that she asserts a right to be assisted to commit suicide, which she submits she cannot do because of s. 2(2) of the Act of 1993, the Court is satisfied that the appellant has locus standi.
Presumption of Constitutionality
92. The provisions of s. 2(2) of the Act of 1993, like all acts of the Oireachtas, and, in accordance with a principle applied consistently since the entry into force of the Constitution, enjoys a presumption of constitutionality. In a dictum, approved by this Court in its judgment in Curtin v Dáil Éireann [2006] IESC 14, [2006] 2 IR 556 at page 620, Hanna J said in Pigs Marketing Board v. Donnelly (Dublin) Ltd. [1939] I.R. 413, at p. 417:

“When the Court has to consider the constitutionality of a law it must, in the first place, be accepted as an axiom that a law passed by the Oireachtas, the elected representatives of the people, is presumed to be constitutional unless and until the contrary is clearly established.”
93. In the following year, this Court in delivering its opinion, per O’Sullivan C.J., In re Article 26 of the Constitution and the Offences against the State (Amendment) Bill [1940] IR 470 held at 478 that:
“Where any particular law is not expressly prohibited and it is sought to establish that it is repugnant to the Constitution by reason of some implied prohibition or repugancy, we are of opinion, as a matter of construction, that such repugnancy must be clearly established.”
94. O’Byrne J., delivering the judgment of the Court in Buckley and others (Sinn Féin) v. Attorney General and Another [1950] I.R. 67, at p. 80 repeated the principle but explained:
“Such a principle, in our opinion, springs from, and is necessitated by, that respect which one great organ of the State owes to another.”
95. The presumption may be regarded as having particular force in cases where the legislature is concerned with the implementation of public policy in respect of sensitive matters of social or moral policy. In MD (a minor) v. Ireland and Ors, [2012] IESC 10, (Judgment of the Court by Denham C.J. of the 23rd February, 2012), the Court considered a challenge to the constitutionality of s. 5 of the Criminal Law (Sexual Offences) Act, 2006, insofar as it criminalised sexual behaviour by boys but not by girls. The State justified the legislation by reference to the social policy of protecting young girls from pregnancy. Denham C.J. said, when delivering the judgment of the Court:-
“This was a choice of the Oireachtas. Even in a time of social change, it is a policy within the power of the legislature. The issue of under age sexual activities by young persons involves complex social issues which are appropriately determined by the Oireachtas, which makes the determination as to how to maintain social order. The Oireachtas could have applied a different social policy. But s. 5, the policy which they did adopt, was within the discretion of the Oireachtas, and it was on an objective basis, and was not arbitrary.”
96. The Court accepts the submission made by the first and second-named respondents that the legislation in question called for a careful assessment of competing and complex social and moral considerations. That is an assessment which legislative branches of government are uniquely well placed to undertake. The Court approaches the challenge to the constitutionality of s. 2(2) of the Act of 1993 in the light of these considerations.
Not a crime
97. While suicide has ceased to be a crime, the fact that it has so ceased does not establish a constitutional right. The repeal of the common law offence of suicide means that it is now legally open to a person to do this act which was previously prohibited.

98. Any such right as the appellant seeks to identify would require to be found in the Constitution.
Is there a Constitutional Right?
99. There is no explicit right to commit suicide, or to determine the time of one’s death, in the Constitution.

100. Thus, any such right as is argued for by the appellant has to be found as part of another expressed right or in an unenumerated right.

101. It was a matter for the appellant to identify a constitutional right which she alleges has been breached by s. 2(2) of the Act of 1993. Only after the Court is satisfied that a constitutional right exists, does the principle of proportionality arise.

102. Thus, it was for the appellant to identify a right to commit suicide, a right to determine the time and method of death, and to have assistance with the exercise of that right, within the Constitution.

103. The appellant referred to several rights under the Constitution, and stress was laid on Article 40.3. Article 40.3.1° provides:-

“The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.”
and Article 40.3.2° states:-

“The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.”
104. Thus, the appellant laid the foundation of her case on the express right to life in Article 40.3.2. However, that right to life does not import a right to die. In In Re a Ward (withholding medical treatment) (No. 2) [1996] 2 I.R. 79 at 124 Hamilton C.J. stated:-
“As the process of dying is part, and an ultimate inevitable consequence, of life, the right to life necessarily implies the right to have nature take its course and to die a natural death and, unless the individual concerned so wishes, not to have life artificially maintained by the provision of nourishment by abnormal artificial means, which have no curative effect and which is intended merely to prolong life.
This right, as so defined, does not include the right to have life terminated or death accelerated and is confined to the natural process of dying. No person has the right to terminate or to have terminated his or her life or to accelerate or have accelerated his or her life.”

105. That case decided that the right to life extended to a right to die a natural death or let nature take its course. While at the extremity of any principle distinctions may be fine, nevertheless a competent patient who refuses treatment is making a decision as to how to live the reminder of his or her life even when death results. That case did not decide, therefore, that there was a right to terminate life or a right to have it terminated. While the words of Hamilton C.J. stating positively that no person has a right to have his or her life terminated were strictly obiter, they are a persuasive authority on the analysis of a right to life under the Constitution.
106. There can be no doubt but that Article 40.3.2 imposes a positive obligation on the State to protect life. That the obligation on the State to protect life is an important constitutional principle cannot, equally, be doubted. The precise extent of the State’s obligation in any given circumstance is, however, a matter which may require careful analysis and, at least in some cases, require a careful balancing of other constitutional considerations.

107. It may well be, therefore, that as part of its obligation to vindicate the right to life, the State is required to seek to discourage suicide generally and to adopt measures designed to that end. It does not, however, necessarily follow that the State has an obligation to use all of the means at its disposal to seek to prevent a person in a position such as that of the appellant from bringing her own life to an end. The problem which the facts of this case throws up is that it may be impossible to consider the position of the appellant without also having regard to the position of other persons, not necessarily in exactly the same position as the appellant, whose right to life may also have to be taken into account. The State is left, therefore, with difficult questions of policy involving complex issues both of principle and of practicality

108. Nothing in this judgment should be taken as necessarily implying that it would not be open to the State, in the event that the Oireachtas were satisfied that measures with appropriate safeguards could be introduced, to legislate to deal with a case such as that of the appellant. If such legislation was introduced it would be for the courts to determine whether the balancing by the Oireachtas of any legitimate concerns was within the boundaries of what was constitutionally permissible. Any such consideration would, necessarily, have to pay appropriate regard to the assessment made by the Oireachtas both of any competing interests and the practicability of any measures thus introduced.
Enumerated and Unenumerated Rights
109. While relying on Article 40.3 the appellant also made wider claims that s. 2(2) of the Act of 1993 infringed her constitutional rights both enumerated and unenumerated, in particular, her right to personal and bodily autonomy and self determination: specifically her right to make and carry out decisions about her own life including death; her right to privacy, her right to live (including her right to die), her right to be held equal with other citizens before the law. Mr Brian Murray, SC, for the appellant in opening the appeal, submitted every person has a right of autonomy including a right of self-determination resulting in a right to determine the timing and means of his or her own death. He submitted that the right to determine the course of one’s own life extends to the right to determine the timely manner of its end.

110. The appellant has not sought to identify any unenumerated right other than such as flows from the respect for and protection of life and of the person within the terms of Article 40.3. Within that context however the appellant invokes constitutional values of autonomy, self-determination and dignity. It is undoubted that the Constitution recognises and respects these general values in the rights protected by it. It does not follow, and it is not claimed, however, that every law which impinges on the life of individuals is even prima facie inconsistent with the Constitution. Whether therefore values of autonomy, self-determination and dignity, as they find expression in the rights guaranteed by the Constitution, provide constitutional protection for the performance of specific acts depends on a concrete analysis of the impact of any law which is impugned in a particular case on the life of the individual, and a careful consideration of the provisions of the Constitution and the values its protects in the rights it guarantees.

111. In the absence of a specific authority the appellant’s arguments depend on general principle. Most notably the appellant relied on the well-known passage in the dissenting judgment of Henchy J in Norris v The Attorney General [1984] IR 36. That case involved a challenge to the provisions of s.61 and s.62 of the Offences Against the Person Act 1861 which had the effect of making criminal sexual acts carried out between consenting male adults. A principal ground of challenge was the assertion that the provisions were an impermissible invasion of a personal right of privacy. Henchy J said at pp. 71 to 72:-

“That a right of privacy inheres in each citizen by virtue of his human personality, and that such right is constitutionally guaranteed as one of the unspecified personal rights comprehended by Article 40, s. 3, are propositions that are well attested by previous decisions of this Court. What requires to be decided – and this seems to me to be the essence of this case – is whether that right of privacy, construed in the context of the Constitution as a whole and given its true evaluation or standing in the hierarchy of constitutional priorities, excludes as constitutionally inconsistent the impugned statutory provisions.
Having regard to the purposive Christian ethos of the Constitution, particularly as set out in the preamble (‘to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations’), to the denomination of the State as ‘sovereign, independent, democratic’ in Article 5, and to the recognition, expressly or by necessary implication, of particular personal rights, such recognition being frequently hedged in by overriding requirements such as ‘public order and morality’ or ‘the authority of the State’ or ‘the exigencies of the common good’, there is necessarily given to the citizen, within the required social, political and moral framework, such a range of personal freedoms or immunities as are necessary to ensure his dignity and freedom as an individual in the type of society envisaged. The essence of those rights is that they inhere in the individual personality of the citizen in his capacity as a vital human component of the social, political and moral order posited by the Constitution.

Amongst those basic personal rights is a complex of rights which vary in nature, purpose and range (each necessarily being a facet of the citizen’s core of individuality within the constitutional order) and which may be compendiously referred to as the right of privacy. An express recognition of such a right is the guarantee in Article 16, s. 1, sub-s. 4, that voting in elections for Dáil Éireann shall be by secret ballot. A constitutional right to marital privacy was recognized and implemented by this Court in McGee v. The Attorney General [1974] IR 284; the right there claimed and recognized being, in effect, the right of a married woman to use contraceptives, which is something which at present is declared to be morally wrong according to the official teaching of the Church to which about 95% of the citizens belong. There are many other aspects of the right of privacy, some yet to be given judicial recognition. It is unnecessary for the purpose of this case to explore them. It is sufficient to say that they would all appear to fall within a secluded area of activity or non-activity which may be claimed as necessary for the expression of an individual personality, for purposes not always necessarily moral or commendable, but meriting recognition in circumstances which do not engender considerations such as State security, public order or morality, or other essential components of the common good.”

112. This passage echoes a central portion of the same judge’s judgment in McGee v The Attorney General [1974] IR 284 at 325:
“As has been held in a number of cases, the unspecified personal rights guaranteed by sub-s. 1 of s. 3 of Article 40 are not confined to those specified in sub-s. 2 of that section. It is for the Courts to decide in a particular case whether the right relied on comes within the constitutional guarantee. To do so, it must be shown that it is a right that inheres in the citizen in question by virtue of his human personality. The lack of precision in this test is reduced when sub-s. 1 of s. 3 of Article 40 is read (as it must be) in the light of the Constitution as a whole and, in particular, in the light of what the Constitution, expressly or by necessary implication, deems to be fundamental to the personal standing of the individual in question in the context of the social order envisaged by the Constitution. The infinite variety in the relationships between the citizen and his fellows and between the citizen and the State makes an exhaustive enumeration of the guaranteed rights difficult, if not impossible.”
113. These comments provide valuable guidance. Even so, as Henchy J recognised, the test for the identification of an unenumerated right, or the determination of the extent of an enumerated right, is a test necessarily lacking in precision, and there are irreducible areas of choice. It is all the more important therefore that the reasoning be as explicit as possible. The approach that any right inheres in a citizen by virtue of his or her personality and should be fundamental to the personal standing of the individual in the context of the social order envisaged by the Constitution provides a useful structure and focus for analysis. Here, while the Constitution does not expressly refer to any right similar to those asserted on behalf of the appellant, it does by Article 40.3.2° commit the State to protect and vindicate the life and person of every citizen. Can it be said that the right to life as so guaranteed, whether on its own or in conjunction with the guarantee of the protection of the person, necessarily implies as a corollary, the right of every citizen to terminate his or her life and to have assistance in so doing? At the level of abstract reasoning it is of course possible to argue that if a citizen has a right to life that must comprehend abandoning or terminating it. It is also possible to construct a libertarian argument that the State is not entitled to interfere with the decisions made by a person in respect of his or her own life up to and including a decision to terminate it. However, it is not possible to discern support for such a theory in the provisions of the Constitution, without imposing upon it a philosophy and values not detectable from it. A right which extends to the termination of life must, as counsel for the appellant recognised in closing submissions, necessarily extend to a right to have life terminated by a third party in a case of total incapacity.. The concept of autonomy which extends not just to an entitlement, but to a positive right to terminate life and to have assistance in so doing, would necessarily imply a very extensive area of decision in relation to activity which is put, at least prima facie, beyond regulation by the State . When it is considered that recognition of such a right implies correlative duties on the State and others to defend and vindicate that right (and which must necessarily restrict those parties’ freedom of action), it is apparent that the right contended for by the appellant would sweep very far indeed. It cannot properly be said that such an extensive right or rights is fundamental to the personal standing of the individual in question in the context of the social order envisaged by the Constitution. The right to life which the State is obliged to vindicate, is a right which implies that a citizen is living as a vital human component in the social, political and moral order posited by the Constitution. While it may be said that it is of the essence of certain types of rights, such as that of the right to associate, that they logically apply as a corollary a right to dissociate, that reasoning cannot be applied to all rights guaranteed by the Constitution. In particular the protection of the right to life cannot necessarily or logically entail a right, which the State must also respect and vindicate, to terminate that life or have it terminated. In the social order contemplated by the Constitution, and the values reflected in it, that would be the antithesis of the right rather than the logical consequence of it.
114. Thus, insofar as the Constitution, in the rights it guarantees, embodies the values of autonomy and dignity and more importantly the rights in which they find expression, do not extend to a right of assisted suicide. Accordingly the Court concludes that there is no constitutional right which the State, including the courts, must protect and vindicate, either to commit suicide, or to arrange for the termination of one’s life at a time of one’s choosing.

115. In general, the Constitution guarantees rights of general application for the benefit of every citizen and person entitled to assert such rights. The Court accordingly does not accept the submission that there exists a constitutional right for a limited class of persons, which in this case would include the appellant, deducible from their particular personal circumstances. While it is clear that the appellant is in a most tragic situation, a Court has to find and protect constitutional rights anchored in the Constitution. The appellant relies understandably on her very distressing situation as giving rise to a right in her very particular situation to have assistance in the termination of her life. That reasoning reverses, however, the process of identification of the extent of rights of general application and risks converting the question of the identification of rights and correlative duties , into an ad hoc decision on the individual case. It has not generally been the jurisprudence of the Irish Constitution that rights can be identified for a limited group of persons in particular circumstances no matter how tragic and heartrending they may be.
Equality or Discrimination: Article 40.1
116. The appellant alleged that s. 2(2) of the Act of 1993 has the effect that she is treated unequally in comparison with persons who are able to commit suicide without assistance and is thus incompatible with Article 40, section 1 of the Constitution.

117. Article 40, section 1 provides:

“All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.”
118. The appellant claims that s. 2(2) of the Act of 1993 infringes her constitutional right to be held equal with other citizens before the law. It is alleged is that s. 2(2) brings about discrimination between persons wishing to end their own lives as between able-bodied persons and disabled persons inflicted with painful terminal illness.
119. The High Court, in its judgment, spoke of the commitment to equality of treatment in Article 40.1 as“a normative statement of high moral value.” The Court was

“prepared to allow that inasmuch as the 1993 Act failed to make separate provision for persons in the plaintiff’s position by creating no exception to take account of the physical disability which prevents the plaintiff taking the steps which the able bodied could take, the precept of equality in Article 40.1 is here engaged.”
[emphasis added]

It proceeded to hold, for the same reasons as it had given in respect of the appellant’s claim based on Article 40.3.2°, that:-
“this differential treatment is amply justified by the range of factors bearing on the necessity to safeguard the lives of others which we have already set out at some length.”
120. In effect, the High Court assumed, without deciding, that the failure of the Oireachtas to make separate provision in s. 2(2) of the Act by creating an exception to “take account of the physical disability which prevents the plaintiff taking the steps which the able bodied could take…” to commit suicide amounted to unequal treatment.
121. The appellant argued before this Court that “when applied to persons with terminal illnesses who are suffering considerable pain, or who, like the appellant, face continuing physical deterioration to the point which they may become “locked in”, the provision has the effect of denying only disabled members of that class the opportunity to put into effect a choice, which in those circumstances may be entirely reasonable, to end their lives.” Her counsel submitted that the High Court was in error in accepting the justification offered.

122. At the hearing of the appeal, counsel for the appellant adopted the submissions made by counsel for the Commission.

123. Counsel for the Commission submitted that inequality of treatment flowed from the decriminalisation by s. 2(1) of the act of suicide. Article 40.1 imposes a free-standing obligation and does not depend on the existence of a right. Counsel argued that s. 2(2), though neutral on its face, creates an indirect discrimination. It bears more heavily on some persons than on others. Counsel accepted that it was not possible to cite any authority on the interpretation of Article 40.1 which extends the principle of equal treatment before the law to indirect discrimination of the type alleged in the present case. Mention was made of the obiter dictum of Hamilton C.J in In re a Ward, at 126, where, responding to a submission that it was not open to any person to exercise on behalf of the ward her right to forgo medical treatment, to the effect that “[…] the ward, by virtue of her incapacity, would be deprived of the opportunity to exercise, or to have exercised on her behalf, a right enjoyed by other citizens of the State.”

124. Counsel for the Commission relied essentially on the decision of Lynn Smith J. in Carter v. Canada [2012] BCSC 886. Section 15(1) of the Canadian Charter of Rights and Freedoms provides:

“Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national origin, colour, religion, sex, age, or mental or physical disability.”
125. Lynn Smith J. was of the view that the prohibition of assisted suicide in s. 241 (b) of the Canadian Criminal Code had “a more burdensome effect on persons with physical disabilities than on others.” She was satisfied that “the absolute prohibition against assisted suicide create[d] a distinction based on the enumerated ground of physical disability.” She also found this distinction to be discriminatory. Her conclusion was based on an analysis, following Canadian jurisprudence, of the substantive effects, even indirect, of the law. To a significant extent, she followed the dissenting judgment of Lamar C.J. in Rodriguez v British Columbia [1993] 3 SCR 519.
126. Counsel for the first and second named respondents relied on the decision of this Court in MD (a minor) v Ireland [2012] IESC 10. They submit that, as in that case, the adoption by the Oireachtas of s. 2(2) of the Act of 1993 can reasonably be described as legislation on a matter of social policy, and on “an issue in society to which the legislature had to respond.”

127. This Court most recently considered the application of Article 40.1 of the Constitution in its judgment in MD (a minor) v Ireland. The Court there laid emphasis on the fundamental importance of equality in the Constitution. The Court stated that:

“Equality is among the highest and noblest aspirations included in the Constitution of every modern state.”
And that:
“The central principle of the Article rests, firstly, on the common humanity which we all share and, secondly, on the general understanding that for the State to pass a law which treats people, who are objectively in the same situation vis-à-vis the law, unequally, is an affront to fundamental ideas of justice and even to rationality.”
128. As is also emphasised in that judgment, the concrete application of the principle of equality before the law is not always a simple matter. It is, as Barrington J. observed in Brennan v Attorney General [1983] ILRM 449 at 479, one of the most elusive concepts in the Constitution . The introduction of the guarantee of equality before the law was a significant innovation in 1937; there was no comparable provision in the Free State Constitution 1922. The concept of equality is also to be found elsewhere in the Constitution, for example in those specific provisions dealing with citizenship ( Article 9.1.3 ) voting (Article 16.1.3) and freedom of association and assembly (Article 40.6.2) . An important guide to the understanding of Article 40.1 is contained in the following passage in the judgment of Walsh J. in Quinn’s Supermarket v Attorney General [1972] IR 1 at 13 to 14:-
“Article 40 s.1… is not a guarantee of absolute equality for all citizens in all circumstances but it is a guarantee of equality as human persons and ( as the Irish text of the constitution makes quite clear) is a guarantee related to their dignity as human beings and a guarantee against any inequalities grounded upon an assumption, or indeed a belief, that some individual or individuals or classes of individuals, by reason of their human attributes or other ethnic or racial, social or religious background, are to be treated as the inferior or superior of other individuals in the community.”
129. If a law makes a distinction on its face between citizens, it may be necessary, depending on its context, to inquire into its justification. The justification for the application of a law to a particular category of persons may be obvious. Where a law is concerned with the regulation of a particular type of economic or other activity, it will necessarily be framed so as to apply only to people carrying on the activity in question. Even then, it may in principle be possible to show that the category of persons regulated is unfairly over or under inclusive. It may be unfairly targeted against one class of persons.
130. More generally, a law will be closely scrutinised if it classifies people by reference to such classes as race, religion, gender or nationality. These are categories, where as a matter of history, it is possible to detect the operation of conscious or unconscious prejudice. In An Blascaod Mór Teo. v Commissioners of Public Works [2000] 1 IR 6, the law exempted from statutory powers of compulsory acquisition persons who had been ordinarily resident on the Great Blasket Island on and after a prescribed date and their relatives. Barrington J, delivering the judgment of the Court at p. 19 found it difficult to see what legitimate purpose that classification served. He added: “It is based on a principle – that of pedigree – which appears to have no place (outside the law of succession) in a democratic society committed to the principle of equality.” In de Burca and Anderson v Attorney General [1976] IR 38 two members of the Supreme Court considered that the exclusion of women from mandatory jury duty was an impermissible discrimination on the basis of gender. However, as the case of MD (a minor) v Ireland & Ors shows, a distinction based on gender may be so closely related to the very nature of gender difference that it is justified. Classification by reference to age or disability may be suspect or may be easily explained. Benefits granted by reference to age or disability may be easy to justify.

131. In any event, classifications of the sort discussed thus far appear on the face of the law. If there is discrimination it is direct. Discrimination may be shown if the class of persons or of activity chosen is formulated unfairly to include or exclude. If the classification is motivated by a discriminatory intent or reveals a prejudice then a classification, though apparently neutral, may be impermissible. Few examples, if any, of this are to be found in modern legislation.

132. It is argued that there can also be indirect discrimination without an impermissible discriminatory motive when the effect of a law bears more heavily on one person than on another. One rare example, of indirect discrimination, may be the High Court decision in Brennan & ors v Attorney General [1983] I.L.R.M. 449. A group of farmers complained that the system of fixing rateable valuation of agricultural land, which, at that time, was still based on the Griffith Valuation of 1849 to 1852, was unconstitutional as constituting an invidious attack on their property rights by reference to Article 43 of the Constitution, but also that it constituted an arbitrary and unjust discrimination against them contrary to Article 40.1. Barrington J, in the High Court held in their favour but while the decision itself was upheld by this Court on the property rights grounds, the Article 40.1 decision was overturned, which was sufficient for its decision.

133. Section 2 does not come easily within any of these categories. It is neutral on its face; it applies equally to everybody. No one who commits suicide commits a crime. Any person, without any distinction, who aids, abets, counsels or procures another person to commit suicide, commits an offence. It is not possible for anyone to complain of unequal treatment on the ground that he or she will commit a criminal act by assisting the suicide of another person. The appellant does not claim that she is herself directly affected by s. 2(2). It is difficult to succeed in an equality challenge to a law which applies to everyone without distinction, and which is based on the fundamental equal value of each human life. It is often the case that neutral laws will affect individuals in different ways: in the absence of impact on a fundamental right that does not normally give rise to any unconstitutionality.

134. The appellant does complain that s. 2(2) affects her by making it difficult or impossible for her to end her own life, because she cannot perform the final suicidal act without assistance. In this she says that she is differently situated from an able-bodied person, a person who does not need assistance. Assuming for present purposes that such a complaint may give rise to a claim under Art. 40.1, this effect does not, of course, result from the provisions of the law, which applies equally to everybody wishing to commit suicide. Since the enactment of s. 2(1) of the Act, everyone is free to do so. What prevents the appellant from committing suicide is, on her own evidence, the fact of her disability. The appellant was able to avail of s. 2(1) for some time: when she lost that ability it was not through operation of any law before which she is required to be held equal, but the fact of her condition.

135. Consequently, the appellant’s argument requires further refinement. The appellant is constrained to argue that the Oireachtas was obliged, when adopting s. 2(2) to provide an exception. The High Court described that as a failure “to make separate provision for persons in the plaintiff’s position by creating no exception to take account of the physical disability which prevents the plaintiff taking the steps which the able bodied could take…” However, the exception would need to go further. It would need to introduce a distinction into an otherwise neutrally expressed provision so that the offence would not be committed by a person aiding or abetting the suicide of a person in the same circumstances as the appellant. The substance of the appellant’s complaint concerns, in the first instance, not the treatment of the appellant herself but the treatment of other persons. It is that the legislature treats her unequally before the law by failing to include a distinction in a facially neutral statutory provision addressed to those other persons, which, she claims, indirectly affects her. The Court is invited to follow the Canadian example by interpreting Article 40.1 as requiring the courts to engage in an effects-based analysis of laws passed by the Oireachtas.

136. The Court does not consider that the constitutional principle of equal treatment before the law, as interpreted and applied in its judgments, extends to categorise as unequal the differential indirect effects on a person of an objectively neutral law addressed to persons other than that person. This is particularly so when the prohibition contained in section 2(2) is at least ostensibly a performance of the constitutional obligation contained in Art. 40.1 and pursues an important objective . As the Divisional Court observed, Articles 40.3 and 40.1 together “commit the State to valuing equally the life of all persons”. While it may be open to the Oireachtas to consider making some distinction between persons, it cannot be said that any such distinction is required in this case by the Article 40.1 rights of the appellant.
Finding
137. The Court concludes that there is no constitutional right to commit suicide or to arrange for the determination of one’s life at a time of one’s choosing.

138. Thus, the appellant has no right which may be interfered with by any disability. As there is no right to commit suicide so issues, such as discrimination, do not arise; nor do values such as dignity, equality, or any other principle under the Constitution, apply to the situation and application of the appellant, as discussed above.

139. The Court rejects the submission that there exists a constitutional right for a limited class of persons, which would include the appellant. While it is clear that the appellant is in a most tragic situation, the Court has to find constitutional rights anchored in the Constitution. The appellant has relied on her very distressing situation on a fact based argument that the blanket ban affects her adversely. That is not a basis upon which a constitutional right may be identified. It has not been the jurisprudence of the Constitution that rights be identified for a limited group of persons.
Proportionality
140. As the court finds the appellant has no constitutional right to commit suicide, and so no right to assistance in the commission of suicide, the issue of the proportionality of any restriction of such a right does not arise for determination in this case. However, it should be noted that an argument was advanced, derived it appears from Canadian jurisprudence, suggesting that the court should approach the question by first determining in general whether a right existed, whereupon the onus shifted to the State to justify by evidence any limitation whatsoever on the general right asserted, by reference to the principle of proportionality. Furthermore, it was asserted that the Court was entitled, and indeed obliged, to decide whether, on the evidence adduced on the balance of probability, there was a compelling justification for the asserted limitation. It should be observed that there is no support in the jurisprudence of this Court for such an approach. Accordingly, this court expressly reserves for a case in which the issue properly and necessarily arises, and is the subject of focussed argument and express decision in the High Court, whether the approach to proportionality urged by the appellant, whether cumulatively, or any component part thereof, is required by ,or compatible with , the Constitution.
The European Convention on Human Rights
141. The appellant brought a claim also for a declaration of incompatibility under s. 5(1) of the European Convention on Human Rights Act, 2003, which the High Court rejected.

142. In the Notice of Appeal it was claimed that the High Court erred:-

(i) In failing to determine whether Article 8 of the European Convention on Human Rights was engaged in all the circumstances of the appellant’s case;
(ii) in failing to determine whether Article 14 of the European Convention on Human Rights was engaged in all the circumstances of the appellant’s case; and

(iii) in failing to determine that the Act of 1993, insofar as it fails to allow for such an exception as claimed by the appellant, fails the requirements of legal certainty and justification to come within paragraph (2) of Article 8 of the said Convention.

143. The High Court pointed out, correctly, that the Convention does not have direct effect in this jurisdiction. The Act of 2003 requires the Court “insofar as is possible, subject to the rules of law relating to such interpretation and application” to interpret a statutory provision or rule of law in a manner compatible with the Convention.
144. The Court found assistance in Pretty v. United Kingdom, (Application No. 2346/02) which was decided by the European Court of Human Rights, referred to as the EctHR. In that case a 43-year-old woman suffering from a degenerative and incurable illness, known as motor neuron disease, alleged that the prohibition on assisted suicide contained in s.2 of the Suicide Act 1961 in the United Kingdom, and the refusal of the Director of Public Prosecutions to grant her husband immunity from prosecution if he were to assist her in committing suicide, violated her rights guaranteed under articles 2,3,8,9 and 14 of the Convention. The European Court of Human Rights, upholding the decision of the House of Lords, found that there had been no violation of the Convention by the respondent State.

145. The ECtHR affirmed that article 2 “safeguards the right to life, without which enjoyment of any of the other rights and freedoms in the Convention is rendered nugatory.” The EctHR held that although article 2 places a positive obligation on Member States to protect life, it was not satisfied that a corresponding negative aspect could be interpreted from the article. Rather, the EctHR held, at para. 39:

“[Article 2] is unconcerned with issues to do with the quality of living or what a person chooses to do with his or her life… [It] cannot, without a distortion of language, be interpreted as conferring the diametrically opposing right, namely a right to die; nor can it create a right to self- determination in the sense of conferring on an individual the entitlement to choose death rather than life.”
[Emphasis added.]

It was held by the EctHR that no right to die, whether at the hands of a third party or with the assistance of a public authority, could be derived from article 2 of the Convention.
146. The EctHR found that it was “beyond dispute” that the respondent State had not, itself, inflicted any ill-treatment on the applicant. Further, it was satisfied that the EctHR would be giving “a new and extended construction on the concept of treatment” which went “beyond the ordinary meaning of the word,” if it were to find that the statutory prohibition on assisted suicide, and the failure of the DPP to provide immunity from prosecution constituted inhuman and degrading treatment in violation of article 3. The EctHR held that if it were to afford such a construction to “treatment”, the positive nature of the obligation under article 3 would, in turn, require the State to sanction actions intended to terminate life. It was held that article 3 must be construed in harmony with article 2 and accordingly, such an obligation could not be derived from the Convention.

147. The applicant contended that the right to self-determination, encompassing the right to choose when and how to die, was “most explicitly recognised and guaranteed” under article 8 of the Convention. It was with this argument that the EctHR found the most favour and asserted that:

“The very essence of the Convention is respect for human dignity and human freedom. Without in any way negating the principle of sanctity of life protected under the Convention, the Court considers that it is under Article 8 that notions of quality of life take on significance. In an era of growing medical sophistication combined with longer life expectancies, many people are concerned that they should not be forced to linger on in old age or in states of advanced physical or mental decrepitude which conflict with strongly held ideas of self and personal identity.” [Para.65]
148. The EctHR continued to make the finding at para. 67 that:
“The applicant in this case is prevented by law from exercising her choice to avoid what she considers will be an undignified and distressing end to her life. The Court is not prepared to exclude that this constitutes an interference with her right to respect for private life as guaranteed under article 8 (1) of the Convention.” [Emphasis added.]
149. It was then considered by the EctHR whether such interference was capable of justification under article 8(2) of the Convention. Satisfied that the interference was in accordance with the law, and sought to achieve the legitimate aim of safeguarding life by protecting the weak and vulnerable, the EctHR considered whether the interference was “necessary in a democratic society.” In doing so, the EctHR referred to the margin of appreciation afforded to Member States for conformity with the requirements of the Convention, and stated that “[t]he margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests of stake.” The EctHR found that States are entitled to regulate, through the operation of the criminal law, activities which are detrimental to the life and safety of other individuals and held that “[t]he more serious the harm involved the more heavily will weigh in the balance considerations of public health and safety against the countervailing principle of personal autonomy.” The EctHR, again, emphasised the wide margin of appreciation enjoyed by Member States and found that:

“It is primarily for States to assess the risk and likely incidence of abuse if the general prohibition on assisted suicides were relaxed or if exceptions were to be created. Clear risks of abuse do exist, notwithstanding arguments as to the possibility of safeguards and protective procedures.” [Para. 74, emphasis added.]
150. Taking this into account, the EctHR held that the blanket ban on assisted suicide contained in s.2 of the Act of 1961 was proportionate and that:
“It does not appear to be arbitrary to the Court for the law to reflect the importance of the right to life, by prohibiting assisted suicide while providing for a system of enforcement and adjudication which allows due regard to be given in each particular case to the public interest in bringing a prosecution, as well as to the fair and proper requirements of retribution and deterrence.” [Para.76]
151. In relation to the decision of the DPP not to grant the applicant’s husband immunity from prosecution under the impugned provision should he assist her in the act of suicide, the EctHR was satisfied that “the seriousness of the act for which immunity was claimed” meant that the refusal could not be said to be “arbitrary or unreasonable.”
152. The EctHR concluded that the interference of the applicant’s rights under article 8 may be justified as “necessary in a democratic society” for the protection of the rights of others.

153. This judgment of the EctHR on the Convention and the issue of assisted suicide was of assistance to the Court, especially as the statutory formulation of s. 2(2) of the Act of 1993 is similar to the statutory law of the United Kingdom at that time.

154. The Court also gave careful consideration to Haas v. Switzerland (Application No. 31322/07).

155. The applicant in Haas v. Switzerland had been suffering from serious bipolar affective disorder for a period of 20 years and wished to obtain access to a lethal substance, sodium pentobarbital, which taken in a sufficient quantity would enable him “the only dignified, certain, rapid and pain free method of committing suicide.” [Para.33] This substance, however, was only available on prescription in the respondent State.

156. Relying on Article 8 of the Convention, the applicant complained that his right to decide how and when to end his life had been breached by the obligation placed upon him to submit a medical prescription in order to obtain the substance necessary for suicide.

157. The decision of the Swiss Federal Court holding that there was no obligation on the State under article 8 of the Convention to issue, without medical prescription, sodium pentobarbital to persons who wish to end their lives or to organisations for assisted suicide was upheld by the European Court of Human Rights in Haas v. Switzerland (Application no. 31322/07). The Court found that the applicant’s right to decide how and when to end his life had not been breached by the requirement to submit a medical prescription in order to obtain the lethal substance and accordingly, there had been no violation of article 8.

158. Referring to its earlier decision in Pretty, the Court held at para. 51 that:

“an individual’s right to decide by what means and at what point his or her life will end, provided he or she is capable of freely reaching a decision on this question and acting in consequence, is one of the aspects of the right to respect for private life within the meaning of [a]rticle 8 of the Convention.”
The instant case was distinguished from Pretty however, as Haas considered whether there is an obligation on a State to ensure that a person can obtain a lethal substance in order to commit suicide, as opposed to the freedom to die. Further, the applicant in Haas, although suffering from serious bipolar affective disorder for a period of approximately twenty years, was not at the terminal stage of an incurable degenerative disease which prevented him from taking his own life.
159. The alleged violation of article 8 was examined from the perspective that there was a positive obligation on Member States to take the necessary measures to permit a dignified suicide. This, the Court held, “presupposes a weighing of the different interests at stake, an exercise in which the State is recognised as enjoying a certain margin of appreciation which varies in accordance with the nature of the issues and the importance of the interests at stake.” In this area, it was determined that Member States enjoy a considerable margin of appreciation and the vast majority of States attach “more weight to the protection of the individual’s life than to his or her right to terminate it.”

160. The Court considered the positive obligation placed on Member States by article 2, namely, to prevent an individual from taking his or her own life if the decision has not been taken freely and with full understanding of what is involved. The restriction on access to the lethal substance, by the requirement to obtain a medical prescription, was found to pursue the legitimate aims of the prevention of crime and the protection of public health and safety. Further, the Court determined that the risks inherent in a system that facilitates access to assisted suicide “should not be underestimated” and that in such systems strict regulations are “all the more necessary.” The Court concluded at para. 61 of its judgment that:

“Having regard to the foregoing and to the margin of appreciation enjoyed by the national authorities in such a case, the Court considers that, even assuming that the States have a positive obligation to adopt measures to facilitate the act of suicide with dignity, the Swiss authorities have not failed to comply with this obligation in the instant case.”
161. The appellant brought a claim under the Act of 2003, section 2 which provides:-
“(1) In interpreting and applying any statutory provision or rule of law, a court shall, insofar as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the convention provisions.
(2) This section applies to any statutory provision or rule of law in force immediately before the passing of this Act or any such provision coming into force thereafter.”

162. The Act of 2003 makes provision for the Court to grant a declaration of incompatibility. Section 5(1) provides:-
“In any proceedings, the High Court, or the Supreme Court when exercising its appellate jurisdiction, may, having regard to the provisions of section 2 , on application to it in that behalf by a party, or of its own motion, and where no other legal remedy is adequate and available, make a declaration (referred to in this Act as “a declaration of incompatibility”) that a statutory provision or rule of law is incompatible with the State’s obligations under the Convention provisions.”
163. In this claim brought by the appellant, for a declaration of incompatibility of s. 2(2) of the Act of 1993, this Court has considered carefully the jurisprudence of the ECtHR. It is apparent that this appeal is similar to the case of Pretty v. United Kingdom (Application No. 2346.02), where it was decided that States are entitled to regulate activities which are detrimental to the life and safety of persons. The ECtHR held that it was primarily for the States to assess the risk and likely incidence of abuse if the general prohibition on assisted suicides were relaxed, or if exceptions were to be made.
164. The complex issue of assisted suicide has been assessed, and the legislature has legislated on the issue in s. 2(2) of the Act of 1993.

165. The Court would, consequently, dismiss the appeal which has been brought on the basis of s. 5 of the Act of 2003, seeking a declaration of incompatibility.
Conclusion
166. In conclusion, for the reasons given, the Court would dismiss the appeal of the appellant in this very tragic case.

Herrity -v- Associated Newspapers [Ireland] Ltd

[2008] IEHC 249

Dunne J

During the course of legal argument herein, reference was made to the case of Meskell v. C.I.E. [1973] I.R. 121 by Mr. McDowell, S.C. in support of the plaintiffs contention that a claim for damages for breach of a constitutional right was not limited to actions against the State. The case of Conway v. I.N.TO. [1991] 2 I.R. 305 was also referred to in this context.

It is interesting to note that in the Kennedy case referred to above, Hamilton P. expressly referred to the decision in Meskell at p.593 of his judgement. He quoted from the words of Walsh J. during the course of his judgment in that case where he stated at pp. 132 and 133:-
“A right guaranteed by the Constitution or granted by the Constitution can be protected by action or enforced by action even though such action may not fit into any of the ordinary forms of action in either common law or equity and that the constitutional right carries within it its own right to a remedy or for the enforcement of it.”
Hamilton P. in the course of the Kennedy judgment having referred to the passage referred to above from Meskell, went on to say as follows:-
“In this case the plaintiffs and each of them claim damages for breach of constitutional rights, abuse of power and breach of contract. In the events which have happened, the only remedy which the plaintiffs can obtain in this court, which, as one of the organs of the State is obliged to respect, defend and vindicate the personal rights of the citizens, lies in damages. Damages may be compensatory, aggravated, exemplary or punitive.”
I should refer briefly to the decisions referred to by Mr. McCullough, in support of his argument that there is no single decision arising out of the hearing at full trial of a claim for damages for breach of privacy against a private person or entity. The two cases relied on in particular in this regard are the decisions in M. v. Drury [1994] 2 I.R. 8 and Cogley v. R.T.E. [2005] 2 I.L.R.M. 529.

The facts of M. v. Drury referred to above are strikingly familiar to the facts of the present case. The plaintiff wife and the husband had been involved in family law litigation which resulted in an order for judicial separation being made on the 26th July, 1993. A number of articles appeared in different newspapers published by the defendants reporting the husband’s view that the marriage had broken down by reason of an alleged adulterous relationship between his wife and a Roman Catholic priest, and his intention to bring proceedings against the Roman Catholic Church seeking compensation for the breakdown of his marriage. The plaintiff applied to the High Court for inter alia, an interlocutory injunction restraining the defendants from publishing or communicating to any person any matter or fact, pertaining to her family life. It was submitted on behalf of the plaintiff that since the proposed publications would disclose matters relating to the intimate family relationship of the plaintiff and the defendant, they constituted an invasions of the plaintiff’s right to privacy which right was an unspecified right deriving from the Constitution of Ireland, 1937, and in particular, Article 41 thereof. It was held, by O’Hanlon J. that the proposed publications complained of did not concern the intimacies of married life or marital communications between husband and wife but, allegations of adultery made by a husband against a wife. Accordingly, having regard to the provisions of Article 40 and Article 41 of the Constitution, there was no fair case to be tried as to whether some right of the plaintiff derived from those Articles would be breached by publication of the proposed material. It was also noted by the Court that had the truth of the allegations been contested by the plaintiff, the injunction could have been granted and the law of defamation could have been invoked in aid of the plaintiff’s claim. The court went on to hold that whilst in certain cases the right to privacy, which right was an unspecified right deriving from the Constitution, demanded an intervention of the courts, in general it was desirable that the legislature and not the courts should prescribe the exceptions to the right of freedom of speech. It was also held that having regard to the fact that the husband’s allegations had already been widely aired in the press and to the general undesirability of delaying the publication of material in circumstances where it was likely that the courts would determine that such publication was lawful at the trial of the action, the balance of convenience was against granting the reliefs sought. It is interesting to look at precisely what was said by O’Hanlon J. in the course of his judgment. At p. 14, he commented:-
“It appears to me, however, that what is involved in this case is not a matter concerning the intimacies of married life, or marital communication between husband and wife but rather a matter of allegations made by a husband of an extra-marital liaison entered into by his wife which he was anxious to publicise for the purpose of giving vent to his anger against the third party involved and possibly to reap some financial reward for himself in the process.

If the truth of the allegations were seriously challenged, the courts would certainly intervene in an appropriate case to prevent publication pending trial and the law of libel could be invoked in aid of the plaintiff’s claim. Similarly, in case of a breach of the in-camera rule, as happened in Re Kennedy & McCann [1976] I.R. 382, injunctive relief could be obtained under various statutes dealing with family law matters.

I cannot derive from the provisions of Article 40 or Article 41 of the Constitution any grounds which lead me to believe that there is a fair case to be tried as to whether some right of the plaintiff under those Articles would be breached if further revelations of the kind which have already appeared in print are repeated in the future in the publications of the various defendants or for which they are responsible as distributors or correspondents or otherwise.”
He went on to say at p. 17:-
“There are extreme cases where the right to privacy (which is recognised as one of the personal rights, though unspecified, guaranteed protection by the Constitution – see judgment of Budd J. in McGee v. Attorney General [1974] IR 284 at p. 322) may demand the intervention of the courts. An example might be the circumstances illustrated in Argyle v. Argyle [1967] Ch. 302, where confidential communications between husband and wife during their married life together, were protected against disclosure. Generally speaking, however, it seems desirable that it should be left to the legislature and not to the courts to ‘stake out the exceptions to freedom of speech’ (in the words of Lord Denning).

In the present case, the Court is asked to intervene to restrain the publication of material, the truth of which has not as yet been disputed, in order to save from the distress that such publications is sure to cause, the children of the marriage were all minors. This would represent a new departure in our law, for which, in my opinion, no precedent has been shown, and for which I can find no basis in the Irish Constitution, having regard, in particular to the strongly expressed guarantees in favour of freedom of expression in that document.”
He went on to deal with the balance of convenience, if it arose, in that case and he noted that there seemed to be little to be gained by granting an interlocutory injunction as maximum publicity had already been given to the husband’s version of events. It seems to me that that case is important for a number of reasons. First of all, it recognises the existence of a right to privacy as one of the personal rights guaranteed protection by the Constitution. Secondly, it does recognise the importance of protecting confidential communications between a husband and wife during their married life together. (Despite the fact that the articles concerned in this case deal with the marital circumstances of the husband and wife, it is clearly not a case in which confidential communications between a husband and wife during their married life together have been disclosed.) The third point that is important to note is the comment of O’Hanlon J. to the effect that it was desirable that it should be left to the legislature and not to the courts to “stake out the exceptions to freedom of speech”. I will return to this point later.

The other case I wish to refer to in this context is the judgment in the case of Cogley v. R.T.E. [2005] 2 I.L.R.M. 529. That case concerned an intended broadcast of a programme in relation to the operation of a nursing home known as Leas Cross Nursing Home. Two sets of proceedings were brought against RTE seeking to prevent the broadcast of the programme. The plaintiff in the first set of proceedings was a Director of Nursing at the nursing hone and the plaintiffs in the second set of proceedings were the owners and occupiers of the nursing home. Using a concealed camera, a worker filmed the operation of the nursing home over a two week period. The plaintiffs in the second proceedings based their application primarily on the allegation that the use of a secret camera was a breach of the right to privacy of the plaintiffs and the patients at the nursing home and constituted trespass. In considering the extent of the constitutional right to privacy as set out in Kennedy v. Ireland, Clarke J. noted at p. 90:-
“However, it is also clear from Kennedy v. Ireland [1987] I.R. 587 that the right to privacy is not an unqualified right but is subject to the constitutional rights of others and to the requirements of public order, public morality and the common good. It should also be noted that the express recognition of an obligation to respect the privacy of others contained in the Broadcasting Acts 1960 to 1976 referred to above is also not unqualified in that it places an obligation on the Broadcasting authority not to ‘unreasonably encroach’ on the privacy of an individual. Thus it is clear that while persons such as the plaintiffs have a constitutional right to privacy and an arguable entitlement to ensure that the Broadcasting Authority does not unreasonably interfere with their privacy in the course of making and broadcasting programmes, those rights are not unqualified. It is, therefore, necessary to address how the right of privacy may be balanced against other competing rights and, in particular, how an assessment of the situation in respect of such competing rights should be made at an interlocutory stage such as this.”
Clarke J. went on to comment as follows:
“A useful starting point for the purposes of this case seems to me to be to distinguish between a right of privacy in the underlying information whose disclosure it is sought. to prevent, on the one hand. and, on the other hand, the situation where a right to privacy which does not extend to that underlying information but it is contented that the methods by which the information has been obtained amount to a breach of privacy.

There are certain matters which are entirely private to an individual and where it may validly be contended that no proper basis for their disclosure either to third parties or to the public generally exists. There may be other circumstances where the individual concerned might not, having regard to competing factors which may be involved, such as the public interest, be able to maintain that the information must always be kept private but may make a complaint in relation to the manner in which the information was obtained.

It seems to me the different considerations apply most particularly at an interlocutory stage, dependant on which of the above elements of the right to privacy is involved.”
Ultimately in that case the court went on to refuse the interlocutory relief sought. Clarke J. did comment (at p. 93) that the plaintiffs had at least made out an arguable case to the effect that the circumstances in which the filming occurred may amount, prima facie, to a trespass and breach of privacy. However, he went on to hold that the mere fact that information may arguably have been obtained in breach of an individual’s rights is not of itself necessarily decisive. He pointed out the importance of weighing in the balance any public interest issues which arise and given that he was dealing with an interlocutory application, the extent to which damages may be an adequate remedy. I find it difficult to draw the conclusion from the decision in that case or indeed from the decision in M. v. Drury referred to above that because the plaintiffs in those cases failed to obtain the interlocutory relief sought, and bearing in mind that there has not been a decision arising out of a full trial of a claim for damages for breach of privacy against a private person or entity, that no such right exists. What does emerge from the decisions to which I have referred and in particular from the decision in the case of Cogley v. R.T.E. are the following principles:-
(1) There is a Constitutional right to privacy.

(2) The right to privacy is not an unqualified right.
(3) The right to privacy may have to be balanced against other competing rights or interests.

(4) The right to privacy may be derived from the nature of the information at issue – that is, matters which are entirely private to an individual and which it may be validly contended that there is no proper basis for the disclosure either to third parties or to the public generally.

(5) There may be circumstances in which an individual may not be able to maintain that the information concerned must always be kept private, having regard to the competing interests which may be involved but may make complaint in relation to the manner in which the information was obtained.

(6) The right to sue for damages for breach of the constitutional right to privacy is not confined to actions against the State or State bodies or institutions.
Application of the principles to the facts of this case
Given that I have reached the conclusion that a breach of the constitutional right to privacy is actionable against a private person or entity, it is now necessary to consider in the context of this case whether the matters published by the defendant herein amount to a breach of privacy and the extent to which the right to privacy asserted by the plaintiff herein may be qualified. It was accepted in this case on behalf of the defendant that if there is a right to claim damages for breach of privacy against private individuals, then that right must follow the reasoning of the Supreme Court in Kennedy. On that basis it was accepted that the publication of transcripts of telephone conversations is a prima facie breach of that right if it was deliberate, conscious and unjustified. On that basis it was submitted that the question to be determined is whether the prima facie breach of the right to privacy was “unjustified”.

The defendant relied on a number of matters to justify the publication of the articles complained of herein. Those can be summarised as follows:-
(1) The newspapers’ right to freedom of expression.

(2) The accuracy of the information involved.

(3) The public interest in the information.

(4) The freedom of expression of the plaintiff s husband.
In support of those matters, the defendant relied on a number of authorities. Dealing with those issues as they arose, counsel on behalf of the defendant noted that the question of freedom of expression was not something that arose in the Kennedy case. Reference was made to the judgment of the Supreme Court in Mahon v. Post Publication Limited [2007] 2 ILRM 1 in which Fennelly J. considered the nature of freedom of expression at page 13 and 14 of the judgment:-
“It is no function of the Court to adjudicate on the dispute agitated in the affidavits as to whether future publication by the media of material regarded as confidential by the Tribunal would be in the public interest, as the defendant claims, or would be aimed at boosting circulation, as Ms Gribbin has stated on behalf of the Tribunal. The courts do not pass judgment on whether any particular exercise of the right of freedom of expression is in the public interest. The media are not required to justify publication by reference to any public interest other than that of freedom of expression itself. They are free to publish material which is not in the public interest. I have no doubt that much of the material which appears in the news media serves no public interest whatever. I have equally no doubt that much of it is motivated, and perfectly permissibly so, by the pursuit of profit. Publication may indeed be prompted by less noble motives. So far as the facts of the present case are concerned, the decision of Mr O’Kelly to publish the names of three TD’s in direct defiance of the wishes of the Tribunal was disgraceful and served no identifiable public interest. On the other hand, that does not mean that it was unlawful.

The right of freedom of expression extends the same protection to worthless, prurient and meretricious publication as it does to worthy, serious and socially valuable works. The undoubted fact that news media frequently and implausibly invoke the public interest to cloak worthless and even offensive material does not affect the principle. Like Kelly J, I cite the following passage from the judgment of Hoffmann L.J., as he then was, in R. v Central Independent Television Plc [1994] 3 WLR 20:
‘Newspapers are sometimes irresponsible and their motives in a market economy cannot be expected to be unalloyed by considerations of commercial advantage. Publication may cause needless pain, distress and damage to individuals or harm to other aspects of the public interest. But a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which ‘right thinking people’ regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute.’”
That is a powerful expression of the right to freedom of expression. It is not authority however for saying that the right to freedom of expression is more significant than the right to privacy. As Hoffmann L.J. noted, the freedom is subject to clearly defined exceptions laid down by common law or statute. It is in that context that the constitutional right to privacy comes into the equation. Accordingly it seems to me that there is a balancing exercise engaged in circumstances where the right to freedom of expression conflicts with the right to privacy. It is clear that newspapers are free to publish all sorts of matters regardless of public interest and questions of good taste but, as is the case with the right to privacy, the right to freedom of expression is not an unqualified right. Lord Hoffmann in the passage just quoted above and approved by Fennelly J. noted:-
“This freedom is subject only to clearly defined exceptions laid down by common law or statute.
O’Hanlon J. in the case of M. v. Drury referred to above, quoted the same passage from the judgment of Hoffmann L.J. and he added at page 17 of his

judgment:-
“Generally speaking, however, it seems desirable that it should be left to the legislature, and not to the courts to ‘stake out the exceptions to freedom of speech’ (in the words of Lord Denning).”
Clarke J. in his judgment in Cogley referred to the fact that:
“There may be other circumstances where the individual concerned might not, having regard to competing factors, such as the public interest, which may be involved, be able to maintain that the information concerned must always be kept private but may make complaint in relation to the manner in which the information was obtained.”
It seems to me that those passages have a particular bearing in the context of this case. The publication of the telephone transcripts in this case were obtained in breach of the provisions of s. 98 of the Postal and Telecommunications Services Act, 1983. As previously indicated, s. 98(1) applies to a person who not only intercepts or attempts to intercept or authorises someone else to intercept telecommunications messages but also applies to those who disclose the existence, substance or purport of any such message which has been intercepted or uses for any purpose any information obtained from any such message and such person is also guilty of an offence. I cannot see how anyone can assert a right to freedom of expression to publish transcripts of private telephone conversations where the legislature has expressly prohibited the interception of telecommunications messages. This is precisely a situation in which the State has seen fit to lay down by statute an exception to the right to freedom of expression. There is a hierarchy of constitutional rights and as a general proposition, I think that cases in which the right to privacy will prevail over the right to freedom of expression may well be far and few between. However, this may not always be the case and there are circumstances where it seems to me the right to privacy could be such that it would prevail over the right to freedom of expression. One of those circumstances arises on the facts of this case where the freedom of expression asserted is the publication of material obtained unlawfully. One must bear in mind that the provisions of s. 98 of the Act are there to protect the privacy of an individual’s telephone conversations. No one expects to see their private telephone conversations printed in a newspaper to excite the prurient curiosity or to provide amusement for the paper’s readers.

There may be other circumstances where the right to privacy prevails. For example, could a newspaper be entitled to publish details of a diagnosis of serious illness in respect of an individual bearing in mind the nature of the confidential doctor-patient relationships? What if the individual was a well-known public figure? Would it make a difference if the individual was a celebrity or, say, a senior politician? I would have thought that the circumstances which could justify a publication of such private information would seldom arise and only if there was some clear, demonstrable public interest.

The second aspect of the matter relied on by the defendant herein related to the accuracy of the information. Undoubtedly that was a factor in the case of M. v. Drury referred to above. The facts of that case are, as mentioned previously, very similar to the facts of this case. In that context, O’Hanlon J. stated at page 17:-
“In the present case, the court is asked to intervene to restrain the publication of material, the truth of which has not as yet been disputed, in order to save from the distress that such publication is sure to cause the children of the marriage who are all minors. This would represent a new departure in our law, from which, in my opinion, no precedent has been shown, and for which I can find no basis in the Irish Constitution, having regard, in particular, to the strongly-expressed guarantees in favour of freedom of expression in that document.

I therefore do not find that it has been shown that there is a fair case to argue when the case comes on for full trial, an on this ground I refuse the application for interlocutory relief.”
The fact that the material is accurate does not of itself give rise to a right to publish the material. As I have noted above the right to freedom of expression is subject to exceptions at common law and subject to statutory restriction. The fact that the material is accurate would not in my view avail the defendant in this case where the material at issue is disclosed contrary to a statutory exception to the right to freedom of expression.

The third point relied on by the defendant is the public interest. In essence the submission of the defendant was that the information that appeared in the articles complained of concerned a Catholic priest. It was submitted that the Catholic Church demands celibacy of its priests and that a Catholic priest and in particular a parish priest is a public figure. On that basis it was contended that there was a legitimate public interest in whether a parish priest is having an affair with a married woman. In this context reference was made to the decision in the case of A. v. B. Plc [2003] QB 195 where the Court of Appeal noted:-
“Conduct which in the case of a private individual would not be the appropriate subject of comment can be the proper subject of comment in the case of a public figure. The public figure may hold a position where higher standards of conduct can be rightly expected by the public. The public figure may be a role model whose conduct could well be emulated by others. He may set the fashion. The higher the profile of the individual concerned the more likely that this will be the position. Whether you have courted publicity or not you may be a legitimate subject of public attention. If you have courted public attention then you have less ground to object to the intrusion that follows. In many of these situations it would be overstating the position to say that there is a public interest in the information being published. It would be more accurate to say that the public have an understandable and so a legitimate interest in being told the information. If this is the situation then it can be appropriately taken into account by a court when deciding on which side of the line a case falls. The courts must not ignore the fact that if newspapers do not publish information which the public are interested in, there will be fewer newspapers published, which will not be in the public interest.”
I would make a number of observations about this line of argument. First of all the public interest in this particular case, such as it may be, is asserted to be a public interest in the behaviour of Fr. McMahon, who is of course, not the plaintiff herein. Much of the material that appeared in the course of these three articles concerned the plaintiff. Given the nature of the role of a Catholic priest in Irish society, Fr. McMahon could well be said to be a person whose conduct may be subject to public scrutiny as outlined in the case of A. v. B. referred to above. It is inevitable that if information is disclosed about a public figure such as a priest, that could expose others in the position of the plaintiff herein to unwelcome intrusion into their lives. In such circumstances I think that as a general proposition the right to freedom of expression would outweigh the right to privacy of the individual in the position of the plaintiff herein. However, in considering that aspect of the matter one would also have to have regard to the extent of the information in relation to the individual concerned and once again, one would have to have regard to the means by which the information was obtained and the type of disclosure that occurred. Accepting as I do that there is such a public interest of the kind contended for by the defendant, nonetheless, that public interest remains subject to the caveat that the limits on the right to freedom of expression cannot be ignored simply by recourse to the public interest. In other words, the right to freedom of expression is as stated before, not an unqualified right. It is subject to exceptions at common law, for example, by means of defamation law (if the publication is not accurate) and by legislation. I can see no basis for saying that the public interest arising on the facts of this case could be such as to set at nought the restriction on the disclosure of telecommunications messages prohibited by s. 98 of the Postal and Telecommunications Services Act 1983. It simply cannot be so.

The final point raised relates to the right to freedom of expression of the plaintiff s husband. In the case of A. v. B. Plc. referred to above, it was noted by the court as follows:-
“More difficult is the situation where the alleged intrusion into privacy is as a result of the reporting of the information to a third party by a party to the relationship which creates the privacy. This is a material factor in situations where two people have shared a sexual relationship outside marriage. If one wishes to exercise his or her article 10 rights that must impact on the other’s right to maintain confidentiality. For example the information may relate, as in this case, to a situation where there is a sexual relationship between two parties and one of the parties informs the media about the relationship without the consent of the other party. … While recognising the special status of a lawful marriage under our law, the courts, for present purposes, have to recognise and give appropriate weight to the extensive range of relationships which now exist. Obviously, the more stable the relationship the greater will be the significance which is attached to it.”
Thus it was submitted that where the information comes from a party to a marriage this is a relevant fact to consider in circumstances where one of the parties to the marriage wishes to give information to newspapers. That passage recognises the difficulty that is to some extent at the heart of this case, namely that one person’s right to privacy or as stated in that case to maintain confidentiality, must impact on the other’s right to freedom of expression. In such situations one has to weigh up the conflicting interests and find where the balance lies. However, for the reasons I have already outlined, such considerations do not arise where the material comes from a source which is prohibited by law as in this case, namely, telephone tapping.

Accordingly, I am satisfied that the publication of the transcripts of telephone conversations in this particular case by the defendant in breach of s. 98 of the 1983 Act, can only be described as a deliberate, conscious and unjustified breach of the plaintiff’s right to privacy.
Other issues
During the course of submissions in this case, Mr. McDowell, S.C. on behalf of the plaintiff in the course of submissions made the comment that there was no real significant or weighty public interest involved in these proceedings in the publication of private information pertaining to the plaintiff s private life. It was stated that the argument of the defendant could have carried some weight had the defendant limited its publication to details about Fr. McMahon and Fr. Cleary. He went on to say that the exposure of the plaintiff s private life without any basis in public interest and was designed purely to create a salacious and prurient article. As I have already indicated, I can see some basis for the identification of the plaintiff as a person involved in a relationship with Fr. McMahon. However, much of the material published in the articles and concerning the plaintiff could not have any bearing on the public interest asserted by the defendant. In any event much of the material published consisted of the contents of transcripts of private telephone conversations of the plaintiff. For the reasons outlined above there could be no basis for the publication of that material.

Submissions were made to me in relation to the right to privacy as protected under the European Convention of Human Rights. The publication in this case occurred before the European Convention on Human Rights Act 2003, came into effect on the 31st December, 2003. It was noted in the course of submissions that the right to freedom of expression under the Constitution were in accordance with the provisions of the European Convention on Human Rights, and it does not seem to me to be necessary to make any observation on the provisions of the Convention.

Submissions were also made in relation to a contention that the publication of the material in this case amounted to a breach of confidence. It does not seem to me to be necessary to deal with this issue in the light of the findings expressed above.

Further it was contended that the publication by the defendant of the telephone conversations amounted to a breach of statutory duty giving rise to a claim for damages. Again I do not think it is necessary to consider this aspect of the matter.

The final matter raised by way of argument was that there was a conspiracy on the part of the defendant and others in relation to the publication of the transcripts of the plaintiff s private telephone conversations for the purpose of injuring the plaintiff. Again I do not think it is necessary to consider this aspect of the case in the light of the views expressed in relation to the plaintiff s claim for damages for breach of her right to privacy.
Damages
The final issue to be considered in this case is the issue of damages. The first comment I want to make in relation to the question of damages is that I accept the evidence given by the plaintiff in this case. In that regard I accept that the marriage of the plaintiff and her husband had broken up before her relationship with Fr. McMahon commenced. I accept that there was no real effort made by the defendant to get the plaintiff’s side of the story in relation to the breakdown of the marriage. I accept that what appeared in the newspaper articles complained of was an account based solely on her husband’s version of events. There was a phone call made to the plaintiff on the day before the publication of the first of the articles complained of, but I cannot accept that it was a genuine attempt to obtain her side of the story. In any event, that would not justify a breach of a right to privacy. I accept that while she was asked about her relationship with Fr. McMahon in the phone call that took place, she was never asked anything about her friendship with Fr. Eddie Cleary or the circumstances in which that friendship came about. Finally I accept that the plaintiff was very distressed as a result of the publication of these articles exposing, as they did, to public scrutiny transcripts of her private telephone conversations.

Counsel on behalf of the plaintiff in the submissions in respect of damages referred to the decision of the Supreme Court in the case of Shortt v. Commissioner of An Garda Síochána [2007] IESC 9, in which the law in respect of damages in tort or for breach of a constitutional right were considered. It was stated by Murray C.J. as follows:-
“In these circumstances I am quite satisfied that the principles relating to the award of damages in tort or for breach of a constitutional right as set out by Finlay C.J. in Conway v. Irish National Teachers Organisation [1991] 2 I.R. 305 at 317 are applicable to the assessment of damages in this case …
In Conway v. I.N.T.O. Finlay C. J. stated:-
‘In respect of damages in tort or for breach of a constitutional right, three headings of damages in Irish law are, in my view, potentially relevant to any particular case. They are:-
1. Ordinary compensatory damages being sums calculated to recompense a wronged plaintiff for physical injury, mental distress, anxiety, deprivation of convenience, or other harmful effects of a wrongful act and/or for monies lost or to be lost and/or expenses incurred or to be incurred by reason of the commission of the wrongful act.

2. Aggravated damages, being compensatory damages increased by reason of
(a) the manner in which the wrong was committed, involving such elements as oppressiveness, arrogance or outrage, or

(b) the conduct of the wrongdoer after the commission of the wrong, such as a refusal to apologise or to ameliorate the harm done or the making of threats to

repeat the wrong, or

(c) conduct of the wrongdoer and/or his representatives in the defence of the claim of the wronged plaintiff, up to and including the trial of the action.
Such a list of the circumstances which may aggravate compensatory damages until they can properly be classified as aggravated damages is not intended to be in any way finite or complete. Furthermore, the circumstances which may properly form an aggravating feature in the measurement of compensatory damages must, in many instances, be in part a recognition of the added hurt or insult to a plaintiff who has been wronged, and in part also a recognition of the cavalier or outrageous conduct of the defendant.

3. Punitive or exemplary damages arising from the nature of the wrong which has been committed and/or the manner of its commission which are intended to mark the court’s particular disapproval of the defendant’s conduct in all the circumstances of the case and its decision that it should publicly be seen to have punished the defendant for such conduct by awarding such damages, quite apart from its obligation, where it may exist in the same case, to compensate the plaintiff for the damage which he or she has suffered. I have purposely used the above phrase ‘punitive or exemplary damages’ because I am forced to the conclusion that, notwithstanding relatively cogent reasons to the contrary, in our law punitive and exemplary damages must be recognised as constituting the same element.”
Bearing in mind those principles, it seems to me that the plaintiff herein is entitled to compensatory damages and I am also satisfied that she is entitled to aggravated damages. I am also satisfied that this is a case in which punitive damages should be awarded. I propose to deal with the issue of ordinary compensatory damages and aggravated damages together. In this regard I accept the evidence of the plaintiff that she was very distressed as a result of the flagrant and unwarranted breach by the defendant of the plaintiff s right to privacy. The publications at the heart of this case took place over a three week period designed to extract the maximum value out of the telephone transcripts of the plaintiff s conversations. Use was made of family photographs and information as to the plaintiff s family circumstances, history and background which could have had no bearing whatsoever on the public interest asserted by the defendant herein. However, the most serious aspect of this case was the use by the defendant of material obtained unlawfully as a result of an illegal phone tap, which was in turn, obtained by the defendant from a husband motivated by revenge. Balanced against that must be the fact that it seems to me that some limited information as to the plaintiff could have been legitimately brought into the public domain had the defendant chosen to write about the conduct of Fr. McMahon, in embarking on a relationship with the plaintiff. Unfortunately for the defendant, it chose to go beyond what would have been permissible in the exercise of its right to freedom of expression by making use of material obtained unlawfully. In this context, the passage from the judgement of Clarke J. in his judgement in Cogley at p. 539 is particularly apposite to the facts of this case:-
“In my view a useful starting point for the purposes of this case seems to me to be to distinguish between a right to privacy in the underlying information whose disclosure it is sought to prevent on the one hand and a right to privacy which does not extend to that underlying information but where it is contended that the methods by which the information has been obtained amount to a breach of privacy on the other hand.

There are certain matters which are entirely private to an individual and where it may validly be contended that no proper basis for their disclosure either to third parties or to the public generally exists. There may be other circumstances where the individual concerned might not, having regard to competing factors, such as the public interest, which may be involved, be able to maintain that the information concerned must always be kept private but may make complaint in relation to the manner in which the information was obtained.”
I should briefly add that complaint was made during the course of this case about the conduct of the defendant in the course of the trial of this action. Complaint was made as to the presence of a photographer and the conduct of the same photographer during the course of this trial. It appears that the photographer was seen in the company of the defendant’s representatives during the course of the trial. While that matter was ventilated in court, it does seem to me that one of the consequences of engaging in litigation is that parties will necessarily be subjected to the sometimes unwelcome attention of photographers. This is one of the modern day incidents of litigation and does not in my view amount to an element which could or should result in aggravated damages in the circumstances of this case.

Bearing in mind the facts and circumstances of this case, I am assessing ordinary and aggravated compensatory damages in the sum of €60,000 for the conscious and deliberate and unjustified breach of the plaintiff’s right to privacy and the undoubted and significant distress caused to the plaintiff as a result of that breach. The blatant use of unlawfully obtained transcripts of telephone conversations is such that it seems to me that it could not be condoned in any way whatsoever. The behaviour of the defendant in making use of such material is, in my view, nothing short of outrageous. It will be seldom that a court will award punitive or exemplary damages. However, bearing in mind the comments of Finlay C.J. in the case of Conway referred to above, it seems to me that this is one of the rare occasions when the court’s disapproval of the defendant’s conduct in all the circumstances of the case should be marked by awarding such damages. In all the circumstances of this case it seems to me that the appropriate sum to award in respect of punitive damages for the conduct of the defendant in making use of transcripts of telephone conversations obtained unlawfully is the sum of €30,000.

Accordingly, there will be a decree in favour of the plaintiff in the sum of €90,000.

 

Simpson v Governor of Mountjoy Prison & Ors

[2019] IESC 81 (14 November 2019)

O’Donnell J. delivered the 14th day of November 2019.

1. I agree with the judgment about to be delivered by MacMenamin J. in this matter, andadd these observations only because certain arguments made in this case have touchedon issues which may require further consideration in future cases.

2. Given the extent to which prison conditions have been the subject of consideration by theEuropean Court of Human Rights (“ECtHR”), it is, perhaps, understandable that theappellant’s case here was, broadly speaking, that the conditions to which he wassubjected violated an unenumerated right not to be subjected to inhuman or degradingtreatment, in terms and scope identical to the area protected by Article 3 of the EuropeanConvention on Human Rights (“ECHR”). In these proceedings, the appellant’s argumentseeks to couple the detailed jurisprudence of the ECHR together with a claim in the natureof a constitutional tort, seeking to recover damages in Irish law, implicitly on a scale moregenerous than that provided in claims before the ECtHR, for the breach of theunenumerated right.

3. I agree with MacMenamin J. that this reasoning cannot be accepted. At first sight, it mayappear both unremarkable and unobjectionable. Who, after all, can possibly be heard toquestion a right not to be subjected to torture or inhuman or degrading treatment? It isalso fair to observe, that in one of the earliest prison condition cases in this jurisdiction,Page 2 ⇓The State (C.) v. Frawley [1976] I.R. 365 accepted that the unenumerated right to bodilyintegrity included a right to freedom from torture and inhuman and degrading treatment,although the right in that case was not found to have been breached, and there was littlefocus therefore on the derivation of the right. Furthermore, since the coming into force ofthe European Convention on Human Rights Act 2003 it is possible to claim damages for abreach by the State of its obligation under section 3 to perform its functions in a mannercompatible with the State’s obligations under the Convention provisions (subject to anystatutory provision or rule of law) if no other remedy in damages is available. It mightappear, therefore, that debate about the route is superfluous when the correct destinationis reached.

4. While nothing may turn in this or indeed in many cases, it is important to consider theline of reasoning asserted on behalf of the appellant, since if correct, it may be adopteduncritically in many cases where ECHR jurisprudence is relevant. There are, or may be,differences in the nature of the claims that may be made, the defendant against whomsuch claims can be brought, and perhaps the approach to damages. In is importanttherefore to pay attention to, and scrutinise carefully, the pathway toward any claim todamages in this case.

5. I have no doubt that the Irish Constitution prohibits, and has always prohibited, conductwhich is also outlawed by Article 3 of the ECHR. However, I consider it wrong in principleto seek to introduce the language and jurisprudence of the ECHR into the IrishConstitution through the vehicle of unenumerated rights protected under Article 40.3.2°of the Constitution, and in this case the unenumerated right to bodily integrity.

6. First, the Constitution makes no express or implied reference to any such right as soformulated. There are, of course, obvious historical reasons why the drafters of the ECHRfelt it necessary to include an express and absolute prohibition on torture and inhumanand degrading treatment in the new Convention. But, it strains credulity to suggest thatthe Irish Constitution anticipated this development and not only did exactly the samething in the same terms, but achieved this object without any express reference in thetext. The terms and structure of the ECHR has meant that the interpretation of Article 3has developed in a particular fashion and into new areas. As the extensive case lawsurveyed in the judgment of MacMenamin J. shows, it has, for example, become thevehicle for attempts to improve, among other things, prison conditions throughout thecontracting states. Furthermore, the ECtHR has adopted an “evolutive interpretation”which has the effect of discovering new rights or expanding the protection of existingrights. This is of course a matter for the jurisprudence of that Court, and indeed may beappropriate in the terms of an international convention that is not easily amended. Again,however, it strains credulity to maintain that the Irish Constitution, through the mediumof an unenumerated right, adopted the self-same prohibitions which moreover developedin precisely the same way. In any event, the function of the Irish Courts is to uphold theConstitution, and that duty cannot be performed if the scope of rights protected under theConstitution is to be determined by the jurisprudence of a court which is not establishedunder the Constitution and has no obligation to uphold it. While it is to be expected thatPage 3 ⇓the two instruments guaranteeing rights considered fundamental would tend to covermuch of the same ground, and the interpretation of one is often helpful in understandingsimilar provisions contained in the other, they are different instruments and there will bemany areas, particularly at the margins (which are often the subject to litigation) wherethe approach, or substance, may be different.

7. While it is perhaps understandable, therefore, that a plaintiff would seek to blend theestablished ECHR jurisprudence on prison conditions with a claim for damages for breachof an Irish constitutional right, this is not, in my view, a permissible course, at least in theway advanced in this case. It is a noteworthy feature of this case that there is a simpleassertion or, perhaps more accurately, assumption, that there is an unenumerated rightto freedom from inhuman or degrading treatment protected by the Irish Constitution,without offering any explanation as to why that is so.

8. As observed already, I have no doubt that the treatment, which at least in general terms,would fall foul of Article 3 of the Convention is also prohibited by the Constitution.Torture, for example, is outlawed in Irish law because of the specific protection given tothe person in Article 40.3 (and without the need to look to other provisions of theConstitution), a right which also clearly extends beyond a prohibition of treatment whichcan be characterised as torture. Similarly, the Irish Constitution is plainly relevant to theissue of prison conditions. Indeed, it is noteworthy that more than 40 years ago, in thespecific context of prison conditions, it had been decided that, in principle at least, ifprison conditions were so bad they could, in an extreme case, render a detention unlawfuland require the release of the prisoner (State (McDonagh) v. Frawley [1978] I.R. 131). Acitizen can be deprived of liberty in accordance with law, but a law which itself upholdsand is consistent with the Constitution and the values it espouses. However, to assert anunenumerated right to freedom from inhuman or degrading treatment in those terms is toargue backwards from a desired result, rather than forward from the text of theConstitution, and what is to be deduced from it, and the jurisprudence of the Irish courtsinterpreting it.
9. Advocate General Hogan, writing extrajudicially, has pointed out that it is oftenunnecessary to speculate on the existence of an unenumerated right when there areclearly enumerated rights addressing the same subject. For example, the unenumeratedright of bodily integrity could be said to be encompassed or capable of being deducedfrom the express guarantee in Article 40.3.2° that the State is obliged to vindicate the“person” of the citizen (see Hogan, “Unenumerated personal rights: the legacy of Ryan vThe Attorney General” in Cahillane, Gallen and Hickey (eds.), Judges, Politics and theIrish Constitution (Manchester University Press, 2017), pp. 49-63. Others have expandedupon this theme. See, for example, Kenny ‘Recent Developments on the Rights of thePerson in Article 40.3: Fleming v Ireland and the Spectre of Unenumerated Rights’(2013) 36(1) D.U.L.J. 322, and Doyle and Hickey, Constitutional Law: Text Cases andMaterials (2nd ed., Clarus Press, 2019), Chapter 15.Page 4

10. The right of the person, as it has been described, clearly entails more than a prohibitionof physical intrusion. Indeed, both the civil and criminal law of assault, which is one of theways in which the State gives effect to the guarantee to protect the person of the citizen,is not limited to physical touching of the body of the person, and there is no reason toconsider the enumerated right as limited in this way. On the contrary, it is, I think,possible to consider that it goes further, and protects the personal space andpsychological well-being of the individual. It is clearly implicated when a person isconfined by the State in cramped overcrowded and unsanitary conditions with littlepossibility of exercise. In understanding the extent of the right of the person, it is, I think,useful to have regard to the right of privacy, identified in McGee v. The Attorney General[1974] IR 284 as a right deduced from a series of enumerated rights and the socialorder contemplated by the Constitution. Privacy obviously has a physical element, butalso clearly extends beyond it, and it contains aspects of autonomy. When both rights areread as they must be, which is in the light of the value of dignity espoused in thepreamble to the Constitution, it is not difficult to understand why torture, or inhuman ordegrading treatment, or indeed severely substandard prison conditions, can be aninfringement of the constitutional rights of the individual. The fundamental rights,including the personal rights contained in Article 40, were adopted “so that the dignityand freedom of the individual may be assured” and must be interpreted in that light.
11. When the Constitution is viewed as a whole, then it seems clear that the guarantee ofprotection of the person in Article 40.3.2° must mean that, while the State may lawfullydeprive a citizen of liberty in accordance with law, it may not do so by a means which, farfrom assuring the dignity of the individual, falls below a standard that could be consideredminimally acceptable. It is not suggested here that the conditions in which the appellantwas held can be justified or excused either by exigency or emergency or somecontravening weighty consideration.
12. Accordingly, I agree with MacMenamin J. that the constitutional rights of the appellant,and in particular the right of the person protected by Article 40.3.2° were breached in this case.

 

Akhtar -v- The Minister for Justice and Equality

[2019] IEHC 411

v. the separation of powers

35. The sovereign power of the State to control the entry, residency, and exit of foreign nationals is an executive one that can be controlled by legislation; see, for example, Keane J in Laurentiu v Minister for Justice [1999] 4 IR 26 (at 93).

36. Mr Akhtar argues that the executive power of the Minister to grant or withhold a visa to a person who holds a work permit issued by the MJEI is significantly controlled by the Act of 2006.

37. In doing so, he relies in his written submission, a little eccentrically it might be said, on the principle of British constitutional law that the enactment of a statute empowering the Crown to do a certain thing which it might have done in the exercise of the prerogative, places the prerogative power in abeyance while the statute remains in force; A.G. v De Keyser’s Royal Hotel Ltd [1920] AC 508 (per Lord Atkinson at 539-40).

38. Our own constitutional dispensation is somewhat different. Parliament is not sovereign. We recognise a separation of powers. Notwithstanding the express terms of Article 49 of the Constitution, prerogative rights did not survive its adoption, save to the extent that they may be considered an inherent attribute of the sovereignty of the State; Byrne v Ireland [1972] IR 241; Webb v Ireland [1988] IR 353; and Howard v Commissioners of Public Works [1994] 1 IR 101.

39. Nothing turns on the question because, in the course of oral submissions, counsel for Mr Akhtar turned for support instead to the decision of O’Donnell J for the Supreme Court in NHV v Minister for Justice and Equality [2018] 1 IR 246. That case concerned a successful challenge to the constitutionality of s. 9(4) of the Refugee Act 1996, which imposed an absolute prohibition on an asylum applicant seeking, or engaging in, work. One of the arguments raised in defence of the section was that the prohibition it contained was not necessarily absolute in its effect because the Minister retained the inherent power to grant permission to work to any asylum applicant as part of the broad executive power to control the residence of foreign nationals in the State. O’Donnell J rejected that argument in the following terms:

‘[11] Nor do I think that any inherent executive power could avail the applicant here. The control of entry to the State by non-citizens, and the range of activities in which they can engage while here, was as a matter of history a core function of the executive power. The question as to what extent that executive power can remain if legislation seeks to control the area is an interesting one rarely debated. But even if there remains a residual executive discretion after legislative regulation, it could not be operated to effect the repeal or amendment of a section of legislation which explicitly provided that an asylum seeker should not seek or obtain employment while in the refugee system. It was after all decided as long ago as 1610 in the Case of Proclamations (1610) 12 Co. Rep. 74 that the royal prerogative did not extend to repealing or overriding any legislation, and the same must be capable of being said, a fortiori, of the executive power in a constitution which recognises a separation of powers.’
40. Coming at the same question from a slightly different angle in Olakunori (a minor) & Ors v Minister for Justice & Equality [2016] IEHC 473, (Unreported, High Court, 29th July, 2016) (at par. 42), Humphreys J observed ‘in immigration matters, which are classically at the core of the executive power of a State, there must be a wide discretion vested in the decision-maker in the absence of clear statutory provisions to the contrary….’
41. In my view, Mr Akhtar faces two insurmountable obstacles in seeking to rely on those authorities, one legal and one factual. The insurmountable legal obstacle is that, as I have already found, there is no requirement under the Act of 2006 that the MJEI be satisfied that the foreign national concerned has the appropriate level of experience required for the employment to which the work permit relates. It follows that, when, in the exercise of his broad executive power to control immigration, the Minister requires a foreign national with a work permit to establish in order to obtain a visa that he or she does have the appropriate level of experience for that employment, there is no question of the Minister operating to effect the repeal or amendment of any section of the Act of 2006. Differently put, there is no clear statutory provision in the Act of 2006 that operates to curtail or constrain the exercise of the wide discretion vested in the Minister in the exercise of his executive power.

42. The insurmountable factual obstacle that Mr Akhtar faces is his failure to disclose for the purpose of these proceedings the information (and documentation, if any) concerning his work experience that was provided to the MJEI in accordance with s. 6 of the Act of 2006 when the application for a work permit was made (whether by Mr Akhtar or his proposed employer), and to which the Minister would have had regard, insofar as it was considered relevant to do so, under s. 11(1)(c) if that Act. Thus, not only is there no basis to conclude that the MJEI was required to be satisfied that Mr Akhtar had the appropriate experience, but there is no basis to conclude that there was any, or any sufficient, material before the MJEI that would have allowed him to be so, had he nonetheless embarked on that consideration.

Roche -v- Roche & ors

[2009] IESC 82 (15 December 2009)

UDGMENT of Murray C.J. delivered on the 15th day of December 2009
The primary issue in this case is whether the constitutional protection afforded to the life of the unborn as provided in Article 40.3. of the Constitution extends to three fertilised embryos which have been frozen and stored in a clinic.

The embryos came into being in the following circumstances. The appellant, who is the plaintiff in the proceedings, and her husband, the first named respondent, were married on the 5th March 1992. In 1994 they sought fertility advice from their general practitioner and were referred to the National Maternity Hospital, Holles Street, Dublin. Investigations in that hospital did not indicate any particular fertility problem. After care and treatment in the hospital the appellant became pregnant in January 1997 and a son was born in October 1997. The course of events which then led to the creation of the three frozen embryos the subject of these proceedings were summarised in the judgment of the learned High Court Judge on this issue as follows:

“Shortly after the birth of her son the plaintiff underwent surgery for an ovarian cyst and she lost two thirds of her right ovary. She was referred back to the National Maternity Hospital in Holles Street in 1999. On the 5th May, 2000 she underwent another laparoscopy. She had fertility treatment in 2001 at Holles Street which proved to be unsuccessful. In July 2001 the plaintiff and the first named defendant were referred for IVF treatment. They elected to have the treatment at the Sims Clinic (the fourth named defendant). Their first appointment at the fourth named defendant’s clinic was in October 2001. They returned to the clinic in January 2002. On the 29th January, 2002 the plaintiff signed a document entitled “Consent to Treatment Involving Egg Retrieval”. In this document the plaintiff agreed to the removal of eggs from her ovaries and a mixing of the eggs with the sperm of the first named defendant. On the same date the plaintiff and the first named defendant signed a document entitled “Consent to Embryo Freezing”. In that document it was stated, inter alia, “we consent to the cryo preservation (freezing) of our embryos and take full responsibility on an ongoing basis for these cryo preserved embryos.” The first named defendant signed a document entitled “Husband’s Consent” in which he acknowledged that he was the husband of the plaintiff and consented to the fertilisation of the plaintiff’s eggs and the implantation of three embryos. He also acknowledged in that document that he would become the legal father of any resulting child. On the same date the first named defendant signed a “Semen Collection Form” confirming that the sample produced was his. On the 1st of February, 2002 the plaintiff signed a form entitled “Consent to Embryo Transfer”. In this she agreed to the placing in her uterus of three embryos and the administration of any drugs or anaesthetics that might be found necessary in the course of the procedure.
As a result of the IVF treatment six viable embryos were created. Three were inserted in the plaintiff’s uterus and the remaining three were frozen. The plaintiff became pregnant as a result of the transfer of the three embryos and gave birth to a daughter on the 26th of October, 2002.

Towards the end of the plaintiff’s pregnancy following IVF treatment, marital difficulties arose between the plaintiff and the first named defendant which resulted in the first named defendant leaving the family home. He had entered into a second relationship. An attempt at reconciliation failed and the parties eventually entered into a judicial separation although they still remain legally husband and wife. The plaintiff wishes to have the three frozen embryos implanted in her uterus and the first defendant does not wish this to happen and does not wish to become the father of any child that might be born as a result of the implantation of the frozen embryos. ”

It is in these circumstances that the issues have arisen as to whether the appellant, as she claims, is entitled to have the frozen embryos implanted in her womb against the wishes of her estranged husband who does not wish to become the father of another child.
As indicated above the appellant has asserted that since the embryos enjoy the protection of Article 40.3.3., that provision requires that their right to life be vindicated by permitting her to have them implanted in her womb.
Article 40.3.3.
This article states:

“The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”
The Irish language version states:
“3°Admhaíonn an Stát ceart na mbeo gan breith chun a mbeatha agus, ag féachaint go cuí do chomcheart na máthar chun a beatha, ráthaíonn sé gan cur isteach lena dhlíthe ar an gceart sin agus ráthaíonn fós an ceart sin a chosaint is a shuíomh lena dhlíthe sa mhéid gur féidir é.”
The language of that provision mirrors to a significant extent the general protection afforded by Article 40.3.1. to the personal rights of the citizen.
That provides (in the English language version, nothing arising from a comparison of the two language versions):

“The State guarantees in its laws to respect, and , as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.”
Subsection 3 must be interpreted in the context of Article 40 as a whole and in particular of 40.3.1.
Article 40, under the heading ‘Fundamental Rights’ and the subheading ‘Personal Rights’, commences in its first subsection by stating that:

“All citizens shall, as human persons, be held equal before the law.”
Thus Article 40, as adopted in 1937, addresses constitutional guarantees for the personal rights of human persons.
That is not to say that Article 40.3, before it was amended following a referendum, in 1983 did not necessarily afford constitutional protection to life before birth, and there were views expressed in public debate, particularly that related to the referendum, that it did, reference often being made to the obiter dictum of Walsh J. in McGee v. Attorney General [1974] 1 I.R. 284 at 312 where he stated:

“On the other hand, any action on the part of either the husband or the wife or of the State to limit family sizes by endangering or destroying human life must necessarily not only be an offence against the common good but also against the guaranteed personal rights of the human life in question.”
Indeed that passage was at the time referred to by some as a reason for advocating that the then proposed constitutional amendment was unnecessary.
Whatever the merits of that view the Eighth Amendment to the Constitution inserted subsection 3 of Article 40.3. and effectively extended in express terms to the “life of the unborn” or “mbeo gan breith chun a mbeatha” the constitutional protection for the personal rights of citizens referred to in Article 40.3.1. It does contain a specific reference to the equal right to life of the mother and I will address that proviso in due course.

In my view the subsection 3 of Article 40.3. is clear in its intent. It is intended to protect human life before birth. The key words in the English version are “life of the unborn” and in particular, in my view the much more apt expression, “mbeo gan breith chun a mbeatha (beo in its genitive case). I think “ceart na mbeo gan breith chun a mbeatha” can be fairly interpreted as meaning the right of life not yet born to live, or to its life.

The provision does not refer to the right to life of the unborn ‘child’ or ‘foetus’. No doubt because that could have compromised the meaning of life by raising questions as to when human life, after it had commenced, whether on conception or on implantation, could be characterised or defined as that of the child or the foetus.

Thus, Article 40.3.3. focuses on human life before birth without exception. It did not purport to confer a right but to protect a right acknowledged to exist. It commences with the words “The State acknowledges the right to life …” and sought, in a positive rather than prohibitive form, to protect that life while at the same time it made clear that the provision should not be interpreted as in any way undermining the right to life of the mother. As I said, I will address that particular proviso in due course, but for the moment, suffice it to say, in my view the provision seeks to acknowledge that human life before birth and after birth, with the specific reference to the life of the mother, are worthy of equal value and respect.

So far as the wording in the English version is concerned it refers to “right to life of the unborn” and if the English language permitted it, it might have fitted more readily with the Irish language version if it referred to “The right to life of the unborn life” but that would have been, in English, both an inelegant and tautologous form of wording for insertion in the Constitution.

In the course of the appeal it was argued that this provision of the Constitution should be interpreted in the light of the mischief it was intended to address including the statutory history of the law on abortion.

It is undoubtedly the case that the prohibition on abortion or any weakening of the existing statutory provisions on the prohibition of abortion was a central part of the debate leading up to the amendment. At that time the law of abortion was governed only by sections 58 and 59 of the Offences Against the Person Act 1861 under which the procuring of a miscarriage was a crime. In that context, it is notorious that in public debate the strength or efficacy of that prohibition, as argued by some involved in the debate, had been weakened by a decision in a case before the English courts in 1939 namely R v. Bourne [1939] 1 KB 687. The dictum in that case was never followed in this country but nonetheless was apparently used to raise concerns as to how the statutory law might be interpreted in this country.

If the objective at the time had been to just address some perceived statutory frailties that could have been achieved more readily and easily by the adoption of legislation. But the public debate transcended that and the object obviously was, as the result demonstrates, to place in the Constitution a protection for human life before birth. Of course it is also notorious that another important part of the public debate was provoked by the decision of the Supreme Court in the United States in the case of Roe v. Wade 410 US 113 (1973) which found that in certain circumstances a pregnant woman had the right to have an abortion. The fear, on one side of the debate, was that the courts in this country, and specifically this Court, might at some point in the future decide that such a right resided in our Constitution.

In any event the response to the wide ranging debate which took place at the time transcended legislative considerations and the issues were addressed at constitutional level.

Having regard to the terms of Article 40.3.3. I do not consider that the Act of 1861 or any possible interpretation of it is particularly important for the interpretation of that Article.

What is important in this context is not so much the mischief that was being addressed as the manner in which it has been addressed in the terms of the constitutional provision in issue.

Article 40.3.3. is not prescriptive or prohibitive in its terms.

A prescriptive and prohibitive form of amendment could have been opted for. There was already a parallel for that in the Constitution concerning the prohibition (since deleted) on divorce which provided: “No law shall be enacted providing for the grant of dissolution of marriage”. Instead of addressing abortion as such by a prohibitive amendment such as ‘no law shall be enacted permitting an abortion to be performed’ or the like, reference to the specific mischief, so to speak, was omitted and the provision turned to focus on the positive protection of human life before birth.

In my view the provision of the Constitution was intended to embrace human life before birth without exception and to extend to it, in express positive terms, the constitutional protections available to life after birth already provided for in Article 40.3.1 (cited above).

Of course the issue of abortion is a very controversial subject in Ireland and in many countries not only on whether it should be permitted at all, but if permitted, the circumstances and time when that may be allowed. Article 40.3.3, as adopted by the people in a referendum, is what applies in this country.

The really important question remains, namely, as to whether the frozen embryos in this case must be considered by this Court as constituting human life within the meaning of the provision.

In the course of the appeal it was suggested that Article 40.3.3. was not intended, and it should not be interpreted, as applying to the frozen embryos in this case by reason of the fact that the Article only contemplated life in the womb. Accordingly, before going on to address the fundamental question as to whether the frozen embryos can be determined by this Court to have the qualities of human life within the meaning of Article 40.3.3, I propose to address this discrete point.

In support of that argument reference was made to the proviso in the article, namely, “… with due regard to the right to life of the mother, ….”

Of course the gestation and birth of a child is inextricably and humanly linked to the mother and its development in the womb.

In vitro fertilisation and the creation of embryos, fertilised ova, outside the womb was probably not contemplated at the time. It is another notorious fact that part of the public debate on these matters, as indeed it had often been in the past, included concern as to whether the right to life of the unborn might, in certain circumstances, take precedence over the right to life of the mother. The kind of question posed was whether a doctor faced with a specific constitutional protection for the life of the unborn would be entitled to give appropriate treatment for a life-threatening condition of the mother when that would result in the death of the foetus. Obviously, having regard to the terms of the provision, all human life is considered of equal value. Absent any specific reference in the Constitution to the right to life of the mother, even though her right to life as well as all other persons are covered by the general provisions of Article 40.3.1. and 2, the proviso in subsection 3 serves to make a clear statement that the right to life of the mother cannot be treated as having a lesser value than that of the foetus. It had, in my view, no other purpose.

It is still of course the case, even with in vitro fertilisation, that if that statement concerning the right to life of the mother was desirable or necessary then it is equally so now. Even with in vitro fertilisation, and the associated processes, the evolution post-implantation of the embryo to the birth of a child remains inextricably linked with the mother as indeed it is in the normal process of conception, implantation and birth.

As Hederman J., stated, in Attorney General v. X [1992] 1 I.R. at 72, when considering Article 40.3.3:

“The State’s duty to protect life also extends to the mother. The natural connection between the unborn child and the mother’s life constitutes a special relationship. But one cannot consider the unborn life only as part of the maternal organism.”
In short, that statement or proviso concerning the equal right to life of the mother is there to ensure respect and protection for her rights in certain circumstances and cannot logically, in my view, be interpreted as intending to remove protection from human life because it is outside the womb or to devalue the equal right to life of the unborn because it is outside the womb. Therefore, I cannot accept the argument that simply because the embryo exists outside the womb that it is excluded from the protection of Article 40.3.
If, and I accept it is a very important if, the frozen embryos fell to be considered as having the qualities of human life then, inevitably in my view, they would fall under the rubric of the constitutional provision. Outside the womb, they have the same qualities as they would have in the womb. That is why they are viable embryos for implantation with a view to the birth of a child. It would appear that the present state of medico-biological science is such that for the frozen embryos to advance towards birth, implantation in the womb is required. Whether that science will develop further so as to permit embryos evolve further outside the womb may be a matter for speculation.
Human Life and Article 40.3.3.
We know that human life begins in the womb. That is not in issue. I speak in the context of a normal pregnancy following what is referred to as the act of procreation, of sexual intercourse between a man and a woman. The question is: at what point does human life begin; fertilisation or implantation? Again I suppose it could be said that there was a broad consensus among all disciplines that human life begins at least at implantation of the embryo in the womb or not long thereafter.

Of course courts take judicial notice, without having to expressly say so, of obvious and accepted truths concerning the nature of the world we live in. Thus a party, in appropriate proceedings, would not have to prove that a foetus of three months constituted human life no more than a party would be required to prove the existence of the law of gravity. The issue here has an altogether different dimension. There is no generally accepted truth or scientific dogma as to precisely when human life begins.

Debate and discourse as to when human life begins has for very many decades, and indeed long before that, focused, though not always exclusively, on whether human life begins at conception or at implantation.

Inevitably, this featured as part of the public debate on the constitutional amendment but the provision is resoundingly silent as to when human life should be deemed to begin for the purposes of enjoying its protection.

I think it is safe to assume that at the time when the proposed amendment to the Constitution was being debated and its form being decided by the Oireachtas that there was no clear view or consensus on the question of when human life begins, or perhaps more important, when it can be deemed or treated as having begun.

The status of the embryo, that is to say its moral status, and specifically the issue as to when human life begins, continues to be debated and discussed as part of a virtually world wide discourse in diverse fora including the most prestigious universities and halls of learning. The many facets of the various sides to that debate, and there are cogent arguments from every perspective, is manifest from the evidence given by the expert witnesses in the High Court. The range of views expressed or referred to in that evidence underscores the absence of any broad multidisciplinary consensus as to precisely when life begins and in particular as to whether it should be considered as beginning at conception or implantation, which are the two reference points with which we are concerned for present purposes.

However, I think it can be said that the human embryo is generally accepted as having moral qualities and a moral status. However else it may be characterised, the fertilisation of the ovum is the first step in procreation and contains within it the potential, at least, for life. It has present in it all the genetic material for the formation of life. Its creation and use cannot be divorced from our concepts of human dignity.

The Council of Europe Convention on Human Rights and Biomedicine with a view to, inter alia, preventing the misuse of biology in medicine which may lead to acts endangering human dignity prohibits, in Article 18, the creation of human embryos for research purposes. Article 3 of the Charter of Fundamental Rights of the European Union prohibits the use of embryos for the cloning of human beings as does the United Nations Declaration on Human Cloning. Such provisions and the fact that many countries regulate and protect the manner and circumstances in which in vitro embryos may be created and dealt with reflect the recognised moral status of embryos as being inextricably associated with human dignity. There is inevitably within the ambit of that moral appreciation of the embryo much debate particularly concerning the parameters of regulatory measures and what should be permitted and what should be prohibited.

The moral status of embryos and the respect or protection which society may feel they are owed is a different issue to the question posed, as to when life begins, and I do not propose to comment on it further for the purposes of this judgment.

One comes back to that fundamental issue in this case; namely whether this Court should consider that the frozen embryo is human life within the meaning of Article 40.3.3.

In the course of the appeal, counsel for the appellant acknowledged that the issue is polycentric. That is to say it is an issue which must be viewed from many standpoints, moral, philosophical, theological and scientific. It is an issue which also engenders passionate views on one side or the other in virtually all disciplines.

I do not consider that it is for a court of law, faced with the most divergent if most learned views in the discourses available to it from the disciplines referred to, to pronounce on the truth of when precisely human life begins.

Absent a broad consensus or understanding on that truth, it is for legislatures in the exercise of their dispositive powers to resolve such issues on the basis of policy choices.

The learned trial Judge aptly quoted from the report of the Constitution Review Group of the Oireachtas published in July 1996 to the following effect:

“Definition is needed as to when the ‘unborn’ acquires the protection of the law. Philosophers and scientists may continue to debate when human life begins but the law must define what it intends to protect.”
In my view that sums up the role of the Oireachtas in relation to this matter as the organ of State with at least initial responsibility for the protection and regulation of constitutional rights.
Therefore, in the context of this case, there is uncertainty or no consensus as to when human life begins. The choice as to how life before birth can be best protected, and therefore the point which in law that protection should be deemed to commence, is a policy choice for the Oireachtas having due regard to the provisions of the Constitution. It is one which falls to be made having taken into account all the factors and strands of thought which it considers material and relevant.

The courts do not, in my view, have at their disposal objective criteria to decide this as a justiciable issue. Issues are not justiciable before the courts where there is, as Brennan J., put it in his opinion in Baker v. Carr 369 U.S. 186 (1962), “ a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non judicial discretion; …” That is the position in which the Court in this case is placed regarding the question of when life begins. The onus rests on the Oireachtas to make the initial policy determination so as to define by law the precise point at which “the life of the unborn” begins to enjoy constitutional protection. The other alternative is an amendment to the Constitution.
Conclusion on this Issue
Accordingly in my view it has not been established, by the appellant, and it is not a justiciable issue for this Court to decide, that the frozen embryos constitute “life of the unborn” within the meaning of Article 40.3.3.
Contract and Implied Consent
I now turn to make a brief reference to some other issues which were raised by the appellant in the appeal. In the appeal counsel for the appellant relied on three documents as supporting her contention that the first named respondent had expressly or impliedly consented to the implantation of the three embryos. The first document is one signed by the appellant and relates to a consent to treatment involving egg retrieval. Then, on the reverse side of that document there is a consent form to the treatment which is headed the ‘Husband’s Consent’ and is signed by the first named respondent. Subsequently the appellant and the respondent signed a third document which was a consent to embryo freezing. I agree with the conclusions of Denham J., Geoghegan J., and Hardiman J., that the appellant has not established that there was any contractual engagement between these parties obliging the husband to consent to the implantation of the frozen embryos nor was there otherwise an implied consent to do so.
Estoppel
In the particular circumstances thus of this case and for the reasons set out in her judgment I agree with Denham J., that the plaintiff is not entitled to succeed in her claim that the first named responded is estopped from refusing his consent to implantation. I also agree with Denham J., that there may be circumstances, such as where a woman has no children (although not necessarily just in such cases) and her only reasonable prospect of bearing a child is the implantation of embryos, could be entitled to such implantation notwithstanding the absence of the consent of the man concerned to implantation, although he had consented to the embryos being frozen.
Conclusion
As the appellant has not succeeded on any of the grounds of appeal the appeal should be dismissed.

 

Judgment delivered the 15th day of December, 2009 by Denham J.

1. The central issue in this case is whether three embryos, which have been frozen and stored in a clinic, are the “unborn” and as such protected by Article 40.3.3° of the Constitution of Ireland.

2. This is an appeal brought by Mary Roche, the plaintiff/appellant, referred to in this judgment as “the plaintiff”, from the decision of the High Court refusing her claim for the release to her of three frozen embryos for implantation.

3. The plaintiff was married to Thomas Roche, the first named defendant/respondent, referred to in this judgment as her husband, in 1992.

4. The plaintiff and her husband had fertility difficulties, but, after some treatment, in 1997 the plaintiff and her husband had their first child, a son, born to them.

5. Subsequently, further fertility issues arose and in 2002 the plaintiff had in vitro fertilisation treatment, “I.V.F.”, at the Sims Clinic Ltd., the fourth named defendant/respondent, “the Clinic”. Six embryos resulted. Three of the embryos were implanted in the plaintiff’s uterus and she became pregnant. The remaining three embryos were frozen and placed in storage with the Clinic, and are the three embryos in issue in this case.

6. A number of documents were signed in 2002 by the plaintiff and her husband. These documents will be considered later in the judgment.

7. As a result of the implantation of the embryos in 2002, the plaintiff gave birth to a second child, a daughter, in October, 2002.

8. Shortly after the birth of their daughter, the plaintiff and her husband separated. Years later the plaintiff requested that the three frozen embryos be released to her, as she wishes to have them implanted in her uterus. The Clinic refused to release them in the absence of consent from her husband, which was refused. Thus the plaintiff has brought these proceedings.

9. In January, 2006 the second, third and fourth named defendants/respondents, the doctors and the Clinic, were released from any further participation in the proceedings, unless required, on their undertaking to make all reasonable efforts to preserve the three embryos pending the final determination of these proceedings. The Attorney General was joined as a notice party.

10. This case raises both private and public law issues. (a) The private law issue was described as a contractual matter. (b) The public law issue is a constitutional issue, as it is the plaintiff’s case that the frozen embryos constitute the “unborn” within the meaning of Article 40.3.3˚ of the Constitution of Ireland, and that the State is obliged to facilitate their implantation.
High Court
11. On the 18th July, 2006, the High Court held: (i) that there was no agreement between the plaintiff and her husband as to what was to be done with the frozen embryos in the circumstances that have arisen; and (ii) that her husband had not entered into an agreement which required him to give his consent to the implantation of the three frozen embryos.

12. On the 15th November, 2006, the High Court declared that the frozen embryos were not the “unborn” within the meaning of Article 40.3.3˚ of the Constitution. The learned High Court judge held that it was a matter for the Oireachtas to decide what steps should be taken to establish the legal status of embryos in vitro.
Appeal
13. The plaintiff has brought this appeal against both judgments and orders of the High Court. In essence, the plaintiff’s grounds of appeal are that the High Court erred, inter alia:-

(i) in finding that there was no agreement as to what would happen to the frozen embryos in circumstances where the marriage had broken down;
(ii) in finding that there was no evidence that the husband gave his express consent to the implantation of the embryos;

(iii) in finding that it was not the presumed intention of the parties that the embryos would be implanted in circumstances in which the first implantation procedure had been successful and their marriage had broken down;

(iv) in finding that a term of the contract requiring that the frozen embryos be implanted could not be derived from the nature of the agreement between the parties;

(v) in finding that the husband was not estopped from denying he had consented to the transfer of the embryos;

(vi) in his findings regarding the purpose of the Eighth Amendment to the Constitution;

(vii) in finding that there was no evidence to establish that it was ever in the mind of the People voting on the Eights Amendment that “unborn” meant anything other than foetus or child in the womb;

(viii) in finding (at least by implication) that “unborn” in Article 40.3.3° meant foetus or child in the womb exclusively;

(ix) in finding that the clear purpose of the Eighth Amendment was to deal with the issue of termination of pregnancy and with that issue alone, whereas it was intended to confer positive rights and protection to the unborn above and beyond the issue of abortion per se;

(x) in finding that the Court was not concerned with the question of when life begins;

(xi) in finding that no evidence was adduced to enable the Court to hold that the word “unborn” in Article 40.3.3° includes embryos outside the womb;

(xii) in finding that the word “unborn” in Article 40.3.3° does not include embryos in vitro and therefore does not include the three frozen embryos in this case;

(xiii) in finding that the plaintiff was not entitled to the return of the embryos to her uterus by virtue of Article 41 of the Constitution;

(xiv) in holding that that learned High Court judge could not determine when life began for the purpose of the word “unborn” while (a) disregarding the weight of the scientific evidence on that question advanced before the court, and (b) holding (at least by necessary implication) that life began at implantation for the purpose of Article 40.3.3˚.

14. The Attorney General has cross-appealed from so much of the order as awarded to the plaintiff and her husband their costs, on the grounds that the general rule should be applied, that costs should follow the event, and that there were no exceptional circumstances arising in the case so as to exclude the general rule on costs.
Submissions
15. Oral and written submissions were made on behalf of the plaintiff by Ms. Inge Clissman S.C. and Mr. Gerard Hogan S.C..

15.1 On the private law issue, in essence, it was submitted that the husband consented to the I.V.F. procedure in 2002 when he executed the necessary consent form and his consent is irrevocable as against the plaintiff. It was submitted that this is underscored by the fact that the embryo transfer forms required only the wife’s consent and did not require his consent, and that his consent was not formally sought although he was present at the implantation. It was submitted that in any event he was precluded and estopped by his conduct from denying or revoking his consent in circumstances where he allowed his wife to go through the I.V.F. procedure, and that he is also precluded from asserting a right to revoke that consent or to veto the future use of the embryos. It was submitted that the learned trial judge erred in law in holding that the husband’s consent was either required or (in the alternative) that he was entitled, in the circumstances, to refuse to give such consent.

15.2 On the constitutional issue it was submitted that:- (a) The evidence overwhelmingly supported the view that the embryos constitute unborn human life. That there are powerful arguments in favour of that view, and that it has been endorsed by a significant segment of the medical and scientific community, even if that community is divided on the question. (b) Given this state of affairs, it was submitted that the embryos should be regarded as embryonic human life and, hence, the “unborn” for the purpose of Article 40.3.3˚. It was submitted as unlikely that the People intended to protect only that unborn life that was conclusively established as such or an alternative (and equally) arbitrary date, e.g. implantation. (c) So far as the argument advanced by the husband to the effect that he should not have paternity imposed on him is concerned, this turns on whether the embryos constitute unborn human life. If they do, then he is already the father of these unborn human lives. (d) If this Court concludes, as submitted it must in light of the evidence adduced, that the embryos constitute the “unborn” for the purposes of Article 40.3.3˚, then this Court must vindicate that right by taking all practicable steps to protect that right. It was submitted that the Court should direct the Clinic to facilitate the plaintiff in having the embryos inserted in her uterus.

Paragraph 49 of the plaintiff’s submissions stated pithily the essence of her argument on this issue. In answer to the question as to whether a frozen embryo constitutes the unborn it was submitted:-

“49. The word “unborn” (“beo gan breith”) is, unfortunately, not defined. The literal translation of the Irish text may be rendered as “life not born”. It is submitted that the phrase refers to all human life which is capable of being born. For this purpose the Court does not have to pronounce on questions as to when human life begins. It is sufficient for present purposes to say that where (at least) a large body of medical and scientific opinion consider that embryos do constitute such unborn human life, that is sufficient for this purpose. The People must be taken to have wished to defend and protect such life, even the medical community is divided on the question as to when such life actually starts. Had the People wished such protection to commence from a later (and, it is submitted, an essentially arbitrary) date such as implantation, Article 40.3.3 would surely have said so.”
16. The submissions on behalf of the husband were advanced by Mr. John Rogers, S.C. and they included the following.
16.1 As regards the private law issue, what was termed the contractual issue, it was submitted that it was the husband’s position that there was no express or implied consent on his part to the transfer of the three frozen embryos to the plaintiff’s uterus. Should this Court hold otherwise, it was submitted that the withdrawal of consent is entirely admissible.

16.2 On the constitutional issue, on the meaning and status of the term “unborn” for the purposes of Article 40.3.3˚, it was submitted on behalf of the husband that the concept of the unborn must involve the capacity or potential to be born and this capacity arises only upon the occurrence of implantation. Article 40.3.3˚, it was submitted, does not support the plaintiff’s case so as to confer on a pre-implantation embryo a constitutional right to life.

17. Submissions, written and oral, were made on behalf of the Attorney General by the Mr. Donal O’Donnell, S.C. and Mr. Brian Murray, S.C..

17.1 On the private law issue, counsel on behalf of the Attorney General brought the Court’s attention to authorities in other jurisdictions which stressed the primacy of contractual agreements in this area.

17.2 On the constitutional issue, it was submitted that the frozen embryos in this case do not constitute the “unborn” within the meaning of Article 40.3.3˚ of the Constitution, with the consequences that the State is not obliged to facilitate their implantation. Defining the unborn so as to include pre-implantation embryos, as submitted on behalf of the plaintiff, would contravene the text, purpose, and spirit of Article 40.3.3˚. It was submitted that this article was inserted into the Constitution for the purpose of prohibiting the termination of pregnancies. A consideration of the intention of the People in enacting the Eighth Amendment suggests that it did not confer constitutional rights on the pre-implantation embryo. It was submitted that the plaintiff’s appeal ought to be dismissed; that dismissal of the appeal would leave to the People and their representatives the capacity to resolve the question of the appropriate treatment of such embryos in the light of modern conditions.
Current situation of the embryos
18. On the 24th June, 2005, the Clinic wrote to the plaintiff and her husband pointing out that they had received no payment for the storage of their embryos since June, 2003. The Clinic wrote that the failure of payment, despite a request for payment, “is a breach of unit policy which renders our implied storage contract null and void.” The Clinic stated that as an act of altruism it would maintain the integrity of the embryos for another year but pointed out that neither the Clinic nor its agents had any further responsibility for the embryos. The stored embryos may be removed from the storage area and transferred only with the consent of the plaintiff and her husband. The current situation is that the second and third named defendants and the Clinic have indicated that they will abide by the court order.
The Private law issue: Contract?
19. The first issue on this appeal is the private law matter, referred to as having a contractual aspect. Mr. Gerard Hogan S.C., for the plaintiff, argued that there was express consent by the husband to the implantation of the three embryos, or that there was implied consent, and/or that the husband is estopped from refusing to give his consent in the circumstances of the case.

20. There are three documents upon which this submission is grounded. I shall consider each of the documents in turn.

20.1 There is a document as follows:-

“Medical Programmes directed by:
Anthony Walsh, MD, MRCOG, MRCPI

David Walsh, MD, MRCOG

CONSENT TO TREATMENT INVOLVING EGG RETRIEVAL

Full name of Woman ..…[Mary Roche]…..

Address …………………….. [address given]

1. I consent to (delete/complete as applicable):

(a) Being prepared for egg retrieval.

[this is ticked]
(b) The removal of eggs from my ovaries with the aid of:

• laparoscopy

• ultrasound

[the term “ultrasound” is circled]

(c) the administration of any drugs and anaesthetics which may be found necessary in the course of the procedures;

[this is ticked]

(d) the mixing of the following (tick each column as required):

( ) of my eggs ( ) with sperm of my husband/partner

[both of the above are ticked]
( ) 3 eggs only ( ) all of my eggs

( ) anonymous donor’s eggs ( ) an anonymous donor’s sperm;

(e) the use of micromanipulation techniques

2. I have discussed with … [Dr Walsh] … the procedures outlined above.

I have been given information both orally and in writing about them.

3. I have been given a suitable opportunity to take part in counselling about the implications of the proposed treatment.

Patient’s signature …………… Date …………
[The plaintiff has signed the document and it is dated 29.01.02]

Doctor’s signature …………… Date …….……

[There is a signature and it is also dated 29.01.02]”

20.2 I have considered this document carefully. It is a type of form. It addresses the relationship between the two doctors, named at the top of the sheet, and the plaintiff. It is a consent form for the plaintiff in relation to the medical treatment being offered by the doctors. The husband is not a party to this form. The form addresses issues related to information for the plaintiff, and consent by the plaintiff to the medical procedures referred to. It is not a contract between the plaintiff and the husband. There is no question of an offer or acceptance or consideration, or an intention to create a legal contract, leading to an agreement between the plaintiff and her husband.
20.3 On the reverse side of that consent form is another consent form. The document is as follows:

“Medical Programmes directed by:
Anthony Walsh, MD, MRCOG, MRCPI

David Walsh, MD, MRCOG

HUSBAND’S CONSENT

1. I am the husband of …. [Mary Roche] …. and I consent to the course of treatment outlined above. I understand that I will become the legal father of any resulting child.

2. Any other remarks ……………..

Signature of husband ………… Date …………

[The document is signed by the husband and it is dated 29.01.02]

Full name in block capitals ……………………..

[Blank]

Address …………………………………………

[Blank]

______________________________________________________ ”

20.4 The above document is a consent form signed by the husband, consenting to the course of treatment to the plaintiff. It addresses issues relevant to the medical treatment of the plaintiff and relates to the relationship, in this context, between the doctors and the husband. It also states that he understands that he will become the legal father of any resulting child. There is no question of a contractual relationship being established by this document between the plaintiff and her husband. There is no offer or acceptance, nor consideration, nor intention to create legal relations. It is a medical consent form signed by the husband and it is relevant to his relationship with the medical programmes and personnel.
20.5 Also, on the 29th January, 2002, the plaintiff and her husband signed a third document. This was a consent to embryo freezing. The document states as follows:-

“Medical Programmes directed by:
ANTHONY WALSH, MD, MRCOG, MRCPI

DAVID WALSH, MD, MRCOG

CONSENT TO EMBRYO FREEZING

Full names of couple …. Mary & Thomas Roche….

Address ……………………..

[short address is given]

We consent to the cryopreservation (freezing) of our embryos and take full responsibility on an on-going basis for these cryopreserved embryos.

Patients Signatures ………………. Date …………..

……………… Date ………….

[The plaintiff and the husband signed the document and dated it 29.01.02]

Doctor’s signature ………………. Date ………….

[There is a signature which is indecipherable and it is dated 29.01.02]”

21. This is another consent form. Neither this form nor the two previous forms are documents drawn up and establishing a legal agreement between the plaintiff and her husband. They are consent forms presented by the Clinic to the plaintiff and to her husband and they relate to consent to actions taken by the Clinic. They are signed by the plaintiff and her husband, as medical consent forms. They were formulated to protect and assist the Clinic and the second and third named defendants, in the treatment programme.
22. The plaintiff and the husband underwent the treatment with the hope that they might have a child. The process resulted in six embryos. Three of the six embryos were implanted in the plaintiff’s uterus and subsequently a child was born to them. The remaining three embryos were frozen. It is the three surplus embryos which have given rise to these proceedings. The position of these three embryos was not addressed in the documents, except in the consent to embryo freezing form.

23. When the treatment commenced it would not have been known how many eggs would be fertilised, and the consent to embryo freezing related to any surplus embryos. The document is simply that – a consent to embryo freezing. It provided for the situation where, as in fact happened in this case, surplus embryos were produced. None of the documents are contracts creating or evidencing an agreement between the plaintiff and her husband expressing consent to the implantation of these three surplus embryos in the plaintiff’s uterus. I am satisfied that the fact that the husband consented to the treatment and to the freezing does not establish a consent so as to enable the plaintiff to avail of the surplus frozen embryos for implantation.

24. The consent given by the husband was to the treatment then planned for the I.V.F., and to the freezing of any surplus embryos.

25. The documents are forms which were provided by the Clinic to the plaintiff and her husband to obtain their consent to the procedures. They are in line with the guidelines of the Medical Council.

26. In “A Guide to Ethical Conduct and Behaviour”, “the Guide”, approved and published by the Medical Council in 2004, on the issue of informed consent, it was stated, in paragraph 17.1:-

“It is accepted that consent is implied in many circumstances by the very fact that the patient has come to the doctor for medical care. There are however situations where verbal and if appropriate written consent is necessary for investigation and treatment. Informed consent can only be obtained by a doctor who has sufficient training and experience to be able to explain the intervention, the risks and benefits and the alternatives.”
27. In the section of the Guide relating to reproductive medicine, paragraph 24.5 was headed “In-Vitro Fertilisation (I.V.F.)” and stated:-
“Techniques such as I.V.F. should only be used after thorough investigation has failed to reveal a treatable cause for the infertility. Prior to fertilisation of an ovum, extensive discussion and counselling is essential. Any fertilised ovum must be used for normal implantation and must not be deliberately destroyed.
If couples have validly decided they do not wish to make use of their own fertilised ova, the potential for voluntary donation to other recipients may be considered.”

The documents in this case are consistent with those guidelines, which envisaged that there should not be intentional destruction of embryos.
In the 7th Edition 2009 Guide to Professional Conduct and Ethics for Registered Medical Practitioners, published recently by the Medical Council, on the matter of assisted human reproduction the guidelines state:-

“20.1 Assisted human reproduction treatments, such as In Vitro Fertilisation (IVF), should only be used after thorough investigation has shown that no other treatment is likely to be effective. You should ensure that appropriate counselling has been offered to the patient and that the patient has given informed consent before receiving any treatment.
20.2 Assisted reproduction services should only be provided by suitably qualified professionals, in appropriate facilities, and according to international best practice. Regular clinical audit and follow-up of outcomes should be the norm.

20.3 If you offer donor programmes to patients, you must consider the biological difficulties involved and pay particular attention to the source of the donated material. Such donations should be altruistic and non-commercial. You should keep accurate records for future reference.”

Thus there is a change in these new guidelines in relation to the fertilised ovum. This illustrates the lack of regulation in the area. The situation in this case has arisen because of the creation of the three surplus embryos. These circumstances arise in other jurisdictions also. Some states have taken steps to prohibit the keeping of surplus embryos. Other states make specific provision in legislation for surplus embryos. There is no legislation in Ireland on the issue, nor any other form of regulation on assisted human reproduction.
28. The Report of the Commission on Assisted Human Reproduction, 2005, at p.XI, stated that:-

“The surplus embryos not used for immediate transfer may be preserved in a frozen state (cryopreservation) for further use by the couple who produced them, thereby avoiding the necessity of repeating the risky and uncomfortable procedure of ovarian stimulation. (Sperm may also be reserved in a frozen state. At present ova are not routinely frozen). If frozen embryos still remain after the couple has completed their treatment, the available options include: donation to another couple, donation for research and being allowed to perish.”
The Commission recommended that a regulatory body should be established by an Act of the Oireachtas to regulate assisted human reproduction and that appropriate guidelines should be put in place. Clearly it is a matter for the Oireachtas to regulate the sensitive and important area of reproductive medicine.
29. I am satisfied that the consent of the husband to the I.V.F. treatment and to the freezing of embryos was not an agreement to the implantation, years later, of the surplus frozen embryos. There was no agreement, between the plaintiff and the husband, as to the surplus embryos.

30. The absence of an express agreement, and the absence of regulation in the circumstances of the case, lead to the issue of an implied agreement being raised by counsel for the plaintiff.
Implied Agreement
31. I am satisfied that the facts of the case do not establish that there was an implied consent by the husband to the use, the implantation, of the surplus frozen embryos. Without going into the evidence in detail in this judgment, two extracts illustrate the situation. On Day 2 the plaintiff gave the following evidence:-

“Q. Can you tell the Court when do you recall the first discussion taking place about the embryos between yourself and your husband?
A. It was before he left the second time. I asked him: ‘What are we going to do with our frozen embryos?’ and his initial reaction was at the time: ‘We will destroy them’ and I said ‘We can’t do that, the clinic don’t allow that’. We didn’t speak of it again.”

Later it transpired from the plaintiff’s evidence that they had a further discussion on the frozen embryos in 2005. In her evidence on Day 2 the plaintiff was asked and answered as follows:
“Q. Did you have any discussion with your husband about seeking to recover the embryos yourself with a view to having them transferred and for the purposes of implantation?
A. I did bring up the question again, I think it was in 2005. We were at a mediation session regarding an issue and I brought it up again. I asked him what are we going to do with our three frozen embryos and his reply was that we would donate them and the money that we would get from the donation, we would give it to a children’s charity. My reply to him was ‘You want to sell our children?’ He said ‘You don’t get any money when you donate frozen embryos’, and that was the last discussion I had with him.”

It is clear that there was at no time an implied agreement, or consent by the husband, to the implantation of the surplus frozen embryos.
Estoppel
32. Counsel submitted that once one had regard to the sequence of events, the consent forms, the implantation of three embryos, the freezing of the three surplus embryos, in a situation where the husband knew that there may be surplus embryos, that the husband is precluded by his conduct from refusing to give consent to the implantation of the three surplus embryos in the plaintiff’s uterus.

33. This submission is made in relation to a situation where, I am satisfied, there was neither an express nor an implied consent or intent to have the three surplus embryos implanted. There was no intent, or advance decision, in relation to any surplus embryos. There is no question, therefore, of enforcing any earlier expressions of choice. As there was no decision on the matter there is no issue of withdrawal of consent arising for consideration.

34. The facts of a case are critical to any analysis of estoppel. In this case there was the I.V.F. treatment, the implantation of three embryos and the successful birth of a daughter. This was the plaintiff and her husband’s second child, a son having been born to them earlier. There was consent to freezing surplus embryos but there was no agreement or choice made as to what was to be done with any surplus embryos. There was no agreement between the plaintiff and her husband. The plaintiff and her husband are now separated. The plaintiff wishes to have the surplus embryos implanted, while her husband does not wish them to be implanted. In the circumstances of this case, on the facts and the law, no issue of estoppel arises.

35. The finding, set out later in this judgment, on the meaning of the term the “unborn” in Article 40.3.3, with reference to the three frozen embryos, is relevant to this analysis. I have been mindful of that finding in my decision.

36. There being no agreement between the parties, another approach advocated was that of the contemporaneous mutual consent test. The Court’s attention was drawn to In Re the Marriage of Witten III 672 N.W. 2M 768 (Iowa 2003), a decision of the Iowa Supreme Court where frozen embryos had been created by the parties with consent. However, the marriage broke down and then the wife wished to use the embryos but the husband did not. The Court held:-

“That brings us, then to the dilemma presented when one or both partners change their minds and the parties cannot reach a mutual decision on disposition. We have already explained the grave public policy concerns we have with the balancing test, which simply substitutes the court as decision maker.”
However, this approach is not relevant to, nor should it be applied in, this case as there was no initial agreement as to what should happen to the surplus embryos other than that they be frozen. Consequently no issue of change of mind arises. However, it is of interest to note the test applied by that Court. It held:-
“A better principle to apply, we think, is the requirement of contemporaneous mutual consent. Under that model, no transfer, release, disposition or use of the embryos can occur without the signed authorization of both donors. If a stalemate results, the status quo would be maintained. The practical effect will be that the embryos are stored indefinitely unless both parties can agree to destroy the fertilised eggs. Thus, any expense associated with maintaining the status quo should logically be borne by the person opposing destruction. … Turning to the present case, we find a situation in which one party no longer concurs in the parties’ prior agreement with respect to the disposition of their frozen embryos, but the parties have been unable to reach a new agreement that is mutually satisfactory. Based on this fact, under the principles we have set forth today, we hold that there can be no use or disposition of the Wittens’ embryos unless Trip, (the husband) and Tamera (the appellant) reach an agreement. …”
That test does not arise in the circumstances of this case as the parties did not make an agreement as to the surplus frozen embryos. However, the mutuality required in the test is noteworthy.
37. A different test was applied in Davis v. Davis 842 S.W. 2d 588, 597 (Tenn. 1992), where the Tennessee Supreme Court addressed the issue of disputes as to frozen embryos between divorcing couples. It stated, at paragraph 112:-

“In summary, we hold that disputes involving the Disposition of preembryos produced by in vitro fertilization should be resolved, first, by looking to the preferences of the progenitors. If their wishes cannot be ascertained, or if there is dispute, then their prior agreement concerning Disposition should be carried out. If no prior agreement exists, then the relative interests of the parties in using or not using the preembryos must be weighed. Ordinarily, the party wishing to avoid procreation should prevail, assuming that the other party has a reasonable possibility of achieving parenthood by means other than use of the preembryos in question. If no other reasonable alternatives exist, then the argument in favour of using the preembryos to achieve pregnancy should be considered. However, if the party seeking control of the preembryos intends merely to donate them to another couple, the objecting party obviously has the greater interest and should prevail.”
38. As indicated earlier, I am satisfied that there was no prior agreement in this case to the implantation of the surplus frozen embryos. However, even if the husband had made such agreement, which he did not, I would not regard it as irrevocable. All the circumstances would have to be considered carefully. If a party had no children, and had no other opportunity of having a child, that would be a relevant factor for consideration. In this case the plaintiff and her husband already have two children. It is also relevant that they are now separated. Another important factor is that the husband does not wish to have further children with the plaintiff. If the embryos were implanted he would be the father of any subsequent children, with constitutional rights and duties.
39. The right to procreate was recognised in Murray v. Ireland [1991] 1 I.L.R.M. 465. There is an equal and opposite right not to procreate. In the circumstances of this case, while the plaintiff and her husband have family rights, the exercise of a right not to procreate by the husband is a proportionate interference in all the circumstances of the case to the right of the plaintiff to procreate.
Conclusion on civil issue
40. Each case requires to be considered on its own facts. I conclude on the civil issue that there was no agreement, express or implied, as to the use of the three surplus frozen embryos. Even if there was an agreement, which I am satisfied there was not, I consider that it would not be irrevocable. Further, in the circumstances, the principle of estoppel does not apply to estopp the husband from refusing to give his consent to the implantation of the frozen embryos.

41. I would dismiss the plaintiff’s appeal on all the grounds raised in relation to the private law issue.
Constitutional Issue: the “unborn”
42. For the purpose of analysing the constitutional issue I shall recap, shortly, the basic facts. The plaintiff and her husband experienced fertility difficulties. With treatment the plaintiff became pregnant and the couple had a son born to them in 1997. The plaintiff wished to have further children and she attended the Clinic for I.V.F. treatment in 2001. In January 2002 the plaintiff and her husband signed the documents set out earlier in this judgment. Six viable embryos were created in the Clinic following the mixing of the plaintiff’s eggs with the husband’s sperm. Three of the embryos were implanted in the plaintiff’s uterus, she became pregnant, and a daughter was born in 2002. The plaintiff and her husband have had marital difficulties and are now separated. At issue in this case are the three surplus embryos which were frozen and stored at the Clinic.

43. The plaintiff submits that the three surplus embryos constitute the “unborn” for the purposes of Article 40.3.3˚ of the Constitution and that the State, (which includes the Court), is obliged to facilitate the implantation of the embryos into the plaintiff’s uterus having regard to the constitutional duty to protect unborn life. On behalf of the husband it was submitted that the concept of the “unborn” must involve the capacity or potential to be born and that this capacity arises only upon the occurrence of implantation; that Article 40.3.3˚ does not support the plaintiff’s case so as to confer on an embryo pre-implantation a constitutional right to life. On behalf of the Attorney General it was submitted that the frozen embryos do not constitute the “unborn” within the meaning of Article 40.3.3˚, and that consequently the State is not obliged to facilitate their implantation.

44. The term “unborn” is to be found in Article 40.3.3˚ of the Constitution. The Article states:-

“The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”
The word “unborn” is not defined in the Constitution.
45. This case is not about the wonder and mystery of human life. This is a court of law which has been requested to make a legal decision on the construction of an article of the Constitution of Ireland. The question raised is whether the term “unborn” in the Constitution includes the three frozen embryos in issue in this case. It is a matter of construing the word in the Constitution to determine its constitutional meaning.

46. This is not an arena for attempting to define “life”, “the beginning of life”, “the timing of ensoulment”, “potential life”, “the unique human life”, when life begins, or other imponderables relating to the concept of life. This is not a forum for deciding principles of science, theology or ethics. This is a court of law which has been requested to interpret the Constitution and to make a legal decision of interpretation on an article in the Constitution.

47. Article 40.3.3˚ was inserted into the Constitution of Ireland, 1937, by the Eighth Amendment to the Constitution in 1983.

48. The context in which this amendment was passed is important and relevant.
Context – statutory
49. Before Article 40.3.3° was introduced into the Constitution the law on abortion was governed by s.58 and s.59 of the Offences against the Person Act, 1861, by which the procuring of a miscarriage was a crime. These provisions were confirmed by s.10 of the Health (Family Planning) Act, 1979.

50. The meaning of s.58 of the Offences Against the Person Act, 1861 was considered in England and Wales in R. v. Bourne [1939] I KB 687. MacNaghten J. held that an abortion to preserve the life of a pregnant woman was not unlawful. It was held that where a doctor was of the opinion that the probable consequence of a pregnancy was to render a woman a mental and physical wreck he could be said to be operating for the purpose of preserving the life of the mother.

51. R. v. Bourne was followed in many common law jurisdictions. However, it was never applied to or relied upon in this State. It was no part or our law.

52. The term “miscarriage” was not defined in the Act of 1861. It was referred to in R. (Smeaton) v. Secretary of State for Health [2002] 2 F.L.R. 146. Munby J., at p.210 stated:-

“Professor J K Mason takes the same view as both Professor Kennedy and Professor Grubb, and for much the same reasons: see his Medico-Legal Aspects of Reproduction and Parenthood (1990) pp 54-56 and Mason, McCall Smith and Laurie Law and Medical Ethics (5th edn, 1999) pp 111-112, 129-130.
He adds (Medico-Legal Aspects at p 54) an interesting argument as to why preventing implantation is not procuring a miscarriage:
‘Medically speaking . . . there is wealth of difference, the most particular being that the contents of the body’s passages which are open to the exterior are, themselves, “external” to the body. A simple example is to be seen in the ingestion of a toxic substance; an analysis of the stomach or bowel contents may indicate the fact of ingestion but cannot demonstrate poisoning-the substance has not been absorbed and is, accordingly, still “external” in nature. Something which is external is carried only in the loosest sense-it can be dropped either intentionally, accidentally or naturally. There can be little or no doubt that bodily “carriage” implies some kind of integration with the body or, as Kennedy has said: “there can be no miscarriage without carriage'”.
I agree with this analysis and apply it in my consideration of the issue before the Court.
53. Therefore, I am satisfied that, in the context of the statutory law prior to the introduction of Article 40.3.3° of the Constitution, the State protection of an embryo arose after implantation. The Amendment introduced in the Constitution was to copper fasten the protection provided in the statutory regime, to render unconstitutional the procuring of a miscarriage. It meant that any expansive interpretation of the Act of 1861 was precluded.
Context – right to privacy
54. Prior to the Eighth Amendment the context also included some controversial cases in other jurisdictions on, and the development of, the right to privacy. The right of privacy was interpreted by the Supreme Court of the United States of America to prohibit state interference with a couple’s use of contraceptives: Griswold v. Connecticut [1965] 381 U.S. 479. It was also the basis for the decision of that Court on the right of a woman to decide to have an abortion: Roe v. Wade [1973] 410 U.S. 113.

55. The right to privacy was also considered by this Court. In McGee v. Attorney General [1974] 1 I.R. 284 it was held that the provisions of s.17(3) of the Criminal Law Amendment Act, 1935, which prohibited the sale or import of contraceptives, were no longer in force. The provisions were held to be an unjustified invasion of the woman’s personal right to privacy in her marital affairs, and inconsistent with Article 40.3.1° of the Constitution. That article provides that the State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen. In his judgment Walsh J. pointed out that the sexual life of a husband and wife is of necessity and by its nature an area of particular privacy. He stated, at p.313:-

“In my view, Article 41 of the Constitution guarantees the husband and wife against any such invasion of their privacy by the State. It follows that the use of contraceptives by them within that marital privacy is equally guaranteed against such invasion and, as such, assumes the status of a right so guaranteed by the Constitution. If this right cannot be directly invaded by the State it follows that it cannot be frustrated by the State taking measures to ensure that the exercise of that right is rendered impossible.”
In the debate before the Court in McGee the case Griswold v. Connecticut [1965] 381 U.S. 479 was opened and relied upon by the plaintiff. Walsh J. referred to that case (and two other cases of the U.S.A. which had been opened) and stated that his reason for not referring to them was not because he did not find them helpful or relevant, which he stated they were, but because he found it unnecessary to rely upon any of the dicta in those cases to support the views which he expressed.
Context – Mischief addressed
56. I am satisfied that the mischief to which Article 40.3.3° was addressed was that of the termination of pregnancy, the procuring of a miscarriage, an abortion.

57. McCarthy J. stated in Attorney General v. X [1992] 1 IR 1 at p.81:-

“[The Amendment’s] purpose can be readily identified – it was to enshrine in the Constitution the protection of the right to life of the unborn thus precluding the legislature from an unqualified repeal of s.58 of the Act of 1861 [which prohibited abortion] or otherwise, in general, legalising abortion.”
The Amendment would have a significant consequence for the legislature, it would preclude an unqualified repeal of s.58 of the Act of 1861. It would have a significant consequence in the Courts also.
Words
58. It is necessary to consider the words of Article 40.3.3º carefully. Article 40.3.3° acknowledges the right to life of the unborn. However, due regard is given to the equal right to life of the mother. This establishes a specific constitutional and legal relationship between the unborn and the mother.

59. The unborn is considered in Article 40.3.3° in relation to the mother. The special relationship is acknowledged. Of course there is a relationship between the frozen embryos in the clinic and the mother and the father – but not the link and relationship envisaged in Article 40.3.3°. Article 40.3.3° was drafted in light of the special relationship that exists uniquely between a mother and the child she carries. It is when this relationship exists that Article 40.3.3° applies.

60. Further, the relationship is viewed through the prism of the right to life. It applies to a relationship where one life may be balanced against another. This relationship only exists, this balance only applies, where there is a physical connection between the mother and the unborn. This occurs only subsequent to implantation of the embryo. Thus the balancing of the right to life described in Article 40.3.3° may only take place after implantation. Therefore an unborn under Article 40.3.3° is established after an embryo is implanted.

61. The concept of unborn envisages a state of being born, the potential to be born, the capacity to be born, which occurs only after the embryo has been implanted in the uterus of a mother.

62. This analysis may be put in a slightly different form. The right to life of the unborn is not stated as an absolute right in Article 40.3.3°. Rather, it is subject to the due regard to the right to life of the mother. The right to life of the mother is not stated as an absolute right either. Article 40.3.3° refers to a situation where these two lives are connected and a balance may have to be sought between the two lives. Thus the physical situation must exist to require such a balancing act. No such connection exists between the plaintiff and the three surplus embryos now frozen and stored at the Clinic. There is no such connection between the lives of the mother and the embryos at the moment. The relationship which might require the consideration of the right to life of the unborn and the equal right of the mother does not arise in the circumstances.

63. This connection, relationship, between the embryos and the mother does not arise until after implantation has occurred. After the implantation of an embryo the relationship between the embryo and the mother changes. The mother has carriage of the embryos, becomes pregnant, and the embryo enters a state of “unborn”. At that time an attachment begins between the two lives. It is that attachment which gives rise to the relationship addressed in Article 40.3.3°.

64. The words of Article 40.3.3° refers to a situation where the rights of the mother and the unborn are engaged. This occurs after implantation. Thus Article 40.3.3° does not apply to pre-implantation embryos.

65. There were submissions stressing the word “beo” in the Irish version of the Article. However, both language versions refer to birth or being born. Thus the fact of being born or birth is a factor in both versions. The beginning of “life” is not the protected term, it is the unborn, the life capable of being born, which is protected. The capacity to be born, or birth, defines the right protected. This situation, the capacity to be born, arises after implantation.
Harmonious Interpretation
66. The interpretation of the “unborn” as arising after implantation is also a harmonious interpretation of the Constitution. Article 41.1.2 states:-

“The State … guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.”
This establishes a strong family unit under the Constitution. In McGee v. Attorney General [1974] 1 I.R. 284 it was pointed out that this prevents the State from interfering in a married couple’s decision as to the make up of their family unit. Walsh J. stated at p.311:-
“It is a matter exclusively for the husband and wife to decide how many children they wish to have, it would be quite outside the competence of the State to dictate or prescribe the number of children which they might have or should have. In my view, the husband and wife have a correlative right to agree to have no children.”
67. If the frozen embryos were the “unborn” protected by Article 40.3.3° the State would have to intervene to facilitate their implantation. This would be a duty of the State irrespective of the parents’ wishes. Clearly this would be inconsistent with the rights of the family under the Constitution. It would also give to the State a duty to protect all embryos in the State in all the clinics, hospitals, etc., no matter what were the wishes of the parents.
68. In constructing the Constitution it is appropriate to seek a harmonious construction of Article 40.3.3° in the context of the Constitution. I agree with the approach of Henchy J., who spoke of achieving “the smooth and harmonious operation of the Constitution”: Tormey v. Ireland [1985] 1 I.R. 289 at p.296. The interpretation and construction should not lead to conflict with other articles, as O’Higgins C.J. enunciated in: State (D.P.P.) v. Walsh [1981] I.R. 412 at p.425. I believe that the construction which I have found of the term “unborn” is harmonious with other articles in the Constitution.
Conclusion on constitutional issue
69. For the reasons given I am satisfied that the term “unborn” does not refer to an unimplanted embryo. Consequently, it does not apply to the three surplus frozen embryos stored in the Clinic.
Overall Conclusion
70. On the first issue, which was referred to as having a contractual aspect, I am satisfied that the documents signed by the plaintiff and her husband in January, 2002 were forms provided by the Clinic to the plaintiff and her husband to obtain their consents to the medical procedures. They did not establish any contractual relationship between the plaintiff and her husband. There was no express agreement to the implantation of these surplus embryos at a later date. Nor was there any implied consent by the husband to the implantation of the surplus frozen embryos. As there was no initial agreement taken as to the implantation of the surplus embryos by the plaintiff and her husband there is no question of enforcing an earlier choice. There was no issue of a withdrawal of a consent. On the facts no issue of estoppel arises. For the reasons set out in this judgment I would dismiss this ground of appeal.

On the second issue, the constitutional issue, the plaintiff submitted that the three surplus embryos from the I.V.F. treatment constitute the unborn for the purpose of Article 40.3.3º of the Constitution and that the State is obliged to facilitate the implantation of the embryos in the plaintiff’s uterus as a consequence of the constitutional duty to protect the unborn. For the reasons set out in this judgment I would dismiss this appeal. In the context of the statutory law prior to the introduction of Article 40.3.3º of the Constitution, the State protection of an embryo arose after implantation. The context also includes cases at home and abroad which referred to the right to privacy and marital privacy. In that context Article 40.3.3º was addressed to the issue of miscarriage and abortion. I have considered the words of Article 40.3.3º carefully. Article 40.3.3º was drafted in light of the special relationship which exists uniquely between a mother and a child which she carries. It is when this relationship exists that Article 40.3.3º applies. The balancing of the right to life described in Article 40.3.3º may occur only after implantation. Thus an “unborn” described in Article 40.3.3º is established after an embryo is implanted. After the implantation of an embryo the relationship between the mother and the embryo changes. After the implantation the mother has carriage of the embryo and the embryo enters a state of “unborn”, there is an attachment between the mother and an unborn. It is that attachment which gives rise to the relationship addressed in Article 40.3.3º where the state acknowledges the right to life of the unborn and the due regard to the equal right to life of the mother. The interpretation of the “unborn” arising after implantation is a harmonious interpretation of the Constitution consistent with other rights under the Constitution.

For the reasons given I would dismiss the appeal on all grounds.

JUDGMENT delivered the 15th day of December, 2009, by Mr. Justice Hardiman.
The applicant and the first-named respondent, Mary and Thomas Roche, are husband and wife. They were married on the 5th March, 1992, but are now separated. In the mid 1990s, after some advice and treatment for apparent fertility difficulties, the applicant became pregnant and gave birth to a son in October, 1997. Subsequently she had surgery for an ovarian cyst and it was necessary to remove two thirds of her right ovary. She had further fertility difficulties which led to her referral to the Sims Clinic, where the second and third-named respondents carry on a well-reputed infertility practice. She first attended there in October, 2001. After investigation and advice the plaintiff consented to treatment involving the retrieval of eggs (ova) from her and the mixing of these eggs with sperm donated by her husband. She further agreed, as did her husband, to the cryopreservation of the embryos. On the 29th January, 2002, the husband signed a document entitled “Husband’s Consent” stating that he understood that he would be the father of any child resulting from the implantation of the embryos in the applicant. On the 1st February, 2002, the applicant signed a “Consent to embryo transfer” consenting to the placing in her uterus of three embryos. It appears that egg retrieval is difficult and somewhat painful and the practice which is widely followed, and was followed in the Sims Clinic, was to collect a sufficient number of eggs for implantation to minimise the risk of the patients having to undergo another session of egg retrieval if the first attempt at implantation was unsuccessful. In the case of the Roches, a total of six viable fertilised embryos were produced after the mixing process. Three were implanted and the other three were frozen or “cryogenically preserved”. This implantation of the first three embryos was the procedure to which the “Husband’s Consent”, described above, related.

This implantation process was successful, a pregnancy was achieved, and the plaintiff was delivered of a daughter on the 26th October, 2002. By that time, however, unhappy differences had arisen between husband and wife and they separated and continue to live apart.

The case concerns what is to happen to the three unimplanted frozen embryos. Some years after the birth of their daughter, and their separation, the applicant decided that she wanted to have the three frozen embryos implanted in her uterus in the hope of having a further child or children. She made it perfectly clear that she envisaged this, and maintenance of any resulting child or children, as taking place exclusively at the expense of the first-named respondent. The husband does not want the frozen embryos implanted, and says that he never agreed to this and it would be unreasonable and a breach of his human rights and an invasion of his autonomy to compel him to become the father of a child he does not want in the present circumstances. Nor would it be in the child’s interest to be raised in the circumstances now prevailing, in the husband’s view.

The proceedings.
This is an appeal from two judgments and the associated orders of the High Court (McGovern J.) of July and November, 2006, respectively, whereby the learned trial judge dismissed two separate claims brought by the applicant; the first was a claim that she was entitled to have the embryos implanted in her by reason of an agreement between herself and her husband that this would happen, or alternatively, that the husband was now estopped from denying that such an agreement existed. This has been referred to at various stages of the proceedings as “the civil claim”. The other claim was of a constitutional nature: the plaintiff claims that she is entitled to have the embryos implanted in her because they are within the meaning of the phrase “the unborn” as that phrase is used in Article 40.3.3 of the Constitution. The implantation of the embryos is said to be necessary to preserve the right of the unborn to life. This is referred to as “the constitutional claim”.

In relation to the civil claim, I have read the judgment of the learned trial judge, Mr. Justice McGovern, delivered the 18th of July, 2006. I have also read the transcript of the evidence upon which his judgment is based. I agree with his findings of fact, most of which were not indeed the subject of serious dispute and in particular his finding (p.9 of the judgment) that the question of what would happen to the frozen embryos if one of the parties died or if the parties became separated or divorced was simply never discussed between husband and wife at the time they agreed to seek IVF treatment. There was accordingly no express agreement on this topic. I agree with the legal conclusions of the learned trial judge in relation to implied or presumed intention of the parties and with his application of this law to the facts of the present case. In the result, I would uphold the judgment of the learned trial judge on this aspect of the case for precisely the reasons he gives in his judgment of the 18th July, 2006 and I consider that it would be otiose if I were to traverse the same ground.
The constitutional issue.
It is recorded in the judgment of the learned trial judge delivered the 15th November, 2006 that, apart from the civil issue, the parties identified two other issues which are:

“(a) Whether the frozen embryos are ‘unborn’ for the purpose of Article 40.3.3 of the Constitution of Ireland and
(b) Irrespective of the answer to the first question, is the applicant entitled to the return of the embryos to her uterus whether by virtue of Article 40.3.3 and/or Article 41 of the Constitution, or otherwise?”

These are novel issues in our jurisprudence. But experience has shown that, given a sufficient period of time, almost every conceivable set of facts will occur and may give rise to litigation. This is graphically illustrated by the remarkable factual matrix underlying the case of Attorney General v. X [1992] 1 IR 1. This fact gives point and urgency to certain observations at the end of this judgment. Science will not stand still waiting for us to update our laws.
Article 40.3.3
It will be seen that the first constitutional issue, and to a large extent the second one as well, turns on this provision of the Constitution. It has already been judicially observed (in the ‘X’ case cited below, per McCarthy J.) that this sub-Article, inserted into the Constitution by referendum in 1983, was controversial at the time and was, as McCarthy J. put it, “historically divisive of our people”. These aspects of the sub-Article are now, however, entirely irrelevant for the purposes of this case. Article 40.3.3 is a part of our Constitution and must be upheld by the Courts like any constitutional provision.

What is in question here is whether, on the true construction of the phrase “the unborn” (in the English language version of the sub-Article: the primary or Irish language version will be discussed below), the phrase “the unborn” includes, or does not include, the three embryos created by the mixture of the eggs retrieved from the applicant in this case with her husband’s sperm, and now cryogenically preserved in the Sims Clinic.

I propose now to set out the text of Article 40.3.3, first in the Irish language because that language has primacy in the event of conflict with the version in the other official language. It is as follows:

“Admhaíonn an Stát ceart na mbeo gan breith chun a mbeatha agus, ag féachaint go cuí do chomhcheart na máthar chun a beatha, ráthaíonn sé gan cur isteach lean dhlíthe ar an gceart sin agus ráthaíonn fós an ceart sin a chosaint is a shuíomh lena dhlíthe sa mhéid gur féidir é”.

The English language text is as follows:

“The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate that right.”

I wish also to set out a literal translation of the Irish version of the sub-Article. This is the work of Professor Micheál Ó Cearúil, the author of Bunreacht Na hÉireann: a study of the Irish text. This book, which is a truly impressive and extremely useful work of scholarship of the highest order, was written for the all party Oireachtas Committee on the Constitution and published by that Committee in 1999. The “literal English translation”, given at p.548 of the book, is as follows:

“The State acknowledges the right of the unborn to their life and, having due regard to the equal right of the mother to her life, it guarantees not to interfere through its laws with that right and it guarantees further to protect and assert that right with its laws in so far as it is possible.”

The phrase “the unborn” represents an unusual usage in English and it may be that the primary or Irish version clarifies it. Professor Ó Cearúil observes (I am omitting purely technical detail and some citations of Irish language sources):

“ ‘Beo” is translated principally as ‘living being’ with the secondary sense of ‘life’.”

He quotes from Irish literary sources, as where the phrase “ag guí ar son na mbeo agus na mairbh”, is translated as “praying for the living and the dead”, which illustrates this meaning.
It appears from the same discussion, at p.549, that “gan bhreith” means “without birth”. The word “gan/without” is used in several senses in Irish to mean being deprived of, or not having, something. Thus, “gan phingin”, literally without a penny i.e. penniless: similarly “bheith gan chlann”, “to be without children”, thus childless. Thus the phrase “na mbeo gan breith” translates easily enough as “the living without birth”. This is an unusual phrase, either in English or in Irish and indeed Professor Ó Cearúil comments, for reasons too technical to go into here but fully expounded in his text, that one would expect further explanatory material and not the sudden finality of “gan breith” which one actually finds. That, indeed, is the sense which in my view an English speaker has in reading the phrase “the unborn”: one is inclined, however briefly, to wonder “the unborn what?” But there is no further elucidation, in the language itself, though some may be gleaned from the context: see below.

It is next necessary to note what it is that the State acknowledges in Article 40.3.3. Here, the Irish and English language versions seem in perfect accord: it is the right of the “living without birth to their life”, which is not to be interfered with by law and is, as far as practicable to be asserted and protected by law. Most importantly, these things are to be done “ag féachaint go cuí do cómhcheart na Máthar chun a beatha…” which I would translate as “looking narrowly to the equal right of the mother to her life” or, using constitutional language, “having due regard to the equal right of the mother to her life”.

Accordingly, in a strictly linguistic sense and perhaps more generally, the right of the “living without birth” to their lives is placed in apposition, perhaps in juxtaposition to the right of the mother to her life. But that linkage makes no sense, either as a matter of law, logic, language or ordinary human experience unless the life of the “living without birth” is so connected with the right of the mother to her life that the former is capable of impinging negatively on the latter. If this were not so it would be quite pointless to condition or qualify the undertaking of the State in relation to the life of the unborn with a need to consider the mother’s right to her life.

This aspect of Article 40.3.3. is well illustrated in the judgment of Hederman J. in The Attorney General v. X [1992] 1 IR 1, at p.75. Hederman J., who dissented in the result and would have substantially upheld the order of the High Court (Costello J.), referred in his judgment to Article 40.3.3 as “The Eight Amendment” and had the following to say:

“The Eighth Amendment does contemplate a situation arising where the protection of the mother’s right to live has to be taken into the balance between the competing rights of both lives, namely the mothers and the unborn child’s”. (Emphasis added)

Earlier, at p.72 Hederman J. had said:

“The creation of a new life, involving as it does pregnancy, birth and raising the child, necessarily involves some restriction of another’s freedom but the alternative is the destruction of the unborn life. The termination of pregnancy is not like a visit to the doctor to cure an illness. The State must, in principle, act in accordance with the mother’s duty to carry out the pregnancy and, in principle, must also outlaw termination of pregnancy”. (Emphasis added)

These extracts, of course, confirm what seems clear on a purely linguistic analysis of the sub-Article in both the national languages: that it refers to a situation in which the unborn life and the equally valuable life of the mother are essentially integrated or at least linked, so that one may affect the other adversely. Moreover, since the right in each case is a right to life and not to any less readily apprehensible concept such as welfare, best interest or good health, it is clear that the linkage must be a direct physical one. This leads me to believe that the temporal scope of the sub-Article is, and was intended to be, the period of a pregnancy when the unborn life has been implanted in the mother’s womb and is developing there.
Moreover, the person whose right to her life is required to be considered in vindicating the right to life of the unborn is “the mother”. Since, (as we have seen above), the relationship of the two rights to life must be such that that of the unborn is capable of impinging on that of the mother, it follows that the mother is the mother of the unborn life. In the context of the constitutional Article there is nothing else of which she can be the mother.

It thus follows that the mother is the mother of the “unborn” and that their physical relationship is such that the right to life of the unborn is capable of impinging on the right to life of the mother. This, it appears to me, requires a physical relationship. The only relevant physical relationship is that of pregnancy.
The Attorney General’s position.
On the hearing of this appeal, as in the High Court, the plaintiff Mary Roche contended that the fertilised but unimplanted embryo was within the meaning of the phrase “the unborn”. The first respondent, Thomas Roche, contended for the contrary proposition. While one does not doubt the sincerity of each contention, it is of course the case that the contentions of each of these primary parties reflect their respective views as to the result which should be arrived at in this action. In those circumstances a particular significance attaches to the views of the Attorney General who has of course no personal interest but who has been joined in the proceedings because of the constitutional issues raised.

The Attorney General expressed no view as to whether or not there was an agreement between husband and wife as to what should happen to the unimplanted embryos. But he submitted that, if there was an agreement on that issue, the agreement could be enforced by the court. On the constitutional issue however the Attorney General expressed a strong and unambiguous view. The “surplus embryos”, he submitted, had no status arising from the Constitution and specifically they were not within the meaning of the phrase “the unborn”. The Attorney said that it would be open to the people by constitutional amendment to protect embryos from fertilisation, but they did not do this in passing the Eight Amendment of the Constitution in 1983.

I propose now to leave to one side briefly the purely linguistic analysis of the sub-Article, and to consider its legal nature.
Article 40.3.3 as interpreted in the cases.
This exercise is an easier one than the linguistic analysis of the Articles because there exists a number of authoritative decisions on the question. In the case of Attorney General v. X [1992] 1 IR 1 McCarthy J. said:

“[The amendment’s] purpose can be readily identified – it was to enshrine in the Constitution the protection of the right to life of the unborn, thus precluding the legislature from an unqualified repeal of s.58 of the Act of 1861 [The Offences against the Person Act of that year: the section prohibits abortions] or [from] otherwise, in general, legalising abortion.”

More recently, in the case of Baby O v. the Minister for Justice [2002] 2 IR 169 Keane C.J., giving the unanimous judgment of the Court, said at pp. 181 and 182 that:

“The passage from Article 40.3.3 on which counsel relied, as explained by the judgments of the majority in this court in Attorney General v. X. [1992] 1 IR 1, was intended to prevent the legalisation of abortion either by legislation or judicial decision within the State, except where there was a real and substantial risk to the life of the mother which could only be avoided by the termination of the pregnancy.”

It is not necessary here to set out in any detail the reasons why those who promoted the amendment thought it necessary to take active steps to prevent the legalisation of abortion whether by legislation or by judicial decision. It related, in some degree, to the perception of the proponents of the Amendment to the Constitution which became Article 40.3.3 of the possibly baneful effects of such cases as McGee v. The Attorney General [1974] 1 IR 284, Griswold v. Connecticut [1965] 381 U.S. 479 and, most of all, Roe v. Wade [1973] 410 U.S. 113. These cases led certain proponents of a constitutional amendment in Ireland to embark upon a sometimes very learned analysis of them and to conclude that the emphasis, not least in the Irish case of McGee, on the authority of the family and the rights of its members to privacy, might contain the seeds of the judicial development of a right, however limited, to abortion.
Abortion was and is of course illegal in Ireland by virtue of s.58 of an Act of 1861, the Offences against the Person Act. This reads as follows:

“Every woman being with child who, within intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing or shall unlawfully use any instrument or other means whatsoever with a like intent, and whosoever with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her a poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony.”

I wish to express my agreement with the analysis of this Section, and of its statutory and Common Law precursors, contained in the judgment of Geoghegan J. in this case.
Accordingly, two quite different analyses of Article 40.3.3 – a linguistic one and one based on the authorities – lead harmoniously to the same conclusion. The subsequent decisions of the courts, two of which are cited above, describe the purpose of the sub-Article as being to prevent the introduction of abortion either by legislation by the Oireachtas or by judicial decision. The legal position thus sought to be protected was that created in Ireland by s.58 of the Offences against the Person Act, 1861, which described abortion as the procuring of a miscarriage. It seems obvious that, as the medical authority cited by Denham J. in this case puts it with startling clarity, “There can be no miscarriage without carriage” and “Bodily carriage implies some kind of integration with the body [of the carrier].”

Precisely the same conclusion follows from a linguistic analysis of the text of the sub-Article, either in Irish or in English. A capacity of the life of the unborn to impinge on the right to life of the mother, which is an essential postulate of the sub-Article, equally depends on some form of integration of the life of the unborn with the bodily structures of the other life in question, that of the mother.

In my view each of these approaches leads harmoniously and inevitably to the conclusion that the “unborn”, “na mbeo gan breith”, is the foetus en ventre sa mere, the embryo implanted in the womb of the mother. It is manifest that the embryo undergoing cryogenic preservation is not so implanted and is incapable of impinging in any way on the right to life of the mother or of having any physical effect whatsoever on her body or its structures.
Article 40.3.1.
I do not consider that the applicant can rely, in the alternative, on Article 40.3.1. I remain to be convinced that this provision, with its express reference to the rights of “citizens” and to such specific rights as “good name” and “property rights”, extends or was ever intended to extend to a fertilised but unimplanted ovum.

Be that as it may, if the earlier provision (i.e. Article.40.3.1) did extend to a fertilised ovum, and to a foetus, that fact would appear to make Article 40.3.3 redundant. Without necessarily relying on canons of construction such as inclusio unius exclusio alterius, I would point out that, apart from the redundancy of the Article 40.3.3 that would follow from the plaintiff’s contention, Article 40.3.1 contains no express reference at all to the right to life of the mother. This seems a remarkable omission (for the reasons given by Hederman J. and quoted above), if the earlier sub-Article applied to a fertilised ovum so as to confer a right to implantation in the mother’s uterus, there would be no explicit protection of the position of the mother. But the mother, who is a life in being, and a citizen, is undoubtedly herself within the protection of Article 40.3.1. The failure explicitly to acknowledge her position in that sub-Article strongly suggests to me that, for the reasons set out below, the position of a fertilised embryo is not within the meaning or the intent of Article 40.3.1.

Article 40.3.1., as interpreted by the plaintiff, applies to a situation which was unimagined and unimaginable in 1937. The felt need for what became Article 40.3.3 was suggested to its proponents by legal and medical developments in the 1970s. It is a grave anachronism to seek for reference to such things forty years earlier. The language, the law and the science of the debate alike have changed out of recognition over that period.

The foregoing conclusions are sufficient to allow me to decide that I would dismiss the appeal on the constitutional grounds as well, for the reason that the embryos now being cryogenically preserved are not “the unborn” within the meaning of Article 40.3.3. I wish however to add a number of observations.

Firstly, the fact that the embryos in question in the present case are not within the relevant sub-Article of the Constitution, while it is fatal to litigation founded on the theory which has informed this action, does not of course mean that such embryos should not be treated with respect as entities having the potential to become a life in being. In the course of the argument on this appeal, the court heard of various legal provisions in other countries based precisely on such respect for the embryo: it appears that a number of European countries severely limit the number of fertilised embryos that can be produced in the course of IVF treatment. The disadvantage to this, of course, is that it increases the likelihood that, in the event of a failure to produce a pregnancy with the implanted embryo(s), that the patient will have to undergo the uncomfortable and apparently sometimes painful process of retrieval of ova again. It is also necessary to bear in mind that a very large number, in fact the great majority, of fertilised embryos are lost in the ordinary course of nature and that that event is not generally regarded, medically, clinically, socially, legally or privately, as equivalent to the death of a life in being. It is also necessary to bear in mind, as Mr. Hogan S.C. for the applicant did not conceal, that if respect for the fertilised embryo were carried to the point of equating it to a life in being, that view would lead to the outlawing of one of the most widely used methods of contraception which operates by the prevention of implantation.

The above are all serious considerations which, fortunately, the court is not called upon to resolve here. They are, primarily, matters for the Legislature. Indeed, it was a notable feature of the appeal that while the Notice of Appeal criticised the learned trial judge as having erred “in finding that the court was not concerned with the question of when life begins”, the appellant’s written submissions, at paragraph 49 positively says that for the purpose of the case “the court does not have to pronounce on questions as to when human life begins”.

But the fact that difficulties are raised does not absolve the legislature from the obligation to consider the degree of respect due to fertilised embryos and to act upon such consideration “by its laws”. There has been a marked reluctance on the part of the legislature actually to legislate on these issues: the court simply draws attention to this. That is all it can do. That is what McCarthy J. did, apparently in vain, in the X case eighteen years ago. But the Court does so as seriously and as urgently as it can.

The issue is all the more urgent because, of course, scientific developments in the area of embryology and the culturing of stem cells will not stand still. It has been very recently suggested that it may shortly be possible to develop human sperm from such cells.

If the legislature does not address such issues, Ireland may become by default an unregulated environment for practices which may prove controversial or, at least, to give rise to a need for regulation. This may be particularly urgent having regard to the views expressed on behalf of the Attorney General on the hearing of this appeal.

I would dismiss the appeal.

JUDGMENT of Mr. Justice Geoghegan delivered the 15th day of December 2009
While this appeal raises very important issues, the resolution of those issues does not involve this court in attempting to answer the question of when life begins. It is not a legal issue in this case. The expert evidence on both sides make it clear that there is as yet no definite scientific or medical answer to that question. It is, of course, a question which interests also theologians and philosophers but on the particular view of this case which I have taken, none of the approaches to this question have relevance to the issue on the appeal.

At this early stage, I think I should also make clear that because of the view I have taken on the issues in dispute (which is more or less the same view as that taken by the learned High Court judge) I will not be expressing any opinion as to how the State should regulate unused embryos created in IVF treatment. It emerged at the hearing of the appeal that many countries have put in place regulatory regimes relating to spare embryos. Germany, Italy and the U.K. were cited as examples but there is no regulation whatsoever in Ireland as yet. The only constitutional question which this case raises is whether the spare embryo is one of the “unborn” with the constitutional right to life under Article 40.3.3 of the Constitution. For reasons upon which I will be elaborating, I take the view that “the unborn” protected by that Article are confined to the unborn within the womb. I will be basing this opinion both on the words of the constitutional provision itself and on the history of the crime of abortion in this jurisdiction which was the context in which that provision was inserted into the Constitution by referendum of the people. In addition to the judgment of the learned High Court judge (McGovern J.) to which I have already referred, I gained particular assistance in arriving at my opinion from the written submissions of the Attorney General.

I will proceed now to explain the nature and scope of this appeal. A married couple had a child in the normal way. Some time later they wanted to have a second child. However, in the meantime, the appellant who was the wife had undergone surgery for an ovarian cyst and had lost two thirds of her right ovary. As a consequence of medical advice, it became clear that in order to have another child she would have to undergo IVF treatment. She procured this treatment at the Sims Clinic in Rathgar, Dublin. That treatment involved (inter alia) the removal of eggs from her ovaries and the mixing of the eggs with the sperm of her husband. Because egg retrieval is difficult and painful, the practice in fertility clinics has been to ensure that there would be enough eggs to be fertilised so as to avoid a second retrieval operation. What in practice happened was that the appellant’s ova were mixed with the respondent’s sperm creating six viable embryos. Three of these were immediately implanted into the appellant’s uterus and the others were frozen.

This implantation was successful and the appellant gave birth to a daughter. Around the same time, the marriage broke up, as the respondent had entered into another relationship.

The appellant, being aware of the existence of the three frozen embryos which were the spares, wanted them implanted in her uterus so that she could undergo a further pregnancy and produce a third child. The respondent objects because it would put him into the position that he was forcibly becoming a father, something which he does not want to happen. There is a further context to his objection. It is clear from the evidence given by the appellant that she would have regarded any child born as a consequence of the spare embryo being implanted, as a child of the respondent just as much as a child of the appellant with all the financial and other responsibilities that fatherhood involves. At all material times, the appellant and the respondent were medically advised that the IVF treatment could result in multiple births. If, therefore, the three spare embryos were duly implanted the possibility that triplets would be born could not be ruled out. I am merely recounting the perspective of the appellant as it emerged in evidence without placing any value judgment on it.

The first issue in the case was whether there was an enforceable contract as between the parties entitling the appellant to make use of the spare embryos. The learned trial judge held that there was not. I am in agreement with that finding for much the same reasons as influenced the trial judge but I will elaborate on them more fully in due course. Because of that view which I have taken, I do not find it necessary to consider the legal issue of whether there can be such an enforceable contract and, if so, how determinative it is. The court has been referred to considerable case law emanating from the United States of America, the majority thrust of which is that the fate of spare embryos should be determined by agreement of the parties. Since I am satisfied there was no contract here, I do not find it necessary to review those authorities nor am I to be taken as necessarily agreeing with their conclusions. I would prefer to leave these difficult questions to a case where they genuinely arise. In this particular case, the argument for a contract is outlined and explained in the judgment of the learned trial judge. I should, of course, mention at this stage that McGovern J. delivered himself of two distinct judgments. The first judgment of the 18th July, 2006 dealt with the contract issue. The second judgment, that of the 15th November, 2006 treated of the constitutional issue. It is the contract issue which I now intend to address.

It is not suggested that there was any clear written or oral agreement between the appellant and the respondent as to what was to happen spare embryos. Nevertheless in arguing for a contract, some written documents were relied on by the appellant. These documents were Consents which the clinic required to be signed as a routine part of their procedures. There were four Consent documents in all. The first was entitled “Consent to Treatment Involving Egg Retrieval”. That Consent was signed by the appellant only and by the form she gave her consent to the removal of eggs from her ovaries and the mixing of those eggs with the respondent’s sperm. The second document was a Consent form signed by both parties and entitled “Consent to Embryo Freezing”. By this form both the appellant and respondent agreed to the cryopreservation of the embryo and to take full responsibility on an on-going basis for frozen embryos. The third Consent form was entitled “Husband’s Consent” in which he consented to the treatment and expressed his understanding that he would become the legal father of any resulting child. The fourth and final document was entitled “Consent to Embryo Transfer” which involved the appellant consenting to the placing in her uterus of three embryos.

Like the learned High Court judge, I will elaborate slightly on this. It was clear from the medical evidence that the egg retrieval which is obviously an essential element of the IVF treatment can be awkward and painful. As a consequence, in most countries including Ireland, fertility clinics try to ensure that there be a sufficient number of eggs for fertilisation so that egg retrieval would not have to be undergone a second time. In this particular case nine or ten eggs were retrieved and were mixed with the respondent’s sperm. Of the resulting embryos, six were considered viable. The remainder were not frozen and they were presumably disposed of. Three of the six viable embryos were implanted into the appellant’s uterus and the remaining three were frozen.

The implantation of those three embryos resulted in a pregnancy and a successful birth of a daughter on the 26th October, 2002.

It is clear from the evidence of Dr. Wingfield, the consultant obstetrician and gynaecologist at the National Maternity Hospital, Holles Street that the reason why the standard IVF practice in most countries with the notable exception of Italy and Germany is to try and ensure that there are some spare suitable embryos which can be frozen, is to avoid putting the woman through the repeat painful procedure of egg removal. Indeed I think it useful to quote what she actually said in her witness statement:

“To achieve optimal success rates (still only 20/30% per cycle started) it is necessary to use superovulation. This results in multiple oocytes. The best pregnancy rates occur in cycles where six to ten oocytes are retrieved.
In an ideal world, these oocytes would be fertilised only as required i.e. one or two would be incubated with sperm and if these fertilise they would be placed in the uterus. If fertilisation did not occur, another two eggs could be tried etc. Unfortunately, oocytes do not survive outside the body and must be used within hours of retrieval. It is not yet possible to be able to choose the best quality eggs or the ones which are most likely to be successfully fertilised and the safety of the technology has not been sufficiently validated to routinely freeze oocytes. It is therefore necessary to try to fertilise all of the eggs once retrieved (i.e. they must all be used immediately or they are wasted).

On average, only 50/70% of oocytes will be successfully fertilised if exposed to sperm and a further large proportion of fertilised oocytes will be abnormal and unusable (at least 40%). In older women particularly, the chance of successful blastocyst formation, implantation and healthy pregnancy is low (10% and less if over 40 years. Most doctors and others working in IVF therefore consider it unethical to subject the woman to the risks of superovulation treatment if all oocytes are not then going to be used.

It is only safe to transfer two embryos to the uterus (three in rare cases); otherwise there is an unacceptable risk of multiple pregnancies. It is well proven that multiple pregnancies lead to greatly increased rates of miscarriage, premature birth, neo-natal morbidity and cerebral palsy. Therefore, one or two of the best embryos are transferred and the remainder are frozen, if deemed to be of sufficiently viable.

The purpose of all embryo freezing programmes is to give a couple the best chance to achieve a pregnancy with a maximum of safety. If the woman does not conceive following her first embryo transfer, one or two frozen embryos may be thawed and transferred to her uterus, without the need for further superovulation an oocyte retrieval. For couples who conceive with their first embryo transfer, they may achieve a second pregnancy a few years later using previously frozen embryos. Frozen embryo transfer is medically safer and less expensive than a second fresh IVF cycle.”

Dr. Wingfield goes on to explain that the above practice of IVF which is the norm in Ireland is accepted as best practice in the vast majority of countries. She stated that the majority of couples will quickly use any frozen embryos in order to achieve one or more pregnancies. But she accepts that some couples will end up with unwanted frozen embryos. Interestingly, she makes the point that this could occur for different reasons “e.g. they have had one or more children and their family is now complete or they may separate, one partner dies etc.” Whilst there are no regulations in Ireland she points out that in other jurisdictions the options to deal with unwanted embryos may include donation to another couple, donation for research or simply allowing them to perish.

I do not think that Dr. Wingfield’s expert evidence was in controversy at the trial and I have found her summary of the position very useful. She mentions that there are seven clinics providing IVF services in Ireland with approximately 2,500 fresh IVF and 700 frozen embryo cycles being performed every year. Although there is no statutory regulation, she refers to the Medical Council Guidelines and to the report of the Commission on Assisted Human Reproduction (2004). The Guidelines of the Medical Council and that report are both before the court. The guidelines do not ban embryo freezing and recommend donation of surplus embryos to another couple. The guidelines are not altogether satisfactory and are left somewhat vague. What is satisfactory is the excellent report of the Commission on Assisted Human Reproduction. That report lists and deals with all aspects of the problem. There were forty recommendations. The fourth and ninth of these inter alia are relevant to this case: The fourth reads:

“Appropriate guidelines should be put in place to govern the freezing and storage of gametes and the use of frozen gametes. The regulatory body should, in accordance with statutory guidelines, have power to address cases where gametes are abandoned, where the commissioning couple cannot agree on a course of action, where couples separate or where one or both partner dies or becomes incapacitated.”

The ninth recommendation reads as follows:

“Appropriate guidelines should be put in place by the regulatory body to govern the freezing of excess healthy embryos.”

Unfortunately, unlike most other countries no statutory regulations have been put in place. Running right through most of the documentation produced is the concept of the respect to be shown to the spare embryos but nowhere is there a suggestion that either party can be compelled by the other to become a parent in the absence of agreement. Referring to the document “Consent to Embryo Transfer” the judge went on to say that it was clear from the evidence that the three embryos referred to in that particular form were the embryos which were not frozen and that the purpose of freezing the other embryos was to use them if the first implantation failed. That finding was supported by evidence from both the appellant and the respondent and indeed precise references are given in the judgment. The first implantation having been successful, the judge pointed out that that left the question as to what was to happen to the remaining frozen embryos. He refers to the evidence of both parties and I have also read their evidence. On the basis of the consent form signed and on the oral evidence which he heard, the learned trial judge held that there was no evidence that the respondent gave his express consent to the implantation of the three frozen embryos in the plaintiff’s uterus and he went on to consider whether that consent could be implied. Not only was the finding open to him to make, I do not think that any other finding would have been open having regard to the evidence.
As I have already mentioned, at more or less the time of the birth of the IVF child, the marriage unfortunately broke up. There seems little doubt that there was no prior agreement relating to any of these contingencies whether foreseen or unforeseen. At most, there would have been an understanding that the question of using the frozen embryos in the event of a failure following the first implantation would be considered or indeed that it might be considered for the purpose of producing a second child. Even that is doubtful. I do not consider that any such understanding or agreement would ever have been intended to be a legally binding contract. Before ever one considers the other essential ingredients of a legally enforceable contract such as consideration and “offer and acceptance”, the first essential requirement is that there was an intention to create legal relations. There is nothing in the evidence of either party which supports any such intention. The forms signed were Consent forms required within the clinic system and they cannot be construed as contracts.

I have diverted somewhat, because of course I already mentioned that the judge went on to consider whether, even if there was no express contract, there might have been an implied contract. My first observation on that proposition is that in a domestic agreement between husband and wife of this kind, it would be rare that even express terms would be held to constitute a legally binding contract. It would be extremely rare that an understanding between husband and wife would be held to have ripened into a legally enforceable contract not even containing all the express terms but containing implied terms. The learned trial judge has correctly reviewed the authorities on implied terms and I do not intend to cover that territory. I agree with everything that he says.

I now turn to what is really the more serious issue on the appeal, the question of whether each of the frozen embryos is an “unborn” within the meaning of Article 40.3.3 of the Constitution. That subsection reads as follows:

“The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”

Without necessarily accepting that in interpreting this subsection, I am not entitled to have regard to the context in which it was inserted into the Constitution (a point to which I will return), I believe, that applying the ordinary rules of interpretation applicable to a statute which at any rate to some extent, permit of context to be taken into account, this constitutional provision is dealing exclusively with the baby in the mother’s womb. Probably, the strongest indicator of this is the reference to “the equal right to life of the mother”. I interpret the subsection as envisaging what I might loosely call “a mother and baby situation”. The State is not conferring a right but rather acknowledging the majority view in the community that the baby in the womb has the right to be born alive but that this is not an absolute right in as much as there could be situations where the continued pregnancy endangered the life of the mother. In this context the expression “equal right” is somewhat strange because, in a sense, what the provision is stating is that in a clash of rights to life between the baby and the mother, the mother’s life is to have priority. I would also attach some significance to the expression “the unborn”. It has been said that this expression was unusual in its nakedness. I do not think that that is altogether correct but its meaning and context may be somewhat unusual. The expression “the unborn” is not by any means unique but normally, far from meaning an actual baby or foetus, it would tend to mean what I might describe as “the as yet unborn” or in other words future existences. The expression in this sense finds its way into two quotations in the Oxford Book of Quotations. I do not believe that the expression “the unborn” would ever be used to describe a stand alone embryo whether fertilised or unfertilised or whether frozen or unfrozen. It has ultimately been accepted on all sides in this appeal that the case does not involve any determination of when life begins. Furthermore, the experts on both sides were in agreement that there is no scientific proof of when life begins. The IVF treatment itself highlights the complexity of the succession of steps in the process leading up to a successful birth. It seems clear on the evidence before the court that pregnancy in any meaningful sense commences with implantation. I think I am entitled to take judicial notice of the fact that the referendum which led to the insertion of this provision in the Constitution was generally known as “The Abortion Referendum”.
This brings me to the question already briefly adverted to, as to the extent to which I can take context into account in interpreting the Article. I have already expressed my view as to what the Article means applying only the ordinary rules of statutory interpretation as distinct from constitutional interpretation. I am not in fact convinced that the rules are identical. Judges play no part in the drafting of a statute, still less in the voting of it into law. Judges, however, are ordinary citizens and do participate in referenda. It would seem to me to be highly artificial if a judge could not also take judicial notice of and to some extent at least, use as an aid to interpretation, the ordinary common understanding of what in context was involved in the referendum. Nobody could dispute that the primary purpose of the referendum was to prevent decriminalisation of abortion without the approval of the people as a whole. Abortion in this jurisdiction was criminalised by the Offences against the Person Act, 1861, an Act carried into the laws of the Irish Free State and in turn carried over under the 1937 Constitution. In theory, there could have been a referendum as to the possible insertion of a provision in the Constitution that the relevant sections in the Offences against the Person Act, 1861 would not be repealed. Those very provisions however had been interpreted in the English courts in a manner which would not have been acceptable to the perceived majority of the Irish people who favoured an absolute ban on abortion. This was the famous case of Rex v. Bourne [1939] 1 K.B. 687. The positive assertion in the Constitution of the right to life would have been perceived as preventing any watering down of the criminal law on abortion.

It is appropriate, at this stage, to explain the relevant provisions in the 1861 Act and the aids to their interpretation deriving from their antecedents. This is important because if, as I believe, the insertion of Article 40.3.3 into the Constitution was with a view to preventing repeal or amendment of the existing abortion law, it is essential to understand what exactly that law prohibits.

The two relevant provisions of the Offences against the Person Act, 1861 are sections 58 and 59. Section 58 reads as follows:

“Every woman, being with child, who with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent shall be guilty of felony.”

Section 59 then reads:

“Whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or not be with child, shall be guilty of a misdemeanour.”

On the interpretation of these two sections, I find the judgment of Munby J., the English High Court, Queen’s Bench case of R (Smeaton on behalf of the Society for the Protection of Unborn Children) v. The Secretary of State for Health particularly persuasive. In that case Munby J. was dealing with the lawfulness or otherwise of “the morning after pill”. But what he had to say is equally relevant to this case. He takes note first of all of the expression “being with child” in section 58 and he relates it to wording of earlier Acts to which I will be referring. He further points out that sections 58 and 59 create three offences but that common to all three offences is the need to prove either an “intent to procure.. miscarriage” or in the case of an offence under section 59 knowledge of another’s “intent to procure .. miscarriage”. He goes on to point out that this intent to procure a miscarriage was what was required when the offence was a common law offence prior to 1803 (case law to support that is cited) and under every version of the offences created before the 1861 Act i.e., the Acts of 1803, 1828 and 1837. Munby J. sums up the position as follows:

“Given the issue in the present case the last point requires emphasis. The essence of the offence, both at common law and in every version of the statutory regime since 1803 has always been the procuring of ‘miscarriage’. Putting the same point rather differently, ‘miscarriage’ is not a term of art introduced into the law in 1861. It is the word which Parliament and the lawyers have been using in this context for some two hundred years.”

The judge goes on to explain that common to all the three offences was the need to prove that the relevant act was “unlawful”. This requirement gave rise to the English decision of R v. Bourne cited above. As a consequence of Bourne’s case and quite apart from the possibility of a statutory repeal or amendment, there was no guarantee prior to the constitutional amendment, that abortions of the kind not considered “unlawful” in Bourne’s case, might some day be regarded with impunity by Irish courts.
I do not intend to survey in detail the pre-1861 law relating to abortion in a manner analogous to that done by Munby J.

At common law, however, commission of the offence required that the woman was carrying the child and that there had to be quickening of that child. Both at common law and right through the various statutes leading up to the 1861 Act, there was no offence without a miscarriage and “miscarriage” obviously implied previous “carriage”. The 1803 Act used the expression “quick with child”. Likewise the 1828 Act. The 1837 Act required “intent to procure the miscarriage of any woman”.

Both on a simple reading but even more so given its historical context, I would take the view that “the unborn” refers to a child in the womb not yet born. As Hardiman J. points out in his judgment, the Irish language version which of course is the authentic version bears this out.

If it was intended by the Article that if a fertilised embryo was created outside the body of the woman, that embryo would have the constitutional right to life, I cannot imagine that the Article would be worded in that way. There would be no logic, for instance, in conferring the constitutional right to life on a suitable spare embryo duly frozen on the one hand and not to confer it on an unsuitable embryo. I do not believe that the constitutional provision was drafted or indeed voted upon with IVF treatment in mind. There may well be some who would take the view that IVF treatment necessarily destroys “life” but if the intention was that that view would prevail or indeed if the topic was under consideration at all, the Article would have been worded quite differently. Statutory regulation relating to spare embryos is one matter but constitutional protection of their lives is quite another. It is not easy to see how, in practice, the latter could be achieved but at any rate that is a matter for the Oireachtas and for the people and not for the courts. The function of the court is to interpret the Article as it stands and for the reasons which I have indicated, I am satisfied that there is no constitutional provision which has the effect of overriding the express objections of the father.

I want however to make it clear at this stage that I am in agreement with the often expressed view that spare embryos, being lives or at least potential lives, ought to be treated with respect. The absence of a statute or statutory regulations indicating how that respect should be given is undesirable and arguably contrary to the spirit of the Constitution.

It is, however, up to the Oireachtas to provide such regulation. Even if it were possible, it would not be appropriate for the courts to attempt any guidance in this respect. I would be the first to acknowledge that it is not an easy task. One practical issue neatly illustrates the difficulty. It is common knowledge that some will argue against all use of spare embryos for medical purposes and indeed within that group there will be those who would object to even the creation, never mind the retention, of spare embryos. On the other hand, there are many who would bona fide hold the view that some regulated availability of an unimplanted embryo for medical purposes is a use which can enhance life. Hardly a week passes now when some new alleged medical use of an embryo is signposted in the media, one of the latest being a cure for total blindness. The moral and ethical problems in this area are legion. There is no common agreement on their resolution. Since most of these problems are of an ultra modern nature, I rather doubt that there is a constitutional solution to them, but that does not mean that there cannot and indeed should not be regulation by the Oireachtas. If there are constitutional aspects, they do not arise pursuant to the particular provision in the Constitution relied on in this case.

There are two other points which I think it important to make. First of all, even with the traditional methods of conception and pregnancy there is a very high attrition rate.

Dr. Wingfield, among others, gave some detailed evidence on this matter. Developing a view, she expressed in evidence “that a fertilised egg is a long, long way from being a human”. She went on immediately to say the following:

“There are various studies in the literature showing that the attrition rate both in natural conceptions and in in vitrio conception is quite substantial and that the chances of a fertilised egg actually becoming a human being are quite slim. We know from IVF that if you start off with a hundred eggs only 3/4 % of those will actually form a human being.”

It was then put to her did she mean by that that there would be a “successful pregnancy and birth of that child”. She replied in the affirmative but added:

“There are many pitfalls along the way where the processes can go wrong and where development can progress abnormally and where the whole process is aborted because something has gone wrong.”

This part of her evidence arose to some extent from questioning in relation to a statement she had made that although there is a natural tendency to regard the fertilised egg as a “baby” then to use her own words “science indicates that a fertilised egg is unfortunately a long, long way from being a human.” Dr. Wingfield developed that opinion further by saying:

“It is unfortunate that we use the same term to apply to a 1-cell embryo and also to an eight week old embryo or foetus, which you can see on an ultrasound scan, you can hear its heart beat, you can see it moving and certainly that eight week embryo, I think the vast majority of people would regard as a baby and a person, but as a 1-cell entity, which is also called an embryo is a very, very different entity from that… There is a very big difference between an early pre-implantation embryo and an eight week old embryo.”

Interestingly, the very next question put to her by Mr. O’Donnell, counsel for the Attorney General was prefaced by the remark “I think this is not significantly in dispute, and indeed I don’t think there is any serious dispute about the biological facts of the development of embryogenesis and the development of the embryo.” There are mountains of evidence of a similar vein but those extracts, in my view, which are not controversial, illustrate the unlikelihood that the constitutional provision with its relatively short and simple wording could have been intended to cover pre-implantation embryos.
The second additional observation I would make is that the kind of situation which arose in this case, i.e. the marriage breaking up while the frozen embryos were in existence is likely rarely to occur. As already referred to in the judgment, there are sound medical reasons in ease of the mother who wants to have a baby by the IVF method, to provide for spare embryos. Even in the case of a stable marriage, it does not at all follow that following on a successful birth by the IVF method it would be intended or agreed by the couple that the spare embryos would be then used to produce a second child by the same method. The creation of the spare embryos may in many instances be intended merely for the purposes of their use if the first attempt fails, but not for their use if the first attempt succeeds. Again, with some people this may be controversial but with others it may seem perfectly reasonable. In a system of regulation which there should be, these matters can be teased out. But to my mind the complexity of them is itself a further indication that the simple right to life amendment, as drawn up, was not intended to resolve any of these issues. It had the single purpose of protecting the child (and by that expression I include the foetus) in the woman’s womb and nothing more.

I would reject both the contractual and constitutional grounds of appeal and would, therefore, dismiss the appeal.

Judgment delivered the 15th day of December, 2009 by Mr. Justice Fennelly
1. I agree that the appeal should be dismissed. I am satisfied that the first-named respondent is not bound by any contract or agreement or by the application of equitable principles to permit the frozen embryos to be implanted. In this respect, I agree with the judgment of Geoghegan J. and with the reasons he gives.

2. I am also satisfied that the frozen embryos do not enjoy the protection of the guarantees provided to the right to life of the unborn by Article 40.3.3 of the Constitution. I agree, for the reasons given in the judgments of Hardiman J. and Geoghegan J. that Article 40.3.3 does not extend to or include frozen embryos which have not been implanted. I do not think that the constitutional provision should be considered only as being intended to reinforce the effect of section 58 of the Offences against the Person Act, 1861. The people, in adopting the Eighth Amendment to the Constitution employed distinct, new and independent language.

3. Finally, I join Hardiman J. in expressing concern at the total absence of any form of statutory regulation of in vitro fertilisation in Ireland. It is disturbing, to use no stronger word, that some four years after publication of the Report of the Commission on Assisted Human Reproduction, no legislative proposal has even been formulated. Counsel for the Attorney General argued before us that there is no law or public policy regarding the protection of frozen embryos, in short that they have no legal status. As I interpret these submissions, the organs of the State have no present intention to propose any legislation. It is obvious that this is extremely difficult and sensitive subject-matter. It is controversial for all of the reasons mentioned by Hardiman J. and Geoghegan J. Nonetheless, it cannot be denied that the fertilisation of the ovum brings into existence, outside the womb, the essential unique components of a potential new individual human person. I agree with the judgments of Hardiman J. and Geoghegan J. that the frozen embryo is entitled to respect. This is the least that can be said. Arguably there may be a constitutional obligation on the State to give concrete form to that respect. In default of any action by the executive and legislative organs of the State, it may be open to the courts in a future case to consider whether an embryo enjoys constitutional protection under other provisions of the Constitution.

 

 

Adamson v North Eastern Health Board

[2013] IEHC 191

JUDGMENT of Mr. Justice Hogan delivered on the 19th April, 2013
1. In July, 2003 the plaintiff, Mr. Adamson, issued the present medical negligence proceedings arising from what he maintains were the deficiencies in treatment he received when he presented at Louth County Hospital (“the Hospital”) in the early days of January, 2000. The plaintiff, who at the time was aged 45, contends that the first two defendants failed to provide appropriate clinical care and failed to make a timely or proper diagnosis of an inter-cranial abscess or otherwise to make appropriate arrangements for the plaintiff’s clinical management. It is accordingly alleged that as a result of negligent diagnoses and treatment, Mr. Adamson suffered severe neurological injuries. The second defendant is a consultant physician attached to the hospital.

2. The present application concerns the joinder of the third defendant, Kieran O’Connor, by order made ex parte of this Court (O’Neill J.) on 23rd April, 2012. Mr. O’Connor was, at the material time, a consultant physician employed by the Hospital. Mr. O’Connor now moves this Court to have this ex parte order set aside on the ground that the delay in joining him has been inordinate and inexcusable and, furthermore, that the claim is also statute-barred.

3. One of the difficulties for all the parties is that the reconstruction of the precise sequence of facts on the days in question is, at this remove, no easy task. Allowance must naturally be made for the fact that since this incident Mr. Adamson speech and general recollection have been impaired. Nor could the plaintiff be expected to recall the precise identity of the various clinicians who treated him at the Hospital on the days in question. It is, however, necessary to endeavour to assemble the relevant undisputed facts before examining the relevant legal principles.

4. The plaintiff first presented to the Hospital on 1st January, 2000, suffering from headaches and a swollen face. It appears that influenza and an eye infection was suspected and Mr. Adamson was sent home. Mr. Adamson seems to have encountered difficulties with speech on 2nd January. He attended his general practitioner on the following day, whereupon he was referred immediately to the Hospital’s Accident and Emergency Department. Mr. Adamson was ultimately transferred to Beaumont Hospital in the afternoon of 4th January, 2000, where he underwent emergency surgery to remove pus which was placing pressure on his brain.

5. The Hospital’s clinical notes for the 3rd January, 2000, suggest that Mr. Adamson had woken up that morning unable to speak and that he had felt ill on the previous day. The entry for 8.15pm that evening contains a note to the effect that the treating clinician had discussed the case with Dr. O’Connor. The entry in nursing notes for 5pm on the same day record that Mr. Adamson “appears very ill” and that “Dr. O’Connor [has been] informed”.

6. It is important to stress that the clinical notes were first supplied by the Hospital to the plaintiff’s solicitors in October, 2003 following a request in that behalf in August, 2003. There were further requests for medical records between then and the delivery of the statement of claim in February, 2009. At that point, the plaintiff’s solicitor issued a motion for discovery and in June, 2009 the Hospital supplied the accident and emergency chart for 1st January, 2000, and the nursing notes for 3rd January, 2000.

7. Further requests for discovery were issued by the plaintiff’s solicitors in January, 2011. The object of these requests was to identify the casualty doctor who treated Mr. Adamson on 1st January 2000 and the duty roster for the medical staff at the Accident and Emergency Unit at the Hospital for the period from 1st January, 2000, to the 4th January, 2000.

8. A further affidavit of discovery was sworn on behalf of the Hospital in April, 2011. This affidavit identifies the Duty Registrar who treated Mr. Adamson on 1st January, 2000. The duty roster disclosed by this affidavit suggests that Dr. O’Connor was the consultant physician on duty on 1st, 2nd and 4th January, 2000.

9. The plaintiff’s say that they only learnt directly of Dr. O’Connor’s involvement following the supplemental discovery made in April, 2011. It was at the point they inquired whether the Hospital’s solicitors were representing his interests and whether he would be covered by the Hospital’s clinical indemnity scheme. Upon learning from the Hospital’s solicitors by letter dated 8th June, 2011, that he was not so represented by them and nor was he so indemnified, the plaintiff’s solicitors then applied to have Dr. O’Connor joined. It is only fair to record that the plaintiff’s solicitors had previously canvassed the possibility of joining Dr. O’Connor in August, 2010 in the course of correspondence addressed to Dr. O’Callaghan’s solicitors.
Whether the claim is statute-barred?
10. In considering this general question it is necessary first to bear certain considerations in mind so far as the plaintiff’s case is concerned. It is true that the proceedings are, in one sense, prima facie statute-barred in that they were issued several months after the (then applicable) time limit had expired. Yet there are several extenuating features of the plaintiff’s case. His ability to give instructions has been undoubtedly compromised by his illness. It may also be accepted that his general recall of this events and his ability to articulate what occurred also been diminished – perhaps considerably – as a result.

11. There is equally no doubt but that his legal team have represented him with great diligence and they have sought to explore every relevant dimension of these crucial four days from 1st January to 4th January, 2000. In this respect, the contention which has been advanced that time did not run against the plaintiff either by reason of his disability or by reason of the late discovery of the identity of Dr. O’Connor so that the operation of the Statute of Limitations has been thereby arrested cannot be regarded as insubstantial. The Supreme Court has made it perfectly clear that limitation issues should not properly be raised to defeat the joinder of a new party save where this would be “futile or manifestly ill-founded”: O’Connell v. Building and Allied Trade Union [2012] IESC 36, per MacMenamin J.

12. It is accordingly clear from O’Connell that, save in such clear-cut cases, questions of whether a particular claim is statute-barred should not be resolved in the course of a preliminary motion of this kind where the question of adding a new party is the sole issue under consideration. As MacMenamin J. noted in O’Connell, it would be different, of course, if the Court was hearing a motion directed exclusively to the question of whether the action is, in fact, statute-barred. For these reasons, therefore, it sufficient to say that the question of whether this claim is, in fact, statute-barred is not clear-cut and would be required to be separately adjudicated upon. I would accordingly decline to set aside the joinder of Dr. O’Connor on this specific ground.
Whether the delay in joining Dr. O’Connor has prejudiced his entitlement to a fair hearing
13. In truth, however, the principal issue in this case is not as such whether the claim is statute-barred, but rather whether the delay in joining Dr. O’Connor has appreciably jeopardised his right to secure a fair hearing. Here it is necessary to look at the matter from Dr. O’Connor’s perspective as well as that of Mr. Adamson. Even if it is accepted that no personal blame whatever can be imputed to the plaintiff for these delays, the plain fact of the matter is that the first notice which Dr. O’Connor received of such a joinder was in June 2011, over eleven years since the events giving rise to the present proceedings first occurred.

14. It is not disputed that Dr. O’Connor has no recollection of treating this particular patient. Accordingly, if he were obliged to defend these proceedings, he would be required to rely on the clinical and nursing notes. It appears that he would have been responsible for the patient on 1st January, 2000 as the consultant on duty according to the roster if the plaintiff had been admitted to the ward from the accident and emergency department or, alternatively, if he were called to treat the patient in accident and emergency.

15. There is, however, nothing in these notes to suggest that this was the case on that day. The clinical and nursing notes do both make a passing reference to Dr. O’Connor on 3rd January, 2000, but it is not possible to gauge from these notes the extent – if it at all – he was involved in the active management and treatment of the patient. The plain fact of the matter, nevertheless, is that if Dr. O’Connor were now forced to defend the allegations of personal negligence in these proceedings, he would be obliged to do so in circumstances where through no fault of his, the first notification of this came after eleven years and where he could not realistically be expected to defend the negligence claim on its merits.

16. It might, perhaps, be different if there was objective evidence which would have chronicled his actual involvement in some detail and which allowed for an independent evaluation of the extent to which his clinical performance met appropriate professional standards. There is, however, no such evidence in the present case. Indeed, as we have just noted, it is not even clear that Dr. O’Connor was ever involved in the active treatment or management of Mr. Adamson. All that is known from both the clinical notes and the nursing notes is that in the late afternoon and evening of 3rd January, 2000 Dr. O’Connor was informed of the deterioration in Mr. Adamson’s condition and that the treating clinician – probably a hospital registrar – discussed the case with him, even if this fact is taken to suggest that he was the most senior consultant on duty in the hospital on the evening in question

17. In these circumstances, it is all but impossible to see how Dr. O’Connor could fairly defend the claim on the merits. How could a court properly assess whether Dr. O’Connor had properly examined the patient or reached a correct diagnosis? How could the court possibly evaluate whether Dr. O’Connor had recommended the correct course of treatment in this case? These questions effectively answer themselves and show that an assessment of these questions would amount to be little better than pure conjecture or speculation.

18. Here it must also be observed that allegations of professional negligence impact on the good name of the practitioner concerned, which right is, of course, expressly protected by Article 40.3.2 of the Constitution. Even if the allegations do not attain the level of gravity which was at issue in II v. JJ [2012] IEHC 327 (where the plaintiff had alleged that she had been sexually abused by a sibling over twenty-five years previously), I venture nonetheless to suggest that the principle I articulated in that case equally applies to the present one:

“If the State’s obligation to defend the defendant’s constitutional right to a good name in Article 40.3.2 is to be meaningful, it must in turn imply that the procedures contained and operated in our legal system are framed in such a way such that a claim of this gravity is heard and adjudicated within a reasonable period of time.”
19. In the present case it is accordingly unnecessary to rehearse in any detail much of the voluminous jurisprudence which has attended this topic over the last decade or so. It is, perhaps, sufficient to record that in McBrearty v. North Western Health Board [2010] IESC 27 the Supreme Court confirmed that, in the words of Geoghegan J., there exists a distinct jurisdiction to strike out for undue delay which can be exercised “even in the absence of fault on the part of the plaintiff”.
20. Applying that test here, it is manifest that at this remove it would be grossly unfair to expect Dr. O’Connor to defend these proceedings on the merits and it could be all but impossible for a court to arrive at a fair determination of the case based on objective evidence which lends itself to independent scrutiny. This, of course, is no reflection on Mr. Adamson or, for that matter, his legal team, who have plainly striven so hard on his behalf. It is, rather, a recognition of the fact that by reason of the intervening delay over the last decade or so, Dr. O’Connor is simply in no position to address the contention that he did not properly diagnose or treat Mr. Adamson in the manner which has been alleged.

21. In Manning v. Benson & Hedges Ltd. [2004] 3 IR 556, 568 Finlay Geoghegan J. observed:

“The constitutional requirement [in Article 34.1] that the courts administer justice requires that the courts be capable of conducting a fair trial….Accordingly, if a defendant can on the facts establish that having regard to the lapse of time for which he is not to blame there is a real and serious risk of an unfair trial then he may be entitled to an order to dismiss.”
22. As I have indicated, Dr. O’Connor is certainly not to blame for the fact that the lapse of time has greatly complicated the ability of the legal system to provide a hair hearing of the claim against him, since, as we have seen, he was first notified of the fact that he might be joined in the proceedings more than eleven years after the events giving rise to the present action. The risk of an unfair hearing is, moreover, an acute one so far as the claim against him is concerned.
Conclusions
23. It remains to summarise my principal conclusions:

A. The allegations of professional negligence against Dr. O’Connor have the potential to impact on his professional reputation, and, hence, his constitutionally protected good name.
B. The protection of that good name demands that a claim of this nature is heard and determined within a reasonable period of time.

C. It is clear from the Supreme Court’s decision in McBrearty that the court retains an inherent jurisdiction to strike out for undue delay, irrespective of the fault of either party.

D. In the present case, the passage of time has greatly hampered the capacity of Dr. O’Connor to defend the case on the merits. He has no recollection of treating the patient and he would then be forced to rely on two passing references to him in the clinical and nursing notes respectively to assist him in determining his defence.

E. In these circumstances, a fair trial would be all but impossible and no fair conclusion could be reached on whether he had (or had not) met appropriate professional standards.

F. As the passage of time has also accordingly compromised the ability of this Court to discharge its constitutional mandate of administering justice and has equally violated Dr. O’Connor’s concomitant constitutional right to have a case impacting upon his good name tried and determined within a reasonable time, the Court is left within no option but to set aside the order joining Dr. O’Connor as a party to these proceedings.

 

Akpekpe v Medical Council

[2013] IEHC 38

JUDGMENT of Kearns P. delivered on the 1st day of February, 2013
These proceedings arise from the finding and decision of the Fitness to Practise Committee of the Medical Council made in relation to the applicant following an inquiry held pursuant to Part 8 of the Medical Practitioners Act 2007 (hereinafter referred to as “the Act of 2007”). At the conclusion of that hearing which took place in February, 2012 the Committee found that of several complaints against the applicant only one had been proven as to fact which amounted to poor professional performance. The Committee then decided that the appropriate penalty under s. 71 of the Act of 2007 was to apply the sanction of “advice” contained in s. 71(a) of the Act which provides for the sanctions of “an advice or admonishment, or a censure, in writing”. The Committee thus recommended to the Council that the applicant be ‘advised’ as to his performance on the basis that it was at the lower end of poor professional performance. The Medical Council considered the report of the Fitness to Practise Committee and decided to advise both the applicant and the public of the finding made in relation to his professional conduct, the reason being stated as the seriousness of the finding of poor professional performance made against him.

The present proceedings were commenced by leave of the High Court (Peart J.) granted on 26th March, 2012, in which the applicant seeks an order of certiorari quashing the finding and decision of the Fitness to Practise Committee and a further order quashing the decision of the Medical Council made subsequently thereto. In the proceedings the applicant seeks a declaration that the provisions of Part 8 and Part 9 of the Medical Practitioners Act 2007, insofar as they deny the applicant a right of appeal from a decision or finding of the Fitness to Practise Committee into the guilt of the applicant of an allegation of poor professional performance, constitutes a denial of fair procedures, a breach of the applicant’s constitutional rights, a breach of the applicant’s rights enshrined in the European Convention on Human Rights and Fundamental Freedoms and is contrary to the principles of constitutional and natural justice. The applicant also seeks a declaration that the provisions of s. 75(1) of the Medical Practitioners Act 2007 insofar as it denies the applicant a right to appeal against the imposition of a sanction and/or against the making of a finding by the Medical Council and/or the Fitness to Practise Committee of the Medical Council is repugnant to the provisions of Bunreacht na hÉireann and is void. Section 71(a) of the Act of 2007 is the only disciplinary provision of the section which does not admit of an appeal and the applicant contends that his equality rights are thereby infringed in that he lacks a range of remedies available to other medical practitioners who suffer more grievous findings and sanctions imposed under other limbs of the section. He contends that even the relatively modest findings made against him in this case have nonetheless extremely serious adverse consequences in terms of his professional reputation which warrant the existence and availability to him of some form of appeal mechanism.

No complaint was made at the hearing about the fairness of the hearing conducted by the Fitness to Practise Committee.

The statement of opposition delivered on behalf of the Medical Council denies that the non-existence of an appeal on being sanctioned pursuant to s. 71(a) constitutes an invidious or unjustifiable discrimination against the applicant or that aggrieved professionals in other professional regulatory systems enjoy a right of appeal from any finding made against them in relation to their professional performance or that all other professional persons have a right of appeal in similar circumstances. The applicant’s right to fair procedures does not mandate or require the existence of an appeal. Further, in circumstances where no sanction was imposed on the applicant, there was no determination of the civil rights and obligations of the applicant (the relevant civil right being the right to practise medicine) and in the premises the applicant is not entitled to the relief sought. It is further denied that the legislative regime in question infringes the applicant’s rights as guaranteed by Article 40 of the Constitution. On the contrary, the common good requires the publication of facts concerning persons such as the applicant which may affect the public. Any interference with his good name or professional reputation was upon grounds of legitimate public interest, was proportionate, without discrimination and reasonable.

Similar denials appear in the statement of opposition filed on behalf of the State respondents who contend that the Oireachtas is entitled to regulate the manner in which medical practitioners operate and to discipline its practitioners for breaches of the profession’s rules and standards of conduct. The Act of 2007 established an elaborate tiered structure for the investigation, determination and conclusion of complaints against medical practitioners. This process involves three separate bodies: a Preliminary Proceedings Committee to investigate a complaint in the preliminary and to determine whether a prima facie case has arisen under s. 59 of the Act, a Fitness to Practise Committee to hear the complaint in a full inquiry under s. 65 of the Act and the Medical Council to determine sanction under s. 71 of the Act. In this context it is submitted that a doctor’s rights are, and the applicant’s rights were, fully protected.
BACKGROUND FACTS
The applicant is a medical practitioner and fellow of the Royal College of Surgeons who in September, 2010 was employed by Mediserve Ireland, an “out of hours” medical service for general practitioners operating in Dublin.

On that date, the applicant received a call to attend at the home of Mr. Patrick Lowe of 50 Ashtown Park, Monkstown in the County of Dublin. Mr. Lowe was a 74 year old man with multiple physical and sensory disabilities who lived in the care of his sister, Ms. Elizabeth Lowe. Mr. Lowe was blind, cognitively impaired and with limited mobility and poor balance. These disabilities followed a fall down steps resulting in the head injury which occurred in 1999. Prior to that the plaintiff had epilepsy since childhood with a past history of alcohol dependency.

The applicant arrived at the home of the patient shortly after mid-day and was met at the front door by his carer. Following a discussion with the carer, who informed the applicant of the patient’s disabilities, the applicant conducted an examination of the patient, focussing particularly on an examination of the patient’s abdomen. He did this because he had been informed that the patient had stomach cramp and had previously vomited. The applicant carried out the examination by placing his hand on the patient’s abdomen and by using his stethoscope and an automatic sphygmomanometer. As far as the applicant was concerned, this abdominal examination revealed a mildly distended abdomen which was non-tender. The applicant noticed no evidence of peritonitis or no localised swelling to suggest a hernia. Auscultation was also normal. He thus was of the view that the patient had a viral gastrointestinal upset and advised that he be commenced on anti-emetics and oral dioralyte. He provided the carer with a prescription and felt satisfied that the carer understood his advices. He thereafter made his report as required by his employer to the relevant channels.

Subsequently, however, some two days following the examination of the patient by the applicant the said Patrick Lowe died at home and the post mortem report diagnosed an acute small bowel obstruction secondary to incarcerated para-umbilical hernia with aspiration of bowel contents. The post mortem concluded that death resulted from aspiration of bowel contents into the major airways consequent upon unrelieved small bowel obstruction due to an incarcerated para-umbilical hernia.

By letter dated 14th April, 2011, Ms. Elizabeth Lowe, the patient’s carer, made a complaint to the Medical Council about the conduct of the applicant in relation to the care of Mr. Patrick Lowe at his home on 13th September, 2010. The applicant was duly notified of the complaint and by letter dated 30th May, 2011, denied the allegations made by the complainant. By letter dated 8th September, 2011, the Medical Council advised the applicant that the Preliminary Proceeding Committee considered the matter set out in the complainant’s correspondence, together with the applicant’s correspondence, and had formed the view that there was a prima facie case to warrant further action being taken in relation to the complaint pursuant to s. 63(a) of the Medical Practitioners Act 2007 and had decided to refer the matter to the Fitness to Practise Committee.

Thereafter the applicant was furnished with a notice of intention to hold an inquiry under Part 8 of the Act and the said notice listed seven allegations of poor professional performance against him, as follows:

(a) failed to obtain an adequate medical history in respect of Mr. Lowe; and/or
(b) failed to carry out adequate examinations or carry out or arrange investigations in respect of Mr. Lowe; and/or

(c) failed to communicate adequately to Mr. Lowe’s sister, Ms. Elizabeth Lowe, that if Mr. Lowe’s condition deteriorated or did not improve, Mr. Lowe would require immediate follow-up treatment by a medical practitioner and/or a review in hospital; and/or

(d) provided to the Medical Council, by letter dated 26th June, 2011, a record of the treatment afforded by him to Mr. Lowe which differed from the record which he had previously furnished to Dr. Donald Brookes, general practitioner and/or doctor on duty; and/or

(e) failed to maintain any adequate records in respect of his attendance on Mr. Lowe;

(f) failed to adequately identify himself by:

(i) failing to confirm his full name to Ms. Elisabeth Lowe; and/or
(ii) writing a prescription and/or a record, which prescription and/or record:

(a) did not contain his Medical Council registration number; and/or
(b) contained an illegible signature; and/or

(g) such further allegations as might be notified to the applicant in advance of the inquiry.
The applicant was furnished with particulars of evidence, which included a report of Dr. Peter Wahlrab which contained a professional opinion on the allegations of poor professional performance made against the applicant.
The Fitness to Practise Committee proceeded to hear the complaint pursuant to s. 65 of the Medical Practitioners Act 2007 in February, 2012. It heard evidence from Ms. Elizabeth Lowe and Dr. Wahlrab on behalf of the Chief Executive Officer and the applicant gave evidence on his own behalf. At the conclusion of the hearing the Fitness to Practise Committee drew up its report and found that four of the allegations were not proven as to fact. The first allegation was proven as to fact and did amount to poor professional performance. The fourth allegation was proven as to fact but did not amount to poor professional performance.

The Committee recommended to the Medical Council that the applicant be advised as to his performance on the basis that it considered his performance to be at the lower end of poor professional performance. Pursuant to the provisions of s. 71 of the Act, the Medical Council considered the report of the Fitness to Practise Committee and decided under the provision of s. 71(a) of the Act of 2007 to “advise” the applicant in relation to his professional conduct the reasons stated as being the seriousness of the finding of poor professional performance made against the applicant.

Before considering the nature of the submissions made by the respective parties at the hearing, it is necessary to turn now to consider the statutory framework on foot of which the particular finding and sanction was imposed.
STATUTORY REGIME
The Medical Practitioners Act 2007 (hereinafter referred to as “the Act of 2007”) replaced the Medical Practitioners Act 1978 and provided for a range of measures in relation to medical practitioners, including the investigation of complaints brought against them. Parts 7 and 8 of the Act of 2007 relate to complaints made to the Preliminary Proceedings Committee concerning registered medical practitioners and Part 8 then deals with complaints which are thereafter referred to the Fitness to Practise Committee. Part 9 of the Act relates to the imposition of sanctions on registered medical practitioners following reports of the Fitness to Practise Committee.

Section 57 of the Act provides, inter alia, that a person may make a complaint to the Preliminary Proceedings Committee concerning a registered medical practitioner on the grounds of poor professional performance. In the interpretation section of the Act of 2007, “poor professional performance” in relation to a medical practitioner is stated to mean:-

“A failure by the practitioner to meet the standards of competence (whether in knowledge and skill or the application of knowledge and skill or both) that can reasonably be expected of medical practitioners practising medicine of the kind practised by the practitioner.”
A matter coming before the Preliminary Proceedings Committee shall under s. 63 of the Act, refer the complaint to the Fitness to Practise Committee where it is of the opinion that there is a prima facie case to warrant further action being taken in relation to a complaint. That is what occurred in the present case.
Section 65 (3)(b) of the Act provides that:-

“at the hearing of a complaint before the Fitness to Practise Committee the Chief Executive Officer shall present the evidence in support of the complaint and the testimony of witnesses attending the hearing shall be given on oath”.

Section 65 (3)(c) provides that:-

“there shall be a “full right to cross examine witnesses and call evidence in defence and reply”.
Section 67 of the Act provides that a medical practitioner may at this juncture consent to being censured by the Council. The Committee under the same section may also request the practitioner to undertake not to repeat the conduct the subject matter of the complaint or undertake to be referred to a professional competence scheme or to undertake any requirements relating to the improvement of his competence and performance which may be imposed. None of those things occurred in this case.
The Committee thus conducted and completed its inquiry and made findings as outlined above. It then submitted a report in writing on its findings to the Medical Council for the imposition of sanction by the Council under s. 71 of the Act.

As the constitutional validity of Part 9 of the Act is challenged in these proceedings, it becomes necessary to consider the relevant sections in some detail. Section 71 provides:-

“71.-Subject to sections 57(6)(a) and 72, the Council shall, as soon as is practicable after receiving and considering the report referred to in section 69(1) of the Fitness to Practise Committee in relation to a complaint concerning a registered medical practitioner where section 70(b) is applicable, decide that one or more than one of the following sanctions be imposed on the practitioner:

(a) an advice or admonishment, or a censure, in writing;
(b) a censure in writing and a fine not exceeding €5,000;

(c) the attachment of conditions to the practitioner’s registration, including restrictions on the practice of medicine that may be engaged in by the practitioner;

(d) the transfer of the practitioner’s registration to another division of the register;

(e) the suspension of the practitioner’s registration for a specified period;

(f) the cancellation of the practitioner’s registration;

(g) a prohibition from applying for a specified period for the restoration of the practitioner’s registration.”

It will be apparent from the foregoing schedule of sanctions that they are in ascending order of gravity. In the instant case, the Court is concerned only with the first of the sanctions imposed under s. 71 (a) because a practitioners remedies by way of appeal are quite different under that subsection than under the remaining subsections of section 71.
The Act of 2007 then provides:-

“74.- A decision under section 71 to impose a sanction (other than a sanction referred to in section 71(a)) on a registered medical practitioner shall not take effect unless the decision is confirmed by the Court on an application under section 75 or 76.
75.-(1) A registered medical practitioner the subject of a decision under section 71 to impose a sanction (other than a sanction referred to in section 71 (a)) may, not later than 21 days after the practitioner received the notice under section 73 (1) of the decision, appeal to the Court against the decision.

(2) The Court may, on the hearing of an appeal under subsection (1) by a medical practitioner, consider any evidence adduced or argument made, whether or not adduced or made to the Fitness to Practise Committee.

(3) The Court may, on the hearing of an appeal under subsection (1) by a medical practitioner –

(a) either –
(i) confirm the decision the subject of the application, or
(ii) cancel that decision and replace it with such other decision as the Court considers appropriate, which may be a decision –

(I) to impose a different sanction on the practitioner, or
(II) to impose no sanction on the practitioner,

and
(b) give the Council such directions as the Court considers appropriate and direct how the costs of the appeal are to be borne.”

The critical point insofar as the applicant is concerned, being the recipient of a sanction under s. 71(a), is that he enjoys no rights of appeal such as those enjoyed by practitioners found guilty and in respect of whom any of the sanctions described at s. 71 (b) – (g) are imposed.
By contrast, it is pointed out that, under the Medical Practitioners Act 1978, such a right of appeal was held to exist under and by virtue of s. 13(7) thereof, albeit that such right of appeal was limited to an appeal to the Council only and did not provide for an appeal to the Court.
SUBMISSIONS OF THE APPLICANT
Counsel for the applicant pointed out that while a clear appeal system is set out for sanctions listed in s. 71(b)–(f), there is no appeal mechanism in respect of the sanctions set out in section 71(a). Although the sanctions outlined in s. 71 (a) are more lenient than those set out in s. 71(b)–(f) the effect of such a sanction nonetheless has an irreversible impact on the applicant’s professional career and his livelihood.

Adverting to the disparity of appeal remedies as between s. 71(a) and s. 71(b)–(f), counsel on behalf of the applicant argued that the constitutional guarantee under Article 40.1 of the Constitution that all citizens shall be held equal before the law was thereby breached. In the absence of any legitimate rationale for the failure to provide an appeal mechanism for those medical practitioners affected by s. 71(a) of the Act of 2007, the said section must be seen as repugnant to the provisions of Article 40.1 of the Constitution. Ironically, under the current statutory regime a medical practitioner sanctioned more severely by the Medical Council is at an advantage over the applicant in that such person, having been more severely sanctioned, may appeal and the High Court on hearing the appeal can remove the sanction altogether.

Another aspect of equality before the law is the principle of equal access to the courts. The applicant had been denied this right also. The disparity of remedies could also be seen as a violation of the applicant’s personal rights under Article 40.3 of the Constitution, given that under that particular provision the State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen”. In the present circumstances, the plaintiff’s right to work and earn his livelihood had been substantially impacted by the findings made by the Fitness to Practise Committee. The decision of the Council to impose a sanction to advise the applicant of his professional conduct will remain on his employment record and permanently damage his name and reputation as a medical practitioner.

It is accepted that constitutional justice does not create an absolute right of appeal from any decision, but where there is a determination involving a civil right in a disciplinary hearing, it is necessary to provide an appeal on the merits of the case. This was clear under Article 6 of the European Convention on Human Rights which specifically states:-

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
When determining a civil right or obligation there must be the necessary mechanism whereby a right of appeal on the merits of the case is provided. In Ghosh v. General Medical Council [2001] UKPC 29 [2001] 1 WLR 1915, the proceedings of the Medical Council were held to be in compliance with Article 6 given the availability of a rehearing on appeal to the Privy Council. In that case it was stated at p.1922-1923:-
“Counsel’s principal contentions were directed to support a submission that erasure was an excessive and inappropriate penalty, and that the Board should substitute a lesser penalty such as a further period of conditional registration. He sought to persuade their Lordships to adopt a less restrictive approach to their jurisdiction than may sometimes have been adopted in the past. With this in view he reminded their Lordships that proceedings against a registered practitioner for professional misconduct involve a determination of his or her civil rights and obligations and accordingly attract the protection of Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such protection requires either that the decision-making body (in this case the committee) constitute an independent and impartial tribunal or, if not, that its processes be subject to control by an appellate body with full jurisdiction.”
In the applicant’s particular circumstances there was a further difficulty, namely, that the applicant’s legal advisers were placed in an invidious position because if they had advocated for a minimum penalty the net outcome became that their client would not be in a position to appeal this penalty. On the other hand had they advocated for a higher penalty they would have been advocating against the interests of their own client.
While, of course, the remedy of judicial review had been invoked by the respondents as indicative of a remedy available to the applicant, the applicant submitted that judicial review was not an adequate replacement for an appeal on merits. There are substantial differences between the two remedies, given that judicial review examines the legality and procedural conduct of an inquiry whereas an appeal is an examination based primarily on merits. In summary, the absence of a mechanism to appeal the decision leaves the applicant without any recourse to the courts.

Finally, while the applicant acknowledged that the Supreme Court in M.D. (A Minor) v. Ireland, AG & DPP [2012] IESC 10 [2012] 2 I.L.R.M. 305 confirmed that equality rights must be seen in context and that there may be objective reasons to justify differentiation, no such requirement arose in the instant case.
SUBMISSIONS OF THE FIRST RESPONDENT
Counsel on behalf of the first respondent, first pointed out that no case was now being advanced to suggest that the ruling or sanction imposed on the applicant should be quashed on judicial review grounds of irrationality or want of fair procedures. The case had become purely a constitutional challenge to the validity of the section only.

In this regard Parts 8 and 9 of the Act of 2007 enjoyed a presumption of constitutionality.

In terms of any proportionality test applied to the validity of s. 71 (a) it had to be borne in mind that this was the mildest of all the sanctions provided for under the disciplinary code, being less than either an admonishment or censure of the applicant.

As had been acknowledge on behalf of the applicant, no automatic right of appeal necessarily arises as a matter of constitutional justice. Nor, he argued, does Article 6 of the European Convention on Human Rights and Fundamental Freedoms have relevance or application, not least because the determination in the instant case was not a determination of civil rights. Article 6 of the Convention in any event does not require a right of appeal in all cases.

Insofar as the equality argument is concerned, the decision in M.D. (A Minor) v. Ireland, AG & DPP [2012] IESC 10 [2012] 2 I.L.R.M. 305 [2012] IESC 1 only outlaws invidious discrimination. There was no question of any such discrimination arising in the instant case, nor did the sanction imposed deprive the applicant of his employment or his ability to earn his livelihood.
SUBMISSIONS ON BEHALF OF THE SECOND RESPONDENT
Counsel on behalf of the second respondent argued that it was clear from the decision in M. v. The Medical Council & AG [1984] 1 I.R. 485 (at p. 498) that there was no basis for contending that there must be a right of appeal available to the applicant. As was apparent from the judgment in that case, the court had adopted the “Huddart Parker test” as the appropriate test in that regard. M. v. The Medical Council & AG (supra) was clear authority for the proposition that no right of appeal to the courts arises in the case of a minor censure or sanction which does not affect a citizen’s civil rights. In this regard a distinction must be drawn between major and minor sanctions. No civil right was affected in the process in which the applicant was involved.

Contrary to contentions advanced on behalf of the applicant, the Act of 1978 provided no appeal to the court for admonishment and the Nurses Acts and Dentists Acts had followed this regime in that none provide for a right of appeal for minor sanctions.

The structure of the Act of 2007 provides for two bodies to look at complaints. There is a preliminary screening body which assesses the complaint before the matter is considered by the Fitness to Practise Committee which must then hold a full hearing. Throughout its proceedings that committee has the benefit and assistance of advice from senior counsel. Any allegations must be proved beyond reasonable doubt.

In all these circumstances no real complaint could be made that there had been any procedural unfairness or that the disciplinary regime was disproportionately severe having regard to the public interest in upholding the highest standards of medical practice.

Insofar as the equality argument was concerned, equality was not to be equated with uniformity. As the case of M.D. (A Minor) v. Ireland, AG & DPP [2012] IESC 10 [2012] 2. I.L.R.M. 305 had made clear; the relevant question is to enquire whether any distinction is unjust, unreasonable or arbitrary.

Any distinctions arising in the instant case were fully justified in the sense that without such differentiation, every offender could challenge a sanction imposed if that sanction differed from that imposed on some other offender. The requirement was to look at the facts which gave rise to the imposition of the sanction and in this context one set of circumstances could be considerably more serious than another. While accepting that rights could be affected by the imposition of major sanctions imposed in relation to offences at the top end of the scale, this particular offence is at the very lowest end of the scale and involved a minor sanction only.

In reply to the submissions of both respondents, counsel for the applicant, emphasised that his client, if not entitled to a full right of appeal to the courts was at least entitled to an internal appeal which would admit of a fresh consideration of the merits. Kelly J. in Prenderville v. Medical Council [2008] 3 IR 122 had interpreted s. 13(7) of the 1978 Act as requiring interpretation in that manner. That right was taken away by the Act of 2007.
DECISION
Under both the Act of 1978 and the Act of 2007 the High Court is required to confirm particular sanctions of cancellation, suspension and conditions and the statutory scheme allows for a full appeal against decisions of the Council to impose such sanctions.

That said, it is clear from M. v. The Medical Council [1984] 1 I.R. 485 that the sanctions of advice, admonishment or censure may be characterised as minor sanctions only and of those three forms of sanction that of “advice” is at the very lowest end of the scale. In that case Finlay P. stated (at p. 499):-

“I am of the opinion that the powers conferred on either the Council or the Committee under the Act of 1978 are not judicial powers and that the functions being exercised by them are not the administration of justice. Apart from the right and obligation to hold the inquiry itself, the only power of the Committee or the Council which could be said to be final and, in a sense, binding are the publication of a finding by the Committee of misconduct or unfitness to practise and the Council’s power to advise, admonish or censure a practitioner. … these would be functions so clearly limited in their effect and consequence that they would be within the exception provided by Article 37 of the Constitution even if (contrary to what I believe to be the true legal situation) they constituted the administration of justice.”
Although M. v. The Medical Council was determined against the background of The Medical Practitioners Act 1978, the ambit of appeal under that Act was identical to that in the Act of 2007.
In that landmark case, Finlay P. expressly adopted the “Huddart Parker principles”, derived from the decision of Griffith C.J. in Huddart, Parker & Co. Proprietary v. Moorehead [1909] 8 C.L.R. 330 when he stated:-

“I am of opinion that the words “judicial power” as used in Section 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversy between its subjects, or between itself and its subjects, whether the right relates to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.”
In the Solicitors Act case (In Re the Solicitors Act, 1954 [1960] I.R. 239), the Supreme Court adopted this test and accepted as correct the words of Holmes J. in Purtis v. Atlantic Coastline 211 U.S. 210 at. P227:-
“The nature of the final act determines the nature of the previous inquiry”
and further accepted as correct the criterion laid down by Palles C.B. in R. (Wexford County Council) v. Local Government Board [1902] 2 I.R. 349 at p.374:-
“To erect a tribunal into a “Court” or “jurisdiction”, so as to make its determinations judicial, the essential element is that it should have power, by its determination within jurisdiction, to impose liability or affect rights. By this I mean that the liability is imposed, or the right affected by the determination only, and not by the fact determined, and so that the liability will exist, or the right will be affected, although the determination be wrong in law or in fact … But where the determination binds, although it is based on an erroneous view of facts or law, then the power authorising it is judicial.”
Both sides to this case accept that a right of appeal does not necessarily arise as a matter of constitutional justice in every case where a disciplinary body imposes a sanction.
Thus in Quinn v. The Honorable Society of Kings Inns [2004] IEHC 220 [2004] 4 IR 344 Smyth J. held that, even in circumstances where an application was viewed as a public law matter, the requirements of natural justice as regards a right of appeal would vary with the circumstances of the case. In that particular case the requirements of natural justice would not give rise to a right of independent appeal as the examiner and external examiner had reconsidered their decision and reviewed the applicant’s script. Thus it may be said that the nature of the finding and sanction is the critical factor which decides whether Article 34 of the Constitution (which requires that justice be administered by courts) is engaged. There must be a distinction drawn between major and minor sanctions, and the less the sanction may be said to affect an individual’s rights, the less it may be argued that a right of appeal to the courts must necessarily exist as a matter of natural or constitutional justice.

In Carroll v. Minister for Agriculture and Food [1991] 1 I.R. 230, a case which concerned the compulsory testing of cattle herds for reactors, the applicant complained, inter alia, that the test had not been carried out in a fair and proper manner and that the procedures adopted were not in accordance with constitutional and natural justice. In refusing the application, Blayney J. held that the fact that tests were carried out by independent veterinary surgeons with minimal risk of error involved in the test procedures, the absence of a right of appeal or a right to require an independent re-testing of a reactor was not a breach of the constitutional guarantees of basic fairness of procedures.

In effect, the only authority which the applicant could invoke in furtherance of his case that the absence of a right of appeal rendered the Act of 2007 unconstitutional was an interpretation given to s. 13(7) of the Act of 1978, given by the High Court (Kelly J.) in Prendeville v. Medical Council [2007] IEHC 427 [2008] 3 IR 122.

Section 13(7) of the Act of 1978 provided that the Acts of the Fitness to Practise Committee “shall be subject to confirmation by the Council unless the Council at any time dispenses with the necessity for such confirmation”. Kelly J. held that under that particular terminology a medical practitioner charged and found guilty of professional misconduct by the Fitness to Practise Committee should not be deprived of having his case and the decision considered afresh by the Council, which was the body charged by the Act with the control of persons engaged in the practice of medicine. He had also held that any alternative construction of the provisions of the Act of 1978 would render the Council impotent to consider and, if appropriate, refuse to confirm, a decision of the Fitness to Practise Committee on the most important decision affecting a medical practitioner’s career. The court had to consider the Act in a manner which was consistent with constitutional norms and conducive to enjoyment of the rights conferred under the Constitution and the Convention. He thus concluded that a decision of the Fitness to Practise Committee ought to be capable of independent reconsideration by the Council and held that the Act so ordained (at p. 153). It has to be said however, that the door that Mr. Justice Kelly saw opened to deem this Act constitutional was firmly closed by the coming into force of the 2007 Act which did not contain a provision similar to s.13(7) of the Act of 1978. There is thus no capacity now for the Medical Council to do anything other than accept the finding of the Fitness to Practise Committee as to guilt and proceed then to impose sanction. If they impose a sanction under s. 71(a) that ends the matter.

However, the central thrust of the submissions made on behalf of the applicant is that his right to equality before the law is compromised because he is treated differently from other medical practitioners found guilty of professional misconduct. It was contended that in the absence of any legitimate rationale being advanced by the Oireachtas for failing to provide an appeal mechanism for those medical practitioners affected by s. 70(a) of the Act, the section is repugnant to Article 40.1 of the Constitution which provides:-

“All citizens shall, as human persons, be held equal before the law.”
In M.D. (A Minor) v. Ireland, AG & DPP [2012] IESC 10 [2012] 2 I.L.R.M. 305 the Supreme Court stressed that the principle of equal treatment of all human persons is implicit in the free and democratic nature of the State. Strict equality is the norm laid down by Article 40.1 of the Constitution. However, the Article recognises that perfectly equal treatment is not always achievable or desirable because it could lead to indirect inequality because of the different circumstances in which people find themselves. Putting it another way, this case may be seen as the most authoritative up-to-date decision of our highest court which upholds equality rights but which nonetheless makes it clear that only invidious discrimination offends the constitutional provision. As Denham C.J. pointed out at p. 320:-
“Thus strict equality is the norm laid down by Article 40.1. However, the Article recognises that perfectly equal treatment is not always achievable, rather the Article recognises that applying the same treatment to all human persons is not always desirable because it could lead to indirect inequality because of the different circumstances in which people find themselves.
The second sentence of Article 40.1 recognises that human persons have or may be perceived by the Oireachtas to have ‘differences of capacity, physical and moral, and of social function.’ …. It is not correct to look at a law to see if it offends against the first sentence before turning to the second sentence to seek justification. The second sentence is concerned with what the first sentence means.”

Thus, to use the phrase from the judgments of Walsh J. in O’B. v. S. [1984] I.R. 316 and of Herbert J. in Redmond v. Minister for the Environment [2001] 4 IR 61, the test is to enquire if the distinction of which the applicant complains “unjust, unreasonable and arbitrary”.
I am satisfied that the provisions contained in s. 70(a) of the Act have not breached the applicant’s rights to equality before the law. The rights which he asserts are not absolute and may be qualified in appropriate circumstances in the common good. The Medical Council in particular is enjoined not only to safeguard the rights of medical practitioners but also the rights of patients and members of the public against risks posed to their life or safety. The Court must necessarily extend a broad margin of appreciation to the various disciplinary bodies established under the Act in calibrating these different rights and interests. The ability of the Medical Council to impose a sanction which does not directly impinge on the doctor’s registered status but which may usefully disseminate and publish information – as advice, admonishment, or censure – on the requisite standards which doctors must follow in the interests of patient safety should not be lightly set aside. It must be possible to draw factual distinctions as between different cases even though the same offence is alleged against a medical practitioner, and one set of circumstances may be more serious than others.

In R. (Nicolaides) v. General Medical Council [2001] E.W.H.C. Admin 625, the claimant had been found guilty by the Professional Conduct Committee of the General Medical Council of serious professional misconduct. According to the judgment of Sir Richard Tucker at para. 9:-

“As to penalty, the panel said they did not consider that it would be in the overall public interest to deny access to the claimant’s services to patients. But they issued what they described as the severest of reprimands. The panel recognised that this would have profound implications on the claimant on his standing with in the profession and have a devastating effect on him personally. Nevertheless, it is important to note that the claimant’s registration, and therefore his right to practise, was not affected.”
At the outset of the hearing before the Professional Conduct Committee, the doctor had objected to the hearing and alleged there had been a breach of the rules of natural justice and a failure to comply with the provisions of Article 6 of the ECHR. The applicant said there was a lack of independence and impartiality in the specific circumstances of the case. Having rejected the doctor’s complaints concerning the Professional Conduct Committee’s impartiality and independence, the High Court went on to consider the issue of Article 6 of the ECHR and held at paras. 28-32:-
“So far as Article 6 is concerned, I consider that it adds nothing to the common law requirements of natural justice. In any event Article 6 is not, in my opinion, engaged in the present case. The reason is that the PCC did not make a determination of the claimant’s civil rights because the claimant was only reprimanded. The civil right in question is the right to practise medicine, and this was unaffected by the decision …. The effect of a reprimand as opposed to a suspension or erasure is that it also prevents the claimant from exercising any right of appeal to the Privy Council. Section 40(1) of the Medical Act 1983 provides that the following decisions are appealable…(a) a decision of the PCC giving a direction for erasure, or for conditional registration or varying the conditions imposed by a direction for conditional registration. Thus, there is no appeal against a finding of professional misconduct accompanied by a reprimand.”
Subsequently, the issue was revisited by the Court of Appeal in the United Kingdom in the case of R. (Thompson) v. The Law Society [2004] EWCA Civ 167 [2004] I W.L.R. in which, having conducted an exhaustive review of decisions of the European Court of Human Rights, Lord Justice Clarke stated at para 84:-
“At any rate in a case where the court is considering the position after the tribunal had made its decision, as in the instant case, a decision to reprimand or severely to reprimand the person concerned (here the claimant) does not amount to a determination of his civil rights because the right to continue to practise his profession is not at stake.”
Thus, where a minor sanction only is imposed, there is ample authority for the proposition that not only does no right of appeal exist when referenced to the provisions of Article 6 of the European Convention on Human Rights, but equally assertions that the applicant’s livelihood and good name have been impermissibly affected under Article 40.3 of the Constitution must equally be seen as misplaced.
According to Hogan & Whyte, JM Kelly: The Irish Constitution, 4th Ed., at para 7.2.81:-

“Equality does not mean uniformity; laws may legitimately differentiate, and in some situations justice requires that they must do so. The courts have several times said that Article 40.1 does not mean that any legislative scheme must present identical features to all citizens; such a mechanical uniformity, in failing to appreciate the existence of categories naturally different (in the senses relevant to the purpose of the legislation) would work inequality in its result, rather than equality.”
In this case, the right of appeal is inserted in order to render the statutory scheme constitutional, not otherwise. That right of appeal exists where the sanction may be considered as serious. The sanction in the instant case is at the very lowest end of the scale and is not such as to warrant the existence or creation of a right of appeal. In The State (Hunt) v. O’Donovan [1975] I.R. 39, the High Court considered the suggestion that a restriction on the right to appeal against sentence constituted a breach of the applicant’s constitutional rights to equality. Finlay J. indicated that a court faced with an allegation of a breach of the right to equality must consider whether the different treatment:-
“.. constitutes either an invidious discrimination or a failure to protect adequately the rights of the individual.”
I am satisfied that no invidious discrimination may be said to arise in the instant case. For legitimate reasons, only persons who are subject to the lesser sanction set forth in the Act have no appeal. Thus there is no failure to protect the rights of the individual as there is a carefully constructed statutory scheme which vindicates the rights of doctors to fair procedures at each stage. I therefore see no reason to hold that the scheme must provide for some form of internal appeal.
I am satisfied that the impugned section of the Act, which, of course, is presumed to be constitutional has not been shown to be unconstitutional on the basis of any alleged infringement of the applicant’s rights under Article 40.

I am further satisfied that publication of the fact that a sanction has been imposed on the applicant does not violate his right to his good name or reputation. As Finlay P. pointed out in M. v. The Medical Council [1984] 1 I.R. 485 at p. 500:-

“Article 40.3.2 of the Constitution does not, and cannot, constitute an obligation on the State by its laws to protect a person from every statement or publication which may damage his good name. Quite clearly, the common good can, and does, require the publication of facts (including, it would seem to me, the opinion of his colleagues) concerning a person who carries out duties or follows professions which may affect the public. In the case of a person practising medicine, the public have a clear and identifiable interest to be informed of a responsible view reached by his colleagues with regard to his standard of conduct or fitness.”
The applicant did not in his application papers specify the breach of any particular rights under the European Convention of Human Rights and specifically did not seek a declaration of incompatibility of the Act of 2007 under the European Convention on Human Rights Act 2003 (hereinafter referred to as “ the Act of 2003”) and I am satisfied it would be inappropriate to permit the applicant to enlarge his claim by now arguing that Part 9 of the Act or certain provisions thereof are incompatible with Article 6 of the Convention. Further, as was made clear in M.D. (A Minor) v. Ireland, Attorney General & Director of Public Prosecutions [2012] IESC 10 [2012] 2 I.L.R.M. 305, provisions of the Convention do not apply in a free-standing manner and, as pointed out by Denham C.J. at p. 324-5:-
“In reality the Convention claim has been presented as subsidiary to the constitutional claim. The claim, as pleaded, is simply that s.3 is ‘in breach of’ the Convention. That formulation is not acceptable. It treats the Convention as if it had direct effect and presumes that the court has the power to grant a declaration that a section is in breach of the Convention ….the appellant has not formulated any acceptable legal basis upon which these Convention principles could enable this court to grant the declarations sought.”
It is not suggested by the applicant that the provisions of Part 8 and Part 9 of the Act can be interpreted in such a way as to grant the applicant a right of appeal against the finding of poor professional performance or the decision on sanction of advice. No declaration of incompatibility has been sought pursuant to s. 5 of the Act of 2003 and the applicant is simply not entitled to seek declarations that statutory provisions themselves deny the applicant tights enshrined in the Convention in circumstances where that Convention has no direct effect in national law.
For all these reasons I refuse to grant to the applicant any of the reliefs sought.

 

Corbally v Medical Council [2013] IEHC 500

JUDGMENT of Kearns P. delivered on the 14h day of November, 2013.
The applicant is a professor of medicine and a consultant paediatric surgeon who was working in Crumlin Children’s Hospital in 2012 but who is now working in Bahrain. The application is brought by way of judicial review to quash the decision of the first named respondent made on the 26th October, 2012, whereby the sanction of admonishment was imposed on the applicant in relation to his professional performance in the context of a frenulum release procedure carried out in Our Lady’s Children’s Hospital, Crumlin, on the 30th April, 2010. The applicant also seeks an order of certiorari quashing the finding of the first named respondent’s Fitness to Practise Committee (hereinafter “FPC”) set out in its report dated the 6th October, 2012, and notified to the applicant by letter dated the 26th October, 2012, whereby the FPC purported to make three findings of poor professional performance on the part of the applicant.

Other claims for relief are detailed in the statement grounding the application for judicial review, including, in particular, claims that Part 8 of the Medical Practitioners Act 2007, insofar as it fails to provide the applicant with an appeal from the first named respondent’s decision and/or the FPC findings, breaches certain constitutional rights of the applicant and is for that reason unconstitutional. A declaration is also sought pursuant to s. 5 of the European Convention on Human Rights Act 2003 that Part 8 of the Medical Practitioners Act 2007, insofar as it fails to provide the applicant with an appeal from the first named respondent’s decision and/or the FPC findings is incompatible with the State’s obligations pursuant to Article 6 (1) of the Convention itself.

By agreement between the parties, these claims of unconstitutionality and failure to comply with the requirements of the Convention were not proceeded with, pending resolution by this Court of the matters first outlined above.
THE FACTS
In early 2010, patient X, then two and a half years of age, was referred to the applicant’s private clinic in Our Lady’s Children’s Hospital in Crumlin by her G.P. with a history that the frenulum under her top lip was catching, causing an ulcer under that lip and contributing to a gap in her front teeth.

There are three frenula (congenital folds of tissue) in the mouth: an upper frenulum (a fold of tissue between the inner aspect of the upper lip and the anterior gum margin), a lower frenulum (between the lower lip and the anterior lower gum margin) and a tongue or lingual frenulum (under the anterior surface of the tongue). All three are small folds of tissue found in the midline.

Having examined patient X on the 25th February, 2010, the applicant recommended division of her upper frenulum, a straightforward and minor surgical procedure which normally takes less than one minute to complete. In writing up his notes of the examination, the applicant, who had correctly diagnosed patient X’s condition, described the required procedure as excision of “upper lingual frenulum”. There is no upper lingual frenulum and it is perhaps more accurately described as an ‘upper labial frenulum’.

On the 11th March, 2010, the applicant booked the patient in for her procedure and correctly completed an admissions form for the patient, listing her for a “tongue tie (upper frenulum)”. The procedure was to be performed as a day case on the 30th April, 2010. This form was sent to the admissions department where the patient’s details and the proposed procedure were entered into the patient administration system. Unfortunately the reference to the upper frenulum, through no fault of the applicant, was not inputted into the hospital system.

Difficult as it is to believe, the system as it then operated in Crumlin had one code only for all frenula dissection – all three types being described as “tongue tie”. That being so the operation was inputted in the system as “tongue tie release” without the addition of the words “upper frenulum”.

Following her admission on the 30th April, 2010, the patient’s family provided and furnished a consent to the procedure to the applicant’s senior house officer, Dr. A.J. Orafi, for a “tongue tie – upper frenulum release”. It is interesting to note that in the account of the consent process furnished by the mother of patient X, she maintains that when the doctor started to describe her daughter’s case as a “tongue tie procedure” she corrected the doctor by saying that it was her upper lip that needed a release and not her tongue. The junior doctor apparently stated that the procedure would still be called tongue tie. However, on the consent form also the procedure was clearly described as “tongue tie (upper frenulum) release”. It is worth noting that this pre-operative conversation took place in the presence of one of the nursing staff, Nurse Pollard, but it appears that this particular detail, for whatever reason, was not passed on to the surgical team in accordance with the “Correct Site Surgery Policy”.

While the applicant had intended to perform the surgery himself, he was called as a matter of urgency to attend to another patient in the intensive care unit. His account of events makes clear he was working under considerable pressure at the time. His specialist registrar, Dr. Farhan Tareen was thus delegated by him to perform the procedure. There is no issue but that the procedure was well within Dr. Tareen’s capability.

On the occasion in question the applicant accepts that he asked Dr. Tareen in the hospital corridor what was happening with the theatre list, reviewed it and asked Dr. Tareen to perform the tongue tie. The applicant asserted that he delegated the procedure by referring to the description on the theatre list. The hospital at the time had a protocol for a “surgical pause/time out” procedure in advance of the commencement of surgery. Both Dr. Tareen, the anaesthetist and nursing staff were present at the surgical pause. The purpose of the surgical pause is to undertake and complete a check to ensure that the correct patient is listed for the correct procedure at the correct site.

No evidence was given to the inquiry before the FPC that anyone during the surgical pause ever looked at the applicant’s notes. However, confusing as the original entry might have been, any confusion, had it arisen for that reason, would have been quickly eliminated by reference to the consent form, the admissions card, or to the pre-operative discussion between the parents of patient X and the SHO and/or Nurse Pollard, wherein the patient’s mother drew express attention to the site of difficulty.

Unfortunately, Dr. Tareen, in respect of whom charges were not pursued at the hearing before the FPC, carried out a lingual frenulectomy, which was an unnecessary procedure and one which, having been carried out, left the patient still requiring the upper frenulum release which was undertaken when the child was brought back to theatre that same day.

It is perhaps important to stress that this second procedure was uneventful and the child made a full recovery after a short period of pain and discomfort from the lingual frenulectomy and is suffering no ongoing disability as a result of the unnecessary operation which was performed.

Nevertheless, her parents were understandably upset and annoyed that the particular incident occurred and lodged a complaint with the first named respondent on the 4th September, 2010, alleging poor professional performance against Professor Corbally and his colleague Dr. Tareen.

From the outset, the applicant admitted that his wording of the procedure in his original notes was inaccurate and made a full and comprehensive apology to the parents of patient X. In fairness, everyone involved in what had occurred quickly realised that a series of errors and poor communication had brought about the particular mishap which at least had the fortunate consequence that a completely new protocol for such procedures was devised and put into place at the hospital so as to ensure that no such confusion or mistake could ever again occur.

Following receipt of the complaint the Preliminary Proceedings Committee of the Medical Council formed the opinion that there was a prima facie case to warrant further action being taken in relation to the complaint and referred same to the FPC. The FPC decided to hold an inquiry at which some eight allegations of poor professional performance were advanced. At the hearing, the majority of these allegations were withdrawn, but nonetheless the FPC made three specific findings against the applicant as follows:-

“Allegation number 1:
That on or around 25th February, 2010 Mr. Corbally incorrectly described the procedure required for patient X in her medical records as excision of ‘upper lingual frenulum’.

Having regard to the evidence adduced, the Committee found that:

Allegation 1 was proven as to fact.

Reason:

The Committee is satisfied, beyond reasonable doubt, on the basis of Prof. Corbally’s admission and the documentary evidence adduced that the facts are proven.

Allegation 1 did amount to poor professional performance.

By a majority the Committee is satisfied beyond reasonable doubt that this constitutes poor professional performance, on the basis of the expert evidence given by Mr. Grant and notwithstanding the expert evidence to the contrary given by Mr. O’Driscoll. The wrong diagnosis was recorded in circumstances where Prof. Corbally had a responsibility to accurately document the problem and planned surgical procedure. A minority view is that this entry did not influence the booked hospital procedure and therefore did not constitute poor professional performance.

Allegation number 6:

That on or around 30th April, 2010, Mr. Corbally delegated patient X’s surgery to Dr. Fahran Khaliq Tareen (“Dr. Tareen”) in circumstances where he failed to communicate adequately or at all to Dr. Tareen the procedure to be performed on patient X.

Allegation 6 was proven as to fact.

Reason:

The Committee is satisfied, beyond reasonable doubt, on the basis of Prof. Corbally’s admission and the corroborative evidence adduced that the facts are proven.

Allegation 6 did amount to poor professional performance.

The Committee is satisfied, beyond reasonable doubt, that this constitutes poor professional performance, on the basis of the expert evidence given by Mr. Grant and notwithstanding the expert evidence to the contrary given by Mr. O’Driscoll. Both expert witnesses agreed that Prof. Corbally was entitled to delegate this procedure to a qualified colleague; however Mr. Grant’s view convinced the Committee that he also had a responsibility to issue the correct instruction when making the delegation. This responsibility exists notwithstanding the pressures of work set out by Prof. Corbally. The known weaknesses in surgical systems at the hospital, such as the absence of team briefings before surgery commences and the absence from theatre (on occasion) of the doctor who has consented the patient/parents, only serve to increase the responsibility on a senior surgeon to communicate adequately when delegating a procedure to a junior.

Allegation number 8:

That Mr. Corbally failed to apply the appropriate standards of clinical judgment that could be expected from a surgeon with your experience or expertise.

Allegation 8 was proven as to fact.

The Committee is satisfied, beyond reasonable doubt, on the basis of the expert evidence given by Mr. Grant and notwithstanding the expert evidence to the contrary given by Mr. O’Driscoll that the facts are proven.

Allegation 8 did amount to poor professional performance.

The Committee is satisfied, beyond reasonable doubt, that this constitutes poor professional performance, on the basis of the expert evidence given by Mr. Grant and notwithstanding the expert evidence to the contrary given by Mr. O’Driscoll. The Committee had regard in particular, to the evidence that this procedure was rarely carried out in OLHC and that the surgical booking/coding system was known to be incapable of coding a procedure such as division of upper lip frenulum. In these circumstances, Prof. Corbally had a particular responsibility to ensure that all necessary precautions were taken to ensure that the patient received the correct surgery. His failure to do so, by relying on systems known or suspected to be flawed, constitutes poor clinical judgment.”

The FPC considered in addition that it was appropriate to specify that the hearing had thrown up significant evidence of systems failures at the hospital and recommended that the Medical Council pursue them. This concern focussed specifically on inadequate surgical booking/coding systems, the lack of implementation of the hospitals own “correct site surgery” policy and failure to effectively implement the surgical pause procedure, coupled with weaknesses in communication and leadership.
The FPC then concluded its report by recommending to the Council that it impose the sanction of admonishment or censure on the applicant, offering the following reason for doing so:

“The three findings of poor professional performance reflect a falling below the standards expected of a consultant paediatric surgeon. A sanction is appropriate in these circumstances and the Inquiry team believes admonishment or censure is proportionate to the content of the findings.”
The Council considered the report from the FPC and decided, under the provisions of s. 71 (a) of the Medical Practitioners Act 2007, as amended, to admonish the applicant in relation to his professional performance.
While this is the least serious of the sanctions provided for by s. 71 (a) of the Act, it nonetheless represents a serious sanction from the applicant’s point of view, not least because the decision would, absent the present proceedings, be notified to the public and to the registration authority in Bahrain where the applicant is currently working. The gravity of the matter from the perspective of the applicant could hardly be greater because he was the subject of extensive media coverage in relation to this case, which, had it been a trial before judge and jury, would most certainly have caused the trial to be aborted. The media reports stressed and emphasised that there had been a prior inquiry into the applicant’s conduct in a case which involved the removal of the wrong kidney from a six year old boy at the same hospital in 2008. That was also a case where the applicant had delegated the operation to a surgical registrar. That particular inquiry was halted as the Medical Council decided that the applicant and another medical colleague did not have a case to answer, although both the applicant and his colleague gave certain undertakings to the respondents at that time in relation to their future conduct. There was no suggestion (that the Court is aware of) and no finding by the FPC that the 2008 incident resulted from an erroneous note prepared by the applicant. While counsel on both sides say that the FPC had no regard to the prior incident, the nature and extent of the publicity surrounding the hearing were highly prejudicial to the applicant in terms of his career. That said, the absence of any adverse finding against the applicant from the 2010 inquiry or any other inquiry put this case in quite a different category than if there had been a prior finding of misconduct or poor professional performance made against him.
THE MEDICAL PRACTITIONERS ACT 2007
All steps taken in this matter were taken by the respondents pursuant to the provisions of the Medical Practitioners Act 2007.

The broad purposes of the Act appear in the long title which states as follows:-

“An Act for the purpose of better protecting and informing the public in its dealings with medical practitioners and, for that purpose, to introduce measures, in addition to measures providing for the registration and control of medical practitioners, to better ensure the education, training and competence of medical practitioners, to amend the membership and functions of the Medical Council, to investigate complaints against medical practitioners and to increase the public accountability of the Medical Council; to give further effect to Council Directive 2005/36/EC; and, for that purpose, to repeal and replace the Medical Practitioners Acts 1978 to 2002 and to provide for related matters.”
“[P]oor professional performance” is defined in s. 2 of the Act as:-

“…a failure by the practitioner to meet the standards of competence (whether in knowledge and skill or the application of knowledge and skill or both) that can reasonably be expected of medical practitioners practising medicine of the kind practised by the practitioner.”

Part 8 relates to complaints referred to the Fitness to Practise Committee and contains sections relating to the hearing of complaints by the Fitness to Practise Committee, including the conduct of a hearing and providing for a report to be made to the first named respondent by the Fitness to Practise Committee.
Section 69 of the Act provides:-

“(1) Subject to subsection (2), the Fitness to Practise Committee shall, on completing an inquiry into a complaint, submit to the Council a report in writing on its findings.
(2) The report referred to in subsection (1) of the Fitness to Practise Committee—

(a) shall specify—
(i) the nature of the complaint that resulted in the inquiry,
(ii) the evidence presented to the Committee, and

(iii) the Committee’s findings as to whether any allegation is proved,

and

(b) may include such other matters relating to the registered medical practitioner the subject of the complaint as the Committee considers appropriate.”
Thereafter, s. 70 as amended by s.12 of the Medical Practitioners (Amendment) Act 2011 provides:-
“The Council shall, on receiving the report referred to in section 69 (1) of the Fitness to Practise Committee in relation to a complaint—

(a) if the Committee finds that no allegation against the registered medical practitioner the subject of the complaint is proved, dismiss the complaint,
(b) if the Committee finds that any allegation against the practitioner is proved, decide [under section 71 or 71A, as may be appropriate] one or more than one sanction to be imposed on the practitioner.”

Part 9 of the Act then deals with the imposition of sanctions on registered medical practitioners following reports of Fitness to Practise Committee.
Section 71 of the Act provides as follows:-

“71.— Subject to sections 57 (6)(a) and 72 , the Council shall, as soon as is practicable after receiving and considering the report referred to in section 69 (1) of the Fitness to Practise Committee in relation to a complaint concerning a registered medical practitioner where section 70 (b) is applicable, decide that one or more than one of the following sanctions be imposed on the practitioner:

(a) an advice or admonishment, or a censure, in writing;
(b) a censure in writing and a fine not exceeding €5,000;

(c) the attachment of conditions to the practitioner’s registration, including restrictions on the practice of medicine that may be engaged in by the practitioner;

(d) the transfer of the practitioner’s registration to another division of the register;

(e) the suspension of the practitioner’s registration for a specified period;

(f) the cancellation of the practitioner’s registration;

(g) a prohibition from applying for a specified period for the restoration of the practitioner’s registration.”

Section 74 of the Act of 2007 as amended by s.17 of the Medical Practitioners (Amendment) Act 2011 provides:-
“A decision [under section 71 or 71A] to impose a sanction (other than a sanction referred to in [section 71 (a) or 71A(a)]) on a registered medical practitioner shall not take effect unless the decision is confirmed by the Court on an application under section 75 or 76.”
A right of appeal is available to a registered medical practitioner who is the subject of a decision under s. 71 to impose a sanction, but not where the sanction is a sanction referred to in s. 71 (a).
THE APPLICANT’S CASE
It is first submitted on behalf of the applicant that the admitted error in this case did not and could not come within the definition of “poor professional performance” as set out in s. 2 of the Act. It was submitted that the definition refers to a failure by the practitioner to meet the standards of competence which can reasonably be expected of medical practitioners practising medicine of the kind practised by the applicant. The definition therefore clearly relates to standards of competence and not, as in this case, a simple error in writing up medical notes. In assessing whether a professional person is competent, regard ought to be had to their overall abilities and powers and there had been no suggestion before the first named respondent that the applicant was other than a highly capable and competent practitioner. It was submitted that the concept of “poor professional performance” envisages a continuum of behaviour, a persistent or ongoing failure by a practitioner in the knowledge and skill or the application of knowledge and skill. A once-off “typographical error” could not be said to call a practitioner’s competence into question. Given that a finding inexorably leads to a sanction, it was submitted that not every error could be capable of constituting poor professional performance; this could only arise where the failing is such as to warrant a concern over the competence of the medical practitioner.

While “poor professional performance” had not been the subject matter of statutory or judicial definition in this jurisdiction, it was submitted that the terms ‘poor’ and ‘deficient’ were interchangeable and that the court could and should have regard to the interpretation of the latter term in the United Kingdom, most importantly in R (on the application of Calhaem) v. The General Medical Council [2007] EWHC 2606 (Admin), in which Jackson J. had noted that a single act or omission could only constitute deficient practice if it was “very serious indeed”.

Reliance was also placed on the case of Krippendorf v. General Medical Council [2001] 1 WLR 1054, a decision of the Privy Council which was one which, as in this case, was more concerned with deficient performance than misconduct. The court in that case had defined “seriously deficient performance” at p.1056 as:-

“…‘[A] departure from good professional practice, whether or not it is covered by a specific GMC guidance, sufficiently serious to call into question a doctor’s registration.’ This means that we will question your registration if we believe that you are repeatedly or persistently, not meeting the professional standards appropriate to the work you have been doing – especially if you might be putting patients at risk.”
It was submitted that a practitioner’s entire performance should be considered in the context of a complaint of poor professional performance. The FPC had before it testimonials from patients, medical practitioners and nursing staff in respect of the applicant’s abilities. The applicant had also taken part in a feedback analysis organised by the first named respondent in which he had been assessed by peers and patients, and in which his diagnostic skills were assessed as outstanding. Further, virtually all of the participants characterised his performance of practical and technical procedures as outstanding. Evidence to that effect had been given to the hearing by Dr. O’Sullivan, Consultant Paediatric Pathologist at the same hospital, who had worked with the applicant over a five year period and who described the applicant as “an excellent surgeon with extraordinary skills, an exceptional communicator and gifted teacher with a passion for teaching.”.
It was further submitted on behalf of the applicant that there must be some threshold established before a finding of poor professional performance is made, given that a sanction must inexorably follow. It was appropriate therefore for the court to imply the term “serious” when assessing the alleged poor professional performance, and this was the course which had been adopted by Keane J. in O’Laoire v. The Medical Council (Unreported, High Court, Keane J., 27th January, 1995).

It was particularly difficult to support such a conclusion where, as in this case, the admitted error was not causative of the later damage, in the sense that numerous opportunities had arisen whereby the confusing entry in the notes could have been detected and corrected. This could and should have been picked up by reference to the admission form which was completed for the purpose of internally scheduling this plaintiff for the surgical procedure. The coding system for the patient administration system and the theatre management system in operation at the hospital did not differentiate between the three procedures, but had only one term for all frenula dissection, namely, “tongue tie”. The applicant had included the text “upper frenulum” in the admissions form to clarify which procedure was to be performed on the patient and while the administration system allowed for the insertion of free text, this information had not been inputted into the system. It had been accepted at the hearing that the error to include the clarifying addition had been made by some unknown administrator. Further, the patient’s mother had clarified with two members of staff that her child’s upper lip needed release, and not her tongue. She had informed both the senior house officer and Nurse Pollard of this fact. The consent form which was completed by the senior house officer also correctly clarified the procedure and this document was available prior to the commencement of the surgery. While a surgical pause in accordance with hospital policy had been performed, it appeared that the consent form had not been looked at. The applicant had delegated to a well qualified delegate because he had to deal with a patient who was critically ill and who had undergone emergency surgery some days earlier.

In all the circumstances, the particular error in this case could not reasonably or rationally be said to reflect on the competence of the doctor. It certainly did not reflect upon his knowledge or skill.

It followed therefore that there had been an erroneous interpretation in law by the respondents as to the exact meaning of the term “poor professional performance”.

Alternatively, it was submitted that the findings and sanction imposed on the applicant were irrational and disproportionate findings having regard to the gravity of the case from the applicant’s point of view and the absence of any right of appeal. It was submitted that in Meadows v. Minister for Justice Equality and Law Reform [2010] 2 IR 701 the Supreme Court had clarified that in judicial review proceedings, especially where constitutional rights are at issue, an administrative decision may be challenged on the grounds that it is disproportionate. Such a challenge was particularly appropriate in this case, having regard to the fact that no right of appeal was open to the applicant having regard to the sanction which had been applied under s. 71 (a) of the Act. In Efe (a minor) & Ors. V. Minister for Justice, Equality and Law Reform & Ors., [2011] 2 IR 798, the High Court (Hogan J.) had held that in fundamental rights cases a rule of law which purported to constrain a court from protecting rights on the basis that it could only interfere where there was “no evidence” to justify a factual conclusion would be at odds with the Constitution. In that case Hogan J. had held that Meadows had reinterpreted the test in O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 by emphasising and focusing on proportionality. He held that, post Meadows, it was no longer correct to say that the courts are constrained to apply an artificially restricted test for review of administrative decisions affecting a fundamental rights and reasonableness and rationality grounds. Rather, the test is now broad enough to ensure that the substance and essence of constitutional rights will always be protected against unfair attack if necessary through the application of a proportionality analysis.

In Prendiville v. Medical Council [2008] 3 IR 122, Kelly J. had noted that “[a] finding of professional misconduct against any professional person is very serious” (para. 56). Clear evidence had been given in this case by Mr. O’Driscoll, consultant ENT specialist, of his view that the applicant had not engaged in poor professional performance. Mr. Grant, the expert engaged by the Chief Executive Officer, working as he was in the United Kingdom, was not in a comparable position to the applicant, a proposition which Mr. Grant himself accepted. Mr. Grant was not familiar with practices in Ireland and, it was submitted, had given varying and inconsistent opinions on what constituted poor professional performance.

Insofar as the FPC had made a finding against the applicant in respect of allegation number 8, it was further submitted that such a finding offended the principle of proportionality given that the finding in question had already been the subject of the findings made in respect of allegations number 1 and 6.

It was also submitted that the FPC had failed to provide intelligible, adequate and informative reasons for the particular findings which it did make. Both sides had requested that such reasons be given, as had the legal assessor to the FPC. While of course the FPC had set out some reasons, they had not addressed the question as to why the FPC preferred the evidence of Mr. Grant to that of Mr. O’Driscoll. More crucially, they had failed to give reasons as to how the facts as found fitted within the legal concept of “poor professional performance”.

In addition, reliance was placed upon fair procedures points, by reference to which it was contended that the applicant was at fault in this case because he knew of weaknesses in the system within the hospital, but it had been no part of the CEO’s original case against the applicant. The FPC had apparently placed reliance upon Mr. Grant’s evidence to the effect that the error in the theatre list was the fault of the applicant whereas in fact it had not been his fault. To trail in an additional basis of complaint which had not been alleged against the applicant, was, it was submitted, manifestly unfair. Equally, the superfluous additional finding made under allegation number 8 was also a breach of fair procedures, given that findings made in respect of other allegations rendered any finding under allegation number 8 superfluous. Yet that finding had clearly gone “into the mix” in determining the findings and sanction arrived at in this case.
THE RESPONDENTS’ CASE
On behalf of the respondents it was submitted that this was a simple case, brought in this way only because there was no right of appeal.

In reality there was only a single legal issue in this case, namely, what constitutes “poor professional performance”?

The answer was to be found in the definition of poor professional performance set out in the Act. That definition does not require any threshold of high seriousness nor does it require that a continuum of behaviour or conduct be established.

It could not be denied but that the applicant had made an error in describing the patient’s condition as one of “upper lingual frenulum” and this had appeared in the patient’s chart. The fact that others may also have been at fault in this case could not exonerate the applicant.

In the instant case the FPC had evidence to support its findings and was entitled to prefer the evidence of Dr. Grant to that of Dr. O’Sullivan. Extremely detailed submissions had been made to the FPC as to why they should not make findings against the applicant. The FPC heard those submissions, considered them, and rejected them, as they were entitled to do. The FPC had imposed a minor sanction which was adopted by the first respondent. The sanction imposed was entirely proportionate in the circumstances of the case.

It could not be said, in relation to poor professional performance, that a single error could never constitute poor professional performance. It would be quite absurd to contend that the respondents should wait for a series of events to occur before they could act.

The English authorities relied upon by the applicant arose from a very different statutory framework. The earlier Irish statutory scheme set forth in the Medical Practitioners Act 1978, provided for the holding of inquiries into “professional misconduct” or a practitioner’s “fitness to engage in the practise of medicine by reason of physical or mental disability”.

The meaning of professional conduct was thus originally limited to conduct which was disgraceful in the professional respect, and was gradually extended to encompass what might be described as “seriously deficient performance” by a medical practitioner. This change was effected in Ireland by the decision in O’Laoire v. The Medical Council (Unreported, Keane J., 27th January, 1995).

Under the Act of 1978, it was necessary (in order for there to be a finding of professional misconduct), for the registrar to present evidence of conduct in which the medical practitioner has seriously fallen short, by omission or commission, of the standards of conduct expected among medical practitioners. For example, conduct which could give rise to a successful action in negligence would not, of itself, give rise to a finding of professional misconduct. Further, it has always been the case that a single act or omission can give rise to a finding of professional misconduct.

The Act of 2007 introduced a new system of professional regulation whereby the Oireachtas greatly widened the matters in respect of which a complaint could be made. In particular, the Oireachtas introduced the concept of poor professional performance, which is clearly intended to refer to conduct which does not amount to professional misconduct.

In this case, the applicant’s advisors had ignored the express definition contained in the Act and had relied instead on English case law as to the meaning of “seriously deficient performance”. It was submitted that the English authorities were not particularly helpful. The Medical Act 1983 does not use the phrase “poor professional performance”. Insofar as it does refer to performance, the English authorities use the phrases “seriously deficient performance”, “grossly deficient performance”, and “deficient performance”, all without any statutory definition.

What had occurred in England was that the Committee on Professional Performance had indicated an interpretation of “seriously deficient performance” in a booklet published in November 1997 as follows:-

“Seriously deficient performance is a new idea. We have to find it as ‘a departure from good professional practice, whether or not it is covered by specific GMC guidance, sufficiently serious to call into question a doctor’s registration’. This means that we will question your registration if we believe that you are, repeatedly or persistently, not meeting the professional standards appropriate to the work you are doing – especially if you might be putting patients at risk.”
If the applicant’s submission was correct, it would effectively mean that professional misconduct and poor professional performance were one and the same thing. This proposition derives from the statement in Calhaem at para. 39 that a:-
“Single instance of negligent treatment, unless very serious indeed, would be unlikely to constitute ‘deficient professional performance’.”
Accordingly, if the applicant is correct, a single act could only ever be poor professional performance if it was “a very serious” failure by the practitioner to meet the standards of competence reasonably to be expected of medical practitioners practising medicine of the kind practised by the practitioner. If such a word is implied into s. 2 of the Act of 2007, it is hard to see the difference between professional misconduct and poor professional performance. As the Oireachtas must be presumed to have intended an amendment to the law to differentiate between “professional misconduct” and “poor professional performance” the word “serious” cannot be implied into the statutory scheme as the applicant contends.
In relation to the applicant’s second submission, it was contended on behalf of the respondents that the sanction of admonishment could not be said to be fundamentally at variance with reason or commonsense. Nor could they be said to be unsupported by any relevant material. Both the FPC and the Council had ample material before them on the basis of the evidence to support the finding and sanction imposed. The finding and sanction were not disproportionate.

In Meadows v. Minister for Justice Equality and Law Reform [2010] 2 IR 701, the majority of the Supreme Court held that the test of reasonableness in the context of judicial review proceedings encompasses the notion of proportionality. In other words, when reviewing administrative decision-making in the context of judicial review, a court is required to assess the proportionality of the impact of that decision on the constitutional rights of the affected person. In a case where the sanction of admonishment only was imposed, it is difficult to argue that proportionality can be an issue at all. Further, the majority of the court in Meadows determined that the test of reasonableness which has been applied since The State (Keegan) v. Stardust Victims Compensation Tribunal [1986] I.R. 642 was adequate to provide an effective remedy in judicial review, even where the decision under review has the potential to affect a person’s fundamental rights.

Finally, in the context of proportionality, the Court was reminded that in McManus v. Medical Council [2012] IEHC 350 (Unreported, High Court, Kearns P., 14th August, 2012), this Court was obliged to consider the sanction of advice imposed on the practitioner in that particular case in which I held at para. 39 that:-

“…[H]aving regard to the relatively mild sanction imposed in this case it is difficult to see how the applicant could invoke the decision of the Supreme Court in Meadows v. Minister for Justice [2010] 2 I.R. to argue that the sanction was disproportionate ….”
Third, in relation to the submission that no adequate reasons had been furnished by the FPC for its decision, it was clear from the Meadows decision (at p. 261) that the extent of the obligation was that the essential rationale for the decision must appear. In the McManus case [2012] IEHC 350 (Unreported, High Court, Kearns P., 14th August, 2012), this Court held it was sufficient for the practitioner to know “how and why” a finding was made.
There is no obligation on an administrative tribunal to set out detailed reasons why it prefers one explanation to another. This had been made clear by Dunne J. in Brennan v. An Bord Altranais [2010] IEHC 193 (Unreported, High Court, Dunne J., 20th May, 2010).

The extent of any such obligation had to be measured in the context of the particular case. While the parties had agreed that reasons be sought and given for the decision, that could not alter or determine the legal obligation. In the instant case the issue was a very simple one namely, whether the two acts or omissions complained of met standards of competence. Thus the “why and wherefore” of the FPC reasoning was clear and unambiguous.

Finally, in relation to the complaint of want of fair procedures, it was urged on behalf of the respondents that nothing new had been added during the course of the hearing. The reference to systems failures simply provided the context in which the findings had been made. However, it could be conceded that the finding in relation to allegation number 8 was repetitious, but the subtending facts had led the FPC to make such a finding and it should not be quashed.
DISCUSSION
While multiple issues have been agitated and canvassed during the course of the hearing, the central and critical questions appear to this Court to be as follows:-

(a) What constitutes “poor professional performance” as provided for by the Act?
(b) Can a single error in writing up patient notes constitute “poor professional performance”?

(a) Poor Professional Performance
Section 2 of the Act of 2007 clearly relates the failure of the practitioner to standards of competence. Essentially, based on the ordinary and everyday understanding of that terminology, this would connote an assessment of whether the professional in question has the power, ability and capacity for the particular task in which he or she is engaged. The long title to the Act of 2007 indicates that the overall purpose of the Act is to “better ensure the education, training and competence of medical practitioners”. However, s. 2 of the Act in defining “poor professional performance” may be taken as indicating what is meant by competence by reference also to the bracketed words (“whether knowledge and skill or the application of knowledge and skill or both”). (Emphasis added)

The Medical Council has itself developed rules for the assessment of a medical practitioner’s knowledge and skill by means of an assessment process introduced by Medical Council – Rules for the Maintenance of Professional Competence (No. 2) S.I. No. 741 of 2011. That assessment process involves an extensive review of the practitioner’s performance as an ongoing state of affairs.

Such a duty is expressly imposed on the first named respondent under Part 11 of the Act of 2007 (Maintenance of Professional Competence) where s. 91 (1) provides:-

“It shall be the duty of the Council to satisfy itself as to the ongoing maintenance of the professional competence of registered medical practitioners.”
Subsection (7) of s. 91 then provides:-

“Where, arising from the performance of its duty under subs. (1), the Council considers that a medical practitioner registered in the Specialist Division or the Trainee Specialist Division as being given every reasonable opportunity by the Council to improve the practitioner’s professional performance but if his professional competence is found by the Council to continue to be below the standards of competence that can reasonably be expected for continued registration in the Specialist Division, or the Trainee Specialist Division, as the case may be, then the Council may make a complaint.”
Thus the provisions of the Act and the rules made by the Medical Council in January, 2011 focus in particular on the “maintenance of professional competence”.
It is thus contended on behalf of the applicant that the supposed lapse or failure in any given case must not simply focus on a single lapse but rather must give rise to a question over the competence of the practitioner. Further, the failure must be one of “knowledge and skill” and not what was described in this case as an ‘inadvertent slip of the pen’.

A useful discussion of what constitutes poor professional performance appears in Mills, Ryan, McDowell and Burke “Disciplinary Procedures in the Statutory Professions” at paras. 2.51 – 2.63 inclusive.

The authors begin by stressing that the term “poor professional performance” entails different considerations from those applicable to misconduct allegations. The falling short does not have to amount to misconduct: “the falling short in question therefore must be a significant one, but not a ‘serious falling short’”.

The authors note that the applicable English statutes refer to findings of “deficient professional performance”, rather than poor professional performance.

Under the Medical Act 1983 in that jurisdiction, only “professional misconduct” was sanctionable by virtue of section 36. However, the Medical (Professional Performance) Act 1995, by s. 1 inserted an additional provision to s. 36 of the Medical Act 1983 to embrace the concept of professional performance which is “seriously deficient”. That test was in turn superseded by the Medical Act 1983 (Amendment) Order 2002 which provided for inquiries by the Investigation Committee into whether a practitioner’s fitness to practise is impaired and provided further as follows:-

“Section 35 C (2) – A person’s fitness to practise shall be regarded as ‘impaired’ for the purpose of this Act by reason only of –
(a) misconduct;

(b) deficient professional performance”

In this circuitous fashion, it seems to me that the relevant standards in the United Kingdom are similar to those provided for by the Act of 2007 although the word ‘impaired’ is not contained in s. 2 of the Act of 2007. Nonetheless, as accepted by counsel on both sides, the terms “deficient” and “poor” mean the same thing in effect.
The case of R. (Calhaem) v. General Medical Council [2007] EWHC 2606 (Admin) is thus of particular interest in this case.

This case involved an appeal by a consultant anaesthetist against a determination made by the fitness to practise panel of the General Medical Council to the effect that (a) the appellant’s fitness to practise was impaired because of misconduct and deficient professional performance and (b) the appellant’s registration should be suspended for three months.

At para. 39 of his judgment, Jackson J., having reviewed the authorities in that jurisdiction, derived five principles which he felt were relevant to the case before him as follows:-

“(1) Mere negligence does not constitute ‘misconduct’ within the meaning of section 35C (2)(a) of the Medical Act 1983. Nevertheless, and depending upon the circumstances, negligent acts or omissions which are particularly serious may amount to ‘misconduct’.
(2) A single negligent act or omission is less likely to cross the threshold of ‘misconduct’ than multiple acts or omissions. Nevertheless, and depending upon the circumstances, a single negligent act or omission, if particularly grave, could be characterised as ‘misconduct’.

(3) ‘Deficient professional performance’ within the meaning of 35C(2)(b) is conceptually separate both from negligence and from misconduct. It connotes a standard of professional performance which is unacceptably low and which (save in exceptional circumstances) has been demonstrated by reference to a fair sample of the doctor’s work.

(4) A single instance of negligent treatment, unless very serious indeed, would be unlikely to constitute ‘deficient professional performance’.

(5) It is neither necessary nor appropriate to extend the interpretation of ‘deficient professional performance’ in order to encompass matters which constitute ‘misconduct’.”

The third and fourth principles are those which are relevant to the present analysis. I believe they are the appropriate principles for construing s. 2 of the Act of 2007 also.
Furthermore, given that the Act of 2007 provides that any finding of poor professional performance must result in the imposition of a sanction and, in the case of a sanction imposed under s. 71(a) of the Act of 2007, permits of no appeal, it does seem to this Court appropriate to imply or import a requirement that a single lapse or offence must achieve a threshold requirement of being “serious”. Indeed, by reference to what has befallen the applicant by way of media reporting of this case and the references in such reporting to the earlier inquiry in 2010, the matter could hardly be more serious. Such an approach seems well justified having regard to the principles outlined by Keane J. (as he then was) in O’Laoire v. Medical Council (Unreported, High Court, Keane J., 27th January, 1995) when he stated (at p. 107):-

“Conduct which could not properly be characterised as ‘infamous’ or ‘disgraceful’ and which does not involve any degree of moral turpitude, fraud or dishonesty may still constitute ‘professional misconduct’ if it is conduct connected with his profession in which the medical practitioner concerned has seriously fallen short, by omission or commission, of the standards of conduct expected among medical practitioners.”
While, of course, the Act of 2007 changed the requirements which could justify the imposition of a sanction, the passage which then followed appears to me to be of considerable significance:-
“I do not attach any significance to the fact that the adjective ‘serious’ does not appear before ‘professional misconduct’ in s. 46(1)(a) unlike the provision under consideration in Doughty v. General Dental Council. Only conduct which seriously falls short of the accepted standards of the profession could justify a finding by the professional colleagues of a doctor (and a similar finding by this Court) of ‘professional misconduct’ on his part.”
These views lead into the second point which the Court will now consider.
(b) Can a single act or omission amount to ‘poor professional performance’?

I would commence this portion of the discussion by again approving and adopting the principles outlined by Jackson J. in Calhaem’s case. A single slip or error of a minor nature should not normally constitute poor or deficient professional practice. However, to exclude a grave error, albeit one occurring on a single occasion, would be to apply an interpretation which would undermine the purpose of the Act of 2007 and usher in a ‘one free strike’ scenario which would be inimical to the interests of both the medical profession and the public interest generally.

Section 2 of the Act contains no such words of limitation, and indeed by their reference to the “application” of knowledge and skill, the words may be taken as including all functions which the medical practitioner is obliged to perform in the course of medical treatment and preparation for same, including taking and maintaining clear and comprehensible notes and records.

In McManus v. Fitness to Practise Committee of the Medical Council and Another [2012] IEHC 350 (Unreported, High Court, Kearns P., 14th August 2012), this Court observed (at para.63):-

“I would have thought the keeping of accurate medical records was a matter of such basic importance to the discharge of the functions of any medical practitioner that no expert evidence on this topic would have been required or put forward by the Committee in the course of this inquiry. However inconvenient and burdensome it may be to write up medical reports accurately, such records constitute a vital safeguard for both medical practitioners and patients alike in any situation where it later becomes necessary to conduct any form of investigation as to what transpired during the course of a patient’s treatment. Every practitioner must be taken as knowing that records may later be used in court proceedings or other investigations or inquiries and hence their importance is self evident.”
While in the instant case there is no suggestion whatsoever of wrongful alteration or falsification of notes, which would probably in most cases amount to misconduct, I cannot accept the contention that the error, which the applicant very properly admitted, can be characterised as a “mere slip of the pen” or of no importance because it was “simply an erroneous transcription of one word”. History is full of examples of serious consequences which may attend simple transcription errors.
Dame Janet Smith considered the issue of a one-off serious episode of “negligence” in the fifth Shipman Inquiry Report, offering the view that an isolated or limited incident of negligence could not sensibly be described as serious professional misconduct and felt that such a case could fall through the net. She advocated that a further category should be added to the means by which impaired performance might be proved which could relate to one or more incident. (See Fifth Shipman Inquiry Report, 2004, paras. 25.70–25.71, pp. 953-4; para. 27.212, p. 1149–1150)

Though I am not conflating the concept of poor professional performance with a negligent act or omission, it seems to me that “poor professional performance” does encompass an isolated (though very serious) error, whether it be in treatment or as in this case, in the taking of notes which may form part of the documentation to be considered by the surgical team.

Was this a grave error? In terms of causation, I do not believe that case was ever made out. On the contrary, despite the initial error in writing up the patient’s notes, the applicant booked the patient in for her operation using an accurate and precise description. He never wrongly diagnosed that condition as suggested in the FPC findings. He wrote a confusing note which of itself should have prompted further inquiry by others prior to the commencement of surgery.

The real problem in this case undoubtedly lay with the systems in operation in Crumlin Hospital at the time which did not permit the applicant’s detailed description of the required procedure set out in the admissions card to be fully and properly transcribed. In fact, the system itself excised the words “upper frenulum release” from the system. Add to that the fact that the consent form accurately described the procedure and also the fact that a specific discussion took place between the mother of the child and the SHO and nurse who attended the operation which clarified precisely what was required, and one is forced to conclude, on any rational or reasonable basis, that the applicant’s initial error was not causative of the subsequent damage. It seems to me the FPC should have treated the admissions card as a revision or recall of the earlier erroneous note. Furthermore, the surgical pause which finally took place before the commencement of surgery also failed to pick up from all of the sources outlined above the precise nature of the procedure envisaged by the applicant.

The applicant was never charged with organising, devising or being in charge of the systems in Crumlin Hospital at the relevant time, yet was held responsible for those shortcomings, which included a system whereby all three versions of frenulum release were characterised only as “tongue tie” operations.

Having reached that conclusion, i.e., that the initial error was not causative of the damage in this case, could it nonetheless constitute poor professional performance by virtue of simply being sufficiently serious per se, notwithstanding the multiple opportunities which presented themselves for correcting the situation later and which were effectively ignored?

It seems to me only sensible that a non-causative lapse must be seen as less serious in character than the one which causes damage, in much the same way as one distinguishes between the failure of a motorist to give an indication to turn which has no harmful consequence and one which leads directly to a massive pile up and loss of life.

It seems to me that the question for consideration in a judicial review context can only now be resolved in the light of the Supreme Court decision in the case of Meadows v. the Minister for Justice Equality & Law Reform [2010] 2 IR 701 where the assessment necessarily involves asking the question whether the findings and sanction were proportionate on the facts of the particular case.

As stated by Murray C.J. in that case at para. 57 of his judgment:-

“In examining whether a decision properly flows from the premises on which it is based and whether it might be considered at variance with reason and common sense I see no reason why the court should not have recourse to the principle of proportionality in determining those issues.”
Again at para. 62 he stated:-
“It is inherent in the principle of proportionality that where there are grave or serious limitations on the rights and in particular the fundamental rights of individuals as a consequence of an administrative decision the more substantial must be the countervailing considerations that justify it. The respondents acknowledge this in their written submissions where it was stated:-

‘Where fundamental rights are at stake, the courts may and will subject administrative decisions to particularly careful and thorough review, but within the parameters of O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39, reasonableness review.’

In the same submissions the respondent stated, ‘as to the test of reasonableness, the respondents have already made it clear that they have no difficulty whatever with the proposition that, in applying O’Keeffe v. An Bord Pleanála, regard must be had to the subject matter and consequences of the decision at issue and that the consequences of that decision may demand a particularly careful and thorough review of the materials before the decision maker with a view to determining whether the decision was unreasonable in the O’Keeffe v. An Bord Pleanála sense.”
Applying this test to the facts of the instant case, I am satisfied that the FPC, with regard to allegation number 1, could and indeed was obliged, to make the finding of fact which it did, but was mistaken in characterising it as poor professional performance given that the error of the applicant was not a very serious one and made no real contribution to the eventual procedure carried out by Dr. Tareen. There is no evidence to warrant a finding that it did contribute or that the surgical team had any regard to it. What is clear is that the team had no regard to the multiple other sources of information which conveyed accurately the nature of the procedure required. In my view the unique and special circumstances of this individual case, including the serious consequences for the applicant and the absence of any right of appeal, do not pass a proportionality test which would support the imposition of the sanction in respect of allegation number 1.
In relation to allegation number 6, the applicant delegated the procedure to a competent delegate and this was accepted by all witnesses. The applicant delegated the task by reference to the theatre list. There was evidence before the FPC that any person to whom the applicant delegated the procedure would adhere to the hospital policy of conducting a surgical pause during the course of which the delegate would familiarise himself with the case notes prior to surgery. Given the circumstances of the communication (the applicant was hurrying away to deal with an emergency), I do not consider that a finding of poor professional performance could rationally be said to arise when the instruction given was so easily capable of being clarified by Dr. Tareen in advance of the specified procedure.

There is a further consideration which arises in this regard. It is evident that the FPC was inclined to the view that the true culprit in the instant case was a communications systems failure within the hospital. While these failures and shortcomings are extensively referred to in the findings of the FPC they formed no part of the allegations in respect of which the applicant was charged, including, in particular, allegation 6. In formulating its view on this charge, the FPC gave extensive consideration to shortcomings in the hospital protocols and systems and attributed blame to the applicant for his failure to recognise and work within what were characterised by the FPC as “known weaknesses of the system”.

While the applicant obviously had a clinical responsibility for the patient under his care, it does not seem to me appropriate that he be disciplined for systems failures for which he has no direct responsibility.

I am thus also satisfied that, in a judicial review context, the FPC took into account, in a manner detrimental to the applicant, an irrelevant consideration whereby they attributed blame to the applicant for systems failures which were in reality those of the hospital in question. I would quash the finding here also on fair procedure grounds, because it formed no part of allegation 6, but yet seems to have in reality formed the basis for the finding made against him.

I further agree that the findings at allegation 8 are repetitious and cannot possibly stand in view of the findings I have made in relation to allegations 1 and 6 respectively. For that reason I would quash the findings in respect of allegation number 8 also.
CONCLUSION
In this judgment I have refrained from any extensive treatment of the evidence actually tendered at the hearing by the various witnesses, principally for the very simple reason that this is a judicial review procedure and not an appeal on the merits. Many of the applicant’s submissions were addressed to the merits of the case and this in my view is not an approach to be encouraged in applications of this sort, although it is to some degree understandable given that no right of appeal exists in respect of the particular finding and sanction imposed on the applicant.

To the extent that it may remain necessary to record a view in relation to the supposed failure of the respondents to give reasons for their decision, I accept all of the respondents’ submissions in relation to the giving of reasons. Whatever about its correctness in law or otherwise, the applicant could have been in no doubt as to the ‘why’s and wherefores’ of the decision delivered.

Leech v Independent Newspapers (Ireland) Ltd

[2014] IESC 79

Judgment of Ms. Justice Dunne delivered on the 19th day of December, 2014

This is one of two appeals in respect of the litigation between the parties. Both appeals were heard on the same day. This appeal is brought on behalf of Independent Newspapers (Ireland) Limited (hereinafter referred to as the Newspaper) from the order of the High Court made herein on the 24th June, 2009 in which the plaintiff/respondent (hereinafter referred to as Ms. Leech) was awarded the sum of €1,872,000 by way of damages for libel together with an order for costs made herein on the 26th June, 2009.

Background
Ms. Leech in these proceedings sought damages for libel arising out of a series of articles in the Evening Herald newspaper owned and published by the Newspaper between the 30th November, 2004 and the 17th December, 2004. Ms. Leech instituted proceedings against the Newspaper on the basis that the articles in their natural and ordinary meaning meant that she was having an extramarital affair with Mr. Martin Cullen who was then the Minister for the Environment. Prior to the commencement of the proceedings, Ms. Leech worked as a Communications Consultant advising the Office of Public Works and subsequently, the Department of the Environment. Mr. Cullen was a junior minister in charge of the Office of Public Works and, subsequently, between 2002 and 2004 he was the Minister for the Environment.

The trial of the proceedings took place before a judge and jury over seven days and at the conclusion of the evidence the following questions were put to the jury:

“1. Did the articles mean that the plaintiff had an extramarital affair with Minister Martin Cullen?
2. Did the articles mean that the plaintiff had travelled to New York with Minister Martin Cullen for a United Nations Conference and failed ever to attend it?

If the answer to questions Nos. 1 and 2 is “No” proceed no further.

If the answer to questions Nos. 1 or 2 is “Yes” assess damages.”

The jury brought in a verdict having answered the questions as follows:
“Question 1: Yes.
Question 2: No.

Damages: €1,872,000.”

Accordingly, judgment was entered for that amount on the 26th July, 2009 and it was further ordered that a sum of €750,000 on account of the damages awarded and the sum of €100,000 on account of the costs awarded be paid forthwith and a stay was granted in respect of the order in the event of an appeal together with a stay on the payment of the sums of €750,000 and €100,000 until the 31st July, 2009 or until further order.
The appeal
The Newspaper has appealed from the judgment and order of the High Court made herein and the notice of appeal sought inter alia:

(1) An order directing a re-trial in the High Court on the issue of damages. The appeal in that respect was grounded on the following basis:
“The damages awarded against the defendant/appellant were of such a level that no reasonable jury could award and/or were disproportionate to the damage caused and/or constitute an unlawful interference with the defendant’s rights under the Constitution and/or under the European Convention on Human Rights.”
Complaint was also made as to the decision of the learned trial judge to direct the payment out of the sum of €750,000.

Scrutiny of the award of damages by a jury
This is a case which pre-dates the enactment of the Defamation Act 2009 which introduced new provisions, inter alia, in relation to damages particularly, in relation to the directions to be given to a jury by the trial judge in respect of a trial in the High Court and the matters to which regard shall be had in assessing damages. Prior to the 2009 Act, the trial judge was limited as to the directions that could be given to a jury on the subject of the quantum of damages. The assessment of damages was and remains a matter entirely for the jury but by virtue of the provisions of the 2009 Act it is now possible for the trial judge to give more detailed directions to a jury as to the assessment of damages. The position was different when these proceedings came to trial before the High Court. It is not suggested that there was any error on the part of the trial judge in his charge to the jury on the question of damages. Rather the complaint made is that the award of damages made herein is so disproportionately high that it ought to be set aside. However, it is important to point out that the fundamental task of this Court on an appeal from the verdict of a jury on the basis that the damages awarded were excessive, remains the same.

The parties in their respective submissions have both referred to a number of the same authorities in which the difficult question as to the assessment of damages in defamation actions has been considered. The first of those is the Supreme Court decision in the case of Barrett v. Independent Newspapers Limited [1986] I.R. 13. A passage from the judgment of Henchy J. in that case (at page 23) has subsequently found approval in a number of other decisions and for that reason it would be helpful to refer to the relevant passage in full. Henchy J. stated:

“In a case such as this in which there is no question of punitive, exemplary or aggravated damages, it is the duty of the judge to direct the jury that the damages must be confined to such sum of money as will fairly and reasonably compensate the plaintiff for his injured feelings and for any diminution in his standing among right-thinking people as a result of the words complained of. The jury have to be told that they must make their assessment entirely on the facts as found by them, and they must be given such directions on the law as will enable them to reach a proper assessment on the basis of those facts. Among the relevant considerations proper to be taken into account are the nature of the libel, the standing of the plaintiff, the extent of the publication, the conduct of the defendant at all stages of the case, and any other matter which bears on the extent of the damages. The judge, quite properly, in this case told the jury to ignore all matters in the article save the allegation of an assault. Also, quite properly, he told the jury that they should not allow their assessment of damages to be affected by the fact that the plaintiff had agreed to donate the damages to charity. Indeed it is right to point out that no criticism was made at the trial by either side of any part of the judge’s address to the jury.
The fact remains, however, that the jury were not given any real help as to how to assess compensatory damages in this case. A helpful guide for a jury in a case such as this would have been to ask them to reduce to actuality the allegation complained of, namely, that in an excess of triumphalism at his leader’s success the plaintiff attempted to tweak the beard of an unfriendly journalist. The jury might then have been asked to fit that allegation into its appropriate place in the scale of defamatory remarks to which the plaintiff might have been subjected. Had they approached the matter in this way, I venture to think that having regard to the various kinds of allegations of criminal, immoral and otherwise contemptible conduct that might have been made against a politician, the allegation actually complained of would have come fairly low in the scale of damaging accusations. The sum awarded, however, is so high as to convince me that the jury erred in their approach. To put it in another way, if £65,000 were to be held to be appropriate damages for an accusation of a minor unpremeditated assault in a moment of exaltation, the damages proper for an accusation of some heinous and premeditated criminal conduct would be astronomically high. Yet, a fundamental principle of the law of compensatory damages is that the award must always be reasonable and fair and bear a due correspondence with the injury suffered. In my view, the sum awarded in this case went far beyond what a reasonable jury applying the law to all the relevant considerations could reasonably have awarded. It is so disproportionately high that in my view it should not be allowed to stand.”

Subsequently in the case of de Rossa v. Independent Newspapers Plc [1999] 4 IR 432, Hamilton C.J. having quoted that passage commented:
“This passage emphasises:

(a) that it is the duty of the judge to direct the jury that the damages must be confined to such sum of money as will fairly and reasonably compensate the plaintiff for his injured feelings and for any diminution of his standing among right-thinking people as a result of the words complained of;
(b) that it is a fundamental principle of the law of compensatory damages that the award must always be reasonable and fair and bear a due correspondence with the injury suffered; and

(c) that if the award is disproportionately high, it will be set aside and not allowed to stand.

The obligations arising from the provisions of the Constitution and the Convention are met by the law of this State, which provides that the award must always be reasonable and fair and bear a due correspondence with the injury suffered and by the requirement that if the award is disproportionately high, it will be set aside.”
One of the matters at issue in that case was the question of whether or not guidelines should be given to the jury as to the level of damages awarded in other libel cases and in relation to the level of damages in personal injuries cases but the Supreme Court in de Rossa rejected the suggestion. Counsel on behalf of Ms. Leech laid particular emphasis on a passage from the judgment of Hamilton C.J. (at page 462) where he stated:
“That does not mean that the discretion of the jury is limitless: the damages awarded by a jury must be fair and reasonable having regard to all the relevant circumstances and must not be disproportionate to the injury suffered by the injured party and the necessity to vindicate such party in the eyes of the public. Awards made by a jury are subject to a right of appeal and on the hearing of such appeal, the award made by a jury is scrutinised to ensure that the award complies with these principles.”
It was stated by Finlay C.J. in the course of his judgment in Barrett v. Independent Newspapers Limited [1986] I.R. 13 (at page 19) that:
“With regard to the appeal against the amount of the damages, certain principles of law are applicable. Firstly, whilst the assessment by a jury of damages for defamation is not sacrosanct, in the sense that it can never be disturbed upon appeal, it certainly has a very unusual and emphatic sanctity in that the decisions clearly establish that appellate courts have been extremely slow to interfere with such assessments, either on the basis of excess or inadequacy.”
The “sanctity” of such awards is recognised in the passage from the judgment of the Court of Appeal in John v. MGN Limited [1997] QB 586 where it is stated at page 616 of the report as follows:
“The jury must, of course, make up their own mind and must be directed to do so. They will not be bound by the submission of counsel or the indication of the judge. If the jury make an award outside the upper or lower bounds of any bracket indicated and such award is the subject of appeal, real weight must be given to the possibility that their judgment is to be preferred to that of the judge.”
Both judgments recognise that the assessment of damages is a matter for the jury and that an appellate court must recognise and give real weight to the possibility that their judgment is to be preferred to that of the judge.
Consequently, an appellate court should only set aside an award made by a jury in a defamation action if the award made is one which no reasonable jury would have made in the circumstances of the case and is so unreasonable as to be disproportionate to the injury sustained.

It has been submitted on behalf of the defendant that larger awards should be subjected to a more searching scrutiny than has been customary in the past and that the test to be applied is:

“Could a reasonable jury have thought that this award was necessary to compensate the plaintiff and to re-establish his reputation?”
If such were the test to be applied, it would remove from the jury award the “very unusual and emphatic sanctity” referred to by Finlay C.J. and the giving of “real weight” to the possibility that their judgment is to be preferred to that of the judge as stated by Sir Thomas Bingham M.R.
Consequently, while awards made by jury must, on appeal, be subject to scrutiny by the appellate court, that court is only entitled to set aside an award if it is satisfied that in all the circumstances, the award is so disproportionate to the injury suffered and wrong done that no reasonable jury would have made such an award.

Thus it is clear that while the assessment by a jury of damages for defamation is not sacrosanct it does carry considerable weight such that appellate courts have been slow to interfere with the assessments by a jury and an appellate court should only set aside such an award if the appellate court is satisfied that the award is so disproportionate to the injury suffered and wrong done that no reasonable jury would have made the award in all the circumstances of the case. Counsel on behalf of the Newspaper laid emphasis in his submissions on the requirement of proportionality. Reference was made to a further passage from the judgment of Hamilton C.J. in de Rossa at page 456 in the context of whether guidelines as to quantum by reference to figures should be given to a jury where Hamilton C.J. said:

“It is submitted on behalf of the defendant that the aforesaid guidelines should be given to the jury in a defamation action and that the giving of such guidelines are mandated by the Constitution and Article 10 of the Convention as being necessary to vindicate the defendant’s rights under the Constitution and the Convention.
By virtue of the provisions of Article 40.6.1 of the Constitution, the defendant is entitled, subject o the restrictions therein contained, to exercise the right to express freely its convictions and opinions.

The exercise of such right is subject however to the provisions of the Constitution as a whole and in particular the provisions of Article 40.3.1 and 40.3.2 which require the State by its laws to protect as best it may from unjust attack, and in the case of injustice done to vindicate the good name of every citizen.

Neither the common law nor the Constitution nor the Convention give to any person the right to defame another person.

The law must consequently reflect a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen’s good name (Hynes-O’Sullivan. v. O’Driscoll [1988] I.R. 436). This introduces the concept of proportionality which is recognised in our constitutional jurisprudence.”

Counsel on behalf of the Newspaper also referred to the case of Independent News and Media & Independent Newspapers Ireland Limited v. Ireland (Application No. 55120/00, judgment 16th June, 2005) in which complaint was made by the Applicant against Ireland arising out of the decision in de Rossa. The complaint made was that the safeguards provided in Irish law against disproportionately high jury awards in libel cases were inadequate. The European Court of Human Rights in its judgment (at para. 110) commented as follows:
“110 The parties also agreed, and indeed it was made clear in the Tolstoy Miloslavsky judgment (at para. 49), that an award of damages following a finding of libel must be ‘necessary in a democratic society’ so that it must bear a reasonable relationship of proportionality to the injury to reputation suffered. The jurisprudence does not provide for a shifting protection of the rights involved once libel is established (as suggested by the Government at paragraph 90 above): rather the Court assesses whether the compensatory response to a libel was a proportionate one by finding where the appropriate balance lies between the conflicting Convention rights involved (Von Hannover v. Germany, no. 59320/00, para. 58, ECHR 2004 . . .).
111. However, the parties diverged on the question of whether the present award was proportionate. The applicants considered the award to be of such significance that the Court could not conclude as to its proportionality without examining the adequacy and effectiveness of the domestic safeguards against disproportionate awards and maintained that their application was indistinguishable from that of Tolstoy Miloslavsky. The Government were of the view that the issues raised were more complex than a mechanical application of that judgment and that, in any event, the present case was clearly distinguishable from the Tolstoy Miloslavsky case.”

The European Court of Human Rights concluded that it was not demonstrated, “that there were ineffective or inadequate safeguards against a disproportionate award of the jury in the present case”. Counsel on behalf of the Newspaper relied on those authorities and on the judgment of the European Court in the case of Scharsach v. Austria, Application No. 39394/98, judgment of 13th November, 2003, to argue that a disproportionately large award was an interference with the rights of the other party under Article 10 of the Convention which of course provides for the right to freedom of expression. This, of course, was recognised by Hamilton C. J. in the case of de Rossa where he acknowledged that the law must reflect a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen’s good name as referred to in the passage cited above.
Ultimately it was argued that having regard to the decision of the European Court of Human Rights particularly in the case of Independent News and Media Limited v. Ireland that there was limited room on appeal for any special deference towards jury awards of damages. Counsel on behalf of Ms. Leech took issue with that submission and argued that in the light of the decision of the Supreme Court in de Rossa and having regard to the decision of the European Court of Human Rights in Independent News and Media v. Ireland the position of the Supreme Court and indeed the European Court of Human Rights is that the Irish approach to scrutiny of the award of damages by a jury in cases such as this is compliant with the Irish Constitution and the Convention. It was further submitted that the decision of the European Court of Human Rights in Independent News and Media v. Ireland did not alter or reconfigure Irish law in respect of awards of damages in defamation actions. I agree with that submission. As is clear from the authorities referred to above the position in Irish law is that an appellate court will be slow to interfere with the verdict of a jury on the assessment of damages but nevertheless awards by juries are subject to scrutiny and if an award is so disproportionate in the circumstances of the case having regard to the respective rights of freedom of expression on the one hand and on the other hand the requirement under the Constitution to protect the good name of every citizen that no reasonable jury would have made such an award then the award will be set aside on appeal.
Factors to be taken into consideration
It is obvious that in subjecting an award of damages to scrutiny, it will be necessary for an appellate court to examine the facts and circumstances of any given case as it is only by doing so that one can determine whether the award is disproportionate to the wrong done. What factors can be taken into consideration in this regard?

The judgment of Hamilton C.J. in de Rossa is a useful starting point in considering this question. Both parties on this appeal have cited a passage from his judgment in which Hamilton C. J. quoted with approval a passage on this topic from the decision of the Court of Appeal in John v. MGN Limited [1997] QB 586, at page 463:

“The factors to be taken into account in determining the damages to be awarded are clearly set out in many cases and in particular in the judgment of the Court of Appeal in John v. MGN Ltd. [1997] QB 586 at page 607 of the report where it is stated as follows:

‘The successful plaintiff in a defamation action is entitled to recover, as general compensatory damages, such sum as will compensate him for the wrong he has suffered. That sum must compensate him for the damage to his reputation, vindicate his good name and take account of the distress, hurt and humiliation which the defamatory publication has caused. In assessing the appropriate damages for injury to reputation, the most important factor is the gravity of the libel; the more closely it touches the plaintiff’s personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be. The extent of publication is also very relevant: a libel published to millions has a greater potential to cause damage than a libel published to a handful of people. A successful plaintiff may properly look to an award of damages to vindicate his reputation; but the significance of this is much greater in a case where the defendant asserts the truth of the libel and refuses any retraction or apology than in a case where the defendant acknowledges the falsity of what was published and publicly expresses regret that the libellous publication took place. It is well established that compensatory damages may and should compensate for additional injury caused to the plaintiff’s feelings by the defendant’s conduct of the action as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the plaintiff in a wounding or insulting way’.”
Hamilton C.J. in the de Rossa case then proceeded to consider the damages awarded in that case under a number of specific headings, namely, the gravity of the libel, the effect on the plaintiff, the extent of the publication and the conduct of the defendant. I propose to consider these factors later in the course of this judgment but before doing so there are two other matters to which I wish to refer.
Compensatory damages
Counsel on behalf of the Newspaper have pointed out that the damages awarded in this case are “compensatory” damages. It was accepted that the role of compensatory damages in defamation cases is not on all fours with the role of compensatory general damages in personal injuries cases. There is a “vindicatory” element to damages in defamation cases which is not a factor in general damages in a personal injuries case. Nevertheless, it was argued that the core purpose of compensatory damages in libel cases is to compensate the plaintiff for the injury actually suffered such as injury to reputation, distress, hurt and humiliation. It was pointed out that there was no award of aggravated or exemplary/punitive damages made in this case. By contrast, counsel on behalf of Ms. Leech stated that compensatory damages embrace a variety of elements. It was submitted that one of those elements involved what could be described as aggravating factors, such as the conduct of a defendant even if that was not expressly provided for in the award of the jury. Reference was made to a passage from McMahon and Binchy, Law of Torts (4th ed.) in which the learned authors, speaking of the position that pertained prior to the coming into force of the Defamation Act 2009, made the following observation (at para. 34.366):

“Punitive damages were available in defamation claims though they were rarely awarded expressis verbis. Many very substantial jury awards over the years can be explained only in terms of their punitive purpose.”
Juries in defamation actions are sometimes asked to assess not just compensatory damages but also aggravated damages under separate headings and, in an appropriate case, exemplary/punitive damages. This is not a case in which the matter went to the jury on the basis that the jury was asked to assess damages under separate headings of general damages, aggravated damages and/or exemplary/punitive damages. To that extent this case has to be viewed on the basis that the award was designed to meet the factors encompassed by way of compensatory damages. It is not necessary to repeat again the passage quoted by Hamilton C.J. in de Rossa from the judgment of Sir Thomas Bingham M.R. in the case of John v. MGN which sets out in detail the nature of compensatory damages in defamation proceedings. As can be seen, a variety of factors require to be taken into consideration. Sir Thomas Bingham M.R. referred to the fact that compensatory damages could include an element to compensate for additional injury caused by the conduct of the defendant. To some extent there is an overlap with what is comprised in the category of aggravated damages. It is perhaps worth recalling the succinct description of damages given by Finlay C. J. in the case of Conway v. Irish National Teachers Organisation [1991[ 2 I.R. 305 in which he gave the following analysis of damages:
“In respect of damages in tort or for breach of a constitutional right, three headings of damages in Irish law are, in my view, potentially relevant to any particular case. They are: –

1. Ordinary compensatory damages being sums calculated to recompense a wronged plaintiff for physical injury, mental distress, anxiety, deprivation of convenience, or other harmful effects of a wrongful act and/or for monies lost or to be lost and/or expenses incurred or to be incurred by reason of the commission of the wrongful act.
2. Aggravated damages, being compensatory damages increased by reason of

(a) the manner in which the wrong was committed, involving such elements as oppressiveness, arrogance or outrage, or
(b) the conduct of the wrongdoer after the commission of the wrong, such as a refusal to apologise or to ameliorate the harm done or the making of threats to repeat the wrong, or

(c) conduct of the wrongdoer and/or his representatives in the defence of the claim of the wronged plaintiff, up to and including the trial of the action.”

Such a list of the circumstances which may aggravate compensatory damages until they can properly be classified as aggravated damages is not intended to be in any way finite or complete. Furthermore, the circumstances which may properly form an aggravating feature in the measurement of compensatory damages must, in many instances, be in part a recognition of the added hurt or insult to a plaintiff who has been wronged, and in part also a recognition of the cavalier or outrageous conduct of the defendant.
3. Punitive or exemplary damages arising from the nature of the wrong which has been committed and/or the manner of its commission which are intended to mark the court’s particular disapproval of the defendant’s conduct in all the circumstances of the case and its decision that it should publicly be seen to have punished the defendant for such conduct by awarding such damages, quite apart from its obligation, where it may exist in the same case, to compensate the plaintiff for the damage which he or she has suffered.”

Thus, it can be seen that aggravated damages are an element of compensatory damages increased by reason of such matters as were spelt out by Finlay C.J. There is a degree of overlap between ordinary compensatory damages and aggravated damages in defamation actions. The fact that a separate question did not go to the jury herein asking them to assess aggravated damages does not mean that when the jury were assessing damages having regard to the circumstances of the case, they could not consider the conduct of the defendant both in relation to the publication at issues, the lack of an apology and the manner in which the case was defended. In other words, their award could properly encompass an element of damages designed to compensate for those matters which, in an appropriate case, could be dealt with by way of a separate heading of aggravated damages.
The learned trial judge herein in his charge to the jury explained the purpose of damages as having three functions, namely:

“Consolation for the distress caused by the defamatory statement; to repair the harm to his or her reputation, and that includes business reputation, . . . and a vindication of the person’s reputation.”
He went on to tell the jury that they could consider, inter alia, the conduct of the plaintiff, her position or standing in society in Waterford, in Dublin, in her business community. He told them that they could consider the nature of the libel which in this case contained the suggestion that “She was immoral, that she was unfaithful to her husband, that she was a person of – the phrase is ‘loose morals’, that she had betrayed her marriage, that she had betrayed her family”. He told them that they could consider the mode and extent of the publication. He also advised them that they were entitled to take into account the absence of an apology if the jury considered that to be appropriate. He pointed out that the jury would be entitled to take into consideration, if they took the view that this was a gross defamation, the fact that the Newspaper had maintained that defamation “right up to what would be the bitter end”. These are factors that the learned trial judge told the jury they were entitled to consider. There was no issue raised by the defendant in this appeal regarding the charge to the jury.
It is long established that the jury in assessing damages can take into account relevant aspects of the conduct of the defendant from the time of publication up to the conclusion of the case, including such matters as the nature of the defamation, the extent of the publication, the absence of an apology or persisting in a plea of justification which is not supported by the evidence. These factors can be considered under the heading of compensatory damages or in an appropriate case, aggravated damages. There is no basis in this case to support the contention that in assessing compensatory damages, the jury took into account matters which did not arise under the heading of compensatory damages or that the jury was restricted in making the award of compensatory damages by reason of the fact that there was no separate heading of aggravated damages on the issue paper that went to the jury.
Comparisons with other awards
It was urged on the Court on behalf of the Newspaper that in considering the issue of proportionality it was open to this Court to consider awards that had been set aside as being too high in other defamation cases. Reliance was placed on the judgment of Keane C.J. in the case of O’Brien v. Mirror Group Newspapers Limited [2001] 1 I.R. 1 where he said at page 18:

“. . . I think it is important to bear in mind that there is nothing in the judgments of Henchy J. in Barrett v. Independent Newspapers Ltd. or Hamilton C.J. in de Rossa v. Independent Newspapers plc. to indicate that this court is precluded, on the hearing of an appeal, from determining the appeal in the light of awards in other defamation cases which have been the subject of appeals to this court.”
Undoubtedly, some assistance may be derived from a comparison of other cases in which awards have been set aside. Nevertheless one has to be careful in taking that approach. As Keane C.J. went on to say (at page 18):
“No doubt a degree of caution is called for in making such comparisons, since in cases of defamation, more perhaps than in almost any other action in tort, the facts which have to be considered by the jury vary widely from case to case. Moreover, as Lord Hailsham pointed out in Broome v. Cassell and Co. [1972] AC 1027 at p. 1071, when drawing the distinction between damages in defamation cases and damages for personal injuries: –

‘What is awarded is . . . a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are described as being ‘at large’.’

Provided those qualifications are borne in mind, some assistance may be obtained from the views expressed by this court as to the damages awarded in particular cases when those awards were either upheld or set aside.”
The Court in that case proceeded to compare the damages awarded to the plaintiff in those proceedings as against the damages awarded in the de Rossa case. Keane C.J. went on to comment:
“In the present case, the article complained of stated that the plaintiff had paid £30,000 to a government minister by way of a bribe for the purpose of securing a licence for a radio station and obtained the licence as a result of the bribe, that he had also secured a licence for ESAT Digifone in circumstances giving rise to a suspicion of bribery or corrupt practices and that the activities warranted investigation by the Flood Tribunal. These were undoubtedly seriously defamatory statements which justified the award of substantial damages. However, the case must be approached, in my view, on the basis that the damages awarded are in the highest bracket of damages appropriate in any libel case. They are comparable to the general damages awarded in the most serious cases of paraplegic or quadriplegic injuries and, relatively speaking, are in the same bracket as the damages awarded in de Rossa v. Independent Newspapers plc. [1999] 4 IR 432. The libel, however, although undoubtedly serious and justifying the award of substantial damages, cannot be regarded as coming within the category of the grossest and the most serious libels which have come before the courts.”
In the O’Brien case, the jury had awarded the plaintiff £250,000 by way of damages. The verdict of the jury was set aside and a re-trial was ordered. Ironically, the re-trial resulted in a decree of €750,000, a sum considerably more than that previously found to be excessive. No doubt the passage of time between the date of the original libel trial and the date of the subsequent libel trial had some bearing on the difference in the sums awarded. The passage of time elapsed between awards in other cases together with the wide variations possible in the factual matrix necessitates that some degree of caution must be exercised in determining whether an award of a jury is disproportionate by comparison of that award with other awards set aside on the basis of being excessive. Nevertheless, comparisons with other cases may provide some assistance in assessing the gravity of the libel.
It was also urged on the Court by counsel on behalf of the Newspaper that in considering the level of damages to be awarded in defamation actions, the Court should have regard to the highest level of general damages that may be awarded in the most serious personal injuries cases. It was argued that such an approach would be of assistance in assessing the proportionality of the damages awarded. Reliance was placed on the Supreme Court decision in the case of M.N. v. S.M. [2005] 4 IR 461, a case involving a trial by judge and jury in which the sum of €600,000 was awarded to the plaintiff in respect of injuries suffered by her by reason of the sexual abuse of the defendant over a number of years culminating in rape. The Supreme Court in that case set aside the award of €600,000 and substituted a sum of €350,000 by way of general damages on the basis that the sum of €600,000 was so far in excess of a reasonable award of compensation that it was disproportionate and needed to be set aside. One of the factors of relevance in that case was noted by Denham J. at page 467 of her judgment:

“It appears that this is the first award of damages for sexual abuse by a civil jury. It is the first appeal before the Supreme Court from such an award which raises the issue of the sum to be awarded in general damages for sexual assault, sexual abuse and rape in a continuum, of a teenage girl. Consequently, there are no precedents to guide the court. However, there is information from other sources which may inform the court and which may be of assistance.”
Denham J. went on to comment in the course of her judgment at page 475 as follows:
“At issue on this appeal is the award of general damages by a jury. In assessing the level of general damages, there are a number of relevant factors to consider. Thus an award of damages must be proportionate. An award of damages must be fair to the plaintiff and must also be fair to the defendant. An award should be proportionate to social conditions, bearing in mind the common good. It should also be proportionate within the legal scheme of awards made for other personal injuries. Thus the three elements, fairness to the plaintiff, fairness to the defendant and proportionality to the general scheme of damages awarded by a court, fall to be balanced, weighed and determined.”
She went on to observe:
“Having considered the facts and all the circumstances of the case, including the nature of the injuries of the plaintiff, the law on general damages for personal injuries, noting (but not applying) the Residential Institutions Redress Act 2002 and making reference to the conduct of the defendant in admitting his guilt at an early stage of the criminal proceedings, I am satisfied that the sum of €600,000 awarded by the jury is so far in excess of a reasonable award of compensation that it is disproportionate and should be set aside.”
Accordingly she allowed the appeal on the question of damages. She also expressed the view that she was satisfied that there “should be a rational relationship between awards of damages in personal injuries cases”.
I think it is apparent that there is a close relationship between an action for personal injuries and an action for damages for assault arising out of sexual abuse such as that described in M. N. v. S. M. Both such actions are, in reality, a form of action for damages for personal injuries. There is an obvious correlation between the type of damages that can be awarded in a personal injuries case and in a sexual assault case. It is not so easy to see an obvious correlation between an award in a personal injuries action and an award in an action for defamation. McMahon and Binchy, Law of Torts, make the following observation as to the difficulty in making an analogy between the situation in personal injuries awards and those in defamation cases at paragraph 34.364:

“It seems probable that, over time, a rough judicial ‘tariff’ will emerge as the Supreme Court translates broad generic ascriptions, such as ‘very serious’ and ‘most serious’, into actual numbers of euros. In England the courts have applied what is ‘in effect a ceiling’ figure, now of the order of £275,000.
We suggest that the Supreme Court should hesitate before following that lead. The English courts have been affected by the analogy of damages awards in personal injuries claims, where a ‘cap’ for general damages applies, as it does in Ireland. But that cap is based on considerations of principles and policy relating to personal injuries which has no direct parallel with those relating to defamation, where the function of damages ranges beyond compensating the feelings of the plaintiff to vindicating his or her good name.”

The authors went on to refer to the provisions of s. 31(7) of the 2009 Act which permits the Court to award special damages for financial loss suffered by a plaintiff as a result of injury to his or her reputation and observed:
“It may be that compensation for future economic losses will be incorporated into a global award of general damages and in any event the boundaries between special and other compensatory damages are somewhat porous.”
One of the arguments made in the de Rossa case was that juries should be told about the level of awards in personal injuries cases. Hamilton C. J. stated as follows at p. 459:
“On the issue as to whether or not references to awards in personal injuries actions should be permitted, I prefer the conclusion reached by the Court of Appeal in Rantzen v. Mirror Group Newspapers Ltd. [1994] Q.B. 670 to that reached in John v. M.G.N. Ltd. [1997] QB 586 and accept the reasoning contained in the following passage from the judgment of Lord Hailsham L.C. in Broome v. Cassell & Co. [1972] AC 1027, where he stated at p. 1071:-

‘In actions of defamation and in any other actions where damages for loss of reputation are involved, the principle of restitutio in integrum has necessarily an even more highly subjective element. Such actions involve a money award which may put the plaintiff in a purely financial sense in a much stronger position than he was before the wrong. Not merely can he recover the estimated sum of his past and future losses, but, in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge. As Windeyer J. well said in Uren v. John Fairfax & Sons Pty Ltd. (1966) 117 C.L.R. 118 at 150: ‘It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways – as a vindication of the plaintiff to the public, and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money.’ This is why it is not necessarily fair to compare awards of damages in this field with damages for personal injuries. Quite obviously, the award must include factors for injury to the feelings, the anxiety and uncertainty undergone in the litigation, the absence of apology, or the reaffirmation of the truth of the matters complained of, or the malice of the defendant. The bad conduct of the plaintiff himself may also enter into the matter, where he has provoked the libel, or where perhaps he has libelled the defendant in reply. What is awarded is thus a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are described as being ‘at large’. In a sense, too, these damages are of their nature punitive or exemplary in the loose sense in which the terms were used before 1964, because they inflict an added burden on the defendant proportionate to his conduct, just as they can be reduced if the defendant has behaved well – as for instance by a handsome apology – or the plaintiff badly,…”
Hamilton C.J. was dealing with the question or whether or not the jury should be told about the type of awards that could be made in personal injuries cases but the reasoning contained in the passage set out above demonstrates why there is a problem in trying to make a comparison between the awards of damages in personal injuries cases with the awards of damages in defamation cases. I have come to the conclusion that the analogy of awards in personal injuries cases may be of some assistance in the area of injuries caused by reason of sexual abuse but is not so useful an analogy in the case of awards in respect of defamation actions for the reasons explained above.

The gravity of the libel
I now propose to examine the factors that should be taken into account when considering the proportionality of the award of damages in this case, starting with the gravity of the libel. The starting point for this consideration has to be the meanings ascribed to the words complained of by the jury. It is clear from the answer to the questions posed to the jury on the issue paper that the jury accepted the thrust of Ms. Leech’s case to the effect that the article meant that:

(a) she, a married woman with two children, had an affair with the Minister;
(b) that as a result of that affair, she got lucrative Government contracts;

(c) that she was someone who was prepared to have an adulterous affair to advance her business career;

(d) that she betrayed the trust of her husband and children.

Undoubtedly the articles complained of by Ms. Leech in these proceedings amounted to a serious and sustained attack on her business and personal integrity. I think one could fairly compare the libel in this case with that in the O’Brien case which contained an allegation that the plaintiff had paid a £30,000 bribe to a Government Minister to procure a lucrative radio licence. In effect Ms. Leech was accused of engaging in an adulterous relationship for the sake of obtaining lucrative contracts. Such a defamation would undoubtedly have a serious effect on an individual’s business and personal reputation. I accept that the defamation in this case could not be described in the same terms as that in the de Rossa case which was described as coming within the category of “the gravest and most serious libels which have come before the courts” but it is nonetheless a very serious libel. Given the allegations of adultery made in respect of Ms. Leech, this must have been a source of real hurt and distress to Ms. Leech.
The extent of the Publication
The articles complained of in this case were published in the Evening Herald newspaper between the 30th November, 2004 and the 17th December, 2004. In all, the plaintiff sued in relation to eleven articles in nine editions of the Evening Herald newspaper over that period of time. This was described by Ms. Leech’s lawyers as a “deliberate press campaign”. A reference to a number of the headlines over some of the articles complained of give a flavour of the nature of the publications complained of. On the 30th November, 2004, the headline stated: “Minister’s P.R. friend on €1,200 every day”; on the 1st December, 2004, the headline read: “Cullen gave pal a SECOND top job”; also on the 1st December, 2004, the headline over an article was as follows: “Insiders reveal the luxury lifestyle of €1,200 a day political guru”. Over the following days headlines included the following: “Minister to face Fine Gael grilling over Leech controversy”; and “Cullen faces music over crony claim” and “Heat on Minister as Leech job offer is probed”; “Why inquiry must get to the bottom of Monicagate” and “Cullen paid Monica an extra €43,000”. A number of other articles focused on the role of the Minister. It can be seen that there was a sustained campaign over a number of days. The Evening Herald newspaper is a newspaper that circulates widely within the State having a circulation of approximately 90,000 newspapers sold per day. Further, the readership of the newspaper would be in excess of that number. This was not a one-off publication in a newspaper but rather was part of a sustained campaign building up over a period of just over two weeks. At the end of that period, Ms. Leech had gone from a person who would not have been known to the general public at all to someone who was notorious. The proportionality of the damages therefore has to be considered on the basis that the publication of the defamation in this particular case was particularly extensive and widespread.
The conduct of the defendant
The Newspaper in this case in the course of its defence pleaded a number of defences including justification (although it has to be said that the Newspaper did not seek to justify the meanings contended for by Ms. Leech but approached the matter by seeking to justify the articles on different meanings), fair comment, and what is now known as “Reynolds” privilege. The defence of Reynolds privilege was dropped during the course of the trial. This is a case which went to the jury on the basis of the two questions set out above. Insofar as the question of justification is concerned it is clear that the jury did not accept the arguments put forward on behalf of the defendant and accepted the meanings contended for by the plaintiff as set out in the first question put to the jury. To run a defence of justification on any basis and to fail is a matter which can be taken into account by the jury in the assessment of damages. It is, as was described in the course of submissions on behalf of Ms. Leech, a high risk strategy for a defendant.

That this is so can be seen from the judgment of Hardiman J. in the case of Bradley v. Independent Star Newspapers [2011] 3 IR 96 at page 122 where Hardiman J. stated:

“In my view, a defendant who wishes to plead justification must realise that he must justify the article actually published. In some cases there may be some genuine doubt as to its meaning: there is none here.
Odd forms of pleading such as this may arise in circumstances where the defendant realises that he cannot justify what he actually printed but believes he may be able to justify something not dissimilar. Accordingly, he pleads that the article means something other than what the plaintiff alleges and that, in this sense, it is true.

A plaintiff confronted with such a plea, in order to ensure an efficient and relatively brief hearing, which is no more expensive than it needs to be, should in my view consider bringing an application to the court by way of motion to decide whether or not the plea is a good one, and to resolve any genuine issues of meaning.”

Such a course did not occur in these proceedings. However, the point is that the Newspaper pleaded justification albeit not of the meanings contended for by Ms. Leech. This is, as was pointed out, a risky strategy and one which did not succeed, clearly.
It was also pointed out on behalf of Ms. Leech that no apology was offered by the defendant at any stage. Reference was made to the remarks of Geoghegan J. in the course of the decision in O’Brien which he said at page 43 of the judgment:

“In addition to the points which I have already made I think it relevant also to observe that no apology was made at any stage and that the jury may well have taken the view and could legitimately have taken the view that the article was very carefully crafted both to hint at wrongdoing on the part of the plaintiff and thereby titillate the public while at the same time engage in a damage limitation exercise with a view to avoiding libel. If the newspaper did adopt this exercise it was unsuccessful but it would have been open to the jury to take the view that they had done so. The award had to be of a level that the plaintiff would feel reasonably compensated.”
Thus, obviously, one of the factors that can be and may well have been taken into consideration by the jury in this case was that at no stage was there any offer of an apology to Ms. Leech by the Newspaper.
A newspaper that published no photographs would be a very dull newspaper, indeed. It is often the case that newspaper articles are accompanied by photographs which illustrates the article in which they appear. A further aspect of the conduct of the defendant complained of in these proceedings relates to the manipulation of the photographs which accompanied the newspaper articles at issue in these proceedings. One of the photographs was originally a photograph with four people in it including Ms. Leech and the Minister. It was cropped to show just the Minister and Ms. Leech and she complained that it was cropped in such a way as to give the impression that she and the Minister were “holding hands”. (See Day 4, page 103 of the transcript). She made this complaint about the photograph accompanying the article set out in Schedule 5 and again at Schedule 7 of the series of articles. She also complained of a photograph that showed her with a backdrop of New York. In that case there was a photograph of Ms. Leech the original of which was at a function in Waterford. It would perhaps be helpful to quote directly from the transcript of her evidence in this connection which is at page 103 of the transcript on Day 4, commencing at line 13:

“Then if you go all the way to this photograph, I was wearing this dress at a private function in Waterford, whereas behind me is the New York skyline. That takes an awful lot of effort, an awful lot of skill and a huge amount of intent on the part of the Herald to portray me in New York in a dress with the Minister. This time the Minister has been removed and a new version of him in a lounge suit is put in to make it look again as if I actually cavort during the day on government business in a dress like this. Then that brings me to the dress. Again, the photograph has been with great intent, with great skill has been manipulated to make my hand, which is down by my side, appear like my thigh. The dress has been manipulated, the photograph has been manipulated to now give me a dress that is slit to the waist, something I would never wear. Certainly this is not a way I ever appeared on government business.”
There is no doubt that the photographs used in the various articles were taken from real photographs of Ms. Leech with the Minister albeit in company with others. Equally there is no doubt that the photographs were cropped and manipulated. The photograph of Ms. Leech displayed against the background of New York certainly gave the impression that the type of dress being worn by Ms. Leech was one slit to the thigh. The fact that the photographs were manipulated and altered or cropped in the way described is something that the jury were asked to take into consideration in their deliberations on behalf of Ms. Leech and it was contended to the jury that the purpose of doing this was to suggest that Ms. Leech and the Minister were having an affair. It seems to me that the jury were entitled to take that aspect of the matter into account in the course of their deliberations. It was open to the jury to consider that the manner in which the photographs were manipulated was designed to lend force to the implication contained in the articles to the effect that Ms. Leech got her contracts by virtue of the fact that she was having an affair with the Minister. Therefore, this was an aspect of the conduct of the Newspaper that could be taken into consideration by the jury and, if considered by them to be appropriate, to mark it in their assessment of the damages.
The impact of the defamation
Defamation can impact on an individual in a number of ways. The defamation can impugn someone’s moral character. It can also impugn a person’s business, trade or professional standing. It can impact on other aspects of their status as a person, calling into question personal qualities such as honesty, loyalty, honour, thus impugning an individual’s personal integrity.

The defamation in this case was far reaching in the sense that it attacked Ms. Leech in respect of her personal and professional life. She was a married woman with two children. The implication of the articles was that she was unfaithful to her husband and that she had a part to play in the break-up of the marriage of Mr. Cullen and his wife.

The defamation attacked her professional integrity in that it conveyed to the world at large the impression that she was prepared to engage in an adulterous relationship in order to advance her professional standing and career. Running through the case was a question mark over the capability of Ms. Leech for the tasks for which she was engaged. Thus, the articles attacked not just her moral character but also her professional reputation.

Immediately prior to the appearance of this sequence of articles Ms. Leech had set up a consultancy business with another individual. That business was launched at the annual dinner of the Waterford Chamber of Commerce in November 2004. Following the publication of the articles, the individual with whom she had set up the business consultancy pulled out of the partnership with Ms. Leech. The business she had hoped to establish at that stage simply never got off the ground. In addition, at the conclusion of the contract with the Department of the Environment, her contract was not renewed.

Ms. Leech in the course of her evidence also described her own personal hurt and distress over the series of articles that appeared. She described not only her stress but also the effect that the articles had on her sons and on her husband. One of her sons had to change school during his Leaving Certificate year because of the articles. I think it is undoubtedly the case that the articles caused a great deal of stress to Ms. Leech and her family. In addition, she described how she was personally abused in Waterford as a result of the articles. Overall, it would be no exaggeration to say that the series of articles published by the Newspaper in respect of Ms. Leech had a profound effect on her in every aspect of her family and professional life. This is also a factor that can be taken into consideration by a jury.
Freedom of expression
The point was made on behalf of the Newspaper that the Court in considering the question of damages should have regard to the freedom of expression of the Newspaper. The argument was that extremely large awards of damages in cases such as this have a chilling effect on the freedom of the press and therefore should be subject to careful scrutiny. In this context, reliance was placed on the decision of the Supreme Court in the case of Dawson v. Irish Brokers Association, the Supreme Court, Unreported, 27th February, 1997, in which O’Flaherty J. observed at page 25 of the judgment:

“There may be cases where the circumstances of the case will call for the consideration of an award of aggravated or exemplary damages. But this was not such a case. The damages, as far as this case is concerned, could be compensatory only. The jury were entitled to award damages for loss of reputation, as well as for the hurt, anxiety, trouble and bother to which the plaintiffs had been put. However, the defendants in defamation cases should never be regarded as the custodians of bottomless wells which are incapable of ever running dry. The opposite has proved true in the publishing sphere in this and other countries – with sad consequences for those who lost employment as a result of untoward awards. Further unjustifiably large awards, as well as the cost attendant on long trials deals a blow to the freedom of expression entitlement that is enshrined in the Constitution.”
It is the case that an award of damages must be fair to the plaintiff and to the defendant. That cannot be gainsaid. However, freedom of expression is not an entirely unrestricted freedom. In the context of defamation proceedings it must be balanced by the provisions of Article 40.3.2 of the Constitution which provides that the State “shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen”. The matter was expressed trenchantly by Hamilton C.J. in the de Rossa case when he said at page 456:
“Neither the common law nor the Constitution nor the Convention give to any person the right to defame another person.”
Nevertheless it was accepted by Hamilton C.J. in that case in a passage referred to previously in the course of this judgment that the existence of the right of freedom of expression and the obligation on the State by its laws to protect as best it may from unjust attack and in the case of injustice done to vindicate the good name of every citizen necessarily involves what Hamilton C.J. described as “a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen’s good name”. It is from that balancing exercise that he identified the concept of proportionality. Accordingly, I am satisfied that an award of damages cannot be so disproportionate as to have the effect of not just vindicating the good name of the citizen but of restricting the freedom of expression of a newspaper.
Damages
The award of damages in this case in the sum of €1, 872,000 is a very large award by any standard. The defamation in this case consisted of a series of articles over a period of two and a half weeks which impugned the character of Ms. Leech in every aspect of her life. It is clear that the effect of the defamation in this case was considerable. It appears to have had a real and long lasting impact on her professional life. Her contracts were not renewed and the business which she had just set up with another individual collapsed almost as soon as it had begun. The defamation also impacted on the life of her family to an extent that must have increased the stress and personal hurt felt by Ms. Leech. The extent of the loss in terms of her business life was never quantified and there was no claim in respect of special damages but, of course, it would be open to a jury to include in an award of general damages an element of damages in respect of loss of business opportunity. Overall, I am satisfied that the defamation in this case was a very serious defamation. Undoubtedly, if one was to place the defamation in this case on a scale of seriousness, it would certainly be towards the higher end of the scale. A somewhat unusual feature of this case was the sustained campaign in the Evening Herald in respect of Ms. Leech The consequences of it affected her in her day to day life, personally and in her business life. Her newly launched business was destroyed before it could become established. I have no doubt that from her point of view it was a very serious matter. Nevertheless, I do not think it could be classed as one of the most serious libels to come before the Courts, such as that in the de Rossa case. That said, the award made to Ms. Leech in this case was one of the highest ever awards made in a case of this kind in this country. Even accepting that this case is one that comes towards the higher end of the scale, I am satisfied that the award made by the jury in this case was excessive and must be set aside.

I am conscious of the firm instructions of Ms. Leech to her legal representatives that in the event that this Court came to the conclusion that the amount of the award was excessive that the Court should in those circumstances remit the matter to the High Court for assessment by a jury again. Whilst I understand those to be her instructions I am satisfied that in the context of this case it would be desirable for all parties to bring an end to the litigation between the parties and in those circumstances it seems to me that the approach to be taken by the Court should be to set aside the verdict of the jury on damages and to substitute a sum in the figure of €1,250,000 for damages.

In the circumstances it is not necessary to address the argument made on behalf of the Newspaper as to the correctness or otherwise of the order made by the learned trial judge directing the payment out of the sum of €750,000 by way of damages and the sum of €100,000 by way of costs on an interim basis pending the appeal.

Accordingly, I would allow the appeal of the Newspaper and would substitute the sum of €1,250,000 by way of damages for the sum awarded by the jury in this case.

 

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 19th day of December, 2014 (No 1)

Introduction:
1. The plaintiff is a married woman with two children, and, for several years leading up to the events next described, had been working as a communications consultant in the private sector in this country. The defendant is the proprietor and publisher of numerous publications, including the “Evening Herald”, which is a daily publication with a substantial and nationwide circulation. The third person who features in this case is Mr. Martin Cullen, who at all material times was a senior Minister in the Irish Government.

2. Within quite an acute timeframe, that is between the 30th November, 2004, and the 15th December, 2004, the defendant published a series of articles of and concerning the plaintiff, on the following occasions and under the following headlines:-

“1. 30th November, 2004 (page 2): “Minister’s PR friend on
€1,200.00 every day”

2. 1st December, 2004 (page 2): “Cullen gave pal a SECOND

top job”

3. 1st December, 2004 (page 3): “Insiders reveal the luxury

lifestyle of €1,200 a day political guru”
4. 2nd December, 2004 (page 4): “New Santa leaves no Claus for
concern”

5. 2nd December, 2004 (page 19): “RUMOURS: Minister says

mystery local out to blacken his name”
“Cullen’s fury over smear campaign”

6. 3rd December, 2004 (pages 24 & 25): “THE CULLEN FALLOUT”
“Taoiseach’s Teflon rubs off on Cullen”
“Minister to face Fine Gael grilling over Leech controversy”

7. 6th December, 2004 (page 6): “Cullen faces music over crony
claim”

8. (i)13th December, 2004 (front page): “CULLEN: I STAND OVER

MONICA’S 8 JUNKETS”

(ii) 13th December, 2004 (page 2): “Cullen defends 8 junkets”.
9. 15th December, 2004 “THE MINISTER, MONICA
(pages 1, 3, 4, 5 & 14): AND THE MYSTERY MEETING”
3. As part of the material so published, the defendant, in its edition of the 2nd December, 2004, included what was alleged to be a misleading and misrepresentative cropped picture purporting to depict Minister Cullen and the plaintiff together as a couple in formal evening wear, whereas the original photograph as actually taken was that of four people. In its edition of the 6th December, 2004, a similar photograph, cropped in the same way and to the same effect, was also published. Further, on the 15th December, 2004, the defendant published a piece accompanied by a misleading composite image showing Minister Cullen wearing a business suit, together with the plaintiff wearing a red cocktail dress, portrayed in such a way as to give the impression of there being a high, long and revealing slit in the dress, up to the hip, all of which in turn was superimposed upon an image of the New York skyline. Such images, it was claimed, were falsely and maliciously published so as to portray the plaintiff and the Minister together as a couple, on occasions dressed in formal evening wear, and, in the last depiction, as a couple together in New York

4. The plaintiff, believing that she had been seriously defamed by these publications, not only when viewed separately but also when taken as a part of a continuum, instituted a Plenary Summons on the 21st December, 2004, seeking appropriate redress in respect thereof.

5. In these proceedings she alleged that the material published, in its natural and ordinary meaning, meant and was understood to mean:-

“(a)That the plaintiff had travelled to, but had improperly and unprofessionally failed to attend, a UN Conference on Sustainable Development in New York, at taxpayers’ expense;
(b) That the plaintiff had deceived the Department of the Environment and Local Government into recording that she had attended, when she had not, a UN Conference on Sustainable Development in New York, the cost of which had been met by the taxpayer;

(c) That there was no good reason for the plaintiff’s participation in foreign business trips with Minister Martin Cullen;

(d) That the plaintiff, a married woman, had purported to travel abroad with Minister Martin Cullen on business but had in fact travelled abroad with Minister Martin Cullen for an improper and unprofessional purpose unconnected with Department business;

(e) That the plaintiff’s charges to the Department of the Environment and Local Government were €1,200.00 per day, and double that of the other tenders for her work;

(f) That the plaintiff’s charges to the Department of the Environment and Local Government, being €1,200 per day and double that of the other tenders for her work, were unjustifiable and out of keeping with charges ordinarily made for such work;

(g) That the plaintiff did not do any work during the course of business trips upon which she had travelled at taxpayer’s expenses;

(h) That the plaintiff had no relevant experience prior to her engagement as a communications consultant by the Department of the Environment and Local Government;

(i) That the plaintiff, a married woman, had had an improper sexual relationship with Minister Martin Cullen;

(j) That the plaintiff, a married woman, had had an extra-marital affair with Minister Martin Cullen;

(k) That the plaintiff had been unfaithful to her husband and had betrayed his trust and the trust of their children;

(l) That the plaintiff had enjoyed the benefit of foreign breaks, on the pretence of her purported participation in Department business, because she had been having an improper sexual relationship with Minister Martin Cullen.”

These alleged defamatory imputations related to one article only, namely that published on the 15th December, 2004, but in general can be taken as being representative of her overall complaints.
6. The pleadings went on to assert that by reason of such publications, the plaintiff had been devastated, shunned and avoided, had been exposed to public scandal and contempt, had suffered acute embarrassment and hurt to her feelings and overall had been gravely damaged in her character and reputation. She sought damages, including aggravated and/or exemplary damages, for these wrongs and for the general loss of business which resulted.

7. The defendant company admitted publication of both the articles and the images in question, but in a series of pleas otherwise effectively denied each and every essential element of the plaintiff’s claim. It asserted, at para. 10 of its defence, that the material was true in substance and in fact in its natural and ordinary meanings but not in the meanings contended for by the plaintiff. Such alternative meanings were then described by reference to each separate article so published. Finally, it denied that she was entitled to any damages at any level of the compensation chain.

The Verdict:
8. The case came on for hearing in due course before a jury presided over by de Valera J.; after a seven day trial two questions were left for its consideration on the 24th June, 2009, namely:

“(a)Did the articles mean that the plaintiff had an extra marital affair with Minister Martin Cullen?
(b) Did the articles mean that the plaintiff had travelled to New York with Minister Martin Cullen for a United Nations Conference and failed ever to attend?”

The issue paper went on to state that if the jury should answer “yes” to either or both of these questions, then they should continue and assess damages. By a majority the jury answered “yes” to question (a), and unanimously answered “no” to question (b). It then considered the question of damages and awarded the plaintiff the sum of €1,872,000.00. Judgment was duly entered for that amount. This judgment is concerned with the appeal from the jury’s verdict and the resulting order.

The Notice of Appeal:
9. The Notice of Appeal as filed challenged a ruling made by the trial judge which prohibited those jury members who were in the minority on question (a) from participating in any discussion on the damages issue. That challenge is not now being pursued. Therefore, this appeal now relates to a single issue, namely that of damages. It is grounded upon a generalised submission that the award was one which no reasonable jury could make, that it was disproportionate to the injury suffered by the plaintiff and that it was in breach of the defendant’s constitutional rights, as well as its rights under the European Convention on Human Rights (“the Convention”).

The Issues:
10. In broad terms I propose to consider the issues arising on this appeal under the following headings:-

(a) The test for assessing compensation in defamation actions having regard to the various interests involved;
(b) The function of an appellate court on a review by a dissatisfied defendant;

(c) The role of the jury in assessing such damages;

(d) The compensatory factors;

(e) Whether the award in the instant case is susceptible to successful challenge; if so,

(f) Whether there should be a retrial; if not,

(g) What should the appropriate award be; and, finally,

(h) How this Court should approach that task.

The Legal Regime Pertaining:
11. Between the trial of the instant action and the hearing of this appeal the Oireachtas has enacted the Defamation Act 2009, which repeals, in its entirety, the Defamation Act 1961. The 2009 Act includes s. 13, dealing with powers of an appellate court, s. 31, dealing with general damages, and s. 32, which relates to aggravated and punitive damages: what exact effect these measures will have, inter alia on the judge’s direction to the jury, remains to be seen. However, as the 2009 Act and therefore these sections have no impact on this case by virtue of s. 3 of the Act, it would of course be quite wrong for me to alter my views on the principles by which the instant appeal must be decided simply because of legislative changes subsequently introduced. Consequently, the statutory provisions must be disregarded.

The Assessment Test: The Review Test:
12. The general approach to the assessment of damages in this type of action, and for appellate review, is essentially not in controversy, and in the main derives in recent times from cases such as Barrett v. Independent Newspapers Limited [1986] I.R. 13 (“Barrett”) and de Rossa v. Independent Newspapers Plc [1999] 4 IR 432 (“de Rossa”); sometimes O’Brien v. Mirror Group Limited [2001] 1 I.R. 1 (“O’Brien”) is also mentioned in this context. These decisions, obviously, are on the domestic front. There is also case law from the European Court of Human Rights, which has considered, for Convention purposes, the appropriateness of national tests at both levels of judicial engagement: cases such as Scharsach v. Austria (Application No. 39394/98, 13th November, 2003), Tosltoy-Miloslavsky v. United Kingdom (Application No. 18139/91; (1995) 20 EHRR 442; 13th July, 1995) and Independent News & Media & Anor v. Ireland (Application No. 55120/00; (2006) 42 EHRR 46; 16th June, 2005) (“Independent News & Media v. Ireland”) become relevant in this regard. The Constitution also has significance as a number of rights affected in this case are to be found within its provisions (Article 40.3.1°, Article 40.3.2° and Article 40.6.1°); however, it has not otherwise featured prominently in any more specific way.

13. The acknowledged test, which was stated by Henchy J. in Barrett, remains to the forefront of the general principles in this area of law. That learned judge said:-

(i) “In a case such as this … it is the duty of the judge to direct the jury that the damages must be confined to such sum of money as will fairly and reasonably compensate the plaintiff for his injured feelings and for any diminution in his standing amongst right-thinking people as a result of the words complained of.” (p. 23)
And further on he continued:-
(ii) “[A] fundamental principle of the law of compensatory damages … is that the award must always be reasonable and fair and bear a due correspondence with the injury suffered. In my view, the sum awarded in this case went far beyond what a reasonable jury applying the law to all the relevant considerations could reasonably have awarded. It is so disproportionately high that … it should not be allowed to stand.” (p. 24)
The first passage was a direction to the trial judge when addressing a jury; the second a direction intended for the review court. Both, in essence, have been endorsed in several subsequent cases, such as in de Rossa by Hamilton C.J. (at pp. 457-458 of the report) and in O’Brien by Keane C.J. (at p. 19 of the report). These statements of principle by the learned judge were made in the context of general damages only.
14. In certain other cases, however, consideration may also have to be given to aggravated damages, regarded by many (Conway v. Irish National Teachers Organisation [1991] 2 I.R. 305; McIntyre v. Lewis [1991] 1 IR 121 at 140 (O’Flaherty J.)), but not by all (see, for example, McMahon and Binchy, Law of Torts, 4th Ed. (Dublin, 2013) at para. 44.77-44.98), as a species of compensatory damages, as well as to exemplary damages, if the circumstances so require. However, in general the main focus of this aspect of any defamation claim will almost always be on general damages, albeit with some exceptions, such as Crofter Properties Ltd. v. Genport Ltd. (No. 2) [2005] 4 I.R. 28 (“Crofter v. Genport (No. 2)”). In fact exemplary damages, even less so than aggravated damages, will rarely be the headline figure in any type of action; again, with the occasional exception such as the notorious case of Shortt v. Commissioner of An Garda Síochána & Ors [2007] 4 IR 587. In the instant case, however, one is concerned only with identifying the level of damages which is necessary so as to “compensate” Mrs. Leech for the grave harm which she has had to endure by reason of the appellant’s wrongdoing, there being no issue in this Court on exemplary or punitive damages.

15. With great respect to both its importance and authority, I do not consider that the above observations of Henchy J. in Barrett are remarkable in any true legal sense. Inherent in compensatory damages are the features of fairness and reasonableness: no one would conceivably suggest that such damages should be otherwise, much less the converse. The reference to “due correspondence”, however, requires some consideration, as, in effect, this has become the “proportionality” element of the test, on which a jury must be addressed, and which, if breached, permits a review on appeal. The importance of this requirement is evident not only from many decisions in this jurisdiction but also from even a cursory examination of what the European Court of Human Rights (“the E.Ct.H.R.”) has frequently said in its judgments, a topic to which I will return in a moment. First, however, a word about what “proportionality” means in this context.

16. This concept of proportionality is not confined to damages in defamation cases; in fact it is very reminiscent of the wider general principles applicable to many types of actions where compensatory damages are claimed. It was discussed authoritatively as far back as 1876, when the court was identifying a standard by which it might set aside a damages award made by the tribunal of fact (McGrath v. Bourne (1876) I.R. 10 C.L. 160). In the following passage the question being addressed was when, relative to the amount, should such intervention take place, on which issue Palles C.B. had this to say:-

“This amount is variously described in different cases. In some cases the epithet applied to it is ‘scandalous,’ in some ‘outrageous,’ in others ‘grossly extravagant.’ None of these expressions convey any very accurate idea to the mind … A more clear, legal and accurate definition was given by my brother Fitzgerald during the argument, when he stated that the amount should be such that no reasonable proportion existed between it and the circumstances of the case … [whilst] we should not on light grounds review the decision …arrived at [by the jury], [nonetheless] if, on the various views of the facts which are capable of being taken by reasonable men, we adopt that which is most favourable to the Plaintiff, and if, adopting this view, we arrive at the conclusion that no reasonable proportion exists between the damages which we should be inclined to give and the amount awarded by the jury, then the verdict ought not to stand.” (Emphasis added)
Hence, even then a ‘due correspondence’ was required between the award and the compensatable injury if the verdict was to successfully resist appellate scrutiny.
17. Very much the same point was made by Lavery J. in Foley v. Thermocement Products Limited (1954) 90 ILTR 92 and by other judges in numerous subsequent cases since then, including O’Sullivan v. Mellerick [1970] 104 ILTR 8, where O’Dalaigh C.J. at 10 said that:-

“In holding an award of damages to be excessive the criterion to be applied is, in part, subjective. The basic factor is one’s own estimate of the damages; and, then, comparing this estimate with the jury’s assessment, one has to say whether the jury’s figure is so disproportionate to the circumstances of the case as to admit of no other view than that the damages are excessive.” (Emphasis added)
Subject only to one qualification, this approach in general continues to prevail so that an award of damages from both judge and jury is examined by the Supreme Court in the same way. The caveat is this: in a judge only verdict the Court no longer takes the evidential view most favourable to the plaintiff; instead its analysis is based on the entire findings of the High Court judge, which, unlike a jury award, should be self-evident from his or her judgment (Dunne v. Honeywell Controls Ltd (Unreported, Supreme Court, 1st July, 1993, per Blayney J.).
18. Consequently, this notion of an “objective relationship” between award and injury is deeply embedded in the tortious law of damages and in such context should be so understood as having the meaning described. However, its application in defamation cases may well be different than in other cases, given the distinctive nature of that particular cause of action and the essential role which the jury plays in that specific process (see O’Brien, judgment of Geoghegan J. at p. 42 of the report).

19. That this is the true meaning of the proportionality requirement in the assessment of damages is immediately obvious from the majority decision in de Rossa, as set out in the judgment of Hamilton C.J.: in fact, although dissenting on other grounds, I do not believe that Denham J. in any way differed on this point. The following are representative extracts of what the learned Chief Justice said in the context of discussing the State’s obligations under the Convention:-

(i) “The obligation placed on the State is to ensure that the substantive law applicable in the State is designed to ensure a requirement of proportionality and that any award of damages made was proportionate to the damage which the plaintiff had suffered and was a sum which was necessary to provide adequate compensation and to re-establish his reputation.” (p. 457 of report)
(ii) “That does not mean that the discretion of the jury is limitless: the damages awarded by a jury must be fair and reasonable having regard to all the relevant circumstances and must not be disproportionate to the injury suffered by the injured party and the necessity to vindicate such party in the eyes of the public. Awards made by a jury are subject to a right of appeal and on the hearing of such an appeal, the award made by a jury is scrutinised to ensure that the award complies with these principles.” (p. 462 of report)
(iii)“Consequently, an appellate court should only set aside an award made by a jury in a defamation action if the award made is one which no reasonable jury would have made in the circumstances of the case and is so unreasonable as to be disproportionate to the injury sustained.” (p. 463 of report)
Accordingly, the award must be proportionate to what the law recognises as being the compensatable remit of damage and injury which has flowed for that plaintiff from that particular defamatory publication. This applies no less at first instance than it does at appellate level.
20. If this understanding is correct, as I believe it to be, then it is not a straightforward exercise, though perhaps not impossible, to run a damages award through the full architecture of a “Heaney” type proportionality test, which at first glance might be the impression one gets from the decision of the E.Ct.H.R. in Independent News & Media v. Ireland ((2006) 42 EHRR 46). At paras. 41-70 of that judgment, and indeed beyond, the Court sets out what it considers to be the relevant Irish law for the purposes of its decision. It refers to Heaney v. Ireland [1994] 3 I.R. 593 (“Heaney”) and to Murphy v. The Independent Radio and Television Commission [1999] 1 IR 12 (“Murphy”); in both cases the constitutionality of certain statutory provisions was evaluated by the use of the “proportionality test” which had been articulated by the Canadian Supreme Court in R. v. Chaulk [1990] 3 S.C.R. 1303 and which was first authoritatively introduced into Irish jurisprudence by Costello J. in his High Court judgment in Heaney.

21. Having referred to the test as containing the notions of ‘minimal restraint on the exercise of protected rights’ and of the ‘exigencies of the common good in a democratic society’, the learned judge further explained that:-

“The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must:—
(a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;
(b) impair the right as little as possible, and

(c) be such that their effects on rights are proportional to the objective.”

22. From a fairly modest welcome, this approach quickly gathered pace and for several years past its three-limb test has been widely used for determining not only the validity of legislative restrictions on fundamental and other rights, but also for scrutinising the legality of executive decisions which also affect such rights. This remains its essential and principle use, certainly where the breadth of its entire remit is being applied. Whilst undoubtedly the requirement of there being a rational relationship between certain impugned conduct or action of a specific type and the adverse consequences for those affected thereby has surfaced in several other and different areas of the law, both civil and criminal, such cannot be described accurately as a Heaney type test. In many of these situations the word “appropriate” might convey the same meaning. In any event, given my understanding of what “proportionality” means in the context of damages, it is not, as I have said, immediately apparent why the European Court of Human Rights felt it necessary to refer to either Heaney or Murphy in the context of examining the jury’s award in de Rossa.

23. Notwithstanding the manner of such reference, however, and whatever the reasons therefor might have been, it seems to me that on closer examination, the Court’s appreciation of what might be termed “proportionality” was in terms far closer to “due correspondence” than to a “Heaney” type evaluation. For example, at para. 113 it said:-

“Accordingly, the essential question to be answered in the present case is whether, having regard to the size of the present award, there were adequate and effective domestic safeguards, at first instance and on appeal, against disproportionate awards which assured a reasonable relationship of proportionality between the award and the injury to reputation.”
Again, at para. 122 it stated:-
“It is also true that Irish law required damages to be fair and reasonable in the circumstances and not to be disproportionate to the injury to reputation suffered.”
And, finally, at para. 126 it adopted the meaning of “proportionality” as set out by Hamilton C.J. in de Rossa.
24. Accordingly, whilst if it became necessary to try and navigate the award in this case through each and every limb of the test identified in Heaney, I would attempt to do so, nonetheless, in my view this is not required as neither Irish law nor that pronounced by the E.Ct.H.R. for Convention purposes demands such rigid scrutiny. The end result therefore is that in the present context, for both trial and appellate court, the correct meaning of “proportionality”, which is synonymous with the concept of “due correspondence”, is that as outlined above. Finally, may I add that all would benefit greatly from a little more contextual precision when referring to this concept.

De Rossa: Current Law and Practice:
25. This Court was invited in de Rossa to stand down and erase from the law books some deep rooted traditional principles, established over centuries, and in their place to create a “fundamental and radically” altered regime for charging juries on the issue of damages. Amongst those were the matters referred to at paras. 52 and 53 of this judgment; in addition, the court was asked to endorse the following new practices, all of which were derived from English authorities:-

(i) That both counsel and judge could give to the jury an indication, perhaps more precise than general, of what compensation, in their respective views, the case at hearing should attract;
(ii) That the jury should be appraised of any awards made or upheld by the appellate court in previous defamation actions, obviously to create a scale impression in their minds for the purposes of the case at hand; and, thirdly

(iii)That the jury, for exactly the same reasons, should also be informed of the then prevailing upper limits of awards either made or approved by the courts in personal injury actions.

Subject to Denham J. dissenting on some of these issues, the remaining members of the court unanimously agreed to reject each of these submissions. Its decision was delivered on the 30th July, 1999.

De Rossa: Challenged in O’Brien:
26. At the O’Brien hearing, less than twelve months later, this Court was invited, strenuously it would appear, to conclude that de Rossa, in the above and in other key areas, was wrongly decided. That might be regarded as rather surprising, even daring given the timeline involved; nonetheless, the submission was made and was entertained by this Court in accordance with its established jurisprudence, such as that set out in Attorney General v. Ryan’s Car Hire Ltd [1965] I.R. 642 and Mogul v. Tipperary (North Riding) County Council [1976] I.R. 260 and which was recently discussed in my own decision in D.P.P. v. J.C. [2015] IESC 31 (15th April, 2015). In a majority judgment, delivered by Keane C.J., this invitation was rejected but only on the basis that it could not be said that the views of Hamilton C.J. were “clearly wrong”; therefore the test laid down in the decisions as cited had not been met. Accordingly, the award in O’Brien was then considered in the context of the legal principles above outlined, being those applicable in this jurisdiction uninfluenced by the jurisprudence from the courts of England and Wales. However, as the judgment of Keane C.J. might possibly give the impression that but for the principle of stare decisis, some members of the Court might have differed from the majority in de Rossa, I would like to make some brief observations on a number of these key issues.

27. Before dealing with such matters, being those referred to at para. 25 supra, it should also be noted that, in the opinion of Keane C.J., there was nothing said in de Rossa which prevented the Supreme Court, as part of its review jurisdiction, from referring to previous awards made in other defamation cases, adding as the only caveat that:-

“… [n]o doubt a degree of caution is called for … since in cases of defamation, more perhaps than in almost any action in tort, the facts which have to be considered by the jury very widely from case to case.” (p. 18 of the report)
A passing reference was also made by the Chief Justice to awards in serious cases of paraplegic or quadriplegic injuries (p. 20). However, Geoghegan J. in his dissenting judgment was strongly of opinion that very little value could be obtained by such an exercise, even one confined to defamation cases, a view with which, for the reasons I am about to outline, I fully agree.

Auction Advocacy: What is the Case Worth?
28. I do not accept for a moment the proposition that counsel should be able to suggest to the jury what, in his or her view, the case before them is worth. It would be auctioneering advocacy at its worst. The suggestion in John v. MGN [1997] QB 586 (“John v MGN”) (pp. 615-616) that counsel will exercise self-restraint so as to avoid the appearance of greed, on the one hand, or parsimony, on the other, is much too reliant on the objective detachment of counsel, and in any event overlooks the pressures on – and indeed the responsibility of – legal practitioners to obtain the best achievable outcome for their client. Therefore, in my view such a suggestion lacks widespread utility and offers scant comfort in this regard.

29. Moreover, in such circumstances the judge quite evidently would also have to address that issue. What is he to say with two responsible counsel before him? Comment or not on the figures given, or ignore them, or simply give his own view? Even with the great trust which I have in juries, confusion and uncertainty would surely follow. One must add that such a state of unease would inevitably be compounded by a judge’s direction, which all agree must also be given, that the jury can disregard all such figures if they so wish. The resulting scene in this scenario is not difficult to conceptualise. I would not therefore entertain such a practice.

30. If counsel should not embark on such a course, it would follow that a judge likewise should not do so: he/she should not in my view offer any opinion on the value of the action which is at hearing before him or her. Consequently, I see no merit in this proposal.

Comparison Awards: Re: Personal Injuries:
31. The suggestion that juries could be referenced to awards made in personal injury actions is one which I entirely reject and in that regard I would endorse the views expressed on this point by Hamilton C.J. in de Rossa. I would go further, however, and seriously question the utility of such an exercise even by an appellate court which is being asked to say whether an award is too high or too low, as the case may be. There are many reasons at the level of principle why I think this is so, as well as the enormous practical difficulty in making any workable comparison between the two, even where all permissible adjustments have been made.

32. In the first instance a small point is that notwithstanding the abolition of juries for all remaining civil actions, save for some exceptions not relevant (s. 1 of the Courts Act 1988), the Oireachtas has seen fit to retain the traditional role of juries in defamation cases.

33. This role, relative to damages, has been highlighted in judgments for so many years that the citations given (paras. 49-59 infra) represent but a small fraction of the entirety. Quite evidently the legislature had been fully aware of the procedure by which such cases are conducted, including the practice of what a jury may and may not be addressed on, by either counsel or judge, on such an issue. Likewise it must be taken to have envisaged the resulting changes which the 1988 Act was likely to bring about in the approach to damages assessment in personal injury actions. Judges are trained lawyers whose armoury very much includes precedent, comparisons, ranges, scales, adjustments and so forth: they give reasons which can be understood and if necessary can be analytically surveyed. Jury awards are self-evidently so different. No legislative intervention is applicable to this case. Consequently, though the point may be small, nonetheless, in my view, it is a significant one for all pre-2010 cases.

34. The second point relates to the underlying basis upon which damages are assessed in defamation cases, which is quite distinct to that which drives awards in personal injury actions. In addition to special damages being ever present in such actions, indeed in serious cases frequently outstripping all other elements of compensation, where aggravation is rarely if ever seen, general damages are heavily influenced by policy considerations, injected from varying sources, which is not the case, at any level, with the instant type of action.

35. In Uren v. John Fairfax & Sons Pty. Ltd. 117 C.L.R. 118, 150, Windeyer J. pointed out, rightly in my view, that the defamed person obtains compensation “because of” and not “for” the reputational damages suffered by him. The learned judge continued:

“For this reason, compensation by damages operates in two ways – as a vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money.”
36. Having quoted with approval this particular passage, Lord Hailsham LC, in Broome v. Cassell & Co. Ltd. [1972] AC 1027 (“Broome v Cassell & Co.”), stated at p. 1071:-

“This is why it is not necessarily fair to compare awards of damages in this field with damages for personal injuries. Quite obviously, the award must include factors for injury to the feelings, the anxiety and uncertainty undergone in the litigation, the absence of apology, or the reaffirmation of the truth of the matters complained of, or the malice of the defendant. The bad conduct of the plaintiff himself may also enter into the matter… What is awarded is thus a figure which cannot be arrived at by any purely objective computation.”
37. Lord Donaldson, in Sutcliffe v. Pressdram Limited [1991] 1 Q.B. 153, having given two reasons why the scales of damages in both actions are “quite different”, stated:-

“Accordingly, it is to be expected that awards in personal injury cases will be in no way comparable with awards in libel cases. In considering any appeal of this nature, an appellate court is bound to disregard its experience of the assessment of damages in personal injury cases…” (p. 176).
I agree with both the reasons stated and the conclusion reached in these decisions.
38. In paragraphs 63 and 64 of this judgment I have attempted to list, under the heading of “What Damage is Cognisable”, a variety of factors which, depending on circumstances, may fall to be assessed in a defamation action; no doubt several others may also arise from case to case. From even a casual glance at such matters, it is readily apparent that virtually not a single such reference would feature in personal injury awards. It is thus difficult to see how one cause of action can usefully be equated with the other in the context of the point at issue.

39. In any discussion on this topic it is only the general damages element of a personal injury award which is compared with the entirety of a defamation award. But as stated, general damages are but one aspect of an injured party’s overall package in cases such as, for example, a negligence action against a driver of a motor vehicle, or against a defaulting employer, or against a hospital/doctor who has conceded liability in a catastrophic brain injury case. Frequently, certainly in the most serious type of case, such will be but a small proportion of the total amount: this will be the case even when taking €250,000 – €400,000 as part of an award of some €5 million, €7 million, or even perhaps €12 or €13 million. Even with non-serious injuries the plaintiff may have pecuniary losses, past and future, which greatly exceed his claim for pain and suffering, loss of amenity etc. In all such cases, however, it is of course the total sum which represents his compensation and not simply one single aspect of it. On the other hand, judicial experience tells us that it is notoriously difficult for a plaintiff to verify special damages in a defamation action. In this regard, therefore, there is a striking difference not only between the component elements of each case, but also between the final awards which may ultimately result.

40. I have not yet made any detailed reference to the policy influences which encroach upon the principles of assessment in personal injury awards. I will shortly refer to some of these, but only briefly. Before doing so, however, a key and a most unique component of defamation awards is deserving of separation from the main factors listed elsewhere in this judgment. I am referring to the necessity to publicly vindicate the reputation of the defamed: this is not simply a reference to the outrage which the publication has directly caused him to suffer, or to suffer because of his family, friends, and colleagues’ knowledge of it, but is also a reference to circumstances where any random member of the public, casually met, indiscriminately blurts out to the world at large that “there is no smoke without fire”, or words to that effect. He must be able to demonstrate, there and then, that there was nothing in the publication: that it was baseless and that it should never have seen the print of paper. He must be able to instantly dispel the underlying odium which is inherent in the stranger’s utterance and immediately reassert his self-esteem and dignity. “There is my award: it speaks for itself”. Such a chance encounter may occur the following day, the next month, or years hence; whenever it does happen, the defamed must constantly be vigilant and if and when the occasion should arise, he must decisively respond. Nothing remotely like this is contemplatable in a personal injury award.

41. This lifelong concern, even if mostly subdued, will forever smoulder; its importance as a compensatable element is readily acknowledged in defamation restitution, as many cases show. One such case was again the judgment of Lord Hailsham L.C. in Broome v Cassell & Co, where it was stated:-

“In actions of defamation and in any other actions where damages for loss of reputation are involved, the principle of restitutio in integrum has necessarily an even more highly subjective element. Such actions involve a money award which may put the plaintiff in a purely financial sense in a much stronger position that he was before the wrong. Not merely can he recover the estimated sum of his past and future losses, but, in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge.” (p. 1071).
I respectfully agree.
42. The policy considerations to which I refer and which very much inform personal injury awards have been touched upon, to varying degrees of depth, in a number of decisions both here and in the United Kingdom. These influences, which have no affinity with defamation cases, make any comparison between the two a topic of much unease even for those who favour a closer alignment. In The Gleaner Co Ltd & anor v Abrahams [2004] 1 AC 628 at 645, Lord Hoffman discusses some of these factors and considers whether there is any functional similarity between both causes of action. Having examined these issues, and having acknowledged what is undoubtedly true, namely that different opinions exist on this point (McCarey v. Associated Newspapers Ltd & Ors [1965] 2 Q.B. 86 and John v. MGN), Lord Hoffman continues:-

“Few of these considerations of equity and policy apply to awards in defamation cases. On the other hand, defamation cases have important features not shared by personal injury claims. The damages often serve not only as compensation but also as an effective and necessary deterrent. The deterrent is effective because the damages are paid either by the defendant himself or under a policy of insurance which is likely to be sensitive to the incidence of such claims … Awards in an adequate amount may also be necessary to deter the media from riding roughshod over the rights of other citizens. In Kiam’s case Sedley LJ said, at p 304, para 75:
‘in a great many cases proof of a cold-blooded cost-benefit calculation that it was worth publishing a known libel is not there, and the ineffectiveness of a moderate award in deterring future libels is painfully apparent … Judges, juries and the public face the conundrum that compensation proportioned to personal injury damages is insufficient to deter, and that deterrent awards make a mockery of the principle of compensation.’” (Emphasis added) (p. 646).
I fully agree with the entirety of this passage of the judgment, as I do with the added observation that whether personal injury awards should be referenced to defamation decrees is a question of policy and not of legal principle. On that basis the Privy Council held that the Court of Appeal in Jamaica, which had made the reference, did not err in law in its refusal to alter the existing practice in that country, which was not to make any reference to personal injury awards before the jury.

43. Against this background I must say that I have never understood, certainly not in any legal sense which I can ascribe to, why such efforts, constrained and artificial as most are, have been continuously made to align personal injury awards with defamation actions. From insult to vindication, both are vitally different: on every aspect of the liability side, likewise on the injury side, and most definitely on the damages side. Why not say so and acknowledge the obvious? Simply put, they are indeed incomparable. Personally, therefore, I derive no benefit from cases such as Yang Yun v. MIBI [2009] IEHC 318 (a personal injury action) or M.N v. S.M. [2005] 4 IR 461 (a sexual abuse case) in my assessment of the instant appeal. Finally, I agree with Dunne J. in her judgment in this case that the latter type of action is clearly akin to a personal injury claim, as I evidently and clearly do that such claims have no comparative utility with defamation actions (see paras. 38-41 of the judgment of Dunne J.).

44. Of course, this does not mean that the amount of damages in defamation can be endless: far from it. But the parameters within which the acknowledged test must be applied, and the underlying reasons therefor satisfied, should be developed within the jurisprudential area of this particular type of action, even if touched, as they might well be, by overarching concerns of a general nature: subject to that, however, awards should not otherwise be influenced by personal injury actions. I thus fully agree with de Rossa in this respect.

Comparison Awards: Re: Defamation Cases:
45. The reason why I doubt the wisdom of comparing awards in previous defamation cases is not based on any principle or the like, but is one firmly grounded in practical utility, a view also espoused by Geoghegan J. in O’Brien, where the learned judge referred to “the sheer practical difficulty of comparison” (p. 43 of the report). How can one compare the T.D. Mr. Barrett with Mr. Denis O’Brien, or with Mr. McDonagh S.C., as he then was (McDonagh v. News Group Newspapers Ltd (Unreported, Supreme Court, 23rd November, 1993)? How can Mrs. Leech in any way be positioned amongst or within this group? What does ‘tweaking a beard’ have in common with a politician in active public life who is accused of having been involved in serious crime and of supporting anti-Semitism and violent communist oppression? How can one compare any of the above with a married woman who has a consultancy business in the private sector and who is accused of having an extra-martial affair with a senior government Minister? Reference could be made to multiple other examples from real life cases which in every aspect of their legal characteristics are entirely dissimilar from any of the situations as mentioned.

46. In addition, within this very narrow group of cases some simple adjustment, on either side, can change the entire focus of the damages direction. Let’s suppose that Mr. de Rossa was not at the time actively engaged in trying to form a government; or that Mr. Denis O’Brien was not simply a “new and emerging major figure in the business world” (Geoghegan J. at p. 39 of the report), but rather had by then achieved the public standing which arguably he has later acquired; or that Minister Cullen had simply been a low ranking official in a local authority; or that Mr. McDonagh S.C. had already been appointed to a senior judicial post? A variation in any of the following factors would likewise have a similar effect, namely the nature of the publication, the depth of both personal and professional intrusion which the publication caused, and the conduct of the defendant, to identify but some. In every case virtually all of the critical components will be separate and distinct, one from the other. Therefore, in my view, even with the greatest feasible care, I find it difficult to see how, if one remains true to the obligation of compensating that particular plaintiff, in respect of that particular publication, for that particular injury, this can be achieved or even influenced by the cross referencing as has been suggested.

47. If there is to be any real value in this exercise, the analysis must be “factor comparative” and “factor weighted”, otherwise the entire exercise is apt to mislead. It is entirely uninformative simply to say that having considered ‘this case’ or ‘that case’ the award under review is too large (Crofter v. Genport Limited (No.2)). The allegation in that case, which the corporate counter claimant sought compensation for, arose out of false information conveyed on behalf of the plaintiff to the police authorities in the United Kingdom that the effective owner of Genport and his brother, a Chief Superintendent in An Garda Síochána at the time, were actively assisting the IRA in laundering drug money. This was but one of several actions between the parties, all bitterly contested over several years against the background of a landlord and tenant relationship in respect of a well known hotel in the City of Dublin. The appeal under review, from an award made by a judge sitting alone, was allowed in that the exemplary damages aspect of it was set aside as being excessive. How the reference to Barrett, McDonagh or de Rossa could have helped in determining that issue remains unclear (p. 37 of the report).

48. Despite these misgivings, however, I will have a look at some of the relevant case law a little later in the judgment, not for any specific guidance on how this appeal should be determined, but rather at a general level so as to highlight certain aspects of those decisions.

The Jury: The Review Test
49. The jury has a twin function in defamation cases. Firstly, it decides on each contested element regarding liability, subject only to the judge being satisfied that the words uttered are capable in law of having a defamatory meaning: (Duffy v. News Group Newspapers Ltd [1994] 1 I.L.R.M. 364). Secondly, it assesses damages in the event of liability being established. Traditionally the law has given the jury wide scope on the damages front. The reason for this is that “defamation is rooted in community values”. In effect, the jury, when acting as such, is “representative of the community” (McMahon and Binchy, Law of Torts, 4th Ed. (Dublin, 2013) at para 34.329). This perspective, in my opinion, holds good not only for the issue of “libel/no libel”, but also for the quantification of damages. Accordingly, whilst not “at large” on such issue (a phrase in any event frequently misunderstood), a jury’s award nonetheless has an eminence and distinction of significantly higher value than that attaching to other awards, even those made by juries in non-defamation cases.

50. On the liability side, Walsh J. said of the jury’s role in Quigley v. Creation Limited [1971] I.R. 269 at 272:-

“Basically, the question of libel or no libel is a matter of opinion and opinions may vary reasonably within very wide limits. When a jury has found that there has been a libel, this Court would be more slow to set aside such a verdict than in other types of actions and it would only do so if it was of opinion that the conclusion reached by the jury was one to which reasonable men could not or ought not have come … In defamation, as in perhaps no other form of civil proceedings, the position of the jury is so uniquely important that, while it is for the judge to determine whether the words complained of are capable of a defamatory meaning, the judge should not withhold the matter from the jury unless he is satisfied that it would be wholly unreasonable to attribute a libellous meaning to the words complained of.”
McCarthy J., in Barrett (p. 35), was quite satisfied that such observations apply equally to the question of damages; with the learned judge stating:-
“The law reports abound with judicial tributes to the particular respect that must be accorded to the verdict of a jury in libel actions. [Walsh J’s observations in Quigley v. Creation Limited [1971] I.R. 269 at 272] apply no less to the assessment of damages than they do to the issue of libel or no libel.”
51. Further support for this view can also be found in the judgments of other members of the court in Barrett, including Finlay C.J., who, in the course of his judgment, at p. 19 stated:-

“With regard to the appeal against the amount of the damages, certain principles of law are applicable. Firstly, whilst the assessment by a jury of damages for defamation is not sacrosanct, in the sense that it can never be disturbed upon appeal, it certainly has a very unusual and emphatic sanctity in that the decisions clearly establish that appellate courts have been extremely slow to interfere with such assessments, either on the basis of excess or inadequacy.” (Emphasis added)
See also McDonagh v. News Group Newspapers Ltd (Unreported, Supreme Court, 23rd November, 1993).
52. The particular status of the jury was again referred to in de Rossa, where Hamilton C.J., who refused to depart from the traditional guidelines given to juries, and having endorsed the above passage of Finlay C.J. in Barrett, continued:-

“The “sanctity” of such awards is recognised in the passage from the judgment of the [Master of the Rolls] in John v. MGN Ltd [1997] QB 586 where it is stated at p. 616 of the report as follows:-
‘The jury must, of course, make up their own mind and must be directed to do so. They will not be bound by the submission of counsel or the indication of the judge. If the jury makes an award outside the upper or lower bounds of any bracket indicated and such award is the subject of an appeal, real weight must be given to the possibility that their judgment is to be preferred to that of the judge.’ (Emphasis added by Hamilton C.J. in de Rossa)
Both judgments [Barrett and John v. MGN Ltd ] recognise that the assessment of damages is a matter for the jury and that an appellate court must recognise and give real weight to the possibility that their judgment is to be preferred to that of the judge.” (p. 462 of the report)
53. Finally, Hamilton C.J., in rejecting the suggestion that larger awards should be subjected to a more searching type of scrutiny than in the past and in refusing to adopt a new appellate test, namely “could a reasonable jury have thought that this award was necessary to compensate the plaintiff and to re-establish his reputation” (Rantzen v. Mirror Group Newspapers (1986) Ltd. and Others [1994] Q.B. 670), offered the following justification:-

“If such were the test to be applied, it would remove from the jury ‘the very unusual and emphatic sanctity’ referred to by Finlay C.J. and the giving of ‘real weight’ to the possibility that their judgment is to be preferred to that of the judge as stated by Sir Thomas Bingham M.R.
Consequently, while awards made by jury must, on appeal, be subject to scrutiny by the appellate court, that Court is only entitled to set aside an award if it is satisfied that in all of the circumstances, the award is so disproportionate to the injury suffered and wrong done that no reasonable jury would have made such an award.” (p. 463 of the report)

See also p. 446 of the judgment where it was said that the “assessment of damages was peculiarly the province of the jury in an action for libel.”
54. These clear and decisive observations regarding the respect which attaches to a jury’s award must not be lost sight of; such an award cannot be disturbed on appeal simply because the Supreme Court might think that the award is too high or too low, as the case may be. Again, see the judgment of Geoghegan J. in O’Brien at p. 42. Appeal judges, when conducting such a review, are not the jury and cannot assume the jury’s role. Intervention will be justified only where the award obviously falls outside permitted parameters which, in determining, the court must have due regard, inter alia, to the uniqueness of the jury’s representative function in this particular judicial process. Just as libel/no libel is a matter of opinion which may vary widely but reasonably (Walsh J. in Quigley), so too may the jury’s appraisal of what sum is necessary to reflect the injury suffered. Therefore, an award will not be disturbed easily or second guessed purely to fine tune it. As put as far back as 1879, by Cockburn CJ., “… a Court ought not, unless under very exceptional circumstances, to disturb their verdict” (Phillips v. South Western Railway Co. (1879) 4 Q.B.D. 406 at 408).

55. In addition, it is obvious to say, but nonetheless needs to be said, that damages cannot be assessed by some mathematical formula or statistical model absorbing the multiple variations which arise and which, having duly assessed and weighted each factor of relevance, arrives at an award immune from appellate scrutiny. There is no series of preset rules which provide a just answer in all cases. Given the diversity of each case, all that can be said is that once the decision maker has had due regard to all material facts and in its award reflects what is a fair, reasonable and proportionate response to the wrong caused and the harm done, both on the personal and the public side, the ultimate figure will not be considered or set aside as being disproportionately high.

56. Could I add that whilst there is undoubtedly an element of subjectivity involved, such element is conditioned on the one hand by the requirement to reflect in the award and on review each of the component parts of the wrongdoing, as well as the wrongdoing as a whole, and on the other hand is constrained by the necessity of fairness and proportionality. Once the resulting award is within the permissible range it will not be refined at the margins. There is scope for a difference of views within that range, which means that unless the amount falls outside it, the same will be regarded as justified.

57. On establishing liability, therefore, a person is entitled, under the heading of general damages, to receive such sum as will appropriately compensate him for the wrong done, the harm inflicted and damage suffered. This level of restitution, at least to my mind, is conceptually entirely separate from any claim for aggravated damages and evidently is also different from both exemplary damages and special damages. However, in practical terms, as the case law shows, factors which aggravate are indifferent to boundaries: they run right into the slipstream of their compensatory brothers and are indistinguishable from them on occasions. It has therefore become the practice to take all such matters together and to award a single sum to collectively represent their impact.

58. In conducting this exercise, a principle of high importance which permeates the assessment process at every level is that whilst the law, at both constitutional and Convention level, declares that every person has the right to his good name, on the one hand, and also guarantees liberty for the citizen to freely express their convictions and opinions, on the other, neither is absolute and neither one at the level of principle takes precedence over the other. In certain situations each must accustom itself to its neighbour and adjust accordingly. Even with such accommodation, however, one thing is clear: no one has the right to defame another. No law gives that right and no man has that right.

59. However, notwithstanding the status of its damages award, there is no doubt but that in an appropriate case a jury’s verdict can be set aside as being unresponsive to the test above outlined. If judged as unfair or as lacking the appropriate balance between the wrong and the causative effects, it will not be allowed to stand. All awards are to be evaluated in the same manner: no greater scrutiny should be given to one appeal over another, no matter what amount is involved. A relatively minor sum may confer on some people the required level of vindication, but for others a much larger amount may be necessary. Principles of law, rooted in constitutional values for both publisher and defamed alike, are not two-tier in structure: they travel not on the highway for one and the boreen for the other. Equality prevails and the same assessment criteria must apply. There is but one approach in all cases.

The Convention:
60. It is of interest to note that the national practice on the assessment of damages was examined in Independent News and Media v. Ireland (16th June, 2005), where the E.Ct.H.R. was satisfied that the Irish test, including the specific requirement that the award must bear a reasonable relationship with the injury suffered (paras. 20-24 supra), met with the conditions laid down in the Convention and with the Court’s jurisprudence in that regard. Such jurisprudence has been developed in a series of cases where the Court has been called upon to review the compatibility of domestic measures, regarding the right to protect one’s good name and, if defamed, to obtain compensation therefor, on the one side, and the right to freedom of expression on the other. Having conducted an extensive analysis the E.Ct.H.R. concluded, in the case cited, that there were adequate safeguards in existence to achieve an appropriate balance between the conflicting rights given in Article 8 and Article 10 of the Convention. There was therefore no necessity to adjust Irish law in this regard.

61. That decision can be contrasted with the judgment given in Tolstoy Miloslavsky v. UK (13th July, 1995). In that case the plaintiff had been awarded £1.5m in respect of an allegation that he had been responsible for handing over Cossack and Yugoslav prisoners of war to communist forces in the knowledge that they would be murdered. The sum, at the time, was three times higher than any previous defamation award made in the English Courts. On review the European Court of Human Rights held that given the amount involved it was of striking significance to note the absence of any adequate or effective safeguards in domestic law against a disproportionately high award. Essentially on that basis there had been a violation of the defendant/applicant’s rights under Article 10 of the Convention.

62. The Tolstoy Miloslavsky decision was given at a time when the relevant review test in England was that intervention was permitted only where the award was “so unreasonable that it could not have been made by sensible people and must have been arrived at capriciously, unconscionably or irrationally.” The essential reason for the different conclusion reached by the Court in Independent News and Media compared with Tolstoy Miloslavsky related to the review test in this jurisdiction, which included the a concept of proportionality.

What Damage is Cognisable?
63. As stated, compensation in a case such as this has the capacity of embracing multiple and diverse elements. It can, as the authorities show, include certain factors which perhaps are more frequently dealt with separately as aggravation, such as the defendant’s response to the claim as asserted. Whilst it is not possible to identify all such matters which potentially might come within the remit of general damages, as so understood, it can however confidently be said that its parameters in defamation suits are not as tightly drawn as in other proceedings.

64. The following are some of the factors which will require consideration in any assessment of damages in this type of case, to be viewed in the context in which such matters have arisen:-

(a) The extent of the wrong, of the harm inflicted and of the injury done;
(b) The damage to one’s reputation and standing in the eyes of reasonably minded members of the community;

(c) The restoration of that reputation and standing to a degree that will withstand any future challenge by any random member of the public who suspects that there is “no smoke without fire”;

(d) The degree of hurt, distress and humiliation suffered and any other aspect of one’s feelings that has been affected;

(e) The extent of the intrusion into one’s personal, business, professional or social life, or any combination thereof, to include the invasion of one’s privacy;

(f) Any other harmful effect, causatively resulting from the wrongdoing, not above mentioned;

(g) The gravity of the libel;

(h) The extent of the circulated publication;

(i) The response and reaction to the allegations as made; retraction and apology; re-affirmation of truth and justification – even with different meanings to those as pleaded;

(j) The overall conduct of the defendant, including those examples identified in Conway as constituting aggravation ([1991] 2 I.R. 305 at 317), and even extending to matters of exemplary condemnation on occasions; and

(k) Any other factor specific to the individual case which falls within the parameters of the principles as outlined.

Additional Comments on Four Factors:
65.

(i) It has been said that the most important matter in the assessment of damages is the gravity of the libel (Hamilton C.J. in de Rossa applying John v. MGN [1997] QB 586 at 607). Whilst undoubtedly true at one level, the severity of reputational damage, the loss of standing in the eyes of the public and the resulting personal, business and social effects on the injured party are no less grave than the intensity of the libel itself.
(ii) The assessment of gravity, whilst hugely significant at a public or general level, is equally significant at the personal level. As again stated in John v. MGN, “the more closely [the libel] touches the plaintiff’s personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be” (p. 607). I entirely agree with the insightfulness of those comments but would add a context, not applicable in England and Wales, which is that all or almost all of the rights likely to be affected are to be found in this jurisdiction within a constitutional setting also, thereby increasing their seriousness if and when causatively established.

(iii)The extent of the publication is also highly relevant. The wider the circulation and the greater the geographical area covered, the more damage is likely to have been caused; such a conclusion can pre-emptively be assumed. Further, a defendant whose form of publication is or is likely to be electronically transmitted or re-transmitted, even by others, must bear the consequences of his choice.

(iv)The response and conduct of the defendant, on complaint being made, will be a material matter. Such conduct is likely to be viewed differently depending on the reaction. Defending a publication to finality may be a right but if unsuccessful the relentless pursuit of the published insult may have serious financial consequences for the pursuer. On the other hand, an immediate withdrawal of the offending material, coupled with the implementation of appropriate measures to correct the falsity and repair the damage, will significantly differentiate one type of response from the other.

The Instant Case:
66. The appellant submits that in reviewing the jury’s verdict, this Court should have due regard to awards made in other similar actions, as well as those on the personal injuries side. It is said that such an approach at both levels was endorsed by Keane C.J. in O’Brien (at p. 20 of the report). With regard to previous libel actions, it is claimed that these can at least offer guidance, if not act as a benchmark for the appropriateness of the award in the instant case. In particular, the appellant draws attention to the fact that in 2001 the Supreme Court set aside an award of IR£250,000.00 in the O’Brien case as being excessive. Furthermore, it is pointed out that at present there is a cap of €450,000.00 for general damages even in the most serious quadriplegia/paraplegia type cases. (Magi Yang Yun v. MIBI [2009] IEHC 318). Therefore these figures must be relevant to the instant case.

67. Relying on the reference to the cap on personal injury awards, but more particularly so on the de Rossa and O’Brien decisions, whereby this Court described the libel in each case as being of the “grossest and most serious type”, it is submitted that even if the award to Mr. de Rossa of IR£300,000.00 in 1999 was not disturbed, nevertheless by any comparative process the amount in the instant case must be regarded as excessive.

68. The respondent for her part claims that any reference to awards in other defamation actions needs to be treated with great caution, and even more so when a cross reference to awards in personal injury cases is suggested. The observations of Hamilton C.J. in de Rossa at p. 459/460 are relied upon, as is the conclusion of the Court of Appeal in Rantzen v. Mirror Group Newspapers (1986) Ltd [1994] Q.B. 670 (“Rantzen”), which the learned Chief Justice referred to, with approval, at p. 454 of the report. Finally, she also relies upon Lord Hoffman’s analysis on the same point in Gleaner Company Limited & Anor v. Abrahams [2004] 1 AC 628.

69. The role of the jury in a case such as this is also emphasised by Mrs. Leech, who makes the point that even outside the ambit of defamation actions, compensatory damages can include an element of aggravated damages. She refers to a comment by Hardiman J. in Shortt v. Commissioner of An Garda Síochána [2007] 4 IR 587 at 661 where the learned judge said:-

“Aggravated damages, on the other hand, are compensatory damages increased by reason of the factors that are set out in the judgment of Finlay C.J. in Conway v. Irish National Teachers Association [1991] 2 I.R. 305.”
It is submitted on her behalf that the libel in the instant case is an extremely grave one, given the series of articles which were published and the sustained and deliberate campaign conducted against her, over the timescale above set out. Moreover, the appellant showed no remorse whatsoever: rather, it elected to maintain a plea of justification in face of the indefensible, given the plain and ordinary meaning of the material, which it undoubtedly had.
70. It is further said that the words published imputed on her chastity and suggested adultery by her as a married woman; they were also calculated to disparage her in her office, profession, calling, trade or business (ss. 16 and 19 of the Defamation Act 1961 (“the 1961 Act”)). Therefore her personal character, as well as her reputational integrity as a business person, was severely impaired. In the overall context, it is claimed that the material published suggested that the alleged affair was engaged in so as to advance her business career and that without such a relationship she would not have been capable of meaningfully acting as a communications consultant. For a professional and business lady, such is grossly degrading.

71. For the reasons above given (paras. 31-44 supra) and hereinafter added to, I do not accept the existence of any comparative role relative to personal injuries and though not rejecting the invitation to consider other defamation cases, which I will in a moment, I also have strong reservations in that regard (paras. 45-48 supra; paras 75-82 infra).

Additional Comments / Personal Injury Awards:
72. Whatever can be said in favour of referring to other libel actions, much less in my view can be offered in support of any serious attempt to compare personal injury awards (paras. 31-44 supra). Whether the passing reference to what damages can be obtained in a paraplegic or quadriplegic case, made by Keane C.J. in O’Brien (p. 20), can be taken as an endorsement of such an approach in general is open to serious doubt, particularly in light of de Rossa, where the court preferred the reasoning of Rantzen to that reached in John v. MGN. This view had the effect of endorsing what Lord Hailsham pointed out in Broome v. Cassel & Company [1972] AC 1027 at 1071, when drawing the distinction between damages in both types of action:-

“What is awarded is … a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are said to be at large.”
73. Moreover, de Rossa, on this topic, also referred to the following passage from Rantzen:-

“We have come to the conclusion, however, that there is no satisfactory way in which the conventional awards in actions for damages for personal injuries can be used to provide guidance for an award in an action of defamation … it seems to us that damages for defamation are intended at least in part as a vindication of the plaintiff to the public … We therefore feel bound to reject the proposal that the jury should be referred to awards made in actions involving serious personal injuries.” (p. 454 of the report)
74. There are several good reasons for this, which are referred to at paras. 31-44 supra. In addition, although it can be said at one level that every personal injury action is different, nonetheless it is also true to say that the variables in most cases can be readily identified and adjustments can be made so that the vast majority of awards can be rationally associated, one with each other. This is not so with libel actions, as in every sense of the term each is different from the other. Secondly, in addition to compensating a plaintiff for injured feelings, the purpose of restitutio in integrum as applied to libel actions is much more embracing. It has the added significant requirement of vindicating a person’s good name in the eyes of the public. In other words, if ever challenged as to the validity or truth of the libel, a plaintiff can point to the award as demonstrating the falsity of the publication. No such aspect exists in personal injury actions. Thirdly, there is also, as previously stated, a subjective element in assessing what is appropriate for a libelled plaintiff, whereas such is not the case with personal injury actions. In this regard I endorse the view of Geoghegan J. in O’Brien at pp. 42 and 43. Consequently, in my view, I am most reluctant to be influenced by awards in this area of the law.

Additional Comments / Defamation Cases:
75. What then can be deduced from previous defamation decisions on reviewing the jury’s award in this case?

76. Barrett was a case where the plaintiff, a sitting Fianna Fáil TD, grounded his defamation action on what the Evening Herald printed in its edition of the 8th February, 1983, with the relevant part appearing as follows:-

“There were savage scenes as TDs left Leinster House early today. Michael Barrett TD, a Dublin Haugheyite, leaned over and pulled at my beard and said ‘You thought you’d dance on his grave.’”
The immediate background to this piece was a meeting of the Fianna Fáil Parliamentary Party the previous evening, where a resolution to remove Mr. Charles Haughey T.D. from the leadership of the party had been defeated. The plaintiff, Mr. Barrett, received damages of IR£65,000.00 from the jury but the award was set aside on appeal. In his judgment, Henchy J. said that:-
“A helpful guide for a jury in a case such as this would have been to ask them to reduce to actuality the allegation complained of, namely, that in an excess of triumphalism at his leader’s success the plaintiff attempted to tweak the beard of an unfriendly journalist. The jury might then have been asked to fit that allegation into an appropriate place in the scale of defamatory remarks to which the plaintiff might have been subjected.” (pp. 23-24 of the report)
The learned judge continued:-
“To put it in another way, if £65,000 were to be held to be appropriate damages for an accusation of a minor unpremeditated assault in a moment of exaltation, the damages proper for an accusation of some heinous or premeditated criminal conduct would be astronomically high.” (p 24 of the report)
77. The reference to reducing the libel to the ‘actuality of the circumstances’ is intended to help reduce the risk of an excessive award. The reference to ‘appropriately positioning’ what was said on the occasion in question relative to what might otherwise have been said is simply another way of expressing a view as to where the publication should be placed on the ‘seriousness scale’ relative to that particular type of libel.

78. The published material in de Rossa was described by Hamilton C.J. at p. 464 of the report as follows:-

“To publish of any person words meaning that he or she was involved in or tolerated serious crime and personally supported anti-Semitism and violent communist oppression would, if untrue, constitute the gravest and most serious libel: it is hard to imagine a more serious one.
To publish such words in relation to the plaintiff, a politician dependent on the support of his constituents and his colleagues and at a time when he was engaged in negotiations, as was well known to the defendant at the time of publication, which might lead to his participation in government, renders such publication more serious and grave, particularly when they might have interfered with his chances of participation in such government.”

Much emphasis therefore seems to have been placed on Mr. de Rossa’s occupation as a politician and on the political activities which he was engaged in at the time of the libellous publication, namely negotiating to enter government. Furthermore, the classification of the libel by the learned Chief Justice was once more his descriptive way of saying how serious it was. Quite evidently, in view of the rest of his judgment, this reference could not have been for any comparative purpose.
79. Much the same emerges from McDonagh v. News Independent Group Limited, wherein, upholding an award of £90,000 to the plaintiff, who was a practising barrister at the time, Finlay C.J., having specifically highlighted the plaintiff’s occupation, said:-

“…I am satisfied that there are not very many general classifications of defamatory accusation which at present in Ireland, in the minds of right minded people, would be considered significantly more serious.”
80. In O’Brien, Keane C.J., in a case where the allegation was that the plaintiff had paid a Government Minister €30,000 by way of a bribe for obtaining a radio license, said:-

“The libel complained of [in de Rossa] could not have been of a more serious character, alleging, as it did, that the plaintiff supported some of the vilest activities of totalitarian regimes of the twentieth century and was personally involved in and condoned serious crime. On any view, that is a significantly more damaging and serious libel than the admittedly serious statements made concerning the plaintiff in the present case.” (p. 21 of the report)
81. It is undoubtedly clear from this and other extracts of the judgment that this was a comparative analysis between both de Rossa and O’Brien. Even then, however, the learned Chief Justice called for caution when applying any such approach, “since in cases of defamation, more perhaps than in any other action in tort, the facts which have to be considered by the jury vary widely from case to case” (p. 18 of the report). As evidently follows from views previously expressed, I respectfully agree with the urging of caution in this regard: indeed, I do so much more strongly than perhaps what emerges at first sight from the passage as quoted.

82. It is also of interest to note how this particular point was addressed in the majority judgment in this case. Having referred to the relevant case law, including de Rossa and O’Brien, Dunne J., at para. 35, concluded “nevertheless, comparisons with other cases may provide some assistance in assessing the gravity of the libel.” (Emphasis added). If this could be seen as a type of endorsement of Keane C.J. in O’Brien, it must be regarded as heavily qualified and highly tentative.

83. From an overall consideration of these cases what comes through, at best, is that in some very general way the courts have in mind some type of loose cross-referencing regarding the gravity of defamatory statements, but at the same time have left quite untrammelled the jury’s entitlement to assess case-specific issues and to evaluate particular effects individual to each such case. It is also of interest to note that the Court in both McDonagh and de Rossa emphasised the occupation of each plaintiff, presumably so that the defamatory effect of the material published would be evidently visible on the professional side of the claim; naturally a heavy concentration is usually focused on the personal side. Apart from this extrapolation, however, I do not read the cited cases as requiring any greater degree of ranking than which I have just described.

The Libel of Mrs. Leech:
84.

(1) The jury found, as above stated, that the materials published meant that the plaintiff had an extra-marital affair with Minister Cullen. At the time she was married with two children and was also a self-employed communications consultant. He was also married.
(2) Every society has its own set of legal, social, moral and religious values, in many instances developed over a long period of time but in almost all cases being subject to at least some degree of change as society evolves. Therefore, to say of an unmarried person that she had an affair would mean perhaps something less condemnatory today than it would have forty years ago. However, the situation with a married person has arguably not changed so dramatically in this way.

(3) The ethos of family life in this country is one based on marriage: I say this simply because there is no other type of family recognised in the Constitution, a point reaffirmed by the Supreme Court as recently as 2009 (J. McD. v. P.L. & Ors [2009] I.E.S.C. 81). Accordingly, marriage is the legal foundation for this fundamental unit of society, being, as it is described, a moral institution possessing major constitutional rights. It is therefore at the highest level of our legal, social and moral order.

(4) The effect of the material as published is to suggest that the respondent had been unfaithful to her husband, and that her relationship with Minister Cullen had affected his own marriage.

(5) This material was not confined to conduct which could be described only as immoral or as involving infidelity: it directly and in a most profound way attacked the professional and business reputation of Mrs. Leech by making the clear suggestion that she could not have been successful in her chosen business career without having had an affair with an individual who was then an influential politician. In effect, she had such a relationship for commercial gain. This suggestion caused great offence, inflicted considerable business harm and evidently was professionally grossly demeaning for her.

(6) This inextricable link is likely to have added greatly to the deep sense of public outrage which the articles provoked. It is not possible to isolate the allegation that the respondent was having an affair from the manner in which she was depicted to have obtained business. The jury was perfectly entitled to have regard to the harm inflicted on her profession, as such is also part of her general reputation.

(7) It is true to say that unlike de Rossa and O’Brien, the plaintiff was not a significant public figure before the publication of the material in question: such publication, however, in a most dramatic and instantaneous way, entirely changed her profile into one which was not only recognised but actively sought out at a public level.

(8) The conduct of the applicant is also relevant in the assessment of damages. In its defence, unsustainable pleas of justification and responsible journalism were maintained: even from a cursory examination of the transcript, one can evidently see that the line of defence argument involved repeated and continuous imputations of cronyism.

(9) In three of the articles published, various depictions of Mrs. Leech and Minister Cullen were included. In particular, in its edition of the 15th December, 2004, the false and composite image shown was particularly offensive as on any objective interpretation thereof, one could not help but think that the red cocktail dress which Mrs. Leech was wearing had a long, high and revealing slit, extending almost to hip level. This was entirely misleading and was clearly designed to enhance the underlying impression that she and Minister Cullen were having an affair.

Is the Award Sustainable?
85. As the case law shows, many judges have graphically referred to the different libels before them as being at the grossest and most severe level of the defamation chain, whereas others, a typical example of which is Barrett, position the libel at a much more modest level. Whilst I can understand this type of descriptive process, I remain, however, entirely unconvinced of its comparative utility: this for the very simple reason that without significant qualification, I doubt its value. Context in such circumstances is everything. Mrs. Leech is not a political figure like Mr. Barrett or Mr. de Rossa were; she never had, at least before these articles, the national profile of Mr. O’Brien and neither has she ever had his international prominence. The type of slur involved in de Rossa is totally different from that levelled against the plaintiff; neither can bribery be related to adultery and, in particular, adultery for commercial and business gain. Accordingly, I am not at all sure that it is in any way meaningful to say of a libel that it is “grave” or “gross” or even of more telling effect, with the intention of associating the awarded damages with a libel of a totally different notion but classified to the same effect. Provided that this caveat is understood, I am prepared to accept, even if reluctantly, that perhaps some benefit may be obtained from such an exercise but only if applied vertically and then within the same or a similar class of defamatory imputations.

86. Of all the authorities which have been opened to us, none have involved a series of sequential and repeated publications, each by title, content and context adding to the other. In all, over a two week period, the appellant published eleven articles in nine editions of the Evening Herald, which has a daily circulation of about 90,000. The first fed the second, the second fed the third, and so forth: a deliberate press campaign to incite momentum, thereby further undermining the respondent, and building a hue and cry that was to culminate in the public discrediting of her and the destruction of her reputation. The sensationalism of the material in the manner in which it was done could only in fact have resulted in that end. Mrs. Leech, during her trial, gave unchallenged evidence, vividly illustrating the public moral opprobrium which existed at the time: she and her family suffered verbal and physical assaults directly because of these publications. Such matters and the artificially created media frenzy are strikingly absent from Barrett, de Rossa, O’Brien, and indeed from any other case which featured in the instant appeal. Therefore this case is one to be considered essentially in its own right (see para. 105 infra).

87. There is no doubt but that the suggested relationship between Mrs. Leech and Minister Cullen was, as the jury found, baseless, as inevitably also was the added suggestion that the same was only engaged in to further her career. If such allegations had been confined to a single publication, then matters may not have been as confrontational for the plaintiff as they turned out to be. Unfortunately, however, no doubt by way of a strategic policy decision, deliberately and tactically executed, the appellant in a cold and calculating manner decided to attack the reputation of the respondent, and did so in a targeted and sequential way; all inevitably resulting in a crescendo which occurred when public scorn and contempt was at its highest.

88. An exercise of interest would be to document the content of each of these articles; this would readily inform the reader as to how day in, day out, the intensity of the reputational assault accelerated. Perhaps the respondent could have been forgiven for thinking that after one, two or three editions the story might abate, even end, but that was not to be. In all, as I have said, eleven articles were published in nine editions. This entire scenario had what Mrs. Leech described in evidence as a devastating effect on her. In any language, therefore, these events must attract very significant damages.

89. However egregious this defamation was, the damages must however reflect the well established principles above outlined. They must be fair and reasonable having regard to the various interests involved. They must, as the law says, be proportionate. “Proportionality” in this sense is not the concept used to test the constitutionality of a statute or the validity of an administrative decision. It has a meaning more akin to a “rational, objective relationship”, or, for short, “appropriateness”, rather than any other. In reality, such requirement underpins the need for due correspondence and lays down a yardstick of some objectivity, even if in part intuitive, by which one can judge whether the impugned sum is or is not within accepted parameters.

90. In this case, even acknowledging at the highest level of concern, as I do, the damage which these articles have caused to Mrs. Leech, I cannot conclude that the jury’s award could be viewed as fair and reasonable and, in particular, that it can be characterised as proportionate, in the sense above given, to the consequences which these publications had for her, no matter how described. The sum so given in my view fails to reflect the necessary objective relationship between wrongdoing and harm. I must therefore conclude that the award should be set outside as falling outside the appropriate parameters which the principles above described demand, even having made all due allowance for jury sanctity. The verdict as to damages therefore cannot stand.

What Now Follows:
91. This conclusion raises the immediate question as to what further order should be made so as to address the setting aside of the jury’s verdict on the question of damages. There are only two possible options: either to order a retrial and return the assessment of damages to a freshly constituted jury or for this Court, of itself, to undertake that task. Mrs. Leech strongly supported the former; the appellant strongly urged the latter. My conclusion on this issue and the reasons therefor are as follows.

92. Prior to the enactment of the Supreme Court of Judicature (Ireland) Act 1877, the historical position in the common law courts was that virtually all civil actions were heard with a jury: defamation was undoubtedly one such action. (Bradley v. Maher [2009] IEHC 389). Section 48 of that Act specifically preserved the antecedent situation by providing that nothing in the Act should prejudice such a right in respect of actions where, prior to its enactment, it existed. Whilst s. 94 of the Courts of Justice Act 1924 (“the 1924 Act”), abolished that right for liquidated sums, breach of contract and recovery of land, nevertheless the section, otherwise in language quite similar to that of its predecessor, both acknowledged and declared the continuing existence of such right. That remains the situation to this day.

93. In the intervening years it is undoubtedly true that there has been much legislative agitation in this general area. Section 6 of the Courts Act 1971 abolished jury trials in all Circuit Court actions; the follow-up intervention took place in 1988 when, save for a limited number of exceptions not relevant, such mode of trial was likewise abolished in the High Court (s. 1 of the Courts Act 1988). Despite these interventions, however, there has been no change in the historical position relative to defamation actions initiated in the High Court. This preserve, quite evidently, was not per chance: its retention therefore must be considered deliberate and necessarily of value. Whilst its relevance can evidently be seen more in a trial court than at appellate level, nonetheless it would be to miss its significance entirely if this Court did not consider it as a serious factor when deciding as between a retrial and self-assessment by judge only.

94. The Oireachtas also intervened with the appellate jurisdiction of this Court when it re-enacted s. 96 of the 1924 Act (s. 48 of the Courts (Supplemental Provisions) Act 1961). Having provided that an appeal shall be moved by way of motion seeking a new trial, the section goes on to state that:-

“…in any appeal to which this section applies the appellate tribunal may, in lieu of ordering a new trial, set aside the verdict, findings, and judgment appealed against and enter judgment as the court considers proper.”
95. This section was considered in some depth by the Supreme Court in Holohan v. Donohoe & Anor [1986] I.R. 45, which incidentally was not a defamation action, but rather a personal injury appeal. In the three judgments delivered, (Finlay C.J., Henchy J. and McCarthy J.), many diverse views were expressed on a range of issues, such as whether the power to reassess damages, having set aside the verdict of the jury or the judgment of the High Court, was based on this provision, as Gahan v. Engineering Products Ltd [1971] I.R. 30 concluded, or whether that power had a constitutional origin. Indeed, McCarthy J. concluded that where the finding of the trial court is set aside on the issue of damages, then a retrial should be ordered, as in his opinion the Supreme Court had no jurisdiction on either basis to reassess the damages in its own right.

96. The variety of views so expressed are matters which I need not address, as I refer to Holohan only to indicate that in the thirty years since that decision, whilst the Supreme Court has itself re-assessed damages on multiple occasions, it has almost always done so in personal injury cases only, with its practice in the defamation area being strikingly different. In fact, it is I think accurate to say that the Court has shown a marked reluctance to utilise the section in such cases.

97. In Barrett a new trial was ordered, as it was in de Rossa, subject to Denham J. substituting an award of £150,000 for that given by the jury. In O’Brien the Court likewise ordered a retrial, with Denham J. on this occasion “reserving for another [time] the issue as to whether the Supreme Court can substitute an award of damages on appeal.” In that case, the order was otherwise made without debate and in a manner very suggestive of that being the only appropriate course to adopt, with Keane C.J. simply stating “I would allow the appeal and order a new trial of the issue of damages only”. In AE Dawson v Irish Brokers Association (Unreported, Supreme Court, 27th February, 1997, per O’Flaherty J.), again a retrial was ordered without discussion. In Crofter, the Court acted differently: Denham J., with whom the other two members agreed, substituted her own view for that of the trial court in relation to the exemplary damages element of the award. This, however, is entirely distinguishable from the other cases as cited and is explicable by virtue of the fact that the award was made by judge only. It therefore cannot be regarded as in any way a precedent for jury awards.

98. In none of these cases, however, or indeed in any of the other authorities as mentioned, is there any discussion on the reasons why, even if technically available, the option of appellate reassessment should not be entertained. In effect, in all of these cases, once the award had been set aside, it followed almost as a matter of custom and practice that a retrial would be ordered. This is clearly illustrated by the above passage from the judgment of Keane C.J. in O’Brien. The logical reason for this approach seems to be that given the sui generis nature of such proceedings, and the unique role of jury participation, such a course of action, save for some extraordinary reason, is inappropriate.

99. The respondent in this case very much favoured a retrial if the event of the award being set aside should come to pass, as it has. That viewpoint, whilst not decisive, must be accorded serious weight. It is entitled to much greater respect than that of the wrongdoer. Even within the lengthy timeline of this case, and quite patently having considered the trauma, distress, anxiety, uncertainty and obviously the publicity which a retrial would generate, nonetheless such is by far her preferred option.

100. It may be trite to say but it is essential to repeat the obvious, which is that this Court, if it should decide to reassess damages itself, will lack the obvious advantages of the tribunal of fact in observing the witnesses and in assessing and evaluating their evidence. The resulting disadvantage is not however evenly spread across all types of action; indeed even within the same family of proceedings it may vary considerably. In some cases facts may be seriously in dispute; in others the issue may turn on documentary material; and in further cases still the dispute may relate solely to a question of law. Whilst there are some tools available to address this imbalance, including Hay v. O’Grady [1992] 1 I.R. 210, these may not be adequate to satisfactorily overcome the limitations involved. Defamation cases, however, which by definition and process are separate and distinct from the other actions referred to, create significantly greater problems for an appellate court in this regard. The reasons for this are articulated right throughout this judgment.

101. How can a transcript convey the depth of a person’s feelings who has been publicly humiliated; whose sense of esteem and personal worth have been undermined, even shredded in some cases; whose presence even amongst strangers may result in being shunned or rebuffed? How can a cold print give a sense of that person’s hurt, perhaps touching the essence of who she is, of her character and personality, without which her sense of value could well be shattered? I very much doubt that without observing, assessing or listening to the essential witnesses, in particular the successful plaintiff, and without seeing her perform in the witness box, the members of an appellate court, deprived of such a facility, can truly feel the gravity of the injury, of the harm and of the damage for which that plaintiff is fully entitled to compensation. Such is a major handicap of significant proportions.

102. I have laboured, perhaps excessively, about the role of the jury in this type of case: phrases such as “unusual”, “uniqueness”, “exclusive”, “emphatic” and “sanctity” have been used to describe their participation in the process (paras. 49-54 supra). To give serious substance and effect to this recognition, it seems to me that unless the reasons for refusing a retrial are most compelling, then the preserve of that role should be maintained, and that by far the most feasible way of doing so is to order a re-trial. No such reasons to any remotely acceptable standard have been advanced for rejecting the respondent’s submission in this regard. I would therefore order a retrial.

Minority View:
103. I realise of course that this is a minority view within the court and that in the judgment of Dunne J., concurred in by Murray J., the damages have been reassessed and set at €1.25 million. In such circumstances, despite my decisive preference for a retrial, I might offer a view on what the alternative exercise might produce if my first line of approach had been similar to that of my colleagues.

104. So how should this Court position itself in assessing the damages? A jury brings to bear the normal community standards, its views are expected to represent right-thinking members of society, and it plays out this unique function in its assessment of such damages. I see no reason in principle why an appellate court should not endeavour to apply these standards and approach the exercise through the visual instrumentality of the community, which is envisaged in this exercise. Evidently it will suffer from the limitations set out elsewhere in this judgment but, subject thereto, should in general approach the task in this manner.

105. Insofar as referring to awards in other defamation cases should be the choice of the Court or any member of it, I strongly feel that the observation of Geoghegan J. at p. 43 of O’Brien should firstly be applied. The learned judge said: “[b]efore one begins to consider de Rossa v Independent Newspapers plc or any other comparison, it is important in my view that the Supreme Court should thoroughly consider the case before it in isolation of comparisons.” I therefore propose to approach the reassessment of damages in the general manner herein described.

106. As my views on the defamatory nature of the material published and on the causative consequences for Mrs. Leech are fully ventilated elsewhere, it is not necessary to repeat either here. In light of such matters, there can be no doubt but that the damages must be very substantial indeed. To reflect the various interests involved, and having had due regard to the legal principles above outlined, I consider that the sum of €1,000,000.00 should constitute the award in favour of the respondent. Whilst I acknowledge that there is some intuitive element in this, I should also point out, as I have done elsewhere, that there are also many substantial constraints of an objective nature involved. In arriving at this sum I have endeavoured to reflect both. Finally, I have not considered it necessary to refer to or to rely upon any alleged comparator in this context. In fact, I am quite satisfied that none of the authorities cited can, even with appropriate adjustments, be rendered comparable to the salient features of the instant case (see para. 83 supra). Accordingly, I have treated this matter solely in its own right.

 

Tanner v O’Donovan

[2015] IECA 24

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 24th day of February 2015
1. In these proceedings the plaintiff/appellant (“the plaintiff”) claims damages for negligence and breach of contract against the first and second defendants (who are architects) and the third defendant (who is a consulting engineer) arising from the construction of a hotel at various dates between 1998 and 1999. By the late summer of 2009 the action had not been set down for trial and the first and second defendants issued a motion on 10th September 2009 seeking to have the action struck out on the ground of inordinate and inexcusable delay. A similar motion was issued by the third defendant on 30th September 2009.

2. On 14th October 2010, the High Court (Feeney J.) made two orders dismissing the plaintiff’s claims on the basis of inordinate and inexcusable delay in prosecuting the proceedings, and directed that the said proceedings be struck out for want of prosecution pursuant to the inherent jurisdiction of the Court. The plaintiff originally appealed to the Supreme Court against the making of these orders, but this appeal was transferred to this Court by direction of the Chief Justice (with the concurrence of all the other members of the Supreme Court) on 29th October 2014 in accordance with Article 64 of the Constitution following the establishment of this Court on that day.
The proceedings and their background
3. The first and second defendants (“the first and second defendants”) were retained by the plaintiff in 1997 as architects, and the third defendant (“the third defendant”) was retained by him as an engineer in relation to the construction of a hotel in Clonakilty, Co. Cork. Complaints by the plaintiff relating to the professional work of the defendants first arose in 1998. The construction work was completed in March 1999 and the hotel was opened for business. The plaintiff maintains that attempts to sell the hotel in 2000, and again in 2001, failed because of problems with the premises which he attributes to breach of contract and professional negligence on the part of the defendants. The premises eventually sold in late 2001 for €1.7m.

4. The present proceedings were instituted by the plaintiff on 1st September 2003. The claim against the defendants was based on their alleged breach of contract, negligence and negligent misstatement or that of their servants or agents. It is clear from the particulars contained in the statement of claim that the difficulties which the plaintiff claims to have encountered materialised from February 2008. It is further claimed that there were on-going delays in the construction of the hotel from February 2008 until it was completed in March 1999.

5. While first and second defendants jointly entered an appearance on 19th November 2003, the third defendant entered an appearance on 9th March 2004. The first and second defendants brought a motion on 10th February 2004 to dismiss the proceedings for want of prosecution by reason of the failure to deliver a statement of claim. That motion did not ultimately proceed on the basis that the plaintiff agreed that he would deliver a statement of claim within a fixed time period. The statement of claim was eventually delivered on 2ndMarch 2004, some six months after the issue of the plenary summons. The statement of claim provided details of the alleged breach of contract/negligence and negligent misstatement of the defendants, their servants or agents. In monetary terms, the plaintiff’s claim for damages is for approximately €1.3m.

6. A defence was delivered in May 2006 on behalf of the first and second defendants. The plaintiff then brought a motion in November 2006 seeking to compel the third defendant to deliver his defence. This resulted in a consent order being made in January 2007 which allowed a period of four weeks for the delivery of the defence. While the third defendant believes that the defence was served in February 2007, the plaintiff maintains that it was not actually received until some date in early 2009. While this may (or may not) have been the case, it is noteworthy that the plaintiff did not make any application to the High Court in relation relating to the non delivery of the third defendant’s defence at any stage between early 2007 and 2009 when he says he eventually received it.

7. Between the period from September 2003 (the date of the service of the plenary summons) to March 2009 (the date of service of the defendants’ notices of motion which culminated in the order of the High Court under appeal), there were eight occasions when (between them) the defendants applied by motion to the High Court for orders compelling the plaintiff to take specific steps in the proceedings necessary for their processing, or to direct compliance with court orders already made, or seeking to strike out the proceedings for failure to comply with such orders (excluding the motions which are directly relevant to this appeal).

8. These motions can be summarised as follows:-

1. The defendants’ motion dated 10th February 2004 sought to dismiss the plaintiff’s claim because of his failure to deliver a statement of claim.
2. The first and second defendants’ motion dated 13th July 2004 seeking an order directing the plaintiff to furnish replies to the defendants’ letter seeking particulars dated 25th March 2004, some four months earlier.

3. The first and second defendants’ motion dated 7th March 2005 seeking an order striking out the proceedings by reason of the plaintiff’s failure to comply with the order of the court made on 18th October 2004, some five months earlier.

4. The first and second defendants’ motion for an order dismissing the plaintiff’s action by reason of the failure on the part of the plaintiff to comply with an order of the Master of the High Court made on 29th November 2007, some four months earlier.

5. The first and second defendants’ motion seeking an order dismissing the plaintiff’s action because of the failure on the part of the plaintiff to comply with an order of the Master of the High Court made on 29th day of November 2007, some eight months earlier.

6. The first and second defendants’ motion for an order dismissing the action of the plaintiff by reason of the failure on the part of the plaintiff to comply with an order of the Master of the High Court made on 29th day of November 2007, 30th May 2008 and November 2008, some fourteen months, eight months and four months earlier respectively.

7. The third defendants’ motion seeking to compel the plaintiff to reply to particulars set out in a letter dated 5th April 2004, some ten months earlier.

8. The third defendant’s motion dated 16th February 2006 seeking an order striking out the plaintiff’s claim for failure to comply with an order for discovery dated 31st May 2005, some nine months earlier.

9. The costs of the motions listed above were on each occasion awarded against the plaintiff.
Judgment of the High Court
10. An agreed note of the judgment of the High Court judge was supplied to this Court. It is evident, there from, that Feeney J. identified what he described as “three periods of possible delay”. He identified the first period of delay as that prior to the institution of the proceedings in September 2003, and which he described as possibly being inordinate and inexcusable. He identified a second period of delay to have been between September 2003 and May 2007, and the third period of delay as being between May 2007 (by which time he noted the defences had been delivered and discovery dealt with) and, the date of service of the notices of motions relevant to this appeal (September 2009), during which period there was no proceeding.

11. Feeney J. was satisfied that the plaintiff’s delay up to September 2009 was inordinate and inexcusable. He held that a period of well over two years had passed since the delivery of the defences which he noted was a greater amount of delay than that identified in Stephens v. Paul Flynn Ltd [2005] IEHC148. He went on to hold that the balance of justice lay with the defendants in acceding to their application to dismiss the proceedings. In doing so he referred to the fact that these proceedings were claims against individuals relating to their professional competence, and the fact that they were hanging over them for many years. Feeney J. also noted that two potential witnesses (for the defendants) had died, while another had emigrated.
Submissions on appeal
12. The plaintiff’s arguments focussed on the questions of whether the delay was excusable and the balance of justice. So far as the excusability of the post-commencement delay was concerned, counsel for the plaintiff, Mr. Condon S.C., pointed out that the defendants had themselves delayed in delivering their defences and they would suffer no real prejudice. He submitted that the defences were largely purely traverses, so that the extensive particulars raised by the defendants had not been necessary. The defendants had not taken any steps to bring the case on to trial.

13. So far as the balance of justice was concerned, Mr. Condon S.C. acknowledged that while two witnesses had died, he contended that they were not central to the case and that all relevant parties were still available to the Court. He also submitted that the plaintiff had plainly suffered a significant and substantial loss as a result of the defendants’ conduct for which he would not otherwise have had any effective recourse. Nor was there any reality to the contention that the defendants’ had suffered any reputational loss.

14. The defendants urged the court to take account of the length of time and delay since the cause of action accrued at some point in 1999 (if not, indeed, earlier), in assessing the overall delay in concluding these proceedings. It was argued that having regard to, in particular, the significant period of time between the date of the accrual of the cause of action and the date of the institution of these proceedings in 2003, there was a heavy onus on the plaintiff to ensure that the action would proceed to a hearing without undue delay. It was emphasised that there were considerable and unjustified delays in responding to notices for particulars, and that a number of applications to court for orders compelling the plaintiff/ to respond to the request for particulars, and to make discovery were necessary.

15. Counsel for the first and second defendants, Mr. Gleeson S.C., contended that there was a pattern of waiting for court orders in order to progress the litigation, and of a disregard for court orders when made. The suggestion made on behalf of the plaintiff that discovery issues was a reason for the failure to serve a notice of trial was dismissed, because it was a failure to complete the discovery process on the part of the plaintiff that greatly contributed to the delay. There was on the part of the plaintiff a pattern of non compliance with court orders, which required repeated applications to the court. Mr. Gleeson S.C. further rejected the argument that the particulars raised were unnecessary.

16. So far as the issue of prejudice was concerned, Mr. Gleeson S.C. emphasised that the retainer of the defendants in 1997 was essentially on the basis of an oral agreement, and that the first complaints arose in 1998. Oral evidence was therefore a very significant and important feature of the case, and the fact that two of the sub contractors had died, and another had emigrated, was prejudicial to the position of the defendants and their ability to properly defend the claim. Memories and recollections, especially as to detail, would have faded over the intervening years.

17. Mr. Gleeson S.C. also submitted that the jurisdiction to dismiss for inordinate and inexcusable delay is a discretionary jurisdiction and which was properly exercised in this instance by the High Court judge when determining the motion to dismiss in 2010. It was argued that having regard to the discretionary nature of the relief granted to the defendants, this Court should only intervene in exceptional circumstances. In support of this contention, reference was made to the dicta of Lynch J. in Martin v. Moy Contractors [1999] IESC 26 and those of Kearns J. in the Supreme Court in Stephens v. Paul Flynn Limited [2008] 4 IR 31 stated that a plaintiff, in seeking to overturn a dismissal for want of prosecution in the High Court was required to demonstrate that there had been an unreasonable exercise of discretion or some other error of principle by the judge in the lower court.

18. Counsel for the third defendant, Ms. Smith, also laid emphasis on the fact that the retainer between the plaintiff and her client was an oral one and there was a general lack of documentation which might clarify the extent of that relationship. It followed that oral evidence would be required, but echoing the comments of Finlay Geoghegan J. in Manning v. Benson & Hedges Ltd. [2005] 1 I.L.R.M. 190, she submitted that the recollection of the witnesses would inevitably have dimmed after such a lapse of time.

19. Ms. Smyth also contended that this was a case where the plaintiff had started late. This, coupled with a pattern of non-compliance with the timetable prescribed by court orders, meant that delays which might otherwise have been excused should not be tolerated by the court.

20. All three defendants placed considerable emphasis on the fact that the defendants were professional architects and an engineer, and that the litigation effectively alleged professional negligence on their part, and that there was therefore an even greater onus on the part of the plaintiff to process the litigation expeditiously. Not having done so had resulted in a cloud hanging over the defendants and their professional competence over a very lengthy period, and a period prolonged by virtue of delay and repeated delay on the part of the plaintiff.

21. I propose first to deal with the submissions concerning the scope of appeal, before proceeding to consider the substantive merits of the appeal.
The scope of the appeal
22. So far as the first and second defendants’ arguments regarding the scope of appeal is concerned, I would note that, for the reasons set out in the most recent judgment of the Supreme Court in Lismore Builders Ltd. v. Bank of Ireland of Finance Ltd. [2013] IESC 6 and in the judgment of this Court which was delivered by Irvine J. in Collins v. Minister for Finance on 19th February 2015, the jurisdiction of this Court in cases concerning substantive decisions – such as those dismissing actions for reasons of undue delay and want of prosecution – is not confined to those cases where an error of principle has been shown and that this Court is free to exercise its own independent judgment in the matter. It will, of course, pay particular heed to the manner in which the High Court has exercised its own discretion in cases of this kind. It is against that background that I now propose to consider the substantive merits of the appeal.
The substantive merits of the appeal
23. The principles regarding the exercise of the jurisdiction to strike out on the grounds of inordinate and inexcusable delay have been set out at length by the Supreme Court in Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 and a wealth of subsequent case-law. The relevant questions are set out in the three-pronged test set out in Primor: (i) was the delay inordinate? (ii) if so, was the delay inexcusable? and (iii), even if the answers to these two questions is in the affirmative, does the balance of justice require the proceedings to be dismissed.
Relevant period of delay
24. It is necessary, first, to consider the relevant period of delay for the purposes of the Primor test. It is the period since the commencement of the proceedings up to the date of hearing of the motions to dismiss by the High Court Judge which is the period which must be considered for this purpose. For the reasons next set out, however, the period from the date of the accrual of the cause of action to the issue of proceedings is also relevant to the assessment of the question as to whether post issue delay is inordinate or inexcusable.

25. While it is not easy to be precise as to when the plaintiff’s cause of action first arose, judged by the particulars contained in the statement of claim it would seem that it is contended that very serious problems arose at a relatively early stage in the construction process. Thus, for example, among the allegations is the contention that the roof of the hotel was so badly designed that it was in danger of a collapse and that this was drawn to the defendants’ attention in February 1998. It is further contended that the building as so constructed was unsafe and not in compliance with the Building Regulations, with the result that the site was in fact closed from April 1998 to July 1998.

26. While it is true that the plaintiff maintains that he experienced on-going problems in terms of certification of compliance with the Building Regulations until the hotel was ultimately sold in December 2001, the essence of the claim relates to defective work which was said to have occurred in the period from February 1998 to March 1999. If the plaintiff’s contentions are correct, major construction problems manifested themselves relatively quickly after the commencement of construction work. In such circumstances one might have expected that the proceedings of this kind would have been speedily instituted. Hence the commencement of the proceedings in September 2003 must in these particular circumstances be adjudged to be a late start. This made it all the more incumbent on the plaintiff to proceed with expedition thereafter. As Lord Diplock observed in Birkett v. James [1978] A.C. 297, 322:

“A late start makes it the more incumbent on the plaintiff to proceed with all due speed and a pace which have been excusable if the action had started sooner may be inexcusable in the light of the time that has already passed before the writ was issued.”

Was the delay inordinate?
27. By any standards, the delay was inordinate. The plenary summons issued in September 2003 and yet by the date of the issue of these motions to dismiss for want of prosecution in September 2009, the matter had not been set down for trial and no active steps had been taken by the plaintiff in the proceedings for a year (and them only in response to motions brought by first and second named defendants). Nor had any such steps been taken prior to the hearing of these motions by Feeney J. in July 2010.
28. The pace of the present proceedings was so leisurely – the late start notwithstanding – that, as I have already observed, no less than eight separate motions were issued by the defendants’ respective solicitors in relation to either default of pleading by the plaintiff on the one hand or a failure to comply in a timely fashion with court orders on the other.

29. It follows, accordingly, that the first limb of the Primor test has been satisfied.
Was the delay inexcusable?
30. The delay by the plaintiff which attended the proceedings were, for the most part, inexcusable. One might excuse some of the delay which attended the period from October 2003 to March 2004. During that period the solicitors for the first and second defendant had asked that service of the plenary summons be delayed for a few weeks. There was then an objection raised by the first and second defendants to the plaintiff’s then firm of solicitors which necessitated a change of solicitors. During the period the matter had been referred to the Law Society for resolution and the plaintiff’s original solicitor was understandably reluctant to reply, for example, to the particulars directed by the High Court by order dated 18th October 2004 given the objection which was outstanding.

31. This matter was ultimately resolved with the transfer of the file to the plaintiff’s new solicitors in March 2005. While some period must be allowed to those solicitors to familiarise themselves with the file, the replies to particulars raised by the first and second defendants were only served on 30th May 2005. There was then a further request for particulars which was fully replied to on 16th July 2006. A defence was served by the first and second defendants in May 2006. There was very little justification for not taking active steps after that date in procuring the defence of the third named defendant and having the matter set down for trial.

32. There was also delay on the part of the third defendant in serving a defence. The statement of claim was served in March 2004, and the third defendant initially raised particulars in April 2004 and was required to bring a motion in February 2005 to obtain replies. The third defendant also unusually sought discovery in advance of delivering a defence and the plaintiff engaged in that process. A consent order was made by the Master of the High Court on 31 May 2005 directing certain discovery by the plaintiff within 8 weeks. The consent order was not complied with and a motion to strike out for failure to make discovery was brought in February 2006. Ultimately the plaintiff furnished an affidavit of discovery on 29th March 2006 (approximately 10 months after the consent order requiring this to have been done in 8 weeks). In meantime the plaintiff’s solicitor sought a defence and by letter of 27th July 2005 indicated that unless a defence was delivered “before the end of this week” a motion would issue. However, no such motion issued until November 2006 and in January 2007 the third defendant was given time to deliver a defence.

33. The third defendant’s solicitors maintain that a defence was filed along with a notice to produce and a notice claiming indemnity and contribution on 27th February 2007. The plaintiff’s solicitors maintained that these documents were never received by them and that they first had sight of them when they were exhibited in the affidavit grounding the present motion to dismiss which was issued in September 2009.

34. I cannot forbear observing that the conduct of the litigation from both the plaintiff and the third defendant has in this respect been unsatisfactory, whichever account is correct. Even if the third defendant is correct, his defence was filed some eighteen months after the plaintiff’s solicitor had clearly indicated in July 2005 that he required a defence notwithstanding the discovery process which was also taking place.

35. If the plaintiff is correct, then the question arises as to why no further action had been taken by him to compel the delivery of the defence prior to August 2009 well over five years since the delivery of the statement of claim and in excess of two and a half years since the order compelling the third defendant to file a defence. Even on that version of events, the plaintiff’s further delay in not taking active steps to prosecute the proceedings after such a length of time – even allowing for the delays on the part of the third defendant – was itself entirely inexcusable. The fact that a defendant has been inactive does not excuse a plaintiff from prosecuting proceedings with the appropriate degree of expedition and vigour, not least where (as here) the plaintiff has delayed before issuing proceedings. This is perhaps especially so when the other defendants (i.e., in this case, the first and second defendants) had already long since served their defence some three years earlier.
Balance of justice
36. It remains then to consider the balance of justice. It is true that courts have traditionally reluctant to strike out claims of this kind on the ground of undue delay, since this necessarily impinges on the litigant’s right of access to the courts. Yet measured by the state of the evidence at the date of the High Court hearing in October 2010, the balance of justice nevertheless favoured the dismissal of this particular claim having regard to these particular facts.

37. Perhaps the most obvious consideration here is that the delays up to October 2010 have been prejudicial. It is clear from the pleadings that the agreement contended here for by the plaintiff was an oral one, but, for example, the third defendant has denied the existence of any such agreement or that, as also claimed, that he made representations to the plaintiff prior to any such appointment. Accordingly, the case rests largely on the existence of an oral contract, the terms of which (if there was one) are in dispute. Any fair hearing of the claim would thus be very dependent on oral evidence and the recollection of detail associated with architectural and engineering services, and the construction of a building.

38. The lapse of time between 1998 and 2010 was accordingly inherently prejudicial, since the capacity of the witnesses – on all sides – to recollect this detail has doubtless been considerably impaired. As Finlay Geoghegan J. said in Manning v. Benson & Hedges Ltd. [2005] 1 I.L.R.M. 190,208:

“Delays of four to five years as a matter of probability will reduce the potential of such witnesses to give meaningful assistance or to act as a witness.”
39. In Rogers v. Michelin Tyres [2005] IEHC 294 Clarke J. stated that as the delay affected the ability of witnesses to recall the minutiae of an important meeting some ten years earlier, this meant that the defendant had suffered what he described as “at least a moderate degree of prejudice in defending this action.” Likewise, in Gilroy v. Flynn [2004] IESC 98, [2005] 1 ILRM 290, 293-294 Hardiman J. spoke to the same effect then he observed that:
“…. the Courts have become ever more conscious of the unfairness and increased possibility of injustice which attach to allowing an action which depends on witness testimony to proceed a considerable time after the cause of action accrued.”
40. All of this necessarily compromises the basic ability of the courts to discharge their fundamental constitutional mandate to administer justice as prescribed by Article 34.1 of the Constitution. As Finlay Geoghegan J. said in Manning ([2005] 1 I.L.R.M. 190, 202):
“The constitutional requirement that the courts administer justice requires that the courts be capable of conducting a fair trial.”
41. In this regard, it has to be also noted that both the main electrical contractor and the lighting contractor had both sadly died ever before these motions to dismiss had issued. While the plaintiff admittedly disputes any suggestion that these were central witnesses, yet their absence hampers the ability of the defendants to reconstruct the events of 1998-1999. An employee of the first and second defendants who inspected the building on their behalf has since emigrated to the US. It is unclear whether he would have been available for the trial.
42. In assessing this question of the balance of justice, regard must be had to two further considerations, namely, the obligation on the plaintiff who starts late to proceed with expedition and the fact that the allegations in this case directly impact on the professional reputation and good name of the defendants. So far as the former consideration is concerned, I have already made it clear that I do not consider that the plaintiff proceeded with the necessary expedition which would have been required where (as here) there was, in fact, a late start.

43. So far as the second consideration is concerned, while the details of the adverse impact on the defendants’ professional reputations are admittedly sparse, it is nonetheless plain that the very existence of such proceedings could in itself potentially impact on those reputations, possibly even in a far-reaching way. A finding that that there had been negligence on the part of any of the defendants had caused or brought about a state of affairs where a hotel was structurally unsafe and had been closed for a three month period as a result would seriously impact upon their professional reputations. Indeed, in other circumstances the very existence of a claim of this kind could affect a professional person’s capacity to secure or renew professional indemnity insurance (not least having regard to the significant quantum of damages claimed by the plaintiff) and might even required to be notified to professional bodies. All of this is to recognise that proceedings of this is not simply about the recovery of a monetary award, but may well have significant reputational implications.

44. The unfairness associated with undue delay in this context has long been recognised. As O’Hanlon J. observed in this context in Celtic Ceramics Ltd. v. Industrial Development Authority [1993] I.L.R.M. 248, 258-259:

“It seems very unfair and unjust that persons whose professional standing and competence are under attack should be left with litigation hanging over their heads for years by reason of the inordinate and inexcusable delay on the part of a plaintiff and I would respectfully echo the view expressed by Henchy J. in Sheehan v. Amond [1982] I.R. 235 that it should be possible to invoke ‘implied constitutional principles of basic fairness of procedure’ to bring about the termination of such proceedings.’”
45. To this I would add that the effective protection of the right to a good name expressly guaranteed by Article 40.3.2 of the Constitution necessarily implies that claims of this kind – with obvious implications for the good name of a professional defendant – should be heard and determined within a reasonable time. Any other conclusion would undermine the substance and reality of that express constitutional guarantee.
46. All of this means that the courts are obliged, where possible, to ensure that claims of this kind are adjudicated within a reasonable time if they are to remain faithful to the constitutional commitment to protect the right to a good name as protected by Article 40.3.2.

47. In arriving at this conclusion, I have not overlooked the conduct of the third defendant and, specifically, the delay on his part in filing a defence since the conduct of the defendants is also a relevant factor so far as any examination of the balance of justice is concerned. However the plaintiff had his own remedies in respect of that default of which he did not properly avail. Having regard to his late start he was under a particular obligation to move the litigation forward.

48. The fact remains that the delay has been such as to compromise the ability of the courts to do justice in respect of allegations which, if accepted, would seriously impact on the good name and reputation of the defendants. In these circumstances, I find myself obliged to hold that the balance of justice favours the dismissal of the proceedings.
Conclusions
49. It follow, accordingly, that as there has been inordinate and inexcusable delay on the part of the plaintiff and as the balance of justice also requires the dismissal of the proceedings, I would dismiss the appeal against the decision of Feeney J. to dismiss the proceedings.

 

McDonagh v Sunday Newspapers

[2015] IECA 225

 

THE COURT OF APPEAL
Neutral Citation Number: [2015] IECA 225
Appeal No. 2014 No. 116

[Article 64 transfer]

Kelly J.
Irvine J.
Hogan J.
BETWEEN/

MARTIN MCDONAGH
RESPONDENT
AND
SUNDAY NEWSPAPERS LIMITED

APPELLANT

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 19th day of October 2015
1. In what circumstances can an appellate court set aside a jury verdict in a defamation case on the ground that it is perverse? This is the principal issue which is presented on this appeal from a decision of the High Court (de Valera J. and a jury) of 28th February 2008 where the jury found that the plaintiff had been defamed by a publication in the Sunday World on 5th September 1999. The jury awarded the plaintiff the sum of €900,000 in damages.

2. As it happens, this award was more than twice the then existing record for defamation awards which had been established in de Rossa v. Independent Newspapers plc. [1999] 4 IR 432. (This amount has since been exceeded by a number of other awards, most notably the award of some €1.87m. in Leech v. Independent Newspapers Ltd. [2014] IESC 79, a sum reduced on appeal by the Supreme Court to €1.25m.). The defendant has also appealed the amount of this award on the ground that it is excessive and this is the second issue which arises on this appeal. There is also a third issue which I will presently address, namely, the failure of the jury to answer the second question on the issue paper prior to proceeding to assess damages.

3. Before considering any of these questions, it is first necessary to set out the nature of the publication itself.
The nature of the publication
4. The plaintiff, Mr. McDonagh, claims that he was defamed in an article published by the Sunday World on 5th September 1999 entitled “Traveller is new drug king.” The article purported to narrate the background to the seizure by members of An Garda Siochána of some IR£500,000 worth of illegal drugs (cannabis and amphetamines) in Tubbercurry, Co. Sligo a few days previously on 30th August, 1999.

5. The article identified Mr. McDonagh (although it did not name him as such) as the man behind the drug seizure. He was described as a drug dealer who lived in Sligo and as somebody who had amassed a fortune without any visible means of income. He was also described as an illegal moneylender and a criminal. Details were given (in general terms) regarding his lifestyle, abode and family. The newspaper accepted that he was the person identified in the article.

6. The newspaper contended that the plaintiff did not personally touch any drugs, but that he had flown to London Stansted from Ireland West (Knock) airport with his brother and some accomplices a few days before the drugs were seized by the Gardaí. It was suggested by the newspaper that he had spent the weekend there in the company of a known drug dealer and that he had arranged for the accomplices to bring the drugs back in two holdalls. The accomplices travelled by ferry while he flew back to Knock. The Gardaí then kept the consignment under surveillance and the two accomplices were later arrested in possession of the drugs at a house in Tubbercurry. Although the plaintiff was arrested under s. 2 of the Criminal Justice (Drug Trafficking) Act 1996, and detained for seven days in relation to the seizure, he was never charged with any offence. The two accomplices, Mr. Carthy and Mr. O’Grady, were subsequently convicted and each received a five year sentence.
The proceedings and the issues
7. These proceedings were commenced on 17th January 2000. A statement of claim was delivered on 2nd February 2000. In his statement of claim the plaintiff contended that the article in its natural and ordinary meaning meant:-

(a) that he was a criminal;
(b) that he was a drug dealer;

(c) that he was a tax evader, and

(d) that he was a loan shark.

8. The newspaper delivered its defence in April 2002 and the defences of justification and qualified privilege were both pleaded. At the hearing of the action in February 2008 it was agreed that three questions should be put to the jury, with the first question broken down into four component parts.
9. Question 1 on the issue paper was in the following terms:-

“Has the defendant proved:
(a) that the plaintiff is a drug dealer?

Answer: No.

(b) that the plaintiff was a loan shark?

Answer: No.

(c) that the plaintiff was a tax evader?

Answer: Yes.

(d) that the plaintiff was a criminal?

Answer: Yes

10. The second question actually provided for the contingency where some of the individual components in question 1 would be answered in the affirmative with others in the negative. The second question was in the following terms:
“Question 2:
If the answer to one or more parts of question 1 is ‘no’, but the answer to one or more parts of question 1 is ‘yes’, do the words not proved to be true materially injure the plaintiff’s reputation having regard to the truth of the remaining charges?”

11. The jury did not, unfortunately, answer the second question and, indeed, their failure to do so has given rise to a separate ground of appeal. The jury did, however, answer the third question which was in the following term:-
“Question 3:
If the answer to question 2 is ‘yes’, assess damages.

Answer: €900,000, plus costs.”

12. The defendant originally appealed to the Supreme Court against this verdict. Following, however, the establishment of this Court on 28th October 2014 this appeal was transferred to this Court by direction of the Chief Justice (with the concurrence of the other members of the Supreme Court) on 29th October 2014 pursuant to the provisions of Article 64.3.1 of the Constitution.
The evidence given on behalf of Mr. McDonagh
13. Mr. McDonagh’s evidence in chief was to the effect that he had travelled to London for a drinking session with some of his friends. While he stated that he was no “angel”, he insisted that he was not involved with drugs. He denied that he had made any admissions to the Gardaí following his arrest and detention.

14. Mr. McDonagh accepted that he had a series of convictions, although he was uncertain of some of them. Although Mr. McDonagh stated in his evidence in chief that apart from a minor matter when he was 14 years of age, he had no criminal record and had not been involved in any fraudulent activities, he accepted in cross-examination that he had been convicted of burglary and larceny in 1981 when he was aged 18 and had received a three months sentence. He was convicted of larceny again in 1982 and received a three month sentence. He received another sentence of three months for larceny in 1984. He also accepted that he had been convicted in 1985 of receiving stolen goods.

15. In cross-examination Mr. McDonagh accepted that he had been arrested on the 3rd September 1999 and that he had spent seven days in custody in relation to the drugs find. He had travelled the previous weekend to London with his brother, Michael, and two friends, Calvin Carthy and Mark Gethins. Mr. Michael McDonagh lives in Spain. Mr. Gethins is Mr. McDonagh’s brother in law. While in the UK he went to the flat of a friend of his from Sligo, Graham O’Grady.

16. The plaintiff claimed that he decided to go away on the spur of the moment for a drinking session with his friends. He accepted that in 1999 he was 36 years of age and Mr. Carthy was then about 17 or 18 years of age. When pressed as to whether or not it was usual to be friendly with a person as young as that, Mr. McDonagh said that he was friendly with everybody, young or old. When asked as to why he would want Mr. Carthy to go to England with him, Mr. McDonagh said:

“It’s not that I wanted him to go to England with me. It was just a case that we were drinking and we were drinking for a few days, myself and the boys, and his name just popped up. So we said, right, come on. That was it, there was no set-out to go. It just happened.”
17. Mr. McDonagh then said that they had picked up Mr. Carthy “at a roundabout in Collooney”, although he said that he had not contacted him and did not know who had. The following exchange then took place:
“Q. You don’t go off for a weekend with somebody without working out who is going and for what reason.
A. That’s who we are.”

18. When the party arrived at Stansted they met a friend of his brother’s, Jimmy McMorrow. Mr. McDonagh stated that he disliked Mr. McMorrow because he had once tried to supply drugs to Mr. McDonagh’s daughter. He acknowledged that Mr. McMorrow had a conviction for drugs, but denied that any drugs were present at the premises where he stayed in London. He further denied any involvement in drug dealing.
19. Mr. McDonagh stated that the Criminal Assets Bureau (“CAB”) had never accused him of involvement in the drugs trades, but he was obliged to accept that the affidavits filed on behalf of CAB in separate proceedings suggested otherwise.

20. Three other witnesses were called by the plaintiff: Ms. Nathalia Lyons (the eldest daughter of the plaintiff), Mr. Vincent Murray and Mr. Phil O’Rourke. Mr. Murray gave evidence that he was publican who ran a licensed premises in Sligo town from 1985 until 2004. He denied ever hearing that Mr. McDonagh had ever been involved in drug dealing or loan sharking.

21. Mr. O’Rourke gave evidence that he was a lecturer in economics at the Institute of Technology in Sligo. He denied ever hearing that Mr. McDonagh had been involved in drug dealing.
The evidence given on behalf of the Sunday World
22. The Sunday World led evidence from nine members of An Garda Síochána and a representative from Permanent TSB, Mr. David Curtis. The Garda evidence related principally to the circumstances of the drugs seizure, the detention of the plaintiff and the admissions which he was said to have made in custody. Mr. Curtis gave evidence in relation to the plaintiff’s bank accounts.

23. Detective Garda Eddie McHale gave evidence that he was a member of the Garda team that investigated the Tubbercurry seizure. He said that he had interviewed the plaintiff while he was detained on a number of occasions at Manorhamilton Garda Station. Detective Garda Eddie McHale was asked to read into the record the notes of those interviews which he conducted on 4th September 1999. Among the comments attributed to Mr. McDonagh in these notes were the following:

“When I got to the airport and saw Jimmy [McMorrow] waiting there for [my brother] Michael, then I knew what was happening. It’s Michael that should be here and Calvin Carthy. [Mr. O’Grady] was forced to carry the stuff. I know that Jimmy forced him…”
24. Later in the interview Mr. McDonagh reportedly said:
“Q. Where were the drugs bought?
A. Look you can buy nine bars [of cannabis] in Spain for £25 to £30. You see the [ecstasy tablets] you can buy them in Amsterdam for 20p. That’s fact. Jimmy brought that stuff from Spain to England and that’s fact. And he didn’t use the normal way, he went a roundabout way.”

25. Those notes suggested that the plaintiff acknowledged that he knew about the planned drugs shipment and that he had maintained that Mr. O’Grady had been forced to carry the drugs. He also appeared to have stated that Mr. McMorrow bought the drugs in Spain and brought them from there to the UK.
26. Detective Garda Eddie McHale also stated that in the course of his detention Mr. O’Grady was asked whether he wanted to speak to anyone. Detective Garda McHale said that while Mr. O’Grady said that he wanted to speak with his uncle, the person whom he in fact spoke to by telephone was Mr. McDonagh.

27. Detective Garda Eddie McHale was cross-examined as to the circumstances in which the newspaper came to have fairly precise details of the background to the Garda investigation which, Mr. Doyle S.C., counsel for Mr. McDonagh, suggested, could only have come from Garda sources. Detective Garda Eddie McHale accepted that Mr. McDonagh had never been charged or convicted in respect of any drugs offence. While it was also put to Detective Garda Eddie McHale that Mr. McDonagh had “maintained his innocence about drugs, whatever else”, the witness responded:

“Well, I wouldn’t go fully with that now…I wouldn’t agree 100% because there are parts in [those] statements where he said he did know what was going on in relation to drugs.”
28. Garda Vincent McKeown gave evidence that he had investigated Mr. McDonagh in connection with the Tubbercurry drugs find. He gave evidence that he had conducted two interviews with Mr. McDonagh on 2nd September 1999 along with Garda Pauline McDonagh. During the first interview Mr. McDonagh was asked about his trip to the UK including his encounters with Mr. Carthy and Mr. O’Grady. In the second interview Garda McKeown said that Mr. McDonagh agreed to speak for so long as no notes were taken. During that interview the plaintiff was said to have identified Mr. McMorrow as the person who would take the drugs through customs and that his brother, Michael, was one of the persons who financed the deal.
29. Garda Vincent McKeown then conducted a second interview on 9th September 1999 and Garda McDonagh was again present. According to the notes read out in court by Garda Vincent McKeown, the plaintiff stated that he “knew that there was something going on” but that he never dreamt that “there were that quantity of drugs involved.” Mr. McDonagh declined to sign the notes and he also denied during these interviews that he was involved in drugs.

30. Detective Garda Vincent McKeown also stated that Mr. McDonagh agreed to speak if no notes were taken. Following that conversation a note was subsequently prepared. That note suggested that Mr. McDonagh stated that his brother, Michael, had financed the operation and that an accomplice of his was to be the person who distributed the drugs in Sligo.

31. In cross-examination it was put to Garda Vincent McKeown that the plaintiff had travelled to London having consumed a vast quantity of alcohol; that he had arrived drunk and that others had to arrange to purchase his ticket to travel from Knock to Stansted. While Garda Vincent McKeown said that he did not know the plaintiff very well prior to the investigation, he accepted that these were not the actions of a top drug dealer who was masterminding a massive importation of drugs.

32. Detective Garda Pauline McDonagh gave evidence that she was present at five of the six interviews conducted by Garda Vincent McKeown and she confirmed that these notes were accurate. While she was briefly cross-examined, nothing was suggested to her that the notes were inaccurate in any way.

33. Garda Thomas Doherty said that he had also conducted an interview with Mr. McDonagh on 8th September 1999. He said that according to his notes Mr. McDonagh admitted that he was a moneylender and that he charged 100% interest. He also said that Mr. McDonagh had denied any involvement with the drugs find. At the end of the examination in chief Garda Doherty was asked:

“376 Q. Are you confident they are accurate accounts?
A. They are, my Lord, yes, Judge.

377 Q. You are confident that he said, for instance, that he charged interest rates of 100%?

A. I am, my Lord, yes.

378 Q. You’re confident that when you read over the notes to him he said they were correct?

A. That’s correct, my Lord, yes.”

34. He was cross-examined to the effect that the plaintiff had disputed the contents of all the Garda interviews and that it was possible that he would not have wished to incriminate his brother. The rest of the cross-examination focussed on the circumstances in which the newspaper came to have the details of the story.
35. Detective Garda Michael Carr gave evidence that he had conducted one interview with the plaintiff on 7th September 1999. The interview notes suggested that Mr. McDonagh had denied any involvement with the drugs seizure, but that he accepted that he did loan money. While the cross-examination of Detective Garda Carr was brief, the gist of it was to the effect that the plaintiff denied the accuracy of the notes.

36. Detective Garda John McHale read out the notes of interviews conducted on the 5th September and 6th September in which the plaintiff denied any involvement with the drugs in question. He said that when he was in London he had warned Mr. O’Grady not to get involved in anything to do with drugs. Detective Garda John McHale was briefly cross-examined regarding the details of the newspaper publication.

37. Detective Garda O’Neill gave evidence that he was present when Messrs. Carthy and O’Grady were arrested following the seizure of the drugs at a flat in Tubbercurry. He also stated that he was observing the flat from the rear where he encountered Mr. Gethins who was in the process of parking a car at the rear of the building. While he gave evidence as to Mr. McDonagh’s reputation as a drug dealer and a loan shark, he said that he had never actually interviewed Mr. McDonagh in relation to these matters. Detective Garda O’Neill was cross-examined about the circumstances in which the details regarding the drugs seizure came to be published by the newspaper.

38. Detective Garda Oisín McKeown said that he was attached as bureau officer for the Criminal Assets Bureau (“CAB”). He said that the CAB had obtained orders under the Proceeds of Crime Act 1996 which disclosed substantial lodgements of some €665,000 lodged to six accounts under the control of the plaintiff. He said that there did not appear to be any lawful explanation “as to how these monies had made their way to those accounts.” He also said that the plaintiff was receiving social welfare payments at the same time. He stated that CAB had reached a settlement with the plaintiff which involved him paying unpaid tax in the sum of IR£100,000. Detective Garda McKeown was not cross-examined.

39. Mr. David Curtis gave evidence that he was a senior manager with Irish Life and Permanent plc. He said that there were three personal accounts along with a company account in the name of Martin McDonagh (Sligo) Ltd. He said that the accounts appeared to be regular and normal, with IR£16,000 being the biggest lodgement.

40. Detective Sergeant Connell Lee gave evidence as to the plaintiff’s reputation in the Sligo region. He also detailed the publicity which had surrounded the drugs haul. Detective Sergeant Lee accepted in cross-examination that the newspaper article had much more detail than would have been given out through the Garda press office.
The rule in Browne v. Dunn
41. One of the major issues arising on this appeal was how the evidence of the Garda witnesses should be treated. The newspaper contended that, as the statements allegedly made by the plaintiff while in Garda custody following his arrest are consistent only with guilty knowledge of the drugs which were seized, the jury’s verdict to the contrary should be set aside as perverse. As the Gardaí were not really cross-examined as to the contents of the matters of which the plaintiff is supposed to have made admissions, the newspaper contended that the veracity of these statements must be taken as having been established.

42. This raises the applicability of the supposed rule in Browne v. Dunn (1894) 6 R. 67. In that case the plaintiff had alleged that the defendant solicitor had libelled him by saying that he (the defendant) had been retained by nine named persons in order to have him bound for breach of the peace. Although the plaintiff contended that the retainer was a sham, six of the nine clients gave evidence that it was legitimate. None of them were cross-examined on this critical issue. In the High Court, however, the jury found for the plaintiff on the defamatory nature of the publication.

43. The English Court of Appeal set aside the verdict on the ground (it would appear) that the verdict was perverse. This decision was affirmed by the House of Lords, with various members of the House dealing with the extent of the obligation to cross-examine. But so far as the verdict itself was concerned, Lord Herschell L.C. said ((1894) 6 R. 67, 71):

“…the case is all one way. Having regard to the conduct of the case, it was not open to the learned counsel to ask the jury to disbelieve their stories, and to come to the conclusion that nothing of the kind had passed. If that is so, there is an end of the case so far as it rests upon the whole of the transaction being a sham….”
44. The application of Browne v. Dunn in this jurisdiction was comprehensively examined by Baker J. in her judgment in Director of Public Prosecutions v. Burke [2014] IEHC 483. In that case a prosecution witness gave evidence which was exculpatory of the accused and the District Court stated a case for the opinion of the High Court as to whether the court was bound to acquit the accused based on the fact that an important prosecution witness was not cross-examined.
45. Baker J. rejected the suggestion that there was some ex ante rule which compelled the court to treat unchallenged evidence as requiring a particular result. She did, however, lay down important guidelines on this issue at para. 44:

“(a) In closing submissions or argument a party may not impeach the credibility of a witness if that witness’s evidence has not been tested in cross-examination;
(b) Ipso facto a person who does not cross-examine evidence is faced with the prospect that the evidence is heard by the trial judge or the jury and is untested.

(c) There is no requirement that evidence be cross-examined, but by not cross-examining evidence the evidence goes to the fact finder as untested and un-contradicted evidence.

(d) Untested and un-contradicted evidence carries greater weight than tested contradictory evidence.

(e) It is not the function of any rule of law to direct the court to accept evidence merely on account of the fact that it has not been tested. The court must hear all of the evidence before it and is entitled to weigh the evidence, including unchallenged evidence, against the evidence as a whole adduced at the trial.

(f) A trial judge or a jury is not compelled as a matter of law to accept evidence because it is not challenged. Unchallenged evidence is part of the evidence at trial and the fact that it is unchallenged gives it somewhat greater weight, but does not direct a particular result.”

46. Although Baker J.’s analysis of these issues is an extremely valuable one, she was not required in that case to address another dimension of Browne v. Dunn, namely, what is the position where the only evidence given is along particular lines and that evidence has not itself been challenged?
47. The Supreme Court examined aspects of this issue in M v. M. [1979] I.L.R.M. 160. This was a nullity petition where the wife applied for a decree on the ground of non-consummation. Both husband and wife gave evidence to this effect and in his evidence the husband accepted that the failure to consummate was entirely due to his physical or psychological incapacity. This testimony was entirely corroborated in every particular by the wife’s general practitioner, a consultant physician and by a psychiatrist whose report was put in evidence.

48. As Henchy J. put it, each of the witnesses in the case had left court ([1979] I.L.R.M. 160, 161):

“…without any suggestion having been made that their evidence was not truthful or credible. It was not suggested to the husband or wife that they had acted collusively in the matter before the court. Nor was it suggested to the general practitioner or the consultant physician that they (or the consultant psychiatrist) had been misled into a wrong conclusion as to the husband’s impotence and, therefore, as to the non-consummation of the marriage. The judge’s note of the evidence adds up to an unrebutted and unquestioned case for the grant of a decree of nullity.”
49. Henchy J. went on to note that, however, the trial judge had refused to grant the decree saying that he was satisfied that the parties had acted collusively and that they had, in effect, given perjured evidence. Henchy J. held, however, that such a verdict was not open to the trial judge ([1979] I.L.R.M. 160, 162):
“….having regard to the unanimity of the evidence given and the conduct of the case generally it was not open to the judge to refuse a decree of nullity for the reasons given. It is not in accordance with the proper administration of justice to cast aside the corroborated and unquestioned evidence of witnesses, still less to impute collusion or perjury to them, when they were not given any opportunity of rebutting the accusation. To do so in this case was in effect to condemn them unheard, which is contrary to natural justice.
Having due regard to the degree of proof required to be established by a petitioner in a case such as this, I consider that a decree of nullity was the only verdict that was open on the evidence given. If the case were to be sent back to the High Court for rehearing, there is no reason to think that such a rehearing would yield any other verdict.”

50. As Henchy J. himself acknowledged, M. v. M. represent a classic example of the fair procedures dimension of cross-examination. As that case illustrates, if the decision-maker elects not to accept otherwise unchallenged evidence, notice of this must normally be given either expressly (typically by having matters “put” to the witness) or by implication. But M. v. M. is also in its own way an example of the application of another feature of Browne v. Dunn: as the unchallenged evidence pointed unanimously in favour of a decree of nullity, that evidence could not have been rejected by the court of trial on the ground that the evidence was not credible.
51. So far as the present case is concerned, it would be hard to say that the fair procedures dimension of the rule in Browne v. Dunn was infringed. As Lord Herschell L.C. pointed out in Browne, cross-examination is not essential where it is clear that the evidence given or to be given by a particular witness is impeached (1894) 6 R. 67, 71):

“Of course, I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakeably given, and the point upon which he is impeached and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.”
52. These principles were recently applied by O’Malley J. in AC v. Judge O’Brien [2015] IEHC 25. In this case the prosecution had first led identification evidence from a Garda implicating the accused in the offence. After the prosecution case had closed, the accused gave evidence denying the offence and he was not cross-examined on that evidence. O’Malley J. rejected the fair procedures argument, saying at para. 58:
“The ‘fair procedures’ arguments do not appear to me to carry a great deal of weight in the circumstances of this case. There is no doubt but that each side knew the case it would be meeting. It is incorrect to assert that the applicant was not given an opportunity to deal with the evidence of Garda McMahon – his own counsel could have asked him to do that, rather than simply asking him to deny his guilt.”
53. The same can be said here. Whatever else might be said about the plaintiff’s case, it was at all times made clear that he disputed the accuracy of the statements which he was said to have made while in custody. All the defendant’s Garda witnesses must be taken to have known that there was a standing objection to their evidence insofar as it touched on the accuracy of the notes which had been taken of the plaintiff’s interviews while in custody. No complaint can, accordingly, really be made on this ground about the failure to put certain matters in cross-examination to the Garda witnesses.
54. It is also clear from the judgment of Baker J. in Burke that unchallenged evidence is evidence. Nor, as Baker J. made clear, is there any rule of law which compels the trier of fact to accept certain evidence simply because it was not challenged by cross-examination, since, as she pithily put it:

“Unchallenged evidence is part of the evidence at trial and the fact that it is unchallenged gives it somewhat greater weight, but does not direct a particular result.”
55. There is, accordingly, no rule of law which compelled the jury to accept the Garda evidence simply because it was unchallenged. Nevertheless, as Baker J. pointed out in Burke, unchallenged evidence carries “somewhat greater weight” than evidence which has been tested through cross-examination. The real question, accordingly, is whether the preponderance of the unchallenged evidence was such that the jury could not reasonably have found otherwise than for the newspaper.
56. It is to that issue to which I will presently turn.
Freedom of expression and the protection of a right to a good name
57. This case presents once again the question of the appropriate balance to be struck between two fundamental constitutional values, namely, the right to a good name on the one hand (Article 40.3.2) and freedom of expression on the other (Article 40.6.1.i). In passing it may be observed that as this article was published in 1999 and thus ante-dated by several years the subsequent enactment of the European Convention of Human Rights Act 2003. The Supreme Court has held that the 2003 Act did not have retrospective effect (Dublin City Council v. Fennell [2005] IESC 33, [2005] 1 IR 604), so it is unnecessary, therefore, to consider the potential impact (if any) of Article 10 ECHR might otherwise have had for this case, bearing in mind that this provision does not, in any event, have direct effect in our law: see, e.g., McD v. L. [2009] IESC 81, [2010] 2 IR 199, 248, per Murray C.J. and MD v. Ireland [2012] IESC 10, [2012] 1 I.R. 697, 720, per Denham C.J.

58. So far as the question of free expression and the law of defamation are concerned, the most recent statement on this issue is that of Dunne J. in her judgment in Leech where she stated:

“It is the case that an award of damages must be fair to the plaintiff and to the defendant. That cannot be gainsaid. However, freedom of expression is not an entirely unrestricted freedom. In the context of defamation proceedings it must be balanced by the provisions of Article 40.3.2 of the Constitution which provides that the State ‘shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen’. The matter was expressed trenchantly by Hamilton C.J. in the de Rossa case when he stated ([1999] 4 IR 432,.456:

‘Neither the common law nor the Constitution nor the Convention give to any person the right to defame another person.’

Nevertheless it was accepted by Hamilton C.J. in that case.…that the existence of the right of freedom of expression and the obligation on the State by its laws to protect as best it may from unjust attack and in the case of injustice done to vindicate the good name of every citizen necessarily involves what Hamilton C.J. described as ‘a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen’s good name’. It is from that balancing exercise that he identified the concept of proportionality. Accordingly, I am satisfied that an award of damages cannot be so disproportionate as to have the effect of not just vindicating the good name of the citizen but of restricting the freedom of expression of a newspaper.” [Emphasis Added]
59. It is true, of course, that as Hamilton C.J. said in de Rossa and as Dunne J. said in Leech, neither the Constitution nor the European Convention of Human Rights gives any right to defame another under the guise of freedom of expression. The converse, however, is also true: if the published words are true in substance or in fact, then the author has a constitutional right by virtue of Article 40.6.1.i to publish these words as part of his or her “convictions or opinions.” This is especially true in the case of the media whose “rightful liberty of expression” is a key component of Article 40.6.1 itself.
60. It is clear, therefore, as confirmed by the language of Article 40.6.1 itself, the Constitution ascribes a high value to the discussion by the media of matters concerning serious criminality. The right to educate and to influence public opinion is at the heart of the rightful liberty of expression protected by Article 40.6.1. A publication of the kind at issue in the present proceedings provides the public with further details of the Garda operation whereby high value illegal drugs were seized. It is, accordingly, through information provided in this manner that public opinion regarding matters such as the effectiveness of policing policy, the enforcement of our drugs laws, the level of organised crime in society and other related matters is ultimately formed. As I have just pointed out, this right does not, of course, permit the media to publish defamatory material, since this would breach the proper balance which must be struck between the (potentially competing) constitutional value of freedom of expression (Article 40.6.1) on the one hand and the protection of a good name (Article 40.3.2) on the other,

61. All of this has a relevance, however, to the question of the perversity of a jury verdict and the capacity of this Court to review such a verdict. If it is clear that the article complained of is true in substance and fact, then the media’s constitutional right to publish this material cannot be compromised by a jury verdict to the effect that it is defamatory of the plaintiff, the traditional near sanctity of such verdicts at common law notwithstanding. Any other conclusion would mean that the appropriate balance envisaged by the Supreme Court in both de Rossa and Leech would not have been struck, since the substance of the media’s constitutional right to publish material which is in fact true would indeed have been compromised.

62. It is against this background that the evidence in this case falls to be considered. In this regard, the test remains that articulated by Walsh J. in Quigley v. Creation Ltd. [1971] I.R. 269,272 when he said:

“When a jury has found that there has been a libel, this Court would be more slow to set aside such a verdict than in other types of actions and it would only do so if it was of opinion that the conclusion reached by the jury was one to which reasonable men could not or ought not to have come.”
63. In addition, however, the test in Quigley must be understood in its proper context. It must be recalled that in that case the offending publication consisted of a purely fictitious interview with a noted actor who, it was claimed – again, falsely – had emigrated from Ireland in search of work. Although the publishers did not dispute the falsity of the publication, they contended that the contents were not defamatory of the plaintiff. The jury disagreed, finding that the article was indeed defamatory of the plaintiff. That finding was upheld by the Supreme Court.
64. The comments of Walsh J. accordingly touched on the role of the jury in determining whether the admittedly false words in question (“They’ve left this Isle”) were capable of defaming the plaintiff. It is in cases of that kind (i.e., determining whether the false words in question were, in fact, defamatory of the plaintiff and whether the plaintiff’s reputation was actually materially damaged by the publication) where particular weight – almost sanctity – must be given to the jury verdict, because the jurors are, in principle, the ultimate arbiters of community standards, values and tastes. This is what Henchy J. had in mind in Barrett v. Independent Newspapers Ltd. [1986] I.R. 13, 23 when he said:

“The law reports provide many examples of cases where the jury were held entitled to find that the words were not defamatory when the ruling of the judge on the point would have led to the opposite conclusion…The community verdict of a jury is not to be condemned as perverse merely because it does not accord with that of a judge. It is to be deemed to be perverse only when a jury of reasonable men, applying the law laid down for them by the judge and directing their minds to such facts as are reasonably open to them to find, could have reached the conclusion that the words were not defamatory.”
65. Even in that type of case, however, there are limits to the jury’s role. A good example is supplied by Berry v. Irish Times Ltd. [1973] I.R. 368 where the Supreme Court reversed a jury verdict in favour of the plaintiff (who was the then Secretary to the Department of Justice) where he had been described as a “20th century felon setter”. The Court reasoned that it could not be defamatory to say of a very senior public servant that he co-operated with the authorities in suppressing the activities of illegal organisations.
66. The precise issue in the present appeal is a different one, namely, whether the jury could reasonably have found on the evidence that the plaintiff was not a drug dealer or a loan shark. No one doubts at all that such words, if false, are defamatory. The real question is whether, on the evidence, the jury could properly have concluded that these statements concerning the plaintiff were false. While very considerable weight will obviously attach to a jury verdict of this kind (see, e.g., the comments to this effect of Denham J. in Cooper-Flynn v. RTÉ [2004] IESC 27, [2004] 2 IR 72), it is not on that account inviolable. It might also be pointed out that the assessment by the jury of the weight of the evidence in order to determine whether the offending publication is true or false does not involve it acting in its special role as arbiters of community values. As I have already indicated, the jury does not have the right to bring in a verdict to the effect that a particular statement is false when the opposite is, in fact, the case. Any other conclusion would mean that the newspaper would be deprived of its constitutional right to publish material concerning the plaintiff which is, in fact, true.

67. Perhaps the leading case in the common law world on perverse jury verdicts is Grobbelaar v. News Group Newspapers Ltd. [2002] 1 WLR 3024. In that case the plaintiff had been the principal goalkeeper of a leading English football club. An individual named Mr. Vincent approached “The Sun” newspaper and alleged that Mr. Grobbelaar corruptly had agreed to allow goals to be scored with a view to fixing the result of certain English Premier League football matches in aid of certain Asian betting syndicates. The Sun arranged to have the meetings between Mr. Vincent and Mr. Grobbelaar secretly recorded. The tapes of those meetings showed Mr. Grobbelaar accepting bribes to fix matches and talking about specific matches in the past in which he claimed to have either allowed goals to be scored or attempted to let in goals. Details of these tapes were published in The Sun who alleged that Mr. Grobbelaar was a corrupt footballer.

68. Mr. Grobbelaar subsequently sued for libel in the English High Court. The plaintiff led evidence from a number of football experts who testified that they could not detect any evidence from watching the video evidence that Mr. Grobbelaar had, in fact, attempted to fix these matches. The plaintiff contended that there was no evidence that he had actually allowed in goals at any of these matches. His explanation for the video evidence was that he was simply trying to trap Mr. Vincent as a fraudster. Not surprisingly, the newspaper called evidence based on the video evidence. The jury awarded the plaintiff the sum of £85,000.

69. The English Court of Appeal concluded that the jury verdict was perverse and allowed the appeal on this ground. While all three members of the Court (Simon Browne, Thorpe and Jonathan Parker L.JJ.) accepted that any appellate court should be reluctant to reverse a jury verdict on this ground, all three judges concluded that the evidence of fraud on the part of the plaintiff was so overwhelming that the jury verdict should not be allowed to stand.

70. The House of Lords in turn (by a majority) allowed the appeal from this decision. It was accepted that if the “sting” of the article was – as the newspaper contended – that Mr. Grobbelaar had taken corrupt payments, then the jury verdict must have been perverse. Delivering the lead judgment for the majority, Lord Bingham stated that the court must strive, where possible, to seek an alternative explanation for the verdict which would avoid the court setting it aside as perverse. The majority concluded that the jury must therefore have accepted the plaintiff’s argument, namely, that the sting of the article was to the effect that he had deliberately allowed in goals. The verdict on liability was accordingly restored, as there was no direct evidence that this had occurred. The House of Lords nonetheless reduced the damages to a nominal £1, saying that the evidence showed that the plaintiff had no reputation worth protecting, as he had accepted corrupt payments.

71. The decision in Grobbelaar provides another illustration of the reluctance of appellate courts to set aside jury verdicts on the grounds of perversity. It is nonetheless clear that both the Court of Appeal and the House of Lords would have been prepared to quash the verdict on this ground had the article simply been interpreted as being referable to the plaintiff receiving corrupt payments as the evidence that he had received such payments was irrefutable. It was only because the House of Lords considered that the jury could have considered that the sting of the article referred to evidence of actual corrupt play on the football field (of which there was no such evidence) that the original jury verdict was restored. It was for this reason alone that the House disagreed with the Court of Appeal. This was, of course, a purely pyrrhic victory for the plaintiff: as the evidence overwhelmingly pointed to the existence of a corrupt payment, he received simply nominal damages.

72. In the present case it is clear that the article in question is plainly and unambiguously referable to the plaintiff’s alleged drug dealing and loan sharking activities. In contrast to the position in Grobbelaar, in the present case the offending publication is capable of only one meaning, namely, that the plaintiff had engaged in drug-dealing and loan-sharking.

73. If the evidence clearly established that the plaintiff had engaged in such activities, then the jury verdict cannot be allowed stand because on the evidence it is one that no reasonable jury could have come to.
The drug dealing allegation
74. What is, perhaps, the most striking feature of the evidence adduced in relation to the drugs dealing allegation is that very little of the evidence adduced by the newspaper in support of the drug dealing allegation was actually challenged by the plaintiff. On his own admission the plaintiff accepted that he had travelled by airplane to the UK in the days prior to the drugs seizure with Mr. Carthy and, while there, he met with Mr. O’Grady, both of them who were subsequently convicted of possession of the drugs which were seized in Tubbercurry. While he travelled back by airplane, Mr. Carthy and Mr. O’Grady returned to Ireland by ferry.

75. The plaintiff admitted meeting Mr. McMorrow, a convicted drugs dealer, even though he stated that he was uncomfortable meeting him as he (i.e., Mr. McMorrow) was an individual who previously offered Mr. McDonagh’s daughter illegal amphetamines. Mr. McDonagh acknowledged in cross-examination that his own accountant had estimated that at one point he had IR£410,000 in a bank account even though this was at a time when he was receiving unemployment assistance and the circumstances in which he might have legitimately earned this money are far from clear.

76. So far as the Garda evidence was concerned, it was not challenged beyond largely formal and, to some extent, perfunctory denials from the plaintiff that he ever made such statements following his arrest and detention. It must be acknowledged, however, that none of the Gardaí ever suggested that Mr. McDonagh had made a direct admission of any involvement in drugs during the course of these interviews.

77. Reviewing the evidence as a whole, it is clear that there is (effectively) unchallenged evidence to the effect that Mr. McDonagh was aware that a drugs consignment was being planned; that the drugs had been purchased in Spain by Mr. McMorrow; that the operation had been financed by Mr. McDonagh’s brother, Michael, and that the drugs were then taken to the UK by him via Amsterdam. There is further evidence – again, largely unchallenged – to the effect that Mr. McDonagh knew that Mr. O’Grady was pressurised into carrying the drugs and that Mr. O’Grady later telephoned Mr. McDonagh – rather then any member of his family – following his arrest.

78. It should also be noted that one of the Garda witnesses – Detective Garda Oisín McKeown – was not cross-examined at all. Detective Garda Oisín McKeown gave evidence that, according to the calculation of the Criminal Assets Bureau, the plaintiff had a sum of IR£660,000 in his bank accounts at a time when he was claiming unemployment assistance. It is true that there is a difference of some IR£250,000 between the two figures, but even if one takes the lower figure of €410,000 it is still striking that a person with no visible legitimate sources of income (other than social welfare payments) could come to have such a sum in a bank account.

79. Taken as a whole, therefore, the evidence in support of the plea of justification was that:

(a) Mr. McDonagh had travelled to the UK a few days before the drugs consignment had been detected in the company of one of the two persons (Mr. Carthy) who were later convicted of importing these drugs.
(b) Upon arrival at Stansted he met Mr. McMorrow who has a conviction for drug dealing. He later travelled to the flat of a friend from Sligo, Graham O’Grady. Mr. O’Grady later travelled to Ireland by ferry and he was later arrested in connection with the drugs find. Mr. O’Grady was later convicted of the possession of these drugs.

(c) Mr. McDonagh knew that the drug operation was being financed by his brother, Michael, and that Mr. McMorrow had purchased the drugs in Spain and imported them into the UK via Amsterdam.

(d) Mr. McDonagh maintained that Mr. O’Grady had been pressurised into carrying the drugs by Mr. McMorrow.

(e) Mr. McDonagh could name the person who was supposed to distribute the drugs in Sligo on behalf of his brother.

(f) Mr. McDonagh had at least IR£410,000 in a bank account at a time when he was claiming social welfare payments and had no other visible means of support.

80. Points (a), (b) and (f) are undisputed. Points (c), (d) and (e) emerge from the Garda statements. As I have noted, while Mr. McDonagh denied making these statements, the Garda evidence otherwise went unchallenged.
81. The evidence to the contrary may be summarised as follows:

(a) Mr. McDonagh had never been charged or convicted in respect of this or any other drugs offence.
(b) Mr. McDonagh denied making the statements to the Gardaí as recorded in the interview notes.

(c) The actions of the plaintiff (e.g., travelling drunk by plane to the UK) were not the actions of a drugs mastermind.

(d) The large sums of money in the bank account could be explained by wholescale benefit fraud in the UK and by activities such as by being engaged in the waste removal business.

Was the jury conclusion regarding the drug dealing allegation perverse?
82. It is clear from the Supreme Court’s decision in Hay v. O’Grady [1992] 1 I.R. 210 that any appellate court will pay considerable deference to the views of the trial judge who had the benefit of seeing and hearing the witnesses. As McCarthy J. put it ([1992] 1 I.R. 210, 217):

“If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous and, apparently, weighty the testimony against them. The truth is not the monopoly of any majority.”
83. These principles have been routinely applied since they were first stated by the Supreme Court. In MC v. FC. [2013] IESC 36 the issue before the High Court was whether FC, a nephew of MC (who was herself a ward of court), had exercised undue influence over her. Feeney J. held that there had been such undue influence and that gifts totalling some €900,000 from the aunt to the nephew should be set aside. In his judgment MacMenamin J. first dealt with the nature of the appellate jurisdiction stating at para. 3:-
“This Court does not engage in a complete re-hearing of a case on appeal. It proceeds rather on the facts as found by the trial judge and his inferences based on these facts. As Hay v O’Grady makes clear, if the findings of fact made by a trial judge are supported by credible evidence, then this Court is bound by those findings, even if there is apparently weighty evidence to the contrary. This Court will only interfere with findings of the High Court where findings of primary fact are not supported by evidence, or cannot in all reason be supported by the evidence (see also Pernod Ricard and Comrie plc v Fyffes plc, unreported, Supreme Court, 11th November 1988).”
84. These principles apply a fortiori in the case of a jury verdict. In finding that the plaintiff was not a drug dealer the jury must have decided to reject the Garda evidence and prefer the evidence of the plaintiff to the effect that he never made such statements while in Garda custody. Can it nevertheless be said that there was credible evidence to support the plaintiff’s case?
85. The basic undisputed facts showed that the plaintiff travelled to the UK on the weekend before the drugs seizure. In the course of that trip one of the persons later found in possession of the consignment of drugs (Mr. Carthy) travelled with him and that, upon arrival in the UK, the plaintiff went to meet another person (Mr. O’Grady) whom he knew and who was later convicted of possession of the drugs that were so seized. During the course of that trip he also met Mr. McMorrow who, it is accepted, has a conviction for possession of drugs and who was waiting for them upon the arrival of the party at Stansted.

86. It is true that this evidence would not in itself prove that Mr. McDonagh dealt in drugs: it is perfectly possible – if, perhaps, somewhat unlikely – that an innocent person would travel to London in the company of a person later convicted of possession of drugs and while there would meet up another two individuals who were also subsequently convicted of possession of drugs a few days later.

87. Yet even looking at the evidence regarding the UK trip purely in isolation from any other evidence there are other features of it which tend to negative any innocent explanation which might otherwise have been advanced. When pressed in cross-examination why the plaintiff had sought to bring a much younger man – Mr. Carthy – on what was supposed to be a drinking trip to London, no satisfactory explanation was advanced. Nor was any explanation advanced as to why Mr. Carthy telephoned Mr. McDonagh – rather than any member of his family – following his arrest.

88. The evidence regarding the UK trip cannot, of course, be taken in isolation. There was clear evidence that the plaintiff had a very large sum of money in his account (at least IR£410,000). The fact that the plaintiff had such funds raises questions as to how he was in possession of this amount of money given that, social welfare payments aside, he had no other known sources of income.

89. To this must be added the statements which he made to the Gardai. If these statements were to be accepted as accurate, they would show that Mr. McDonagh was aware that there was to be a drugs shipment, that he had knowledge of the role of Mr. O’Grady in carrying the drugs, that Mr. McDonagh was the person who Mr. O’Grady telephoned while in custody and that he knew of the manner in which the drugs came to be purchased. All of these statements – if admitted to be correct – would lead inevitably to the inference that Mr. McDonagh was, indeed, a drug dealer.

90. It is true that the latter evidence was disputed by Mr. McDonagh, but there was effectively no cross-examination of the Garda witnesses in respect of this evidence, beyond a formal denial that such statements were made. No effort was made, for example, to show that these statements could not have been made or that they were not properly recorded by the Gardaí because the comments attributed to Mr. McDonagh were demonstrably untrue. In these circumstances, the evidence of the Garda witnesses must carry considerable weight even if, as Baker J. pointed out in Burke, this failure to cross-examine did not in itself compel the jury to arrive at a particular result.

91. While it is true that the jury had the benefit of seeing and viewing Mr. McDonagh give evidence – which this Court, of course, did not – there are, nevertheless, factors which, viewed objectively, must be taken to have weakened considerably his credibility as a witness. He had, after all, claimed damages at the outset of the trial on a basis which he must have known to have been false, namely, that he was not a criminal or a tax cheat. By the conclusion of the evidence it was, indeed, accepted that he was a criminal and a tax cheat. He also claimed that CAB had never accused him of drug dealing and this was likewise demonstrated to have been false.
Conclusions regarding the drug-dealing allegation
92. Reviewing the evidence as a whole, I find myself coerced to the conclusion that it shows overwhelmingly that the plaintiff was, indeed, a drug-dealer and that the jury’s conclusion to the contrary was perverse and cannot be allowed to stand. The unchallenged Garda evidence pointed unambiguously to the plaintiff’s deep involvement with the drugs shipment, a conclusion underscored by all the known facts regarding the UK trip which showed the plaintiff travelling with and associating with the persons convicted of possession of the drugs and other persons who were either drug dealers or reputed to be drug dealers. To this may be added the unchallenged evidence of the very large sums lodged in the plaintiff’s bank account for which there was no satisfactory explanation.

93. It is true that the plaintiff flatly denied any involvement in the drug dealing, but again viewed objectively, he cannot be regarded as a witness whose credibility was other than compromised.

94. The jury’s finding of fact that the plaintiff was not a drug dealer was accordingly one which, in the words of MacMenamin J. in MC v. FC. “cannot in all reason be supported by the evidence.” The evidence quite clearly showed the contrary, namely, that the plaintiff was indeed a drug dealer. Although the newspaper clearly carried the onus of proving this fact on the balance of probabilities – and it would have been guilty of serious defamation if it could not have done so – it has nonetheless plainly discharged this onus. In these circumstances the defendant had a constitutional right by virtue of Article 40.6.1.i to publish this information concerning the plaintiff.

95. It follows, therefore, that not only must the newspaper’s appeal against the jury award in respect of this issue be allowed, but that the plaintiff’s claim that he was defamed by reason of the drug allegation must stand dismissed.
The moneylending allegation
96. According to the evidence of Garda Doherty, the plaintiff admitted in his interview of 8th September 1999 while in Garda custody that he was a money lender and that he charged 100% interest on loans. If that evidence were accepted as true, the jury could not reasonably have concluded that the plaintiff was other than a loan shark.

97. No other evidence was called on this issue by the newspaper. The plaintiff denied making the statement to Garda Doherty while in custody. There was, however, no cross-examination by the plaintiff of Garda Doherty to the effect that he could not have made such a statement to him because it was untrue.

98. Given that the evidence adduced by both sides was limited to a claim that the plaintiff made such an admission on the one hand with a denial by the defendant of the making of such a statement (along with a denial by a character witness, Mr. Murray, that he had never heard of Mr. McDonagh being involved in loan sharking), I would hesitate before concluding that the verdict on this issue was perverse. The limited nature of the evidence so adduced was in contrast to the much more detailed evidence which was given in respect of the drug dealing allegation.

99. It is true that there was, effectively, no cross-examination of Garda Doherty on this issue, but as Baker J. noted in Burke, this does not mean that the jury were compelled to accept that evidence. I am nevertheless persuaded that the verdict cannot stand so far as this issue is concerned. In my view, in view of the failure of the plaintiff effectively to challenge the evidence of Garda Doherty, the jury ought to have been instructed that this evidence necessarily carried considerable weight. It might have been nonetheless open to a jury not to accept that evidence, but it would have to have had a rational basis for doing so. The mere denial of the making of the statement by the plaintiff might possibly have sufficed for this purpose, but here again the jury would have to have been instructed that, viewed objectively, the plaintiff’s credibility had been heavily compromised. As no such instructions were given to the jury in these precise terms, I consider that the verdict on this issue cannot be allowed to stand and there must be a re-trial on this issue.
The jury’s failure to answer the second question
100. In view of the conclusion I have just reached regarding the loan shark allegation and given that there will be a re-trial on this issue alone, it is appropriate to consider the issue of the jury’s failure to answer the second question. The second issue reflected the wording of s. 22 of the Defamation Act 1961 (“the 1961 Act”) (a slightly re-cast version of this provision is now to be found in s. 16(2) of the Defamation Act 2009). Section 22 of the 1961 Act provided:

“In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved, if the words not proved to be true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining charges.”
101. It will be seen that s. 22 of the 1961 Act is essentially a liability defence (“…a defence of justification shall not fail by reason only that the truth of every charge is not proved…”), although it may be assumed that the fact that some of the elements of the offending publication are shown to be true will normally affect the damages award as well.
102. In these circumstances the jury was obliged by law to consider this question before going on to consider the question of damages. Question 2 on the issue paper was couched in mandatory terms and the jury were not free to ignore this question. It is true that, as Mr. Doyle S.C. urged in the course of the appeal, the third question on the issue paper is premised on the assumption that the jury will have answered the second question in the affirmative (“If the answer to question 2 is ‘yes’, assess damages…”). It is quite possible that the jury well understood this and that by answering question 3 and assessing damages, they were effectively stating that the plaintiff’s reputation was nonetheless affected by the publication of the drug dealing and loan sharking allegations even if it was also shown that he was a criminal and a tax cheat.

103. This may well represent what the jury were thinking when they proceeded to answer question 3 without having first answered question 2. The fact remains, however, that it is quite impossible to know how or why the jury failed in terms to answer an essential question which they were required by law to answer. Quite independently of any other consideration this in itself would have been enough to justify the setting aside of the jury verdict, as it cannot be said that the jury returned a verdict in accordance with law or that they gave any consideration to the implications of a defence which the law afforded to the newspaper.
Conclusions
104. Summing up, therefore, my principal conclusions are as follows:

105. First, it is clear that the jury verdict so far as it concerned the drug dealing allegation cannot be allowed to stand. Viewed objectively, the evidence overwhelmingly pointed to the conclusion that the plaintiff was, indeed, a drug dealer associated with the drugs seizure at Tubbercurry. If the allegation was correct, the newspaper had a constitutional right to publish this information by virtue of Article 40.6.1.i and that right cannot be compromised by a jury verdict which was, in essence, perverse.

106. Second, the evidence adduced in relation to the loan sharking allegation was much more limited. It might have been open to a properly instructed jury to find for the plaintiff on that allegation. It would, however, be necessary for the jury to have been told in express terms that the failure by the plaintiff effectively to cross-examine Garda Doherty regarding the loan sharking admissions meant that such evidence carried considerable weight. It is true that the jury might elect to believe that the plaintiff’s denial that he made such a statement to Garda Doherty, but it would also have been necessary for the jury to have been warned in appropriate terms that the plaintiff’s credibility had, objectively speaking, been compromised. As the jury was not so instructed, I do not think that the verdict on the loan sharking allegation can be allowed to stand.

107. In these circumstances I believe that the Court should allow the appeal of the newspaper against the entirety of the verdict. As the drug dealing allegation has been found to be true, I would also dismiss that part of the plaintiff’s claim. It follows that I would direct a new trial on the loan sharking allegation only.

108. It follows that it is unnecessary for me to express any view on the remaining issue, namely, the quantum of damages.

 

 

Alan Shatter v Sean Guerin

2015 321 (WLIE 2)

Court of Appeal

10 November 2016

unreported
[2016] IECA 318/2
Ms. Justice Irvine

November 10, 2016

JUDGMENT
1. I have had the opportunity of reading in draft form the judgments which have been prepared by the President and Finlay Geoghegan J. in these proceedings and am in full agreement with their conclusions.

2. I nonetheless take this opportunity to fully endorse the views expressed by Finlay Geoghegan J. at para. 31 of her judgment where she refers to the need for judicial restraint in any expansion of the types of inquiries or other processes that may be amenable to challenge by way of judicial review. In particular, I favour her conclusion that the respondent’s Report in the present case is only amenable to judicial review because both the process undertaken by him and the outcome of his inquiry were concerned with and had the ability to directly affect Mr. Shatter’s constitutionally-protected right to his good name and reputation.

3. It is clear beyond doubt that the terms of reference directly concerned matters relating to Mr. Shatter’s reputation and good name, namely, the adequacy of any investigation carried out by him as Minister and whether there was reason to be concerned as to whether he, enjoying as he did a number of relevant statutory powers that he had been asked to deploy, had taken the appropriate steps to investigate and address certain specified complaints. Likewise, the outcome of the inquiry, leaving aside altogether the consequences that the Report had for Mr. Shatter as these may well have been influenced by political considerations, was destined to impact on his constitutionally protected right to his good name.

4. Accordingly, in the relatively unique circumstances which arise in the present case, like my colleagues, I am satisfied that the Report prepared by the respondent is amenable to judicial review. That being so, for the reasons already fully outlined by my colleagues, I too am satisfied that the appeal must be allowed.

5. Concerning the relief to be afforded to Mr. Shatter, I agree with the President and Finlay Geoghegan J. that he is clearly entitled to a declaration that the conclusions and opinions in the Report which were critical of him when Minister for Justice and Equality were reached in breach of his right to fair procedures. As to his entitlement to any further relief, in the complex circumstances advised by Finlay Geoghegan J. in the concluding paragraphs of her judgment, any such decision should be postponed to afford the parties the opportunity to make such submissions to the Court as they deem appropriate.

Alan Shatter v Sean Guerin
2015 321 (WLIE 2)

Court of Appeal

10 November 2016

unreported
[2016] IECA 318/2
Ms. Justice Irvine

November 10, 2016

JUDGMENT
1. I have had the opportunity of reading in draft form the judgments which have been prepared by the President and Finlay Geoghegan J. in these proceedings and am in full agreement with their conclusions.

2. I nonetheless take this opportunity to fully endorse the views expressed by Finlay Geoghegan J. at para. 31 of her judgment where she refers to the need for judicial restraint in any expansion of the types of inquiries or other processes that may be amenable to challenge by way of judicial review. In particular, I favour her conclusion that the respondent’s Report in the present case is only amenable to judicial review because both the process undertaken by him and the outcome of his inquiry were concerned with and had the ability to directly affect Mr. Shatter’s constitutionally-protected right to his good name and reputation.

3. It is clear beyond doubt that the terms of reference directly concerned matters relating to Mr. Shatter’s reputation and good name, namely, the adequacy of any investigation carried out by him as Minister and whether there was reason to be concerned as to whether he, enjoying as he did a number of relevant statutory powers that he had been asked to deploy, had taken the appropriate steps to investigate and address certain specified complaints. Likewise, the outcome of the inquiry, leaving aside altogether the consequences that the Report had for Mr. Shatter as these may well have been influenced by political considerations, was destined to impact on his constitutionally protected right to his good name.

4. Accordingly, in the relatively unique circumstances which arise in the present case, like my colleagues, I am satisfied that the Report prepared by the respondent is amenable to judicial review. That being so, for the reasons already fully outlined by my colleagues, I too am satisfied that the appeal must be allowed.

5. Concerning the relief to be afforded to Mr. Shatter, I agree with the President and Finlay Geoghegan J. that he is clearly entitled to a declaration that the conclusions and opinions in the Report which were critical of him when Minister for Justice and Equality were reached in breach of his right to fair procedures. As to his entitlement to any further relief, in the complex circumstances advised by Finlay Geoghegan J. in the concluding paragraphs of her judgment, any such decision should be postponed to afford the parties the opportunity to make such submissions to the Court as they deem appropriate.