Important Judgments of Unconstitutional High Felony Treason Irish Referendum in May and November of 2012 All Invalid

Important Judgments - Supreme Court
Article 48, 40, 50 and a couple of other articles of Our

Constitution were illegally all deleted in Ireland without the
Irish peoples say so
members of the Court, judgments, the Irish legal system and ...
a list of important judgments of the Supreme Court effect of law
found unconstitutional
power of Oireachtas to amend 1922 Constitution
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THE ILLEGAL HIGH FELONY TREASON REFERENDUMS IN
IRELAND
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The Governor of Arbour Hill Prison validity of actions taken
under law subsequently found unconstitutional
A. Applicant v. The Governor of Arbour Hill Prison
Respondent
[2006] IEHC 169, [2006 No. 694 SS]; [2006] IESC 45
[S.C. No. 205 of2006]
High Court
30th May 2006
Supreme Court
10th July 2006
Constitution - Statute - Validity - Retroactivity - Effect
ofdeclaration of inconsistency - Pre-1937 statute - Criminal
offence -Unlawful carnal knowledge of minor - Acquiescence
- Locus standi - Justertii - Whether provision continuing in
force on enactment of Constitution - Whether declaration of
inconsistency affected decisionsalready finally determined Whether declaration of inconsistencyoperated with
retroactive effect - Whether applicant by reason of
hisconduct was debarred from benefit of declaration Whether declarationof inconsistency resulted in unlawful
detention of applicant - Whetherlack of locus standi resulted
in failure to obtain benefit ofdeclaration of inconsistency -
Constitution of Ireland 1937, Articles15.4, 40 and 50 Criminal Law (Amendment) Act 1935 (No. 6).
The applicant was convicted in the Circuit Criminal Court on
the 15th June, 2004, on a plea of guilty of unlawful carnal
knowledge contrary to s. 1(1) of the Criminal Law
Amendment Act 1935 and was subsequently sentenced to
three years imprisonment. It is common case that the
indictment on foot of which the applicant was charged was a
one count indictment. The applicant sought release from
custody pursuant to Article 40.4.1 of the Constitution. The
applicant contended that his detention was unlawful on the
basis that on the 23rd May, 2006, the Supreme Court
declared (see C.C. v. Ireland [2006] IESC 33, [2006] 4 I.R. 1
) s. 1(1) of the Criminal Law (Amendment) Act 1935 to be
inconsistent with the Constitution. It was this section that
created the offence of which the applicant was convicted.
Held by the High Court (Laffoy J.), in granting the application
and ordering the applicant's release from detention, 1, that
the Supreme Court having struck down the pre-1937
statutory enactment in its entirety, it ceased to have
legislative existence in 1937 and therefore, the offence with
which the applicant was charged did not exist in law when it
was purported to charge him with it, nor at the respective
dates of his purported conviction and sentencing.
Murphy v. Attorney General [1982] I.R. 241 applied.
2. That a declaration under Article 50.1 of the Constitution
amounted to a judicial death certificate with the date of
death stated as the date when the Constitution came into
operation.
Murphy v. Attorney General [1982] I.R. 241 followed.
3. That the conviction related to something which was not
an offence in criminal law and was therefore a nullity. The
sentence and the warrant were bad on its face. That there
was such a default of fundamental requirements that the
detention might be said to be wanting in due process of law
and accordingly, was not in accordance with law.
The State (McDonagh) v. Frawley [1978] I.R. 131
considered.
[2006]4 I.R.
A. v. Governor of Arbour Hill Prison
89H.C.
4. That, in considering the consequences of the declaration
of inconsistency with the Constitution of the statutory
enactment, the only question that had to be decided was
whether the applicant was detained in accordance with the
law. This would usually be determined with regard to the
circumstances of the particular case. The only consequence
of the declaration which should concern the court on this
application was whether it rendered the detention of the
applicant unlawful as of the date of the habeas corpus
application.
The State (Royle) v. Kelly [1974] I.R. 259 considered.
5. That, even in the case of a person convicted and
sentenced by a court of competent jurisdiction, the process
could have been so flawed as to render the conviction a
nullity and the detention unlawful. The defect in the
applicant's case was that the purported conviction related to
something which was not an offence in criminal law.
The State (Royle) v. Kelly [1974] I.R. 259 considered.
Obiter dictum: That there would be no sense whatsoever in
the applicant pursuing a remedy in judicial review
proceedings to quash a conviction, a sentence and a warrant
which were patently bad. The consequences of a declaration
under Article 50.1 of the Constitution might be determined
by a variety of factors such as the conduct of the person
relying on the declaration or the fact that an irreversible
course of events had taken place, so that what was done on
foot of the condemned statute might not be relied on as a
ground for nullification or other legal redress.
The respondent appealed to the Supreme Court.
Held by the Supreme Court (Murray C.J., Denham,
McGuinness, Hardiman and Geoghegan JJ.), in granting the
appeal and ordering the re-arrest of the applicant, 1, that
there was neither an express nor an implied principle of
retrospective application of unconstitutionality in the
Constitution. It was not a principle of constitutional law that
cases which have been finally decided and determined on

foot of a statute which was later found to be unconstitutional
must invariably be set aside as null and of no affect. Once
finality had been reached and the parties had in each case
exhausted their actual or potential remedies, the judicial
decision must be deemed valid and lawful.
O'Donovan v. Attorney General [1961] I.R. 114 ; McMahon v.
Attorney General [1972] I.R. 69 ; de Burca v. Attorney
General [1976] I.R. 38 ; The State (Byrne) v. Frawley [1978]
I.R. 326 ; Murphy v. The Attorney General [1982] I.R. 241
and McDonnell v. Ireland [1998] 1 I.R. 134 considered.
2. That the approach to be taken to the application of
retrospectivity was to assess whether the compulsion of
public order and the common good would allow the
application to succeed.
Per Murray C.J., McGuinness, Hardiman and Geoghegan JJ.:
That laws should be observed until they were struck down as
unconstitutional. The consequences of striking down
legislation could only crystallise in respect of the immediate
litigation which gave rise to the declaration of invalidity. The
position was no different than the common law practice
which had never been constitutionally challenged, that a
decision which effectively changed the law did not confer
any right to reopen previous court decisions. It would be
wholly against good order if convictions and sentences which
were deemed to be lawful at the time they were decided had
to be reopened. Concluded proceedings, whether they are
criminal or civil, based on an enactment subsequently found
to be unconstitutional could not normally be reopened and
there might be exceptions to this but in general it could not
be done. If the law were otherwise there would be grave
danger that judges considering the constitutionality or
otherwise of enactments would be consciously or
unconsciously affected by the consequences.
[2006]4 I.R.
90H.C.
The State (Byrne) v. Frawley [1978] I.R. 326 ; Murphy v. The

Attorney General [1982] I.R. 241 and McDonnell v. Ireland
and Others [1998] 1 I.R. 134 followed; Cox v. Ireland [1992]
2 I.R. 503 considered.
3. That, when an Act was declared unconstitutional, a
distinction must be made between the making of such a
declaration and its retrospective effects on cases which had
been already determined by the courts. This distinction had
even greater force where it concerned cases previously
finally determined before the courts. This was necessary in
the interests of legal certainty, the avoidance of injustice and
the overriding interests of the common good in an ordered
society.
Murphy v. The Attorney General [1982] I.R. 241 and Chicot
County Drainage District v. Baxter State Bank (1939) 308
U.S. 371 considered.
Per Murray C.J., McGuinness, Geoghegan and Denham JJ.:
That, as a consequence, it was a matter of construing the
Constitution to determine how such a decision should be
applied in a manner consistent with the principles of the
Constitution. That it was a well established precept that
when interpreting any provision of the Constitution that
provision was interpreted in the context of the Constitution
as a whole.
4. That, it did not necessarily follow that court orders lacked
binding force because they were made in proceedings based
on an unconstitutional statute.
de Burca v. Attorney General [1976] I.R. 38 , The State
(Byrne) v. Frawley [1978] I.R. 326 and Murphy v. The
Attorney General [1982] I.R. 241 considered.
Per Murray C.J., Geoghegan, Hardiman and McGuinness JJ.:
This approach was in accordance with the common law
principles of finality in legal proceedings and the general
principle that in a criminal prosecution where the State relied
in good faith on a statute in force at the time and the
accused did not seek to impugn the bringing or conduct of
the prosecution, on any grounds that might in law have been
open to him or her, including the constitutionality of the
statute, before the case reached finality, on appeal or
otherwise, then the final decision in the case must be

deemed to be and to remain lawful notwithstanding any
subsequent ruling that the statute, or a provision of it, was
unconstitutional. Once finality was reached the general
principle should apply but there might be wholly exceptional
reasons related to some fundamental unfairness amounting
to a denial of justice, that verdicts in particular cases be not
allowed to stand.
Obiter dictum: The trial judge was correct in stating that it
had never been the law that in a clear case where the
detention was unlawful, the courts have insisted on a judicial
review application first.
Per Geoghegan J.: That, in dealing with the consequences of
declarations of unconstitutionality of statutory provisions,
there could not be absolute rules and the possibility that
there might be circumstances where it would be manifestly
unjust or oppressive to uphold a completed proceeding
having regard to a declaration of unconstitutionality could
not be ruled out. In that situation, if it ever arose, an Article
40 order might be appropriate. Such a circumstance would
be exceptional.
Per Hardiman J.: That a relief, including relief under Article
40.4.2 of the Constitution, in relation to acts done under or in
consequence of an unconstitutional statute, might be
resisted on grounds arising from the concrete facts of a
specific case. The present case could not possibly qualify as
an exception and the requirements of justice strongly
demanded that force and effect be given to the sentence
justly imposed on the applicant and that the compulsion of
public order and the common good require no less.
5. That the declaration that a law was unconstitutional
applied in the litigation to the parties in which the issue
arose, and prospectively. There was no general retrospective
application of such an order but the possibility that an
exception might arise where
[2006]4 I.R.
91H.C.
in wholly exceptional circumstances, the interests of justice

so required should not be excluded.
Murphy v. The Attorney General [1982] I.R. 241 considered
6. That there were circumstances in which things that have
been done under and by virtue of a statute which had been
declared inconsistent or invalid must nevertheless continue
to be given force and effect and could not be described as
nullities as far as their continuing force and effect were
concerned.
7. That the applicant by his conduct led the courts, the
prosecution and the prison authorities to proceed on the
footing that he accepted the validity of the charge against
him. The applicant had not been able to allege any departure
from natural justice in the way he had been treated but
acknowledged his guilt and that his claimed release would
be a windfall.
Obiter dicta: These considerations might themselves be
outweighed if there was any plausible suggestion that the
applicant here had suffered any actual injustice or
oppression.
8. That the application before the court was not based on
the assertion of a jus tertii as it was not a general assertion
of unconstitutionality without regard to the applicant's
circumstances or a claim based on the infringement of rights
of another person or persons.
Per Murray C.J.: The applicant claimed to be directly affected
because he was convicted pursuant to the section of the Act
of 1935 which was subsequently found to be
unconstitutional. The application was in the nature of a
collateral attack on the status of his conviction for the
offence in accordance with law, at least as it then stood.
That was to say the applicant could not, and did not,
complain of any inherent constitutional injustice or
unfairness in the process by which he was convicted.
Obiter dicta: That the courts could not and do not choose the
legal issues, of interpretation or otherwise, which they have
to decide. They could only decide such issues when they
were raised in the context of the judicial proceedings
brought before them. That to qualify the retrospective effect
of a declaration of unconstitutionality it must be done in a

manner and to an extent which was consistent with
constitutional justice including the fundamental rights of
individuals.
Obiter dicta: That the issue of additional remedies in relation
to the application of a declaration of unconstitutionality, for
example the suspension of an application of a declaration of
invalidity, could be raised. The suggestion that the time at
which the quality of inconsistency or invalidity attached to a
struck down statute should be revisited and the suggestion
that the court had a jurisdiction to delay the effect of a
declaration of inconsistency or invalidity would be more
suitable to be entertained at or immediately after the
hearing of a plenary action in which a declaration of
invalidity or inconsistency was claimed.
Cases mentioned in this report:Amministrazione delle Finanze dello Stato v. Denkavit
Italiano S.R.L. (Case 61/79) [1980] E.C.R. 1205.
Banca Popolare di Cremona v. Agenzia Entrate Ufficio
Cremona (Case C-475/03) (Unreported, Court of Justice, StixHackl A.G., 14th March, 2006).
Blake v. The Attorney General [1982] I.R. 117; [1981]
I.L.R.M. 34.
Buckley & Others (Sinn Fin) v. Attorney General [1950]
I.R. 67.
[2006]4 I.R.
92H.C.
Byrne v. Ireland [1972] I.R. 241.
C.C. v. Ireland [2006] IESC 33, [2006] 4 I.R. 1; [2006] 2
I.L.R.M. 161.
Cahill v. Sutton [1980] I.R. 269.
Chicago, I. & L. Rly. Co. v. Hackett (1931) 228 U.S. 559.
Chicot County Drainage District v. Baxter State Bank (1939)
308 U.S. 371.
Commission v. Parliament Case C-178/03 [2006] ECR1-107.
Corbiere v. Canada (Minister of Indian and Northern Affairs)
[1999] 2 S.C.R. 203.

Cox v. Ireland [1992] 2 I.R. 503.
Crilly v. T. & J. Farrington Ltd. [2001] 3 I.R. 251; [2002] 1
I.L.R.M. 161.
de Burca v. Attorney General [1976] I.R. 38; 111 I.L.T.R. 37.
Defrenne v. Sabena [1976] E.C.R. 455; [1976] 2 C.M.L.R. 98
Dixon v. British Columbia (1989) 59 D.L.R. 247.
Donoghue v. Stevenson [1932] A.C. 562.
In re Greendale Developments Ltd. (No. 3) [2000] 2 I.R. 514;
[2001] 1 I.L.R.M. 161.
Griffith v. Kentucky (1986) 479 U.S. 314.
King v. The Attorney General [1981] I.R. 233.
Linkletter v. Walker (1964) 381 U.S. 618.
McDonagh v. The Governor of Cloverhill Prison [2005] IESC
4, [2005] 1 I.R. 394; [2005] 1 I.L.R.M. 340.
McDonnell v. Ireland [1998] 1 I.R. 134; [1996] 2 I.L.R.M. 222.
McGee v. Attorney General [1974] I.R. 284; 109 I.L.T.R. 29.
McMahon v. Attorney General [1972] I.R. 69; 106 I.L.T.R. 89.
McSorley v. Governor of Mountjoy Prison [1997] 2 I.R. 258.
Maguire v. Ardagh [2002] 1 I.R. 385.
Marbury v. Madison (1803) 5 U.S. 137.
Marckx v. Belgium [1979] 2 E.H.R.R. 330.
Murphy v. The Attorney General [1982] I.R. 241.
Norton v. Shelby County (1886) 118 U.S. 425.
O'Donovan v. The Attorney General [1961] I.R. 114; 96
I.L.T.R. 121.
Orissa Cement Ltd. v. State of Orissa [1991] Supp. (1.)
S.C.C. 430.
The People (Director of Public Prosecutions) v. Finn [2001] 2
I.R. 25; [2001] 2 I.L.R.M. 211.
Pigs Marketing Board v. Donnelly (Dublin) Ltd. [1939] I.R.
413.
R. v. Bain [1992] 1 S.C.R. 91.
R. v. Hess [1990] 2 S.C.R. 906.
R. v. Sarson [1996] 2 S.C.R. 223.
R. v. Wigman [1987] 1 S.C.R. 246.
[2006]4 I.R.
93H.C.
Schachter v. Canada [1992] 2 S.C.R. 679.
Sinnott v. Minister for Education [2001] 2 I.R. 598.
Stovall v. Denno (1967) 338 U.S. 293.
Taylor v. Louisiana (1974) 419 U.S. 522.
Teague v. Lane (1988) 489 U.S. 288.
Tehan v. Shott (1966) 382 U.S. 406.
The State (Aherne) v. Cotter [1982] I.R. 188; [1981] I.L.R.M.
169; [1983] I.L.R.M. 17.
The State (Byrne) v. Frawley [1978] I.R. 326.
The State (Coveney) v. Special Criminal Court [1982] 1
I.L.R.M. 284.
The State (Healy) v. Donoghue [1976] I.R. 325; 110 I.L.T.R.
9; 112 I.L.T.R. 37.
The State (McDonagh) v. Frawley [1978] I.R. 131.
The State (O'Callaghan) v. O'hUadhaigh [1977] I.R. 42.
The State (Royle) v. Kelly [1974] I.R. 259.
The State (P. Woods) v. Attorney General [1969] I.R. 385.
Inquiry under Article 40 of the Constitution
The facts have been summarised in the headnote and are
more fully set out in the judgments of Laffoy J. and of Murray
C.J., McGuinness, Denham, Geoghegan and Hardiman JJ.,
infra.
On the 26th May, 2006, the applicant applied for an order
pursuant to Article 40.4.1 of the Constitution directing his
release from custody on the grounds that his detention in
accordance with the term of imprisonment imposed upon
him following his conviction was unlawful since s. 1(1) of the
Criminal Law Amendment Act 1935 which created the
offence that he was convicted of, had been declared
inconsistent with the Constitution pursuant to Article 50.
The application was heard by the High Court (Laffoy J.) on
the 29th May, 2006.
Conor Devally S.C. (with himJustin McQuade) for the
applicant.
Gerard Hogan S.C. (with himPaul Anthony McDermott ) for
the respondent.
Cur. adv. vult.
[2006]4 I.R.
A. v. Governor of Arbour Hill PrisonLaffoy J.
94H.C.
Laffoy J.
30th May, 2006
Article 40.4.1 of the Constitution provides that no
citizen shall be deprived of his or her personal liberty save in
accordance with law. Article 40.4.2 mandates a judge of the
High Court to whom a complaint is made that a person is
being unlawfully detained to forthwith inquire into the
complaint. The judge is empowered to order the production
of the person detained before the court and that the person
in whose custody he is detained certify in writing the
grounds of detention. On production of the person, the court
is mandated to:" after giving the person in whose custody he is detained
an opportunity of justifying the detention, order the release
of such person from such detention unless satisfied that he
is being detained in accordance with the law."
On the 26th May, 2006, on the application of the
applicant, I ordered that in accordance with Article 40.4.2 of
the Constitution the applicant be produced before the court
on the 29th May, 2006 and that the respondent certify in
writing the grounds of his detention. The respondent
complied with that order and certified that he held the
applicant in custody in Arbour Hill prison pursuant to a
warrant dated the 24th November, 2004, a copy of which he
exhibited.
The warrant discloses that the applicant was convicted
in the Circuit Criminal Court on the 15th June, 2004, on a
plea of guilty of unlawful carnal knowledge contrary to s.
1(1) of the Criminal Law Amendment Act 1935 and that,
subsequently, on the 24th November, 2004, he was
sentenced to be imprisoned for a period of three years, the
sentence to date from the 8th November, 2004. It is
common case that the indictment on foot of which the
applicant was charged was a one count indictment.

The basis on which the applicant contends that his
detention is unlawful is that on the 23rd May, 2006, the
Supreme Court declared s. 1(1) of the Criminal Law
Amendment Act 1935 to be inconsistent with the provisions
of the Constitution in C.C. v. Ireland [2006] 4 I.R. 1. It is of
significance that in that case the Supreme Court declared s.
1(1) of the Criminal Law Amendment Act 1935 to be
inconsistent with the Constitution in toto, rejecting an
argument made on behalf of the state parties that a
declaration of inconsistency should be couched in terms that
s. 1(1) "cease to have force and effect to the extent that it
precluded an accused from advancing a defence of
reasonable mistake" (per Hardiman J. at p. 86).
What I have to decide on this application, having heard
submissions on behalf of the applicant and the respondent,
is whether I am satisfied that the applicant is being detained
in Arbour Hill prison in accordance with the law, having
regard to the circumstances which now prevail, that s. 1(1)
of the Criminal Law Amendment Act 1935 has been declared
by the Supreme
[2006]4 I.R.
95H.C.
Court to be inconsistent with the Constitution. If I am not so
satisfied I must order the release of the applicant.
The first question I have to consider, in determining
whether the applicant is being detained in accordance with
the law, is what is the effect of the inconsistency of s. 1(1) of
the Criminal Law Amendment Act 1935 with the Constitution.
It is well settled that in the case of a post-Constitution
statute a declaration of invalidity means that the statute was
invalid ab initio. Apparently, there is no decided case on the
effect of a declaration that a pre-Constitution statute is
inconsistent with the Constitution. That issue was considered
by the Supreme Court in Murphy v. The Attorney General
[1982] I.R. 241 by Henchy J., but his comments were clearly
obiter, because at issue there was the constitutionality of a
post-1937 statute, the Income Tax Act 1967. Nonetheless, I

respectfully adopt the following passage from the judgment
of Henchy J. at p. 306 as a correct statement of the law:"If it is a pre-Constitution enactment, Article 50.1 provides in
effect that the statutory provision in question shall, subject
to the Constitution and to the extent that it is not
inconsistent therewith, continue in full force and effect until
it is repealed or amended by enactment of the Oireachtas,
i.e., the Parliament established by the Constitution. The issue
to be determined in such a case is whether, when the
impugned provision is set beside the Constitution, or some
particular part of it, there is disclosed an inconsistency. If the
impugned provision is shown to suffer from such
inconsistency, it may still be deemed to have survived in
part the coming into operation of the Constitution, provided
the part found not inconsistent can be said to have had, at
the time of that event, a separate and self-contained
existence as a legislative enactment. Otherwise, the
impugned provision in its entirety will be declared to have
ceased to have a legislative existence upon the coming into
operation of the Constitution in 1937.
Such a declaration under Article 50.1 amounts to a judicial
death certificate, with the date of death stated as the date
when the Constitution came into operation."
Applying the foregoing principles, the Supreme Court
having struck down s. 1(1) of the Criminal Law Amendment
Act 1935 in its entirety, that section ceased to have
legislative existence in 1937. Thereafter, there was no
statutory offence of unlawful carnal knowledge of a girl
under the age of fifteen years to which there attached the
punishment prescribed by the Act of 1935. To put it another
way, the offence with which the applicant was charged did
not exist in law when it was purported to charge him with it,
nor at the respective dates of his purported conviction and
sentencing.
[2006]4 I.R.
96H.C.
The next question I have to consider is what are the

consequences of the demise of s. 1(1) of the Criminal Law
Amendment Act 1935 long before the applicant was charged
with the offence of which he was convicted and in respect of
which he is now detained. Within the narrow confines of an
inquiry under Article 40, as a matter of law, I have only to
consider whether one specific consequence now prevails,
whether as of today his detention is not "in accordance with
the law". The test as to whether a detention is "in
accordance with the law" was explained in the following
passage from the judgment of Henchy J. in The State (Royle)
v. Kelly [1974] I.R. 259 at p. 269:"The mandatory provision in Article 40.4.2 of the
Constitution that the High Court must release a person
complaining of unlawful detention unless satisfied that he is
being detained 'in accordance with the law' is but a version
of the rule of habeas corpus which is to be found in many
Constitutions. The expression 'in accordance with the law' in
this context has an ancestry in the common law going back
through the Petition of Right to Magna Carta. The purpose of
the test is to ensure that the detainee must be released if but only if - the detention is wanting in the fundamental
legal attributes which under the Constitution should attach
to the detention.
The expression is a compendious one and is designed to
cover these basic legal principles and procedures which are
so essential for the preservation of personal liberty under our
Constitution that departure from them renders a detention
unjustifiable in the eyes of the law. To enumerate them in
advance would not be feasible and, in any case, an attempt
to do so would tend to diminish the constitutional guarantee.
The effect of that guarantee is that unless the High Court (or,
on appeal, the Supreme Court) is satisfied that the detention
in question is in accordance with the law, the detained
person is entitled to an unqualified release from that
detention. It is the circumstances of the particular case that
will usually determine whether or not a detention is in
accordance with the law."
That passage was quoted recently by the Supreme Court in

an application pursuant to Article 40.4.2 in McDonagh v. The
Governor of Cloverhill Prison [2005] IESC 4, [2005] 1 I.R. 394
in which the judgment of the court was delivered by
McGuinness J. on the 28th January, 2005. The paragraph of
the judgment of Henchy J. in The State (Royal) v. Kelly
[1974] I.R. 269 which follows the passage which I have just
quoted, in my view, is of particular relevance to this case
and is in the following terms at p. 269:"Where, as in the present case, the prisoner has been
convicted and sentenced by a court established by law under
the Constitution, and the
[2006]4 I.R.
97H.C.
jurisdiction of that court to try the offence and impose the
sentence has not been challenged, it would be necessary to
show that the procedure has been so flawed by basic defect
as to make the conviction a nullity before it could be held
that the detention was not in accordance with the law."
In that passage Henchy J. was recognising that even in the
case of a person convicted and sentenced by a court of
competent jurisdiction the process could have been so
procedurally flawed as to render the conviction a nullity and
the detention unlawful.
In this case, the applicant is detained on foot of a
conviction for an action which was accepted by the applicant
and by the people through the relevant state authorities,
including the Director of Public Prosecutions, to be an
offence on the 15th June, 2004, but which we now know, by
reason of the declaration made by the Supreme Court last
week, was not an offence either when the action occurred or
when the applicant was convicted or sentenced. The defect
here could not be more basic. It is that the purported
conviction relates to something which is not an offence in
criminal law. In my view, the conviction is a nullity, as is the
sentence. Adopting the terminology used by O'Higgins C.J. in
The State (McDonagh) v. Frawley [1978] I.R. 131 at p. 136,
there is "such a default of fundamental requirements that

the detention may be said to be wanting in due process of
law" and, accordingly, is not in accordance with law.
As I have said, the only consequence of the declaration
of inconsistency of s. 1(1) of the Criminal Law Amendment
Act 1935 with the Constitution with which I am concerned on
this application is whether it has rendered the detention of
the applicant unlawful as of now. It is undoubtedly the case
that the consequences of a declaration under Article 50.1
may be determined by a variety of factors, for example, the
conduct of the person relying on the declaration or the fact
that an irreversible course of events has taken place, so that
what was done on foot of the condemned statutory provision
may not necessarily be relied on as a ground for a claim for
nullification or other legal redress, as Henchy J. noted in
Murphy v. Attorney General [1982] I.R. 241 citing the
decision of the Supreme Court in The State (Byrne) v.
Frawley [1978] I.R. 326. However, on this application I am
not concerned with whether the applicant may be in a
position to maintain a civil action for wrongful imprisonment
in the future. I am not concerned with whether there are
other persons in custody who have been convicted on a plea
of guilty of an offence under s. 1(1) of the Criminal Law
Amendment Act 1935, in circumstances where the Director
of Public Prosecution entered a nolle prosequi in relation to
other charges. I am not concerned with whether the
aggregate effect of the declaration of unconstitutionality
may reveal an "appalling vista" nor whether that possibility
is
[2006]4 I.R.
98H.C.
mitigated by the authorities relied on by the respondent.
None of those considerations are relevant to the
determination I have to make.
It was submitted on behalf of the respondent that this
application is misconceived in that it was asserted that the
applicant's conviction remains valid, unless in its discretion,
a court were to quash the conviction in appropriate judicial

review proceedings. The contention is that the conviction
remains valid on its face. In my view, that submission is not
correct. In the light of the declaration by the Supreme Court
of the inconsistency of s. 1(1) of the Criminal Law
Amendment Act 1935 with the Constitution and the fact that
the only offence of which the applicant was convicted being
pursuant to this statutory enactment, the conviction is a
nullity, and the warrant is bad on its face. I would see no
sense whatsoever in the applicant pursuing a remedy in
judicial review proceedings to quash a conviction, a sentence
and a warrant which are patently bad.
For the purposes of this application the following facts
were agreed: that the date of the alleged offence was the 18th May,
2003,
that the applicant's date of birth is the 24th April, 1965, so
that he was 38 years of age at the date of the alleged
offence,
that the complainant's date of birth is the 21st August,
1990, so that she was 12 years of age at the date of the
alleged offence, and
that at the date of the alleged offence the applicant knew
that the complainant was under the age of 15 years.
On the basis of the foregoing facts it was conceded on
behalf of the applicant that he would not have had locus
standi to challenge the constitutionality of s. 1(1) of the
Criminal Law Amendment Act 1935 before the Supreme
Court made the declaration of inconsistency last week. The
fact that that declaration rendered the applicant's detention
unlawful may have the appearance of a "windfall bonus" for
the applicant. Be that as it may, in my view, his detention
was rendered unlawful by the declaration and cannot
continue.
Not being satisfied that the applicant is being detained
in accordance with the law, I direct his release from
detention in Arbour Hill prison. The respondent appealed to
the Supreme Court and the appeal was heard by the
Supreme Court (Murray C.J., Denham, McGuinness, Hardiman
and Geoghegan JJ.) on the 2nd June, 2006.

[2006]4 I.R.
99S.C.
Gerard Hogan S.C. (with himGeorge Birmingham S.C.
andPaul Anthony McDermott ) for the respondent: This is an
appeal from the order of the trial judge (Laffoy J.) made
pursuant to Article 40.4.2 of the Constitution whereby she
directed that the applicant be released immediately from
custody.
Grounds of appeal:1. The conviction of the applicant remains a valid conviction.
The applicant knew the age of the victim. He did not raise
the defence of mistake as to age. At all times the applicant
knew the victim was underage.
2. The issue is res judicata. The applicant is estopped by his
guilty plea as that was an implicit acceptance of the
jurisdiction of the court. Entering a plea of guilty lead to a
sentencing benefit for the applicant.
3. The reverse of the Cahill v. Sutton argument applies. He
could never have raised a constitutional challenge to the
offence himself. He would have had no standing to raise the
grounds which were before this court in C.C. v. Ireland
[2006] IESC 33. The applicant is precluded from obtaining
the benefit of the outcome in that case and the conviction is
valid as against him.
4. Notwithstanding the decision in Murphy v. The Attorney
General , the court should revisit the temporal effect of a
finding of unconstitutionality. It is not disputed that s.1(1) of
the Criminal Law Amendment Act 1935 is unconstitutional
but the Supreme Court in Murphy v. The Attorney General
held that it had no jurisdiction to find a temporal limitation
on a declaration of unconstitutionality and this should be
revisited. This case is concerned directly with whether a
declaration of constitutionality operates with full
retrospective effect.
5. The court must recognise the purpose of the Constitution.
The Preamble to the Constitution speaks of liberty, equality

and justice. This includes the State's duty to protect the
person. The protection of the person includes the right of
victims to have their rights properly vindicated. An adequate
system of criminal law is necessary that properly vindicates
the rights of victims. The decision in this case is a wholly
disproportionate response to the issues that arose in C.C. v.
Ireland [2006] IESC 33.
6. Canadian and United States caselaw will be outlined
which indicate:(i) these countries have had to deal with comparable
problems and their jurisprudence is therefore especially
relevant;
[2006]4 I.R.
100S.C.
(ii) R v. Hess was followed in C.C. v. Ireland [2006] IESC
33. In that case a homicide statute was found to be
unconstitutional but the guilty party was not released;
(iii) Section 52 of the Constitution of Canada states that the
Constitution of Canada is the supreme law and any law
inconsistent with it is of no force in effect. In Murphy v. The
Attorney General this court wrongly said or appeared to say
because of the language of Article 34 of the Constitution that
it did not have the jurisdiction to impose a temporal
limitation on a declaration of unconstitutionality. It is
submitted that s. 52 of the Canadian Constitution uses
verbatim language to Article 34 of the Constitution yet the
Canadian Supreme Court has claimed jurisdiction to impose
a temporal limitation on a declaration of unconstitutionality
in similar circumstances.
The conviction remains valid and the appropriate remedy
would be judicial review
Section 1(1) of the Criminal Law Amendment Act 1935 was
found to be unconstitutional, not for what it contained but for
what it did not contain. The saving clause would be to permit
the defence as to mistake of age. The issue was raised
tangentially, for example in King v. Attorney General where

s. 4 of the Vagrancy Act was found to be unconstitutional.
There has never been a case, despite The State (Byrne) v.
Frawley , where the unconstitutionality of a substantive
criminal statute has been considered. This decision has far
reaching consequences as there has never been a case
whereby a finding of unconstitutionality has enabled an
individual, who would not himself have had standing to raise
the constitutional challenge, to avail of the benefit of the
declaration of unconstitutionality. While Laffoy J. considered
herself bound to hold that "the conviction is a nullity, as is
the sentence" and even if contrary to these submissions the
court does not find it necessary to revisit Murphy v. The
Attorney General , the court can graft on an exception to the
Murphy doctrine.
If the court in Murphy v. The Attorney General had found
itself compelled to invalidate for example the Tax Acts, could
then a single person who was not married march through the
gap in the statute? Surely not. For example, in The State
(Byrne) v. Frawley Mr. Byrne was tried for breaking and
entering and larceny on the 11th, 12th and 17th December,
1975. The decision of de Burca v. Attorney General was in
court on the 12th December, 1975 and the provision in
relation to jury selection was found to be unconstitutional.
Mr. Byrne was deemed to have knowingly elected to go on
with his trial and was subsequently convicted and failed to
raise the issue of the unconstitutionality of the jury in an
appeal to the Court of
[2006]4 I.R.
101S.C.
Criminal Appeal. He was held to be precluded by his conduct
from challenging the validity of his conviction, even though
that conviction was secured in an unconstitutional manner.
The logic of Murphy v. The Attorney General , applying de
Burca v. Attorney General therefore, would have lead to the
result that every criminal conviction or acquittal reached by
a jury between the 29th December, 1937 and the 12th
December, 1975 would have been found to be

unconstitutional.
The cases of O'Donovan v. Attorney General and Maguire v.
Ardagh are referred to. The Canadian case of Dixon v.
British Columbia is referred to and it is submitted that it is
an example of where the jurisdiction to suspend a
declaration of unconstitutionality was asserted and temporal
limitation was applied. In that case electoral legislation was
found to be unconstitutional but the court held that the
legislation could stay in place on a temporary basis to avoid
the constitutional crisis that would otherwise occur. It was
noted that the German Constitution was also faced with
similar problems in 1962.
There has never been a case where a substantive criminal
statute was found to be unconstitutional and where someone
coming forward that would not have had standing to mount
a constitutional challenge has been able to benefit from the
declaration of unconstitutionality. The State (Byrne) v.
Frawley would be the nearest case. The cases of McDonnell
v. Ireland and Cox v. Ireland are referred to. It was noted
that the people who came forward in Cox v. Ireland were all
people who had standing but were held to be debarred by
the Statute of Limitations.
There is a valid conviction in this case. In the High Court the
point was made that the applicant was detained pursuant to
an unconstitutional law. That may be true but it is not
actually true. He is detained pursuant to a conviction
imposed by a lawful court to which he pleaded guilty. The
applicant has never appealed. If he has any remedy, it is not
via an application under Article 40 but should be taken by
way of judicial review.
If the applicant, who is out of time, sought to challenge his
conviction by applying for judicial review, a number of issues
such as estoppel by way of acquiescence would arise. It
would also be open to the High Court under O. 84 of the
Rules of the Superior Courts 1986 to remit the matter back
to the trial judge to make whatever further order that may
be appropriate. The High Court has comprehensive
jurisdiction to grant this discretionary remedy.
Until something is done it is there and it is submitted that

the trial judge fell into error in concluding that "the
conviction is a nullity, as is the sentence". This cannot be
established as such by way of an application under Article
40. The proper remedy would rather be by way of an
application pursuant to O. 84.
[2006]4 I.R.
102S.C.
Res judicata estoppel and waiver
The applicant has pleaded guilty to the offence and has not
appealed his conviction to the Court of Criminal Appeal. The
act of entering a plea of guilty to an offence contrary s. 1(1)
of the Criminal Law Amendment Act 1935 is an
acknowledgment of the jurisdiction and capacity of the court
of trial. The applicant is now debarred by reason of his own
conduct from asserting the unconstitutionality of the statute
in question. The decision is res judicata. All three issues
merge into each other.
The court is invited to look at The State (Byrne) v. Frawley .
Is the conduct of the applicant in this case distinguishable
from what occurred in The State (Byrne) v. Frawley Mr.
Byrne elected to proceed with his trial. Henchy J. held that by
electing to proceed, Mr. Byrne was then bound by that
election. There have been 50 cases involving offences
contrary to s. 1(1) of the Criminal Law Amendment Act 1935
in the last 30 years before the courts. No one has raised the
unconstitutionality of the statute. All have operated on the
basis that this statute was valid. The same issue arose in
The State (Byrne) v. Frawley . It was accepted that the jury
system with only male property owners was a valid system.
This court found otherwise. It was a matter of political
discourse. This court declared the system unconstitutional.
There are no degrees of nullity and there are no degrees of
unconstitutionality either. The defect in The State (Byrne) v.
Frawley is just as fundamental as the defect in C.C. v.
Ireland [2006] IESC 33. It is hard to identify the difference
between both applicants. Both suffered an unconstitutional

procedure. Both convictions were tainted by
unconstitutionality; Mr. Byrne was estopped by his conduct
from claiming the benefit of the declaration of
unconstitutionality. The same has to be true of the applicant
in this case. The situation of Mr. Byrne and the applicant is
undistinguishable and the learned trial judge erred in law in
not finding that the applicant in this case was estopped by
his conduct from obtaining the benefit of the declaration of
unconstitutionality.
It is submitted that Oswald v. State of Wyoming deals with
a very similar problem in an acute fashion. In this case a
particular statutory provision was held to be
unconstitutional. Although the court has asked if the basic
argument can be made from first principles and if this case
can be decided on Irish jurisprudence; Oswald v. State of
Wyoming is nonetheless rhetorically persuasive. The United
States Supreme Court has resiled from the absolutism of
Norton v. Shelby County . The United States Supreme Court
has held that there is no difference between an
unconstitutional bill and statute.
There is a clear link between The State (Byrne) v. Frawley
and the present case. Therefore the unconstitutionality of
the procedure in The State
[2006]4 I.R.
103S.C. (Byrne) v. Frawley is no more fundamental than the
substantive statute in this case. Therefore, The State
(Byrne) v. Frawley is the governing authority and should
prevent the applicant from getting relief under Article 40
orcertiorari under O. 84.
The Cahill v. Sutton argument
If the applicant had himself sought to mount the
constitutional challenge before the decision in C.C. v. Ireland
[2006] IESC 33, he would have had no standing to rely on
what would amounted to hypothetical jus tertii as to mistake
of age under standard Cahill v. Sutton principles. There has
never been a case where someone, who would not have had
standing to mount a challenge, would be allowed to obtain

windfall benefit, due to happenstance, of someone else's
judgment. This is wholly inconsistent with the decision in
Murphy v. The Attorney General . It was not square in line
with The State (Byrne) v. Frawley . Counsel for the
respondent refers to McDonnell v. Ireland , Murphy v. The
Attorney General and Buckley and others (Sinn Fin) v.
Attorney General and another . These are all instances,
where the parties have all lost their claims even though they
were directly affected and even though they would have had
standing in the first place. Murphy v. The Attorney General
is persuasive authority so it is open to the court to graft on
an exception to the Murphy v. The Attorney General
jurisprudence. This is offered as an alternative to the court.
The reverse Cahill v. Sutton point is offered as an
alternative to the first heading.
If the court does not decide to put a temporal limitation on
the effect of the declaration of unconstitutionality the court
can allow the appeal on other grounds. The reverse Cahill v.
Sutton point can be fairly grafted on to the Murphy v. The
Attorney General jurisprudence as it has not been held
before. The applicant should not be allowed to obtain a
windfall bonus just because two and a half years into his
conviction the statute in question happened to be found
unconstitutional. It would make no sense to apply the rigid
absolutism of retroactivism so that the applicant would be
allowed to walk. There are public policy considerations. The
court has the option to graft on to the Murphy v. The
Attorney General doctrine. The applicant has no standing to
raise this issue even if the declaration of unconstitutionality
operated with retroactivity.
The purpose of the Constitution
It must not be forgotten that the Preamble to the
Constitution envisages that there is to be true social order,
liberty and freedom. The State is under an obligation to
protect and vindicate the rights of victims. This leads to the
constitutional right to have one's bodily integrity protected.
The State has a duty to have an effective criminal law to
ensure the rights of the victim are
[2006]4 I.R.
104S.C.
adequately safeguarded. Jackson J. in the 1950s expressed
the proposition that the Constitution is not a suicide act. If it
is wished to adopt that proposition in this jurisdiction it
would be necessary to hold that the Constitution is to protect
fundamental freedoms.
In answer to the question of when a declaration of
unconstitutionality of the Act of 1935 takes effect from, I
submit that the applicant is debarred from obtaining the
benefit of the declaration. If the court is against me in this
regard I will not resile from asking the court from asserting
jurisdiction to impose a temporal limitation on when the
declaration of unconstitutionality of the Act of 1935 comes
into effect. I refer to Henchy J.'s judgment in Murphy v. The
Attorney General when he refers to the death certificate. It
is not necessary to go there but if it is necessary to go there
and if the court does not agree with the first heading then
the court is invited to go there. The appeal can succeed on
the Irish caselaw that have been submitted without
reference to the Canadian jurisprudence that has been
referred to.
Temporal limitation on the declaration of unconstitutionality
A number of other jurisdictions, for example in the European
Court of Justice and the United States Supreme Court; have
asserted this jurisdiction to impose a temporal limitation on
a declaration of unconstitutionality.
In Blake v. The Attorney General a number key provisions
of the Rent Restriction Acts were found to be
unconstitutional. Thousands of landlords and tenants were
affected. The statutory protection which many thousands of
families had relied on was no longer available. One can by
analogy say that thousands of victims have relied on the
Criminal Law Amendment Act 1935 to protect their
constitutional rights and dignity. O'Higgins C.J. stated that "in
the reasonable expectation of new legislation" the courts
should either adjourn or stay applications for possession.
What happened in effect in that case was that a temporal

limitation was imposed on the declaration of
unconstitutionality. Those words were not used but what was
said in the judgment had the same effect.
I refer to R v. Bain where aspects of the jury selection
system were found to be unconstitutional and the court
suspended the declaration of unconstitutionality for six
months. In Dixon v. British Columbia it was held that the
unconstitutional legislation could stay in place on a
temporary basis to avoid the constitutional crisis that would
otherwise occur. These cases show that the Canadian
Supreme Court has asserted a jurisdiction to suspend a
declaration of unconstitutionality and to apply temporal
limitations to its implementation. Here in this jurisdiction the
language of the Irish Constitution does not prevent the
ability to introduce such temporal limitations.
[2006]4 I.R.
105S.C.
The applicant in this case has already invoked the
jurisdiction of the court and therefore the application in
question should have been taken by way of judicial review.
This should be adjourned for plenary hearing. I do not have
to go that way but if necessary, I will.
The case of R. v. Sarson resulted in the imposition of a
temporal limitation.
In Schachter v. Canada it was held that the striking down
of legislation without enacting anything in its place would
threaten the rule of law. The refusal of relief was upheld by
the Supreme Court. This is analogous to the State's
obligation under article 40. The refusal of relief was upheld
by the Supreme Court.
Sopinka J. held that pursuant to the principle set out in R. v.
Wigman " an accused is unable to reopen his or her case
and rely on subsequently decided judicial authorities, even
where the provision under which the accused was convicted
is subsequently declared constitutionally invalid."
The court opines that the result was achieved here without
the imposition of a temporal limitation but that the decision
was reached on principles similar to those outlined in The
State (Byrne) v. Frawley . But it is submitted that Sopinka J.
held that "[w]hile the appellant was in fact convicted under
an unconstitutional section, this was in the circumstances a
technical flaw in his conviction resulting from an agreement
between the appellant and the Crown." This is applicable
mutatis mutandi to the facts of this case.
The appropriate remedy for the applicant would not be on
Article 40 grounds but by way of judicial review. If the
applicant were now to challenge his conviction in judicial
review proceedings, issues of waiver, estoppel, delay and
acquiescence would certainly arise. The Cahill v. Sutton
objection applies in reverse. The applicant has no standing
to raise what happened in C.C. v. Ireland [2006] IESC 33.
The courts, through the laws, have a duty to ensure that the
rights of the victim, as expressly guaranteed in Article
40.3.2, are protected. The court has jurisdiction to depart
from Murphy v. The Attorney General . It is necessary to
have regard to the Canadian Constitution. If they can assert
jurisdiction to impose a temporal limitation then there is no
reason not to adopt it here. The court is only invited to go in
that direction if it thinks it necessary to do so. Asking the
court to allow the appeal and order the re-arrest of the
applicant as happened in State v. Iteman .
Conor Devally S.C. (with himJustin McQuade ) for the
applicant: Under the Constitution the liberty of the individual
is a fundamental right and it is expressly stated that "no
citizen shall be deprived of his personal liberty save in
accordance with law". The applicant applied under Article 40
of the Constitution and it was this constitutional challenge
that led to his
[2006]4 I.R.
106S.C.
release. There is no merit to the argument to now declare
that the applicant should not have availed of it. The purpose
of the constitutional procedure is to ensure the fundamental

right to liberty. The manner in which the Constitution has
undertaken to protect that right is that it cannot be
encroached save in accordance of law.
Hard cases can result in the idea of justice shifting. To
ensure against the prospect of the right to liberty being
encroached upon, the drafters have placed the law as
primary. The anger that ensued pursuant to the applicant
being released is clearly evident. I would caution that to be
influenced as to justice of merits outside of the law would be
a dangerous stepping outside of the tenets of the
Constitution. Perhaps it would lead to regrettable problems in
the future where justice would take precedence over the
right to personal liberty. The exact scriptures of the
Constitution could become subverted.
The respondent has submitted that judicial review would be
the appropriate remedy for the applicant, but this is no
answer to the applicant's contention that he was unlawfully
detained due to a non-existent offence. Under the
circumstances this is perhaps a classic case in which Article
40 applies. The applicant is not saying that any infirmity lay
in the process that resulted in the conviction but is merely
saying, please justify my detention as being in accordance
with law as it is not.
This is a classic case requiring Article 40 relief. The risk of
entertaining the arguments of the respondent is to encroach
on unadorned mandatory constitutional rights that state that
an accused's detention has to be in accordance with law.
Since the judgment of C.C. v. Ireland [2006] IESC 33 the
applicant was detained under a warrant which in terms of
C.C. v. Ireland [2006] IESC 33 should read a blank. There is
no lawful reason to detain the applicant in detention. Some
reference has been made to the order of society that may be
seen as overriding Article 40. In the High Court, counsel for
the applicant suggested that there may possibly be seven
more people that have been detained pursuant to an offence
contrary to s. 1(1) of the Criminal Law Amendment Act 1935.
There should be a requirement that they supply information
as to whether any of them had been charged solely of s. 1(1)
offence or detained solely on s. 1(1) grounds. The necessity

to have a well ordered society is given as reason to detain
the applicant under something we know not to be an
offence.
The court refers to the fact that counsel for the respondent
submits that the retrospective impact of a finding of
unconstitutionality has limitations so as to not call in
question the detainment of legal parties. It is submitted on
behalf of the respondent that the fact that s. 1(1) of the
Criminal Law Amendment Act 1935 has been declared
unconstitutional does not render the detention of the
applicant unlawful. Is it appropriate to cause someone
[2006]4 I.R.
107S.C.
to remain in detention to avoid the stark terms of Article 40?
If the detention is unlawful then Article 40 will apply but
counsel for the respondent has stated that the lawfulness
should not be impugned because of these considerations.
But where one can be convicted but have committed no
offence is a fiction that we do not submit to. The applicant
was arrested for an offence, and that was the only count on
the indictment. A guilty plea was entered at the first
opportunity. At the point the applicant entered a guilty plea
that was the point when he legally became someone that
could not challenge the statute. The applicant rendered
himself, at the moment he entered a guilty plea, a person
who did not have locus standi. The factual basis is purely on
a denial as to admission of his knowledge.
It appears that the respondent is saying that a person with
no locus standi should not benefit from the declaration of
unconstitutionality. Even if so, what rendered him as being a
man of nolocus standi was the entering of his plea. The
application would have been grounded by affidavit and
therefore there was the same level of facts as there was in
C.C. v. Ireland [2006] IESC 33. It appears that at no time
were there facts that would have given the applicant locus
standi. But the locus standi issue is not as simple in a
criminal context as it would be in a civil one. It has been

promoted that the applicant's lack oflocus standi to mount a
constitutional challenge makes the continuance of detention
valid. We disagree. It is submitted on behalf of the applicant
that The (State) Byrne v. Frawley was not correctly decided
on the facts.
It has been submitted on behalf of the respondent that the
court should deny the applicant's release pursuant to Article
40.4 on grounds that the Canadian Charter expressly allows
for the refusal of access to liberty on foot of their habeas
corpus procedure, when the tenets of fundamental justice
permit. The Canadian Charter provision invoked in R. v.
Sarson was:"Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice."
Unless words are inserted into the terms of Article 40, it is
misconceived to suggest that the Article 40.4 procedure is
subject to terminology employed in the Canadian Charter.
The principle behind Article 40 dictated that rather than
having a loose arrangement, the law was divorced of ideas
and the transcending law was the sole requirement.
The State (Byrne) v. Frawley can be distinguished on the
facts and the applicant is peculiarly privy to the decision in
de Burca v. Attorney General. Mr. Byrne was displaced from
challenging the novus operandi. That case would be met
today with the argument that the correct remedy would
becertiorari.
[2006]4 I.R.
108S.C.
Assuming the offence at issue in this case did not itself exist
since 1937, there are nonetheless factual things that
happened like the plea being entered and the legal
consequences that ensued from that. If a warrant was to be
issued now what would it read? Does the nature of the
infirmity matter?
There are two schools of thought. McSorley v. Governor of

Mountjoy Prison outlines the stricter version of the Article 40
procedure and states that the queries in relation to the
process should be confined to infirmities that exist on the
face of the warrant. The effect of the declaration of
unconstitutionality is a big step and it is unlikely in an Article
40 context to be able to say that a line of authority exists
that is inconsistent since 1937. There are no grounds for that
save that other jurisdictions enjoy that ability. Consider the
declaration of unconstitutionality in the context of The
(State) Byrne v. Frawley and Murphy v. The Attorney
General . The plea of conviction is null and therefore the
State cannot defend its action from the date of the
declaration of unconstitutionality. Before that date the State
would have had a very good defence. The concern is the rule
of law since the date the statute was declared
unconstitutional. Here we reach the limit of jurisprudence,
such as Murphy v. The Attorney General and The State
(Byrne) v. Frawley as to what consequences can be held on
to.
"The egg cannot be unscrambled" (this is a quotation from
the judgment of Griffin J. in Murphy v. The Attorney
General ) but the jail doors can be opened. The court asks
when a pre-1937 statute is found unconstitutional decades
after, then what are the consequences to civil and criminal
administration. It is submitted that the applicant is trying to
apply the law as in Murphy v. The Attorney General . The
court refers to McDonnell v. Ireland and the fact that the
expansion of the consequences of striking down legislation
can only crystallize in context. The State must apply the
principle that laws are constitutional until there is a
declaration otherwise. When a statute is struck down then it
may indeed have an impact on the disorder in society.
Should the court look at each case to see if the accused
should remain in detention? It is submitted that if there is a
condemned penal statute then there is no option but to
discontinue the incarceration of the accused irrespective of
the effect of society.
In the context of declaring, for example, the Financial Acts
as invalid the court is not asked to perpetuate the

unconstitutionality by leaving everything up to that date in
place. In Murphy v. The Attorney General it was decreed
that it is not imperative to do it. There should be a balancing
declaration. It cannot apply to an offence itself. Otherwise
the court would be asked to perpetuate an incarceration not
in accordance with law. The applicant in The State (Byrne) v.
Frawley was in jail for an offence known to law.
[2006]4 I.R.
109S.C.
Now to perpetuate this incarceration is to re-issue a warrant
based on no offence known to law. In response to the
question of whether an unconnected third party should be
able to obtain the windfall benefit of a finding of
unconstitutionality, is it a benefit to seek that continued
detention be in accordance with law?
There are no cases, reported or litigated, where an
unconnected third party, who has not asserted his rights,
was found to be able to avail of a remedy of this nature, but
in Buckley and others (Sinn Fin) v. Attorney General and
another there was an attempt to raise Murphy v. The
Attorney General . A defaulter could not have sought his
payment under the condemned section as the consequences
of the condemnation apply to both the taxpayer and the
collector. Therefore the consequences of the declaration of
unconstitutionality in this case apply to the applicant, the
courts, the jails and the State.
Since the statute was declared unconstitutional it is no
longer constitutional to detain someone in prison for a nonoffence. There is no offence in existence to justify continuing
the applicant's imprisonment. Therefore the court should not
declare that he be incarcerated for something that is not an
offence. Article 40 is specific enough. It is submitted that it is
impossible for the court to say that there are various factors
that can allow the respondent to re-issue a warrant for the
applicant's arrest as the offence at issue no longer exists. It
is not possible to renew the applicant's detention on a lawful

basis. The case of C.C. v. Ireland [2006] IESC 33 brings in
estoppel and waiver. In this case there was never any other
charge that was withdrawn or to which anolle prosequi was
entered. The issue of estoppel is very hard to discern. There
is no alteration of the position of the Director of Public
Prosecutions representing the people.
The court refers to cases such as The State (Coveney) v.
Special Criminal Court and The State (O'Callaghan) v.
hUadhaigh .
Part of the authorities suggest that the Director of Public
Prosecutions is not tied. It is contended that other applicants
will stand in the position of the applicant and will avoid
convictions under s. 1(1)of the Criminal Law Amendment Act
1935. If "the aggregate effect of the declaration of
unconstitutionality may reveal an 'appalling vista'"
(quotation from Laffoy J.'s (at para. 10 supra)then the
continued detention of the applicant is not the appropriate
way to deal with it. The court asks if I am suggesting that
other people should now be proceeded against for other
charges? Yes, if these people were not committed to prison
for committing an offence known to law.
There has been a suggestion of public order concerns. This
is not the case but if it is, then there are other avenues to go
down, such as the offence of rape, etc. I refer to Article 40
and the Irish version of the Article
[2006]4 I.R.
A. v. Governor of Arbour Hill PrisonMurray C.J.
110S.C.
where it states "De rir dlirithe" and submit that this is
a very significant phrase when reading the entire Article.
Gerard Hogan S.C. (with himGeorge Birmingham S.C.
andPaul Anthony McDermott ) in reply: The case on behalf of
the respondent is made squarely within The State (Byrne) v.
Frawley . The applicant's trial, leaving aside retroactivity,
etc., may well have been unconstitutional but he lost his
right to assert that and waived his rights by, inter alia,
acquiescence and the passage of time.
In Laffoy J.'s judgment at the trial of this action it was

accepted that the applicant would not have the requisite
locus standi to mount the constitutional action. Laffoy J. sets
out the agreed facts, the date of the alleged offence, and the
fact that the applicant knew the girl's age. On the basis of
these facts it was conceded that the applicant would not
have the requisite locus standi. There was a concession
made in the High Court to take the case as it is found. By
entering a plea of guilty the applicant accepted the
jurisdiction of the court and the benefit of the reduced
sentence. He cannot avail ofjus tertii in reverse.
There are a large number of instances where declarations of
unconstitutionality have been made. It is striking that
counsel for the applicant cannot identify a case where
someone can avail of jus tertii in reverse. It is therefore
submitted that the appeal should be allowed.
Ex tempore
Murray C.J.
2nd June, 2006
The applicant never asserted that he believed that the
victim was not the age she was. Counsel for the applicant
did not say that he suffered any procedural unfairness,
neither has he pointed to any precedent where a party, in
similar circumstances, suffered any denial of a constitutional
right. Henchy J. in The State (Byrne) v. Frawley held that it
does not follow that court orders lack binding force where
they were on foot of an unconstitutional statute. This case is
analogous to The State (Byrne) v. Frawley , the applicant
acquiesced to the jurisdiction of the court and never put
forward the defence of reasonable belief. The warrant is still
lawful. We allow the appeal for reasons that will be given
later and set aside the High Court order and order that the
applicant be re-arrested.
Cur. adv. vult.
[2006]4 I.R.

111S.C.
Murray C.J.
10th July, 2006
" [T]he fact that a provision was held to be no
longer in force since 1937 does not automatically carry the
corollary that what has been done under and in pursuance of
that provision after the Constitution came into force will
necessarily be condemned for lack of validity", per Griffin J.
in Murphy v. The Attorney General [1982] I.R. 241 at p. 328.
" [I]t does not necessarily follow that court orders lack
on an unconstitutional statute", per Henchy J. in The State
(Byrne) v. Frawley [1978] I.R. 326 at p. 349.
While I will return later to the context in which these
judicial dicta were pronounced I mention them at the outset
so as to highlight the fact that the issue which arises in this
case, the retrospective effect on cases already decided of a
finding that the provision of an Act is unconstitutional, is not
a novel one although it does arise in this case in a novel
manner and amplitude for reasons which I will refer to later.
Background
The background to this case commences, in the first
instance, with the conviction of the applicant before the
Dublin Circuit Criminal Court on the 15th June, 2004, of the
offence of unlawful carnal knowledge of a girl under the age
of consent contrary to s. 1(1) of the Criminal Law
Amendment Act 1935 following a plea of guilty on his behalf.
On the 24th November, 2004, he was sentenced to three
years' imprisonment to date from the 8th November, 2004.
In a judgment in another case, C.C. v Ireland [2006]
IESC 33, [2006] 4 I.R. 1 this Court declared that s. 1(1) of the
Criminal Law Amendment Act 1935 (the Act of 1935) was
inconsistent with the provisions of the Constitution.
This decision followed an earlier determination by this
court, in judgments delivered on the 12th July, 2005, in
which s. 1(1) of the Act of 1935 was interpreted as
precluding a defence being raised by a person charged with

an offence under the section to the effect that he had
reasonable grounds for believing that the girl in question was
over the age of consent to sexual intercourse. Consequent
upon that decision the issue as to the constitutionality of the
section was heard on a subsequent date leading to the
judgment concerning the section's unconstitutionality on the
23rd May, 2006.
That section was one which did not apply to rape
offences generally against adults or minors but to a specific
statutory offence prohibiting consensual sexual intercourse
with girls under the age of consent.
[2006]4 I.R.
112S.C.
On the 26th May, 2006, the applicant applied for an
order pursuant to Article 40.4.1 of the Constitution directing
his release from custody on the grounds that his detention in
accordance with the term of imprisonment imposed upon
him following his conviction was unlawful since the section,
s. 1(1) of the Act of 1935, had been declared inconsistent
with the Constitution pursuant to Article 50.
By order dated the 30th May, 2006, the High Court
decided that the applicant's further detention was unlawful
and ordered his release.
The respondent appealed to this court against the
order of the High Court which appeal was heard on the 2nd
June, 2006. At the conclusion of the hearing of that appeal
this court decided that the applicant's detention on foot of
his conviction was lawful. The appeal was accordingly
allowed and a warrant issued for the arrest of the applicant
for the purpose of completing the sentence which he was
serving.
When the decision of the court was announced on that
date it was stated that the reasons for the decision would be
given subsequently.
The issue in the present case - absolute retrospectivity
As counsel for the applicant said, his argument in this

case is quite simple and he put it in the following terms: his
client was convicted of an offence under s. 1(1) of the Act of
1935. That section has been declared unconstitutional
pursuant to Article 50 of the Constitution.
That means, because of its inconsistency with the
Constitution, the provision was never the law in the State
after the adoption of the Constitution in 1937. That in turn
means it is deemed not to have been the law at the time of
his conviction and sentence for the offence. For that reason
alone the final judicial verdict convicting him and sentencing
him to imprisonment was null and of no effect. Therefore he
is not detained in accordance with law.
It is analogous to the consequence which also flows
from a finding that a post-1937 Act of the Oireachtas is
incompatible with the Constitution which has the
consequence of such an Act being deemed invalid ab initio,
that is to say that from the date of its enactment, and never
to have entered into force
He rests his case on the principle of void ab initio
exclusively, without regard to any other principles deriving
from the Constitution.
It is an argument for complete or absolute
retrospective effect of such a finding of unconstitutionality
on cases previously and finally decided on foot of an
impugned statute, so that those judicial decisions are void
and of no effect. For the sake of convenience reference to
the principle of void ab initio includes a reference to a pre1937 Act not having force and effect from the coming into
operation of the Constitution in 1937. Also for the
[2006]4 I.R.
113S.C.
sake of convenience, except where the context otherwise
indicates, I will refer to a finding of unconstitutionality of an
Act as including a finding under Article 50.1 that a pre-1937
Act is inconsistent with the Constitution and a finding under
Article 15.4 that an Act is repugnant to the Constitution.
General observations
On the 2nd June, 2006, this court handed down its
decision in this case allowing the appeal of the respondent
and setting aside the order of the High Court.
The reasons why I agreed with that decision are set out
in this judgment. I do not accept that it is a principle of our
constitutional law that cases which have been finally decided
and determined before our courts on foot of a statute which
is later found to be unconstitutional must invariably be set
aside as null and of no affect.
When this court, in de Burca v. Attorney General
[1976] I.R. 38 struck down as unconstitutional the provisions
of a statute governing the selection of juries in criminal
cases it did not mean that the tens of thousands of jury
decisions previously decided by juries that were selected
under a law that was unconstitutional should be set aside.
When this court found in McMahon v. Attorney General
[1972] I.R. 69 that certain provisions of the Electoral Acts
were unconstitutional it did not mean that all elections which
took place on foot of the impugned statute were void and of
no effect, that there was no valid Oireachtas in being and
none which could validly remedy the situation.
The Constitution like others, is holistic and provides a
full and complete framework for the functioning of a
democratic State and an ordered society in accordance with
the rule of law, the due administration of justice and the
interests of the common good. In providing for the common
good and seeking "social true order", in the words of the
Preamble to the Constitution, the application of the
Constitution cannot be distorted by focusing on one principle
or tenet to the exclusion of all others.
For reasons which I will go on to explain, the abstract
notion of absolute retroactivity of the effects of a judicial
decision invalidating a statute is incompatible with the
administration of justice which the Constitution envisages, as
many of the dicta of this court indicate in cases which it has
already decided.
It is also a notion which other legal and constitutional
systems have, in comparable circumstances, found
incompatible with a due and ordered administration of

justice.
[2006]4 I.R.
114S.C.
However attractive the argument of the applicant,
when taken in isolation, would at first superficially appear,
and however complex the issue in practice may appear to
be, it is not one which has been shown compatible with any
ordered constitutional system and in my view is not
compatible with ours.
At the outset I drew attention to the fact that issues
concerning the extent to which a judicial adjudication has
retrospective effect, in particular one which involves a
finding that a law is inconsistent with or invalid having
regard to the Constitution, is not in itself novel. What is novel
about this case is that such a judicial finding is invoked by
another party for the purpose of impugning an earlier judicial
decision which has been finally determined. The issue in
earlier proceedings with which this case is concerned is a
final verdict of guilty following a criminal prosecution.
The applicant's case was finally decided in 2004. He
was found guilty, after a plea, and sentenced to prison. The
case is over and the decision final. There is no appeal
outstanding. In these proceedings he seeks to mount a
collateral attack on that final verdict. At no stage prior to or
in the course of his prosecution proceedings did he seek to
impugn the lawfulness of his prosecution or conviction by
reason of any constitutional frailty. A collateral attack arises
where a party, outside the ambit of the original proceedings
seeks to set aside the decision in a case which has already
been finally decided, all legal avenues, including appeal,
having been exhausted, for reasons that were not raised in
the original proceedings but for reasons arising from a later
court decision on the constitutionality of a statute.
I accept that this application is not based on the
assertion of a jus tertii. It is not a general assertion of
unconstitutionality without regard to the applicant's

circumstances or a claim based on the infringement of rights
of another person or persons. The applicant claims to be
directly affected by the decision in C.C. v. Ireland [2006]
IESC 33, [2006] 4 I.R. 4 because he was convicted pursuant
to the section of the Act of 1935 which in C.C. v. Ireland
[2006] IESC 33 was subsequently found unconstitutional.
No constitutional frailty was found as to the right of the
State to criminalise sexual intercourse with girls underage
even if it takes place consensually rather then against their
overt will. It cannot be said, and the applicant does not
contend, that there was any inherent injustice in convicting a
person of having sexual intercourse with an underage girl,
something which has been forbidden by law for a very long
time and was contrary to the law as applied at the time.
Moreover, apart from the fact that the applicant,
having been charged with an offence under s. 1(1) of the Act
of 1935, did not at any stage challenge its constitutionality,
his position is also underscored by the fact
[2006]4 I.R.
115S.C.
that he acknowledges that he was at all times aware that
the girl with whom he was convicted of having sexual
intercourse was under the age of consent.
In the circumstances, while it might be said to be
somewhat analogous to the assertion of a claim based on jus
tertii, it is nonetheless in the nature of a collateral attack on
the status of his conviction for the offence in accordance
with law, at least as it then stood. That is to say that he
cannot, and does not, complain of any inherent
constitutional injustice or unfairness in the process by which
he was convicted.
Counsel for the applicant could not point to any case in
which such a collateral challenge to a final decision of a
court had been brought before the courts based on a
subsequent judicial decision. Neither have I been able to
discover any such case. Before addressing the specifics of
this application I wish to make some reference to the

question of the retroactive effect of judicial decisions in our
legal system generally and then some consideration to the
position in other legal systems.
Retroactivity generally in the common law system
The Constitution may in a certain sense fall to be
viewed from the perspective of the common lawyer since the
Constitution was superimposed on, and indeed presumes the
existence of, the common law system at least insofar as it is
not inconsistent or incompatible with the Constitution itself. I
think it would be useful to look at the common law position
on the retroactive effects of judicial decisions in previously
decided cases.
A primary judicial function is to interpret the law, that
is to say the Constitution, legislation and the common law.
As I observed in Crilly v. T & J. Farrington Ltd. [2001] 3 I.R.
251 at p. 286:- " [F]irst, there is the law; then there is
interpretation. Then interpretation is the law. This simplified
reference to the judicial process emphasises that when
courts apply a statute the interpretation which they give it
has ultimate authority." One of the consequences of this
judicial process is obvious. The meaning or import of law is
interpreted and defined incrementally.
It is also important to bear in mind, as in the present
application, that the courts cannot and do not choose the
legal issues, of interpretation or otherwise, which they have
to decide. They can only decide such issues when they are
raised in the context of judicial proceedings brought before
them.
Thus, the conventional manner in which the law has
been applied in a particular area for many decades may be
greatly altered even turned on its head as a result of a
particular issue being raised in a particular case at a
particular point in time leading to an extension of the law by
reference to general principles, the overriding of precedent
or the specific interpretation
[2006]4 I.R.
116S.C.
of a provision of a statute which gives it a meaning different
from that which had been commonly held. The decision of
this court which decided that failure to wear a seatbelt could
constitute contributory negligence did not entitle already
decided cases to be reopened. One could give many other
examples and I will just mention two seminal cases. First is
Donoghue v. Stevenson [1932] A.C. 562, as adopted and
followed by this court, which extended the duty owed by
manufacturers of unsafe goods beyond the ambit of those
with whom the manufacturer had privity of contract to
ultimate consumers who were entitled to sue on the grounds
of the manufacturer's negligence. This did not lead, any
more than other leading decisions in the field of contract or
tort and so on, to the reopening or setting aside of finally
decided cases. The law did not permit other parties to
challenge the finality of already decided cases concerning
manufacturers' liability. The second example is Byrne v.
Ireland [1972] I.R. 241 which determined, for the first time,
that the State, Ireland, was vicariously liable for the
negligent or tortious acts of public servants and did not
benefit from any so-called prerogative of immunity from suit
claimed to be attached to the State in its sovereign status.
That was the meaning given to the Constitution and a fortiori
since its enactment in 1937. The plaintiff was therefore
entitled to recover damages from Ireland for any injuries
which she suffered as a result of falling on a footpath which
had subsided due to excavation works carried out by the
Department of Post and Telegraphs.
It did not mean in law, and no one has or was ever
likely to suggest, that any persons who had previously
brought a similar unsuccessful case against a Minister or the
State or indeed who had confined themselves to suing the
only person it was thought they could sue, the actual public
servant who committed the tort (with a risk or likelihood that
he or she would not have means to pay any damages
awarded or at best only partially to do so) could in the light
of the ruling, set aside any previously decided cases or
reopen them.
The common law has never conceived as consistent

with any ordered administration of justice that previously
decided and finally determined cases could necessarily be
set aside or reopened in the light of a new precedent
notwithstanding the historical view of the common law,
expressed by Blackstone in hisCommentaries, that judges
"discover" the law as it truly is and that overruled
precedents were misrepresentations of the law and were
never law. "For if it be found that the former decision is
manifestly absurd or unjust, it is declared, not that such a
sentence was bad law, but that it was not law"
(Blackstone'sCommentaries 1, 69). In modern constitutional
systems we have moved on from that perception of the law,
at least in its purest form, but even when viewed through
[2006]4 I.R.
117S.C.
Blackstone's prism the common law did not envisage
absolute retroactivity of judicial decisions and did not permit
previous cases, even though finally determined on principles
that were "never law" to be reopened. As Judge Richard
Posner, writing ex-judicially, observed, "Pure retroactivity is
rare" (The Problems of Jurisprudence, 1993).
Judicial decisions which set a precedent in law do have
retrospective effect. First of all the case which decides the
point applies it retrospectively in the case being decided
because obviously the wrong being remedied occurred
before the case was brought. A decision in principle applies
retrospectively to all persons who, prior to the decision,
suffered the same or similar wrong, whether as a result of
the application of an invalid statute or otherwise, provided of
course they are entitled to bring proceedings seeking the
remedy in accordance with the ordinary rules of law, such as
a statute of limitations. It will also apply to cases pending
before the courts. That is to say that a judicial decision may
be relied upon in matters or cases not yet finally determined.
But the retrospective effect of a judicial decision is excluded
from cases already finally determined. This is the common
law position.
Only a narrow approach based on absolute and
abstract formalism could suggest that all previous cases
should be capable of being reopened or relitigated (even if
subject to a statute of limitations). If that absolute formalism
was applied to the criminal law it would in principle suggest
that every final verdict of a trial or decision of a court of
appeal should be set aside or, where possible, retried in the
light of subsequent decisions where such subsequent
decision could be claimed to provide a potential advantage
to a party in such a retrial. In principle both acquittals and
convictions could be open to retrial. But one has only to pose
the question to see the answer. No one has ever suggested
that every time there is a judicial adjudication clarifying or
interpreting the law in a particular manner which could have
had some bearing on previous and finally decided cases, civil
or criminal, that such cases be reopened or the decisions set
aside.
It has not been suggested because no legal system
comprehends such an absolute or complete retroactive
effect of judicial decisions. To do so would render a legal
system uncertain, incoherent and dysfunctional. Such
consequences would cause widespread injustices.
As Henchy J. stated in Murphy v. The Attorney General
[1982] I.R. 241 at p. 314, incidentally, when addressing the
effects of a law declared unconstitutional ab initio:"Over the centuries the law has come to recognize, in one
degree or another, that factors such as prescription
(negative or positive), waiver, estoppel, laches, a statute of
limitations, res judicata, or other matters (most of which may
be grouped under the heading of public
[2006]4 I.R.
118S.C.
policy) may debar a person from obtaining redress in the
courts for injury, pecuniary or otherwise, which would be
justiciable and redressable if such considerations had not
intervened. To take but two examples, both from a non-
constitutional context, where a judicial decision is overruled

by a later one as being bad law, the overruling operates
retrospectively, but not so as to affect matters that in the
interval between the two decisions became res judicatae in
the course of operating the bad law "
The words of Henchy J., and I will be referring more fully to
this passage later, reflect the reality of what the law
discovered long ago. There are, as he also stated in this
judgment, "transcendent considerations" which militate
against complete or absolute retrospectivity. Fundamental
interests of public policy require limitations on the
retroactive effect of judicial decisions. The legal order and
the administration of justice is not one of perfect symmetry.
As Justice Benjamin Cardozo observed at p. 161 in his
seminal workThe Nature of the Judicial Process (Yale
University Press, 1921), "We like to picture to ourselves the
field of the law as accurately mapped and plotted. We draw
our little lines, and they are hardly down before we blur
them." Although judicial adjudications do have retroactive
effect there are important exceptions and restrictions to that
effect. A line must be drawn in the interests of justice.
Speaking of a rule limiting retroactive effect of judicial
decisions once again Justice Cardozo observed, "It may be
hard to square such a ruling with abstract dogmas and
definitions. When so much else that a court does is done
with retroactive force, why draw the line here? The answer
is, I think, that the line is drawn here, because the injustice
and oppression of a refusal to draw it would be so great as to
be intolerable."
The law is too old and too wise to be applied according to a
rigid abstract logic or a beguiling symmetry. As Henchy J.
pointed out above for centuries the law has known general
principles and transcendent considerations, such as the
public interest, which is another way of saying the common
good, restricting retrospectivity, especially the setting aside
of judicial decisions already finally decided, even though the
law on which they are founded is later held to be invalid.
It has never been held, and as far as I am aware never
been argued the matter might well be considered beyond
argument, that the common law rule that judicial decisions

do not retrospectively apply to cases already decided is in
any way inconsistent with the Constitution.
The argument of counsel for the applicant was as
simple as it was stark. The applicant stands convicted and
sentenced on a law that does not exist. Although counsel
elaborated on this argument that is its fundamental essence.
If it is correct it is one which is out of kilter with its
underlying
[2006]4 I.R.
119S.C.
common law system. It may come as no surprise to find that
it is also out of kilter with other constitutional systems and in
particular with our own.
Other legal systems and retrospectivity
In his judgments in The State (Byrne) v. Frawley
[1978] I.R. 326 and Murphy v. The Attorney General [1982]
I.R. 241 Henchy J. found it helpful to refer to the law of the
United States and the European Communities as evidence of
the principle "that what has been done or left undone under
a constitutionally invalid law may be impossible, or
unjust or contrary to the common good to reverse or
undo " (see Murphy v. The Attorney General at p. 324).
I would like to refer to the position in a number of legal
systems which are cogent examples of the principle referred
to by Henchy J.
European Union
In successful proceedings before the European Court of
Justice challenging the validity of Community Regulations
pursuant to Article 230 of the European Community Treaty
the court is required under Article 231 to declare the
measure concerned void. In principle this means that the
measure never entered into effect but the latter Article also
provides that the Court of Justice shall, if it considers this
necessary, state which of the effects of the Regulation which
it has declared void shall be considered as definitive. On the
direct basis of that provision the court has limited the
retrospective effect of a declaration that a measure is void

including by maintaining the provision in effect until a new,
valid measure has been adopted - sometimes specifying that
this must be done within a reasonable period (see for
example Commission v. Parliament (Case C-178/03) [2006]
ECR 1-107).
But the court may also review the validity of a
community legal measure, outside the ambit of Article 231,
in response to a request for a preliminary ruling by a national
court. In order to maintain legal certainty and consistency
the court has found it necessary to apply, by way of analogy,
a similar approach to declarations of annulment in such
cases.
Moreover, as the Court of Justice has repeatedly
stated, when it gives a decision on the meaning and scope of
community law it is that which "it must be or ought to have
been understood and applied from the time of its coming
into force" (see Amministrazione dello Finanze dello Stato v.
Denkavit Italiana s.r.l. (Case 61/79) [1980] E.C.R. 1205.) In
that case, also repeated at para. 17 is its oft stated principle
which acknowledges that exceptionally " [T]he Court
may, in application of the general principle of legal certainty
inherent in the community legal order and in taking
[2006]4 I.R.
120S.C.
account of the serious effects which its judgment might
have, as regards the past, on legal relationships established
in good faith, be moved to restrict for any person concerned
the opportunity of relying upon the provisions as thus
interpreted with a view to calling in question those legal
relationships" (emphasis added).
In exercising such a general discretion the Court of
Justice, as Advocate General Stix-Hackl recalled in her
opinion delivered on the 14th March, 2006, in Banca
Popolare di Cremona v. Agenzia Entrate Ufficio Cremona
(Case C-475/03) , (Unreported, Court of Justice, Stix Hackler
A.G., 14th March, 2006) " has taken various approaches.
In some cases, it is specified that the finding of invalidity has

no retroactive effect whatever. In other, it has stated that the
effect is in general not retroactive but has allowed
retroactive effect for those who have before the date of the
judgment brought proceedings based on the invalidity".
In its caselaw the Court of Justice has clearly considered
that limitations on retrospective effect of its decisions were
necessary in the interest of legal certainty and the
coherence of the community legal system.
In Murphy v. The Attorney General [1982] I.R. 241
Henchy J. viewed specifically that approach of the Court of
Justice, as a "cogent example" of the general principle of
limiting the retrospective effect of decisions in such
circumstances notwithstanding the particular features of the
community legal system.
European Convention on Human Rights
The European Court of Human Rights in exercising its
jurisdiction to protect fundamental rights under a Convention
reflecting the "common heritage of freedom and the rule
of law" of now 46 European countries found it appropriate
and necessary to limit the retrospective effect of its
judgments on fundamental issues of human rights in the
interests of legal certainty and the due administration of
justice. This approach was also prompted, at least in part, by
the fact that it interprets the Convention in the light of
present-day conditions which is analogous to one aspect of
the interpretive approach of this court to the Constitution of
Ireland (to which I refer later). In Marckx v. Belgium [1979]
2 E.H.R.R. 330 at para. 58 (a case which condemned a
Belgian law because it wrongly deprived children born out of
wedlock of inheritance rights) the court, having cited the
caselaw of the Court of Justice of the European Communities
stated at p. 353:"The European Court of Human Rights interprets the
Convention in the light of present-day conditions but it is not
unaware that differences of treatment between 'illegitimate'
and 'legitimate' children, for example in the matter of
patrimonial rights, were for many years regarded as
permissible and normal in a large number of Contracting
[2006]4 I.R.
121S.C.
States (see, mutatis mutandis, para. 41 above). Evolution
towards equality has been slow and reliance on the
Convention to accelerate this evolution was apparently
contemplated at a rather late stage. Having regard to all
these circumstances, the principle of legal certainty, which is
necessarily inherent in the law of the Convention as in
Community Law, dispenses the Belgian State from reopening
legal acts or situations that antedate the delivery of the
present judgment. Moreover, a similar solution is found in
certain Contracting States having a constitutional court: their
public law limits the retroactive effect of those decisions of
that court that annul legislation." (emphasis added).
Even though the European Court of Human Rights
condemned the Belgian law because it breached the
fundamental rights of the applicant because of a restriction
on her inheritance rights as a child born outside of wedlock,
it found it not only acceptable but necessary to limit the
retrospective effect of its decision in the interests of a fair
and coherent administration of justice rather than permit it
to be distorted by the abstract concept of absolute
retrospectivity. In doing so it followed the norms of
constitutional adjudication in other European countries.
India
The Supreme Court of India, in addressing a similar
issue after having declared a statute invalid, stated in Orissa
Cement Ltd. v. State of Orissa [1991] Supp. (1.) S.C.C. 430:"The declaration regarding the invalidity of a provision and
the determination of the relief that should be granted in
consequence thereof are two different things and, in the
latter sphere, the Court has, and must be held to have, a
certain amount of discretion. Once the principle that the
Court has a discretion to grant or decline a refund is
recognised, the ground of which such a discretion should be
exercised is a matter of consideration for the Court having
regard to all the circumstances of the case. The Court can
grant or restrict the relief in a manner most appropriate to

the situation before it in such a way as to advance the
interests of justice" (emphasis added).
It is worth noting that the Supreme Court of India
deduced its inherent power to restrict the retrospective
effect of its judgments declaring a statute to be
unconstitutional in circumstances where article 13.1 of the
Constitution of India, under the heading of "Laws
inconsistent with or in derogation of the fundamental rights",
provides that laws in force "immediately before the
commencement of this Constitution, insofar as they are
inconsistent with the provisions of this part, shall, to the
extent of such inconsistency be void" and goes on in para. 2
of that article to state that "The State shall not
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make any law which takes away or abridges the rights
conferred by this Part and any law made in contravention of
this clause shall, to the extent of the contravention, be void".
It is interesting to note a substantial correspondence
between the provisions of article 13.1 and 2 of the Indian
Constitution and Article 15.4 and 50.1 of the Irish
Constitution and that the Indian Constitution is more explicit
as to the void nature of the legislation in question.
It is also of interest that the Indian Supreme Court, in
exercising its constitutional jurisdiction, like other
jurisdictions, differentiated between the notions of voidab
initio and the judicial effects, in particular retrospective
effect, of its judgments on such issues. It is true that the
Indian Supreme Court, in adopting this approach, called in
aid the otherwise unrelated article 142 of the Indian
Constitution which enables the court to "make such order as
is necessary for doing complete justice in any Court or
matter pending before it". Nonetheless it is clear that the
Indian Supreme Court felt it necessary to derive from this
article an implied power to limit retrospective effect in order
to bring certainty and coherence to the administration of
justice notwithstanding that its Constitution expressly

provided that unconstitutional enactments were void and not
just voidable.
United States
In the United States the Supreme Court in addressing
both the retrospective and prospective effects of its
judgments on such issues was not, as Henchy J. pointed out
in Murphy v. The Attorney General [1982] I.R. 241
encumbered by the kind of provisions to be found in Articles
15.4 and 50.1. Nonetheless, as regards the general principle,
he went on to cite with approval from the opinion of the
United States Supreme Court in Chicot County Drainage
District v. Baxter State Bank (1939) 308 U.S. 371 at p. 374
the following passage:"The courts below have proceeded on the theory that the
Act of Congress, having been found to be unconstitutional,
was not a law; that it was inoperative, conferring no rights
and imposing no duties, and hence affording no basis for the
challenged decree. Norton v. Shelby County (1886) 118 U.S.
425 at p. 442; Chicago, I & L. Rly. Co. v. Hackett (1931) 228
U.S. 559 at p. 566. It is quite clear, however, that such broad
statements as to theeffect of a determination of
unconstitutionality must be taken with qualifications. The
actual existence of a statute, prior to such a determination,
is an operative fact and may have consequences which
cannot justly be ignored. The past cannot always be erased
by a new judicial declaration. The effect of the subsequent
ruling as to invalidity may have to be considered in various
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aspects - with respect to particular relations, individual and
corporate, and particular conduct, private and official.
Questions of rights claimed to have become vested, of
status, of prior determinations deemed to have finality and
acted upon accordingly, of public policy in the light of the
nature both of the statute and of its previous application,
demand examination. These questions are among the most
difficult of those which have engaged the attention of courts,

state and federal, and it is manifest from numerous decisions
that an all-inclusive statement of a principle of absolute
retroactive invalidity cannot be justified" (emphasis added).
Although the United States Supreme Court was not
governed or encumbered by the provisions of Articles 15 or
50, it recognised that even where in principle a statute was
unconstitutional and not law, it nonetheless was compelled,
in the interests of legal certainty, to engage in the complex
exercise of balancing the competing considerations of a law
being void and limitations on absolute retrospectivity.
The caselaw of the United States Supreme Court in
relation to criminal cases was developed in Linkletter v.
Walker (1964) 381 U.S. 618 in which the court drew the line
or limit on retrospectivity to cases in which judgments of
conviction were not yet final so that only persons in those
situations could rely, retrospectively, on the subsequent
decision. In Tehan v. Shott (1966) 382 U.S. 406 the United
States Supreme Court reaffirmed the fundamental principle
set out in Linkletter v. Walker that the application of a rule
against absolute retrospectivity in the constitutional area
"where the exigencies of the situation require such an
application" posed "no impediment - constitutional or
philosophical". Insofar as there has been judicial debate on
this issue in the United States Supreme Court it has focused
not so much on the existence of such a rule but rather to
what extent there may be exceptions, if any, to it in
particular circumstances. The United States jurisprudence
was further developed in subsequent caselaw including
Stovall v. Denno (1967) 338 U.S. 293 but the current
position is summed up in the Annotated Constitution
prepared by the Congressional Research Service at the
Library of Congress which states at p. 685:"The Court has now drawn a sharp distinction between
criminal cases pending on direct review and cases pending
on collateral review. For cases on direct review, 'a new rule
for the conduct of criminal prosecutions is to be applied
retroactively to all cases, State or Federal, pending on direct
review or not yet final' ( Griffith v. Kentucky (1986) 479 U.S.
314) Thus, for collateral review in federal Courts of state

courts criminal convictions, the general rule is that 'new
rules' of
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constitutional interpretation, announced after a
defendant's conviction has become final will not be applied."
Thus applications forhabeas corpus based on a judicial
decision subsequent to a conviction becoming final and not
otherwise under direct appeal or review fall into the category
of collateral review and therefore not entitled to rely on "new
rules" of constitutional interpretation. According to the
Annotated Constitution:"The only exceptions are for decisions placing certain
conduct for defendants beyond the reach of the criminal law,
and for decisions recognising a fundamental procedural right
without which the likelihood of an accurate conviction is
seriously diminished. ( Teague v. Lane (1988) 489 U.S.
288.)."
Canada
In Canada s. 52.1 of the Canadian Constitution Act
1982 has a substantial correspondence to Article 50 of our
Constitution in that it provides that any law:- " that is
inconsistent with those provisions is, to the extent of such
inconsistency, of no force or effect".
As counsel for the respondent has pointed out the
Canadian Supreme Court has, notwithstanding those
provisions, asserted a jurisdiction to suspend a declaration of
unconstitutionality and apply temporal limitations limiting or
restricting altogether its retrospective effect. In R. v. Bain
[1992] 1 S.C.R 91, which condemned aspects of the jury
selection system, the court suspended its declaration for
some six months.
In R. v. Wigman [1987] 1 S.C.R. 246 the Canadian
Supreme Court held that a decision determining the
invalidity of a statute on unconstitutional grounds could not
be relied upon in criminal cases previously decided which
were not still pending before the courts and which had been
finally decided. In that case the court stated at p. 257:"Finality in criminal proceedings is of the utmost importance
but the need for finality is adequately served by the normal
operation ofres judicata: a matter once finally judicially
decided cannot be relitigated. Thus a person convicted
will not be able to reopen his or her case, unless, of course,
the conviction is not final. In the Reference re Manitoba
Language Rights, the Court observed thatres judicata
would even preclude the reopening of cases decided by the
courts on the basis of constitutionally invalid laws. Thisres
judicata principle would apply with at least as much force to
cases decided on the basis of subsequently overruled
caselaw."
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Comment
The foregoing caselaw highlights the fact that other
constitutional courts with similar or analogous powers to
review the constitutionality or validity of legislation,
including where the judicial decision in principle means that
the legislative act was void ab initio, have found that the
notion of complete or absolute retrospectivity is inherently
incompatible with the broader notions of legal certainty and
justice in an ordered society. In short, even allowing for sui
generis aspects of each country's system, the cases
demonstrate that limitations on retrospectivity in such
circumstances is generally consistent with the norms of
constitutional adjudication.
Some other legal systems ensure, in different ways,
that such an eventuality could not arise such as where a
constitutional interpretation is binding only inter partes and
does not have ergo omnes, or general effect. Others make
express provision which permit courts, having regard to all
the circumstances of the case, to make prospective rulings
only (ex nunc) or to postpone to a later date the effects of a
finding of invalidity on constitutional grounds (e.g. Germany,

South Africa).
The question of retrospectivity in the form raised here
is one which is material to all legal systems. The fact is that
at no stage during the course of the hearing of this case was
the court's attention drawn to any system of justice in which
a finding that a law is unconstitutional, even where this is
deemed to be so ab initio, meant that previous and final
judicial decisions based on such a law must inevitably be
considered unlawful and of no effect in law. I am not aware
of any legal system that does so.
I will now turn to the particular constitutional aspects
of this case.
The Constitution and retrospectivity
Before addressing the caselaw of this court that is
relevant to the issue in this case I would like to make some
broader observations which relate to the constitutional
context in which the issue falls to be decided.
There are two substantive provisions of the
Constitution according to which a statute may be adjudged
unconstitutional. Firstly, there is Article 15.4 which provides
that the Oireachtas should not enact any law which is in any
respect repugnant to the Constitution or any of its provisions
and goes on to provide, at Article 15.3.2, that "Every law
enacted by the Oireachtas which is in any respect repugnant
to this Constitution shall be invalid". It is under this
provision that an Act enacted by the Oireachtas after the
coming into operation of the Constitution may be declared
invalid.
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126S.C.
Secondly, there is Article 50 of the Constitution which
is the provision pursuant to which a law enacted prior to the
coming into operation of the Constitution may be declared
not to have continued in force after that date because that
Act, or some provision of the Act, is inconsistent with the
terms of the Constitution.

This Article provides:"Subject to this Constitution and to the extent to which they
are not inconsistent therewith, the laws in force in Saorstt
ireann 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"
(emphasis added).
Manifestly this Article was directed at maintaining continuity
with regard to the laws of the State which were in force prior
to the coming into effect of the Constitution.
It is relevant to note that the continued force in effect
of all such laws is subject to two elements:(a) the Constitution itself, and,
(b) the extent to which they are not inconsistent with that
Constitution.
The Irish language version is expressed in the same
terms.
The arguments advanced on behalf of the applicant
would seem to take account of one of these elements only as
if the provision read "Subject to the extent to which they are
not inconsistent with the Constitution" - the laws in force
shall continue to have effect.
It is a well established precept that when this court is
interpreting any provision of the Constitution it interprets
that provision in the context of the Constitution as a whole.
The Constitution does not of course expressly say that but it
is the logic of judicial interpretation which has consistently
been applied by this court. It is the teleological approach - a
universally recognised method of interpreting constitutional
and other legal norms.
In any event, the established interpretive approach of
this court means that the ambit and effect of the provisions
of Article 50.1, like any other Article, fall to be considered
within the rubric and scheme of the Constitution as a whole.
This involves considering the objectives, principles and
provisions of the Constitution and not just those found
exclusively within the ambit of Article 50.1 (or Article 15.4).
For present purposes, we are concerned with a pre1937 statute, the Criminal Law Amendment Act 1935. In
Murphy v. The Attorney General [1982] I.R. 241 Henchy J.
stated at p. 307 that "[s]uch a declaration under Article 50.1
amounts to a judicial death certificate, with the date of death
stated as the date when the Constitution came into
operation." It is a colourful statement, and I do not depart
from its import so far as it goes and
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127S.C.
will later point to the distinction, by way of qualification to
its import, which, inter alia, Henchy J. himself made as
regards the effects of such a declaration. In a certain sense it
is an abstract statement because the point was not relevant
to the point being decided in the case which concerned a
post-1937 statute. However, it is of course a correct
statement of the law that a pre-1937 statute found
inconsistent with the Constitution is deemed not to have
entered into effect on the coming into operation of the
Constitution. It is to be sodeemed since in a certain sense it
is a form of legal fiction, a well known drafting device,
because the statute in question may have been alive and
kicking for 50 or more years as society generally and
hundreds or even thousands of individuals relied upon it and
had their affairs and circumstances ordered in accordance
with it. Again as Henchy J. at p. 315 pointed out, relying on a
quotation, "The statue has taken its shape and can never go
back to the quarry."
It is important, therefore, to bear in mind that there
are judicial dicta, of Henchy J. and others, which distinguish
the retrospective effects of a decision from a declaration as
such that an Act is unconstitutional ab initio (or inapplicable
as and from the coming into force of the Constitution in
1937). I leave these aside for later detailed consideration in
order to first consider the implications for the constitutional
order if one were to give effect to the approach adopted by
counsel for the applicant, namely that any case previously
decided on foot of an Act found to be unconstitutional is

itself void and of no effect.
Because the courts may only address interpretive
issues as they arise in cases before them (as a consequence
of which the Constitution is interpreted incrementally over
time) it means that the unconstitutionality of an Act may for
the first time be decided many decades after its enactment.
The Act will be deemed to have been void from the date of
its enactment, or a pre-1937 Act to be ineffective from 1937,
even though all actors in society may have presumed or
assumed that the Act was lawful and effective and acted
accordingly, including those disadvantaged by its operation.
Citizens and State institutions will have ordered their affairs
and established relationships and rights based on the law in
force.
The applicant's submission that decisions in cases
finally determined in the meantime pursuant to the
impugned Act be considered to be null and void is not a
static proposition. If valid, it applies equally, if and when, a
pre-1937 Act is found in 10 or 30 or more years' time to be
inconsistent with the Constitution. Then everything done
under that Act over a span of 100 years would have to be
treated as void and unlawful.
Such an absolute logic of pure retroactivity would lead
to all the vicissitudes which the common law system and the
other systems referred to above eschewed by identifying
doctrines and rules limiting the
[2006]4 I.R.
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retrospective effect of new precedent in respect of cases
already finally decided including where a law is declared
invalid ab initio.
In Murphy v. The Attorney General [1982] I.R. 241,
O'Higgins C.J., although he was in a minority as to his
specific conclusions, correctly painted the effects of
unlimited or absolute retroactivity and observed at p. 297:"This in turn would mean that all actions and conduct
directed or permitted by such a law would be deprived of all

legal authority. Such actions and conduct may have involved
an interference with constitutional rights, the prosecution,
conviction and punishment of citizens for offences created
by the law in question, the expenditure of public monies or
the encouragement of innocent people to enter into
obligations and to accept liabilities of a permanent nature.
All of these various activities and the people involved in
them would lose all legal protection and authority - the
various actions taken emerging suddenly as serious wrongs
against individuals and society and the persons who took
them standing culpable and amenable before the law."
Certainly, issues concerning the constitutionality of statutes
are on a plane higher than the mere common law. They
concern questions fundamental to the rule of law, the
protection of rights and the very framework within which, in
the words of the Preamble to the Constitution, "true social
order attained". Normally those fundamental constitutional
concepts, such as the rule of law, individual rights, justice
and a social order based on that rule of law blend together
so that the principles of constitutional justice to be applied to
resolve issues may be readily deduced. On other occasions
some of those considerations may be competing or even
conflicting ones, where the courts have to balance those
different interests so as to do justice within the framework of
the Constitution.
This is the task conferred on constitutional courts.
In this instance one may say in broad terms that there
is a competing interest between the claim by the applicant
that he stands convicted under a law which has
subsequently been found to be inconsistent with the
Constitution as from 1937, and the interests of justice,
including the rights of the victim, where he was otherwise
lawfully convicted of unlawful carnal knowledge of a fifteen
year old girl, in circumstances where, as his counsel
acknowledges, the conviction and sentence were not tainted
by any want of fairness or injustice.
Thus the effect of absolute retroactivity for which the
applicant argues in a sense raises competing considerations
which the court has to address having regard to the

provisions generally of the Constitution and what Henchy J.
alluded to as transcendent constitutional considerations, the
public interest, the common good and social order.
[2006]4 I.R.
129S.C.
In McMahon v. Attorney General [1972] I.R. 69 this
court found that certain provisions of the Electoral Act 1923
guaranteeing a secret ballot in Oireachtas elections were
inconsistent with the Constitution because of the manner in
which the ballot paper and its counterfoil were numbered. In
so finding Dlaigh C.J., who delivered the majority
judgment, observed at p. 111:"In doing so I should note that it has been no part of the
plaintiff's case, either in this Court or in the High Court, that
the validity of the last or any previous election has been, or
can be, affected by the irregularity of which he has
complained in these proceedings."
Although neutral on that question the statement could
be said, as the authors of J.M. Kelly, The Irish Constitution
(Butterworths, 4th ed., 2003) have said, to contain some
implicit assurance that this would not be the case. In any
event no proceedings were ever brought challenging the
legality of the previous or earlier elections. One could
envisage a range of hypothetical counter arguments to such
a contention but assuming, for the sake of argument, that
the electoral law provisions were to be considered to be of
no effect since 1937, then as a matter of abstract logic there
would be no Oireachtas validly in being to propose a curative
amendment to the Constitution or to call a new election in a
manner consistent with the provisions of the Constitution.
Suffice it to say for the moment that a court addressing such
an issue would perforce have to look at the Constitution as a
whole in order to consider whether, in its terms, it intended
such an effect or whether it permitted or required some
exception or restriction on absolute retrospectivity. (Later in
de Burca v. Attorney General [1976] I.R. 38, O'Higgins C.J.

was, in an obiter dictum, dismissive of any retrospective
consequences deriving from that case in the overriding
interests of an ordered society.)
There is another aspect of the Constitution and
constitutional interpretation which highlights the amplitude
of the issue raised in this case. In Sinnott v. Minister for
Education [2001] 2 I.R. 545 I refer at p. 680 to the view that
the Constitution may be viewed as a living document "which
falls to be interpreted in accordance with contemporary
circumstances including prevailing ideas and mores". This
was a reference to those provisions of the Constitution which
might be said to have a dynamic quality of their own where
they refer to concepts involving standards and values such
as "personal rights", "the common good" and "social justice"
I cited Walsh J. in McGee v. Attorney General [1974] I.R. 284
at p. 319 where he stated: "It is but natural that from time to
time the prevailing ideas of [prudence, justice and charity]
may be conditioned by the passage of time; no
interpretation of the Constitution is intended to be final for
all time". Similarly in The State (Healy) v. Donoghue [1976]
I.R. 325
[2006]4 I.R.
130S.C.
O'Higgins C.J. observed at p. 347 that " rights given by
the Constitution must be considered in accordance with the
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". It is entirely
conceivable therefore that an Act found to be
unconstitutional in this, the 21st century might well have
passed constitutional muster in the 1940s or 50s. It would be
impossible and absurd for the court to inquire into and
identify the point in time when society could have been
deemed to have evolved so as to call in question the
constitutionality of an Act. The court can decide the issue
only on the basis of the facts as it finds them when a case is

decided. It would be equally absurd to consider in such
circumstances a constitutional invalidity referable to present
day mores, irrespective of whether the Act was pre- or post1937, that all cases finally decided pursuant to it were
nothing and of no effect because of the statute being
deemed void ab initio, when conceivably it might have been
considered valid in the 1950s or later.
Absolute retroactivity based solely on the notion of an
Act being void ab initio so as to render any previous final
judicial decisions null would lead the Constitution to have
dysfunctional effects in the administration of justice. In the
area of civil law it would cause injustice to those who had
accepted and acted upon the finality of judicial decisions.
Rights which had become vested in third parties as a
consequence of such decisions would be put in jeopardy. The
application of a principle of absolute retroactivity consequent
upon a declaration of unconstitutionality of an Act in the field
of criminal law would render null and of no effect final
verdicts or decisions affected by an Act which at the time
had been presumed or acknowledged to be constitutional
and otherwise had been fairly tried. Such unqualified
retroactivity would be a denial of justice to the victims of
crime and offend against fundamental and just interests of
society.
In addition to causing injustice it would undermine one
of the fundamental objectives of the administration of
justice, namely finality and certainty in justiciable disputes.
As Hamilton C.J. observed in Greendale Developments Ltd.
(No. 3) [2000] 2 I.R. 514 at p. 527: "The finality of
proceedings both at the level of trial and, possibly more
particularly, at the level of ultimate appeal is of fundamental
importance to the certainty of the administration of law and
should not lightly be breached".
In my view when an Act is declared unconstitutional a
distinction must be made between the making of such a
declaration and its retrospective effects on cases which have
already been determined by the courts. This is necessary in
the interests of legal certainty, the avoidance of injustice and
the overriding interests of the common good in an ordered

society.
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131S.C.
Such a distinction is consistent in my view with the
basic norms of constitutional adjudication and is supported
by judgments and judicial dicta in the caselaw of this court,
to which I will now turn.
Irish caselaw
The judicial dicta and conclusions in cases which have
come before this court and which touch on the question of
the retrospective effect of judicial decisions condemning a
law for unconstitutionality in my view, support the principle
of limited rather then complete or absolute retrospectivity.
It is true that the court has not had to address the
issue in the stark and direct terms in which it has been
presented in this case. As the authors of J.M. Kelly, The Irish
Constitution (Butterworths, 4th ed., 2003) perceptively
observe at p. 895: "The question of the time from which a
law, which has been declared inconsistent with or invalid
under the Constitution, is to be considered a nullity, and the
closely-related question of the retroactive potential of such a
declaration, are matters which for many years escaped
scrutiny altogether and in the last 30 years or so have only
been even partially explored".
I note in passing that the authors themselves identify
the distinction between the question of time from which a
law is to be considered a nullity and the other, closely
related, question of retroactive effect. I would also recall that
the court can only deal with questions as they are posed and
the issue in this case has not heretofore arisen in such a
direct form as in this case, notwithstanding the range of Acts
which have over the decades been declared
unconstitutional. Indeed counsel could not refer to any case
in the nature of a later collateral attack on a finally decided
case ever having been brought. Perhaps the fact that no
such issue in that form has arisen reflects the professional

foresight of lawyers as to the prospects of success in the
light of their perception of the meaning and effect which the
court was likely to give to the Constitution as a whole.
Nonetheless, it is not I think without significance that
in those cases in which retrospectivity did arise there was
never a finding of unrestricted retrospectivity of the kind
argued for by the applicant in this case. On the contrary in
each of the cases, for one reason or another, retrospectivity
was considered to be limited.
de Burca v. Attorney General
In de Burca v. Attorney General [1976] I.R. 38 the
plaintiff sought and obtained a declaration that certain
provisions of the Juries Act 1927 were
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132S.C.
inconsistent with the provisions of the Constitution,
essentially on the ground that they effectively excluded
women from sitting on juries in criminal trials and that that
exclusion was based on sex alone. Towards the end of his
judgment in that case, O'Higgins C.J. acknowledged that the
implications of such a finding of unconstitutionality for the
validity of the thousands of criminal jury trials which had
been held since the enactment of the Constitution in 1937
caused him some concern. He pointed out that each jury had
been fairly drawn from a panel all of whose members were
eligible to be on the panel so that there could be no
constitutional frailty. He acknowledged the fact may have
been that the panel was wrongly restricted, or could have
been challenged, but went on to state at p. 63:"However, this does not alter the fact that the trial was a
trial by jury and no person served on such juries who was not
eligible. In my view, an irregularity has taken place in the
manner in which citizens have been called to jury service - in
the same way as an irregularity took place in the manner in
which ballot papers were numbered for parliamentary
elections up to the decision in McMahon v. Attorney
General . In McMahon's case the Courts were not asked to

entertain any suggestion that such irregularity invalidated
previous elections nor, in my view, could such a submission
have been successfully made. The overriding requirements
of an ordered society would invalidate such an argument. In
this instance, the same considerations apply" (emphasis
added).
Although that view was obiter since an issue of retroactivity
did not really arise in that case, I think O'Higgins C.J. was
entirely correct in saying that the problem nonetheless had
to be analysed from the point of view of a coherent system
of justice in an ordered society. In those observations
O'Higgins C.J. made two points concerning retrospective
effect. The first was peculiar to the particular case, namely,
that whatever constitutional frailty attached to the manner
of composing the jury panel, those who actually were on it
were lawfully eligible to be on it. Walsh J. made largely the
same point in his judgment, in a perhaps more direct way,
when he said at p. 72:"If all the juries that were empanelled in the past and tried
cases and gave verdicts were empanelled in accordance with
the provisions of the Act, it means that nobody served on
any of these juries who was not entitled by law to do so."
Walsh J. certainly did not take the view that the court's
declaration that the Act of 1927 was not law since 1937
retrospectively undermined its application to the selection of
juries in the meantime. Jurors empanelled under an Act were
nonetheless lawfully entitled to act as jurors. Clearly, he
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133S.C.
did not view the application of the Act in previous cases as
null and of no effect.
The second point of O'Higgins C.J. was of more general
application, that is to say the need to subject the question of
retroactivity to broader constitutional considerations such as
the overriding requirements of an ordered society. This he
saw as being relevant not only to de Burca v. Attorney
General [1976] I.R. 38 but more generally, such as in a case

like McMahon v. Attorney General [1972] I.R. 69, where the
tenet of absolute retrospectivity would not be a valid basis
for calling in question the validity of all previous Oireachtas
elections consequent upon the finding in that case.
The State (Byrne) v. Frawley
The other members of the court in de Burca v. Attorney
General [1976] I.R. 38 were silent as to the question of
retrospectivity but that issue was to be explicitly raised in
the case which followed on from de Burca v. Attorney
General , that is to say The State (Byrne) v. Frawley [1978]
I.R. 326.
Henchy J., who delivered the majority judgment of the
court was quite critical of and disagreed with the point made
by O'Higgins C.J. and Walsh J. in de Burca v. Attorney
General [1976] I.R. 38, to the effect that juries selected from
a jury panel composed of persons who were lawfully eligible
under the Act of 1927 to be on the panel escaped
constitutional frailty notwithstanding that the exclusion of
women meant the relevant provisions of the Act were
inconsistent with the Constitution. He also described the
dicta of O'Higgins C.J. and Walsh J. asobiter, as indeed they
were, which explains the silence of the other judges on the
question of retrospectivity in de Burca v. Attorney General .
There may be some significance in the fact that
despite his pointed criticism of the first point of O'Higgins C.J.
in de Burca v. Attorney General [1976] I.R. 38 he made no
criticism of the second point namely that in considering
retrospective effect of such judgments the overriding
requirements of an ordered society must enter into the
equation.
The State (Byrne) v. Frawley [1978] I.R. 326 was a
case in which the applicant sought an order of habeas
corpus pursuant to Article 40 of the Constitution on the
grounds that his conviction in a criminal trial which took
place in the immediate aftermath of de Burca v. Attorney
General [1976] I.R. 38 was invalid and of no effect since the
jury had been selected under the Act of 1927 that was
declared to have been inconsistent with the Constitution and
therefore consequently, there was no such law in being at

the time of his trial. This argument was rejected by the court,
as it had been
[2006]4 I.R.
134S.C.
by Walsh J. and O'Higgins C.J., for different reasons in
theirobiter dicta in de Burca v. Attorney General itself.
I think counsel for the applicant is correct in submitting
that the particular ratio upon which the court based its
decision to dismiss the application in The State (Byrne) v.
Frawley [1978] I.R. 326 does not apply to the circumstances
of this particular case. As Henchy J. pointed out at p. 349,
the applicant's position in that case was "uniquely different
from that of other persons convicted by a jury selected
under the provisions of the Act of 1927". Without going into
the particular facts of the applicant's position, suffice it to
say that Henchy J. in dismissing the application concluded at
p. 350: "[h]aving by his conduct led the Courts, the
prosecution (who were acting for the public at large) and the
prison authorities to proceed on the footing that he accepted
without question the validity of the jury, the prisoner is not
now entitled to assert the contrary". Three other members of
the court concurred with Henchy J.
Although the court, in the majority judgment, clearly
considered that it was not necessary to address the general
question of retrospectivity given the particular facts of the
case it nonetheless thought it important enough to state,
even by way of obiter dicta, that there may be limitations on
the retrospective effect of a declaration that an Act is
unconstitutional, particularly as concerns previous decided
cases. At p. 349 Henchy J. had this to say:"As the United States Supreme Court has held in a number
of cases, it does not necessarily follow that court orders lack
on an unconstitutional statute."
Notwithstanding the allusion to a similar approach in the
United States it is clearly intended to be a statement, albeit
obiter, of the position in Irish law. I have no doubt it is a

correct one.
That statement is underscored in the concluding
paragraph of the judgment of the majority which states at p.
350:"In basing this judgment on the special circumstances of
this case, I do not wish to imply that the prisoner would be
entitled to succeed in his claim if those particular
circumstances did not exist."
I think these dicta can only have been intended as a shot
across the bow of anyone contemplating challenging the
"thousands" of jury criminal trial verdicts which were finally
determined prior to the decision in de Burca v. Attorney
General [1976] I.R. 38. If it was, it was an effective one. As
the historical record shows, however tempting it might
superficially have seemed, there is no report of a single
challenge to a jury verdict in a criminal trial which took place
prior to de Burca v. Attorney General notwithstanding that
provisions of the Act of 1927 under which they were
[2006]4 I.R.
135S.C.
constituted were deemed never to have continued as law
after 1937 by virtue of the court's declaration in de Burca v.
Attorney General .
Murphy v. The Attorney General
In this case the court declared that certain taxation
provisions of the Income Tax Act 1967 were voidab initio and
therefore never had the effect of law. Even though this case
did not involve the retrospective effect of that declaration on
a case already decided, the court nonetheless restricted the
retrospective effect of its declaration so as to deny to the
plaintiffs the right to recover the income tax levied under an
Act, deemed never to have had the effect in law, in respect
of the years prior to the tax year 1978-9, the year in which
they initiated their proceedings challenging the
constitutionality of the provisions. They were confined to
recovering the unconstitutionally levied taxes in respect of
two tax years only, 1978-9 and 1979-80. It was also held by
the court that the decision could not have retrospective
effect for the benefit of any other taxpayer except for those,
if any, who had proceedings pending before the courts with a
similar claim. As Henchy J. mentioned, it was understood
that there were no such claims pending. The decision had of
course prospective effect because the taxes in question
could no longer be levied as and from the date of the
decision.
Henchy J. was at pains to reiterate what he stated in
his majority judgment in The State (Byrne) v. Frawley
[1978] I.R. 326 when he came to give judgment in Murphy v.
The Attorney General [1982] I.R. 241. Having made the
statement at p. 307, so relied upon by counsel for the
applicant, that a declaration under Article 50.1 "amounts to
a judicial death certificate" from the date when the
Constitution came into operation, he immediately qualified
the effect of such a declaration in the following terms at p.
307:"While a declaration under Article 50.1, does not arise in
this case, it is of importance to note that, notwithstanding a
judicial declaration of the demise in 1937 of a statute or a
statutory provision, it may be that, because of a person's
conduct, or because of the irreversible course events have
taken, or for any one of a number of other reasons, what was
done on foot of the condemned statute or statutory provision
nullification or for other legal redress: see the decision of this
Court in The State (Byrne) v. Frawley . In other words, a
declaration under Article 50.1, that a law had lost validity in
1937 on constitutional grounds does not necessarily carry
with it the corollary that what has been done after 1937 in
pursuance of that statutory provision will equally be
condemned for lack of validity. Once a finding is made under
Article 50.1, that, for want of consistency with the
Constitution, a law ceased
[2006]4 I.R.
136S.C.
in 1937 to have the force of law, a declaration of such
invalidity is a constitutional imperative. Whereas, the
consequences arising from having acted on foot of or in
pursuance of the statutory provision which is thus
retrospectively been found to have lost the force of law in
1937 may, in certain circumstances, be held to be beyond
the reach of legal action based on that invalidity" (emphasis
added).
What Henchy J. clearly had in mind was a distinction to be
drawn between the objective rule according to which a pre1937 statute found to be inconsistent with the Constitution
must be deemed not to have had effect after its coming into
operation and the retrospective consequences of such a
finding as concerns matters previously done over the years
when the statute was de facto in force. This distinction has,
in my view, even greater force where it concerns cases
previously finally determined before the courts.
This distinction is also made by Griffin J. in his
judgment in the same case when he stated, at p. 327:"In my opinion, however, reliance cannot be placed on these
cases for the purpose of interpreting the relevant provisions
of our Constitution insofar as the time from which a statute,
held by our Courts to be invalid, is to be construed (as
distinct from the question as to what has been the effect of
what may have been done under and in pursuance of the
condemned statute)" (emphasis added).
At p. 328 Griffin J. went on to state:"The effect of a declaration under Article 50 is not that the
condemned provision has ceased to be in force but that, as
of the date when the Constitution came into operation, it
was no time thereafter in force. But, as Mr. Justice Henchy
has pointed out in his judgment, the fact that a provision
was held to be no longer in force since 1937 does not
automatically carry the corollary that what has been done
under and in pursuance of that provision after the
Constitution came into force will necessarily be condemned
for lack of validity."
This reflects the view of this court in that case and runs
directly counter to any notion of complete or absolute

retrospectivity of decisions argued for by the applicant.
Henchy J. was to return to this theme at p. 314 of his
judgment in Murphy v. The Attorney General [1982] I.R.
241. After an erudite exposition as to why the Constitution
must be interpreted as requiring that an Act of the
Oireachtas found to be incompatible with it pursuant to
Article 15 must be treated as void ab initio he went on to
state:"But it is not a universal rule that what has been done in
pursuance of a law which has been held to have been invalid
for constitutional or other reasons will necessarily give a
good cause of action: see, for
[2006]4 I.R.
137S.C.
example, the decision of this Court in The State (Byrne) v.
Frawley . While it is central to the due administration of
justice in an ordered society that one of the primary
concerns of the Courts should be to see that prejudice
suffered at the hands of those who act without legal
justification, where legal justification is required, shall not
stand beyond the reach of corrective legal proceedings, the
law has to recognise that there may be transcendent
considerations which make such a course undesirable,
impracticable or impossible.
Over the centuries the law has come to recognise, in one
degree or another that factors such as prescription (negative
or positive), waiver, estoppel, laches, a statute of limitations,
res judicata, or other matters (most of which may be
grouped under the heading of public policy) may debar a
person from obtaining a redress in the courts for injury,
pecuniary or otherwise, which would be justiciable and
redressable if such considerations had not intervened
For a variety of reasons, the law recognizes that in certain
circumstances, no matter how unfounded in law certain
conduct may have been, no matter how unwarranted its
operation in a particular case, what has happened has
happened and cannot, or should not, be undone. The

irreversible progressions and bye-products of time, the
compulsion of public order and of the common good, the
aversion of the law from giving a hearing to those who have
slept on their rights, the quality of legality - even
irreversibility - that tends to attach to what has become
inveterate or has been widely accepted or acted upon, the
recognition that even in the short term the accomplished
fact may sometimes acquire an inviolable sacredness, these
and other factors may convert what has been done under an
unconstitutional, or otherwise void, law into an acceptable
part of the corpus juris.
In this judgment I deliberately avoid any general
consideration of the broad question as to when, and to what
extent, acts done on foot of an unconstitutional law may be
immune from suit in the Courts; I think experience has
shown that such constitutional problems are best brought to
solution, step by step, precedent after precedent, and when
set against the concrete facts of a specific case" (emphasis
added).
Although these dicta of Henchy J. in his majority judgment
may be considered as obiter notwithstanding their
contextual relevance to the nature of the issues arising in
Murphy v. The Attorney General [1982] I.R. 241, he has, in
thosedicta, emphatically rejected the notion that things done
or decided under a statute which has been subsequently
found to have been void and of no effect at the time
necessarily means that all that what was done or decided
previously must be considered invalid, null or of no effect.
[2006]4 I.R.
138S.C.
Having expressed the foregoing views he then went on
to deal with the precise question raised in Murphy v. The
Attorney General [1982] I.R. 241 which he expressed to be,
"Notwithstanding the invalidity ab initio of the condemned
sections, are taxes collected under them recoverable?".
He answered this question at p. 321 by stating, "In this

case, whether the claim be treated as one in quasi contract
or as one in equity, I would consider the enforceable cause
of action to have arisen at the beginning of the tax year
1978-9". In doing so he limited their right to recoupment to
two years only and held they had no right to recoup
unconstitutionally collected taxes of any previous years.
Among the reasons which led him to exclude complete
or absolute retrospectivity of a judicial decision on the
constitutionality of a statute were "the compulsion of public
order", "the common good", "the quality of legality - even
irreversibility" that attaches to that which has become
inveterate or has been widely accepted and acted upon. He
did not purport to set out all relevant factors but those which
he did echo the sentiments of O'Higgins C.J. in de Burca v.
Attorney General [1976] I.R. 38 when the latter spoke of
"the overriding requirements of an ordered society".
The court in Murphy v. The Attorney General [1982]
I.R. 241 limited the plaintiffs to recovering the income tax as
and from the year 1978-9, and not prior to that, because
that was the first year for which they effectively objected to
the flow of those taxes into the central fund. Henchy J.
reasoned at p. 318:- "Up to that year the State was entitled,
in the absence of any claim of unconstitutionality, to act on
the assumption that the taxes in question were validly
imposed and were liable to be expended for the
multiplicity of purposes for which drawings are made on the
central fund of the State". He concluded at p. 319 that any
taxpayer who allowed his P.A.Y.E. tax contribution to be
deducted every week for the whole tax year "without
bringing proceedings to assert the unconstitutionality of such
deductions, should (in the absence of exceptional and
excusing circumstances) be held barred from recovering the
sums unwarrantedly collected during that tax year". In
preventing the plaintiffs recovering some of the
unconstitutionally imposed taxes he acknowledged at p. 320
that "[t]he primary purpose of an order of restitution is to
restore thestatus quo, insofar as the repayment of money
can do so". That is, certainly the primary redress in a direct
action, which this was. However, he pointed out at p. 320:

"But when, as happened here, the State was led to believe,
by the protracted absence of a claim to the contrary, that it
was legally and constitutionally proper to spend the money
thus collected, the position had become so altered, the
logistics of reparation so weighted and distorted by factors
that it would be inequitable, unjust and unreal to expect
the State to make full restitution". I would add in passing
that this general approach
[2006]4 I.R.
139S.C.
was approved by Keane J. in McDonnell v. Ireland [1998] 1
I.R 134 at p. 160 (in a case in which a claim based on a
subsequent finding of unconstitutionality of a statute was
dismissed):- "I would also agree that, in any event, as was
made clear in Murphy v. The Attorney General the fact
that the provisions struck down were invalid ab initio does
not have, as a necessary consequence, the vesting of a
cause of action in the plaintiff".
The most relevant point is that this court in that case
limited the plaintiffs' rights to recover for past years,
notwithstanding the unconstitutionality of the statute, for
public policy reasons and to avoid the inequity and injustice
which a decision based solely on the single tenet of absolute
retrospectivity would bring about.
I think it is also important to note that Henchy J. found
support for his conclusion in that case by comparable
decisions from the United States and the European Court of
Justice. This was in support of the ratio of his decision which
was the majority view of the court. It was for that purpose
that he quoted with approval the passage, which I have cited
earlier in this judgment, from the decision of the United
States Supreme Court in Chicot County Drainage District v.
Baxter State Bank (1939) 308 U.S. 371 at p. 374. That
supports the principle of a clear distinction between a finding
that a statute is void ab initio by reason of its
unconstitutionality and the retrospective effects of such a
decision on other matters done and cases finally decided

before such a finding.
The court at p. 324 also saw in the caselaw of the
European Court of Justice "a cogent example of the principle
that what has been done or left undone under a
constitutionally invalid law may, in certain events, such as
the evolution of a set of circumstances which it would be
impossible, orunjust, or contrary to the common good, to
attempt to reverse or undo, have to be left beyond the reach
of full redressive legal proceedings " (emphasis added).
This was again an explicit acknowledgment by this court
that a judgment condemning a statute for being inconsistent
with or contrary to the Constitution does not mean that all
which was done or decided under that statute prior to the
decision on constitutionality is in all circumstances void and
of no effect. It is a principle which is, for the reasons
indicated in the various judicial dicta which I have cited,
consistent with the Constitution as a whole, the common law
dimension of our legal system and the legal systems of
many other countries in which the courts have the same or
an analogous power of judicial review of the validity of laws.
McDonnell v. Ireland
McDonnell v. Ireland [1998] 1 I.R. 134 was the case in
which the plaintiff forfeited his position in the Civil Service
under s. 34 of the
[2006]4 I.R.
140S.C.
Offences Against the State Act 1939 with effect from the
30th May, 1974, as a result of being convicted of
membership of the I.R.A. In July, 1991 in Cox v. Ireland
[1992] 2 I.R. 503 this court decided that s. 34 of the Offences
Against the State Act 1939 was unconstitutional. As a result,
the applicant in McDonnell v. Ireland brought proceedings
claiming that his purported dismissal was unconstitutional
and of no legal effect since the statute was void ab initio and
that he was entitled to damages for breach of his
constitutional rights including loss of income, pension and
gratuity entitlements. His claim was dismissed in the High

Court and dismissed unanimously on appeal to this court. I
have already cited Keane J.'s expression of agreement in his
judgment of the approach of Henchy J. in Murphy v. The
Attorney General [1982] I.R. 241. Although most, if not all,
of the judges expressed doubts concerning the nature and
import of his cause of action (and indeed whether he had
one at all), the court in general found that it could dispose of
the appeal by applying the statute of limitations. However, it
is the judgment of O'Flaherty J. in that case which I think is of
particular relevance to the issue in this case.
O'Flaherty J., having cited from the judgments of
Henchy and Griffin J.J. in Murphy v. The Attorney General
[1982] I.R. 241 went on to state at p. 143:"The correct rule must be that laws should be observed until
they are struck down as unconstitutional. Article 25.4.1 of
the Constitution provides that:
'Every Bill shall become and be law as on and from the day
on which it is signed by the President '
and that, unless the contrary is expressed, that law is
effective from that day forth. Following signature by the
President, a public notice is published in Iris Oifigiil stating
that the Bill has become law; (Article 25.4.2).
From that date, all citizens are required to tailor their
conduct in such a way as to conform with the obligations of
the particular statute. Members of society are given no
discretion to disobey such law on the ground that it might
later transpire that the law is invalid having regard to the
provisions of the Constitution. Every judge on taking office
promises to uphold "the Constitution and the laws"; the
judge cannot have a mental reservation that he or she will
uphold only those laws that will not someday be struck down
as unconstitutional. We speak of something as having "the
force of law". As such, the law forms a cornerstone of rights
and obligations which define how we live in an ordered
society under the rule of law. A rule of constitutional
interpretation, which preserves the distinct status of statute
law which, as such, is necessitated by the requirements of
an ordered society and
[2006]4 I.R.
141S.C.
by "the reality of situation" (to adopt Griffin J.'s phrase),
should have the effect that laws must be observed until
struck down as unconstitutional. The consequences of
striking down legislation can only crystallise in respect of the
immediate litigation which gave rise to the declaration of
invalidity. This is what occurred in Murphy v. The Attorney
General [1982] I.R. 241 as well as in Cox v. Ireland [1992] 2
I.R. 503."
This statement of the law I am quite satisfied is correct. It is
the logical and ineluctable application of the principles and
considerations set out in the judgment of this court in
Murphy v. The Attorney General and indeed other judicial
dicta which I have cited.
It follows from the principles and considerations set
out in the cases, which I have cited, that final decisions in
judicial proceedings, civil or criminal, which have been
decided on foot of an Act of the Oireachtas which has been
relied upon by parties because of its status as a law
considered or presumed to be constitutional, should not be
set aside by reason solely of a subsequent decision declaring
the Act constitutionally invalid.
The parties have been before the courts, They have, in
accordance with due process, had their opportunity to rely
on the law and the Constitution and the matter has been
decided. Once finality has been reached and the parties
have in the context of each case exhausted their actual or
potential remedies the judicial decision must be deemed
valid and lawful.
Save in exceptional circumstances, any other approach
would render the Constitution dysfunctional and ignore that
it contains a complete set of rules and principles designed to
ensure "an ordered society under the rule of law" in the
words of O'Flaherty J.
I am quite satisfied that the Constitution never
intended to visit on that ordered society the potential
unravelling of judicial decisions over many decades when a

particular Act is found unconstitutional solely on the
consideration of the ab initio principle to the exclusion of all
others.
Before coming to the general principle, which in my
view should apply, I should perhaps say, although it hardly
needs saying, that this could not affect the "primary
redress", referred to by Henchy J. in Murphy v. The Attorney
General [1982] I.R. 241, whereby the courts must, in a
direct challenge to an Act, declare it to be unconstitutional
where it so finds irrespective of the consequences. As Walsh
J. stated in de Burca v. Attorney General [1976] I.R. 38 at p.
72:- "if an infringement of the Constitution were to continue
long enough, the cost of correcting it might be great, but
that is not a reason for perpetuating it". That is the primary
redress. In a primary or direct action the question of
retrospective effect on a previous and finally decided case
does not arise.
[2006]4 I.R.
142S.C.
As I have made clear we are addressing here the
question of absolute or automatic retrospectivity on
previously decided cases since that is the essential premise
of the applicant's argument. If one is to qualify such
retrospective effect it goes without saying that it must be
done in a manner and to an extent which is consistent with
constitutional justice including the fundamental rights of
individuals. There is no doubt that where to draw the line in
limiting retrospective effect is a difficult question for courts.
One will not find a simple formula for all circumstances or all
classes of cases, even in those countries such as those which
I have mentioned, which make express provision for limiting
retrospectivity or in other words the temporal affects of
judgments. It is a complex question often resolved on a case
by case basis, as has been also pointed out in a number of
the cases of this court which have been referred to.
Justice Cardozo having raised a question as far back as

1921 as to where a line, limiting retrospectivity, might be
located expressed the view that such location would be
governed, inter alia, not "by the fetish of some implacable
tenet", but by considerations of "the deepest sentiments of
justice". I would agree and certainly not solely by an
implacable application of a tenet such as absolute
retrospectivity.
This is not just a modern approach. Cicero reports the
maxim "Summum ius summa iniuria" - variously translated
but classically: "the strictest application of the law is the
greatest injustice".
Conclusion
In the light of the considerations outlined above, the
judgments and dicta of this court to which I have referred, I
am satisfied that the Constitution permits, if not requires, a
distinction to be made between a declaration of invalidity of
an Act and the retrospective effects of such a declaration on
previous and finally decided cases.
There are transcendent constitutional reasons why a
declaration of constitutional invalidity as regards a statute
should not in principle have retrospective effect so as
necessarily to render void cases previously and finally
decided and determined by the courts, which reasons
include the interests of the common good in an ordered
society, legal certainty and the need to avoid the
incoherence and injustice which would be brought to the
system of justice envisaged by the Constitution if the
approach argued for were adopted.
I am reinforced in that view by the fact that such a
principled approach is consonant with the general principles
of constitutional adjudication and interpretation in other
legal systems generally but particularly in those where a
judicial declaration of invalidity of a law also applies ab initio.
[2006]4 I.R.
143S.C.
The general principle

In a criminal prosecution where the State relies in good
faith on a statute in force at the time and the accused does
not seek to impugn the bringing or conduct of the
prosecution, on any grounds that may in law be open to him
or her, including the constitutionality of the statute, before
the case reaches finality, on appeal or otherwise, then the
final decision in the case must be deemed to be and to
remain lawful notwithstanding any subsequent ruling that
the statute, or a provision of it, is unconstitutional. That is
the general principle.
I do not exclude, by way of exception to the foregoing
general principle, that the grounds upon which a court
declares a statute to be unconstitutional, or some extreme
feature of an individual case, might require, for wholly
exceptional reasons related to some fundamental unfairness
amounting to a denial of justice, that verdicts in particular
cases or a particular class of cases be not allowed to stand.
I do not consider that there are any grounds for
considering this case to be an exception to the general
principle. The applicant, like all persons who pleaded guilty
to or were convicted of an offence contrary to s. 1(1) of the
Act of 1935 had available a full range of remedies under the
law. They could have sought to prohibit the prosecution on
several grounds including that the section was inconsistent
with the Constitution. Not having done so they were tried
and either convicted or acquitted under due process of law.
Once finality is reached in those circumstances the general
principle should apply.
Before concluding I should make some brief
observations on the essentials of the decision the High Court
in this case.
The judgment of the High Court
In her decision in this case Laffoy J. focused on the
principle that any pre-1937 statutory provision inconsistent
with the Constitution shall not have force and effect as and
from the coming into operation of the Constitution in 1937.
She referred in particular to the obiter dictum of Henchy J.
that a declaration under Article 50.1 "amounts to a judicial
death certificate" as and from the coming into operation of

the Constitution.
She however then went on to observe at para. 6
"Apparently, there is no decided case on the effect of a
declaration that a pre-Constitution statute is inconsistent
with the Constitution". In so doing she acknowledged the
distinction between a declaration that a pre-1937 Act is
inconsistent with the Constitution and the effect of such a
declaration. As she pointed out the issue was considered by
this court in Murphy v. The Attorney General
[2006]4 I.R.
144S.C.
[1982] I.R. 241. However, I do not feel that she gave
sufficient consideration or weight to the words of Henchy J.
which, at the expense of repeating previous citations,
immediately following his phrase just quoted above he went
on to state at p. 307:"While a declaration under Article 50.1, does not arise in
this case, it is of importance to note that, notwithstanding a
conduct or because of the irreversible course events have
court in The State (Byrne) v. Frawley ."
The State (Byrne) v. Frawley [1978] I.R. 326 it will be
recalled, was one in which the applicant, also sought an
order for habeas corpus on the grounds that his trial and
conviction had been fundamentally flawed because of a
previous declaration by this court that certain provisions of a
pre-1937 Act had been found to be inconsistent with the
Constitution. It is true, as I have already pointed out, that the
applicant was refused relief in circumstances based on the
facts of that case but Henchy J. also pointed out, in the
context of an application to set aside the criminal conviction
in that case that " it does not necessarily follow that court
orders lack binding force because they were made in
proceedings based on an unconstitutional statute".
Having referred to The State (Byrne) v. Frawley
[1978] I.R. 326 in Murphy v. The Attorney General [1982]
I.R. 241 Henchy J. then went on to say at p. 307:"In other words, a declaration under Article 50.1, that a law
had lost validity in 1937 on constitutional grounds does not
necessarily carry with it the corollary that what has been
done after 1937 in pursuance of that statutory provision will
equally be condemned for lack of validity. Once a finding is
made under Article 50.1, that, for want of consistency with
the Constitution, a law ceased in 1937 to have the force of
law, a declaration of such invalidity is a constitutional
imperative. Whereas, the consequences arising from having
acted on foot of or in pursuance of the statutory provision
which has thus retrospectively been found to have lost the
force of law in 1937 may, in certain circumstances, be held
to be beyond the reach of legal action based on that
invalidity."
Laffoy J. sought to distinguish the views expressed by
Henchy J. on limitations on the retrospective effect of a
declaration of invalidity by observing that in this case she
was not concerned with a civil form of legal
[2006]4 I.R.
A. v. Governor of Arbour Hill PrisonMurray C.J. Denham J.
145S.C.
redress such as for wrongful imprisonment. It appears that it
was for this reason that she did not consider or analyse the
broader constitutional considerations which may affect the
question of retrospective effect on cases already finally
decided, criminal as well as civil. Many of these
considerations have already been referred to in judicial dicta
cited elsewhere in this judgment. In adopting this approach it
appears to me that Laffoy J. conflated the questions of
declaration of inconsistency and the effect of such a
declaration, in particular as regards cases already finally
decided by the courts. It would appear that these
considerations may not have been addressed with the same

depth and breadth as they were by counsel in the appeal
before this court. For the reasons set out in this judgment I
am of the view that the approach adopted by Laffoy J. was
not the correct approach.
The above are the reasons for the order of this court
made on the 2nd June, 2006, in this case, namely that the
appeal be allowed on the grounds that the applicant's
detention must be considered to be lawful and accordingly
that he be re-arrested to serve the remainder of his
sentence.
Denham J.
This case raises the issue of the general application
retrospectively of a judicial decision declaring that a law is
invalid having regard to the provisions of the Constitution. I
am satisfied that there is no principle of retrospective
application generally of a declaration of unconstitutionality in
our jurisprudence. On the contrary, outside the litigation
which sought the declaration, declarations of
unconstitutionality have not been applied retrospectively.
While this has been the practice, the principle of law has not
to date been the subject of an express decision of the
Supreme Court.
The Constitution of the Irish Free State "was something
different . . . it derived from another line of thought", as
Kennedy C.J. wrote in the foreword to Leo Kohn,The
Constitution of the Irish Free State, (London, 1932). The
Constitution of the Irish Free State 1922 was a step toward
the independent State of Ireland. Subsequently, in the
Constitution of Ireland 1937 further new constitutional
foundations were laid. While the common law was retained,
in 1937 the organs of State were established and new
fundamental principles stated in the Constitution.
Many of the principles set out in the Constitution of
1937 were ahead of their time. It was a prescient
Constitution. Thus, the Constitution protected fundamental
rights, fair procedures, and gave to the superior courts the
role of guarding the Constitution to the extent of expressly
enabling the courts to determine the validity of a law having

regard to the provisions of the Constitution. Over the
succeeding decades international
[2006]4 I.R.
A. v. Governor of Arbour Hill PrisonDenham J.
146S.C.
instruments, such as the United Nations Charter and the
Universal Declaration of Human Rights, proclaimed
fundamental rights and fair procedures, and it became
established that in a democratic state constitutional courts
should have the power to protect fundamental rights,
including due process, even to the extent of declaring
legislation to be inconsistent with the Constitution and to be
null and void.
Ireland led the common law world in 1937 by expressly
stating in the Constitution that the jurisdiction of the superior
courts shall extend to the question of the validity of any law
having regard to the provisions of the Constitution. This,
perhaps more than any other aspect of the Constitution,
signalled the nature of the State, its divergence from the
system of government in the United Kingdom, and the
parallels which may be drawn with the Constitution of the
United States of America.
The power to review the constitutionality of legislation
expressly given by the Constitution to the superior courts
was a novel aspect of the Constitution in 1937. No such
power existed expressly elsewhere in common law
jurisdictions, such as the United Kingdom, Australia, or
Canada. While such a power existed in the United States of
America it was not expressly stated in the Constitution of the
United States, but rather it was found to be inherent by the
Supreme Court of the United States: Marbury v. Madison
(1803) 5 U.S. 137. Consequently, Ireland in 1937, led the
common law countries by giving such a power expressly to
the superior courts.
This power of review of the constitutionality of law by
the superior courts is an aspect of the separation of powers.
In this design of government the three great organs of state
(the legislature, the executive and the judiciary) were each

given constitutional powers and duties. There are checks and
balances upon the powers of each branch of government
which create a healthy tension between the three great
organs of state, so as to achieve a balanced government
which is to the advantage of the people.
One of the important powers given to the superior
courts is that of review of the constitutionality of law. The
judicial power of constitutional review is exercised carefully
by the courts, as may be seen from the jurisprudence which
has emerged in this State. Constitutional principles have
been developed which relate to the exercise of this power
and duty. Thus the presumption of constitutionality was
recognised. In Pigs Marketing Board v. Donnelly (Dublin) Ltd.
[1939] I.R. 413, Hanna J. stated 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."
[2006]4 I.R.
147S.C.
This principle was explained by O'Byrne J. in Buckley &
Others (Sinn Fin) v. Attorney General and Another [1950]
I.R. 67 at p. 80:" [it] springs from, and is necessitated by, that respect
which one great organ of the State owes to another."
Further, the concept was developed that a court
should not enter upon the question of the constitutionality of
a law unless it is necessary for the determination of the case
before it: The State (P. Woods) v. Attorney General [1969]
I.R. 385 at p. 390.
Also, it is an established principle that law remains
constitutional until it is declared to be unconstitutional. Law
is relied upon as valid and is the foundation upon which
society proceeds. Personal decisions and circumstances
proceed on that basis, institutional planning is organised on

that basis, and the government, including the Revenue
Commissioners, and the State, advance on the acceptance
that the law is valid.
In exercising the jurisdiction of determining the validity
of a law the date of the legislation is relevant. If it is a
statutory law post-1937 then Article 15 of the Constitution of
Ireland 1937 governs it and any declaration of
unconstitutionality renders it null and void ab initio, from the
date of the purported legislation. If it is a statutory law prior
to the Constitution of Ireland 1937 then Article 50 is
applicable and the law may be declared to be inconsistent
with the Constitution and not to have been continued in
force by the Constitution and, consequently, no matter what
the date of such legislation, it is deemed unconstitutional as
of 1937. Thus, in relation to both pre and post-1937
legislation, a law may be declared void which has been acted
upon for many years.
In relation to both types of legislation, both pre and
post-1937, no principle of retrospective application of
unconstitutionality has been developed. The precise detail of
the application of the judgment may be addressed in the
judgment itself, or by subsequent queries raised by a party
in relation to the judgment, or by subsequent cases.
There have been decisions which have touched upon
the issue of the application of a declaration of
unconstitutionality outside the case itself or related
litigation. In de Burca v. Attorney General [1976] I.R. 38 the
Supreme Court, on the 12th December, 1975, declared that
the provisions of the Juries Act 1927 to the extent that they
required a property qualification, were not consistent with
the Constitution and were not continued by Article 50 of the
Constitution. Further, that the provisions of the Juries Act
1927 to the extent that they extended exemptions from jury
service to all women, were not consistent with the
Constitution and were not continued by Article 50 of the
Constitution. However, this did not create an avalanche of
applications in respect of previous jury decisions. There was
no
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148S.C.
releasing of prisoners who had been found guilty and
convicted by such juries since 1937.
Nor was there a general retrospective application of
unconstitutionality in Murphy v. The Attorney General
[1982] I.R. 241. In Murphy v. The Attorney General this
court held that the provisions of sections 192 to 197 of the
Income Tax Act 1967, by providing for the aggregation of
earned incomes of married couples, and thus imposing upon
them tax at a higher rate, were repugnant to the
Constitution and invalid. On behalf of the government this
court was asked: (a) whether the impugned sections were
invalid ab initio or had only become invalid as and from the
date of the pronouncement of their invalidity by the High
Court or by the Supreme Court, and, (b) the extent of the
relief to which the plaintiffs were entitled in respect of tax
overpaid by them pursuant to the impugned sections. This
court held that (a) the effect of the decision of the court was
that the sections were invalidab initio and had never had the
force of law; (b) that the date from which the plaintiffs were
entitled to be repaid the sums collected from them by way of
tax invalidly imposed (which had been for years) was the
first day of the financial year immediately succeeding that in
which they had challenged the validity of the imposition of
the tax in question, namely the 6th April, 1978; (c) that, as
until that date the State had been entitled to act and to
expend the revenue which it had acquired from the tax in
question on the bona fide assumption, contributed to by the
absence of objections on the part of any taxpayer, that such
tax had been validly imposed and such revenue properly
acquired. The plaintiffs were the only tax payers entitled to
maintain a claim for restitution of tax in pursuance of the
court's decision, unless proceedings had already been
instituted by any other taxpayer challenging the validity of
the sections impugned in the proceedings. Thus, this
decision on unconstitutionality did not render the State liable
to repay all excess monies gathered, bona fide, by the State,

since 1967, to the plaintiffs, or to the many affected married
couples. There was no retrospective application of
The issue of the retrospective application of
declarations of unconstitutionality was the subject matter of
obiter dicta in several of the judgments. Having considered
the judgment of the European Court of Justice in Defrenne v.
Sabena [1976] E.C.R. 455, Henchy J. stated, at p. 324:" it stands as a cogent example of the principle that what
has been done or left undone under a constitutionally invalid
law may, in certain events, such as the evolution of a set of
circumstances which it would be impossible, or unjust or
contrary to the common good, to attempt to reverse or undo,
have to be left beyond the reach of full
[2006]4 I.R.
149S.C.
redressive legal proceedings and have to be treated as an
exemplification of the maxim communis error facit ius."
Griffin J., at p. 328, pointed out:"The effect of a declaration under Article 50 is not that the
condemned provision has ceased to be in force but that, as
of the date when the Constitution came into operation, it
was at no time thereafter in force. But, as Mr. Justice Henchy
has pointed out in his judgment, the fact that a provision
was held to be no longer in force since 1937 does not
automatically carry the corollary that what has been done
under and in pursuance of that provision after the
Constitution came into force will necessarily be condemned
for lack of validity."
and at p. 331:"When a statute has been declared to be void ab initio, it
does not necessarily follow that what was done under and in
pursuance of the condemned law will give to a person, who
has in consequence suffered loss, a good cause of action in
respect thereof. Notwithstanding the invalidity of the statute
under which such act was done, the Courts recognise the
reality of the situation which arises in such cases, and that it

may not be possible to undo what was done under the
invalid statute, 'the egg cannot be unscrambled'."
Thus while a law may be void ab initio, the application of
that decision retrospectively is a different and additional
matter for consideration. No principle of the general
retrospective application of declarations of
unconstitutionality has been developed in our jurisdiction.
Instead the courts in practice have excluded such situations
and queried any other possible approach.
Not only is there no principle of retrospective
application of unconstitutionality, there have been
precedents expressly limiting the temporal effect of a court
ruling. For example in The People (Director of Public
Prosecutions v. Finn [2001] 2 I.R. 25, this court held that the
system of having review dates in sentences violated Article
13.6 of the Constitution. However, Keane C.J. stated that this
should not be taken as impugning the validity of such
sentences imposed by trial judges in cases which had
already come before the courts. The court, in other words,
held that there was no general application retrospectively of
the declaration of unconstitutionality.
Thus, we see emerging a principle that declarations of
unconstitutionality apply to the party in the litigation in
which the decision is made, and prospectively, but that it
does not apply retrospectively. The cases to date have
inherently applied the principle that there is no application
retrospectively of a declaration of unconstitutionality outside
the litigation, or related litigation, which raised the issue of
the validity of the law. This case
[2006]4 I.R.
150S.C.
is the first time that the court has been requested to state
the principle expressly. However, the principle has been a
matter of legal practice for decades.
At the core of the jurisprudence is the duty of the
courts to administer justice. The courts do not apply a cold
logic in a rule making vacuum. Rather, the courts administer

justice to promote the common good. Thus, for example, in
Blake v. The Attorney General [1982] I.R. 117 this court held
that Parts II and IV of the Rent Restrictions Act 1960 were
repugnant to the provisions of the Constitution. In giving the
judgment of the court O'Higgins C.J. pointed out that the
effect of declaring the law to be unconstitutional meant that
many thousands of families, who had relied upon the
protection of their tenancies by the legislation, no longer had
that protection. He stated that he assumed that the matter
would receive the immediate attention of the Oireachtas,
that new legislation would be enacted speedily and that
pending new legislation it might be possible for some
landlords and tenants to reach agreement. While not wishing
to pre-empt litigation he stated at p. 142 that the court:" desires to emphasise, however, that it is the duty of the
Courts to have regard to the basic requirements of justice
when exercising their jurisdiction. In this regard, in the
reasonable expectation of new legislation, when a decree for
possession is sought, the court should, where justice so
warrants, in a case where the now condemned provisions of
Part IV would have given a defence against the recovery of
possession, either adjourn the case or grant a decree for
possession with such stay as appears proper in the
circumstances."
Thus while the law was declared void, the court went on to
address the application of that decision. The court did not
suspend the application of the decision. However it made
suggestions which, in effect, addressed the time pending
new legislation.
The concept of justice is at the core of our organised
society. This was referred to by O'Higgins C.J. in The State
(Byrne) v. Frawley [1978] I.R. 326 where a jury had been
selected under provisions of the Juries Act 1927 which
sections were subsequently declared to be inconsistent with
the Constitution. However, the applicant had not objected to
the jury. O'Higgins C.J., at p. 341, drew attention to the
situation which would exist if the applicant succeeded. He
stated:-
"It seems to me proper to add that if the contrary be the

case and by reason of the wrongful exclusion of qualified
persons from the panel, every jury then selected is to be
regarded as unconstitutional and invalid, then certain very
serious consequences would follow. In the first place it would
seem to me to follow with inexorable logic that each trial
held with such a jury would have been a nullity and that
[2006]4 I.R.
151S.C.
sentences imposed and carried out, including sentences of
death, would have been imposed and carried out without
legal authority. In addition, even those who won acquittals
from such juries could find that they were still in jeopardy
because their trials was regarded as a nullity. Could
organised society accept such a conclusion?"
This question was rhetorical; of course organised society
could not accept such a conclusion. Nor could or have the
courts.
The Constitution established the power of
constitutional review by the superior courts which, as with all
powers and duties, is required to be performed
constitutionally. Thus, it must be exercised in a manner
consistent with the Constitution, harmoniously with other
(and sometimes conflicting) rights and principles, and
"seeking to promote the common good" as the Preamble
states.
In this case, and in most cases, the issue of the validity
of a law arises in relation to a law which has been treated as
valid for years. The court may determine that the law is
invalid either from 1937 or from the date of the purported
legislation, depending on the date of the statute in issue.
Either way a law which has been applied as a valid law for
many years may be declared to be null and void. This power
of the superior courts is exercised in the context that neither
the law nor the Constitution is frozen in 1937. The
Constitution is a living instrument. Concepts are before the
courts today in forms not envisaged in 1937. Principles and
rights have developed over the last seventy years, from

roots in national society, the European Community and
international documents.
Consequently, Acts passed by the legislature many
decades ago may be, as with the Juries Act 1927, the subject
of a declaration that it was not carried over by Article 50 of
the Constitution. It is a declaration of our time. It is a
declaration achieved by a party or parties after litigation.
While the declaration is that the law is void ab initio, or not
carried forward by Article 50 of the Constitution, that
declaration itself does not address the issue of its
application.
The issue, the retrospective application of a
declaration that a law is inconsistent with the Constitution to
litigants other than the party who sought such a declaration,
has been the subject of judicial decisions in other common
law states and a sophisticated jurisprudence is developing in
several jurisdictions. Such a jurisprudence is appropriate for
government in a modern democracy. Of particular relevance
to our analysis is the law in Canada where the Constitution is
similar to the Constitution of Ireland.
In Canada s. 52.1 of the Constitution Act 1982
provides:"The Constitution of Canada is the supreme law of Canada,
and any law that is inconsistent with the provisions of the
Constitution is, to the extent of the inconsistency, of no force
or effect."
[2006]4 I.R.
152S.C.
Article 50.1 of the Constitution of Ireland 1937 provides:"Subject to this Constitution and to the extent to which they
repealed or amended by enactment of the Oireachtas."
Thus there is a significant similarity between the words

in the two Constitutions. Both refer to laws inconsistent with
the Constitution; and both give the power expressly to the
relevant courts to declare a law to be consistent or
inconsistent with the Constitution. Thereafter the issue of the
application of such an order arises in both States. While this
has been a matter dealt with in practice by our courts and
inherently in certain cases it has been the subject of express
judicial decisions in Canada.
This has been so especially in relation to the Canadian
Charter. On many occasions the Supreme Court of Canada
has expressly addressed the issue of the application, the
temporality of a declaration. In R. v. Bain [1992] 1 S.C.R. 91
the majority of the Supreme Court of Canada struck down a
portion of the criminal code which allowed the prosecutor,
but not an accused, to "stand by" prospective jurors. The
provisions were held to be contrary to the guarantee of a fair
trial because they gave the prosecutor more influence than
an accused in the selection of a jury. However, the
declaration of invalidity by the Canadian Supreme Court was
suspended by that court for six months in order to "provide
an opportunity for Parliament to remedy the situation if it
considers it appropriate to do so". Thus, not only was there
no retrospective application of unconstitutionality but the
application was postponed prospectively for six months.
However, no reasons were given. This was remedied in a
later case.
In Schachter v. Canada [1992] 2 S.C.R. 679 the
Supreme Court of Canada proceeded on foot of a concession
by the Government of Canada and held that a provision of
the federal Unemployment Insurance Act 1971 offended the
guarantee of equality because the provision allowed more
generous child care benefits to adoptive parents than to
natural parents. Lamer C.J., for the majority, pointed out that
striking down the act would have the result of denying the
statutory benefit to adoptive parents and grant no rights to
natural parents. He stated at p. 716:"The logical remedy is to strike down but suspend the
declaration of invalidity to allow the government to
determine whether to cancel or extend the benefits."

In other words Canada is developing a jurisprudence of
suspended declarations. This is not an issue before the court
in this case. But the rationale for such an approach is
fundamental and arises out of the constitutional
[2006]4 I.R.
153S.C.
exercise of the constitutional power and duty. It assists in
the analysis of the power. It raises for consideration the
argument that a court may consider it appropriate in certain
extreme circumstances to suspend a declaration that a law is
unconstitutional so that the Oireachtas might address the
issue if it wished.
Obviously such a suspended declaration is in aid of
organised society as it enables the legislature to address the
issue. It also enables dialogue in the community as to the
best way to proceed. In Corbiere v. Canada (Minister of
Indian and Northern Affairs) [1999] 2 S.C.R. 203, L'HeureuxDub J. pointed out that there were a number of ways in
which the residence requirement at issue could be corrected
and that the best solution would be that determined by
parliament after consultation with the aboriginal people
affected by the decision. In her view the principle of
democracy should guide the court, that principle
"encourages remedies that allow the democratic process of
consultation and dialogue to occur". The eighteen months
suspension of the declaration of invalidity in that case
enabled parliament to have the time to develop and enact a
new voting regime, should it choose to do so.
This rationale strikes a familiar note in this jurisdiction.
Ireland is a democratic State: Article 5. The terms of the
Constitution giving to the superior courts the power to
review legislation gives rise to the single remedy of a
declaration of invalidity. While the Irish Constitution and the
Canadian Constitution expressly contemplate as a remedy
an order of invalidity and thus that the law was void, to
exercise such a power constitutionally the court has inherent
power to administer justice. The jurisprudence which has

been developed in Canada in relation to the Charter has
addressed the issue of the application of such power.
I have referred to Canadian jurisprudence relating to
their Charter, and accept that such caselaw may not be
referable or persuasive to our Constitution, however it
illustrates a developing jurisprudence and highlights
constitutional law consistent with a modern functioning
democracy. In accordance with Article 15.4 of the
Constitution, a declaration of unconstitutionality of an Act of
the Oireachtas renders the Act void ab initio.Pursuant to
Article 50.1, a declaration that a statute is inconsistent with
the Constitution means that it was not carried over by the
Constitution and is null and void since 1937. However, the
declaration of invalidity of a law and any order relating to the
application of that declaration are two quite separate
matters, two different issues. The inherent jurisdiction of the
superior courts to administer justice is applicable to the
decision on both issues. Consequently, the appropriate
application of an order may be considered by a court in all
the circumstances of the case, for the purpose of doing
justice. While it has never been so decided, and it would
require a
[2006]4 I.R.
154S.C.
full argument, it appears to me that the issue of additional
remedies in relation to the application of such a declaration,
for example the suspension of an application of a declaration
of invalidity, could be raised in our courts.
The principle of law is that a declaration that a law is
unconstitutional applies in the litigation in which the issue
arose, and prospectively, there is no general retrospective
application of such an order. However, I do not exclude the
possibility that an exception may arise where, in wholly
exceptional circumstances, the interests of justice so require.
The issue of the retrospective application of a
declaration of unconstitutionality has arisen as a
consequence of C.C. v. Ireland [2006] IESC 33, [2006] 4 I.R.

1. The applicant in that case was charged with four offences
which states:"Any person who unlawfully and carnally knows any girl
under the age of fifteen years shall be guilty of a felony, and
shall be liable on conviction thereof to penal servitude for life
or for any term not less than three years or to imprisonment
for any term not exceeding two years."
The penalty aspect of the clause was amended by the first
schedule of the Criminal Law Act 1997 but this was not a
relevant factor.
The applicant in C.C. v. Ireland [2006] IESC 33, [2006]
4 I.R. 1 wished to raise the defence of mistaken belief as to
the age of the person with whom he was charged of having
carnal knowledge and he brought judicial review proceedings
seeking:(a) a declaration that a reasonable belief on the part of a
defendant that the alleged injured party was over the
statutory age constituted defence to a charge under s. 1(1)
of the Act of 1935;
(b) a declaration, in the alternative, that the exclusion of the
defence of mistake as to age is repugnant to the Constitution
and that if the offence created by s. 1(1) of the Act of 1935 is
an offence of strict liability, that provision is inconsistent with
the Constitution.
On the 12th July, 2005, this court, by a majority, held that
the defence of mistake as to age was not open to the
applicant in an offence pursuant to s. 1(1) of the Act of 1935.
On the 23rd May, 2006, this court held that as the defence of
mistake as to age was not open to the applicant, as it was
held to be an offence of strict liability, it was inconsistent
with the provisions of the Constitution.
Subsequently this applicant brought habeas corpus
proceedings seeking his release on the basis that he was in
custody in respect of an offence not known to law. The facts
of the applicant's case are that on the 24th November, 2004,
he was sentenced to a term of imprisonment of three
[2006]4 I.R.
155S.C.
years to date from the 8th November, 2004, at the Dublin
Circuit Criminal Court for the offence of unlawful carnal
knowledge contrary to s. 1(1) of the Criminal Law
Amendment Act 1935. The decision C.C. v. Ireland [2006]
IESC 33, [2006] 4 I.R. 1 which declared that s. 1(1) of the Act
of 1935 was inconsistent with the Constitution, was relied
upon. It was submitted that the applicant was in custody in
respect of an offence not known in law. The High Court
ordered his release stating that in accordance with the
decision of this court s. 1(1) of the Act of 1935 ceased to
have legislative existence in 1937. The High Court then
considering the consequences, stated at para. 9:"In this case, the applicant is detained on foot of a
and by the people through the relevant State authorities,
reasons of the declaration made by the Supreme Court last
when the applicant was convicted or sentenced.
the only consequence of the declaration of inconsistency
of s. 1(1) of the Criminal Law Amendment Act 1935 with the
Constitution with which I am concerned on this application is
whether it has rendered the detention of the applicant
unlawful as of now."
For the purpose of the application the following facts were
agreed: (a) that the date of the alleged offence was the 18th
May, 2003, (b) that the applicant's date of birth is the 25th
April, 1965, so that he was 38 years of age at the date of the
alleged offence; (c) that the complainant's date of birth is
the 21st August, 1990, so that she was twelve years of age
at the date of the alleged offence; and (d) that at the date of
the alleged offence the applicant knew that the complainant
was under the age of fifteen years.
It was conceded that the applicant would not have had
locus standi to challenge the constitutionality of s. 1(1) of
the Act of 1935 before C.C. v. Ireland [2006] IESC 33,

[2006] 4 I.R. 1. The High Court concluded:"The fact that the declaration rendered the applicant's
detention unlawful may have the appearance of a 'windfall
bonus' for the applicant. Be that as it may, in my view, his
detention was rendered unlawful by the declaration and
cannot continue. Not being satisfied that the applicant is
being detained in accordance with the law, I direct his
release from detention in Arbour Hill Prison."
The governor appealed against the judgment and order of
the High Court and consequently the issue of the
retrospective application of a declaration of
unconstitutionality has arisen before this court.
[2006]4 I.R.
156S.C.
Conclusion
The principle of judicial review of the constitutionality
of a law by the superior courts was a novel aspect of the
Constitution of Ireland 1937. Ireland led the common law
world by expressly incorporating this power into the
Constitution. Such a power carries duties. Over the years the
courts have developed constitutional principles and
presumptions relevant to the exercise of such a
constitutional power and duty. No principle of retrospective
application of a declaration of unconstitutionality has been
developed. To the contrary, the application of declarations of
unconstitutionality has been limited to the parties, or
identified litigants, and prospectively.
There is no express principle of retrospective
application of unconstitutionality in the Constitution. I am
satisfied that no such principle may be implied into the
Constitution. Such a principle would bring disorder into
society disproportionate to the benefit to be achieved. Such
a principle would render the express power given to the
superior courts a tool of chaos.
The issue of the general retrospective application of
the declaration of unconstitutionality was not dealt with in

C.C. v. Ireland [2006] IESC 33, [2006] 4 I.R. 1. Nor was there
any query raised subsequently, by any party, about the
application of the judgment. Instead this issue has been
raised in subsequent, unrelated litigation, i.e. this case.
Prior to the declaration of its unconstitutionality last
May, s.1 (1) of the Criminal Law Amendment Act 1935 was
treated as the law of the land. While the court order is to the
effect that the section was not continued in force by Article
50.1 of the Constitution, and so it is deemed invalid since
1937, this does not reflect the reality of the situation since
1937. The reality is that it was assumed that the law was
constitutional. It has been acted upon for 70 years. Over the
decades people have been prosecuted, convicted and
acquitted, under this legislation. The section of law has been
relied upon. People have altered their positions detrimentally
because of the section. The State, via many instruments, has
acted upon the section. It occupied the position of a law
which must be observed, until it was struck down as
unconstitutional.
While it has been declared that the section is
inconsistent with the Constitution and thus was not carried
over in 1937, that decision does not address its application
outside the case in which it arose. There is no principle of the
retrospective application of a declaration of
unconstitutionality outside the particular parties of a case, or
litigants specifically named by the court. This has long been
the practice in this jurisdiction, which practice is based upon
sound constitutional principle.
[2006]4 I.R.
157S.C.
Organised society and the common good are protected
by the Constitution. This includes the orderly administration
of justice. Justice is not served, nor is the reality of the
situation in our community served, by applying
retrospectively an invalidity in circumstances where a law
has been relied upon by all for many years. Such a principle
of retrospective application would be the antithesis of law
and order. Contemplate a situation in 1976 if a retrospective
application of de Burca v. Attorney General [1976] I.R. 38
had resulted in all the prisoners tried by such juries being
released? Contemplate a situation in 1982 if retrospective
application of Murphy v. The Attorney General [1982] I.R.
241 applied and the Revenue Commissioners were required
to return all the invalid taxation collected from all married
couples over the years? To borrow from O'Higgins C.J.,
organised society could not accept such a conclusion. The
Constitution does not require such a conclusion, and nor
have the courts.
A court is required to differentiate between the
declaration of unconstitutionality and the retrospective
application of such a decision. While in cold logic all such
declarations are null and void since 1937, or the date of a
post-1937 purported legislation, application of such a ruling
is a further issue for consideration. Consequently it is a
matter of construing the Constitution to determine how such
a decision should be applied in a manner consistent with the
principles of the Constitution. The fact that there is no
principle of retrospective application of a declaration of
unconstitutionality, outside the case or cases in which the
issue was decided, has, quite remarkably, not been the
subject to date of express judicial decision in Ireland,
although it has underpinned the practice and application of
the law for many years.
When a law has been treated as valid law for decades
it is impossible, unjust, and contrary to the common good, to
reverse the many situations which have arisen and been
affected, in all their myriad forms, over the decades. In fact,
even if a law has been presumed valid for only a few short
years it will have affected people and institutions in ways not
reversible. The community accepted the law, the way it was
assumed or presumed to be, and acted accordingly. The
clock cannot be put back. The egg cannot be unscrambled.
Indeed this fact is one of the reasons why consideration may
be given by the President of Ireland to sending a bill to the
Supreme Court under Article 26 of the Constitution. Such an

action by the President, if the bill is found to be
unconstitutional, prevents irreversible consequences. Once a
law is applied in a community it has ripple effects which are
irreversible.
The issue of the application of declarations of
unconstitutionality has been the subject of sophisticated
jurisprudence elsewhere. The law of Canada appears to be of
particular interest. For example, in Charter cases
[2006]4 I.R.
A. v. Governor of Arbour Hill PrisonDenham J. McGuinness J.
158S.C.
the Supreme Court of Canada has developed the concept of
suspending a declaration of invalidity so that Parliament may
have time to address the issue.
In conclusion, the general principle is that a
declaration of invalidity of a law applies to the parties in the
litigation or related litigation in which the declaration is
made, and prospectively, but that it does not apply
retrospectively, unless there are wholly exceptional
circumstances. The applicant in this case was not a party in
C.C. v. Ireland [2006] IESC 33, [2006] 4 I.R. 1, nor had he
commenced related litigation, or any form of group action,
nor are there any wholly exceptional circumstances.
Consequently, the applicant is not entitled to the
retrospective application of the declaration of
For these reasons I allowed the appeal in this case.
McGuinness J.
I have had the advantage of reading in draft the
judgments of my learned colleagues giving reasons for
allowing this appeal. I am in general agreement with the
reasons given. I propose to add some brief comments.
The facts of the case and the course of the
proceedings have been set out in detail by Hardiman J. and
there is no need to repeat them here. I gratefully accept his
account of the history of this appeal.
For the reasons briefly set out below I am in

agreement with the conclusion of Denham J. that there is
neither an express nor an implied principle of retrospective
application of unconstitutionality in the Constitution. This
conclusion is borne out by the caselaw relevant to the issue
which has been analysed by Murray C.J. and my other
colleagues. This case law includes in particular O'Donovan v.
The Attorney General [1961] I.R. 114, McMahon v. Attorney
General [1972] I.R. 69, de Burca v. Attorney General [1976]
I.R. 38, The State (Byrne) v. Frawley [1978] I.R. 326,
Murphy v. The Attorney General [1982] I.R. 241, and
McDonnell v. Ireland [1998] 1 I.R. 134.
The trial judge (Laffoy J.) at para. 6 in her judgment
considered the effect of a declaration that a preconstitutional statute was inconsistent with the Constitution.
She went on to adopt and rely on a passage from the
judgment of Henchy J. in Murphy v. The Attorney General
[1982] I.R. 241 at p. 306:"If it is a pre-constitutional enactment, Article 50.1 provides
in effect that the statutory provision in question shall,
subject to the Constitution and to the extent that it is not
inconsistent therewith, continue in full force and effect until
it is repealed or amended by enactment of the Oireachtas,
i.e., the Parliament established by the Constitution. The
[2006]4 I.R.
A. v. Governor of Arbour Hill PrisonMcGuinness J.
159S.C.
issue to be determined in such case is whether, when the
impugned provision is set beside the Constitution, or some
particular part of it, there is disclosed an inconsistency. If the
impugned provision is shown to suffer from such

Such a declaration under Article 50.1 amounts to a judicial
Laffoy J. went on to apply these principles as she saw them
to the case of the applicant.
The passage on which Laffoy J. relied is well known and
much quoted. It is a striking and memorable statement of
the law, albeit obiter. Having, as it were, signed the death
certificate of a statute found to be unconstitutional, Henchy
J., however, went on to say at p. 307:"While a declaration under Article 50.1 does not arise in this
case, it is of importance to note that, notwithstanding a
statutory provision it may be that, because of a person's
court in The State (Byrne) v. Frawley . In other words, a
declaration under Article 50.1 that a law had lost validity in
Article 50.1 that, for want of consistency with the
Constitution, a law ceased in 1937 to have the force of law, a
declaration of such invalidity is a constitutional imperative.
Whereas, the consequences arising from having acted on
foot of or in pursuance of the statutory provision which has
thus retrospectively been found to have lost the force of law
in 1937 may, in certain circumstances, be held to be beyond
the reach of legal action based on that invalidity."
It is notable that this passage follows immediately after the
passage quoted by Laffoy J. Henchy J. went on to refer to
previous decisions of this court, in particular to The State
(Byrne) v. Frawley [1978] I.R. 326 and
[2006]4 I.R.
160S.C.
McMahon v. Attorney General [1972] I.R. 69. At p. 314
Henchy J. referred to The State (Byrne) v. Frawley . He
stated:"But it is not a universal rule that what has been done in
good cause of action: see, for example, the decision of this
court in The State (Byrne) v. Frawley . While it is central to
the due administration of justice in an ordered society that
one of the primary concerns of the court should be to see
that prejudice suffered at the hands of those who act without
legal justification, where legal justification is required, shall
not stand beyond the reach of corrective legal proceedings,
the law has to recognise that there may be transcendent
impractical, or impossible
slept on their rights, the quality of legality - even
irreversibility - that tends to attach to what has become
part of the corpus juris. This trend represents an inexorable
process that is not peculiar to the law, for in a wide variety of
other contexts it is either foolish or impossible to attempt to
turn back the hands of the clock. As an eminent historian
vividly put it, speaking of the pointlessness of seeking to
undo or reshape the facts of history: 'The statue has taken its
shape and can never go back to the quarry'."
It appears to me that, without any further addition, this
passage outlines the general approach which must be taken
to the application of retrospectivity in these circumstances
and in particular represents the proper approach which
should be taken to the present case. Can it seriously be said
on the facts of the present case that the compulsion of
public order and the common good would allow the
application of the present applicant, to succeed?
In Murphy v. The Attorney General [1982] I.R. 241
Griffin J. dealt with the same considerations more briefly at
p. 331:[2006]4 I.R.
161S.C.
"When a statute has been declared to be void ab initio, it
under which such act was done, the courts recognise the
invalid statute - as it was put so succinctly during the
argument 'the egg cannot be unscrambled'."
This qualified approach to retrospectivity is evident in
the decisions of this court in the cases listed earlier. I would
also draw particular attention to the judgment of O'Flaherty
J. in McDonnell v. Ireland [1998] 1 I.R. 134 (the facts of this
case have been set out by Hardiman J. in his judgment).
While somewhat different reasons were given in the
judgments in the case, this court was unanimous in
dismissing the applicant's appeal. O'Flaherty J. gave the
fullest consideration to the effect of this court's judgment in
Murphy v. The Attorney General [1982] I.R. 241. At p. 142 he
stated:-
"In any event, since the provision was in place when the
plaintiff was prosecuted on the 30th May, 1974, he cannot
now avail of its extirpation as giving him the cause of action.
This is established in both the majority judgments as well as
in the minority judgment, of the court in Murphy v. The
Attorney General [1982] I.R. 241.
It will be recalled that in that case O'Higgins C.J., in his
minority judgment, concluded that under the Constitution a
declaration as to the invalidity of a law or any provision
thereof can only operate from the moment such invalidity is
declared in the High Court or in the Supreme Court. He went
on to hold that the requirement of an ordered society would
have inclined his mind to such a conclusion aside altogether
from his interpretation of the express provisions of the
Constitution. The idea that a declaration of invalidity
operated to say that the provision was void ab initio 'would
provide the very antithesis of a true social order - an
uneasy existence fraught with legal and constitutional
uncertainty'.
The approach of the majority in Murphy v. The Attorney
General [1982] I.R. 241 while holding that declarations of
invalidity of legislation worked to make the impugned
legislation voidab initio, produced more or less the same
result
The correct rule must be that laws should be observed until
they are struck down as unconstitutional. Article 25.4.1 of
the Constitution provides that: 'every Bill shall become and
be law as on and from the day on which it is signed by the
President ' and that, unless the contrary is expressed,
that law is effective from that day forth. Following
[2006]4 I.R.
162S.C.
signature by the President, a public notice is published in Iris
Oifigiil stating the Bill has become law; (Article 25.4.2).
From that date, all citizens are required to tailor their
conduct in such a way as to conform with the obligations of
the particular statute. Members of society are given no
discretion to disobey such law on the ground that it might

later transpire that the law is invalid having regard to the
provisions of the Constitution. Every judge on taking office
promises to uphold 'the Constitution and the laws'; the judge
cannot have a mental reservation that he or she will uphold
only those laws that will not someday be struck down as
unconstitutional. We speak of something as having 'the force
of law'. As such, the law forms a cornerstone of rights and
obligations which define how we live in an ordered society
under the rule of law. A rule of constitutional interpretation,
which preserves the distinct status of statute law which, as
such, is necessitated by the requirements of an ordered
society and by 'the reality of situation' (to adopt Griffin J's
phrase), should have the effect that laws must be observed
until struck down as unconstitutional. The consequences of
invalidity. This is what occurred in Murphy v. The Attorney
General [1982] I.R. 241 as well as in Cox v. Ireland [1992] 2
I.R. 503."
I have said earlier that thedictum of Henchy J. that a
declaration of unconstitutionality amounts to a judicial death
certificate is well known and much quoted. It is couched in
striking language which readily remains in the mind. Perhaps
these very qualities have militated against the giving of full
consideration to the careful qualifications and fuller
explanations of the effect of applying this "death certificate"
to a statute contained both in Henchy J.'s own judgment and
in the other judgments of this court over the years. It is in
this context that I am in agreement with the Murray C.J. in
his analysis of the judgment of Laffoy J.
A consideration of the caselaw as a whole
demonstrates that, while the principle that the impugned
statute or section is void ab initio is generally if not
invariably set out, the actual outcomes of the cases show
that what might be described as blanket retrospectivity has
not in fact been applied. The facts of the cases differ and the
reasoning for the conclusions may vary but it is impossible to
establish either an express or an implied principle of
unqualified retrospectivity. In common with Geoghegan J., I

agree with the statement of Denham J. that a court is
required to differentiate between the declaration of
unconstitutionality and retrospective application of such a
decision and that as a consequence it is a matter of
construing the Constitution to determine how such a
decision should be applied in a manner
[2006]4 I.R.
A. v. Governor of Arbour Hill PrisonMcGuinness J. Hardiman J.
163S.C.
consistent with the principles of the Constitution. I also
agree that when a law has been treated as a valid law for
decades it is impossible, unjust, and contrary to the common
good, to reverse the many situations which have been
affected over the decades. I concur with the view of
Geoghegan J. that concluded proceedings based on an
enactment subsequently found to be unconstitutional cannot
normally be reopened. This approach is in accordance with
common law principles of finality in legal proceedings.
I would not exclude exceptions to this normal rule but
any such exception should be based on the clear demands of
justice in the particular case. I do not consider that the
present case on its facts is in any way such an exception.
The applicant was convicted of an offence which consisted of
sexual intercourse with a girl under the age of consent. At no
stage has he denied that the act of sexual intercourse with
this girl took place. There is no suggestion that he was
denied due process in the course of his trial. He did not at
the time challenge the constitutionality of the relevant
section or take any of the other steps which might in law
have been open to him. The case was decided in accordance
with the law applicable at the time and is not now open to
attack. I agree with Murray C.J. in what he has stated
concerning the general principle governing criminal
prosecutions where the State has relied in good faith on a
statute in force at the time and concerning the application of
those principles.
For these reasons I allowed the appeal in this case.
Hardiman J.
The applicant in this case pleaded guilty to an offence
of unlawfully and carnally knowing a girl under the age of
fifteen years. He received a sentence of three years'
imprisonment. He had served about half this period when, in
another case and at the suit of another person, the applicant
in C.C. v. Ireland [2006] IESC 33, [2006] 4 I.R. 1 the
subsection creating the offence to which the applicant had
pleaded guilty was found inconsistent with the Constitution.
A declaration to that effect was made under Article 50.1.
This case is about the applicant's attempt to get the benefit
of C.C. v. Ireland [2006] IESC 33 for himself; to piggyback
on that declaration. No one has ever succeeded in doing this
(and only a few have made the attempt) in respect of a trial
or transaction completed before the declaration of
The first and salient distinction between C.C. v. Ireland
[2006] IESC 33, [2006] 4 I.R. 1 and this one is that the
applicant in C.C. v. Ireland raised his ultimately successful
challenge to the constitutionality of s.1(1) of the Act of 1935
before his trial. Neither the present applicant nor any
[2006]4 I.R.
A. v. Governor of Arbour Hill PrisonHardiman J.
164S.C.
other person up to the time of C.C. v. Ireland [2006] IESC
33 did this. For reasons discussed at length below, this is a
huge obstacle in the way of any attempt to piggyback on the
declaration granted in C.C. v. Ireland [2006] IESC 33, all the
more so for an applicant who pleaded guilty in the court of
trial. But the present applicant, for reasons arising from the
specific facts of his case, meets a still greater obstacle first:
he is relying on a declaration itself based on a jus tertii, a
right which he himself never possessed. To explain this, I
take as my starting point the enormous factual differences
between this case and C.C. v. Ireland [2006] IESC 33.
Before doing so, I wish to reiterate what Henchy J. said in
The State (Byrne) v. Frawley [1978] IR 326 at p. 350, a case

much discussed below; "In basing this judgment on the
special circumstances of this case, I do not wish to imply that
the prisoner would be entitled to succeed in his claim if
those particular circumstances did not exist". And indeed,
though none of the third parties in the cases discussed
below were afflicted with the applicant's additional difficulty,
none succeeded in piggybacking on another person's
success in constitutional litigation.
4 I.R. 1 put forward his case on a factual basis which was in
stark contrast with the facts of the case against the
applicant in this case. The applicant in C.C. v. Ireland [2006]
IESC 33 was a teenager charged with unlawful carnal
knowledge of another teenager. He said he had met the girl
in question at a dog racing track. No sexual intercourse had
taken place on that occasion but some little time later she
had texted him and re-established contact. This led to their
having consensual intercourse on several occasions over the
next month or so. The girl had told him that she was sixteen
years of age and he had believed this. He claimed the
section was unconstitutional in that it precluded him from
advancing those facts as a defence at his trial before a jury.
They showed, he said, that he had acted under a mistake of
fact which was both honest and reasonable, and induced by
the girl herself. Some of these central statements were
contradicted by prosecution witnesses. This court was,
however, in no way concerned with the resolution of the
factual conflict: if the defence were available, the factual
issues would be for a jury. The sole issue for this court in the
end was the constitutionality of a law which had been found
to prevent the applicant in C.C. v. Ireland [2006] IESC 33
from putting his version of the facts before the jury at all.
The applicant in this case on the other hand was a 38
year old man and the father of a daughter who was a class
mate and friend of his twelve year old victim. He positively
knew the age of the victim and did not deny this. He could
never himself have impugned the subsection on the basis
that the applicant did in C.C. v. Ireland [2006] IESC 33,
[2006] 4 I.R. 1 because of

[2006]4 I.R.
165S.C.
the operation of the jus tertii rule: a person who seeks to
invalidate a statutory provision must do so by reference to
the effect of the provision on his own rights. He cannot seek
to attack the section on a general or hypothetical basis and
specifically may not rely on its effect on the rights of a third
party: see Cahill v. Sutton [1980] I.R. 269. In other words,
he is confined to the actual facts of his case and cannot
make up others which would suit him better.
Because of this rule, the applicant could not have
attacked the section on the basis that it excluded a defence
of reasonable mistake as to age since that defence would
not have been open to him on the admitted facts, even if it
had been available in law. He had, accordingly, no locus
standi on which to challenge the subsection. The applicant in
C.C. v. Ireland [2006] IESC 33, [2006] 4 I.R. 1 had this
standing.
As it happens, the applicant was represented by the
same solicitor who had successfully acted for the applicant
in C.C. v. Ireland [2006] IESC 33, [2006] 4 I.R. 1 in his
constitutional proceedings: he was thus very much aware of
the latter's case. On the third day after the delivery of the
judgment in C.C. v. Ireland , the applicant commenced his
own proceedings under Article 40.4.2 of the Constitution. He
claimed to be set at liberty despite the imposition of his
sentence because the subsection creating the offence to
which he had pleaded guilty, and in respect of which he was
serving the sentence, had been declared to be inconsistent
with the Constitution. Accordingly, he says, the offence no
longer exists and indeed never had any existence after the
adoption of the Constitution in December, 1937: it cannot
therefore justify his detention.
The central legal point arising on the hearing of this
application emerges clearly from the foregoing facts. Can a
person (in this case, the applicant) who has pleaded guilty to
an offence, and received an appropriate sentence on the foot

of that plea, demand to be released from the sentence once
the provision creating the offence has been found
unconstitutional at the suit of a third party (the applicant in
C.C. v. Ireland [2006] IESC 33, [2006] 4 I.R. 1) who was
asserting that a right of his was unconstitutionally infringed
by the subsection? In this particular case a further question
arises: is it relevant to the question just stated that the right
asserted by the third party was one not infringed in the case
of the applicant himself simply because, on the facts, it
never attached to him?
The task of the applicant in addressing these questions
seems a difficult one: his counsel was unable to point to any
case, Irish or foreign, in which a declaration of
unconstitutionality was applied retrospectively to invalidate
a past proceeding at the suit of a third party such as the
applicant here. This fact seems to have escaped attention
during much of the rather breathless, often intentionally
alarmist, discussion and coverage this case
[2006]4 I.R.
166S.C.
has engendered. But the applicant says this case is unique
in that he is held in custody on the basis of his conviction of
an offence that no longer exists and therefore (he says) can
have no legally cognisable consequence: in particular it
cannot justify his continuing detention.
I shall first consider the procedural background to the
applicant's case in some detail.
Procedural background
In June, 2004, the applicant in these proceedings
pleaded guilty in the Dublin Circuit Criminal Court to a count
of unlawful carnal knowledge contrary to s.1(1) of the
Criminal Law Amendment Act 1935. In November, 2004 he
was sentenced to three years imprisonment. On the 26th
May, 2006, he applied to the High Court (Laffoy J.) for an
order pursuant to Article 40.4.2 of the Constitution directing
an inquiry forthwith into the lawfulness of his detention. By
order of the 26th May, 2006, the High Court directed the
respondent to produce the applicant before the court on the
29th May, 2006, and to certify in writing the grounds of his
detention. The respondent certified:"I hold the applicant in custody in Arbour Hill prison
pursuant to warrant dated the 24th November, 2004."
He exhibited the warrant. From this it appears that the
applicant had pleaded guilty to the offence mentioned above
and had been sentenced by His Honour Judge O'Donnell "to
be imprisoned for a period of three years. Said sentence to
date from the 8th November, 2004".
The warrant ordered the respondent to receive the
applicant and "cause said person so convicted to undergo
the sentence set out above".
On the 23rd May, 2006, this court had delivered
judgment in a case entitled C.C. v. Ireland [2006] IESC 33,
[2006] 4 I.R. 1. The court granted a declaration that s. 1(1) of
the Criminal Law Amendment Act 1935 was inconsistent with
the provisions of the Constitution. This was the point on
which the present applicant relied. He said that the effect of
the declaration granted to the applicant in C.C. v. Ireland
[2006] IESC 33 was to render his, the applicant's, continued
detention unlawful because this detention was in respect of
an offence not known to the law. His argument was, as his
counsel said, simple and clear; indeed counsel presented his
principal contention almost as an axiom. No Irish precedent
for this alleged entitlement to release was, or could have
been, referred to.
The applicant was produced before the High Court on
the 29th May, 2006 and legal argument took place.
Judgment was reserved overnight and on the 30th May,
2006, Laffoy J. delivered a written judgment. She
[2006]4 I.R.
167S.C.
directed the release of the applicant on the basis that she
was not satisfied that he was being detained in accordance
with the law.
The respondent's appeal was heard in this court on the

2nd June, 2006. After the conclusion of the hearing Murray
C.J. speaking for the court indicated that the appeal would be
allowed. A brief statement of reasons was given and it was
said that the judgment or judgments of the court would be
delivered at a later date.
C.C. v. Ireland (No. 1) on the meaning of the Act
4 I.R. 1 was an eighteen year old who was accused of having
had unlawful carnal knowledge of a girl under the age of
fifteen years. When approached by the garda he admitted
having had consensual intercourse with the girl. He
described the interaction between them in some detail and
specifically stated that the girl had informed him that she
was sixteen years of age and that he had believed this. After
he was charged, he instituted High Court proceedings
claiming certain declarations to the general effect that, on
the true construction of the subsection, he was entitled to
advance the defence of mistake in answer to the charge
under s. 1(1) of the Act of 1935. In the alternative, he
claimed, that the subsection was inconsistent with the
Constitution.
On the 12th July, 2005, this court delivered judgment
in that part of the case which related to the interpretation of
s. 1(1) of the Act of 1935. For the reasons set out in the
judgments of Geoghegan and Fennelly JJ., the court (Denham
J. dissenting) held that it was not possible to imply a
requirement ofmens rea as to age into the subsection.
Specifically, the legislative history of the provision made it
clear that the Oireachtas " as a matter of deliberate
policy deprived accused persons of the defence of the
mistake as to age made on reasonable grounds ", by the
enactment of s. 1(1), in respect of an offence contrary to
that subsection. The judgments referred to, as is proper in a
judicial exercise in statutory construction, reached this
conclusion solely from a consideration of the wording of the
statute and its legislative history and context. All judicial
implication of material, (in this case a requirement for mens
rea), into a statute operates on the basis of attributing an
intention to the legislature on one of a number of well

established grounds. It cannot be done otherwise. Naturally
this cannot be done at all where there is positive and
admissible evidence that the legislature of 1935 affirmatively
intended to make the defence of mistake unavailable.
After the court's finding on this point, the constitutional
aspect of the applicant's claim in C.C. v. Ireland [2006] IESC
33, [2006] 4 I.R. 1 was
[2006]4 I.R.
168S.C.
adjourned for further argument and was eventually resolved
by the judgment of this court of the 23rd May, 2006, with the
result stated above. The judgment proceeds entirely on the
basis of the Constitution but a strict liability stigmatic
offence with the possibility of a prison sentence would, very
likely, engage European Convention points as well: see
Simester, Appraising Strict Liability (Oxford U.P., 2005) and
especially chapter 8, G.R. Sullivan, Strict Liability for Criminal
Offences in England following incorporation of the E.C.H.R.
The case of the applicant presents a number of
features of sharp contrast. The applicant in C.C. v. Ireland
[2006] IESC 33, [2006] 4 I.R. 1 had asserted his innocence
and made his case, and in particular his constitutional claim,
before his trial, having already indicated to the garda the
factual basis which gave him locus standi to raise it. He said
the girl herself had misled him as to her age, that he had
honestly and reasonably believed her, and that s. 1(1) of the
Act of 1935 unconstitutionally prevented him from relying on
these facts as a defence.
The applicant had raised no such claim but had simply
pleaded guilty to the offence. He could not have raised the
constitutional point relied upon by the applicant in C.C. v.
Ireland [2006] IESC 33, [2006] 4 I.R. 1 because he admitted
that he had positive knowledge of the age of the
complainant, which was twelve years at the time of the
offence. At that time the applicant was a man of 38 years
who had administered alcohol to his victim. On these facts
he lacked the locus standi to raise the constitutionality of the

absence of a defence of reasonable or genuine mistake. The
applicant did not conceal, on the hearing of this appeal, that
he regarded the order in C.C. v. Ireland as conferring on him
an undeserved windfall, albeit one to which he was legally
and constitutionally entitled, the right to be immediately
released from a sentence justly imposed on him for an
offence to which he had pleaded guilty and in respect of
which he continues to acknowledge his guilt.
The applicant's case
The applicant's case was advanced with ingenuity and
moderation by the counsel on his behalf. It was a clear and
simple one:" that the warrant is bad on its face and is put forward as
justification for the detention of the applicant, a provision
that was not carried forward pursuant to Article 50 of the
Constitution and is known by the respondent to have been
declared inconsistent with the said Constitution. There being
no other lawful or any lawful justification for his continued
detention, his release is mandated pursuant to the terms of
Article 40 of the Constitution" (sic: p. 2 of written
submissions).
[2006]4 I.R.
169S.C.
Counsel for the applicant relied on the entire of the
judgment of Laffoy J. and in particular the passages:"a) In this case, the applicant is detained on foot of a
and by the people through the relevant state authorities,
reason of the declaration made by the Supreme Court last
when the applicant was convicted or sentenced.
(b) The only consequence of the declaration of
inconsistency of s. 1(1) with the Constitution with which I am
concerned on this application is whether it has rendered the

detention of the applicant void as of now.
(c) The defect here could not be more basic. It is that the
purported conviction relates to something which is not an
offence in criminal law. In my view, the conviction is a nullity,
as is the sentence."
An essential part of the chain of reasoning which led
Laffoy J. to that conclusion was adictum of the judgment of
Henchy J. in Murphy v. The Attorney General [1982] IR 241.
This passage, at p. 307, addressed the effect of a declaration
of inconsistency with the Constitution of a pre-1937 statute.
Henchy J. concluded that:"Such a declaration under Article 50.1, amounts to a judicial
Laffoy J. adopted this passage (which was obiter) and
continued at para. 7:"Applying the foregoing principles, the Supreme Court
having struck down s. 1(1) in its entirety, that section ceased
to have legislative existence in 1937. Thereafter, there was
no statutory offence of unlawful carnal knowledge of a girl
under the age of fifteen years to which there attached a
punishment prescribed by the Act of 1935. To put it another
way, the offence of which the applicant was charged did not
exist in law when it was purported to charge him with it, nor
at the respective dates of his purported conviction and
sentencing."
The central question in this case might also take the
form: are the consequences of a declaration of inconsistency
quite as straightforward as that? It is to that question I now
turn.
Effect of a declaration of inconsistency or invalidity
Over the years since 1937 a considerable number of
statutes, statutory instruments or common law rules have
been found to be inconsistent with
[2006]4 I.R.
170S.C.
the Constitution or (in the case of post-1937 statutes)

invalid having regard to its provisions. In the course of
argument it was estimated that there had been perhaps 87
such instances. Despite this level of judicial activity, the
learned editors of J.M. Kelly, The Irish Constitution
(Butterworths, 4th Ed., 2003) conclude at p. 895:"The question of the time from which a law, which has been
declared inconsistent with or invalid under the Constitution,
is to be considered a nullity, and the closely related question
of the retroactive potential of such a declaration, are matters
which for many years escaped scrutiny altogether and in the
last thirty years or so have only been even partially
explored."
I am satisfied that this comment is a sound one. That state
of affairs is, as the editors say, a puzzling one especially
since, in relation to post-Constitution statutes at least,
Murphy v. The Attorney General [1982] I.R. 241 makes it
clear that "the date of enactment [is] the date from which
invalidity is to attach to the measure which has been struck
down because of its unconstitutionality".
Moreover, at p. 313 in Murphy v. The Attorney General
[1982] I.R. 241, Henchy J. stated a general principle of relief
following a finding of invalidity as follows:"Once it has been judicially established that a statutory
provisionis repugnant to the Constitutionthe
condemned provision will normally provide no legal
justification for any acts done or left undone or for
transactions undertaken in pursuance of it; and the persons
damnified by the operation of the invalid provision will
normally be accorded by the courts all permitted and
necessary redress."
These passages contain two of the principles which are
central to the applicant's case: firstly, invalidity is not merely
a prospective finding but one which has effect from the time
the invalid statute was enacted. Secondly, a finding of
invalidity "normally" involves redress: in the case of an
imprisoned applicant the most obvious redress is release.
The applicant acknowledges that the statute at issue in
Murphy v. The Attorney General [1982] I.R. 241 was a post-
Constitution one, but he says, by analogy with the findings

about such statutes, a pre-Constitution statute which is
inconsistent with any provision of the Constitution should be
regarded as having been without force ever since the date of
adoption of the Constitution.
The State's answer
These are far reaching arguments which led the
respondent to ask this court, if necessary, to depart from the
finding in Murphy v. The Attorney General [1982] I.R. 241 as
to the time when invalidity or (at least)
[2006]4 I.R.
171S.C.
inconsistency attaches to a measure which is struck down.
The respondent further asked the court to find that it has an
inherent power, when declaring the inconsistency of a
statute with the Constitution, to impose a temporal limitation
on the effect of such judgment, perhaps by making it
prospective only or perhaps by laying down an intervening
period, perhaps of six months, before such declaration would
have effect.
A considerable body of legal argument relying on
principle and on powerful and suggestive analogies with
similar constitutional regimes was deployed in support of
these submissions. Counsel for the respondent, did not
underestimate the difficulties in the way of these arguments,
if it were necessary for him to rely upon them. They would
involve the reversal of significant parts of the findings of this
court in Murphy v. The Attorney General [1982] I.R. 241.
Moreover, they were deployed, here, in response to an
application under Article 40 of the Constitution: I would see a
greater difficulty in assenting to them on such an application
than on a substantive hearing of a plenary action, by reason
of the fundamental nature of the Article 40 jurisdiction and
the celerity with which it is generally required to be
exercised. Moreover, it must be said that, no doubt for good
reason, no such arguments were even hinted at on the
hearing of C.C. v. Ireland [2006] IESC 33, [2006] 4 I.R. 1.
Before embarking on a consideration of these novel answers

to the applicant's claim to be set at liberty, then, it is
necessary first to consider the State's primary contention
that our existing jurisprudence suggests a more obvious
answer to that claim. In this regard, the respondent contends
that, on the existing jurisprudence, Laffoy J. erred in law in
concluding that "the conviction is a nullity as is the
sentence".
"Normally"
The last cited passage from Henchy J. expresses what
he called "the primary rule" of redress. It will be noted that
that primary rule is twice qualified by the word "normally". It
is now necessary to discuss the nature of the limitation on
the primary rule suggested by that word. For the authorities
cited below establish that, despite a finding of
unconstitutionality, equity or public policy "may require that
force and effect be given to transactions carried out
under the void statute". The circumstances in which the law
requires this to be done will shortly be considered but before
embarking on this topic, it is important to recall that Henchy
J. spoke the words quoted above in an action which was, as
most constitutional actions are, a direct attack on a statute
by a person whose factual circumstances were such as to
give him locus standi to mount that direct attack. The words
quoted refer to the entitlement of such a person "normally"
to relief, and to the limitations of that entitlement in certain
circumstances. But a person, such as the present applicant,
who is mounting an oblique or
[2006]4 I.R.
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collateral attack on a prison sentence, on the basis of
another person's successful attack on the statute under
which it was imposed, is clearly in a weaker position. His
position is weaker again if he himself could never have
lodged the initial attack, since the statute offended no right
of his. He is not a person "damnified by the operation of the
invalid provision" and thus not a person "normally" entitled
to relief, within Henchy J.'s categories. Such a person's claim

to redress is entirely technical: the applicant here has not
sought to conceal this. But his failure in the present
application is not dependent on this fact.
Any pre-Constitution statute (and many postConstitution statutes) now declared to be inconsistent with
the Constitution or invalid having regard to it, will have been
in operation for a considerable period, either without
constitutional challenge or having survived a previous
constitutional challenge. Depending on the nature of the
statute, many things of great public or private significance
may have taken place by virtue of an impugned measure.
The law has not been indifferent to this obvious fact, or to
the injustice, difficulty and disorder which could follow from
overturning at a stroke the assumptions, the vested rights
and the solemn determinations, perhaps of decades. A
consideration of certain cases where statutory provisions
were found inconsistent or invalid illustrates these
propositions.
In de Burca v. Attorney General [1976] I.R. 38, those
portions of the Juries Act 1927 which excluded from jury
service persons other than ratepayers who held land above a
certain minimum rateable valuation (and "exempted" from
jury service all women other than those who made a specific
application), were found to be inconsistent with the
Constitution. This case is generally regarded as one of the
monuments of our modern inclusive and non-discriminatory
jurisprudence. In O'Donovan v. The Attorney General [1961]
I.R. 114 and in McMahon v. Attorney General [1972] I.R. 69,
certain aspects of the electoral system were successfully
challenged on constitutional grounds. In the latter case,
those grounds related to the existence, pursuant to a statute
of 1923, of a number on a counterfoil to a ballot paper which
might lead to the identification of a voter.
If the primary rule of redress were indeed a rigid one of
axiomatic simplicity, it is evident that the result in the cases
mentioned might have enabled a third party, unconcerned
with the original litigation, to attack any conviction (or, for
that matter, any acquittal) which had taken place before an
unconstitutionally selected jury since 1927, or to attack any

election held since 1923. This "appalling vista" was indeed a
ground on which one of the dissenting judges in McMahon v.
Attorney General [1972] I.R. 69 would have refused relief.
Fitzgerald J. said at p. 113 of the report:[2006]4 I.R.
173S.C.
"The plaintiff has not advanced any argument on the
possible consequences of a finding of the procedure being
unconstitutional. It appears to me that such a finding raises
or could raise the issue as to whether all elections and byelections since 1923 were unconstitutional. It certainly
creates the situation in which a citizen might be encouraged
to raise such an issue."
A similar apprehension troubled O'Higgins C.J. in de
Burca v. Attorney General [1976] I.R. 38 at p. 62:"If, then, the property qualification is not in accordance with
Article 40.1, and is not saved by any inference to be drawn
from Article 38.5, what is to be said of the thousands of
criminal jury trials which have been held since the
enactment of the Constitution and which have resulted in
convictions? Were these trials invalid? I confess that this
matter did cause me some concern during the hearing."
It must be obvious that concerns such as those expressed in
the two passages just cited, if there were no clear answer to
them, would have a chilling effect on the development of
constitutional jurisprudence. Judges might be confronted
with a situation where, in order to grant deserved relief to an
individual litigant they would have to cause a state of grave
social, legal or political uncertainty, by potentially
invalidating things, perhaps as important as elections or
serious criminal trials, which took place in good faith prior to
the declaration. This might occur when a person who had
taken no part in the litigation leading to the declaration
sought to take advantage of the declaration afterwards by
claiming for example that a past general election, or a past
conviction or acquittal by a jury, had been invalidated by the

declaration granted.
A groundless fear
But the apprehensions voiced by Fitzgerald J. and
O'Higgins C.J. were never borne out, as the historical record
shows. No litigant ever attempted to invalidate a general
election, on foot of the declarations in the cases mentioned,
and an attempt to invalidate a past jury trial was
unsuccessful for reasons which are suggestive for the
purposes of the present case, and are considered later in this
judgment. Other cases where retrospective third party effect
was denied are also surveyed.
The married persons tax case, Murphy v. The Attorney
General [1982] I.R. 241, is the best known case in which the
effect of a declaration of invalidity of a statute on the rights
of third parties in relation to past transactions is discussed.
McDonnell v. Ireland [1998] 1 I.R. 134 is the most recent
case to address this topic as a central issue. There,
O'Flaherty J. at p. 144 made the suggestive statement that:[2006]4 I.R.
174S.C.
"The consequences of striking down legislation can only
crystallise in respect of the immediate litigation which gave
rise to the declaration of invalidity. This is what occurred in
Murphy v. The Attorney General [1982] I.R. 241, as well as in
Cox v. Ireland [1992] 2 I.R. 503."
The reasoning behind that statement, and others to a
similar effect, as expounded in McDonnell v. Ireland [1998]
1 I.R. 134 and other case, is the theme of the next section of
this judgment.
Unconstitutionality and nullity
In The State (Byrne) v. Frawley [1978] I.R. 326, the
prosecutor had been tried by a jury selected under the
provisions of the Juries Act 1927. He was convicted of
receiving stolen goods and sentenced to seven years penal
servitude. This occurred in December, 1975 and by
coincidence the decision of the Supreme Court in de Burca

v. Attorney General [1976] I.R. 38 was given during the
course of the trial. But the prosecutor made no point based
on this decision and went on with the jury that he had. He
appealed to the Court of Criminal Appeal but again took no
point about the unconstitutional composition of the jury.
Some months after this appeal was unsuccessful he
instituted proceedings under Article 40.4.2 of the
Constitution on the grounds that he was not being detained
in accordance with law. He thus asserted a right arising from
the declaration of inconsistency made in de Burca v.
Attorney General . He failed and without any u-turn on the
fundamental issue of inconsistency.
The majority judgment in this court was delivered by
Henchy J. He held at p. 350:"Because the prisoner freely and knowingly elected at his
trial to accept the empanelled jury as competent to try him, I
consider that he is now precluded by that election from
claiming that the jury lacked constitutionality The
prisoner's approbation of the jury was affirmed by his failure
to question its validity when he formulated grounds of
appeal against his conviction and sentence, and when his
application for leave to appeal was argued in the Court of
Criminal Appeal. It was not until some five months after his
trial that he first put forward the complaint that the jury had
been formed unconstitutionally. Such a volte face is
impermissible. Having by his conduct led the Courts, the
prosecution (who were acting for the public at large) and the
prison authorities to proceed on the footing that he accepted
without question the validity of the jury, the prisoner is not
now entitled to assert the contraryWhat has been lost in
the process of events is not
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175S.C.
the right guaranteed by the Constitution but the prisoner's
competence to lay claim to it in the circumstances of this
case" (emphasis added).
Significantly, Henchy J. added to the foregoing:"In basing this judgment on the special circumstances of
It will be seen that this decision proceeded on the basis of
preclusion or estoppel. It is significant to note that, like the
present proceedings, the prosecutor's proceedings were
under Article 40.4.2.
In December, 1975 there must have been many people
who had been convicted in the then relatively recent past,
but before the decision in de Burca v. Attorney General
[1976] I.R. 38, by an unconstitutionally selected jury.
Because of the particular circumstances of the prosecutor he knew the jury was unconstitutionally selected before it
convicted him - it was unnecessary for the court to address
the position of such persons. In The State (Byrne) v. Frawley
[1978] I.R. 326, at p. 349, however, the following is said by
Henchy J.:"As the United States Supreme Court has held in a number
of cases,it does not necessarily follow that court orders lack
binding force because they are made in proceedings based
on an unconstitutional statute. So far as the present case is
concerned, because of its particular circumstances it is not
necessary to decide whether a person who was convicted by
a jury recruited under the Act of 1927 and who did not raise
the unconstitutionality of the jury, either at the trial or
collaterally in the High Court before conviction, could have
later successfully impugned his conviction on that ground.
Whether he could have done so or not, it would seem that he
would now be debarred from doing so. It is now over two
years since the widely reported decision of this Court in the
de Burca case made it common knowledge that juries in
criminal cases tried prior thereto were recruited under
unconstitutional provisions. Yet, since then, no such
convicted person (other than the prisoner in this case) has
instituted proceedings to have his conviction or sentence set
aside on that ground. Such retrospective acquiescence in the
mode of trial and in the conviction and its legal
consequences would appear to raise an insuperable barrier

against a successful challenge at this stage to the validity of
such a conviction or sentence" (emphasis added).
That passage is of interest for two reasons. It plainly
envisages "retrospective acquiescence" as a barrier to an
attack on a conviction or sentence, including an application
under Article 40.4.2. Secondly, the court simply declined to
express a view on the position of a person who was not
guilty of such acquiescence since the date of the finding of
[2006]4 I.R.
176S.C.
unconstitutionality because that question did not arise on
the facts. But I would observe that any such person tried by
an unconstitutionally selected jury would have had standing
to challenge the relevant provisions of the Act of 1927
whereas the applicant here never had standing to challenge
the relevant provisions of the Act of 1935 on the only ground
on which it was struck down.
The question of the effect on third parties' rights of a
declaration of invalidity arose in an acute form in Murphy v.
The Attorney General [1982] I.R. 241. There, the plaintiffs
were a married couple who, under the terms of the tax
legislation then in force, paid more by way of income tax
than two unmarried persons in their position would have
done. They claimed that the relevant provisions of the tax
code were unconstitutional and were successful in this claim.
After this had happened, the State caused the matter to be
re-entered to "speak to the minutes of the order" in
particular on the question of "whether the judgment ought to
be held to operate prospectively only or retrospectively and,
if retrospectively, relative to what precise period of time and
to what tax payers, if any, other than the plaintiffs". It is the
latter question which is of most relevance here.
O'Higgins C.J. dealt with this aspect briefly, saying, at
p. 302:"Here we are concerned about a finance or taxation statute.
A particular duty lies on the government and on the
Oireachtas under the Constitution to provide each year for

the financial requirements of the State. This must be taken
as a matter of general knowledge. Any citizen who accepts
such taxation laws as are in operation and who pays his
taxes without protest does so in the full knowledge that as a
member of the community he will share the expenditure and
arrive at benefit from the central fund. Such a citizen can
scarcely have merits if after invalidity is established he seeks
to recover back what has already been collected and
appropriated with his knowledge and implied approval for
the common good."
Henchy J. stoutly expounded the view that a declaration of
inconsistency operated with effect from 1937. But he went
on to say at p. 307, immediately after the "judicial death
certificate" passage quoted by Laffoy J.:"While a declaration under Article 50.1 does not arise in this
case, it is of importance to note that, notwithstanding a
taken, or for any one of a number of other reasons,what was
Court in The
[2006]4 I.R.
177S.C. State (Byrne) v. Frawley . In other words, a
declaration under Article 50.1 that the law had lost validity in
Article 50.1 that, for want of consistency with the

the reach of legal action based on that invalidity" (emphasis
added).
At p. 314-5 Henchy J. said:"But it is not the universal rule that what has been done in
good cause of action. [He referred to State (Byrne) v.
Frawley .While it is central to the due administration of
justice in an ordered society that one of the primary
concerns of the Court should be to see that prejudice
suffered at the hand of those who act without legal
justification, where legal justification is required, shall not
stand beyond the reach of corrective legal proceedings, the
law has to recognise that there may be transcendent
considerations which make such a course undesirable
impractical or impossible.
For a variety of reasons the law recognises that in certain
circumstances what has happened has happened and
cannot, or should not, be undone. The irreversible
progressions and bye-products of time, the compulsion of
public order and the common good, the aversion of the law
from giving a hearing to those who have slept on their rights,
the quality of legality - even irreversibility - that tends to
attach to what has become inveterate or has been widely
accepted or acted upon, the recognition that even in the
short term the accomplished fact may sometimes acquire an
inviolable sacredness, these and other factors may convert
what has been done under an unconstitutional, or otherwise
void, law into an acceptable part of the corpus juris. This
trend represents an inexorable process that is not peculiar to
the law, for in a wide variety of other contexts it is either
foolish or impossible to attempt to turn back the hands of
the clock. As an eminent historian vividly put it, speaking of
the pointlessness of seeking to do or undo or reshape the
facts of history: 'the statute has taken its shape and can
never go back to the quarry'.
[2006]4 I.R.
178S.C.
immune from suit in the Courts; for any conclusion I might
express would in the main be obiter. In any event, I think
experience has shown that such constitutional problems are
best brought to solution, step by step, precedent after
precedent, and when set against the concrete facts of a
specific case" (emphasis added).
At p. 321, having fully acknowledged the different context in
which this question falls to be addressed in the United
States, Henchy J. quoted from a judgment of the United
States Supreme Court, in Chicot County Drainage District v.
Baxter State Bank (1939) 308 U.S. 371 at p. 374. Hughes
C.J. said:"The Courts below have proceeded on the theory that the
was not a law; and hence affording no basis for the
challenge decree It is quite clear, however, that such
broad statements as to the effect of a determination of
aspects, - with respect to particular relations, individual and
corporate, and particular conduct, private and
official.Questions of rights claimed to have become vested,
of status, of prior determinations deemed to have finality,
and acted upon accordingly, of public policy in the light of
the nature both of the statute and of its previous application,
demand examination. These questions are amongst the most
difficult of those which have engaged the attention of the
courts, state and federal, and it is manifest from numerous
decisions that an all-inclusive statement of a principle of

absolute retroactive invalidity cannot be justified" (emphasis
added).
It is important to restate that the conclusions quoted
from the judgment of Henchy J. are in the context of his
having firmly upheld the concept of invalidity attaching from
the date of enactment, in the case of a post-Constitution
statute found invalid. Nonetheless, having set out the extract
just given from the judgment of Hughes C.J., Henchy J.
commented at 321:"In other words, it has been found that considerations of
economic necessity, practical convenience, public policy, the
equity of the case and such like matters may require that
force and effect be given in
[2006]4 I.R.
179S.C.
certain cases to transactions carried out under the void
statute" (emphasis added).
A similar question arose in a quite different context in
McDonnell v. Ireland [1998] 1 I.R. 134. Section 34 of the
Offences against the State Act 1939 had provided that where
a civil servant was convicted by the Special Criminal Court of
the scheduled offence, he would immediately forfeit his
office in the public service. In Cox v. Ireland [1992] 2 I.R.
503 that section was found to be unconstitutional. The
plaintiff in McDonnell v. Ireland had lost his job in the postal
service on his conviction of a membership offence in May
1974. His application for reinstatement was rejected.
However, having noted the decision in Cox v. Ireland , he
instituted proceedings claiming that his dismissal had been
unconstitutional and had no legal effect. He also sought back
money, pension rights and damages. His claim was
dismissed by this court. O'Flaherty J. said at p.142:"In any event, since the provision was in place when the
plaintiff was prosecuted on the 30th May, 1974, he cannot
thus now avail of its extirpation as giving him cause of
action. This is established in both the majority judgments, as
well as in the minority judgment, of the court in Murphy v.

The Attorney General ".
O'Flaherty J. cited from the judgments of Henchy J. and
Griffin J. in Murphy v. The Attorney General [1982] I.R. 241
and continued at p.143:"The correct rule must be that laws should be observed until
they are struck down as unconstitutional. [He referred to the
process whereby bills are promulgated as laws and
continued] From that date, all citizens are required to tailor
their conduct in such a way as to conform with the
obligations of the particular statute. Members of society are
given no discretion to disobey such law on the ground that it
might later transpire that the law is invalid having regard to
the provisions of the Constitution. Every judge on taking
office promises to uphold 'the Constitution and the laws'; the
judge cannot have a mental reservation that he or she will
uphold only those laws that will not some day be struck
down as unconstitutional. We speak of something as having
'the force of law'. As such, the law forms a cornerstone of
rights and obligations which define how we live in an ordered
society under the rule of law. A rule of constitutional
interpretation which preserves the distinct status of statute
law which, as such, as necessitated by the requirements of
an ordered society and by 'the reality of the situation' (to
adopt Griffin J.'s phrase) should have the effect that laws
must be observed until struck down as unconstitutional.The
consequences of striking down legislation can only crystallise
in respect of the immediate litigation which gave rise to the
declaration of invalidity. This is
[2006]4 I.R.
180S.C.
what occurred in Murphy v. Attorney General [1982] I.R.
241 as well as in Cox v. Ireland [1992] 2 I.R. 503" (emphasis
added).
Consequences of the foregoing
The cases just discussed appear to me to establish a
number of propositions:-
(1) The courts have consistently asserted that postConstitution statutes found invalid having regard to the
Constitution are deemed to be invalid from the date of their
enactment. That has been authoritatively decided. There are
obiter statements, the best known of which was adopted by
Laffoy J. in this case, to the effect that a pre-Constitution
statute found inconsistent with the Constitution was afflicted
with that inconsistency from 1937 and not from any later
date. That proposition might be resisted (by reason of the
terms of Article 50.1 of the Constitution). I do not propose to
address that possibility here for reasons given above,
principally a reluctance to decide an issue in an Article
40.4.2 application adversely to a prisoner on so novel a
point.
(2) There is a well established line of authority for the
proposition that " it does not necessarily follow that court
orders lack binding force because they are made in
proceedings based on an unconstitutional statute"; that "
it is not the universal rule that what has been done in
pursuance of the law which has been held to have been
invalid for constitutional or other reasons will necessarily
give a good cause of action the law has to recognise that
there may be transcendent considerations which make such
a course undesirable impracticable or impossible"; that "
a declaration under Article 50.1 that a law had lost validity in
condemned for lack of validity"; that "[t]he consequences of
invalidity".
(3) In applying the considerations mentioned in the
preceding paragraph, " it has been found that
considerations of economic necessity, practical convenience,
public policy, the equity of the case and such like matters
may require that force and effect be given in certain cases to
transactions carried out under the void statute".
(4) Such force and effect may have to be given " because
of a person's conduct or because of the irreversible course

events have
[2006]4 I.R.
181S.C.
taken, or for any one of a number of other reasons";
because "[t]he irreversible progressions and by-products of
time, the compulsion of public order and the common good,
the aversion of the law from giving a hearing to those who
have slept on their rights, the quality of legality - even
irreversibility - that tends to attach to what is becoming
inveterate or has been widely accepted and acted upon, the
unconstitutional law, or otherwise void, into an acceptable
part of the corpus juris"; because "[q]uestions of rights
claimed to have become vested, of status, of prior
determinations deemed to have finality, and acted upon
accordingly, of public policy in the light of the nature both of
the statute and of its previous application, demand
examination".
(5) There is also authority for the proposition that the court
should not attempt to lay down a rigid general rule as to
what proceedings under an invalid statute will be given force
and effect and what proceedings may be struck down by
litigation:
'I deliberately avoid any general consideration of the broad
question as to when acts done on foot of an
unconstitutional law may be immune from suit in the Courts
I think experience has shown that such constitutional
problems are best brought to solution step by step,
precedent after precedent, and when set against the
concrete facts of a specific case.'
All these citations are taken from the cases mentioned
above, are of long standing as statements of Irish law and
have not been contradicted by any authority to which we
have been referred.
The High Court judgment

The sentence quoted above at reference (3)
epitomises the basis of two disagreements I must very
respectfully express with the judgment of Laffoy J. The
existing case law clearly demonstrates that there are
circumstances in which things that have been done under
and by virtue of a statute which has been declared
inconsistent or invalid must nevertheless continue to be
given force and effect. To that extent such things - a
conviction before an unconstitutionally constituted tribunal;
a series of general elections with numbers on the ballot
paper, a payment of tax computed under an unconstitutional
provision; a dismissal from public service under an
unconstitutional provision - cannot be described as nullities
insofar as their continuing force and effect are concerned.
The distinction at the heart
[2006]4 I.R.
182S.C.
of the judicial approach in all the cases cited is one between
the statute itself, void ab initio or since 1937, and
"transactions carried out under the void statute" which may
not themselves be void, or nullities, at all. Laffoy J. does not
appear to address this distinction, but proceeds directly from
the established unconstitutionality of the statute to a finding
of nullity of everything done under it as though one followed
inexorably from the other. But Henchy J. envisages a
declaration of inconsistency not being always available as
the basis of a "claim for nullification": such a claim would be
redundant if what had occurred was already a "nullity" by
operation of law. That, however, is how Laffoy J. described
the conviction and sentence here, as nullities, and that view
(set out in a passage cited earlier in this judgment) seems
central to the logic of the judgment. It does not appear
consistent with the cases discussed above. In my view the
High Court erred in failing to address the question of whether
the conviction and sentence in the applicant's case are
matters that require to be given continuing force and effect.
This question clearly arises for consideration on the well

established authorities.
The fact is that in the cases cited the conviction, the
payment of tax, the long series of general elections, and the
dismissal all occurred in reality, just as the sections
impugned in those cases had nevertheless commended
themselves to the Oireachtas or its predecessor and had in
reality been acted upon, no doubt in good faith, for periods
up to half a century or (as in this case) considerably more.
Indeed, Laffoy J. acknowledged at para. 10 that:"It is undoubtedly the case that the consequences of a
declaration under Article 50.1 may be determined by a
variety of factors, for example, the conduct of the person
relying on the declaration or the fact that an irreversible
course of events has taken place, so that what was done on
foot of the condemned statutory provision may not
necessarily be regarded as a ground for a claim for
nullification or other legal redress, as Henchy J. noted in
Murphy v. The Attorney General [1982] I.R. 241 citing the
decision of the Supreme Court in The State (Byrne) v.
Frawley [1978] I.R. 326."
But immediately after these words Laffoy J. went on to
say, in a passage which is the basis of my second respectful
difference with her:"However, on this application I am not concerned with
whether the applicant may be in a position to maintain a civil
action for wrongful imprisonment in the future. I am not
concerned with whether there are other persons in custody
who have been convicted of a plea of guilty of an offence
under s. 1(1), in circumstances where the Director of Public
Prosecutions entered a nolle prosequi in relation to other
charges. I am not concerned with whether the aggregate
effect of the
[2006]4 I.R.
183S.C.
declaration of unconstitutionality may reveal an 'appalling
vista', nor whether that possibility is mitigated by the
authorities relied on by the respondent. None of these

considerations are relevant to the determination I have to
make."
I am in agreement with the great bulk of what Laffoy J.
said in the paragraph just quoted. In particular it is
distasteful and often illogical to deploy a "floodgates"
argument of the type she mentions against the enforcement
of a clear individual right. This judgment ignores any such
argument. But I cannot agree with the first sentence in the
quotation, insofar as I cannot see why, in principle, the legal
significance of the individual circumstances of a case should
be confined to a rebutting a claim for wrongful imprisonment
or other civil action. That is the only role specifically
envisaged by Laffoy J.
The reference in the judgment of Laffoy J. to that cause
of action, and to the possibility that notwithstanding the
unconstitutionality of the statute leading to imprisonment,
the prisoner's own conduct might be a bar to recovering
damages, probably derives from Henchy J.'s remarks at p.
307 and pp. 314 and 315 in Murphy v. The Attorney General
[1982] I.R. 241. Henchy J. certainly referred to factors which
"may debar a person from obtaining redress in the courts for
injury, pecuniary or otherwise, which would be justiciable
and redressable if such considerations had not intervened".
He also declined to consider "the broad question as to when,
and to what extent, acts done on foot of an unconstitutional
law may be immune from suit in the Courts ".
I do not accept that in making these references
Henchy J. was limiting the "force and effect" which might be
given to "transactions carried out under the void statute",
exclusively to the provision of a possible answer to a civil
action for damages. The passages quoted appear in part VII
of the judgment, the salient portion of which begins, "But it
is not a universal rule that what has been done in pursuance
of a law which has been held to have been invalid for
constitutional or other reasons will necessarily give a good
cause of action: see, for example, the decision of this court
in The State (Byrne) v. Frawley ". The State (Byrne) v.
Frawley [1978] I.R. 326 was an Article 40.4.2 application:
this seems to me necessarily to involve the proposition that

an application under Article 40.4.2 cannot be excluded from
the general terms "cause of action", "redress" and "suit" as
they are used by Henchy J. in this part of the judgment.
Accordingly I cannot agree with Laffoy J. that "the conduct of
the person relying on the declaration or the fact that an
irreversible course of events has taken place" is in all
circumstances unavailable as an answer to an application
under Article 40.4.2. Indeed, if such factors were unavailable
in answer to such an
[2006]4 I.R.
184S.C.
application it is difficult to see how The State (Byrne) v.
Frawley could have been decided as it was.
I should like, additionally, to express my agreement
with Murray C.J.'s observations on the High Court judgment
in this case.
Piggybacking
The cases cited above all relate to attempts by a third
party to piggy back on a declaration of invalidity or
inconsistency obtained by another person; in more formal
language, to assert a right to a benefit based on a
declaration obtained by another and (in this case) on the
basis of a jus tertii which is unavailable to the applicant. In
each case, these attempts were unsuccessful on the basis of
something in the nature of preclusion arising on the
individual facts of the cases. Counsel for the applicant was
unable to point to any instance of the successful invocation
of a declaration based on a jus tertii with regard to a past or
closed legal dealing, process or transaction.
Furthermore it is clear, on the basis of The State
(Byrne) v. Frawley [1978] I.R. 326, that this preclusion (or
prohibition of a volte face, as Henchy J. also put it) could
apply in an Article 40 application in respect of a person
whose detention was a continuing one, notwithstanding the
unconstitutionality in the process leading to the
imprisonment that had emerged in another person's case.
The discussion just concluded coercively demonstrates

that a relief, including relief under Article 40.4.2 in relation to
acts done under or in consequence of an unconstitutional
statute, may be resisted on grounds arising from "the
concrete facts of a specific case". These facts may exhibit
one or other of the grounds on which relief has been refused
in the cases to date, described in the reports as (inter
alia)preclusion, estoppel, acquiescence, delay, public policy,
equity, impracticability and the impermissibility of a volte
face by a litigant, all of which (perhaps with more) might also
be described as abuse of process.
All of these things are widely recognised in the general
law as factors which may prevent success in litigation or may
even affect a person's ability to pursue a claim for legal
redress. Accordingly, I do not regard their availability as an
answer to an application under Article 40.4.2 as in any way
qualifying or diluting the court's fundamental obligation on
such an application to enquire as to whether it can be
satisfied that the applicant is being detained "in accordance
with the law".
All of the cases cited appear clearly to establish that
the phrase "in accordance with law" requires to be construed
having regard to the law generally and the Constitution as a
whole, as I propose to do here. This, in turn, is consistent
with the significance to be given to the term "justice" as
[2006]4 I.R.
185S.C.
it appears in the Constitution. In C.C. v. Ireland [2006] IESC
33, [2006] 4 I.R. 1. I cited a passage from O'Higgins C.J. in
The State (Healy) v. Donoghue [1976] I.R. 325 at p. 348
which also seems relevant here:"In the first place the concept of justice, which is specifically
referred to in the preamble in relation to the freedom and
dignity of the individual, appears again in the provisions of
Article 34 which deal with the Courts. It is justice which is to
be administered in the Courts and this concept of justice
must import not only fairness and fair procedures, but also
regard to the dignity of the individual. No court under the

Constitution has jurisdiction to act contrary to justice."
The "individual" referred to in the penultimate
sentence of this quotation includes the applicant here or a
person in his position but is not limited to such person. The
phrase certainly includes others who have become involved
in the facts which give rise to this case and in particular the
victim, the applicant does not deny that he knowingly
treated unlawfully.
Accordingly, each of the factors enumerated may, in
an appropriate case, be central in the protection of the rights
of others, or of the community as a whole, as well as those
of the applicant. To put this another way, they may in an
appropriate case be central to the achievement of the
common good and of that justice and true social order
prominently mentioned in the Preamble to the Constitution,
relied upon by counsel for the respondent in his argument on
this appeal. Whether this is so in the case of this applicant is
the subject of the next section of this judgment.
The facts of this case in their legal context
The question in this case is not whether s. 1(1) is
inconsistent with the Constitution - it plainly is in view of the
judgment of this court of the 23rd May, 2006 - but whether
this applicant has competence to lay claim to the relief he
seeks in the circumstances of this case or whether force and
effect must continue to be given to the order of November,
2004. The phrase is an adaptation of the words of Henchy J.
in The State (Byrne) v. Frawley [1978] I.R. 326. Many,
though not all, of the factors enumerated in that judgment
which deprived the prosecutor of this competence appear to
be replicated here. No point about the constitutionality or
constitutional construction of the section was taken at or
before the trial; no appeal was brought on that basis; the
point was not raised until some eighteen months after his
trial, as opposed to five months in The State (Byrne) v.
Frawley . Like the prosecutor, this applicant has "by his
conduct led the courts, the prosecution (who were acting for
the public at large) and the prison authorities" to proceed on
the footing that he accepted the validity of the
[2006]4 I.R.
186S.C.
charge against him. One might add that the victim and her
family were led to this view as well. As in The State (Byrne)
v. Frawley , his present attitude is a volte face.Moreover, by
comparison with The State (Byrne) v. Frawley the position
of the present applicant is much weaker. He pleaded guilty,
whereas the prosecutor was convicted by the jury and he
had no locus standi to raise the point about the absence of a
defence of mistake: it simply did not arise on the facts of his
case. By contrast, the prosecutor undoubtedly had locus
standi to challenge the composition of the jury that tried
him. All these considerations suggest a lack of competence
in the applicant to claim this relief.
There are also considerations of a more public and
general nature. These are the "transcendent considerations",
referred to in the extract from the judgment of Henchy J. in
Murphy v. The Attorney General [1982] I.R. 241 which may
make the granting of relief in circumstances such as these
"undesirable impractical or impossible [why] in certain
circumstances what has happened has happened and
cannot, or should not, be undone". These suggest the need
to give continued force and effect to the order for the
applicant's imprisonment.
The State repeatedly emphasised on the hearing of
this appeal that the applicant was, in effect, asserting a right
not his own: the right of the applicant in C.C. v. Ireland
[2006] IESC 33, [2006] 4 I.R. 1 a very young man who
claimed to have been misled as to the girl's age to be
allowed to put the defence of honest or reasonable mistake
before the jury as a defence. It was on that basis and no
other that C.C. was successful in his action, leading to the
declaration on which the applicant now relies. Accordingly,
the respondent says that the present case is a back door
method of allowing the applicant to gain the benefit of the
facts of C.C. v. Ireland [2006] IESC 33. If the jus tertii rule
would have prevented him appropriating or inventing such
facts for a constitutional challenge of his own, the same rule

(the respondent says) should preclude this indirect method
of achieving the same result.
To this, the applicant retorts that he does not seek to
rely on the facts of C.C. v. Ireland [2006] IESC 33, [2006] 4
I.R. 1, which are specific to the applicant in C.C. v. Ireland
[2006] IESC 33, but only on the judicial declaration that was
the result of the case. This declaration - that the subsection
was inconsistent with the Constitution - is in the applicant's
contention a public declarationin rem and has force and
effect independent of the arguments and the facts that gave
rise to it.
The jus tertii rule is a very necessary regulation of
locus standi - standing to sue. It prevents the proliferation of
litigation and the expense and uncertainty it causes by
requiring that each litigant must show that on the facts of his
situation he is personally affected by the law he challenges.
[2006]4 I.R.
187S.C.
It prevents necessary and important laws from being struck
down on a purely hypothetical supposition which may never
arise in real life and avoids the tax payer having to fund the
holding of pointless moots. Once a declaration of
inconsistency or invalidity is made, however, its effect
appears to me to be, necessarily, universal.
But when one comes to discuss the circumstances in
which "force and effect" may require to be given to things
done, prior to the declaration, under the struck down
provision, one must approach the issue on a case by case
basis (see Murphy v. The Attorney General [1982] I.R. 241 at
p. 315). On the facts of the applicant case it appears to me
highly relevant that the applicant, who fully accepted the
facts alleged against him and the validity of the law which
criminalised those facts, now seeks his release on the basis
of a declaration to which he himself could never have been
entitled. His release would be a "windfall" to which he has no
entitlement in justice while at the same time being a
negation of the closure, solace and vindication already

accorded to a victim of a grave crime, and an affront to true
social order. Having regard to the terms of the Preamble to
the Constitution and of Article 40.3.1 and 2 these appear to
me to be constitutional interests requiring, like the rights of
the applicant, vindication by the courts in an appropriate
case. They were so vindicated by the sentence imposed in
November, 2004 by an order requiring the detention of the
applicant for a term of years. But this order must fall unless
it is one of those things done under the void statute to which
force and effect may still be given.
The factors tending to preserve the "force and effect"
of the sentence are especially obvious in the case of a crime
of an aggravated nature against an individual person. The
defendant here, the present applicant, was the father of a
friend and classmate of the victim. That is how he
affirmatively knew her age. It was on that basis that the girl
was in his house and, undoubtedly, under his care. The
decision to involve the authorities and to pursue the case to
trial must have been a difficult and traumatic one. The
resolution of the criminal proceedings by a plea of guilty
must equally have been a great relief. Apart from these
personal considerations there was a public interest in
resolving these grave allegations, if appropriate, by a finding
of guilt. These considerations involve "the compulsion of
public order and the common good, the aversion of the law
from giving a hearing to those who have slept on their rights,
the quality of legality - even irreversibility - that tends to
attach to what has become widely accepted and acted
upon", and "questions of right claimed to have become
vested or prior determinations claimed to have finality
and acted upon accordingly, of public policy in the light of
both the statute and of its previous application ". In the
circumstances of the present case they clearly involved the
State's obligation to vindicate, in the case of
[2006]4 I.R.
188S.C.
injustice done, the "life, person and good name" (Article

40.3.2) of the citizen who was the applicant's victim and of
her family. This, indeed, is a matter of high public policy,
which is one of the factors regarded in the cases as
permitting "force and effect" to be given, "in accordance with
the law" (Article 40.4.1) to acts done under void statute.
If, therefore, one considers this case along the lines
suggested by the language quoted above, one considers it
" with respect to particular relations, individual and
corporate, and particular conduct, private and official", and
with regard to the other factor mentioned by Henchy J. I
must on the authorities avoid any general consideration of
when acts done on foot of an unconstitutional law may be
immune from legal challenge. But the concrete facts of this
case present a strong resistance to setting aside the
conviction on foot of a plea of guilty and the sentence which
followed it on the basis of an unconstitutionality in a long
established statute established in an action by another
person, who had what this applicant lacks, locus standi to
raise the point on the basis of which the relevant subsection
was found inconsistent with the Constitution. It is scarcely
possible to think of a less meritorious applicant. I would not
grant relief unless obliged to do so.
The principles upon which relief was refused in The
State (Byrne) v. Frawley [1978] I.R. 326 and McDonnell v.
Ireland [1998] 1 I.R. 134 and limited in Murphy v. The
Attorney General [1982] I.R. 241 to those who had first
asserted their rights seem to me to provide a more than
adequate basis in the long established jurisprudence for
refusing relief in the present case. The applicant is, indeed, a
singularly inappropriate candidate for relief. Apart from the
loathsome nature of his crime (which is relevant only insofar
as it engages competing constitutional considerations,
specifically the need to vindicate the victim) there is the fact
that all of the persons denied relief in the cases mentioned
would have had locus standi to rely on the point giving rise
to the finding of invalidity or inconsistency with the
Constitution. The applicant here has not: no right of his has
at any time been breached, even theoretically. The facts of
his case are the diametric opposite of what would have been
required to confer such locus standi on him. The facts of his
case fit almost every rationale on which relief has, in the
decided cases, been refused: indeed the concrete facts of
this case suggest that the respondent's position here is a
fortiori, compared to those of the respondents in the cases
mentioned. These considerations might themselves be
outweighed if there were any plausible suggestion that the
applicant here had suffered any actual injustice or
oppression: in fact, there is not a scintilla of evidence for that
proposition. The contrary was not argued.
The particular difficulties affecting an applicant for
Article 40.4.2 relief who is a convicted prisoner have been
well epitomised in this court
[2006]4 I.R.
189S.C.
in the judgment in The State (Aherne) v. Cotter [1982] I.R.
188 as follows at p. 203:"Before a convicted person who is serving his sentence may
be released under our constitutional provisions relating to
habeas corpus, it has to be shown not that that detention
resulted from an illegality or a mere lapse from jurisdictional
propriety, but that it derives from a departure from the
fundamental rules of natural justice, according as those rules
require to be recognised under the Constitution in the
fullness of their evolution at the given time and in relation to
the particular circumstances of the case. Deviations from
legality short of that are outside the range of habeas
corpus."
That passage puts part of the applicant's difficulties
squarely. He has not been able to allege any departure from
natural justice in the way he has been treated. He
acknowledges his guilt and that his claimed release would be
a "windfall". On the other hand, it must be manifest that his
release would be a great injustice to others. But it is not
necessary to decide the case on that basis. The applicant is
here attempting to do what no one has done before: to set
up a declaration based on the right of a third party in order

to invalidate a past and closed transaction, his criminal trial.
This cannot be done because, on the long established and
unchallenged jurisprudence the trial and sentence are things
which require to be given continued force and effect. The
applicant's release would require a departure from that line
of authority which I am satisfied there is no warrant for
doing. I am satisfied, in other words, that the applicant is
now and always has been detained in accordance with law.
Points not considered
It will be seen that I have not found it necessary to
deal with some of the more fundamental submissions made,
in the alternative, on behalf of the respondent. These include
a suggestion that the findings, notably in Murphy v. The
Attorney General [1982] I.R. 241 as to the time at which the
quality of inconsistency or invalidity attaches to a struck
down statute or part thereof should be revisited. Nor have I
considered the suggestion that the court has a jurisdiction to
delay the effect of a declaration of inconsistency or invalidity.
It was not necessary to deal with these points since the
issues raised by the present case were capable of resolution
on the existing jurisprudence. I also believe that the points
raised, supported as they were by elaborate scholarly
argument, are in any event more suitable to be entertained
at or immediately after the hearing of a plenary action in
which a declaration of invalidity or inconsistency is claimed.
In this regard I think counsel for the applicant was correct in
his forceful submission that these
[2006]4 I.R.
190S.C.
points, interesting and important as they undoubtedly are,
do not properly arise on the hearing of this application.
I have not found it necessary, either, to consider
foreign law or any judgment of the courts of any foreign
state or entity, apart from the opinion of Hughes C.J. cited in
the judgment of Henchy J. in Murphy v. The Attorney
General [1982] I.R. 241. Counsel for the applicant was
unable to point to the law or Constitution of any foreign state

as exhibiting the principle of absolute retrospectivity for
which he contended. While that is an interesting fact, and
not a surprising one, my judgment is based wholly on
established Irish law and Irish precedent. The legal position
based on these sources is so clear and so well established
that I have not found it necessary to travel further afield. I
prefer to ground myself on what Henchy J. called "the
concrete facts of a specific case", and to apply to them the
well established legal principles to be found in the
authorities. This approach emphasises why, as Denham J.
correctly puts it, "The issue of retrospective application is not
dealt with in C.C. v. Ireland [2006] IESC 33, [2006] 4 I.R. 1
instead this issue has been raised in a subsequent,
unrelated litigation, this case". The applicant in C.C. v.
Ireland [2006] IESC 33, did not involve retrospection: this
claim does. The court must deal with the cases which come
before them, and take the facts of those cases as they find
them. This case involved retrospection as a central feature
so that it is not only proper but necessary to address it.
A principle
This judgment recalls that no one has yet succeeded in
impeaching a conviction or sentence arising under a
statutory provision which, later, another person succeeds in
having declared unconstitutional; the principles giving rise to
the established power to continue to give force and effect to
such an order of the court; the very great imperative,
especially in a grave case of crime against an individual
person, to preserve such an order, and the totally
exceptional circumstances, involving injustice, oppression or
departure from natural justice, which might prevent that
being done in a particular case.
These propositions, and the constitutional provisions
and decided cases on which they are based, enable one to
derive a principle of non-retrospectivity in the effect of a
declaration of inconsistency or invalidity of a statutory
provision on concluded cases (other than that in relation to
which the declaration is granted) save in exceptional
individual cases of the sort mentioned. This is wholly
consistent with the decisions of the courts for more than

three decades, prior to which the issue does not appear to
[2006]4 I.R.
A. v. Governor of Arbour Hill PrisonHardiman J. Geoghegan J.
191S.C.
have arisen. During that period no exception to which the
researches of counsel can point has been found.
I have read what Murray C.J. has said with regard to
the general principle mentioned above, and with regard to
the nature of any exceptions to it. I very respectfully agree
with him and, like him and for the reasons given above, do
not consider that the present case could possibly qualify as
an exception. On the contrary, the requirements of justice
strongly demand that force and effect be given to the
sentence justly imposed on the applicant here. The
"compulsion of public order and the common good" ( Murphy
v. The Attorney General [1982] I.R. 241 at p. 314) require no
less.
Conclusion
It was for the above reasons that I concurred in the
order of the court pronounced by Murray C.J. on the 2nd
June, 2006.
Geoghegan J.
The crucial issue in this case is whether in the event of
a declaration of unconstitutionality of a pre-1937 statutory
enactment creating an offence, all previous convictions and
sentences for such offence must be treated as nullities.
Laffoy J., has taken the view that that is the position in law. I
beg to differ, for reasons which I will elaborate upon in this
judgment. In short, I believe that on any reasonable
interpretation of Bunreacht na hireann , convictions and
sentences pursuant to enactments not declared
unconstitutional, are at the very least deemed to be lawful at
the time of the relevant court orders and must be treated as
remaining lawful following on a declaration of
Before I consider these questions in any depth, I think
it important that the background to and context in which this

case came to a hearing should be fully set out in one
judgment. I propose to do so as briefly as I can.
Originally, two separate applications for judicial review
relating to sex with a girl under fifteen came on for hearing
before Smyth J. in the High Court. There was similarity
between the issues in each case but they were not identical.
In each case, however, the respective applicant was seeking
to establish in advance of a criminal trial that a genuine
mistake as to age would be a good defence but the
circumstances were slightly different. In one of them, C.C. v.
Ireland [2006] IESC 33, [2006] 4 I.R. 1 which is the case
ultimately relevant here, the suggestion was that s. 1(1) of
the Criminal Law Amendment Act 1935 which created the
offence of unlawful carnal knowledge with a girl under the
age of fifteen implicitly incorporated mens rea so that
genuine mistake of age would be a good defence. In
[2006]4 I.R.
A. v. Governor of Arbour Hill PrisonGeoghegan J.
192S.C.
the other case, P.G. v. Ireland , the offence was the common
law offence of sexual assault but under the provisions of s.
14 of the same Act of 1935, consent was no defence if the
girl was under fifteen years of age. The issue therefore of
whether mistake as to age could be a defence or not arose
also in relation to that offence. Each applicant had a fallback
position. Each, if necessary, was claiming to have the
relevant statutory provision declared unconstitutional if the
court took the view that the mens rea element could not be
read into it.
Smyth J. correctly considered that these issues were
not appropriate to be dealt with by way of preliminary
judicial review but should be left to the trial judge. However,
he nevertheless went on to express views on the issue in
favour of the Director of Public Prosecutions and against the
applicants. In these circumstances on appeal to this court,
this court reluctantly, decided that as a matter of justice it
would have to decide the issue of a defence of mistake as to
age though it left to the trial court issues about onus of proof
and burden of proof. The court took that view because once
a High Court Judge had expressed an opinion on the issue,
albeit obiter, it was inconceivable that a trial judge in the
Circuit Criminal Court would rule otherwise.
Largely influenced by a body of modern English case
law in the House of Lords and, indeed, the Court of Appeal
also, this court unanimously held that mistake as to age was
certainly a good defence in the case of the sexual assault
charge. The court, however, by a majority of four judges to
one took a different view in relation to C.C. v. Ireland [2006]
IESC 33, [2006] 4 I.R. 1 which was dealing with the statutory
unlawful carnal knowledge offence. The majority judgments
were delivered by myself and Fennelly J. These were
concurred in by Hardiman and McCracken JJ. with Denham J.
delivering a dissenting judgment. Fennelly J. and I reluctantly
came to the view for the reasons set out in our respective
judgments, delivered the 12th July, 2005, that having regard
to the structure of the Act of 1935 and the express wording
in some other sections and its statutory antecedents it was
impossible to incorporate by implication the defence of
mistake as to age or in other words amens rea element.
Because this view was taken by the majority of this
court, it then became necessary to consider the
constitutionality of s. 1(1) of the Act of 1935. A court
consisting of Murray C.J., Hardiman, Geoghegan, Fennelly
and McCracken JJ. and, therefore, slightly differently
composed, unanimously held by concurrence with a single
judgment delivered by Hardiman J. that the subsection was
not consistent with the Constitution and had, therefore, not
been carried over.
I should mention at this stage that the facts in C.C. v.
Ireland [2006] IESC 33, [2006] 4 I.R. 1 gave rise to a
genuine possibility at least that the
[2006]4 I.R.
193S.C.
defence of mistake as to age, if it existed, might be
sustained. The applicant in that case was eighteen years of

age and was charged with having had unlawful carnal
knowledge of a girl under the age of fifteen years. At all
times he admitted having sexual intercourse with the girl but
claimed that it was with consent. He alleged that the girl had
told him she was sixteen years of age. The applicant in this
case, following on the judgment of the Supreme Court on the
constitutionality issue, applied for an Article 40 inquiry in the
High Court. The basis of thehabeas corpus application was
that the applicant pleaded guilty in the Dublin Circuit
Criminal Court to a count of unlawful carnal knowledge with
a girl under fifteen contrary to s. 1(1), of the Criminal Law
Amendment Act 1935 and was sentenced to three years
imprisonment by Judge O'Donnell. The applicant at the
material time was aged 38 and the girl twelve, a fact which
he then knew. Nevertheless he has claimed that as a
consequence of the declaration of unconstitutionality he had
effectively pleaded guilty to an offence that did not exist and
that, since the warrant referred to this offence, it was itself
bad on its face and that his detention was, therefore,
unlawful. That submission was upheld in a closely reasoned
judgment of Laffoy J. In my view, the conclusion arrived at by
Laffoy J. is incorrect.
It is a fallacy to assume that once it is declared that a
pre-1937 statutory provision creating an offence is
inconsistent with the Constitution and was, therefore, not
carried over, prior court orders made pursuant to
proceedings under it must be treated as nullities.
Other members of the court have reviewed in some
detail the Irish caselaw relevant to the issue, including
Murphy v. The Attorney General [1982] I.R. 241, de Burca v.
Attorney General [1976] I.R. 38, [1961] I.R. 114, McMahon
v. Attorney General [1972] I.R. 69, McDonnell v. Ireland
[1998] 1 I.R. 134 and particularly, The State (Byrne) v.
Frawley [1978] I.R. 326. It is important to emphasise that
while there are passages in and aspects of all these cases
which have relevance to and are helpful in determining the
issue which this court has had to consider, none of them in
my opinion can be relied on as decisive authorities either in
favour of the view which this court has taken or the view
which Laffoy J. took in the High Court. There are, however,
important dicta in them which indicate that, for reasons of
good order, "inexorable logic" does not necessarily
determine legal consequences.
At this point, it is useful to refer to a comment made
by the authors of J.M. Kelly, The Irish Constitution
(Butterworths, 4th ed., 2003) at p. 895. This comment is
already cited in the judgment of Hardiman J. at para. 216. It
reads as follows:"The question of the time from which a law, which has been
declared inconsistent with or invalid under the Constitution,
is to be
[2006]4 I.R.
194S.C.
considered a nullity, and the closely related question of the
retroactive potential of such a declaration, are matters which
for many years escaped scrutiny altogether and in the last
thirty years or so have only been even partially explored."
Hardiman J. has expressed agreement with that comment
and so do I. Theobiter dicta of Henchy J. in Murphy v. The
Attorney General [1982] I.R. 241 have always been treated
with the greatest respect as was done by Laffoy J. in this
case. But in so far as they fall outside the context of that
particular case referring to the recovery of back tax by the
party to the action they must be treated with caution. I am
not suggesting in any way that the statements of principle
by Henchy J. are incorrect. But he himself has used qualifying
words such as, for instance, the word "normally". More
important, in my view is his implied approval of the dicta of
Hughes C.J. in the judgment of the United States Supreme
Court in Chicot County Drainage District v. Baxter State
Bank (1939) 308 U.S. 371 at p. 374. That passage expressly
cited by Henchy J. reads as follows at p. 321:"The courts below have proceeded on the theory that the

challenged decree. Norton v. Shelby County (1886) 118 U.S.
425 at p. 442; Chicago, I & L. Rly. Co. v. Hackett (1931) 228
U.S. 559 at p. 566. It is quite clear, however, that such broad
statements as to the effect of a determination of
aspects - with respect to particular relations, individual and
corporate, and particular conduct, private and official.
Questions of rights claimed to have become vested, of
status, of prior determinations deemed to have finality and
acted upon accordingly, of public policy in the light of the
nature both of the statute and of its previous application,
demand examination. These questions are among the most
difficult of those which have engaged the attention of courts,
state and federal, and it is manifest from numerous decisions
that an all-inclusive statement of a principle of absolute
retroactive invalidity cannot be justified."
Henchy J. goes on to comment as follows:"In other words, it has been found that considerations of
equity of the case, and suchlike matters, may require that
the force and effect be given in certain cases to transactions
carried out under the void statute."
[2006]4 I.R.
195S.C.
In introducing Chicot County Drainage District v. Baxter
State Bank (1939) 308 U.S. 371, Henchy J. at p. 321 does
refer to the fact that the United States Supreme Court is
unencumbered "by any constitutional imperative such as is
contained in Article 50 or Article 15.4.1 of our Constitution".
It is clear in my view that Henchy J. did not consider this
qualification to be relevant to the point he was making and

in particular to his reliance on the dicta of Hughes C.J. I say
this because he goes on to point out that the approach
enunciated by Hughes C.J. has been adopted by the United
States Supreme Court "even in cases where the statute has
been declared to have been invalid ab initio".
The part of that passage of Hughes C.J. to which I
would draw particular attention is his reference to "prior
determinations deemed to have finality and acted upon
accordingly". The use of the word "deemed" brings in a
concept which, as will emerge later on in this judgment, is to
my mind highly relevant.
Before I reach that stage however, I would like to refer
in greater particularity to the judgment of O'Flaherty J. in
McDonnell v. Ireland [1998] 1 I.R. 134. As I have already
indicated, I believe that the precise issue which arises in this
case has to be decided by this court for the first time
because I do not think that there is any authority directly in
point, one way or the other. In attempting that exercise, I
find assistance from the judgment of O'Flaherty J. It
reinforces my own thinking as to how the lawfulness or
otherwise of previous proceedings and therefore of the
respondent's detention should be considered. O'Flaherty J.
recalled that O'Higgins C.J. in his minority judgment in
Murphy v. The Attorney General [1982] I.R. 241, had
concluded that a declaration as to the invalidity of a law
having regard to the Constitution could operate only from
the moment such invalidity was declared. O'Higgins C.J. had
based that view both on the wording of the Constitution and
on the "requirements of an ordered society". As O'Flaherty J.
points out, O'Higgins C.J. at p. 301 had opined that the idea
that a declaration of invalidity operated to say that the
provision was void ab initio "would provide the very
antithesis of a true social order - an uneasy existence
fraught with legal and constitutional uncertainty."
I entirely agree, however, with the view then
expressed by O'Flaherty J. at p. 142 that the approach of the
majority in Murphy v. The Attorney General [1982] I.R. 241,
while holding that the declarations of invalidity operatedab
initio "produced more or less the same result." There were

severe limitations on the right to recover back tax. I also
agree with the conclusion of O'Flaherty J. at p. 143 stated as
follows:"The correct rule must be that laws should be observed until
they are struck down as unconstitutional."
[2006]4 I.R.
196S.C.
In this connection, I see no difference between post-1937
legislation and pre-1937 legislation. A judge bound under his
declaration on taking office to uphold the laws would not be
entitled of his own volition to disregard a pre-1937 statute on
the basis of his or her own theory that the enactment was
inconsistent with the Constitution. Unless and until there is a
formal declaration to that effect those laws are binding. They
are binding because they must be deemed to be valid and
constitutional. Thus, in the case of a prosecution under s.
1(1) of the Criminal Law Amendment Act 1935 instituted and
completed before any declaration of inconsistency has been
made by this court, a "good order" interpretation of the
Constitution must clearly require that orders and warrants
made in a completed criminal case under the impugned
provision must continue to be deemed valid. Murray C.J.
points out in his judgment, in this respect the position is no
different than the common law practice which has never
been constitutionally challenged, that a decision which
effectively changes the law does not confer any right to
reopen previous court decisions.
The Director of Public Prosecutions was acting lawfully
when he commenced the prosecution against the applicant.
It is not correct in my view to say that the Director of Public
Prosecutions bona fide believed that he was acting lawfully
and cannot be faulted on that account but that he was in
fact acting unlawfully. Quite simply, he was acting lawfully. I
assume that there was a return for trial. That return for trial
was itself lawful. The District Court Judge making the return
for trial was bound under his declaration of office to assume

jurisdiction in the preliminary inquiry and properly to
consider whether there should be a return for trial or not.
Once the applicant was returned for trial it was proper for
the Director of Public Prosecutions to prefer an indictment
against him. Equally, it was proper, of Judge O'Donnell in the
circumstances, to have the applicant duly arraigned and to
accept the consequent plea of guilty. Judge O'Donnell was
then not merely entitled but was obliged to impose an
appropriate sentence. This he did and that was a custodial
sentence. The appropriate warrant to the respondent duly
issued and thereafter the detention was lawful. It did not
become unlawful by reason of the subsequent declaration of
unconstitutionality or more accurately, its deemed legality
remained.
In case there should be any misunderstanding about
this and particularly having regard to one of the major
submissions made in the High Court by counsel for the
respondent, I want to make it absolutely clear that in
expressing the view that the detention was lawful pursuant
to the warrant, I am not invoking any technical point.
Actually, I would reject the argument put forward by the
respondent that there was prima facie a lawful warrant and
that a judicial review quashing it would be necessary
[2006]4 I.R.
197S.C.
first before an Article 40 order could be made. In that
respect, I am in agreement with Laffoy J. It has never been
the law that in a clear case where the detention is unlawful,
the courts have insisted on a judicial review application first
which, after all, could take some considerable time and
would obviously involve the usual procedures of application
for leave, statement grounding it, statement in opposition
and a full hearing, etc. If, therefore, the only basis on which
the Director of Public Prosecutions could claim lawful
detention was a purely technical one based on the absence
of a judicial review order first, I would have no hesitation in
granting the Article 40 order. That, however, is not the basis

on which I consider that the detention was lawful. It cannot
have been the intention of the draftsmen of the Constitution
and more properly of the Oireachtas and perhaps more
properly still of the people that if a statutory provision
creating an offence was found to be unconstitutional, every
past conviction and sentence, perhaps going back a large
number of years were ipso facto nullities. In interpreting any
particular provision of the Constitution it is always necessary
to have regard to the general intent of the Constitution as a
whole. If such was the devastating effect of a declaration of
unconstitutionality in all cases, it would fly in the face of
common sense, would be manifestly unjust and would be
contrary to any good order in a civilised society. As
suggested by O'Flaherty J. in McDonnell v. Ireland [1998] 1
I.R. 134, the Constitution must be interpreted as deeming
orders in completed proceedings prior to a declaration of
unconstitutionality to be lawful. A provision that must be
deemed lawful is by definition unlawful. It remains the
position, therefore, that s. 1(1) of the Criminal Law
Amendment Act 1935 was notionally never in force from and
after the coming into being of the present Constitution but
orders made in proceedings completed under it must as a
matter of reasonable and orderly interpretation of the
Constitution be deemed lawful.
In dealing with consequences from declarations of
unconstitutionality of statutory provisions there cannot be
absolute rules. What I have expressed as my view of the law
may not itself be absolute any more than the obiter dicta of
Henchy J. Individual cases throw up particular and
unanticipated facts which in justice may lead to a different
kind of solution. It is impossible for me to speculate now but I
do not rule out the possibility that there might be
circumstances where it would be manifestly unjust or
oppressive to uphold a completed proceeding having regard
to a declaration of unconstitutionality. In that situation, if it
ever arose, an Article 40 order might be appropriate. Such a
circumstance would be exceptional.
In the ex tempore decision of this court delivered on
the 2nd June, 2006, by Murray C.J., reference is made to The

State (Byrne) v. Frawley [1978] I.R. 326. That case has an
important bearing on this case but as I
[2006]4 I.R.
198S.C.
have already indicated, I would not go so far as suggesting
that it has a decisive relevance. For reasons upon which I will
be elaborating, that case has been of assistance to me and
other members of the court in considering the interaction
between concepts such as nullity and the consequences of a
so-called nullity. I have already pointed out that what
happens in such event can never be a nullity in the sense
that it must be regarded as never having happened.
I think it important to embark on a detailed analysis of
the judgments in both the High Court and the Supreme Court
in The State (Byrne) v. Frawley [1978] I.R. 326. For a proper
understanding of the Supreme Court judgments and of the
context in which various significant obiter dicta were
expressed, it is important to consider first the judgment of
Finlay P. presiding over a divisional court of the High Court
and with which the other members of the court Murnaghan
and McMahon JJ. concurred. Hardiman J. has explained the
facts of this case in his judgment and I do not think it
necessary to go into them in any detail. It was a follow on
from the decision of this court in de Burca v. Attorney
General [1976] I.R. 38 and was a habeas corpus application.
The applicant in that case was claiming that his detention
was unlawful although it purported to be pursuant to a
conviction and sentence. What had happened was that de
Burca v. Attorney General was decided while a criminal trial
of the applicant before judge and jury was in process. In de
Burca v. Attorney General , this court had held that it was
unconstitutional to confine juries to rated occupiers and to
exclude women unless they specially applied. As the trial
was proceeding, the jury, of course, had already been
empanelled. The attention of the trial judge was not drawn
to the Supreme Court decision and there was no evidence
that the trial judge had any personal knowledge of the

details of it. Nor was any application made by counsel for
either the prosecution or the defence to have the
empanelled jury discharged. Furthermore, the conviction and
sentence were appealed to the Court of Criminal Appeal and
the alleged invalidity of the jury was not raised as a ground
of appeal before that court. There was even a further appeal
on a point of law under s. 29 of the Courts of Justice Act 1924
to the Supreme Court where again the issue never arose.
In de Burca v. Attorney General [1976] I.R. 38 five
separate judgments were delivered. In two of them, those of
O'Higgins C.J. and Walsh J., the issue of the validity of trials
which had already taken place by juries empanelled under
the provisions of the Act of 1927 was at least aired.
Presumably, it had been an in terrorem argument put
forward by the State. Finlay P. at p. 331 in The State (Byrne)
v. Frawley [1978] I.R. 326 cites the respective passages of
O'Higgins C.J. and Walsh J. touching on this perceived
problem. What O'Higgins C.J. said at p. 62 was as follows:[2006]4 I.R.
199S.C.
"If, then, the property qualification is not in accordance with
Article 40.1 and is not saved by any inference to be drawn
from Article 38.5 what is to be said of the thousands of
criminal jury trials which have been held since the
enactment of the Constitution and which have resulted in
convictions? Were these trials invalid? I confess that this
matter did cause me some concern during the hearing. I
have come to the conclusion that, in so far as these trials
were held before juries and each jury was fairly drawn from a
panel, there could be no infringement of Article 38.5. The
fact may have been that the panel was wrongly restricted, or
could have been challenged. However, this does not alter
the fact that the trial was a trial by jury and that no person
served on such juries who was not eligible. In my view, an
irregularity has taken place in the manner in which citizens
have been called to jury service - in the same way as an

irregularity took place in the manner in which ballot papers
were numbered for parliamentary elections up to the
decision in McMahon v. Attorney General . In McMahon's
case the courts were not asked to entertain any suggestion
that such irregularity invalidated previous elections nor, in
my view, could such a submission have been successfully
made. The overriding requirements of an ordered society
would invalidate such an argument. In this instance, the
same considerations apply."
The citation from Walsh J. at p. 72 of de Burca v. Attorney
General [1976] I.R. 38 reads as follows:"There remains the subject that was raised in the course of
the submissions to this Court concerning the validity of all
the verdicts and acts of juries empanelled and acting under
the provisions of the Act of 1927. It was suggested that the
verdicts of all such juries could be impugned because the
juries were not empanelled in accordance with the law as I
believe the law to be, in that persons who were not within
the designated valuation figures and women were not
empanelled as jurors because they were not called for jury
service. The implications of this might be thought to be
frightening; but whether they are frightening or not has
nothing to do with the task of interpreting the Constitution
which falls upon this Court. If an infringement of the
Constitution were to continue long enough, the cost of
correcting it might be great but that is not a reason for
perpetuating it.
However, I think that these frightening prospects, which the
Court has been invited to view, need not trouble us. If all the
juries that were empanelled in the past and tried cases and
gave verdicts were empanelled in accordance with the
provisions of the Act, it means that nobody served on any of
these juries who was not entitled by law to do so. Therefore,
no verdict was rendered by any jury composed wholly
[2006]4 I.R.
200S.C.
or in part of persons who were not entitled to be on the jury.

The fact that persons who were entitled to be called for jury
service were not called might well have been the ground for
successful challenge to the way in which the jury panel was
drawn up. It did not affect the lawfulness of the presence
upon the panel of those who were by law and by the
Constitution entitled to be on it. That being so, the acts and
verdicts of these juries were those of juries composed of
properly qualified jurors."
It was urged on the divisional court by counsel for the
prosecutor that those expressions of opinion by O'Higgins
C.J. and by Walsh J. were strictly obiter dicta and, of course,
no view had been expressed by any of the other three
judges. In the event, Finlay P., in his judgment, accepted the
views of O'Higgins C.J. and Walsh J. and in the light of that
held with the concurrence of the other members of the court
that there had been a waiver of any right that the prosecutor
might have had and that such waiver would have been valid.
Before leaving that judgment and moving to the
judgments of the Supreme Court on appeal, certain
comments would seem apposite. Walsh J., rightly, if I may
respectfully say so, rejects any idea that the court in
interpreting a statutory provision and considering whether it
is in conformity with the Constitution or not should have any
regard to consequences. That does not mean, however, that
in considering what are in fact the consequences of any
declaration of either invalidity or inconsistency, the court
may not have to fashion special rules relating to
consequences especially when to use the words of O'Higgins
C.J. "the overriding requirements of an ordered society"
would dictate that this be done. That does not mean, as
Walsh J. points out, that retrospective invalidity or
inconsistency as found by the courts may not result in
financial consequences to the State. Each situation may
have somewhat different consequences. I am satisfied,
however, that it would be wholly against good order if
convictions and sentences which were deemed to be lawful
at the time they were decided had to be reopened.
As was pointed out by counsel for the prosecutor in
The State (Byrne) v. Frawley [1978] I.R. 326 the

retrospectivity issue did not strictly arise. Without any
intended disrespect to either the High Court or this court a
patchwork solution to the problem of how to determine an
application which was in reality without merits was available
in that case. The importance of the case and its relevance to
this case is in the observations made by judges in it and not
in the actual decision itself.
The appeal to the Supreme Court produced judgments
of considerable interest. It was unanimously held that the
appeal should be dismissed. The majority of the court
consisting of Henchy, Griffin and Parke JJ. rejected
[2006]4 I.R.
201S.C.
the reasoning of the divisional court but held against the
prosecutor on a narrower ground. The minority consisting of
O'Higgins C.J. and Kenny J. more or less upheld the reasoning
of the High Court.
The leading judgment for the majority was delivered
by Henchy J. In strident terms, he rejected a view which he
thought might have been implied in the judgment of the
divisional court that even if the trial judge had personal
knowledge of de Burca v. Attorney General [1976] I.R. 38, he
was not obliged to deal with the jury issue unless it was
raised before him by counsel and he also strongly rejected
the view that the empanelled jury could be considered a
valid jury on the grounds that each of them was eligible to
be a juror. Henchy J. came to the conclusion, however, that
he should assume that the Circuit Court Judge did not know
about de Burca v. Attorney General or at least did not know
about it in any sufficient detail. He concluded, partly on the
basis that the same counsel had been for the defence in
each case, that a deliberate and informed decision was
made to allow the trial to proceed before a jury in
circumstances where the defence knew of de Burca v.
Attorney General . Henchy J. considered that the prosecutor
was precluded by that election from claiming that the jury
lacked constitutionality. In arriving at that view, his opinion

was reinforced by the lack of complaint in the Court of
Criminal Appeal. It was not until some five months after the
trial that the prosecutor first complained that the jury had
been formed unconstitutionally. This was impermissible in
the view of Henchy J. and at p. 350 he observed as follows:"Having knowingly elected not to claim that right, it would
be contrary to the due administration of justice under the
Constitution if he were to be allowed to raise that claim in
the present proceedings when, by deliberate choice, it was
left unasserted at the trial and subsequently in the Court of
Criminal Appeal. What has been lost in the process of events
is not the right guaranteed by the Constitution but the
prisoner's competence to lay claim to it in the circumstances
of this case."
The succeeding words in the judgment are also important.
They read:"In basing this judgment on the special circumstances of
That last observation should be read in the light of an
important passage in the judgment at p. 349. Henchy J. had
been discussing a United States Supreme Court case of
Taylor v. Louisiana (1974) 419 U.S. 522 where a particular
jury system had likewise been condemned as
unconstitutional. The passage in question reads as follows:"As the United States Supreme Court has held in a number
of cases, it does not necessarily follow that court orders lack
binding
[2006]4 I.R.
202S.C.
force because they were made in proceedings based on an
unconstitutional statute. So far as the present case is
concerned, because of its particular circumstances it is not
necessary to decide whether a person who was convicted by
a jury recruited under the Act of 1927 and who did not raise
the unconstitutionality of the jury, either at the trial or

collaterally in the High Court before conviction, could have
later successfully impugned his conviction on that ground.
Whether he could have done so or not, it would seem that he
would now be debarred from doing so. "
The particular importance of that passage as far as this case
is concerned lies in the reference to it not necessarily
following that court orders lack binding force because they
were made in proceedings based on an unconstitutional
statute. As is by now clear that is firmly my view and I am
convinced that good order requires it to be so.
It is highly relevant to consider also obiter dicta
contained in the judgment of O'Higgins C.J. in The State
(Byrne) v. Frawley [1978] I.R. 326. As I have already
indicated, contrary to the majority view O'Higgins C.J.
considered that the jury was, at any rate, properly
constituted for the reasons which I have explained. But at p.
341, he had this to say:"It seems to me proper to add that if the contrary be the
case and, by reason of the wrongful exclusion of qualified
persons from the panel, every jury then selected is to be
regarded as unconstitutional and invalid, then certain very
serious consequences would follow. In the first place it would
seem to me to follow with inexorable logic that each trial
held with such a jury would have been a nullity and that
sentences imposed and carried out, including sentences of
death, would have been imposed and carried out without
legal authority. In addition, even those who had won
acquittals from such juries could find that they were still in
jeopardy because their trial was regarded as a nullity. Could
organised society accept such a conclusion? There being a
supposed unconstitutionality in the trial jury itself, neither
consent or lack of objection or passage of time could remedy
the situation. As a further consequence, this would seem to
mean that all those who have been convicted by such juries
and are serving sentences would be entitled to orders similar
to the order sought by the prosecutor in the present case. It
does not seem to me that it could be urged as an answer to
such proceedings that the person convicted had acquiesced
in his trial by the jury selected. Acquiescence depends on

knowledge; if the person convicted did not know of the
suggested invalidity, he cannot be said to have acquiesced.
In any event acquiescence cannot confer validity, just as
consent cannot confer jurisdiction. I do not think it is
necessary for
[2006]4 I.R.
203S.C.
me to examine further the implications of a proposition
which I hold to be erroneous."
Given that O'Higgins C.J. expressly agreed with the view of
Walsh J. that consequences could not affect the issue of
whether an enactment conformed with the Constitution or
not, it would seem to me that the proposition which he
considered to be erroneous must be the proposition that
those consequences would in fact flow, particularly having
regard to the rhetorical question in the passage "could
organised society accept such a conclusion?" I agree with
Denham J. that "a court is required to differentiate between
the declaration of unconstitutionality and retrospective
application of such a decision".
In conclusion, I am of the view that concluded
proceedings whether they be criminal or civil, based on an
enactment subsequently found to be unconstitutional,
cannot normally be reopened. As I have already indicated, I
am prepared to accept that there may possibly be
exceptions. But in general it cannot be done. Nor as Murray
C.J. and Hardiman J. have pointed out is there any precedent
for a collateral challenge of this kind. I am also firmly of the
opinion that if the law were otherwise there would be a
grave danger that judges considering the constitutionality or
otherwise of enactments would be consciously or
unconsciously affected by the consequences, something
which in the view of Walsh J. and endorsed by O'Higgins C.J.
should not happen.
I have based my opinion in the main on Irish case and
constitutional law. It is reinforced by the decisions of
European and foreign courts referred to in the judgment of

Murray C.J.
These are the reasons why I favoured the appeal being
allowed and supported the order made by the court.
Solicitors for the applicants: Partners at Law.
Solicitor for the respondent: The Chief State Solicitor.
Niamh Hussey, Barrister
[2006]
The End
Next
CHILDRENS VERSION OF REFERENDUM NOVEMBER 12th 2012
Raymond Crotty Plaintiff v. An Taoiseach and Others,
Defendants
[1986 No. 12036P]
High Court
24th December 1986
12th February 1987
18th February 1987
9th April 1987
Constitution - International relations - Executive powerGovernment - State sovereignty -Derivation of powers of
government- Requirements of the common good - People Treatybinding upon State - Single European Act - Title III European Political Cooperation -Foreign policy referrable to
common position adopted by High Contracting Parties
-Whether sovereignty fettered - Whether executive powers
alienated - Government - Ratification- Scheme of
constitutional powers - Breach of Constitution - Judicial
review - Whetherratification proposed by Government
amenable to judicial review - Constitution of Ireland,1937,
Articles 1, 5, 6, 28 and 29.Constitution - Statute - Validity European Communities - Accession - Amendment
ofConstitution - Licence - Scope - Treaties establishing

European Communities - Objectives -Amendment of Treaties
- Whether amendment of Treaties authorised by original
licence foraccession - Single European Act - European
Communities Act, 1972 (No. 27) - EuropeanCommunities
(Amendment) Act, 1986 (No. 37) - Constitution of Ireland,
1937, Article 29,s. 4, sub-s. 3.Constitution - Locus standi Treaty - Not part of domestic law - Constitutional
infringementalleged - Plaintiff suffering no injury Ratification - Reliefs - Declaration and injunction -Whether
plaintiff entitled to challenge treaty ratification in absence of
injury - Whetherexceptional circumstances established Single European Act.Injunction - Interlocutory relief - Breach
of Constitution - Presumption - Whether fair questionof law to
be tried - Balance of convenience - Treaty - Ratification Effect - Status quo -Preservation - Whether injunction
necessary to preserve constitutional status quo Exceptionalconsiderations.
Article 29, s. 4, sub-s. 3 of the Constitution states:
"3 The State may become a member of the European Coal
and Steel Community (established by Treaty signed at Paris
on the 18th day of April, 1951), the European Economic
Community (established by Treaty signed at Rome on the
25th day of March, 1957) and the European Atomic Energy
25th day of March, 1957). No provision of this Constitution
invalidates laws enacted, acts done or measures adopted by
the State necessitated by the obligations of membership of
the Communities or prevents laws enacted, acts done or
measures adopted by the Communities, or institutions
thereof, from having the force of law in the State."
By treaties made at Luxembourg on the 17th February,
1986, and The Hague on the 28th February, 1986, and
known collectively as the Single European Act ("the SEA")
the twelve Member States resolved to amend and in general
expand the scope of the treaties of and governing the
European Communities. Article 33 of the SEA provided:
"1. This Act will be ratified by the High Contracting Parties in
accordance with their respective constitutional requirements.
The instruments of ratification will be deposited with the

Government of the Italian Republic.
2. This Act will enter into force on the first day of the month
following that in which the instrument of ratification is
deposited of the last Signatory State to fulfil that formality."
Title III of the SEA embodied a separate treaty whereby each
of the High Contracting
[1987]
1 I.R.
Crotty v. An Taoiseach
714
H.C.
Parties agreed to adopt its foreign policy positions to those
of the others and refrain from impeding a consensus and
joint action within a structured framework known as
European Political Cooperation. Title II embodied structural
changes to the treaties of and governing the European
Communities and, in the case of the European Economic
Community, provided for increased use of voting by qualified
majority in the European Council; the enumeration of
detailed objectives of the European Economic Community;
and a new court of first instance inferior to the Court of
Justice of the European Communities. By the European
Communities (Amendment) Act, 1986, most of the provisions
of the SEA, with the exception inter alia of Title III, were
inserted into the European Communities Act, 1972, whereby
they became part of the domestic law of the State. Section
3, sub-s. 3 of the Act of 1986 provided that the Act should
come into operation on such date as the Minister for Foreign
Affairs appointed, although the Act itself was enacted on the
23rd December, 1986.
The plaintiff issued a plenary summons on the 22nd
December, 1986 seeking essentially declarations that any
purported ratification of the SEA would be void having regard
to the provisions of the Constitution and injunctions
restraining such ratification. In addition he sought a
declaration that the European Communities (Amendment)
Bill, 1986 (enacted the following day) would, if enacted, be

repugnant to the Constitution and null and void in purporting
to enact certain parts of the SEA into domestic law. Upon a
hearing for interlocutory injunctions it was contended by the
defendants that there was no fair question of law raised for
trial on the issues and objected that the plaintiff lacked locus
standi for interlocutory relief and that his application
amounted to an abuse of the process of the court.
Held by Barrington J., in granting the interlocutory
injunctions, that the plaintiff had raised a fair question of law
to be tried on the issues for which there were weighty and
countervailing considerations justifying a departure from the
received rule of practice regardinglocus standi and in
addition the plaintiff had standing to the extent that he
claimed that the Constitution itself was being amended in
the absence of the consultation by referendum with the
plaintiff and the electorate specifically provided by the
Constitution.
Campus Oil Ltd. v. Minister for Industry and Energy (No. 2)
[1983] I.R. 88 and Cahill v.Sutton [1980] I.R. 269
considered.
Upon full hearing on the substantive issues, it was
Held by the High Court (Hamilton P., Barrington and Carroll
JJ.) in refusing the reliefs sought and discharging the
interlocutory injunctions, 1, that those parts of the SEA
enacted into domestic law by the European Communities
(Amendment) Act, 1986, were within the scope of the
constitutional licence for accession to the European
Communities granted by the Third Amendment to the
Constitution and embodied in Article 29, s. 4, sub-s. 3
thereof.
2. The plaintiff lacked the required locus standi to challenge
the remainder of the SEA, being Title III, as it had not been
incorporated into domestic law and he was unable to show
any special injury or infringement of his rights.
Cahill v. Sutton [1980] I.R. 269 applied.
Per Curiam: That the acts of the Government are entitled to
a presumption of Constitutional validity, in the same way as
legislation passed by the Oireachtas.
The plaintiff appealed to the Supreme Court from the

judgment and order of the High Court and then obtained in
the Supreme Court similar interim and interlocutory
injunctions pending the hearing of the appeal.
On the issue of the constitutionality of the European
Communities (Amendment) Act, 1986, it was
Held by the Supreme Court (Finlay C.J., Walsh, Henchy,
Griffin and Hederman JJ.), in refusing to declare the Act
invalid having regard to the provisions of the Constitution, 1,
that the plaintiff had locus standi to challenge the Act in the
particular circumstances where its coming into force would
affect every citizen notwithstanding the plaintiff's failure to
prove the threat of any special injury or prejudice peculiar to
him arising from the Act.
Principles in Cahill v. Sutton [1980] I.R. 269 considered.
2. That so much of the SEA which was to become law by the
Act of 1986 was properly within the constitutional licence of
Article 29, s. 4, sub-s. 3, which authorised the State's
accession to a living, dynamic Community, and the proposed
changes to qualified voting in the European Council had
already been anticipated in the establishing Treaties after
the transitional period; the allegedly new objectives of the
SEA brought into Irish law amounted to no more than a more
specific enumeration of the objectives of the establishing
Treaties; and the proposed new court of first instance did not
in any way extend the primacy of the Court of
[1987]
1 I.R.
715
H.C.
Justice of the European Communities over the Irish courts
beyond that already authorised by Article 29, s. 4, sub-s. 3 of
the Constitution.
On the issue of Title III, being the treaty whereby Ireland
agreed to adopt its foreign policy positions within the
framework of European Political Cooperation, not being part
of the domestic law incorporated by the Act of 1986, it was

Held by the Supreme Court (Walsh, Henchy and Hederman
JJ.; Finlay C.J. and Griffin J. dissenting), in allowing the appeal
and declaring the ratification of Title III unconstitutional, 1,
(Finlay C.J. and Griffin J. concurring) that the Constitution
vested in the Government the executive power of the State
in its external relations, subject to the provisions of the
Constitution, and the Government's conduct of foreign policy
was beyond the purview of the courts.
Boland v. An Taoiseach [1974] I.R. 338 followed.
2. That where, however, in its conduct of foreign policy the
Government purported to alienate any powers of
government or fetter the sovereignty of the State, then the
Government acted beyond the powers entrusted by the
Constitution to it, and the courts, as sole arbiters upon
breaches of constitutional restraints, were obliged to restrain
the Government from so acting.
3. That since Title III of the SEA would bind the State to
concede part of its sovereignty in its relations with other
states and to conduct foreign policy without regard to the
requirements of the common good, the ratification proposed
by the Government was impermissible in the absence of
authorisation by the Constitution.
Per Finlay C.J. and Griffin J., dissenting: Title III did not oblige
the State to cede any sovereignty in its foreign policy. The
courts would have a right and duty to intervene only where
the Government's conduct of foreign relations constituted an
actual or threatened invasion of the constitutional rights of
the citizen.
Cases mentioned in this report:
Finn v. Attorney General [1983] I.R. 154.
Acciaierie San Michele SpA v. High Authority (Cases 9/65 and
58/65) [1967] E.C.R. 1.
O'Brien v. Keogh [1972] I.R. 144.
Norris v. Attorney General [1984] I.R. 36.
Boland v. An Taoiseach [1974] I.R. 338; (1974) 109 I.L.T.R.
13.
Campus Oil v. Minister for Industry and Energy (No. 2)
[1983] I.R. 88; [1984] I.L.R.M. 45.

The State (Gilliland) v. Governor of Mountjoy Prison [1987]
I.R. 201; [1987] I.L.R.M. 278.
Commission v. Council: Re ERTA (Case 22/70) [1971] E.C.R.
282.
Marbury v. Madison 1 Cr. (5 U.S.) 137 (1803).
The State (Quinn) v. Ryan [1965] I.R. 70; (1964) 100 I.L.T.R.
105.
The Electoral (Amendment) Bill, 1983 [1984] I.R. 268;
[1984] I.L.R.M. 539.
The Emergency Powers Bill, 1976 [1977] I.R. 159; (1976)
111 I.L.T.R. 29.
Campus Oil v. Minister for Industry and Energy (No. 1)
[1983] I.R. 82; [1983] I.L.R.M. 258.
In re Laighlis [1960] I.R. 93; (1957) 95 I.L.T.R. 92.
Buckley & Others (Sinn Fin) v. Attorney General [1950]
I.R. 67.
King v. Attorney General [1981] I.R. 233.
[1987]
1 I.R.
716
H.C.
The State (Lynch) v. Cooney [1982] I.R. 337; [1982] I.L.R.M.
190; [1983] I.L.R.M. 89.
The State (Kerry County Council) v. Minister for Local
Government [1933] I.R. 517.
J. Nold KG v. Commission (Case 4/73) [1974] E.C.R. 491;
[1974] 2 C.M.L.R. 338.
Amministrazione delle Finanze dello Stato v. Simmenthal SpA
(Case 106/77) [1978] E.C.R. 629; [1978] 3 C.M.L.R. 263.
Leonesio v. Ministero dell' Agricoltura (Case 93/71) [1972]
E.C.R. 287; [1973] C.M.L.R. 343.
Stauder v. City of Ulm (Case 29/69) [1969] E.C.R. 419;
[1970] C.M.L.R. 112.
Internationale Handelsgesellschaft mbH v. Einfuhr-und

Vorratsstelle Getreide (Case 11/70) [1970] E.C.R. 1125;
[1972] C.M.L.R. 255.
Van Gend en Loos v. Nederlandse Belastingadministratie
(Case 26/62) [1963] E.C.R. 1; [1963] C.M.L.R. 105.
Italy v. Watson and Belmann (Case 118/75) [1976] E.C.R.
1185; [1976] 2 C.M.L.R. 552.
Rutili v. Ministre de l'Interieur (Case 36/75) [1975] E.C.R.
1219; [1976] 1 C.M.L.R. 140.
Belgium v. Royer (Case 48/75) [1976] E.C.R. 497; [1976] 2
C.M.L.R. 619.
Marckx v. Belgium (1979) 2 E.H.R.R. 330.
Johnston v. Ireland (1982) 8 E.H.R.R. 214.
Commission v. Ireland (Case 151/81) [1982] 4 E.C.R. 3573.
Marshall v. Southampton Health Authority (Case 152/84)
[1986] E.C.R. 723; [1986] 1 C.M.L.R. 688; [1986] Q.B. 401;
[1986] 2 W.L.R. 780; [1986] 2 All E.R. 584.
Costa v. E.N.E.L. (Case 6/64) [1964] E.C.R. 585; [1964]
C.M.L.R. 425.
B.R.T. v. SABAM (Case 127A/73) [1974] E.C.R. 313; [1974] 2
C.M.L.R. 238.
Commission v. United Kingdom: Re Tachographs (Case
128/78) [1979] E.C.R. 419; [1979] 2 C.M.L.R. 45.
Hauptzollamt Bremerhaven v. Massey-Ferguson GmbH (Case
8/73) [1973] E.C.R. 897.
Reyners v. Belgium (Case 2/74) [1974] E.C.R. 631; [1974] 2
C.M.L.R. 305.
Ministere Public v. Van Wesemael (Case 110/78) [1979]
E.C.R. 35; [1979] 3 C.M.L.R. 87.
Van Duyn v. Home Office (Case 41/74) [1974] E.C.R. 1337;
[1975] 1 C.M.L.R. 1; [1975] Ch. 358; [1975] 2 W.L.R. 760;
[1975] 3 All E.R. 190.
[1987]
1 I.R.
717
H.C.
Reg. v. Henn (Case 34/79) [1979] E.C.R. 3795; [1980] 1

C.M.L.R. 246; [1981] A.C. 850; [1980] 2 W.L.R. 597; [1980] 2
All E.R. 166.
Conegate Ltd. v. Customs and Excise Commissioners (Case
121/85) [1986] E.C.R. 1007; [1986] 1 C.M.L.R. 739; [1987]
Q.B. 254; [1987] 2 W.L.R. 39; [1986] 2 All E.R. 688.
Adoui v. Belgium (Case 115/81) [1982] E.C.R. 1665; [1982] 3
C.M.L.R. 631.
Walrave and Koch v. AUCI (Case 36/74) [1974] E.C.R. 1405;
[1975] 1 C.M.L.R. 320.
Commission v. Italy: Re Export Tax on Art Treasures (No. 2)
(Case 48/71) [1972] E.C.R. 527; [1972] C.M.L.R. 699.
Rewe-Zentral AG v. Bundesmonopolverwaltung fr
Branntwein (Cassis de Dijon Case) (Case 120/78) [1979]
E.C.R. 649; [1979] 3 C.M.L.R. 494.
Algera v. Common Assembly (Case 7/56) [1957-58] E.C.R.
39.
Wilhelm Werhahn Hansamuhle v. Council (Case 63/72)
[1973] E.C.R. 1229.
Commission v. Ireland: Re "Buy Irish" Campaign (Case
249/81) [1982] E.C.R. 4005; [1983] 2 C.M.L.R. 104.
Commission v. Ireland: Re Sea Fisheries Restrictions Case
(Case 61/77) [1978] E.C.R. 417; [1978] 2 C.M.L.R. 466.
Commission v. Italy (Case 91/79) [1980] E.C.R. 1099.
Thieffry v. Counseil de l'Ordre des Avocats (Case 71/76)
[1977] E.C.R. 765; [1977] 2 C.M.L.R. 373.
GB-Inno-BM NV v. Vereniging van de Kleinhandelaars in
Tabak (Case 13/77) [1977] E.C.R. 2115; [1978] 2 C.M.L.R.
283.
Procureur du Roi v. Dassonville (Case 8/74) [1974] E.C.R.
837; [1974] 2 C.M.L.R. 436.
Reg. v. Bouchereau (Case 30/77) [1977] E.C.R. 1999; [1977]
2 C.M.L.R. 800; [1978] Q.B. 732; [1978] 2 W.L.R. 250; [1981]
2 All E.R. 924.
Balkan-Import-Export GmbH v. Hauptzollamt Berlin-Packhof
(Case 5/73) [1973] E.C.R. 1091.
Humblet v. Belgium (Case 6/60) [1960] E.C.R. 559.
Thomas v. Collins (1944) 323 U.S. 516.
Paton v. B.P.A.S. Trustees [1979] Q.B. 276; [1978] 3 W.L.R.

687; [1978] 2 All E.R. 987.
Paton v. United Kingdom (1980) 3 E.H.R.R. 408.
Reg. v. H.M. Treasury, Ex p. Smedley [1985] Q.B. 657;
[1985] 2 W.L.R. 576; [1985] 1 All E.R. 589.
Bruggemann and Scheuten v. Germany (1977) 3 E.H.R.R.
244.
Hauer v. Land Rheinland-Pfalz (Case 44/79) [1979] E.C.R.
3727; [1980] 3 C.M.L.R. 42; (1979) 3 E.H.R.R. 140.
[1987]
1 I.R.
718
H.C.
X. v. Norway (1961) Ybk. of Eur. Conv. on H.R. 270.
Kjeldsen v. Denmark (1976) 1 E.H.R.R. 711.
Dudgeon v. United Kingdom (1981) 4 E.H.R.R. 149.
Hadmor Productions Ltd. v. Hamilton & Others [1983] 1 A.C.
191; [1982] 2 W.L.R. 322; [1982] 1 All E.R. 1042.
Gouriet v. Union of Post Office Workers [1978] A.C. 435;
[1977] 3 W.L.R. 300; [1977] 3 All E.R. 70.
Church of Scientology of California v. Customs and Excise
Commissioners [1980] 3 C.M.L.R. 114; [1981] 1 All E.R. 1035.
Glover v. B.L.N. [1973] I.R. 388.
Wavin Irish Pipes Ltd. v. Hepworth Iron Co. (Unreported, High
Court, Costello J., 8th May, 1981).
Plenary Summons.
Raymond Crotty, a citizen of Ireland, issued a plenary
summons dated 22nd December, 1986, against the following
defendants: An Taoiseach, An Tnaiste, The Minister for
Foreign Affairs, The Minister for Tourism, Fisheries and
Forestry, The Minister for Finance, The Minister for Education,
The Minister for the Environment, The Minister for Defence
and for the Gaeltacht, The Minister for Communications, The
Minister for Justice, The Minister for Health, The Minister for
Agriculture, The Minister for Industry and Commerce, The

Minister for Social Welfare, The Minister for Labour and the
Public Service, and also against Ireland and the Attorney
General.
By his general indorsement of claim, the plaintiff sought
declarations that the Government would be in breach of the
Constitution if it ratified the Single European Act, and
injunctions restraining the Government from depositing the
instrument of ratification to the Single European Act with the
Government of the Italian Republic. The general indorsement
of claim further sought declarations that the European
Communities (Amendment) Bill, 1986, would, if enacted by
the Oireachtas, be repugnant to the provisions of the
Constitution and null and void, in purporting to make parts of
the Single European Act part of the domestic law of the
State, and declarations that ratification of the Single
European Act would be in breach of the Constitution in the
absence of proper amendment of the Constitution by
referendum. The plaintiff then proceeded ex parte on the
same day before the High Court (Barrington J.) with affidavits
of Raymond Crotty, Brendan O'Connor and Joseph Noonan
and obtained an order abridging time for service upon the
defendants of a notice of motion claiming interlocutory
reliefs, which motion was returnable for the following day,
being the 23rd December, 1986. The interlocutory hearing
was held at the home of Barrington J. on 23rd and 24th
December, 1986.
[1987]
1 I.R.
719
H.C.
The European Communities (Amendment) Act, 1986 (No.
37) provides as follows:
"1. The European Communities Act, 1972, is hereby
amended by the insertion, in the definition of "the treaties
governing the European Communities" in section 1 (1) after

paragraph (n) (inserted by the European Communities
(Amendment) (No. 2) Act, 1985), of the following
paragraph:
and
(o) the following provisions of the Single European Act (done
at Luxembourg on the 17th day of February, 1986, and at
The Hague on the 28th day of February, 1986), namely,
Article 3.1; Title II; Articles 31 and 32; and, in so far as they
relate to the said Article 3.1, the said Title II and the said
Articles 31 and 32, Articles 33 and 34."
2. References to the Assembly of the European
Communities in any Act passed or statutory instrument
made before the commencement of this Act shall be
construed as references to the European Parliament.
3.(1) This Act may be cited as the European
Communities (Amendment) Act, 1986.
(2) The European Communities Acts, 1972 to 1985, and this
Act may be cited together as the European Communities
Acts, 1972 to 1986, and shall be construed together as one
Act.
(3) This Act shall come into operation on such date as the
Minister for Foreign Affairs appoints by order."
Title III of the Single European Act provides as follows:
Provisions on European cooperation in the sphere of foreign
policy
Article 30
European Cooperation in the sphere of foreign policy shall
be governed by the following provisions:
1. The High Contracting Parties, being members of the
European Communities, shall endeavour jointly to formulate
and implement a European foreign policy.
2.(a) The High Contracting Parties undertake to inform and
consult each other on any foreign policy matters of general
interest so as to ensure that their combined influence is
exercised as effectively as possible through coordination, the
convergence of their positions and the implementation of
joint action.
(b) Consultations shall take place before the High
Contracting Parties decide on their final position.

(c) In adopting its positions and in its national measures
each High Contracting Party shall take full account of the
positions of the
[1987]
1 I.R.
720
H.C.
other partners and shall give due consideration to the
desirability of adopting and implementing common European
positions.
In order to increase their capacity for joint action in the
foreign policy field, the High Contracting Parties shall ensure
that common principles and objectives are gradually
developed and defined.
The determination of common positions shall constitute a
point of reference for the policies of the High Contracting
Parties.
(d) The High Contracting Parties shall endeavour to avoid
any action or position which impairs their effectiveness as a
cohesive force in international relations or within
international organizations.
3.(a) The Ministers for Foreign Affairs and a member of the
Commission shall meet at least four times a year within the
framework of European Politicial Cooperation. They may also
discuss foreign policy matters within the framework of
Political Cooperation on the occasion of meetings of the
Council of the European Communities.
(b) The Commission shall be fully associated with the
proceedings of Political Cooperation.
(c) In order to ensure the swift adoption of common
positions and the implementation of joint action, the High
Contracting Parties shall, as far as possible, refrain from
impeding the formation of a consensus and the joint action
which this could produce.
4. The High Contracting Parties shall ensure that the
European Parliament is closely associated with European

Political Cooperation. To that end the Presidency shall
regularly inform the European Parliament of the foreign
policy issues which are being examined within the
framework of Political Cooperation and shall ensure that the
views of the European Parliament are duly taken into
consideration.
5. The external policies of the European Community and the
policies agreed in European Political Cooperation must be
consistent.
The Presidency and the Commission, each within its own
sphere of competence, shall have special responsibility for
ensuring that such consistency is sought and maintained.
6.(a) The High Contracting Parties consider that closer
cooperation on questions of European security would
contribute in an essential way to the development of a
European identity in external policy matters. They are ready
to coordinate their positions more closely on the political and
economic aspects of security.
(b) The High Contracting Parties are determined to maintain
the technological and industrial conditions necessary for
their security. They shall work to that end both at national
level and, where
[1987]
1 I.R.
721
H.C.
appropriate, within the framework of the competent
institutions and bodies.
(c) Nothing in this Title shall impede closer cooperation in
the field of security between certain of the High Contracting
Parties within the framework of the Western European Union
or the Atlantic Alliance.
7.(a) In international institutions and at international
conferences which they attend, the High Contracting Parties
shall endeavour to adopt common positions on the subjects
covered by this Title.

(b) In international institutions and at international
conferences in which not all the High Contracting Parties
participate, those who do participate shall take full account
of positions agreed in European Political Cooperation.
8. The High Contracting Parties shall organize a political
dialogue with third countries and regional groupings
whenever they deem it necessary.
9. The High Contracting Parties and the Commission,
through mutual assistance and information, shall intensify
cooperation between their representations accredited to
third countries and to international organizations.
10.(a) The Presidency of European Political Cooperation shall
be held by the High Contracting Party which holds the
Presidency of the Council of the European Communities.
(b) The Presidency shall be responsible for initiating action
and coordinating and representing the positions of the
Member States in relations with third countries in respect of
European Political Cooperation activities. It shall also be
responsible for the management of Political Cooperation and
in particular for drawing up the timetable of meetings and
for convening and organizing meetings.
(c) The Political Directors shall meet regularly in the Political
Committee in order to give the necessary impetus, maintain
the continuity of European Political Cooperation and prepare
Ministers' discussions.
(d) The Political Committee or, if necessary, a ministerial
meeting shall convene within forty-eight hours at the request
of at least three Member States.
(e) The European Correspondents' Group shall be
responsible, under the direction of the Political Committee,
for monitoring the implementation of European Political
Cooperation and for studying general organizational
problems.
(f) Working groups shall meet as directed by the Political
Committee.
[1987]
1 I.R.
722
H.C.
(g) A Secretariat based in Brussels shall assist the
Presidency in preparing and implementing the activities of
European Political Cooperation and in administrative
matters. It shall carry out its duties under the authority of
the Presidency.
11. As regards privileges and immunities, the members of
the European Political Cooperation Secretariat shall be
treated in the same way as members of the diplomatic
missions of the High Contracting Parties based in the same
place as the Secretariat.
12. Five years after the entry into force of this Act the High
Contracting Parties shall examine whether any revision of
Title III is required.
Paul Callan S.C. (with him Antonia O'Callaghan and Seamus
Tuathail tuathail ) for the plaintiff referred to Finn v.
Attorney General ; Acciaierie San Michele SpA v. High
Authority ; and Kelly: The Irish Constitution, Second Edition
at pp. 66 and 280, and referred to Articles 15 and 16 of the
Vienna Convention on the Law of Treaties; Cahill v. Sutton ;
O'Brien v.Keogh and Norris v. Attorney General .
Eoghan Fitzsimons S.C. (with him James O'Reilly ) for the
defendants referred to Boland v. An Taoiseach . It has been
held that the Government in the performance of its
executive functions has the right to do so without its
activities being judicially reviewed. When the Government is
negotiating on behalf of the State, the courts will not
interfere to examine the executive function. Only when the
instrument of ratification has ben sealed by the President
and then deposited in Rome will Ireland be bound. Until then,
there is not before the Court a completed act of state in
external policy. In the meantime, the presumption of
constitutionality must apply: Cahill v.Sutton . The plaintiff's
interest must be shown and must be adversely affected or in
imminent danger of such. He cannot transfer his political
opposition from the Oireachtas to the courts. The only

constitutional right which appears to be asserted is the right
to vote in a referendum, for which the Oireachtas has the
right of initiative and the citizen may only vote when that
initiative has been exercised.
Barrington J.: Isn't there an implied right not to have the
Constitution amended?
Eoghan Fitzsimons S.C.: Yes, but there is no interest shown
by the plaintiff, and it is an abuse of the judicial process. The
plaintiff has been
[1987]
1 I.R.
723
H.C.
forum-shopping. He then referred to the Republic of Ireland
Act, 1949. This gives the President the functions to act in
connection with external relations upon the advice of the
Government. Only the most serious treaties are executed by
the head of state. Contrary to what Mr. Callan suggests, the
presumption of constitutionality operates in favour of
treaties to be executed by the head of state, although the
particular point does not appear to have been decided yet.
There is no jurisdiction to review the constitutionality of a Bill
and no power to interfere with the legislative process, and
similarly the courts have no jurisdiction to construe or review
the constitutionality of a treaty while it is still in draft form.
(See: The State (Gilliland) v. Governor of Mountjoy
Prison .
Member States of the European Communities are entitled to
conclude a treaty amending the treaties establishing the
Communities. Article 236 of the Treaty establishing the
European Economic Community specifically envisaged the
prospect of amendment. The plaintiff could have objected to
many other amending treaties, the most recent of which
brought about the accession of Spain and Portugal, which
treaty of accession had implications identical to those relied
upon by the plaintiff in this case, but he failed to do so at the

time. Mr. Callan appears to suggest that there can be no
amendments at all, because the people of Ireland agreed to
one treaty only. If, however, they accept the earlier
amendments, then there must be a general right to amend,
and the Single European Act is an exercise of that right. I am
not suggesting that the right to amend is limitless, but I do
suggest that where the treaty amendments do occur, that
they are within the scope of the original establishing treaties.
He cited Campus Oil v. Ministry for Industry and Energy (No.
2) and referred to the balance of convenience. The citizens
of Ireland will not be affected if these injunctions are
granted. The State, however, will suffer in terms of its
international standing in its external relations with its
partners. The court should approach the balance of
convenience within a much wider context, viz. the European
context. The court should have regard to the fact that its
decision will affect not only Ireland, but the other Member
States of the European Communities as well, of which the
total population affected comprises 300 million. The balance
of convenience to be considered is not limited to the
domestic sphere. The court is entitled to take into account
the broader European context. If injunctions sought by the
plaintiff were granted, then incalculable damage would be
done. All sectors of the Irish economy have supported the
Single European Act. The plaintiff should not be permitted to
give an undertaking as to damages which would be
worthless.
Paul Callan S.C. in reply: Regarding Cahill v. Sutton , the
plaintiff is a serious citizen and the affidavits before the court
have been made by experts in their areas of particular
competence. The plaintiff took all steps appropriate
[1987]
1 I.R.
724
H.C.
for a concerned citizen. He obtained and examined the

explanatory memorandum to the Single European Act and
took advice from his legal advisers. He wrote to members of
the Oireachtas and awaited the completion of the legislative
function. He then waited to see if the President might refer
the matter to the Supreme Court under Article 26 of the
Constitution. During debates in the Oireachtas reservations
had been expressed by senior politicians, including a former
Attorney General, on the constitutionality of the proposed
European Communities (Amendment) Bill, 1986. (See:
Commissionv. Council: Re. ERTA (Case 22/70) ).
Barrington J.: Is it not the case that the courts should
respect the Oireachtas and assume that the Constitution will
not be violated except by inadvertence? There was a serious
motion by the Dil properly considered.
Paul Callan S.C.: I concede the court will bear that in mind.
But a Bill goes through 10 stages in the Dil and Seanad
and is scrutinised by the President. That is the presumption
of constitutionality. A treaty is in a distinct situation. It only
comes before the Dil when there is a possibility that it
involves a charge upon public funds. It does not go to the
Seanad or the President. There is no constitutional provision
to refer a treaty to the Supreme Court because it was not in
the immediate contemplation of the framers of the
Constitution that a treaty, such as the Treaty of Rome
establishing the European Economic Community, would
transfer sovereignty. (He cited Marbury v. Madison ; Buckley
and Others (Sinn Fin) v.Attorney General and Byrne v.
Ireland. ) The balance of convenience must be looked at in a
realistic way. The motion for the Dil was not put down until
the political holidays on the 23rd September, 1986. The
explanatory memorandum was not available to the plaintiff
until November, 1986, and this provided him with his first
opportunity to consider the matter. On the 2nd December,
1986, the Minister for Foreign Affairs sought leave to
introduce the Bill. The second stage of the Bill was reached
on the 9th December, and the motion was passed on the
11th December. The speed at which the motion passed must
have set some record for changes of such constitutional
magnitude. To remove from the plaintiff effective access to

the courts would be to give the executive an immunity not
contemplated in the Constitution see Byrne v. Ireland
[1972] I.R. 241 at p. 281. The plaintiff is entitled to succeed,
and if the balance of convenience is material to the granting
of an interlocutory injunction, then the balance dictates that
matters stand as they are to allow the plaintiff to go to the
Supreme Court. The Court should not act in a manner which
would have the effect of nullifying the reliefs sought by the
plaintiff or ending his rights. That would be against the
received interpretation of the Constitution: The State
(Quinn)v. Ryan [1965] I.R. 70 at p. 122.
[1987]
1 I.R.
Barrington J.
725
H.C.
Barrington J.
24th December 1986
First of all I should thank counsel for the assistance which
they have given to me in relation to what I have found to be
an extremely difficult case. It is an application for an
interlocutory injunction and I must endeavour to follow the
procedure contemplated in the Campus Oil v. Minister for
Industry & Energy (No. 2) [1983] I.R. 88 decision in my
approach to the matter. It has the complication, which is
adverted to obliquely in that case, that the issues raised are
constitutional issues in relation to which weight must be
given to the presumption of constitutionality. But subject to
that, what I have to direct my mind to is whether the plaintiff
has raised a fair question of law and it appears to me to be
proper, having regard to the remarks of the Chief Justice in

the Campus Oil Case , to attach a greater significance to the
term "fair question of law" than would be attached in private
litigation because of the existence of the presumption of
constitutionality in favour of an Act of Parliament and also a
similar kind of presumption in favour of the executive acts of
the Government. Nevertheless it appears to be a fair
question and it is not a matter on which I should attempt to
adjudicate at this stage and I will attempt to refrain from
doing so.
Secondly, I have to consider the balance of convenience as
between the parties, and in that context again the case is
somewhat unusual in that one is dealing with the balance of
convenience as between a private citizen and the
government of the state and also one is dealing with the
balance of convenience in a context in which the plaintiff is
attempting to raise a constitutional issue.
The nature of the relief sought in the motion before me is
quite unusual and as far as I know without precedent and it
is a claim for an injunction restraining the defendants who in
effect are the Government of Ireland and each of them from
depositing with the Government of the Italian Republic any
purported instrument of ratification of the Single European
Act. Now the Single European Act, despite its name, is an
international treaty which because it sought to impose a
charge on public funds required to be approved by a
resolution of the Dil and I am informed that the Dil did in
fact pass such a resolution on the 11th December, 1986. The
Act was then sent to the President who, I am informed, has
now affixed the Seal of Ireland on it in accordance with the
advice of the Government.
The plaintiff seeks, in the action, to attack the provisions of
the Single European Act for reasons which I will touch on
later and he also seeks to attack as unconstitutional the
provisions of the European Communities (Amendment) Act,
1986, which I am informed was signed and promulgated as
law by the President today.
The same plaintiff previously made an abortive application
to Carroll J. At that stage he was being advised by a different
solicitor and it would appear that that solicitor appeared

before Carroll J. He issued a plenary
[1987]
1 I.R.
Barrington J.
726
H.C.
summons and appeared before Carroll J. looking for leave to
serve short notice. The short notice he sought was
apparently to prevent the Minister proceeding with the Bill in
Dil ireann and it would appear that Carroll J. dismissed
that application. The application was clearly misconceived
because it is quite clear on the authorities that the
Oireachtas is free to exercise its legislative powers without
interference by the Courts in the course of legislation and,
just as the Courts expect independence within their own
sphere, likewise, the legislature is entitled to legislate in the
manner which it thinks best within its own sphere without
interference by the Courts in the course of the legislative
process. It appears to me on the same principle that the
Government is free to formulate the external policy of the
State and that is a matter vested in the Government by the
Constitution and authority for those propositions in relation
to the independence of the legislature and the executive,
subject to the Constitution, within their own spheres is to be
found in Boland v. An Taoiseach [1974] I.R. 338 and Finn v.
Attorney General [1983] I.R. 154.
The plaintiff however and this is one of the matters
which makes this litigation unique in my experience
submits that the substantial process of legislation is now
over. The European Communities Bill is now enacted into law
and it forms part of the law of the State subject to any
question as to its constitutionality. Likewise the substantive
part of policy formulation of the Government associated with
the adoption of the Single European Act is now over. The Act
has been approved by resolution of the Dil, has been
sealed by the President and all that remains is the formal act
of depositing the instrument of ratification with the

Government of the Italian Republic pursuant to a procedure
contemplated by article 33 of the Single European Act itself.
The background to the present case is to be found in the
provisions of the Constitution of Ireland, 1937, which
delineate the framework of a sovereign independent state.
You have first of all Article 1 which says:
"The Irish nation hereby affirms its inalienable, indefeasible,
and sovereign right to choose its own form of Government,
to determine its relations with other nations, and to develop
its life, political, economic and cultural, in accordance with
its own genius and traditions."
Then you have Article 6 which says that:
"All powers of government, legislative, executive and
judicial, derive, under God, from the people, whose right it is
to designate the rulers of the State and, in final appeal, to
decide all questions of national policy, according to the
requirements of the common good."
You have Article 15 which deals with the law-making or
legislative power of the State and Article 15, s. 2, sub-s. 1
says:
"The sole and exclusive power of making laws for the State
is
[1987]
1 I.R.
Barrington J.
727
H.C.
hereby vested in the Oireachtas: no other legislative
authority has power to make laws for the State."
Then it goes on to deal with subordinate legislatures which
are not relevant for the purposes of this particular judgment.
Then you have Article 28, s. 2 which vests the executive
power of the State in the Government and then you have
Article 29, s. 4, sub-s. 1 which says:
"The executive power of the State in or in connection with
its external relations shall in accordance with Article 28 of
this Constitution be exercised by or on the authority of the

Government."
And we now know that, since the Republic of Ireland Act,
1948, the President exercises those powers by or on the
authority of the Government in cases where the Government
advises him.
Article 29 of the Constitution also deals with international
agreements. In sub-s. 1 of s. 5 it provides that "Every
international agreement to which the State becomes a party
shall be laid before Dil ireann" and in sub-s. 2"The
State shall not be bound by any international agreement
involving a charge upon public funds unless the terms of the
agreement have been approved by Dil ireann ." And
then in s. 6 it provides "No international agreement shall be
part of the domestic law of the State save as may be
determined by the Oireachtas."
And that is the general framework of the institutions of a
sovereign, independent, constitutional and democratic state.
A particular problem arose in 1972 at the time when Ireland
was proposing to joint the European Economic Community
and that was whether the Oireachtas had power to make an
international agreement part of the domestic law of the
State. That was a matter for the Oireachtas only, but it was
questioned as to whether the Oireachtas had power to
delegate law-making functions administrative, legislative,
executive and judicial functions to supranational authorities
and for that reason it became necessary to pass the Third
Amendment to the Constitution which provides that:
"The State may become a member of the European Coal

And the significance of that second sentence of the
Amendment was that the Constitution could not now be
invoked to invalidate any measure which the
[1987]
1 I.R.
Barrington J.
728
H.C.
State was directed by the institutions of the EEC to take
arising out of the exercise of their powers, nor to invalidate
any regulation or any decision of the European Court which
had direct effect within this State by virtue of the provisions
of the Treaties. And that, therefore, was a very far-reaching
amendment to the provisions of the Constitution.
Now the Single European Act is of course an international
treaty and under the provisions of article 33 the Act must
be:
". . . ratified by the High Contracting Parties in accordance
with their respective constitutional requirements. The
instrument of ratification will be deposited with the
Government of the Italian Republic. This Act will enter into
force on the first day of the month following that in which
the instrument of ratification is deposited of the last
Signatory State to fulfil that formality."
That provision, as Mr. Callan for the plaintiff has pointed out,
concerning the form whereby an international treaty
becomes part of international law, on deposit with a
particular nominated authority, conforms in general principle
with the provisions of article 15 of the Vienna Convention on
the Law of Treaties to which this State is not a party but
which appears to attempt to codify the general provisions of
customary international law. It is therefore an instrument to
which international authorities would pay respect and it
provides that the consent of a State to be bound by a treaty
is expressed by accession when:
"(a) the treaty provides that such consent may be expressed
by that State by means of accession;

(b) it is otherwise established that the negotiating States
were agreed that such consent may be expressed by that
State by means of accession;
(c) or all the parties have subsequently agreed that such
consent may be expressed by that State by means of
accession."
And then article 16 refers to the exchange or deposit of
instruments of ratification:
"Unless the treaty otherwise provides, instruments of
ratification, acceptance, approval or accession establish the
consent of a State to be bound by a treaty upon:
(a) their exchange between the contracting States;
(b) their deposit with the depositary; or
(c) their notification to the contracting States or to the
depositary, if so agreed."
But in fact it does not appear to be necessary to fall back on
that provision because, as I said, there is a special
arrangement for deposit indicated by the Single European
Act itself.
Now, as I indicated, to join the European Communities, it
was necessary for this State to have first of all the Third
Amendment to the Constitution: secondly, to have a treaty
of accession to the Communities,
[1987]
1 I.R.
Barrington J.
729
H.C.
and thirdly, to have the European Communities Act, 1972.
That Act contains a definition which may be of some
significance for the purposes of these proceedings because it
says in the definition section of the Act of 1972 that "the
treaties governing the European Communities means" and it
then sets them out: the EEC, the Euratom Treaty and all the
other treaties governing the Communities.
To achieve the present proposed change we have now the
Single European Act, which is the international treaty, and

we have the European Communities (Amendment) Act, 1986,
but there is no provision for amending the Constitution
because in the view of the Government, apparently, such
provision is not necessary. So that, so far as the bringing into
force of the proposed changes of the European Communities
in the Constitution, so far as this State is concerned, only two
administrative procedures remain: one being the deposit of
the instrument of ratifiaction with the Government of the
Italian Republic, and the other the making of an order under
s. 3, sub-s. 3 of the new European Communities
(Amendment) Act, 1986, bringing that Act into force. When
that is done the phrase in the Act of 1972, "the treaties
governing the European Communities", will be expanded to
include certain provisions of the Single European Act set out
in the new Act so that, in effect, the operative provisions of
the Single European Act will become part of the governing
treaties of the European Communities.
Now it appears to me that there is no doubt that the Single
European Act does attempt to amend and to supplement the
treaties establishing the European Communities and indeed
it so says on its face. At the same time it is also clear that
the Treaty of Rome itself at article 236 contemplated that the
Treaty could be amended and it reads:
"The Government of any Member State or the Commission
may submit to the Council proposals for the amendment of
this Treaty.
If the Council, after consulting the Assembly and, where
appropriate, the Commission, delivers an opinion in favour of
calling a conference of representatives of the Governments
of the Member States, the conference shall be convened by
the President of the Council for the purpose of determining
by common accord the amendments to be made to this
Treaty.
The amendments shall enter into force after being ratified
by all the Member States in accordance with their respective
constitutional requirements."
Therefore it appears that while amendments of the Treaty of
Rome are contemplated by the Treaty itself, the
amendments when they come into effect or when they are

debated are the independent acts of the Member States and
if accepted by them are an addition to or an amendment of
the Treaties. It follows, as I previously indicated, that once
the act of ratification
[1987]
1 I.R.
Barrington J.
730
H.C.
of the Single European Act has been deposited with the
Government of the Italian Republic and the order made in
accordance with the European Communities (Amendment)
Act, 1986, bringing that Act into operation, then the Single
European Act becomes one of the governing treaties of the
European Communities, and thereupon it would appear,
under the provisions of the Third Amendment to the
Constitution, that no provision of the Constitution
"invalidates laws enacted, acts done or measures adopted
by the State necessitated by the obligations of membership
of the Communities or prevents laws enacted, acts done or
thereof, from having the force of law in the State."In other
words, once all the pieces of the jigsaw puzzle are in place, it
would appear to follow that the obligation to observe the
provisions of the Single European Act would be one of the
obligations of membership of the European Communities and
would have validity within the jurisdiction of this country in
the domestic law of this country by virtue of the provisions of
the Third Amendment to the Constitution.
One of the major points at issue between the parties is that
while such provisions would be necessitated by the
obligations of membership once the amendment to the
Treaties has been made, at the present time when the
amendment is still a proposed amendment by way of change
or addition to the Treaty of Rome it cannot be said to be
"necessitated" by the provisions of the Treaty of Rome and
therefore, at this point in time, the plaintiff submits it is open

to constitutional challenge by him although it might not be
open to constitutional challenge by him at a later stage. Now
the respective contentions of the parties on this matter have
been that Mr. Fitzsimons for the defendants on the one hand
has submitted that what the Single European Act does is
merely to tidy up the administrative procedures of the
Communities within the ambit of the original Treaties. Mr.
Callan on the other hand submits that the effects are much
more far-reaching. For instance he submits that the Single
European Act contemplates the establishment of a new court
within the EEC with powers presently undefined, although he
has to admit that such a court, if established, would in fact
be subordinate to the present Court of Justice of the
European Communities which, in relation to the new court,
would act as a court of appeal. He also submits that the
Single European Act contains new provisions dealing with the
health of workers, a matter on which the original Treaty of
Rome was silent, in the sense that there was no specific
reference to that matter in it, and he says that this being an
extension of the law-making powers of the institutions of the
EEC is necessarily a diminution of the sole and exclusive lawmaking powers of the Oireachtas referred to in Article 15 of
the Constitution. Likewise he says the Single European Act
contemplates the waiver of certain existing provisions
requiring unanimity among Member States and substitutes in
their place different forms of majority decision whether
weighted or otherwise and these matters are referred to in a
[1987]
1 I.R.
Barrington J.
731
H.C.
schedule to a memorandum which was prepared apparently
for the Foreign Affairs Committee of the British Parliament
and which is conceded by both parties accurately to set out
the contemplated changes.
The plaintiff submits that the result would be to give to the

European institutions increased law-making powers over and
above those contemplated in 1972 at the time of the
referendum and thereby to encroach upon the sole lawmaking powers of the Oireachtas under Article 15 of the
Constitution. It appears to me that, on this question, the
plaintiff has raised a fair issue for a court to decide.
Great stress has been laid in the course of the case on the
San Michele Case (Cases 9/65 and 58/65) [1967] E.C.R. 1
being a decision of the Court of Justice of the European
Communities. That decision appears to contemplate that
once a treaty has been formally ratified by a Member State,
by the formal deposit of the instrument of ratification, the
European Court in exercising its jurisdiction will not go
behind that ratification and the Court says in its judgment at
p. 29:
"Whereas, however, the Court of Justice, as the institution
entrusted with ensuring that in the interpretation and
application of the Treaty the law is observed, can only take
into consideration the instrument of ratification, which itself
was deposited on behalf of Italy on 22 July 1952 and which,
together with the other instruments of ratification, brought
the treaty into force. Whereas it is clear from the instruments
of ratification, whereby the Member States bound
themselves in an identical manner, that all States have
adhered to the Treaty on the same conditions, definitively
and without any reservation other than those set out in the
supplementary protocols, and that therefore any claim by a
national of a Member State questioning such adherence
would be contrary to the system of Community law."
Now in that context Mr. Callan has raised this submission,
that if the instrument of ratification of the Single European
Act is deposited with the European Court then he will have
lost any status he might otherwise have in relation to
attacking the validity of the Single European Act and that
thereafter the institutions of the European Communities will
be entitled, within the sphere of their jurisdiction
increased he suggests by the provisions of the Act to
make regulations and legal decisions which will be effective
within the domestic law of this country and against which

the Constitution cannot be invoked.
The contrary submission put forward by Mr. Fitzsimons is
that if Mr. Callan whatever his status before the
European Court pursues his present substantive
application and establishes to the satisfaction of the court
which finally hears the action that the European
Communities Act or the Single European Act in fact violates
the Constitution of Ireland, that the Government of Ireland
would then be obliged in accordance with the
[1987]
1 I.R.
Barrington J.
732
H.C.
provisions of this jurisdiction to abrogate so far as may be
necessary the provisions under the European Treaties. It
appears to me on that matter also the plaintiff has raised a
fair and substantial point of law.
A strong attack has been made on the plaintiff on the basis
that he has no locus standi so far as these proceedings are
concerned and Mr. Fitzsimons relied upon the provisions of
Cahill v. Sutton [1980] I.R. 269 and this is a matter to which,
needless to say, I have to give very serious regard. I think it
is however important to remember that Cahill v. Sutton
dealt with private litigation and was a case where the
plaintiff in the action was attempting to set up rights of a
third party in order to avail of an alleged defect in the law so
as to have it declared invalid and thereby to say there was
no law and that therefore the plaintiff was entitled not to be
adversely affected by it. In other words the plaintiff was
attempting to set up for her own private purposes the rights
of a third party and the Supreme Court refused to allow the
plaintiff to do that. However, in the course of his judgment in
the case Henchy J. made some remarks to which I must pay
very careful attention. He says, and Mr. Fitzsimons quoted
the passage, at p. 284:
"There is also the hazard that, if the Courts were to accord

citizens unrestricted access, regardless of qualification, for
the purpose of getting legislative provisions invalidated on
constitutional grounds, this important jurisdiction would be
subject to abuse. For the litigious person, the crank, the
obstructionist, the meddlesome, the perverse, the officious
man of straw and many others, the temptation to litigate the
constitutionality of a law, rather than to observe it, would
prove irresistible on occasion."
He also refers to the danger that people who have lost their
debate with the public or with the parliament might as a final
analysis bring the fight into the Courts and he says that this
would be an undesirable development if it should take place.
Now this is the matter to which I have to give very careful
consideration. There is no doubt that the present issue
raised in these proceedings is a controversial political issue
but it appears to me also that, right from the start, it has
been an issue dealing with the powers of the Government
and with constitutional rights which are matters of law and in
which a responsible citizen be his attitude to them right
or wrong could take a legitimate interest and that, in so
much as it is a matter which affects the whole constitutional
and political structure of the society in which he lives, it is a
matter in which the individual citizen might have a
legitimate interest which might be accepted in a court of law.
But I think it important to refer in more detail to what
Henchy J. said in that case because he goes on to say (at pp.
284/5):
"The Constitution has given Parliament the sole and
exclusive power of making laws. The Courts normally accord
those laws the
[1987]
1 I.R.
Barrington J.
733
H.C.
presumption of having been made with due observance of
constitutional requirements. If a citizen comes forward in

court with a claim that a particular law has been enacted in
disregard of a constitutional requirement, he has little reason
to complain if in the normal course of things he is required,
as a condition of invoking the court's jurisdiction to strike
down the law for having been unconstitutionally made (with
all the dire consequences that may on occasion result from
the vacuum created by such a decision), to show that the
impact of the impugned law on his personal situation
discloses an injury or prejudice which he has either suffered
or is in imminent danger of suffering.
This rule, however, being but a rule of practice must, like all
such rules, be subject to expansion, exception or
qualification when the justice of the case so requires. Since
the paramount consideration in the exercise of the
jurisdiction of the Courts to review legislation in the light of
the Constitution is to ensure that persons entitled to the
benefit of a constitutional right will not be prejudiced
through being wrongfully deprived of it, there will be cases
where the want of the normal locus standi on the part of the
person questioning the constitutionality of the statute may
be overlooked if, in the circumstances of the case, there is a
transcendent need to assert against the statute the
constitutional provision that has been invoked. For example,
while the challenger may lack the personal standing
normally required, those prejudicially affected by the
impugned statute may not be in a position to assert
adequately, or in time, their constitutional rights. In such a
case the court might decide to ignore the want of normal
personal standing on the part of the litigant before it.
Likewise, the absence of a prejudice or injury peculiar to the
challenger might be overlooked, in the discretion of the
court, if the impugned provision is directed at or operable
against a grouping which includes the challenger, or with
whom the challenger may be said to have a common
interest particularly in cases where, because of the
nature of the subject matter, it is difficult to segregate those
affected from those not affected by the challenged provision.
However, those examples of possible exceptions to the rule
should not be taken as indicating where the limits of the rule

are to be drawn. It is undesirable to go further than to say
that the stated rule of personal standing may be waived or
relaxed if, in the particular circumstances of a case, the
court finds that there are weighty countervailing
considerations justifying a departure from the rule."
It does appear to me, assuming the plaintiff were otherwise
devoid of constitutional standing, that he has raised matters
which are common to him
[1987]
1 I.R.
Barrington J.
734
H.C.
and to other citizens and which are weighty countervailing
considerations which would justify, on their own, a departure
from the rule in relation tolocus standi. But it does appear to
me that in relation to one matter and it is a basic matter
the plaintiff clearly has a locus standi because his
contention is that what is being done involves an
amendment to the Constitution which should be submitted
to a referendum, and that he, as a citizen, has the right to be
consulted in such a referendum and that his right is being
infringed. He may be correct in making that submission or he
may not but it appears to me that it is a serious and
important issue and that he has the locus standi to raise that
particular issue.
It is contended that the present application is an abuse of
the process of the court. However, I am satisfied that what
happened was that the plaintiff, when another solicitor was
acting for him, applied to Carroll J. for leave to serve short
notice of motion to prevent the Minister placing the matter
for consideration before the Oireachtas. It is quite clear that
that application met with short shrift, and rightly so, from
Carroll J. I think it proper to remark also that when Mr. Callan
first made his interim application he informed me that that
application had been made and conceded that the
application was ill thought out and should not have been
made. The application now being made by Mr. Callan and his
present team is a much more sophisticated one and it
appears to me that he has advanced cogent reasons for
making this application at this time and in this way and that
it could not properly be referred to as an abuse of the
process of the court.
Secondly, and this has caused me some concern, so much
so that I checked on the matter myself, it has been
suggested that the plaintiff was forum shopping because
having failed in his application before Carroll J. he shopped
around for a different judge. If that were true I think it would
be a reason for refusing him relief now. But I am satisfied
from enquiries at the Central Office that in fact the plaintiff
or his solicitor sought to make the application before the
judge who was on duty, who was MacKenzie J., but that
MacKenzie J. was ill at the time and therefore he had to make
the application before another judge. Apparently Carroll J.
was not available either and ultimately the plaintiff's legal
advisers succeeded in tracking me down and while I might
prefer, having regard to the complexity of the matter, that
they had found a different judge, I do not think that I can
fault them for the course of conduct they followed.
Next I come to the question of the balance of convenience.
On the one hand you have the right of one private citizen
who has raised a fair and substantial question touching his
constitutional rights. Against him it is said that this present
application is not necessary because he can achieve the
same result by proceeding with his substantive constitutional
action and if he is right at the end of the day, he will be
entitled to relief. But in that context one has the other
puzzling question which Mr. Callan has raised in the light of
the decision in San Michele (Cases 9/65 and 58/65) [1967]
E.C.R. 1, to
[1987]
1 I.R.
Barrington J.
735
H.C.
the effect that, once the instrument of ratification is
deposited, a new jurisdiction will be assumed on a
supranational level by the institutions of the Communities
and that their jurisdiction will be entitled to effect within the
domestic law of this country, and that, putting the matter at
its easiest or at its least damaging from the plaintiff's point
of view, one would have a situation where potentially there
was a conflict of jurisdiction between the institutions of the
European Communities and the domestic courts of this
country. It appears that that is a matter on which Mr. Callan
has raised a fair question and which is relevant also in the
context of the balance of convenience because it would
appear that while the Government could, in the event of the
courts ultimately holding that the steps already taken were
unconstitutional, attempt to retract from its international
commitments, the embarrassment certainly to the State
would be considerable and indeed it is arguable that we
would be entering on a sea of litigation which is uncharted
so far as the knowledge of this particular court goes.
Against those difficulties with which the plaintiff is
confronted, there is the serious embarrassment which would
be caused to the Government if it is unable to lodge the
instrument of ratification before the end of this month and
that clearly is a serious matter to which weight must be
given but I think it is also relevant, in that context, to note
that article 33 of the Single European Act itself contemplates
that the Act is to be "ratified by the High Contracting Parties
in accordance with their respective constitutional
requirements."The plaintiff has raised a question as to the
constitutional requirements in this country and it appears to
me that that is a matter which this court must take seriously
and, on balance, that that matter has been raised in this
court at a time when the various changes are not yet binding
on the State and that this court must in pursuance of its
general duties under the Constitution allow a constitutional
issue to be raised and allow the status quo to be preserved
pending its resolution. So I think the balance of convenience
is in favour of granting the injunction rather than refusing it.

In that context of course I have also had to consider, as I
previously indicated, that there is a constitutional
presumption in favour of the Act of 1986 and I am prepared
to accept for the purposes of this application that the
Executive is also entitled to a similar kind of respect in
relation to its executive functions and furthermore that the
court must proceed on the basis of a presumption in favour
of the correct exercise of executive powers, which
presumption is strengthened because a resolution of Dil
ireann has been passed. Needless to say, I have found
these matters very troublesome but it appears to me that
even despite those presumptions I still must reach the
conclusion that at this early stage the plaintiff has raised an
issue of such substance and importance as to warrant
preserving the status quo until the issue has been resolved
in these courts.
I accordingly will grant the interlocutory injunction sought
by the plaintiff.
[1987]
1 I.R.
Barrington J.
736
H.C.
On 2nd January, 1987, the plaintiff filed a very lengthy
statement of claim signed by three senior counsel and two
junior counsel, which concluded by seeking essentially the
same reliefs as set out in the general indorsement of claim
to the plenary summons. By its defence filed on the 7th
January, 1987, the defendants denied constitutional
infringement, and contended that sections of the statement
of claim regarding future legislative activity by the
institutions of the European Communities were speculative
only, and in any event related only to matters of policy. The
defendants further objected to the locus standi of the
plaintiff. The matter came on for hearing before the High

Court (Hamilton P., Barrington and Carroll JJ.) on the 15th,
16th, 19th, 20th, 21st, 22nd, 23rd, 29th and 30th January,
1987.
Paul Callan S.C. , Aidan Browne S.C. and Eoin McGonigal S.C.
(with them Antonia O'Callaghan and Seamus Tuathail
tuathail ) for the plaintiff.
T.K. Liston S.C. , Eoghan Fitzsimons S.C. and John Cooke S.C.
(with them James O'Reilly ) for the defendants.
The following cases were cited in argument: All cases
listed at the outset of this report, save the last five, were
referred to in argument before the court.
Cur. adv. vult.
The judgment of the court (Hamilton P., Barrington and
Carroll JJ.) was delivered by Barrington J.
Barrington J.
12th February 1987
The plaintiff is an Irish citizen. The first fifteen defendants
are the Government of Ireland who exercise the executive
power of the State pursuant to the provisions of the
Constitution. The sixteenth defendant is the State and the
seventeenth defendant is the Attorney General and law
officer of the State designated by the Constitution and is
joined as a defendant in such capacity. In these proceedings
the plaintiff claims, inter alia:
(1) A declaration that the State cannot become bound by
the Single European Act being a treaty designed to amend
and augment the treaties establishing the European
Communities and to establish European Political Cooperation
in the sphere of foreign and security policy, except by virtue
of a referendum to amend the Constitution;
[1987]
1 I.R.
Barrington J.
737
H.C.
(2) A perpetual injunction restraining the defendants and
each of them from depositing with the Government of the
Italian Republic any purported instrument of ratification of
the Single European Act otherwise than by virtue of and
pursuant to an amendment of the Constitution through
referendum;
(3) If necessary, a declaration that the European
Communities (Amendment) Act, 1986, is invalid having
regard to the provisions of the Constitution.
The case raises very far-reaching issues touching Irish
constitutional law, international law and the law of the
European Communities.
The Treaty of Rome
The European Communities are the European Coal and Steel
Community (established by the Treaty of Paris dated the
18th April, 1951), the European Economic Community
(established by the Treaty of Rome dated the 25th March,
1957) and the European Atomic Energy Community
(established by the Treaty of Rome dated the 25th March,
1957). The Single European Act purports, on its face, to
amend and supplement all three Treaties. Similar issues arise
in relation to all three Treaties and it may simplify matters if
we discuss the problems which arise in the light of the Treaty
of Rome establishing the European Economic Community.
The purpose of the Treaty of Rome was to establish a
European Economic Community. The motives of the founder
members of the Community appear from the preamble to
the Treaty which, with its reference to the determination of
the founder members "to lay the foundations of an ever
closer union among the peoples of Europe", recalls the
preamble to the American Constitution. The Treaty
contemplated the progressive removal of barriers to trade
and obstacles to the free movement of goods and capital
over a period of time. Article 2 of the Treaty accordingly
provides that the Community will have as part of its task the
promotion of harmonious development of economic activities
throughout the Community by establishing a common
market and "progressively" approximating the economic
policies of the Member States. The preamble to the Treaty
reads as follows:
"HIS MAJESTY THE KING OF THE BELGIANS, THE PRESIDENT
OF THE FEDERAL REPUBLIC OF GERMANY, THE PRESIDENT
OF THE FRENCH REPUBLIC, THE PRESIDENT OF THE ITALIAN
REPUBLIC, HER ROYAL HIGHNESS THE GRAND DUCHESS OF
LUXEMBOURG, HER MAJESTY THE QUEEN OF THE
NETHERLANDS,
DETERMINED to lay the foundations of an ever closer union
among the peoples of Europe,
RESOLVED to ensure the economic and social progress of
their
[1987]
1 I.R.
Barrington J.
738
H.C.
countries by common action to eliminate the barriers which
divide Europe,
AFFIRMING as the essential objective of their efforts the
constant improvement of the living and working conditions
of their peoples,
RECOGNISING that the removal of existing obstacles calls
for concerted action in order to guarantee steady expansion,
balanced trade and fair competition,
ANXIOUS to strengthen the unity of their economies and to
ensure their harmonious development by reducing the
differences existing between the various regions and the
backwardness of the less favoured regions,
DESIRING to contribute, by means of a common commercial
policy, to the progressive abolition of restrictions on
international trade,
INTENDING to confirm the solidarity which binds Europe and
the overseas countries and desiring to ensure the

development of their prosperity, in accordance with the
principles of the Charter of the United Nations,
RESOLVED by thus pooling their resources to preserve and
strengthen peace and liberty, and calling upon the other
peoples of Europe who share their ideal to join in their
efforts,
HAVE DECIDED to create a European Economic Community .
. ."
Article 3 of the Treaty sets out the activities of the
Community and reads as follows:
"For the purposes set out in Article 2, the activities of the
Community shall include, as provided in this Treaty and in
accordance with the timetable set out therein:
(a) the elimination, as between Member States, of customs
duties and of quantitative restrictions on the import and
export of goods, and of all other measures having equivalent
effect;
(b) the establishment of a common customs tariff and of a
common commercial policy towards third countries;
(c) the abolition, as between Member States, of obstacles to
freedom of movement for persons, services and capital;
(d) the adoption of a common policy in the sphere of
agriculture;
(e) the adoption of a common policy in the sphere of
transport;
(f) the institution of a system ensuring that competition in
the common market is not distorted;
(g) the application of procedures by which the economic
policies of Member States can be coordinated and
disequilibria in their balances of payments remedied;
(h) the approximation of the laws of Member States to the
extent required for the proper functioning of the common
market;
(i) the creation of a European Social Fund in order to
improve employment opportunities for workers and to
contribute to the raising of their standard of living;
[1987]
1 I.R.
Barrington J.
739
H.C.
(j) the establishment of a European Investment Bank to
facilitate the economic expansion of the Community by
opening up fresh resources;
(k) the association of the overseas countries and territories
in order to increase trade and to promote jointly economic
and social development."
Article 4 entrusts the work of the Community to four
institutions: (1) an Assembly, (2) a Council, (3) a
Commission, and (4) a Court of Justice, each acting within
the limits of the powers conferred upon it by the Treaty. By
articles 5 and 6 the Member States pledge themselves to
facilitate the achievement of the Community's tasks, commit
themselves to abstain from any measures which would
jeopardise the attainment of the objectives of the Treaty and
promise to act in close co-operation with the institutions of
the Community. Article 7 prohibits any discrimination on the
grounds of nationality. Article 8 provides that the common
market is to be established over a transitional period of
twelve years divided into three stages of four years each.
(This transitional period was to end in 1969. But, so far as
Ireland was concerned, the transitional period was extended
to 1977 under the terms of the Accession Treaty). All of these
provisions are contained in Part I of the Treaty under the
heading "PRINCIPLES".
It seems clear that what the founders had in mind was a
growing dynamic Community gradually achieving its
objectives over a period of time. Article 210 provides that
the Community is to have legal personality and article 211
provides that in each of the Member States the Community
is to enjoy the most extensive legal capacity which the laws
of the State allow. The Treaty is one of indefinite duration
(article 240). Article 235 provides that if action by the
Community should prove necessary to attain, in the course
of the operation of the common market, one of the

objectives of the Community and the Treaty has not provided
the necessary powers, the Council shall, acting unanimously
on a proposal from the Commission and after consulting the
Assembly, take the appropriate measures. This article has
been the basis of many regulations and directives and its use
as such has been expressly approved by the Court of Justice
of the European Communities. (See Hauptzollamt
Bremerhaven v. Massey-Ferguson GmbH(Case 8/73) [1973]
E.C.R. 897).
Article 236 contains provisions for amending the Treaty. The
Government of any Member State or the Commission may
submit to the Council proposals for the amendment of the
Treaty. If the Council, after consulting the Assembly and,
where appropriate, the Commission, delivers an opinion in
favour of calling a conference of representatives of the
Governments of the Member States, the conference shall be
convened by the President of the Council for the purpose of
determining by common accord the amendments to be
made to the Treaty. It also provides that the amendments
shall enter into force after being ratified by all the Member
States "in accordance with their respective constitutional
requirements". There were a number of
[1987]
1 I.R.
Barrington J.
740
H.C.
amendments to the Treaty prior to Ireland's accession and
further amendments have taken place since.
The Single European Act
The Single European Act is an international treaty designed
further to amend the provisions of the Treaty of Rome. It
contains, however, (at article 33) its own ratification
procedure. This provides that the Act is to be ratified by the
High Contracting Parties "in accordance with their respective
constitutional requirements." They make known their
ratification by depositing the relevant instrument of

ratification with the Government of the Italian Republic.
Article 33 also provides that the Act is to enter into force on
the first day of the month following that on which the
instrument of ratification shall have been deposited by the
last signatory State to fulfil that formality.
All Member States, except Ireland, have deposited their
respective instruments of ratification with the Government of
the Italian Republic. The Irish instrument of ratification has
been sealed by the President, on the advice of the
Government, is ready for deposit, and would have been
deposited but for the interlocutory injunction granted by the
High Court on the 24th December, 1986.
The Single European Act consists of a preamble which
refers, inter alia,to the European Convention for the
Protection of Human Rights and Fundamental Freedoms, and
of four titles. Of these the most important is Title II which
contains four chapters amending the founding Treaties.
Chapter I amends the European Coal and Steel Community
Treaty; Chapter II amends the Treaty of Rome; Chapter III
amends the Euratom Treaty; and Chapter IV contains general
provisions.
Title I refers to certain common provisions of a procedural
nature and would not appear to be important for the
purposes of this case except for article 3 which provides as
follows:
"(1) The institutions of the European Communities,
henceforth designated as referred to hereafter, shall exercise
their powers and jurisdiction under the conditions and for the
purposes provided for by the Treaties establishing the
Communities and by the subsequent Treaties and Acts
modifying or supplementing them and by the provision of
Title II.
(2) The institutions and bodies responsible for European
Political Cooperation shall exercise their powers and
jurisdiction under the conditions and for the purposes laid
down in Title III and in the documents referred to in the third
paragraph of Article 1."
Title III contains provisions for co-operation by the members
of the Community in the sphere of foreign policy.

Title IV contains certain general and final provisions
including article 33
[1987]
1 I.R.
Barrington J.
741
H.C.
which lays down the procedure for ratification, and articles
31 and 32 which are as follows:
Article 31
"The provisions of the Treaty establishing the European Coal
and Steel Community, the Treaty establishing the European
Economic Community and the Treaty establishing the
European Atomic Energy Community concerning the powers
of the Court of Justice of the European Communities and the
exercise of those powers shall apply only to the provisions of
Title II and to Article 31; they shall apply to those provisions
under the same conditions as for the provisions of the said
Treaties."
Article 32
"Subject to Article 3 (1), to Title II and to Article 31, nothing
in this Act shall affect the Treaties establishing the European
Communities or any subsequent Treaties and Acts modifying
or supplementing them."
It would therefore appear that the most important
provisions, so far as this case is concerned are those
contained in Title II, Chapter II. These include additional
provisions dealing with the internal market, monetary
capacity, social policy (including health and safety of
workers), economic and social cohesion, research and
technological development and the environment (see
Section II). The plaintiff submits that the effect of these
provisions is to extend the scope of the Treaty of Rome and
to add a new objective to the objectives set out in that
Treaty.
Article 11 of the Single European Act provides that the
Council may, acting unanimously, at the request of the Court

of Justice and after consulting with the Commission and the
European Parliament "attach" to the Court of Justice a court
with jurisdiction to hear and determine at first instance,
subject to a right of appeal to the Court of Justice on points
of law only, certain classes of action or proceedings brought
by natural or legal persons. The new court, however, shall
not be competent to hear and determine actions brought by
Member States or by Community institutions or questions
referred for a preliminary ruling under Article 177 of the
Treaty.
Finally, Title II, Chapter I, Section I provides for the
introduction of a"cooperation procedure" for arriving at
decisions under articles of the Treaty of Rome and for the
substitution of qualified voting for unanimous decisionmaking in a restricted number of cases
The European Communities (Amendment) Act, 1986
The European Communities (Amendment) Act, 1986,
amends the European Communities Act, 1972, by adding to
"the treaties governing the European Communities" referred
to in s. 1 of that Act, the following provisions of the Single
European Act, namely:
[1987]
1 I.R.
Barrington J.
742
H.C.
"Article 3.1; Title II; Articles 31 and 32; and, in so far as they
relate to the said Article 3.1, the said Title II and the said
Articles 31 and 32, Articles 33 and 34."
The Act of 1986 is to be read as one with the Act of 1972
and the effect of the amendment is to make the provisions of
the Single European Act referred to part of the domestic law
of Ireland, once the Minister for Foreign Affairs has made his
order bringing the Act of 1986 into force pursuant to the
provisions of section 3.
The Constitution
This case raises fundamental issues concerning the Irish
Constitution and the relationship between it and the law of
the European Communities. Both sides have therefore found
it necessary to re-examine the principal features of our
Constitution.
Article 5 provides that Ireland is a sovereign, independent,
democratic state. Article 6 provides that all powers of
government, legislative, executive and judicial, derive, under
God from the people, "whose right it is to designate the
rulers of the State and, in final appeal, to decide all
questions of national policy, according to the requirements
of the common good."These powers of government are
exercisable "only by or on the authority"of the organs of
State established by the Constitution. The organs of State
established by the Constitution include the President, the
Oireachtas, the Government and the Courts. The
Constitution provides for a form of separation of powers.
Article 15, s. 2 vests in the Oireachtas "the sole and
exclusive power of making laws for the State." The
Constitution recognises means whereby the Oireachtas may
delegate some of its law-making functions to subordinate
legislatures. Prior to the Third Amendment to the
Constitution there was no provision whereby it could
delegate its law-making powers to a supranational authority.
The Oireachtas may not enact any law which is in any
respect repugnant to the Constitution. Every law enacted by
the Oireachtas which is in any respect repugnant to the
Constitution shall be, but to the extent only of such
repugnancy, invalid.
Article 28 provides that the executive power of the State
shall "subject to the provisions of this Constitution" be
exercised by or on the authority of the Government. Article
29, s. 4, provides that the executive power of the State in or
in connection with its external relations shall "in accordance
with Article 28 of this Constitution" be exercised by or on the
authority of the Government.
Article 34 provides that justice shall be administered in
courts established by law by judges appointed in the manner
provided by the Constitution. As the Supreme Court said in

Buckley and Others (Sinn Fin) v.Attorney General [1950]
I.R. 67, at p. 81:
[1987]
1 I.R.
Barrington J.
743
H.C.
"This seems to us to contemplate and require that justice
shall be administered in such manner and not otherwise."
The High Court, and on appeal from it the Supreme Court,
has jurisdiction to decide any question as to the validity of
any law having regard to the provisions of the Constitution.
In considering any such question the courts will presume
that the law is in accordance with the Constitution until the
contrary is clearly established. This presumption arises from
the respect which each of the great organs of state owes to
the other. Each will assume that the other is attempting
properly to perform its constitutional function and will
normally refrain from interfering in a field prima facie within
the area of competence of the other. There appears to be no
reason why the courts should not pay to the Government,
acting within its own sphere, the same kind of respect it pays
to the Oireachtas acting in its proper domain. This would
appear to apply with special force when the Government is
conducting the external relations of the State an area
within which the courts have not normally any competence.
Both sides in the present case relied heavily on the decision
of the Supreme Court in Boland v. An Taoiseach [1974] I.R.
338. The defendants relied on it as authority for the
proposition that the Government must be free to formulate
the foreign policy of the State. The plaintiff on the other
hand relied on it as authority for the proposition that, even in
the conduct of the external relations of the State, the
Government was subject to the Constitution and that, at
some point, a stage might be reached where it was
necessary for the courts to intervene to protect the

Constitution.
In that case FitzGerald C.J., at p. 362 put the matter as
follows:
"Consequently, in my opinion, the Courts have no power,
either express or implied, to supervise or interfere with the
exercise by the Government of its executive functions,
unless the circumstances are such as to amount to a clear
disregard by the Government of the powers and duties
conferred upon it by the Constitution."
Budd J., at p. 366, put the matter as follows:
"It is for the Executive to formulate matters of policy. The
judiciary has its own particular ambit of functions under the
Constitution. Mainly, it deals with justiciable controversies
between citizen and citizen or the citizen and the State and
matters pertaining thereto. Such matters have nothing to do
with matters of State policy. Viewing the matter from another
angle, as to the nature of any relief that could properly be
claimed in proceedings of this nature, I ask whether it could
be said that the Courts could be called upon to pronounce
adversely or otherwise on what the Government proposed to
do on any matter of policy which it was in course of
formulating. It would seem that that would be an attempted
interference with matters which are part of the functions
[1987]
1 I.R.
Barrington J.
744
H.C.
of the Executive and no part of the functions of the judiciary.
From a practical standpoint alone, what action would be
open to the Courts? The Courts could clearly not state that
any particular policy ought not to be pursued.
The Constitution goes further in indicating how far the
policies involved in government decisions as to policy such
as this are removed from the purview of the Courts in that it
makes the Government responsible to the Dil which can
support or oppose those policies and review them.

Ultimately, there is the responsibility of the Government to
the people who must be consulted by way of referendum
where any change of the Constitution is contemplated."
Griffin J., having surveyed the Articles of the Constitution
dealing with the separation of powers, put the matter as
follows, at p. 370:
"In my view, these Articles demonstrate that the Oireachtas,
and the Oireachtas alone, can exercise the legislative power
of government; that the Government, and the Government
alone, can exercise the executive power of government; and
that the judicial power of government can be exercised only
by judges duly appointed under the Constitution in courts
established by law under the Constitution. As the Oireachtas
is prohibited from enacting any law which is in any respect
repugnant to the Constitution or any provision thereof, the
question of the validity of any law having regard to the
provisions of the Constitution is reserved to the High Court
and the Supreme Court. This is not, however, in any respect
an interference by the judicial power in the exercise by the
Oireachtas of the legislative power.
By the Constitution the Government is expressly made
responsible to Dil ireann: see s. 4, sub-s. 1, of Article
28. Counsel for the defendants argued that in no
circumstances may the Courts interfere with the Government
in the exercise of its executive functions. For the purpose of
this action it is not necessary to determine this question in
the form in which the argument was made, as the
defendants need only show that the Courts cannot and
should not intervene having regard to the circumstances of
the present case. In the event of the Government acting in a
manner which is in contravention of some provisions of the
Constitution, in my view it would be the duty and right of the
Courts, as guardians of the Constitution, to intervene when
called upon to do so if a complaint of a breach of any of the
provisions of the Constitution is substantiated in proceedings
brought before the Courts."
Under Article 26 of the Constitution the President may, in
certain circumstances, refer a Bill to the Supreme Court for a
decision as to whether it is or is not repugnant to the

Constitution. The defendants stressed that
[1987]
1 I.R.
Barrington J.
745
H.C.
this was the only procedure whereby the constitutionality of
legislation could be discussed, in the abstract, and in the
light of hypothetical circumstances. In all other cases they
suggested that a plaintiff, to have locus standi, had to have a
specific personal grievance of the kind contemplated in
Cahill v.Sutton [1980] I.R. 269. In this case, the defendants
suggested the plaintiff was attempting to get from the High
Court a constitutional review of the European Communities
(Amendment) Act, 1986, without having any right to demand
it. The plaintiff, on the other hand, says that he and his
fellow citizens have been deprived of the right to take part in
a referendum on what, he alleges, is in fact an attempt to
amend the provisions of the Constitution.
Under Article 6 of the Constitution the people have the right
"in final appeal" to decide all questions of national policy
according to the requirements of the common good. The
Constitution provides, however, only three methods whereby
the people can be consulted. The first is by a general
election held in accordance with the provisions of Article 16
of the Constitution. The second is under Article 27 of the
Constitution where the President decides that a Bill is of such
national importance that the will of the people thereon ought
to be ascertained by referendum. The third is by a
referendum to amend the Constitution.
No citizen has a constitutional right to obtain a referendum.
A proposal for the amendment of the Constitution must be
initiated in Dil ireann and be passed by both houses of
the Oireachtas before being submitted to the people by
referendum. But if such a referendum is held the plaintiff,
like every other citizen who has the right to vote at an
election for members of Dil ireann , has the right to

vote at the referendum. This would appear to contemplate
and require that, if the Constitution is to be amended, it is to
be amended in accordance with the machinery established
under Articles 46 and 47 of the Constitution and not
otherwise. The plaintiff submits that he has a right to see
that this is done and that this is a right which the State (and
in particular the courts), are obliged to defend and vindicate
in accordance with the provisions of Article 40, s. 3 of the
Constitution.
Summary of plaintiff's case
The plaintiff maintains that the Constitution is that of an
independent, democratic and constitutional state. It is a
Constitution which, on its face, excluded the possibility of
Ireland becoming a member of the European Economic
Community. Article 29, s. 6 gave the Oireachtas power in
certain circumstances, to make an international treaty part
of the domestic law of the State. But the Treaty of Rome was
no ordinary international agreement. It was a treaty which
set up a group of supranational institutions, which, within the
area of their competence, could override the legislature,
executive and judiciary of their Member States and therefore
necessarily conflicted
[1987]
1 I.R.
Barrington J.
746
H.C.
with inter alia Articles 15, 28 and 34 of our Constitution. For
us to join the E.E.C. required the Third Amendment of the
Constitution Act, 1972, carried at a referendum, the
European Communities Act, 1972, and the Treaty of
Accession. The present proposal is one to amend the Treaty
of Rome but it is proposed to do this by means only of the
ratification of the Single European Act and the enactment
into law of the European Communities (Amendment) Act,
1986, without any referendum.
(a) Form of Third Amendment

The plaintiff's case rests largely on his interpretation of the
Third Amendment to the Constitution. That amendment now
appears at Article 29, s. 4, sub-s. 3 and reads as follows:
"The State may become a member of the European Coal
The plaintiff lays particular stress on the second sentence of
the subsection quoted.
(b) Nature and effect of ratification procedure
The plaintiff submits that the ratification procedure under
article 33 of the Single European Act, once carried into
effect, will have far-reaching effects on Community law and
on domestic law. Article 33 of the Single European Act
contemplates that each of the High Contracting Parties will
ratify the Act in accordance with their respective
constitutional requirements. But they signify a formal
acceptance of the Treaty by the deposit of the instruments of
ratification with the Government of the Italian Republic. By
doing that each state represents to the other that it has
complied with its own constitutional requirements and
thereafter the matter passes from the field of national law
into that of international law; the provisions of the Treaty of
Rome are amended and the change in Community law takes
place in all the Member States of the Community. To draw an
analogy from company law the memorandum and articles of
association of the Community have been changed. So also,
the plaintiff submits, have the obligations of membership of
the Community within the meaning of the second sentence
of the Third Amendment. The European Communities
(Amendment) Act, 1986, then, the plaintiff submits, becomes

a law enacted by the State"necessitated by the obligations
of membership" of the Communities and
[1987]
1 I.R.
Barrington J.
747
H.C.
becomes immune from constitutional challenge by virtue of
the provisions of the Third Amendment to the Constitution.
(c) The San Michele Case
Thereafter, the plaintiff submits, the matter cannot be
challenged in Community law either and he cites as his
authority the case of Acciaierie San Michele SpA v. High
Authority (Case 9/65 and 58/65) [1967] E.C.R. 1. That was a
case in which an Italian company sought to challenge in the
Italian Constitutional Court the validity of Italy's accession to
the European Coal and Steel Community. It then applied in
the European Court for interim relief preventing the High
Authority of the European Coal and Steel Community moving
against it until such time as the constitutional issue raised by
it in the Italian Constitutional Court had been determined.
The European Court giving the grounds for its refusal of
interim relief ([1967] E.C.R. 1 at p. 29) stated:
"Whereas, in support of its application based on those
factors for the adoption of the above-mentioned interim
measure, the applicant thus alleged that the judgment to be
given by the Corte Constituzionale carried "absolute"
authority and that "any court having jurisdiction over Italian
citizens" was obliged to suspend judgment;
Whereas, however, the Court of Justice, as the institution
entrusted with ensuring that in the interpretation and
application of the Treaty the law is observed, can only take
into consideration the instrument of ratification, which itself
was deposited on behalf of Italy on 22 July, 1952 and which,
together with the other instruments of ratification, brought
the Treaty into force;
Whereas it is clear from the instruments of ratification,

whereby the Member States bound themselves in an
identical manner, that all States had adhered to the Treaty
on the same conditions, definitively and without any
reservations other than those set out in the supplementary
protocols, and that therefore any claim by a national of a
Member State questioning such adherence would be
contrary to the system of Community law;
Whereas such a claim is all the more inadmissible in that, in
this case, any decision to suspend judgment would be
tantamount to reducing the Community to a cipher by
regarding the instrument of ratification either as only
partially accepting the Treaty, or as the means of according
to it different legal consequences, varying with the Member
State concerned, or as the means whereby some nationals
might evade its rules;
Whereas the participation of the Italian Republic in the
common institutions and in the rights and obligations arising
from the Treaty in fact preclude its nationals from avoiding
the complete
[1987]
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Barrington J.
748
H.C.
and uniform application of the said Treaty and from thus
obtaining different treatment from that of other nationals in
the Community;
Whereas, therefore, there must be dissmissed as contrary to
Community policy any application the purpose of which is to
establish discrimination of this nature which no law of
ratification could introduce into a treaty prohibiting such
discrimination; . . ."
This judgment was merely a judgment on an interim
application but the point being made by the European Court
appears to be a basic one. It would not be open to the Court
to question the validity of the Treaty to which it owed its
existence any more than it would be open to this court to

question the validity of the Irish Constitution. Whether the
same line of reasoning applies to an amendment to the
Treaty is not equally clear, but the plaintiff claims that it
does.
(d) The Vienna Convention
The plaintiff seeks to reinforce his interpretation of the San
Michele Case (Case 9/65 and 58/65) [1967] E.C.R. 1 by
reference to the Vienna Convention on the Law of Treaties.
Ireland is not a party to this convention but it is a convention
which seeks to codify the international law in relation to
treaties and it is therefore an instrument to which
international authorities would pay respect. Article 16 refers
to the exchange or deposit of instruments of ratification and
provides:
"Unless the treaty otherwise provides, instruments of
ratification, acceptance, approval or accession establish the
consent of a State to be bound by a treaty upon:
(a) their exchange between the contracting States;
(b) their deposit with the depositary; or
(c) their notification to the contracting parties or to the
depositary, if so agreed."
(e) Primacy of Community Law
The plaintiff refers to the fact that, within the area of its
competence, Community law takes precedence over the
national law of the Member States. It constitutes a new legal
order of international law for the benefit of which states have
limited their sovereign rights and the subjects of which are
not only the Member States but also their nationals. By
contrast with ordinary international treaties the EEC Treaty
has created its own legal system which, on the entry into
force of the Treaty, became an integral part of the legal
systems of the Member States and which their courts are
bound to apply. By creating a community of unlimited
duration, having its own institutions, its own personality, its
own legal capacity and capacity of representation on the
international plane, and more particularly, real powers
stemming from a limitation of sovereignty or a transfer of
powers from the states to the Community, the Member
States have limited their sovereign rights, albeit within

limited fields, and thus created a body of law which binds
both their nationals and themselves. The transfer by the
states
[1987]
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Barrington J.
749
H.C.
from their domestic legal system to the Community legal
system of the rights and obligations arising under the Treaty
carries with it a permanent limitation of their sovereign
rights, against which a subsequent unilateral act,
incompatible with the concept of the Community cannot
prevail. See Van Gend en Loos v. Nederlandse
Belastingadministratie (Case 26/62) [1963] E.C.R. 1;
Humblet v. Belgium (Case 6/60) [1960] E.C.R. 559; Costa
v.E.N.E.L. (Case 6/64) [1964] E.C.R. 585 and
Amministrazione delle Finanze dello Stato v. Simmenthal SpA
(Case 106/77) [1978] E.C.R. 629.
(f) Alleged Extension of Scope of Treaty
The plaintiff submits that the Single European Act in fact
extends the scope of the objectives of the Treaty and
increases the competence of its institutions thereby
diminishing the sovereignity of the organs of government
established by the Constitution. He submits that the
institutions of the Treaty of Rome will now be competent to
deal with matters such as the health of workers and the
environment, on which the Treaty was previously silent. He
submits that the shift from unanimous voting to qualified
majority voting in certain cases will weaken the position of
Ireland and enhance the competence of the Community. He
is suspicious of the reference to the European Convention on
Human Rights in the preamble to the Single European Act.
He is worried lest this and the evolving jurisprudence of the
Community, based as it is in some measure on the common
constitutional heritage of the Member States, may threaten
positions where the Irish Constitution takes a particular and

unique stand. He refers for instance to the right to life of the
unborn. He also fears that the provisions of Title III relating to
European cooperation in the sphere of foreign policy may
undermine this State's traditional policy of neutrality.
(g) Possible subversion of Constitution
However, his principal submission is that once the
instrument of ratification is lodged with the Government of
the Italian Republic it will be too late for him to look for relief
because the obligations of membership of the Communities
will have been changed and everything necessitated by the
changed obligations of membership of the Communities will
thereafter be immune from constitutional attack by virtue of
the provisions of the second sentence of the Third
Amendment. It is this extreme circumstance which, he says,
entitles him to relief now. He is not, he claims, attempting to
interfere with the formulation of policy but attempting to
stop an administrative act which will bring about an
irreversible constitutional change, and which, he suggests, is
open to constitutional challenge now but will be immune
from constitutional attack once the instrument of ratification
has been deposited. Even the English courts, he says, with
their tradition of parliamentary sovereignty and royal
prerogative in foreign affairs, were prepared to entertain an
application by a taxpayer to prevent the approval of a draft
order in council where the order, once approved, would
create an irreversible position. See Reg. v. H.M. Treasury, Ex
p. Smedley [1985] Q.B. 657.
[1987]
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Barrington J.
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H.C.
The plaintiff submits that if what is attempted to be done in
the present case is permitted then it can be repeated, and
more and more of the sovereignty of the organs of State
established by our Constitution can be transferred to the

European Communities without the people generally being
consulted in a referendum or having an opportunity to
challenge the matter in the courts.
(h) Locus Standi
The plaintiff claims that, in these circumstances, he is a
person aggrieved within the meaning of Cahill v. Sutton
[1980] I.R. 269 in that procedures are in train, the effects of
which are to amend the Constitution without holding a
referendum. He, as a person entitled to vote in a
referendum, if held, has locus standi to voice his complaint.
Even if he were not an aggrieved person within the category
primarily contemplated in Cahill v. Sutton there are still in
the present case "countervailing considerations"of the kind
contemplated by the judgment of Henchy J. in Cahill
v.Sutton [1980] I.R. 269 at 285. These countervailing
considerations he submits are circumstances of the most
serious kind and bring him within the discretion which the
Supreme Court reserved to itself in Cahill v. Sutton . He is
attempting to assert the rights of himself and his fellow
citizens in a case which is the kind of action to which the
Attorney General might otherwise lend his name. But the
Attorney General is already a defendant in these
proceedings, and properly so, as representing the State and
as law officer of the Government. He is not therefore
available to assert the rights of the public in the
circumstances of the present case.
The plaintiff asserts that it is not safe to allow the
instrument of ratification to be deposited, to allow the
European Communities (Amendment) Act, 1986, to come
into force and to wait until some citizen comes along
claiming that a specific right guaranteed to him by the Irish
Constitution is violated by some act or regulation of the
Community. By that time, he submits, the Treaty governing
the Community will have been amended. The obligations of
membership will have been changed. The European
Communities (Amendment) Act, 1986, will be in force and
immune from constitutional challenge by virtue of the
second sentence of the Third Amendment to the
Constitution. Community law will have primacy over national

law so that it will be too late for the plaintiff to attempt to
invoke rights guaranteed to him under the Constitution
against the Community measure. Indeed the plaintiff submits
that the very question arising would be one of Community
law and that if any party to the litigation sought a reference
to the European Court pursuant to article 177 of the Treaty
our High Court would have to consider, and our Supreme
Court would have to grant, such a request.
Under these circumstances the plaintiff submits that now is
the only time at which he can make his case and that
therefore he has the locus standito make it.
[1987]
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Barrington J.
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H.C.
Summary of defendants' case
The defendants' case may be summarised as follows:
(a) Premature
The defendants claimed that the plaintiff's application was
premature. However they said they were waiving this point
because of their desire to get a decision on the substantive
issue raised by the litigation.
(b) Locus standi
They were however relying on the point that the plaintiff
had no locus standi in the sense that he could not point to
any specific way in which he personally was adversely
affected by the provisions of the Single European Act or by
those of the European Communities (Amendment) Act, 1986.
He could point to no concrete specific grievance and could
not therefore bring himself within Cahill v. Sutton [1980] I.R.
269. Neither the Single European Act nor the European
Communities (Amendment) Act, 1986, amended the
Constitution. The question of a referendum did not therefore
arise. In any event the plaintiff had no constitutional right to
have a referendum held.

(c) No extension of scope of objectives
The Single European Act was an amendment to the Treaty of
Rome. But it did not in any way extend the scope of the
objectives of that Treaty. All of the objectives referred to in
Title II of the Single European Act, to wit the articles dealing
with the establishment of the internal market, with monetary
capacity, with social policy, with economic and social
cohesion, with research and technological development, with
the health and safety of workers and with the environment,
are all matters subsidiary to the establishment of an
economic community. They are all provided for expressly or
by necessary implication in the original Treaty. Some of these
subjects such as "the environment" or "the health and safety
of workers" may now loom larger in the public mind than
they did when the Treaty of Rome was made in 1957. But
they were nevertheless present in the minds of the founders
of the Treaty which refers expressly, in its preamble, to the
"living and working conditions" of the peoples of the
Community. In fact the Community has, over the years, been
issuing regulations and directives dealing with all these
matters.
(d) Internal reform
When the Irish people voted to join the European
Community in 1972 they voted to join what was intended to
be a dynamic, expanding Community with definite
objectives. The Community has, over the years, failed to
achieve all of the objectives which the Members set for it.
This has been blamed partly on defects in the decisionmaking machinery of the Community. The Single European
Act is designed to improve the decision-making process. If an
analogy is to be made with company law, changes are being
made in the articles of association of the company but the
object clauses remain, in substance, the same.
[1987]
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Barrington J.
752
H.C.
(e) Constitutional rights
There is nothing in the Single European Act which in any
way affects constitutional rights guaranteed by the
Constitution. The plaintiff is concerned about what might be
introduced in legislation dealing with the health of workers.
But the Community has been competent to legislate on this
subject from its foundation. The plaintiff also points to the
reference to the European Convention for the Protection of
Human Rights and Fundamental Freedoms contained in the
preamble to the Single European Act, but this Convention is
not being made part of the laws of Ireland and, by virtue of
the provisions of article 31 and 32, it adds nothing new to
the jurisprudence of the Court of Justice of the European
Communities. The European Court already looks to the
European Convention in its quest for common constitutional
values which should guide the jurisprudence of the Court.
(See Internationale Handelsgesellschaft mbH v. Einfuhr- und
Vorratsstelle Getreide(Case 11/70) [1970] E.C.R. 1125; J.
Nold KG v. Commission (Case 4/73) [1974] E.C.R. 491). The
quest for common constitutional values is not designed to
deprive nationals of Member States of fundamental rights
guaranteed to them by their respective national
constitutions. Rather is it designed to protect individuals
against harsh or unfair legislative or administrative acts of
the Community. The primacy of Community law within its
own sphere is one of the fundamental principles applied by
the Court. The Court is also sceptical of any provision of
national law which might appear to be a disguised
discrimination in favour of its own nationals contrary to the
provisions of article 7 of the Treaty. Nevertheless, the Court
is sensitive to the need to respect any provision of national
law which is based on deeply held feelings of public morality
in that particular Member State. (See Adouiv. Belgium (Case
115/81) [1982] E.C.R. 1665; Rutili v. Ministre de
l'Interieur(Case 36/75) [1975] E.C.R. 1219; Reg. v. Henn
(Case 34/79) [1979] E.C.R. 3795). But the fundamental
submission is that nothing in the Single European Act alters

this position one way or the other.
(f) Legitimate sphere of executive action
The decision whether to ratify or not to ratify the Single
European Act falls within the legitimate sphere of executive
action allotted to the Government by the Constitution. It is
not a matter in which the Courts should intervene. See
Boland v. An Taoiseach [1974] I.R. 338. This is particularly
the case with Title III of the Single European Act which deals
with cooperation in the sphere of foreign policy.
(g) Dynamic Community
When the Irish people agreed in 1972 to join the European
Economic Community, they agreed to join a Community
which was, from its nature, a growing and expanding
Community. By doing so, they gave the Government
permission to take all such steps as might be necessary to
make us effective members of that Community and to play
our full part in it. If,
[1987]
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Barrington J.
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H.C.
however something were being done to change the nature
of the Community from an economic community into a
political community or a military power then it would be
necessary for the Government and the Oireachtas to consult
the people in a further referendum. The Community which
we joined is governed by a Treaty which contains (at article
236) its own machinery for making amendments. The fact
that the people agreed to a machinery for making
amendments to the Treaty does not, of course, commit them
to agreeing to any specific amendment. But it does mean
that it is competent for the Government, with a mandate,
where necessary, of a resolution of Dil ireann or of
domestic legislation, to agree to amendments to the Treaty
within the scope of its original objectives. Only if the
proposed amendment goes outside the terms of the original

objectives and amounts to an amendment to the
Constitution as well, is it necessary for the Government to
consult the people in a referendum.
(h) The new court
The defendants submit that the need for the new court
arises from the growing volume of work in an expanding
Community. This has put pressure on the European Court
which finds an increasing amount of its time being taken up
with matters of minor importance. The proposed court, which
can only be set up at the request of the existing Court, will
be "attached" to the existing Court and will be a court of first
instance, subject to a right of appeal on points of law to the
existing Court. The court will not be competent to hear
actions brought by Member States or by Community
institutions or questions referred for a preliminary ruling
under article 177 of the Treaty. These important matters will
remain with the existing Court. The proposed new court
therefore represents a natural development in the evolution
of the Community.
(i) Misunderstanding of Article 29
The defendants claim that the plaintiff has misinterpreted
the Third Amendment to the Constitution. This can only be
understood in the light of Article 29 as a whole and against
the background of the relationship between national and
international law.
Analysis of Article 29
As the defendants' submission on Article 29 is fundamental
to the issues raised in this case I now propose to consider
this Article in detail. Article 29 of the Constitution is headed
"International Relations" and, as amended by the Third
Amendment to the Constitution, reads as follows:
"1. Ireland affirms its devotion to the ideal of peace and
friendly co-operation amongst nations founded on
international justice and morality.
2. Ireland affirms its adherence to the principle of the pacific
settlement
[1987]
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Barrington J.
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of international disputes by international arbitration or
judicial determination.
3. Ireland accepts the generally recognised principles of
international law as its rule of conduct in its relations with
other States.
4. 1 The executive power of the State in or in connection
with its external relations shall in accordance with Article 28
of this Constitution be exercised by or on the authority of the
Government.
2 For the purpose of the exercise of any executive function
of the State in or in connection with its external relations, the
Government may, to such extent and subject to such
conditions, if any, as may be determined by law, avail of or
adopt any organ, instrument, or method of procedure used
or adopted for the like purpose by the members of any group
or league of nations with which the State is or becomes
associated for the purpose of international co-operation in
matters of common concern.
3 The State may become a member of the European Coal
thereof, from having the force of law in the State.
5. 1 Every international agreement to which the State
becomes a party shall be laid before Dil ireann .
2 The State shall not be bound by any international
agreement involving a charge upon public funds unless the
terms of the agreement shall have been approved by Dil

ireann .
3 This section shall not apply to agreements or conventions
of a technical and administrative character.
6. No international agreement shall be part of the domestic
law of the State save as may be determined by the
Oireachtas."
It is clear therefore that Article 29 contemplates a number
of different kinds of international agreements which may be
treated in different ways. International agreements or
conventions of a technical and administrative character need
not even be laid before Dil ireann . But all other
international agreements must be laid before Dil
ireann . If the international agreement involves a charge
on public funds it is not enough to lay it before
[1987]
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Barrington J.
755
H.C.
Dil ireann . The terms of the agreement must be
approved by resolution of Dil ireann . In The State
(Gilliland) v. Governor of Mountjoy Prison [1987] I.R. 201 the
Supreme Court in its judgment struck down a governmental
order made under the provisions of the Extradition Act,
1965, purporting to apply Part II of the Act to extraditions
from this country to the United States of America. The
relevant extradition treaty had in fact been laid before Dil
ireann . But it involved a charge upon public funds and
had not been approved by resolution of Dil ireann . It
was not therefore binding on the State at least in
contemplation of Irish domestic law and it was not
competent therefore for the Government to make an order
the effect of which would be to make the extradition
arrangements enforceable in domestic law. The Supreme
Court did not purport to adjudicate on the question of
whether the extradition treaty was a valid international
agreement. It was sufficient for our courts to say that under

the provisions of our Constitution our State was not bound
by it and therefore it could not be enforced in domestic law.
But more important for the present case is s. 6 of Article 29
which provides that no international agreement shall be part
of the domestic law of the State save as may be determined
by the Oireachtas. This section clearly accepts the dualistic
concept that some international agreements may be
perfectly valid in international law but remain of no
relevance to the national courts of a particular country
simply because the relevant constitutional authority has not
made them part of the domestic law.
This distinction is illustrated by In re Laighlis [1960]
I.R. 93. The applicant in that case sought to rely upon the
provisions of the European Convention for the Protection of
Human Rights and Fundamental Freedoms, which had been
ratified by the State but had never been made part of its
domestic law. Maguire C.J. delivering the judgment of the
Supreme Court said, at p. 124:
"The insuperable obstacle to importing the provisions of the
Convention for the Protection of Human Rights and
Fundamental Freedoms into the domestic law of Ireland
if they be at variance with that law is, however, the
terms of the Constitution of Ireland. By Article 15, 2, 1 of the
Constitution it is provided that "the sole and exclusive power
of making laws for the State is hereby vested in the
Oireachtas: no other legislative authority has power to make
laws for the State." Moreover, Article 29, the Article dealing
with international relations, provides at section 6 that "no
international agreement shall be part of the domestic law of
the State save as may be determined by the Oireachtas."
The Oireachtas has not determined that the Convention of
Human Rights and Fundamental Freedoms is to be part of
the domestic law of the State, and accordingly this Court
cannot give
[1987]
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Barrington J.
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H.C.
effect to the Convention if it be contrary to domestic law or
purports to grant rights or impose obligations additional to
those of domestic law.
No argument can prevail against the express command of
section 6 of Article 29 of the Constitution before judges
whose declared duty it is to uphold the Constitution and the
laws.
The Court accordingly cannot accept the idea that the
primacy of domestic legislation is displaced by the State
becoming a party to the Convention for the Protection of
Human Rights and Fundamental Freedoms. Nor can the
Court accede to the view that in the domestic forum the
Executive is in any way estopped from relying on the
domestic law. It may be that such estoppel might operate as
between the High Contracting Parties to the Convention, or
in the Court contemplated by Section IV of the Convention if
it comes into existence, but it cannot operate in a domestic
Court administering domestic law. Nor can the Court accept
the contention that the Act of 1940 is to be construed in the
light of, and so as to produce conformity with, a convention
entered into ten years afterwards."
It therefore appears that no international treaty could be
part of the domestic law of Ireland save as might be
determined by the Oireachtas. If therefore the provisions of
the Treaty of Rome were to have any effect in domestic law
this could only be done by means of an Act of the
Oireachtas.
Many international treaties such, for instance, as the
Warsaw Convention had been made part of the domestic
law of Ireland by virtue of Acts of the Oireachtas. But, as
previously indicated, the Treaty of Rome was no ordinary
international treaty. It was a treaty which created new
supranational authorities with legislative, executive, and
judicial powers claiming, within the area of their
competence, to overrule the legislative, executive and
judicial organs of this State. It therefore required an
amendment to the Constitution to allow Ireland to accede to

the Treaty.
The licence to join is contained in the first sentence of the
Third Amendment to the Constitution and it is a mistake to
emphasise the second sentence at the expense of the first.
So far as relates to the European Economic Community, the
first sentence reads:
"The State may become a member of . . . the European
Economic Community (established by Treaty signed at Rome
on the 25th day of March 1957) . . ."
The "licence" says that the State may become "a member"
of a specific community which it identifies by reference to
the Treaty of Rome. The Treaty of Rome (which, as previously
indicated, had been amended several times before Ireland's
accession) is not referred to for the purpose of limiting or
freezing the activities of the Community but for the purpose
of identifying the Community which the State is permitted to
join. This is the
[1987]
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Barrington J.
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H.C.
Community incorporated by article 210 of the Treaty and it
remains, in law, the same Community whether the Treaty is
amended or not.
By the Accession Treaty made at Brussels on the 22nd
January, 1972, it was provided, inter alia, that Ireland should
become a member of the European Economic Community
subject to depositing its instrument of ratification with the
Government of the Italian Republic before the 31st
December, 1972.
A referendum was held on the 10th May, 1972, at which the
people voted by an overwhelming majority in favour of the
Third Amendment of the Constitution, and the Third
Amendment of the Constitution Act, 1972, was enacted into
law on the 8th June, 1972. Ireland deposited its instrument of
ratification on the 16th December, 1972.

These acts may have been sufficient to make Ireland a
member of the European Community in international law as
from the 1st January, 1973. Indeed Article 1 of the Treaty of
Accession provided:
"The Kingdom of Denmark, Ireland, the Kingdom of Norway
and the United Kingdom of Great Britain and Northern
Ireland hereby become members of the European Economic
Community . . ."
But these acts were not sufficient in themselves to make
Ireland an effective member of the Community. To make
Ireland an effective member as of the 1st January, 1973, it
was necessary to make the Treaty part of the domestic law
of Ireland. To achieve this it was necessary to pass an Act of
the Oireachtas pursuant to the provisions of Article 29, s. 6,
making the Treaty of Rome part of the domestic law of
Ireland and giving the institutions of the Community a status
in Irish domestic law. Had the Oireachtas not passed the
European Communities Act, 1972, Ireland might still have
been a member of the Community in international law but it
would have been in breach of its obligations in international
law under the Treaty of Rome and under the Treaty of
Accession. This however would not have been a matter in
relation to which the domestic courts of this country would
have had any competence because the Treaty would not
have been part of the domestic law. The immunity from
constitutional challenge conferred by the second sentence of
the Third Amendment on laws enacted, acts done, or
measures adopted by the Community or its institutions
would therefore have been meaningless as these laws, acts
or measures would not have been part of the domestic law
of this country.
To make them part of the domestic law of this country the
European Communities Act, 1972, was necessary. This Act
cannot therefore have been passed by virtue of the second
sentence of the Third Amendment but by virtue of the
licence to join the European Community contained in the first
sentence of the Third Amendment. It accordingly in s. 1 lists
the Treaties governing the European Communities and, in s.
2, provides that from the 1st January, 1973, the Treaties

governing the European Communities
[1987]
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H.C.
and the existing and future acts adopted by the institutions
of those Communities, shall be binding on the State and
shall be part of the domestic law thereof under the
conditions laid down in those Treaties.
The European Communities Act, 1972, was clearly
authorised by the people when they authorised the State to
join the European Economic Community. It must be
presumed to be constitutional and would appear to be safe
from constitutional challenge. But had it gone outside the
terms of the licence granted by the first sentence of the
Third Amendment it would not have been immune from
constitutional challenge.
The immunity conferred by the second sentence of the Third
Amendment would appear to apply to legislative and
administrative measures taken in the day-to-day running of
the Community. For instance article 189 of the Treaty
provides that the Council and the Commission may, in
accordance with the provisions of the Treaty, make
regulations and issue directives. A regulation is of general
application, it is binding in its entirety and is directly
enforceable in all the Member States of the Community. A
directive, on the other hand, is binding only as to the result
to be achieved, and leaves to each Member State the choice
of form and method in its enforcement. Put another way,
there are some acts of the institutions of the Community
which are directly enforceable in all the Member States
whereas others require legislative or administrative action by
the Member States to procure their enforcement. It is these
matters which are referred to in the second sentence of the
Third Amendment when it says:
"No provision of this Constitution invalidates laws enacted,

acts done or measures adopted by the State necessitated by
the obligations of membership of the Communities or
prevents laws enacted, acts done or measures adopted by
the Communities, or institutions thereof, from having the
force of law in the State."
It is these matters alone which are given immunity from
constitutional challenge by the second sentence of the Third
Amendment. But such of these matters as are acts of the
institutions of the Communities derive their status in
domestic law from the European Communities Act, 1972. If
the second sentence of the Third Amendment is the canopy
over their heads, the Act of 1972 is the perch on which they
stand.
The European Communities (Amendment) Act, 1986,
purports to amend the European Communities Act, 1972.
Section 1 provides that the portions of the Single European
Act therein referred to are to be included in the definition of
"the Treaties governing the European
Communities"contained in s. 1 of the Act of 1972. The effect
is to make them part of the domestic law of Ireland by virtue
of the provisions of s. 2 of the Act of 1972.
The Act of 1986 amends the Act of 1972 and is to be
construed with it as one Act. Naturally, being an Act of the
Oireachtas it is presumed not to violate the Constitution but,
like the Act of 1972, it derives its validity from the licence
contained in the first sentence of the Third Amendment. If it
[1987]
1 I.R.
Barrington J.
759
H.C.
goes outside the terms of this licence it is open to
challenge, in an appropriate case, as being invalid having
regard to the provisions of the Constitution. Should such
challenge be successful such acts of the institutions of the
Community as depend on it for their status in domestic law
would lose that status and would be of no effect in domestic

law. Such a result might be embarrassing for the
Government, and might involve the State being in breach of
its international obligations, but such considerations could
not prevent this court from fulfilling its constitutional duty,
should the matter be made out in a case properly before it.
Conclusion
I conclude that the plaintiff is mistaken when he submits
that, on the deposit of the instrument of ratification of the
Single European Act by the Government with the
Government of the Italian Republic, the European
Communities (Amendment) Act, 1986, or the order bringing
it into force or both will become immune from constitutional
challenge under the second sentence of the Third
Amendment. It has immunity but only if it does not go
outside the terms of the licence granted by the first
sentence of that amendment. That is a licence to join a living
dynamic Community of the kind described by the
defendants.
As I am satisfied that the mere deposit of the instrument of
ratification will not confer on the European Communities
(Amendment) Act, 1986, any immunity from challenge on
constitutional grounds or any impregnable position in
domestic law on such provisions of the Single European Act
as will depend on it for their status, I conclude that the relief
sought by the plaintiff is not necessary for the protection of
the Constitution or of the fundamental rights guaranteed
thereby. The extraordinary relief which the plaintiff claims of
an injunction restraining the Government from depositing
the instrument of ratification with the Government of the
Italian Republic is not therefore necessary and could only be
justified if justified at all in a situation where there
was no other method of protecting the Constitution.
The plaintiff, having failed on this point, has no locus standi
to make the other points which have been advanced on his
behalf in argument. He is not immediately affected or
threatened by any of the other matters which he seeks to
raise. Therefore on the authority of Cahill v. Sutton [1980]
I.R. 269 he has no locus standi to advance these arguments.
He is not entitled to a general review of the Act similar to the

one which might be made of a Bill by the Supreme Court on
a reference to it of the Bill by the President under Article 26
of the Constitution. This Court is not therefore called upon to
decide them.
As O'Higgins C.J. said in Cahill v. Sutton [1980] I.R. 269 at
p. 276:
"This Court's jurisdiction, and that of the High Court, to
decide questions concerning the validity of laws passed by
the
[1987]
1 I.R.
Barrington J.
760
H.C.
Oireachtas is essential to the preservation and proper
functioning of the Constitution itself. Without the exercise of
such a jurisdiction, the checks and balances of the
Constitution would cease to operate and those rights and
liberties which are both the heritage and the mark of free
men would be endangered. However, the jurisdiction should
be exercised for the purpose for which it was conferred
in protection of the Constitution and of the rights and
liberties thereby conferred. Where the person who questions
the validity of a law can point to no right of his which has
been broken, endangered or threatened by reason of the
alleged invalidity, then, if nothing more can be advanced,
the Courts should not entertain a question so raised. To do so
would be to make of the Courts the happy hunting ground of
the busybody and the crank. Worse still, it would result in a
jurisdiction which ought to be prized as the citizen's shield
and protection becoming debased and devalued."
In the same case Henchy J. put the matter as follows, at p.
284:
"The Constitution has given Parliament the sole and
exclusive power of making laws. The Courts normally accord
those laws the presumption of having been made with due
observance of constitutional requirements. If a citizen comes

forward in court with a claim that a particular law has been
enacted in disregard of a constitutional requirement, he has
little reason to complain if in the normal course of things he
is required, as a condition of invoking the court's jurisdiction
to strike down the law for having been unconstitutionally
made (with all the dire consequences that may on occasion
result from the vacuum created by such a decision), to show
that the impact of the impugned law on his personal
situation discloses an injury or prejudice which he has either
suffered or is in imminent danger of suffering."
It is therefore clear that the plaintiff has no locus standi to
raise these matters.
This court would not like to say anything which would in any
way inhibit any court which might, in the future, be called
upon to decide any of them in a justiciable controversy
properly before it. In deference, however, to the able and
elaborate arguments which have been advanced to the court
by counsel on both sides it is perhaps fair to say that the
court is unconvinced that there is anything in the Single
European Act which is outside the terms of the licence
granted by the first sentence of the Third Amendment,
extends the scope of the objectives of the European
Community, poses any new threat to any rights guaranteed
by our Constitution or represents anything other than an
evolution of the Community within the terms of its original
objectives.
So far as the portions of the Single European Act dealing
with European Political Cooperation, and which it is not
proposed to make part
[1987]
1 I.R.
Barrington J.
761
S.C.
of the domestic law of Ireland, are concerned, this court
does not consider that it has any function in relation to them.
In the circumstances the plaintiff's case should be

dismissed.
[Order: Dismiss plaintiff's claim. No order as to costs.
Discharge interlocutory injunctions of 24th December, 1986.
Refuse plaintiff's application for stay. Liberty to defendants to
apply in relation to the plaintiff's undertaking as to damages
given at the hearing of the interlocutory motion.]
The plaintiff thereupon immediately applied on the same
day to the Supreme Court (Finlay C.J., Hederman and
McCarthy JJ.) that the order of the Divisional Court of the
High Court discharging the interlocutory injunctions be
stayed pending the hearing of the application to extend such
stay. This was granted and by notice of motion dated the
13th February, 1987, the plaintiff applied to continue the
interlocutory injunctions granted on the 24th December,
1986, by way of appeal from the order of the Divisional Court
of the High Court dated 12th February, 1987, discharging
those interlocutory injunctions.
The interlocutory issues were heard before the Supreme
Court (Finlay C.J., Henchy, Griffin, Hederman and McCarthy
JJ.) on the 17th and 18th February, 1987.
Paul Callan S.C. for the plaintiff: The plaintiff seeks merely to
maintain the status quo until the Court has had an
opportunity of giving a final decision on a fundamental and
important constitutional matter in the context of the
Constitution, basic European Community law and public
international law. If the interlocutory injunction were not
maintained, then even if the plaintiff succeeded on the
ultimate issues, he would be left without any legal or
constitutional remedy. Furthermore, if the plaintiff were to
succeed on the final issues he would be left without any
remedy before the Court of Justice of the European
Communities, unless the defendants were restrained from
ratifying the Single European Act. The balance of
convenience in the context of a constitutional matter of this
nature lies completely on the side of maintaining the status
quo. In the absence of such maintenance, the matter would
have passed outside the State, and the Constitution will have
been amended by unconstitutional means, which

amendment will be irremediable. Once enacted, the Single
European Act would enjoy constitutional immunity.
Regulations or directives made under article 189 of the
Treaty of Rome establishing the European Economic
Community would have immunity under the second limb of
Article 29, s. 4, sub-s. 3 of the Constitution. The plaintiff has
a right under the Constitution to assert the integrity of the
Constitution and to go to the guardians of the Constitution
and assert the right to have it vindicated. The plaintiff suffers
damage in being deprived of the exercise of his right to vote
in a referendum, which is the only proper way to amend the
[1987]
1 I.R.
Barrington J.
762
S.C.
Constitution. The primacy of European Community law is
well established: Amministrazione delle Finanze dello Stato v.
Simmenthal SpA (Case 106/77) and Acciaierie San Michele
SpA v. High Authority (Cases 9/65 and 58/65) .In the case of
breach by Ireland of that primacy of European Community
law, then Ireland would be accountable to the Communities
before the Court of Justice of the European Communities.
Aidan Browne S.C. following for the plaintiff: There is no
obligation on the State to ratify the Single European Act.
Article 29, s. 4, sub-s. 3 of the Constitution means that it will
be possible for laws enacted, acts done or measures adopted
by the State to have the force of law in the State consequent
upon the ratification of the Single European Act. This is a fair
issue to be tried.
T.K. Liston S.C. for the defendants: The interlocutory
injunction was a discretionary order in the first case. This
Court ought not to substitute its own discretion for the
discretion exercised by the Divisional Court: see Hadmor
Productions Ltd. v. Hamilton and Others [1982] 1 All E.R.
1042, particularly the speech of Lord Diplock at page 1046.
There is no sound basis for the view that, once ratified, the
repugnancy to the Constitution of any particular act is still
not challengeable; it is still and always will be a matter for
this Court.
Were the plaintiff to succeed, it would mean that any
individual could, by litigation, stop the State's involvement in
international agreements, even in the absence of any special
standing of that individual: see Gouriet v.Union of Post
Office Workers .
John Cooke S.C. following for the defendants: No stateable
case for an interlocutory injunction can be made by the
plaintiff because it is based on a logical impossibility. The
plaintiff contends that, if ratified, the Constitution will be
amended in an unconstitutional manner. In the defendant's
submission, this is not possible. Either there is a valid and
effective amendment according to its own inbuilt
mechanism, or none at all. The flaw lies in failing to
distinguish between ratification of an international
agreement, on the one hand, and the step of incorporating
the contents of the ratified international agreement into the
domestic law of the State by which it becomes amenable to
the jurisdiction of the courts.
Eoin McGonigal S.C. for the plaintiff in reply: The act of
deposit of the instrument of ratification is irreversible. It
involves the giving away of the sovereign right of this State
to legislate for itself: Commission v. Ireland(Case 151/81) .
[1987]
1 I.R.
Finlay C.J.; Henchy J.; Griffin J.; Hederman J.; McCarthy J.
763
S.C.
Finlay C.J.
18th February 1987
This is an appeal from a refusal of the Divisional Court to

permit the continuation of an interlocutory injunction
restraining the Government from ratifying the Single
European Act and seeking to continue that interlocutory
injunction until the final hearing of the case. The first issue is
whether the plaintiff has established a fair issue to be tried
as to the effect of ratification within the provisions of Article
29, s. 4, sub-s. 3 of the Constitution. My view is that it is so
established, but I express no view on the weight of the
arguments.
As to the second question, whether the balance of
convenience justifies the granting of an interlocutory
injunction, the balance of convenience in the context of the
Constitution is exceptional and considerations different to
those of the ordinary injunction apply. If the interlocutory
injunction sought by the plaintiff were not granted, then the
Government's act of ratification would deprive this Court of
its jurisdiction or power to grant to the plaintiff the remedies
necessary to protect his constitutional rights. If that
submission is correct, a fair argument has been made out
and it constitutes what, in my view, would justify making an
exception, given a reluctance to interfere with the Executive.
I am satisfied that in order to do justice to the parties the
injunction should continue.
Henchy J.
I agree.
Griffin J.
I agree.
Hederman J.
I agree.
McCarthy J.
I agree.
The plaintiff then appealed on the merits and the defendant

cross-appealed against the refusal of the Divisional Court to
make any order as to costs. The appeal on the merits was
heard before the Supreme Court on the 25th, 26th, 27th
February and 2nd, 3rd and 4th March, 1987.
Paul Callan S.C. , Aidan Browne S.C. and Eoin McGonigal S.C.
(with them Antonia O'Callaghan and Seamus Tuathail
tuathail ) for the plaintiff referred to The Electoral
(Amendment) Bill, 1983; Boland v. An Taoiseach ; The State
(Gilliland) v. Governor of Mountjoy Prison ; In re
Laighlis ; Gloverv. B.L.N. ; Cahill v. Sutton ; Reg. v. H.M.
Treasury, Ex p. Smedley ; Acciaierie San Michele SpA v. High
Authority (Cases 9/65 and 58/65) ;
[1987]
1 I.R.
McCarthy J.
764
S.C.
Wavin Irish Pipes Limited v. Hepworth Iron Co. ; J. Nold KG v.
Commission(Case 4/73) and Internationale
Handelsgessellschaft mbH v. Einfuhr- und Vorratsstelle
Getreide (Case 11/70) .
T.K. Liston S.C. , Eoghan Fitzsimons S.C. and John Cooke S.C.
(with them James O'Reilly ) for the defendants referred to
Commission v. United Kingdom: Re Tachographs (Case
128/78) ; Reyners v. Belgium (Case 2/74) and Rewe-Zentral
AG v. Bundesmonopolverwaltung fur Branntwein (Cassis de
Dijon Case) (Case 120/78) . If it should later appear the
Single European Act does have an unconstitutional
interpretation, then it remains open to this Court not to give
effect to it. The only part of the Single European Act which
can supplement, or indeed modify, the existing treaties is
Title II. The State is bound by Title II not as a Member State
of the European Communities, but as a High Contracting
Party. There is nothing in Title III to bind the State to more
than merely consult with other signatory States, any more
than this State is bound, or its sovereignty detracted from,
by accession to the United Nations.

Walsh J.: Would not making Title III part of our domestic law
require amendment of the Constitution?
John Cooke S.C.: It would seem to be superfluous to want to
incorporate Title III into domestic law.
Henchy J.: Is it the case that the validity of Title III depends
on Article 29, s. 5 of the Constitution?
Finlay C.J.: Article 28, s. 4, provides that the executive power
of the State in or in connection with its external relations
shall be exercised by or on the authority of the Government.
John Cooke S.C.: The Government could not be directed by
the Court to consult with the High Contracting Parties under
Title III in a given case or alternatively restrained for failing
to consult them.
Hederman J.: What would be the position if the Government
were to ratify the Single European Act, but excluding Title III?
John Cooke S.C.: Title III is purely a matter for discussions
between States. There is no question of Irish foreign policy
being decided against us by some majority of States who do
not agree with the position we wish to take. If the day were
reached when it was sought to convert the European
Communities into some kind of political union, then a
referendum might well be required. The enactment of the
Single European Act is in any event sanctioned by Article 29,
s. 4, sub-s. 1 of the Constitution in conjunction with Article
29, section 5.
While the rights affected by Community law are mainly of an
economic and commercial nature, the legal heritage of the
European Communities accepts that there are superior
fundamental rights and European Community law will not
permit Community legislation to be applied to disregard
[1987]
1 I.R.
McCarthy J.
765
S.C.
those fundamental rights: see Internationale
Handelsgesellschaft mbH v.Einfuhr - und Vorratsstelle

Getreide (Case 11/70) and Conegate Ltd. v.Customs and
Excise Commissioners (Case 121/85) .
T.K. Liston S.C. for the defendants following: The Divisional
Court of the High Court accepted that it was not open to it to
consider the validity of the Single European Act in the instant
case, but that otherwise it would have full power to do so, if
an individual was able to establish that his personal rights
were affected or threatened. The mere fact that the
plaintiff's challenge fails, would not prevent an individual
whose rights were affected or threatened from mounting a
new challenge to the Single European Act.
It is not the function of judicial organs of State to interfere
with the exercise of its functions by Dil ireann . A law is
invalid under the Constitution only to the extent of its
repugnancy. A referendum is normally initiated and passed
with the expressed view of amending the Constitution.
Where Article 28, s. 2 provides that the executive power of
the State shall be exercised by or on the authority of the
Government, subject to the provisions of the Constitution,
this can only be taken to refer to subject to express
provisions of the Constitution.
An international agreement involving a charge on public
funds but which has not been placed before Dil ireann
is not binding on the State at all: The State (Gilliland) v.
Governor of Mountjoy Prison .
The Court not only does not have the power but also has no
responsibility to interfere with the Government's exercise of
its own responsibilities. Our Constitution has similarly left the
judiciary free from executive control and free from the duty
normally to control the Executive. Nevertheless it is always
open to the Court to interfere with legislative action where
an individual can show actual or potential interference with
his own rights, but in this case not only has the plaintiff no
more locus standithan any other individual, regard being had
to Cahill v. Sutton , but the plaintiff cannot point to any
apprehended interference of his rights by either the Single
European Act or the European Communities (Amendment)
Act, 1986.
Paul Callan S.C. in reply: Article 29, s. 4, sub-s. 3 is an

exception to the Constitution. The obligations of membership
of the European Communities were taken on by the State,
with the permission of the people, by the Treaty of
Accession. (He further cited Rutili v. Ministre de
l'Interieur(Case 36/75) ).
Cur. adv. vult.
The decision of the Supreme Court on the validity of the
European Communities (Amendment) Act, 1986, having
regard to the provisions of
[1987]
1 I.R.
McCarthy J.; Finlay C.J.
766
S.C.
the Constitution, in accordance with Article 34, s. 4, sub-s. 5
was pronounced by Finlay C.J.
Finlay C.J.
9th April 1987
Part of the plaintiff's appeal in this case is against the
dismiss by the High Court of his claim for a declaration that
the European Communities (Amendment) Act, 1986, is
invalid having regard to the provisions of the Constitution.
The Court in this decision deals with that issue only.
The European Communities (Amendment) Act, 1986, ("the
Act of 1986") purports to amend the European Communities
Act, 1972, and to bring into the domestic law of the State
Article 3, s. 1; Title II; Article 31; Article 32; and in part
Articles 33 and 34 of the Single European Act ("the SEA").
The Act of 1986 was enacted by the Oireachtas in December,
1986, but does not come into effect until the making of a
statutory order which has not yet been made. The other
provisions of the SEA largely consisting of the provisions on

European cooperation in the sphere of foreign policy
contained in Title III are not affected by the Act of 1986 and
do not fall to be dealt with in this decision of the Court.
In the High Court the plaintiff's claim was rejected on the
grounds that because the SEA had not yet been ratified by
the State and because the Act of 1986 had not yet been
brought into effect the plaintiff failed to establish that he had
a locus standi to challenge the validity of the Act of 1986
having regard to the provisions of the Constitution. The Court
is satisfied, in accordance with the principles laid down by
the Court in Cahill v. Sutton [1980] I.R. 269, that in the
particular circumstances of this case where the impugned
legislation, namely the Act of 1986, will if made operative
affect every citizen, the plaintiff has a locus standi to
challenge the Act notwithstanding his failure to prove the
threat of any special injury or prejudice to him, as distinct
from any other citizen, arising from the Act.
The net issue therefore here arising is as to whether the
provisions of Article 29, s. 4, sub-s. 3 of the Constitution
authorise the ratification by the State of the provisions of the
SEA intended to amend the Treaties establishing the
European Communities. These provisions are the Articles and
Title of the SEA referred to in the Act of 1986. Article 29, s. 4,
sub-s. 3 reads as follows:
"3 The State may become a member of the European Coal
the State necessitated
[1987]
1 I.R.
Finlay C.J.
767
S.C.
by the obligations of membership of the Communities or
prevents laws enacted, acts done or measures adopted by
the Communities, or institutions thereof, from having the
force of law in the State."
This provision was enacted as the Third Amendment to the
Constitution by virtue of a referendum held in 1972 and
permitted the State to join the European Communities. The
Court is satisfied that the first sentence of this provision
authorised the State to join three Communities identified as
to each by reference to the Treaty which established it.
It is clear and was not otherwise contended by the
defendants that the ratification by the State of the SEA
(which has not yet taken place) would not constitute an act
"necessitated by the obligations of membership of the
Communities". It accordingly follows that the second
sentence in Article 29, s. 4, sub-s. 3 of the Constitution is not
relevant to the issue as to whether the Act of 1986 is invalid
having regard to the provisions of the Constitution. It was
contended on behalf of the plaintiff that any amendment of
the Treaties establishing the Communities made after the 1st
January, 1973, when Ireland joined those Communities would
require a further amendment of the Constitution. It was
contended on behalf of the defendants that the authorisation
contained in the first sentence of Article 29, s. 4, sub-s. 3
was to join Communities which were established by Treaties
as dynamic and developing entities and that it should be
interpreted as authorising the State to participate in and
agree to amendments of the Treaties which are within the
original scope and objectives of the Treaties. It is the opinion
of the Court that the first sentence in Article 29, s. 4, sub-s. 3
of the Constitution must be construed as an authorisation
given to the State not only to join the Communities as they
stood in 1973, but also to join in amendments of the Treaties
so long as such amendments do not alter the essential scope
or objectives of the Communities. To hold that the first
sentence of Article 29, s. 4, sub-s. 3 does not authorise any
form of amendment to the Treaties after 1973 without a
further amendment of the Constitution would be too narrow

a construction; to construe it as an open-ended authority to
agree, without further amendment of the Constitution, to
any amendment of the Treaties would be too broad. The
issue then arises as to whether the effect of the
amendments to the Treaties proposed by the SEA is such as
would bring the introduction of them into the domestic law
by the Act of 1986 outside the authorisation of Article 29, s.
4, sub-s. 3 as above construed.
The only provisions affecting the European Coal and Steel
Community proposed in the SEA are Articles 4 and 5 thereof,
and the only provisions affecting the European Atomic
Energy Community proposed in the SEA are Articles 26 and
27 thereof. These Articles have essentially the same effect
as Articles 11 and 12 with regard to the European Economic
Community (the EEC). All of these Articles give a power to
the European
[1987]
1 I.R.
Finlay C.J.
768
S.C.
Council at the request of the Court of Justice of the
European Communities to attach to that Court a court of first
instance for the trial of certain classes of cases. It is
sufficient, therefore, for the purpose of this decision to
consider the EEC Treaty (the Treaty of Rome) and the
proposed amendments and additions to it.
The Act of 1986 enjoys the presumption of constitutional
validity, so the onus is on the plaintiff to show that it is in
some respect invalid, having regard to the provisions of the
Constitution. The contention made on behalf of the plaintiff
on this issue was under four headings.
(1) Changes which are proposed in the decision-making
process of the Council in six instances from unanimity to a
qualified majority were asserted to be an unauthorised
surrender of sovereignty.
(2) The power given to the Council by unanimous decision at

the request of the Court of Justice of the European
Communities (the European Court) to attach to it a court of
first instance with an appeal from the latter on questions of
law to the European Court was said to be an unauthorised
surrender of the judicial power.
(3) It is submitted that Article 20 dealing with cooperation in
economic and monetary policy, Article 21 dealing with social
policy, Article 23 dealing with economic and social cohesion,
Article 24 dealing with research and technological
development, and Article 25 dealing with the environment,
all add new objectives to the Treaty of Rome which make
them additions to the original Treaty which are outside the
existing constitutional authorisation.
(4) It is submitted that powers granted to the Council by
Articles 18 and 21 of the SEA would enable it by a qualified
majority to direct the approximation of laws concerning the
provision of services and concerning the working
environment, health and safety of workers which amount to
new powers outside the existing constitutional authorisation
and which could encroach on existing guarantees of
fundamental rights under the Constitution.
In discharging its duty to interpret and uphold the
Constitution the Court must consider the essential nature of
the scope and objectives of the Communities as they must
be deemed to have been envisaged by the people in
enacting Article 29, s. 4, sub-section 3. It is in the light of
that scope and those objectives that the amendments
proposed by the SEA fall to be considered.
Article 2 of the Treaty of Rome provided as follows:
"The Community shall have as its task, by establishing a
common market and progressively approximating the
economic policies of Member States, to promote throughout
the Community a harmonious development of economic
activities, a continuous and balanced expansion, an increase
in stability, an accelerated raising of the standard of living
and closer relations between the States belonging to it."
[1987]
1 I.R.
Finlay C.J.
769
S.C.
Article 3 of that Treaty set out what the activities of the
Community should include for the purposes stated in Article
2, and amongst these activities are:
"(c) the abolition, as between Member States, of obstacles
to freedom of movement for persons, services and capital;
(f) the institution of a system ensuring that competition in
the common market is not distorted;
(g) the application of procedures by which the economic
policies of Member States can be coordinated and
disequilibria in their balances of payments remedied;
(h) the approximation of laws of Member States to the
extent required for the proper functioning of the common
market;
(i) the creation of a European Social Fund in order to
improve employment opportunities for workers and to
contribute to the raising of their standard of living;
(j) the establishment of a European Investment Bank to
facilitate the economic expansion of the Community by
opening up fresh resources;
(k) the association of the overseas countries and territories
in order to increase trade and to promote jointly economic
and social development."
For the purpose of attaining its objectives and implementing
its provisions the Treaty of Rome established certain
institutions. Amongst these is the Court of Justice of the
European Communities which was established to ensure that
in the interpretation and the application of the Treaty the law
is observed. The decisions of that Court on the interpretation
of the Treaty and on questions covering its implementation
take precedence, in case of conflict, over the domestic law
and the decisions of national courts of Member States.
Another institution of the EEC is the Council, whose
decisions have primacy over domestic law and which for the
purpose of ensuring that the objectives of the Treaty are

attained is charged with ensuring the co-ordination of the
general economic policies of the Member States. Some of its
decisions must be unanimous, others may be taken by
qualified majority, and still others by simple majority. The
capacity of the Council to take decisions with legislative
effect is a diminution of the sovereignty of Member States,
including Ireland, and this was one of the reasons why the
Third Amendment to the Constitution was necessary.
Sovereignty in this context is the unfettered right to decide:
to say yes or no. In regard to proposals coming before the
Council which the State might oppose, unanimity is a
valuable shield. On the other hand, in proposals which the
State might support, qualified or simple majority is of
significant assistance. In many instances the Treaty of Rome
provided a requirement that a decision on a particular topic
should be unanimous, but would after the expiry of a
particular stage or of the transitional period require only a
qualified
[1987]
1 I.R.
Finlay C.J.
770
S.C.
majority. The Community was thus a developing organism
with diverse and changing methods for making decisions and
an inbuilt and clearly expressed objective of expansion and
progress, both in terms of the number of its Member States
and in terms of the mechanics to be used in the
achievement of its agreed objectives.
Having regard to these considerations, it is the opinion of
the Court that neither the proposed changes from unanimity
to qualified majority, nor the identification of topics which
while now separately stated, are within the original aims and
objectives of the EEC, bring these proposed amendments
outside the scope of the authorisation contained in Article
29, s. 4, sub-s. 3 of the Constitution. As far as Ireland is
concerned, it does not follow that all other decisions of the

Council which now require unanimity could, without a further
amendment of the Constitution, be changed to decisions
requiring less than unanimity.
The power of the Council to attach to the European Court a
court of first instance with limited jurisdiction which would be
subject to appeal on questions of law to the European Court,
does not affect in any material way the extent to which the
judicial power has already been ceded to the European
Court. This Court is therefore of the opinion that the
establishment of an additional court, if it occurs, has not
been shown to exceed the constitutional authorisation.
The existing Treaty contains various provisions dealing with
the approximation of laws in general, with freedom for the
provision of services in the Member States, with working
conditions and with the prevention of occupational accidents
and diseases. The proposals contained in Articles 18 and 21
of the SEA have not been shown to contain new powers
given to the Council which alter the essential character of
the Communities. Neither has it been shown that they create
a threat to fundamental constitutional rights. Therefore, it is
the opinion of the Court that the appeal under this heading
also fails.
For the foregoing reasons, it has not been shown to the
satisfaction of the Court that any of the provisions of the
European Communities (Amendment) Act, 1986, are invalid
having regard to the provisions of the Constitution.
On the remaining issues of the appeal the following
judgments were then delivered:
Finlay C.J.
9th April 1987
In addition to the appeal against the dismiss of his claim for
a declaration that the European Communities (Amendment)
Act, 1986, is invalid having regard to the provisions of the
Constitution, which has been

[1987]
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Finlay C.J.
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dealt with in the decision of the Court, the plaintiff has
appealed against the dismiss of a claim for a declaration and
injunction restraining the Government from ratifying the
Single European Act ("the SEA"). The grounds for that claim,
other than those already dealt with by the decision
concerning the Act of 1986, are that the provisions contained
in Article 30 under Title III of the SEA are inconsistent with
the Constitution.
These provisions are entitled "Provisions on European
cooperation in the sphere of foreign policy." They do not
purport to constitute amendments of or additions to any of
the Treaties establishing the Communities. Adherence to
these provisions of the SEA by the State could not be an act
necessitated by any obligation of membership by the State
of the Communities nor could such provisions be laws
enacted, acts done or measures adopted by the
Communities or institutions thereof. Article 29, s. 4, sub-s. 3
of the Constitution accordingly does not apply to the
provisions concerning European Political Cooperation (EPC)
contained in Article 30 under Title III of the Single European
Act.
Article 29, s. 6 of the Constitution therefore applies to those
provisions since they can derive no immunity from it by
virtue of Article 29, s. 4, sub-s. 3 and they do not become
part of the domestic law of the State unless and until the
Oireachtas validly so determines. The Oireachtas has passed
no law purporting to bring these provisions into the domestic
law of the State. The provisions of the SEA contained in
Article 30 therefore rank as part of an international treaty
negotiated by the Government but not yet ratified, the terms
of which have been approved by resolution of Dil
ireann but which has not been brought into our domestic
law.
Article 30 of the SEA is divided into twelve sub-articles. It
constitutes an agreement between states adhering to the
SEA, described in Title III as"High Contracting Parties", which
are in fact the Member States of the Communities. From the
preamble to the SEA and from the terms of Article 30
themselves, it is clear that the agreements contained in that
Article are arrived at with the possible ultimate objective of a
form of European political union between the Member States
of the Communities as an addition to the existing economic
union between them. There can be no doubt that if that aim
were ever achieved it would constitute an alteration in the
essential scope and objectives of the Communities to which
Ireland could not agree without an amendment of the
Constitution. Article 30 in summary provides for:
1. Cooperation in the formation of foreign policy between
the parties, with the aim of formulating and putting into
effect a joint foreign policy.
2. Cooperation with the Commission of the Communities.
3. Cooperation with the Parliament of the Communities.
4. Cooperation on European security.
5. The adoption of common positions at international
conferences and in international institutions.
[1987]
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772
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6. The state holding the Presidency of the Council of the
Communities at any time shall hold the Presidency of the
EPC which shall be responsible for initiating action and
representing the position of Member States with third
countries in relation to EPC activities.
7. A Secretariat is to be established, the members of which
will have diplomatic status.
The detailed terms of these provisions impose obligations to

consult; to take full account of the position of other partners;
to ensure that common principles and objectives are
gradually developed and defined; as far as possible to refrain
from impeding the formation of a consensus and the joint
action which this could produce; to be ready to cooperate
policies more closely on the political aspects of security.
They do not impose any obligations to cede any national
interest in the sphere of foreign policy. They do not give to
other High Contracting Parties any right to override or veto
the ultimate decision of the State on any issue of foreign
policy. They impose an obligation to listen and consult and
grant a right to be heard and to be consulted.
The net issue which arises in this part of this appeal is
whether, having regard to the general nature and effect of
Article 30 of the SEA and its status in relation to our law as
above outlined, this Court is entitled under the Constitution,
at the instance of the plaintiff, to intervene so as to prevent
the Government from ratifying this treaty. It is an issue of a
fundamental nature, the importance of which, in my view,
transcends by far the significance of the provisions of the
SEA. The separation of powers between the legislature, the
executive and the judiciary, set out in Article 6 of the
Constitution, is fundamental to all its provisions. It was
identified by the former Supreme Court in Buckley and
Others (Sinn Fin) v. Attorney General [1950] I.R. 67 and
has since been repeatedly acknowledged and implemented
by this Court. It involves for each of the three constitutional
organs concerned not only rights but duties also; not only
areas of activity and function, but boundaries to them as
well.
With regard to the legislature, the right and duty of the
Courts to intervene is clear and express.
1. Article 15, s. 4, Article 34, s. 3, sub-s. 2 and Article 34, s.
4, sub-s. 4 of the Constitution vest in the High Court and, on
appeal, in this Court the right and duty to examine the
validity of any impugned enactment of the Oireachtas and, if
it be found inconsistent with the Constitution, to condemn it
in whole or in part.
2. Article 26 of the Constitution confers on this Court the

duty, upon the reference to it by the President of a Bill
passed or deemed to have been passed by both houses of
the Oireachtas, to decide whether such Bill or any specified
provision or provisions of such Bill is or are repugnant to the
Constitution or to any provision thereof.
3. The Courts do not, in my opinion, have any other right to
intervene in the enactment of legislation by the Oireachtas.
[1987]
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Finlay C.J.
773
S.C.
With regard to the executive, the position would appear to
be as follows: This Court has on appeal from the High
Court a right and duty to interfere with the activities of the
executive in order to protect or secure the constitutional
rights of individual litigants where such rights have been or
are being invaded by those activities or where activities of
the executive threaten an invasion of such rights.
This right of intervention is expressly vested in the High
Court and Supreme Court by the provisions of Article 34, s.
3, sub-s. 1 and Article 34, s. 4, sub-s. 3 of the Constitution
and impliedly arises from the form of the judicial oath
contained in Article 34, s. 3, sub-s. 1 of the Constitution.
Article 29, s. 4, sub-s. 1 of the Constitution provides:
"The executive power of the State in or in connection with
its external relations shall in accordance with Article 28 of
this Constitution be exercised by or on the authority of the
Government."
Article 28, s. 2 of the Constitution provides:
"The executive power of the State shall, subject to the
provisions of this Constitution, be exercised by or on the
authority of the Government."
The combined effect of these two constitutional provisions
clearly is that the executive power of the State in connection
with its external relations shall be exercised by or on the

authority of the Government but that in so exercising that
power the Government is subject to the provisions of the
Constitution.
Article 29, s. 5, sub-s. 1 provides:
"Every international agreement to which the State becomes
a party shall be laid before Dil ireann ."
Article 29, s. 5, sub-s. 2 provides:
"The State shall not be bound by any international
agreement involving a charge upon public funds unless the
terms of the agreement shall have been approved by Dil
ireann ."
I have already referred to the provisions of s. 6 of Article 29
of the Constitution vesting in the Oireachtas the right to
determine the extent and manner in which an international
agreement shall be part of the domestic law of the State.
From these constitutional provisions, it seems reasonable to
infer a scheme under the Constitution that by virtue of
Article 29, s. 5, sub-s. 1, Dil ireann should have a
primary control over the exercise by the Government of its
executive power in relation to entering into international
agreements, and that under Article 29, s. 5, sub-s. 2 no
international agreement of major importance being one that
involved a charge upon public funds could bind the State
without the approval of Dil ireann as to its terms. This
scheme is consistent with the provisions of Article 28, s. 3,
sub-s. 1 which provide:
"War shall not be declared and the State shall not
participate in any war save with the assent of Dil
ireann ."
A declaration of war and participation in war is necessarily
part and parcel
[1987]
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Finlay C.J.
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of the external relations of the State. This provision again

emphasises the control by Dil ireann of the
Government in its exercise of executive power in external
relations.
The overall provisions concerning the exercise of executive
power in external relations do not contain any express
provision for intervention by the Courts. There is nothing in
the provisions of Articles 28 and 29 of the Constitution, in my
opinion, from which it would be possible to imply any right in
the Courts in general to interfere in the field or area of
external relations with the exercise of an executive power.
This does not mean that the executive is or can be without
control by the Courts in relation to carrying out executive
powers even in the field of external relations. In any instance
where the exercise of that function constituted an actual or
threatened invasion of the constitutional rights of an
individual, the Courts would have a right and duty to
intervene.
In this case where the plaintiff adduced no evidence at the
hearing in the High Court but relied on matters pleaded and
not denied, I am satisfied that he has not established any
actual or threatened invasion of any constitutional right
enjoyed by him as an individual arising from the terms of
Article 30 of the Single European Act.
It was submitted that, whereas the plaintiff acknowledged
that the Courts had no function to intervene with the
Executive in the formation or statement of policy, either in
external relations or in any other part of Government
activity, a difference arose where the declaration of policy
involved, as it is stated Article 30 of the SEA involves, a
commitment to other states for consultation, discussion and
an endeavour to coincide policies. I cannot accept this
distinction. It appears probable that under modern conditions
a state seeking cooperation with other states in the sphere
of foreign policy must be prepared to enter into not merely
vague promises but actual arrangements for consultation
and discussion. I can find no warrant in the Constitution for
suggesting that this activity would be inconsistent with the
Constitution and would, as is suggested, presumably in each
individual instance, require a specific amendment of the

Constitution.
I am confirmed in the view which I have reached with regard
to the constitutional limits of the intervention by the Courts
in the exercise by the Government of its executive functions
by the decision of this Court in Boland v. An Taoiseach
[1974] I.R. 338. FitzGerald C.J., in the course of his judgment
in that case, at p. 362, stated as follows:
conferred on it by the Constitution."
In the course of his judgment in the same case, Budd J., at
p. 366,
[1987]
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stated as follows:
"The judiciary has its own particular ambit of functions
under the Constitution. Mainly, it deals with justiciable
controversies between citizen and citizen or the citizen and
the State and matters pertaining thereto. Such matters have
nothing to do with matters of State policy. Viewing the
matter from another angle, as to the nature of any relief that
could properly be claimed in proceedings of this nature, I ask
whether it could be said that the Courts could be called upon
to pronounce adversely or otherwise on what the
Government proposed to do on any matter of policy which it
was in the course of formulating. It would seem that that
would be an attempted interference with matters which are
part of the functions of the Executive and no part of the
functions of the judiciary. From a practical standpoint alone,
what action would be open to the Courts? The Courts could
clearly not state that any particular policy ought not to be

pursued.
The Constitution goes further in indicating how far the
policies involved in government decisions as to policy such
as this are removed from the purview of the Courts in that it
makes the Government responsible to the Dil which can
support or oppose those policies and review them.
Ultimately, there is the responsibility of the Government to
the people who must be consulted by way of referendum
where any change of the Constitution is contemplated."
Griffin J., in the course of his judgment in that case, at p.
370, stated as follows:
"In the event of the Government acting in a manner which is
in contravention of some provisions of the Constitution, in
my view it would be the duty and the right of the Courts, as
guardians of the Constitution, to intervene when called upon
to do so if a complaint of a breach of any of the provisions of
the Constitution is substantiated in proceedings brought
before the Courts."
I do not consider that it has been established that
adherence by the State to the terms of Article 30 of the SEA
amounts, in the words of FitzGerald C.J., "to a clear disregard
by the Government of the powers and duties conferred on it
by the Constitution." Furthermore, I interpret the decision of
Griffin J. in Boland v. An Taoiseach [1974] I.R. 338 as being
consistent with the view already expressed by me that where
an individual person comes before the Courts and
establishes that action on the part of the Executive has
breached or threatens to breach one or other of his
constitutional rights that the Courts must intervene to
protect those rights but that otherwise they can not and
should not.
I, therefore, am satisfied that this appeal on this issue
should be dismissed.
[1987]
1 I.R.
Walsh J.
776
S.C.
Walsh J.
This part of the proceedings deals only with Title III of the
Single European Act. The heading of that title is "Provisions
on European cooperation in the sphere of foreign policy."
This title is not included in the European Communities
(Amendment) Act, 1986. Neither is the preamble to the
Single European Act incorporated in or referred to by the
said Act. The terms of the preamble are however relevant to
the issue now before the Court concerning Title III. In its first
paragraph the preamble refers to the will to continue work to
transform relations between the Member States of the
European Communities into a European Union. It goes on to
say that the signatories are resolved to implement "this
European Union" firstly on the basis of the Communities
operating according to their own rules and, secondly, of
European Cooperation among the Signatory States "in the
sphere of foreign policy" and to invest this union "with the
necessary means of action". It is abundantly clear, and
indeed was not contested in the present case, that so far as
Ireland is concerned the creation of a European Union which
would include Ireland would require an amendment of the
Constitution. Title III of the Single European Act, which in
reality is itself a separate treaty although not so in form,
does not purport to create a European Union; but on the
other hand openly acknowledges that such is the objective.
The preamble goes on to state that the parties are
determined "to work together to promote democracy on the
basis of the fundamental rights recognised in the
constitutions and laws of the Member States, in the
Convention for the Protection of Human Rights and
Fundamental Freedoms and the European Social Charter,
notably freedom, equality and social justice." So far as the
latter aspirations are concerned no objection could be taken
to them having regard to the fact that the preamble of the
Constitution of Ireland sets out that one of the aims of the
Constitution is to safeguard the dignity and freedom of the

individual and to assist in establishing concord with other
nations. Article 5 of the Constitution says that Ireland is a
sovereign, independent and democratic state. Article 29, s. 1
of the Constitution contains the affirmation that Ireland is
devoted to the ideal of peace and friendly co-operation
amongst nations founded on international justice and
international morality (see the Irish language text of the
Constitution).
The preamble to the Single European Act further refers to
"the responsibility incumbent upon Europe to aim at
speaking ever increasingly with one voice and to act with
consistency and solidarity in order more effectively to
protect its common interests and independence, in particular
to display the principles of democracy and compliance with
the law and with human rights to which they are attached,
so that together they may make their own contribution to
the preservation of international peace and security in
accordance with the undertaking entered into by them within
the
[1987]
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Walsh J.
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framework of the United Nations Charter." The sentiments
there expressed are also unexceptionable as a general
objective of the European Community and of the individual
Member States, and as such would appear to be in no way
incompatible with the aims and aspirations of the
Constitution in those fields.
It is however the treaty provisions set out in Title III which
have given rise to the plaintiff's claim for an order to restrain
the Government from ratifying the treaty already executed
by them. Article 33, s. 1 of the Single European Act provides
that it will be ratified "by the High Contracting Parties in
accordance with their respective constitutional
requirements." In essence therefore this part of the case is

concerned with whether or not, as a matter of Irish law, the
method of ratification proposed by the Government is in
accordance with the Constitution, namely, whether it can
now be ratified on the basis that its terms have been
approved in their entirety by Dil ireann in accordance
with Article 29, s. 5, sub-s. 2 of the Constitution.
This brings me to a consideration of the relevant provisions
of the Constitution and the treaty-making powers of the
executive organ of government (the "Government"). Article 6
of the Constitution refers to "all powers of government" and
goes on to differentiate between the legislative, executive
and judicial organs of government. It refers to the powers of
government as being derived "under God, from the people,
whose right it is to designate the rulers of the State and, in
final appeal, to decide all questions of national policy,
according to the requirements of the common good." It must
follow therefore that all the powers of government are to be
exercised according to the requirements of the common
good. Section 2 of the same Article provides that these
powers of government are exercisable"only by or on the
authority of the organs of State established by this
Constitution." So far as external or foreign relations are
concerned Article 29, s. 4, sub-s. 1 of the Constitution
provides that "the executive power of the State in or in
connection with its external relations shall in accordance
with Article 28 of this Constitution be exercised by or on the
authority of the Government." Article 28, s. 2 provides that
"the executive power of the State shall, subject to the
The Constitution confers upon the Government the whole
executive power of the State, subject to certain qualifications
which I will deal with later, and the Government is bound to
take care that the laws of the State are faithfully executed. In
its external relations it has the power to make treaties, to
maintain diplomatic relations with other sovereign States.
The Government alone has the power to speak or to listen as
a representative of the State in its external relations. It is the
Government alone which negotiates and makes treaties and

it is the sole organ of the State in the field of international
affairs. For these functions it does not require as a basis for
[1987]
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Walsh J.
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S.C.
their exercise an Act of the Oireachtas. Nevertheless the
powers must be exercised in subordination to the applicable
provisions of the Constitution. It is not within the
competence of the Government, or indeed of the Oireachtas,
to free themselves from the restraints of the Constitution or
to transfer their powers to other bodies unless expressly
empowered so to do by the Constitution. They are both
creatures of the Constitution and are not empowered to act
free from the restraints of the Constitution. To the judicial
organ of government alone is given the power conclusively
to decide if there has been a breach of constitutional
restraints.
The powers of external sovereignty on the part of the State
do not depend on the affirmative grant of this in the
Constitution. They are implicit in the provisions of Article 5 of
the Constitution. The State would not be completely
sovereign if it did not have in common with other members
of the family of nations the right and power in the field of
international relations equal to the right and power of other
states. These powers of the State include the power to
declare war or to participate in a war, to conclude peace, to
make treaties, and maintain diplomatic relations with other
states.
However the exercise of the power is limited. In the first
instance the Government alone has the power, as already
mentioned, to speak and listen as the representative of the
State, and, subject to the constitutional restraints, to make
treaties. Article 28, s. 3, sub-s. 1 of the Constitution provides
that war shall not be declared and the State shall not
participate in any war save with the assent of Dil

ireann . That is one express constitutional prohibition on
the exercise by the Government of its powers in its
international relations. So far as treaties or international
agreements are concerned Article 29, ss. 5 and 6 deal
further with the matter. They provide that (a) every
shall be laid before Dil ireann , (b) the State shall not
be bound by any international agreement involving a charge
upon public funds unless the terms of the agreement shall
have been approved by Dil ireann (save where the
agreements or conventions are of a technical and
administrative character) and (c) no international agreement
shall be part of the domestic law of the State save as may be
determined by the Oireachtas. As a general rule neither the
Government nor the Oireachtas can be restrained until their
intentions are translated into acts. In proper cases they are
subject to judicial cognisance, and judicial review and
restraint. Thus statements of the Government policy as such
are not restrainable by the Courts. But if the policies are
translated, for example, into treaties then different
considerations arise.
In the present case counsel for the defendants submitted
that even in the case of treaties the Courts are not
empowered to interfere unless the treaties are translated
into domestic legislation. To do so, the defendants asserted,
would be for one of the organs of State to trespass upon the
[1987]
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Walsh J.
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S.C.
functions of another in a manner unauthorised by the
Constitution. The defendants relied upon the decision of the
former Supreme Court of Justice in Buckley and Others (Sinn
Fin) v. Attorney General [1950] I.R. 67 in support of this
proposition. That was a case in which legislation was
impugned. The power to review legislation is expressly

granted by the Constitution. What the Court was doing in
that case was to interfere in what it regarded and described
at p. 84 of the report as "an unwarrantable interference by
the Oireachtas with the operation of the Courts in a purely
judicial domain." It does not follow from that conclusion that
the actions of the executive can never be reviewed by the
Courts even in respect of matters which are on their face
apparently within the exclusive domain of the Government. It
is beyond dispute and well settled in many cases that one of
the functions of the Courts is to uphold the Constitution. That
includes restraining the Government from freeing
themselves or purporting to free themselves from the
restraints of the Constitution.
This issue was discussed at some length in this Court in the
case of Boland v. An Taoiseach [1974] I.R. 338. The subject
of that litigation was what became known as the
"Sunningdale Agreement", and in particular clause 5 thereof.
It was held by this Court that it was not an agreement or
treaty but a communiqu containing declarations and
assertions of policy, and therefore was not restrainable. In
the course of his judgment in that case FitzGerald C.J. at p.
362 stated:
O'Keeffe P. in the course of his judgment at p. 363 stated
that it was clearly not within the competence of the
Government to agree to depart from the terms of the
Constitution. He found that the document in question was
not such an agreement but simply a statement of policy.
Budd J. stated, and in my view correctly so, that the Courts
could clearly not state that any particular policy ought not to
be pursued and was of opinion that nothing more than a
declaration of policy had been made and that there was not
any agreement between the parties. It is to be inferred from
his judgment that if an agreement were in existence

different considerations would apply. Griffin J. in his judgment
was also of opinion that the stage had not been reached in
that case where the Courts could intervene as no formal
agreement had been reached between the parties, and
furthermore that if the contemplated agreement were
reached it would have led to legislation which itself could be
the subject of a constitutional challenge in the Courts.
Pringle J. agreed that the appeal in that case should be
dismissed for the reasons stated in the judgments, and that
the Courts had no power to interfere with the exercise
[1987]
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Walsh J.
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S.C.
by the Government of its executive functions in the
circumstances relied upon by the plaintiff. That, as I
understand it, meant that Pringle J. was in agreement with
his colleagues that nothing beyond the pronouncemment of
a policy had taken place and that therefore the Courts could
not intervene at that stage.
What is at issue in the present case is not simply a
declaration of policy but an actual treaty. As it will obviously
involve a charge upon the public funds the requirement of
the Constitution in Article 29, s. 5, sub-s. 2, that it should be
approved by Dil ireann , has been complied with. The
State is not yet bound by this Treaty even though it has been
laid before Dil ireann because its binding effect
depends upon ratification in accordance with Irish
"constitutional requirements". The question therefore is
whether the State in attempting to ratify this Treaty is
endeavouring to act free from the restraints of the
Constitution.
The object of this Treaty, so far as Ireland is concerned, is to
bind this State in its relations with the other Member States
of the European Communities. Adherence to the Treaty, or
indeed the Treaty itself, is not in any sense an obligation

arising from or necessitated by membership of the European
Communities. I do not accept the submission made on behalf
of the defendants that unless and until the terms of the
Treaty are translated into domestic legislation the Court has
no competence in the matter. In international law the State
in entering into a treaty must act in good faith. That is why
the provision in the Treaty itself for ratification in accordance
with the constitutional requirements of this State is so
important. If some part or all of the Treaty were
subsequently translated into domestic legislation and found
to be unconstitutional it would avail the State nothing in its
obligations to its fellow members. It would still be bound by
the Treaty. Therefore if the ratification of this Treaty under
the Irish Constitution requires a referendum to amend the
Constitution to give effect to it, the fact that the State did
not hold a referendum would not prevent the State from
being bound in international law by the Treaty. If a
referendum were to be held or had been held and the Treaty
were rejected then the State would not be in breach of its
international obligations because it would not have ratified
the Treaty. It is not for the other states to the Treaty to satisfy
themselves that the Government of Ireland observed its own
constitutional requirements. This is solely a matter for the
Government of Ireland and if it fails to take the necessary
steps, the State cannot afterwards be heard to plead that it
is not bound by the Treaty.
The Treaty does not purport to commit the State to agreeing
to the establishment of a European Union of which Ireland
would be a part. That is manifestly something to which the
Government could not commit the State. What the Treaty
does is to commit the State to pursuing a policy which has,
inter alia, as one of its objectives the transformation of the
[1987]
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Walsh J.
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S.C.
relations of Ireland with the other Member States of the
European Communities into a European Union. If this were
simply a unilateral statement of policy on the part of the
Government or part of a multilateral declaration of policy to
the like end it could not be called into question in this Court.
As was pointed out by Budd J. in Boland v. An Taoiseach
[1974] I.R. 338 at p. 366 it would, as such, be outside "the
purview of the Courts in that it makes the Government
responsible to the Dil which can support or oppose those
policies and review them." The present Treaty provisions go
much further than that and, notwithstanding that, they have
been approved by Dil ireann . As was pointed out in
the decision of the Court in the first part of this case the
essential nature of sovereignty is the right to say yes or to
say no. In the present Treaty provisions that right is to be
materially qualified.
It commits the State, and therefore all future Governments
and the Oireachtas, to the other Member States to do the
following things:
1. To endeavour to formulate and to implement a European
foreign policy.
2. To undertake to inform or consult the other Member
States on any foreign policy matters of general interest (not
just of common interest) so as to ensure that the combined
influence of the States is exercised as effectively as possible
through co-ordination, the convergence of their positions
and the implementation of joint action.
3. In adopting its position and in its national measures the
State shall take full account of the position of the other
Member States and shall give due consideration to the
positions.
4. The State will ensure that with its fellow Member States
common principles and objectives are gradually developed
and defined.
5. The State shall endeavour to avoid any action or position
which impairs the effectiveness of the Community States as
a cohesive force in international relations or within
international organisations.
6. The State shall so far as possible refrain from impeding
the formation of a consensus and the joint action which this
could produce.
7. The State shall be ready to co-ordinate its position with
the position of the other Member States more closely on the
political and economic aspects of security.
8. The State shall maintain the technological and industrial
conditions necessary for security of the Member States and
it shall work to that end at national level and, where
appropriate, within the framework of the competent
institutions and bodies.
9. In international institutions and at international
conferences which the State attends it shall endeavour to
adopt a common position with the other Member States on
subjects covered by Title III.
10. In international institutions and at international
conferences in which
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Walsh J.
782
S.C.
not all of the Member States participate the State, if it is one
of those participating, shall take full account of the positions
agreed in European Political Cooperation.
One other matter expressed in somewhat ambiguous terms
at Article 6 (c) in Title II is as follows:
"Nothing in this Title shall impede closer cooperation in the
field of security between certain of the High Contracting
Parties within the framework of the Western European Union
or the Atlantic Alliance."
One interpretation of that is that the Member States who are
members of the Western European Union or the Atlantic
Alliance (Ireland is not a member of either) can develop their
own co-operation in those fields without being impeded by
anything in Title III of this Treaty. However, it can also
amount to an undertaking on the part of this State that in

the exercise of whatever powers it may have under Title III it
shall do nothing to impede such co-operation in the field of
security in the framework of the Western European Union or
the Atlantic Alliance on the part of those Member States
which belong to those institutions.
All of these matters impinge upon the freedom of action of
the State not only in certain areas of foreign policy but even
within international organisations such as the United Nations
or the Council of Europe. That latter effect of the Treaty could
amount to the establishment of combinations within these
organisations. In touching upon the maintenance of the
technological and industrial conditions necessary for security
the Treaty impinges upon the State's economic, industrial
and defence policies. The obligation on the High Contracting
Parties after five years to examine whether any revision of
Title III is required does not give the Treaty a temporary
character.
I mentioned earlier in this judgment that the Government is
the sole organ of the State in the field of international
relations. This power is conferred upon it by the Constitution
which provides in Article 29, s. 4 that this power shall be
exercised by or on the authority of the Government. In this
area the Government must act as a collective authority and
shall be collectively responsible to Dil ireann and
ultimately to the people. In my view it would be quite
incompatible with the freedom of action conferred on the
Government by the Constitution for the Government to
qualify that freedom or to inhibit it in any manner by formal
agreement with other States as to qualify it. This view is, in
my opinion, corroborated by the provisions of Article 29, s. 4,
sub-s. 2 of the Constitution which provides:
"For the purpose of the exercise of any executive function of
the State in or in connection with its external relations, the
Government may to such extent and subject to such
conditions, if any, as may be determined by law, avail of or
adopt any organ, instrument, or method of procedure used
or adopted for the like
[1987]
1 I.R.
Walsh J.
783
S.C.
purpose by the members of any group or league of nations
with which the State is or becomes associated for the
purpose of international co-operation in matters of common
concern."
The history of this particular provision is too well known to
require elaboration but the wording is such that for the
particular purpose of that provision the European Economic
Community is in my view such a group or league of nations
with which the State is associated for the purpose of
international co-operation in matters of common concern.
However the limitations are very clear. This provision relates
solely to the exercise of the executive functions of this State
in its external relations and is subject to such conditions, if
any, as may be determined by law. Furthermore it simply
provides for the adoption of any organ or instrument or
method of procedure for the exercise of the executive
functions of the State. It does not require prior consultation
with any other State as to the policy itself. It also provides
that there must be enabling legislation. The framers of the
Constitution, and the people in enacting it, clearly foresaw
the possibility of being associated with groups of nations for
the purpose of international co-operation in matters of
common concern and they provided for the possibility of the
adoption of a common organ or instrument. Equally clearly
they refrained from granting to the Government the power to
bind the State by agreement with such groups of nations as
to the manner or under what conditions that executive
function of the State would be exercised.
In enacting the Constitution the people conferred full
freedom of action upon the Government to decide matters of
foreign policy and to act as it thinks fit on any particular
issue so far as policy is concerned and as, in the opinion of
the Government, the occasion requires. In my view, this
freedom does not carry with it the power to abdicate that

freedom or to enter into binding agreements with other
States to exercise that power in a particular way or to refrain
from exercising it save by particular procedures, and so to
bind the State in its freedom of action in its foreign policy.
The freedom to formulate foreign policy is just as much a
mark of sovereignty as the freedom to form economic policy
and the freedom to legislate. The latter two have now been
curtailed by the consent of the people to the amendment of
the Constitution which is contained in Article 29, s. 4, sub-s.
3 of the Constitution. If it is now desired to qualify, curtail or
inhibit the existing sovereign power to formulate and to
pursue such foreign policies as from time to time to the
Government may seem proper, it is not within the power of
the Government itself to do so. The foreign policy organ of
the State cannot, within the terms of the Constitution, agree
to impose upon itself, the State or upon the people the
contemplated restrictions upon freedom of action. To acquire
the power to do so would, in my opinion, require a recourse
to the people "whose right it is" in the words of Article 6 ". . .
in final appeal, to decide all questions of national policy,
according to the requirements of the common good." In the
last analysis it is the people
[1987]
1 I.R.
Walsh J.; Henchy J.
784
S.C.
themselves who are the guardians of the Constitution. In my
view, the assent of the people is a necessary prerequisite to
the ratification of so much of the Single European Act as
consists of title III thereof. On these grounds I would allow
this appeal.
Henchy J.
The Single European Act ("the SEA") is something of a
misnomer, for it is a treaty rather than an instrument with
the legislative connotations usually attaching to an Act. As a

treaty it has a dual purpose: (1) to amend and supplement
the Treaties on which the European Communities are
founded; and (2) to put on a formal basis co-operation
between the Member States in the field of foreign policy. It is
with the latter objective, which is dealt with in Title III of the
SEA, that we are concerned in this part of the plaintiff's
appeal.
Title III (which is headed "Provisions on European
cooperation in the sphere of foreign policy") deals with
matters which are outside the scope of the existing treaties.
This is evidenced by the two opening paragraphs of the
preamble to the SEA:
"MOVED by the will to continue the work undertaken on the
basis of the Treaties establishing the European Communities
and to transform relations as a whole among their States
into a European Union, in accordance with the Solemn
Declaration of Stuttgart of 19 June 1983,
RESOLVED to implement this European Union on the basis,
firstly, of the Communities operating in accordance with their
own rules and, secondly, of European Cooperation among
the Signatory States in the sphere of foreign policy and to
invest this union with the necessary means of action."
It is clear, therefore, that, so far as Title III is concerned,
Ireland's constitutional authority for ratifying the SEA is not
to be found in Article 29, s. 4, sub-s. 3 of the Constitution,
which is the constitutional amendment which allowed Ireland
to become a member of the European Communities. One
must look elsewhere in the Constitution to see if there are
express or implied provisions which would make Ireland's
ratification of Title III consistent with the Constitution.
It is first necessary to make clear the scope and objective of
Title III, all of which is contained in Article 30 of the SEA.
Article 30, s. 1 provides that the Member States of the
European Communities "shall endeavour to formulate and
implement a European foreign policy." Thus, unlike the main
part of the SEA, Article 30 is not intended to be an
amendment of the existing Treaties but sets the Member
States on a course leading to an eventual European Union in
the sphere of foreign policy. Pending the attainment of that

objective, which is outside the stated aims of the existing
Treaties, the Member States become bound to formulate and
conduct their
[1987]
1 I.R.
Henchy J.
785
S.C.
foreign policy according to the terms stated in Article 30.
What had been no more than an objective declared by the
Stuttgart Declaration of 1983 is now to become a matter of
solemn treaty.
The essence of this fundamental transformation in the
relations between the Member States of the European
Communities is that they are no longer to have separate
foreign policies but are, as far as possible, to merge their
national foreign policies in a European (i.e. Community)
foreign policy and to work together in the manner indicated,
so as to implement what is called European Political
Cooperation, with a view to achieving eventual European
union.
The principal courses of conduct to which the High
Contracting Parties bind themselves are set out in s. 2 of
Article 30:
"(a) The High Contracting Parties undertake to inform and
consult each other on any foreign policy matters of general
interest so as to ensure that their combined influence is
exercised as effectively as possible through coordination, the
convergence of their positions and the implementation of
joint action.
(b) Consultations shall take place before the High
Contracting Parties decide on their final position.
(c) In adopting its positions and in its national measures
each High Contracting Party shall take full account of the
positions of the other partners and shall give due
consideration to the desirability of adopting and
implementing common European positions.

In order to increase their capacity for joint action in the
foreign policy field, the High Contracting Parties shall ensure
that common principles and objectives are gradually
developed and defined.
The determination of common positions shall constitute a
point of reference for the policies of the High Contracting
Parties.
(d) The High Contracting Parties shall endeavour to avoid
any action or position which impairs their effectiveness as a
cohesive force in international relations or within
international organizations."
Without going further into Article 30, it is clear from those
provisions that once the Member States ratify this Treaty
each state's foreign policy will move from a national to a
European or Community level. Apart from becoming bound
to endeavour jointly to formulate and implement a European
foreign policy, each Member State will become specifically
bound to inform and consult its fellow-members, to refrain
from deciding on a final position as to an issue of foreign
policy without prior consultations, to take full account of the
positions of the other partners in adopting its positions and
in its national measures, to ensure that common principles
and objectives are gradually developed and defined, and to
recognise that the determination of common positions shall
constitute a point of reference.
[1987]
1 I.R.
Henchy J.
786
S.C.
Those and other commitments expressed in Article 30 make
manifest that, although the approach to the ultimate aim of
European Union is to be reached by a pathway of
gradualism, each Member State will immediately cede a
portion of its sovereignty and freedom of action in matters of
foreign policy. National objectives and ideological positions

must defer to the aims and decisions of an institution known
as European Political Cooperation, which is to work in
tandem with the European Communities. A purely national
approach to foreign policy is incompatible with accession to
this Treaty. The methods of co-operation between the
Member States, which hitherto have been informal,
aspirational or, at most, declaratory (as under the Stuttgart
Declaration), now pass into a realm of solemnly covenanted
commitment to the conduct of foreign policy in a way that
will lead to European political union, at least in the sphere of
foreign policy. In that respect, Title III of the SEA is the
threshold leading from what has hitherto been essentially an
economic Community to what will now also be a political
Community.
In the case of Ireland, it is proposed that this transformation
be effected not by any amendment of the Constitution, nor
by any statutory change in the domestic law, but by simply
depositing an instrument of ratification of the SEA. The
fundamental and far-reaching changes in the conduct of the
State's foreign policy to which I have referred would thus be
effected by the Government, without reference to the people
and without an Act of parliament. Counsel for the
Government has sought to justify this approach by
submitting that, because Article 29, s. 4, sub-s. 1 of the
Constitution has committed the conduct of foreign policy to
the Government, the Courts are not entitled to control the
Government in the way it decides to conduct foreign policy. It
is therefore contended that the plaintiff's claim is ill-founded.
I am unable to accept the submission that the powers of
Government in the conduct of foreign policy are not
amenable to control by the Courts. It is true that Article 29,
s. 4, sub-s. 1 of the Constitution provides that "the executive
power of the State in or in connection with its external
relations shall in accordance with Article 28 of this
Constitution be exercised by or on the authority of the
Government." However, when one turns to Article 28 one
finds that s. 2 of that Article clarifies the position by
declaring that "the executive power of the State shall,
subject to the provisions of this Constitution,be exercised by

or on the authority of the Government." (Emphasis added). It
follows, therefore, that in the conduct of the State's external
relations, as in the exercise of the executive power in other
respects, the Government is not immune from judicial
control if it acts in a manner or for a purpose which is
inconsistent with the Constitution. Such control is necessary
to give effect to the limiting words "subject to the provisions
of this Constitution."
In testing the constitutional validity of the proposed
ratification of the
[1987]
1 I.R.
Henchy J.
787
S.C.
SEA (insofar as it contains Title III) it is important to note
that the Constitution at the very outset declares as follows in
Article 1:
"The Irish nation hereby affirms its inalienable, indefeasible,
and sovereign right . . . to determine its relations with other
nations . . . in accordance with its own genius and
traditions."
It appears to me that this affirmation means that the State's
right to conduct its external relations is part of what is
inalienable and indefeasible in what is described in Article 5
as "a sovereign, independent, democratic State." It follows,
in my view, that any attempt by the Government to make a
binding commitment to alienate in whole or in part to other
states the conduct of foreign relations would be inconsistent
with the Government's duty to conduct those relations in
accordance with the Constitution.
The ultimate source and limits of the Government's powers
in the conduct of foreign relations are to be found in Article
6, s. 1 of the Constitution:
"All powers of government, legislative, executive and

requirements of the common good."
It follows that the common good of the Irish people is the
ultimate standard by which the constitutional validity of the
conduct of foreign affairs by the Government is to be judged.
In this and in a number of other respects throughout the
Constitution the central position of the common good of the
Irish people is stressed as one of the most fundamental
characteristics of Ireland as a sovereign, independent,
democratic state.
A perusal of Title III of the SEA satisfies me that each
ratifying Member State will be bound to surrender part of its
sovereignty in the conduct of foreign relations. That is to
happen as part of a process designed to formulate and
implement a European foreign policy. The freedom of action
of each state is to be curtailed in the interests of the
common good of the Member States as a whole. Thus, for
example, in regard to Ireland, while under the Constitution
the point of reference for the determination of a final
position on any issue of foreign relations is the common
good of the Irish people, under Title III the point of reference
is required to be the common position determined by
Member States. It is to be said that such a common position
cannot be reached without Ireland's consent, but Title III is
not framed in a manner which would allow Ireland to refuse
to reach a common position on the ground of its obligations
under the Irish Constitution. There is no provision in the
Treaty for a derogation by Ireland where its constitutional
obligations so require. On the contrary, Title III expressly
provides:
"In adopting its positions and in its national measures
[which presumably would include Acts of the Oireachtas]
each High
[1987]
1 I.R.
Henchy J.
788
S.C.
Contracting Party shall take full account of the positions of
the other partners and shall give due consideration to the
positions."
Thus, if the other Member States were to take up a common
position on an issue of external relations, Ireland, in adopting
its own position and in its national measures, would be
bound by Title III to "take full account" of the common
position of the other Member States. To be bound by a
solemn international treaty to act thus is, in my opinion,
inconsistent with the obligation of the Government to
conduct its foreign relations according to the common good
of the Irish people. In this and in other respects Title III
amounts to a diminution of Ireland's sovereignty which is
declared in unqualified terms in the Irish Constitution.
It is urged on behalf of the Government that the changes in
existing inter-state relations effected by Title III are slight,
that it does little more than formalise existing practices and
procedures by converting them into binding obligations. This,
I fear, is to underestimate the true nature in international law
of a treaty as distinct from a mere practice or procedure, and
to misinterpret the commitments for the future involved in
Title III. As a treaty, Title III is not designed in static terms. It
not alone envisages changes in inter-state relations, but also
postulates and requires those changes. And the purpose of
those changes is to erode national independence in the
conduct of external relations in the interests of European
political cohesion in foreign relations. As I have pointed out,
the treaty marks the transformation of the European
Communities from an organisation which has so far been
essentially economic to one that is to be political also. It
goes beyond existing arrangements and practices, in that it
establishes within the framework of the Communities new
institutions and offices (such as European Political
Cooperation, the Political Director and the Political
Committee) and charts a route of co-ordination, by means
such as working parties, a secretariat and regular meetings,
so as to give impetus to the drive for European unity.

All this means that if Ireland were to ratify the Treaty it
would be bound in international law to engage actively in a
programme which would trench progressively on Ireland's
independence and sovereignty in the conduct of foreign
relations. Ireland would therefore become bound to act in a
way that would be inconsistent with the Constitution. The
Government's constitutional mandate requires it to act in
accordance with the Constitution. In proposing to ratify this
treaty it is in effect seeking to evade that obligation and to
substitute for it an obligation, or a series of obligations, in
international law which cannot be reconciled with the
constitutional obligations.
There is, of course, nothing in the Constitution to prevent
the Government, or any person or group or institution, from
advocating or campaigning for or otherwise working for a
change in the Constitution. Likewise there
[1987]
1 I.R.
Henchy J.; Griffin J.
789
S.C.
does not appear to be any constitutional bar to a nonbinding arrangement by the State to consult with other
states in the conduct of its foreign policy. It is quite a
different matter when, as here, it is proposed that the State
be bound by an international treaty which requires the State
to act in the sphere of foreign relations in a manner which
would be inconsistent with constitutional requirements. What
would be an imperative under international law would be
proscribed under the Constitution. In such circumstances it is
the Constitution that must prevail.
For the foregoing reasons I am of the opinion that, without
the appropriate constitutional amendment, the ratification of
the SEA (insofar as it contains Title III) would be
impermissible under the Constitution. I would declare
accordingly.
Griffin J.
I agree with the judgment delivered by the Chief Justice. I
should like however to add some observations of my own.
Title III, although included in the Single European Act (SEA),
and set out in Article 30 in that Act, is effectively a separate
treaty between the twelve countries who are the Member
States of the European Communities. They are referred to
throughout that Title as the High Contracting Parties ("the
parties"), the designation usually applied to states in
international treaties. The long term aim and objective of
Title III is the formation of a European union. It is not in issue
that if the State were to join such a union, a constitutional
amendment would be necessary, but a European union is
neither sought to be created nor is it created by the Treaty.
There has been European Political Cooperation (EPC) since
October, 1970, (prior to the entry of the State to the
Communities), when the first report of the Foreign Ministers
of the Members States was adopted at Luxembourg. In that
report the governments undertook to co-operate in the field
of foreign policy by consulting regularly, harmonising views
and opinions, concerting attitudes, and, where possible,
undertaking joint action. There were three subsequent
reports in 1973, 1981 and 1983, and Article I of the SEA
provided that political co-operation should be governed by
Title III and that the provisions of that Title should confirm
and supplement the procedures agreed in the four reports
and the practicesgradually established among the Member
States. The purpose of Title III which is entitled "Treaty
Provisions on European Cooperation in the sphere of foreign
policy" appears to be to formalise the procedures and
practices of the EPC and to do so by means of a treaty. By
virtue of Article 32 of the SEA, nothing in Title III is to affect
the Treaties establishing the Communities, so it does not
purport to amend the Treaties in any way.
Details or summaries of the provisions of Article 30 have
been included in the judgments already delivered and I do
not propose to repeat them, although I will refer to some of
those provisions. The language used in
[1987]
1 I.R.
Griffin J.
790
S.C.
Article 30 would appear to have been chosen with extreme
care to ensure that the obligations of the parties under the
treaty would permit the utmost freedom of action to each of
the parties in the sphere of foreign policy, and is in stark
contrast to that used in Title II. For example, the parties are
to endeavour to formulate and implement a foreign policy; to
inform andconsult each other on foreign policy matters;
consultations are to take place before deciding on their final
position; they are to endeavour to avoid any action or
position which impairs their effectiveness as a cohesive
force; they are as far as possible to refrain from impeding a
consensus; in international institutions and at international
conferences they are to endeavour to adoptcommon
positions on the subjects covered by the Title, and where not
all the parties participate in such institutions or conferences,
they are to take full account of positions agreed in EPC. On
security, the parties are expressed to be ready to co-ordinate
their positions more closely on the political and economic
aspects of security military and defence aspects of
security are not included and in my view should accordingly
be considered to be excluded. Under clause 6 (c) nothing in
Title III is to impede closer co-operation in the field of
security between certain of the parties within the framework
of the Western European Union or the Atlantic Alliance
this provision would appear clearly to have been inserted to
ensure that the declared stand on neutrality and military
alliances taken by the State is fully respected, as the State is
the only party which is not a member of either alliance,
although four other parties are also not members of the
Western European Union.
Having regard to the terms in which the provisions of Title III
are expressed, I am in complete agreement with the Chief
Justice in concluding that those provisions do not impose any

obligations to cede any sovereignty or national interest in
the field of foreign policy, nor do they in any way allow a
decision of the State on any issue of foreign policy to be
overridden or vetoed. The Treaty, being an international
agreement to which the State is a party, has been laid before
and been approved by Dil ireann in compliance with
the provisions of Article 29, s. 5, sub-ss. 1 and 2 of the
Constitution. The Government is therefore, in my opinion, as
the organ of government by which the executive power of
the State is to be exercised pursuant to Article 29, s. 4 of the
Constitution, entitled to ratify the Treaty without the
necessity of an amendment of the Constitution.
However, there remains, as the Chief Justice pointed out in
his judgment, an issue of a fundamental nature, i.e., as to
whether the Court is entitled, at the instance of the plaintiff,
to prevent the Government from ratifying the Treaty. In
presenting the argument on behalf of the plaintiff, his
counsel Mr. Browne, in relation to Title III, based his right to
seek the intervention of this Court to prevent ratification of
the Treaty on an apprehension on the part of the plaintiff
that Title III would affect the independence of the State in
relation to foreign policy, even though, as he
[1987]
1 I.R.
Griffin J.
791
S.C.
put it, the Treaty had not become part of the domestic law
of the State under Article 29, section 6. This brings into
question the power of the Court to intervene in the acts of
the Executive and inevitably to consideration of the
separation of powers provided for in the Constitution.
Article 6 of the Constitution reads as follows:
"1. All powers of government, legislative, executive and

requirements of the common good.
2. These powers of government are exercisable only by or
on the authority of the organs of State established by this
Constitution."
The effect of this Article has been considered and
interpreted in a number of cases, which include Buckley and
Others (Sinn Fin) v. Attorney General [1950] I.R. 67 and
Boland v. An Taoiseach [1974] I.R. 338. In Buckley's Case
O'Byrne J. delivered the judgment of the Court and said at p.
81 that the object of Article 6 was:
". . . to recognise and ordain that, in this State, all powers of
government should be exercised in accordance with the wellrecognised principle of the distribution of powers between
the legislative, executive and judicial organs of the State and
to require that these powers should not be exercised
otherwise. The subsequent articles are designed to carry into
effect this distribution of powers."
Under Article 15, s. 2, sub-s. 1 the Oireachtas is the organ of
State in which the sole and exclusive power of making laws
is vested. Article 15, s. 4, sub-s. 1 provides that the
Oireachtas shall not enact any law which is in any respect
repugnant to the Constitution or to any provision thereof;
and sub-s. 2 of that section provides that every law enacted
by the Oireachtas which is in any respect repugnant to the
Constitution or to any provision thereof shall, but to the
extent only of such repugnancy, be invalid. Under Article 34,
s. 1 the judicial power of government can be exercised only
by judges duly appointed in the manner provided by the
Constitution in courts established by law under the
Constitution. The High Court and this Court on appeal from
the High Court are by Article 34, s. 3, sub-s. 2 expressly
given jurisdiction to examine the validity of any law enacted
under Article 15 which may be challenged as being
repugnant to the Constitution or to any provision thereof. If
the challenged Act or any provision thereof is found to be
invalid by the High Court or by this Court, the Court so
finding is bound to declare that the impugned Act or
provision thereof is invalid. Those Articles provide the only
power given to the Courts by the Constitution to declare

invalid legislation enacted by the Oireachtas.
In the case of a Bill referred to this Court by the President,
pursuant to Article 26 of the Constitution, for a decision on
the question as to whether such Bill or any specified
provision or provisions of such Bill is or are
[1987]
1 I.R.
Griffin J.
792
S.C.
repugnant to the Constitution or to any provision thereof,
this Court is by Article 26, s. 2, sub-s. 1 given express power,
and has the duty, to consider such question and pronounce
its decision on such question. This is the only power given to
any Court to consider a Bill which has not yet become law.
In my opinion, the Courts have no power, either express or
implied, to interfere with the Oireachtas in the course of the
passage of a Bill, and all efforts seeking to prevent by Court
interference the introduction or passage of a Bill have failed,
the most recent example being the unsuccessful attempt by
the plaintiff in this case to prevent the introduction of the
European Communities (Amendment) Bill, 1986.
Article 28, s. 2 provides that the executive power of the
State shall, subject to the provisions of the Constitution, be
exercised by or on the authority of the Government. Under s.
4, sub-s. 1 of Article 28 the Government shall be responsible
to Dil ireann . Article 29, s. 4, sub-s. 1 provides that
the executive power of the State in or in connection with its
external relations shall in accordance with Article 28 of the
Constitution be exercised by or on the authority of the
Government.
No express power is given by the Constitution to the Courts
to interfere in any way with the Government in exercising
the executive power of the State. However, the Government,
and all of its members and the administration in respect of
which the members are responsible, are subject to the
intervention of the Courts to ensure that in their actions they

keep within the bounds of lawful authority. Where such
actions infringe or threaten to infringe the rights of individual
citizens or persons, the Courts not only have the right to
interfere with the executive power but have the
constitutional obligation and duty to do so. But that right to
interfere arises only where the citizen or person who seeks
the assistance of the Courts can show that there has been an
actual or threatened invasion or infringement of such rights.
As stated earlier, the executive power of the State in or in
connection with its external relations shall, in accordance
with Article 28, be exercised by or on behalf of the
Government. Under Article 29, s. 5, sub-s. 1 every
shall be laid before Dil ireann , and under sub-s. 2 of
that section the State shall not be bound by any
international agreement involving a charge upon public
funds unless the terms of the agreement shall have been
approved by Dil ireann , Dil ireann being the
body to which the Government is expressly answerable
under Article 28, s. 4, sub-s. 1. The constitutional scheme in
respect of international agreements would appear therefore
to be that the Government, exercising the executive power,
may enter into international agreements, but such
agreements must be laid before Dil ireann , and if the
agreement involves a charge on public funds, the State is
not to be bound by the agreement unless the terms of the
agreement have been approved of by Dil ireann .
[1987]
1 I.R.
Griffin J.
793
S.C.
The power of the Court to interfere with the exercise by the
Government of the executive power of the State was
considered by this Court in Boland v. An Taoiseach [1974]
I.R. 338. FitzGerald C.J., having referred to the statement of

O'Byrne J. in Buckley & Others (Sinn Fin) v. Attorney
General [1950] I.R. 67 and to the separation of the
executive, legislative and judicial powers of government in
Article 6 of the Constitution, said at p. 362:
And in the same case, I said at p. 370:
"Counsel for the defendants argued that in no
circumstances may the Courts interfere with the Government
in the exercise of its executive functions. For the purpose of
this action it is not necessary to determine this question in
the form in which the argument was made, as the
defendants need only show that the Courts cannot and
should not intervene having regard to the circumstances of
the present case. In the event of the Government acting in a
manner which is in contravention of some provisions of the
Constitution, in my view it would be the duty and right of the
Courts, as guardians of the Constitution, to intervene when
called upon to do so if a complaint of a breach of any of the
provisions of the Constitution is substantiated in proceedings
brought before the Courts."
I see no reason to resile from what is stated in that passage,
which was said in the context of an unqualified submission
by counsel for the defendants that it is no part of the
function of the judicial organ of the State to interfere with
the Government in the exercise by it of the executive power
of the State. In that case, in discussions arising out of that
submission, members of the Court put to counsel for the
defendants the example of a declaration of war by the
Government without the assent of Dil ireann , in clear
breach of the provisions of Article 28, s. 3 of the Constitution,
as being a circumstance in which the Court would be bound
to intervene to protect a citizen against what would
undoubtedly be an invasion of his rights and a justiciable
matter. I fully endorse the opinion of the Chief Justice that

there is nothing in the provisions of Articles 28 and 29 of the
Constitution from which it would be possible to imply any
general right in the Courts to interfere with the exercise of
the executive power in the sphere or area of external
relations, but that in any instance where the exercise of that
power constitutes an actual or threatened invasion or breach
of the constitutional
[1987]
1 I.R.
Griffin J.; Hederman J.
794
S.C.
rights of an individual the Courts must have both the right
and the duty to intervene to protect those rights. The
decision in Boland v. An Taoiseach [1974] I.R. 338 is in my
opinion consistent with that view.
In my judgment, the plaintiff has failed to establish any such
invasion or breach of any of his rights resulting from the
State being a party to the Treaty the provisions of which are
set out in Title III.
I would accordingly dismiss this appeal.
Hederman J.
I agree with the judgments of Walsh J. and Henchy J. for the
reasons given by them. There is little I can usefully add.
It appears to me that the essential point at issue is whether
the State can by any act on the part of its various organs of
government enter into binding agreements with other states,
or groups of states, to subordinate, or to submit, the exercise
of the powers bestowed by the Constitution to the advice or
interests of other states, as distinct from electing from time
to time to pursue its own particular policies in union or in
concert with other states in their pursuit of their own similar
or even identical policies.
The State's organs cannot contract to exercise in a
particular procedure their policy-making roles or in any way
to fetter powers bestowed unfettered by the Constitution.

They are the guardians of these powers not the
disposers of them. For the reasons already stated I would
allow the appeal.
[Editor's Note: On 25th May, 1987, in a referendum to
amend the Constitution by inserting a provision approving
the accession of Ireland to the Single European Act, the
number of votes cast in favour of the amendment was
755,423 and the number of votes against 324,977, the
amendment being thereby carried.]
Solicitors for the plaintiff: Moylan Whitaker.
Solicitor for the defendants: Chief State Solicitor.
anna Mulloy, B.L.
[1987] I.R.
MARY McGEE Plaintiff v. THE ATTORNEY GENERAL and THE

REVENUE COMMISSIONERS Defendants.
[1971 No. 2314 P]
8,9 June 1972
31 July 1972
6-9 Nov. 1973
19 Dec. 1973
Constitution - Statute - Validity - Contraception Personalrights - Privacy - Importation of contraceptives
prohibited- Customs Consolidation Act, 1876 (39 & 40 Vict.,
c. 36),ss. 42, 186 - Criminal Law Amendment Act, 1935 (No.
6),s. 17 - Constitution of Ireland, 1937, Articles 40-45.
Sub-section 1 of s. 17 of the Criminal Law Amendment Act,
1935, enacts that it shall not be lawful for any person to sell
or import into Ireland for sale, any contraceptive. Subsection 3 of that section provides that contraceptives shall
be deemed to be included among the goods which s. 42 of
the Customs Consolidation Act, 1876, prohibits to be
imported into Ireland, for any purpose, and that the penalty
provisions of the Act of 1876 shall apply accordingly.
The plaintiff, a married woman aged 27 years, had four

children. She was informed by her medical adviser that
another pregnancy would have serious physical results and
would put her life at risk. The plaintiff and her husband
decided that they would not have any more children, and the
plaintiff decided that she would use a diaphragm in
conjunction with an intra-uterine contraceptive jelly. As the
contraceptive jelly was not manufactured or available in
Ireland, the plaintiff ordered a supply of it from England.
When the packet containing the contraceptive jelly arrived in
Ireland by post, the packet was seized and confiscated by
the Customs authorities. The plaintiff brought an action in
the High Court in which she claimed a declaration that s. 17
of the Act of 1935 was inconsistent with the provisions of the
Constitution of Ireland, 1937, and had not been continued in
force by Article 50 of that Constitution.
Held by O'Keeffe P., in dismissing the claim, 1, that
the"freedom of conscience" which is guaranteed by sub-s. 1
of s. 2 of Article 44 of the Constitution is a freedom to choose
a religion and to act in accordance with its precepts; it is not
a freedom for the individual to act in furtherance of his
private welfare within the limits set by his own conscience.
2. That the provisions of s. 17 of the Act of 1935 do not
prohibit the use of contraceptives.
3. That the personal rights mentioned in sub-s. 1 of s. 3 of
Article 40 do not include a right of privacy of the nature
alleged by the plaintiff.
4. That s. 17 of the Act of 1935 was not inconsistent with
the authority of the family which is protected by sub-s. 2 of
s. 1 of Article 41.
On appeal by the plaintiff it was
Held by the Supreme Court (Walsh, Budd, Henchy and Griffin
JJ.; FitzGerald C.J. dissenting), in allowing the appeal, 1, that
the provisions of sub-s. 3 of s. 17 of the Act of 1935 were no
longer in force.
2. (Per Budd, Henchy and Griffin JJ.) That those provisions,
being an unjustified invasion of the plaintiff's personal right
to
[1974]
1 I.R.
McGee v. Attorney General
O'Keeffe P.
285
privacy in her marital affairs, were inconsistent with sub-s. 1
of s. 3 of Article 40 of the Constitution.
Griswold v. Connecticut (1965) 381 U.S. 479 considered.
3. (Per Walsh, Henchy and Griffin JJ.) The effect of the
provisions of s. 17 of the Act of 1935, as enacted, was to
make contraceptives unavailable although the section (lid
not prohibit the manufacture or the use of them.
Per Walsh J.Sub-section 3 of s. 17 of the Act of 1935, by
restricting unreasonably the availability of contraceptives for
use within marriage, was inconsistent with the provisions of
Article 41 of the Constitution because it was an unjustified
invasion of the privacy of the plaintiff and her husband in
their sexual relations.
Plenary Summons.
The facts have been summarised in the head-note and they
are described in the judgments, post. The plaintiff was born
on the 25th May, 1944, and her husband was born on the
24th October, 1943. The plaintiff married her husband in the
year 1968 and they had four children. The first son was born
on the 15th December, 1968; the second son was born on
the 2nd January, 1970; and the two (twin) daughters were
born on the 15th November, 1970. The defendants did not
allege that the plaintiff had committed any offence by
attempting to import the contraceptive jelly; it appeared that
the packet containing the jelly was marked by a label which
indicated to the Customs officials that inspection of the
contents was required.
Section 17 of the Criminal Law Amendment Act, 1935,
provides as follows:
"(1) It shall not be lawful for any person to sell, or expose,
offer, advertise, or keep for sale or to import or attempt to
import into Saorstt ireann [Ireland] for sale, any
contraceptive.
(2) Any person who acts in contravention of the foregoing
sub-section of this section shall be guilty of an offence under
this section and shall be liable on summary conviction
thereof to a fine not exceeding fifty pounds or, at the
discretion of the court, to imprisonment for any term not
exceeding six months or to both such fine and such
imprisonment and, in any case to forfeiture of
[1974]
1 I.R.
O'Keeffe P.
286
any contraceptive in respect of which such offence was
committed.
(3) Contraceptives shall be deemed to be included among
the goods enumerated and described in the Table of
Prohibitions and Restrictions Inwards contained in section 42
of the Customs Consolidation Act, 1876, and the provisions
of that Act (as amended or extended by subsequent Acts)
relating to the importation of prohibited goods shall apply
accordingly.
(4) In this section 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."
Sections 1 and 3 of Article 40 of the Constitution
provide:
"1. 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."
"3. 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."
Section 6 of Article 40 guarantees, subject to public order
and morality, liberty for the exercise of the following rightsthe right of citizens to express freely their convictions and
opinions, the right of citizens to assemble peaceably and
without arms, and the right of citizens to form associations
and unions.
Article 41 of the Constitution provides:
"1. 1 The State recognises 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.
[1974]
1 I.R.
O'Keeffe P.
287
2 The State, therefore, 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.
2. 1 In particular, the State recognises that by her life within
the home, woman gives to the State a support without which
the common good cannot be achieved.
2 The State shall, therefore, endeavour to ensure that
mothers shall not be obliged by economic necessity to
engage in labour to the neglect of their duties in the home.
3. 1 The State pledges itself to guard with special care the
institution of Marriage, on which the Family is founded, and
to protect it against attack.
2 No law shall be enacted providing for the grant of a
dissolution of marriage.
3 No person whose marriage has been dissolved under the
civil law of any other State but is a subsisting valid marriage
under the law for the time being in force within the
jurisdiction of the Government and Parliament established by

this Constitution shall be capable of contracting a valid
marriage within that jurisdiction during the lifetime of the
other party to the marriage so dissolved."
Article 42, ss. 1 and 2, of the Constitution provides:
"1. 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.
2. Parents shall be free to provide this education in their
homes or in private schools or in schools recognised or
established by the State."
Article 44, s. 2, of the Constitution provides:
"2. 1 Freedom of conscience and the free profession and
practice of religion are, subject to public
[1974]
1 I.R.
O'Keeffe P.
288
order and morality, guaranteed to every citizen.
2 The State guarantees not to endow any religion.
3 The State shall not impose any disabilities or make any
discrimination on the ground of religious profession, belief or
status."
"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.
1. 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 . . .
4. 1 The State pledges itself to safeguard with especial care

the economic interests of the weaker sections of the
community, and, where necessary, to contribute to the
support of the infirm, the widow, the orphan, and the aged.
2 The State shall endeavour to ensure that the strength and
health of workers, men and women, and the tender age of
children shall not be abused and that citizens shall not be
forced by economic necessity to enter avocations unsuited
to their sex, age or strength."
Article 50, sub-s. 1, of the Constitution provides:"1.
Subject to this Constitution and to the extent to which they
repealed or amended by enactment of the Oireachtas."
S. MacBride S.C. and D. P. M. Barrington S.C. (with them A.
Kennedy ), for the plaintiff, referred to Griswold
[1974]
1 I.R.
O'Keeffe P.
289
v. Connecticut 1; Ryan v. The Attorney General 2; Murtagh
Properties Ltd. v. Cleary 3; The State (Nicolaou) v. An Bord
Uchtla 4; Buckley and Others (Sinn Fin) v. The Attorney
General .5
T. J. Conolly S.C. (with him N. St. J. McCarthy S.C. and A. F.
Browne ), for the Attorney General, referred in addition to
The State (Sheerin) v. Kennedy 6; and Attorney General v.
Southern Industrial Trust Ltd. 7
R. N. Cooke S.C. (with him D. P. Sheridan S.C. andJ. S.
Geraghty ), for the Revenue Commissioners.
Cur. adv. vult.
O'Keeffe P. :
31 July
The plaintiff in this action is a young married woman whose
husband is a fisherman. They were married in 1968 and have
four children. The first of these was a son who was born
prematurely in December, 1968. The second was also a son
who was born in January, 1970, and the remaining two are
twin girls who were born in November, 1970. The plaintiff
has had a tendency to toxaemia on each pregnancy, and
during her second pregnancy she had what appears to have
been either a cerebral thrombosis or a cerebral spasm with a
degree of hypertension; not unnaturally, she fears that if she
becomes pregnant again her life will be in danger. Her
medical adviser has counselled her against having a further
pregnancy.
The plaintiff and her husband, therefore, decided not to
have any more children. However, the plaintiff feels that it
would be unfair to her husband and herself to cease to have
intercourse with her husband, and she has decided to have
resort to artificial methods of prevention of conception. Her
medical adviser considers that for her the use of "the pill"
would involve a high risk of thrombosis, and she decided to
use a diaphragm with a
[1974]
1 I.R.
O'Keeffe P.
290
spermicidal jelly. Her doctor fitted a suitable diaphragm and
gave her a small supply of a spermicidal jelly, and a
prescription for a further supply of jelly. She sent this
prescription to England, but when the jelly was sent to her
through the post it was seized by the second defendants
since contraceptives are included in the list of prohibited
goods under s. 42 of the Customs Consolidation Act, 1876,

by virtue of s. 17, sub-s. 3, of the Criminal Law Amendment
Act, 1935. Following upon the seizure, representations were
made to the second defendants by the plaintiff and by her
doctor on her behalf, but the second defendants considered
themselves unable to release the jelly by reason of the
prohibition imposed by s. 17 of the Act of 1935. The plaintiff
then took the present proceedings in which she claims a
declaration that the provisions8 of s. 17 of the Act of 1935 is
contrary to the provisions of the Constitution, and that it was
not continued in force by Article 50 of the Constitution, and
that it no longer forms part of the law of the State.
The plaintiff relies upon Articles 40, 41, 42, 44 and 45 of the
Constitution, and says that s. 17 of the Act of 1935 is
inconsistent with these Articles. [The judge referred to s. 17
of the Act of 1935 and to the following sections9of the
Constitution of Ireland:Sections 1 and 3 of Article 40; s. 1
of Article 41; s. 1 of Article 42; and sub-s. 1 of s. 2 of Article
44] Article 45, which is also relied on, comes under the
heading of Directive Principles of Social Policy and is
prefaced as follows: "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." The Irish version
of this provision differs somewhat from the English, and
under the provisions of the Constitution the Irish text
prevails. The difference is in the final part of the paragraph,
where the Irish text reads: "agus n hintriailte ag Cirt
ar bith ceist i dtaobh an fheidhmithe sin f aon fhorileamh
[1974]
1 I.R.
O'Keeffe P.
291
d'fhoriltbh an Bhunreachta so." This appears to exclude
from the cognisance of the Courts only questions as to the

attempts of the Oireachtas to have regard to the principles
laid down in the course of framing legislation, and it may be
argued that it does not preclude the consideration of these
principles by the Courts when a statute of the Oireachtas is
not under review. Section 4 of Article 45 appears to be the
section to which the plaintiff's advisers draw particular
attention. In relation to Article 45, let me say at once that I
do not consider that it has any relevance to the problem
involved in this case. Even if it should be thought that the
directive principles in Article 45 may be taken into account
by the Courts, and I consider that in a case such as this they
cannot be, I do not consider that the principles enunciated
have any bearing on the question posed. Therefore, I must
leave Article 45 out of consideration.
Article 44 was strongly relied on by counsel for the plaintiff.
Freedom of conscience, according to counsel, means
freedom to decide on a course of action and to act
accordingly. In the context of this case, according to counsel,
it means freedom to decide what is best in the interests of
one's husband and family, and to act accordingly. One must
accept that in the serious predicament in which she finds
herself, the plaintiff has decided that the correct course for
her to adopt, in the interests of herself and her family, is to
take effective steps to ensure that she will not again
conceive a child and so put her life in jeopardy; at the same
time she does not wish to deny to her husband, or to herself,
the natural life of a married couple. This I do accept. I
believe that the plaintiff considered the courses open to her
fully before coming to a decision, and that her decision was
what she considered to be the best decision open to her in
the circumstances. The fact that the decision of the plaintiff
was a serious and conscientious one made in the interests of
her family does not, in my view, make the matter one of
conscience in the context of Article 44 of the Constitution.
Freedom of conscience in that context means freedom to
choose a religion and to act in accordance with its precepts;
it does not mean freedom to arrive at decisions on matters
of one's private welfare and to act
[1974]
1 I.R.
O'Keeffe P.
292
accordingly. I consider that Article 44 has no relevance to
the present action.
Article 42 was not seriously relied on at the hearing. The
Articles which were seriously relied on were Articles 40 and
41. The submission of the plaintiff was to the effect that the
right to privacy was one of the unenumerated rights
guaranteed to citizens under Article 40, and that s. 17 of the
Act of 1935 was inconsistent with that right. It was further
submitted that the section was inconsistent with the
authority of the family guaranteed by sub-s. 2 of s. 1 of
Article 41 and that, for this reason, it was not part of the law
of the State. This latter submission does not appear to me to
be one of any real substance.
Griswold v. Connecticut 10 was cited in support of the
submissions relating to Article 40. In that case the United
States Federal Supreme Court held, by a majority, that one
of the fundamental rights guaranteed by the United States
Constitution was the right to privacy, and that legislation
making it illegal to use contraceptives was an infringement
of that right. It was pointed out that the legislation did not
make the sale of contraceptives illegal, but interfered with
the privacy of marital relations by making their use unlawful.
The majority took the view that the statutes impugned dealt
with a particularly important and sensitive area of
privacythat of the marital relation and the marital home.
Accordingly, in the view of the Supreme Court of the United
States the legislation was unconstitutional. Whether the right
to privacy in this sense is one of the personal rights
guaranteed by our Constitution is a matter for consideration.
In my view, one must look at the state of public opinion at
the time of the adoption of the Constitution in order to
determine whether the effect of its adoption was to remove
from the statute book a section of the Act of 1935: see the
principles of construction applied by the Supreme Court in
O'Byrne v. The Minister for Finance .11 The section impugned
was barely two years on the statute book when the
Constitution was adopted. If the submission of the plaintiff is
correct, then public opinion as to what were fundamental
rights must
[1974]
1 I.R.
O'Keeffe P.
293
Supreme Court
have been such as to require that the rights guaranteed to
individuals by the Constitution were inconsistent with the
continued legality of the section. I consider that the best test
of the position is to be found in the views expressed when
the section was being passed into law since, in point of time,
this was so close to the enactment of the Constitution by the
people. I find that the section was adopted without a
division, although it was technically opposed. I cannot think
that this reflects a public opinion in favour of the existence
of such a right of privacy as is alleged by the plaintiff to be
guaranteed under the Constitution. I would further point out
that the section impugned in the present case is not the
same as that in Griswold's Case .12 Section 17 of the Act of
1935 does not outlaw the use of contraceptives. It forbids
their sale or importation and nothing more.
In my view, the section impugned is not inconsistent with
the Constitution, and the plaintiff's action fails. However, it
must be made clear that this does not involve any
declaration that legislation cannot be enacted by the
Oireachtas which would have the effect of repealing the
section impugned. All that I decide is that the section, as it
stands, is not inconsistent with the Constitution.
The plaintiff appealed to the Supreme Court from the
judgment and order of the High Court. At the request of the
Supreme Court the plaintiff lodged, with her books of appeal,

a written summary of the submissions on the constitutional
issue to be made at the hearing of the appeal.
The summary was in the following terms:
"1. The Criminal Law Amendment Act, 1935, is a preConstitution statute and therefore enjoys no presumtion of
constitutionality: The State (Sheerin) v. Kennedy .13
2. Section 17 of the Criminal Law Amendment Act, 1935,
was carried forward on the 29th December, 1937, only if not
inconsistent with the Constitution or with any provision
thereof.
3. In deciding whether a piece of legislation is or is
[1974]
1 I.R.
O'Keeffe P.
294
Supreme Court
not consistent with the Constitution one looksnot to the
State of public opinion in 1937but to the Constitution and
to the principles enshrined in it. The interpretation of the
Constitution is a matter for the Courts: O'Byrne v. Minister
for Finance 14; Exham v.Beamish .15
4. In the present case the plaintiff and her husband, being
faced with a cruel problem, made what they considered to
be the best decision in the interest of their family. The
learned President accepted that the plaintiff considered fully
the courses open to her and that her decision was what she
considered to be the best decision open to her in the
circumstances. Her husband agreed with it.
5. The plaintiff and her husband were the appropriate
persons to make this decision on behalf of the family. They
did make it.
6. The State in Article 41 of the Constitution guarantees to
protect the family in its constitution and authority. Section 17
of the Criminal Law Amendment Act, 1935, by deliberately
frustrating a decision made by the appropriate authority in
the family on behalf of the family and touching a matter of
vital importance to the family, attacks the family in its

constitution and authority. The attack is all the more serious
as the section purports to impose criminal penalties.
7. The family possesses inalienable and imprescriptible
rights antecedent and superior to positive law. While those
rights are not specified in the Constitution they must include
the right to make the kind of decision in the interests of the
family which the plaintiff and her husband made in the
present case: Ryan v. The Attorney General .16
8. Among the unspecified rights guaranteed to the
individual by Article 40, s. 3, of the Constitution is the right
to marry: Ryan v. The Attorney General .16
9. The right to marry necessarily implies the right of the
spouses to each other's society and to order their family and
rear their children in a responsible way. These are
[1974]
1 I.R.
O'Keeffe P.
295
Supreme Court
rights which the State guarantees absolutely to respect and
to defend and vindicate as far as practicable.
10. Section 17 of the Criminal Law Amendment Act, 1935,
fails to respect the rights set out in paragraph 9, and fails to
defend and vindicate them as far as practicable: O'Brien v.
Keogh .17
11. The American Federal Supreme Court has ruled certain
State laws against contraception to be unconstitutional as an
invasion of the right of privacy of married people: Poe v.
Ullman 18; Griswold v. Connecticut 19; Eisenstadt v. Baird .
20
12. The same line of reasoning supports the authority
claimed for parents at paragraph 5 and the rights claimed at
paragraph 9.
13. The American cases also decided that laws which
interfere with the family and with the private laws of married
people require special justification. No such justification has
been offered in the present case.

14. The decision of the plaintiff and her husband in the
present case was a responsible decision as to how they
should live; it was made after due consideration and after
seeking advice. It was therefore a matter of conscience and
was entitled to the protection of Article 44, s. 2, of the
Constitution. Freedom of conscience necessarily implies the
right, subject to public order and morality, to live in
accordance with one's conscience. No question of public
order or morality is involved in a decision by married people
to import contraceptives for their own private use. No such
question has been pleaded and no evidence adduced to
support any such contention. Section 17, sub-s. 3, of the
Criminal Law Amendment Act, 1935, therefore violates
Article 44, s. 2, of the Constitution: Quinn's Supermarket v.
The Attorney General .21
15. Section 17 fails to have regard to the plaintiff's
weakened physical capacity. In failing to distinguish her case
from other cases, it violates s. 1 of Article 40. To attempt to
impose an artificial uniformity is the essence of inequality:
The State (Nicolaou) v. An Bord Uchtla .22
[1974]
1 I.R.
O'Keeffe P.
296
Supreme Court
16. Section 17, as it affects the plaintiff in the present case,
is not only unjust but is cruel and unnecessary. It cannot
therefore be reconciled with the preamble to the
Constitution: Buckley and Others (Sinn Fin) v. The
Attorney General .23
17. It is also inconsistent with Article 45 of the Constitution:
Murtagh Properties Ltd. v. Cleary .24"
S. MacBride S.C. and D. P. M. Barrington S.C. (with them A.
Kennedy ), for the plaintiff:
The Criminal Law Amendment Act, 1935, does not attract

any presumption of constitutionality: The State (Sheerin) v.
Kennedy .25 Section 17 of that Act did not continue to be in
force after the Constitution came into operation unless the
provisions of the section were consistent with the provisions
of the Constitution: see Article 50. If the provisions of s. 17
are inconsistent with the provisions of the Constitution, the
section will be inoperative whatever were the circumstances
existing at the date of the enactment of the Act of 1935 or
the state of public opinion at that time.
Article 40, s. 3, sub-s. 1, of the Constitution 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. It is submitted that the State's duty to
respect the personal rights of a citizen is absolute. The
personal rights to which Article 40, s. 3, refers, include rights
which are not expressly mentioned in the Constitution: Ryan
v. The Attorney General .26 The right to marry involves
necessarily the right of each spouse to the society of the
other and the right to decide whether to have a family or
not; it also involves a right to decide the extent or size of the
family. For these rights to be capable of being exercised fully
it is necessary that contraceptive methods are available for
use by married couples. It is submitted that these rights are
vested in every married citizen (including the plaintiff)
irrespective of the citizen's state of health and that,
[1974]
1 I.R.
O'Keeffe P.
297
Supreme Court
a fortiori, these rights are vested in citizens having particular
health problems such as those of the plaintiff.
No question of public morality or the common good arises in
this case. The plaintiff made a considered and serious
decision to import a contraceptive for her own use and with
the agreement of her husband. That decision was made in
accordance with the dictates of her own conscience, in

accordance with her judgment as an adult wife and mother,
and in conformity with her rights under the Constitution.
[They referred to Articles 40-45 of the Constitution and to
Quinn's Supermarket v. The Attorney General 27; Buckley
and Others (Sinn Fin) v. The Attorney General 28; The
State (Nicolaou) v. An Bord Uchtla 29; Poe v. Ullman 30;
Griswold v. Connecticut 31; Eisenstadt v.Baird 32; O'Byrne
v. Minister for Finance 33; Exham v.Beamish 34; O'Brien v.
Keogh 35; Murtagh Properties Ltd.v. Cleary 36; McCombe v.
Sheehan 37; Melling v.O Mathghamhna 38 and Frailey v.
Charlton 39]
T. J. Conolly S.C. and N. St. J. McCarthy S.C. (with them A. F.
Browne ) for the Attorney General:
Article 45 of the Constitution contains certain principles of
social policy for the guidance of the Oireachtas when
enacting legislation. That article states that 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 the Constitution.
The plaintiff's action amounts to an attempt to secure
judicial interference in a matter which is within the exclusive
domain of the legislature. The plaintiff's state of health is not
relevant to the issues raised in this case. Section 17 of the
Criminal Law Amendment Act, 1935, has the effect of
prohibiting the importation of contraceptives; it is clear that
that enactment was so framed in order to implement the
social policy of the legislature. In the light of modern
knowledge
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the legislature would be justified in prohibiting the
importation of tobacco as a matter of social policy; any
enactment to that effect would be intended to protect the
life of the citizen in accordance with the provisions of Article

40, s. 3, of the Constitution and no citizen could negative the
enactment by asserting a mere personal right.
The enactment which is attacked does not forbid the use of
contraceptives. The American cases which have been cited
are not appropriate to the facts of this case.
Article 44 of the Constitution is concerned with freedom of
conscience only within the context of the free profession and
practice of religion. While abortion might not be in conflict
with the conscience of a particular individual, that does not
prevent the legislature from enacting a prohibition of
abortion as a matter of social policy.
It is submitted that the plaintiff has not established any
right which is infringed by s. 17 of the Act of 1935. [They
referred to The State (Sheerin) v. Kennedy 40; Buckley and
Others (Sinn Fin) v. The Attorney General 41; McDonald
v. Bord na gCon 42; The People (Attorney General) v. Bell
43; Byrne v. Ireland 44; In re May 45 and In re O Laighleis
46]
R. N. Cooke S.C. and D. P. Sheridan S.C. (with themJ. S.
Geraghty ) for the Revenue Commissioners:
An examination of the preamble to the Constitution and of
Article 6 and the other Articles shows that the Constitution
requires that the private or personal rights of citizens must
always be subject to the requirements of the common good
and of public morality. Therefore, any assumed right to use
contraceptives is not an absolute right but may be curtailed
or overridden by the legislature in giving effect to a
particular social policy or policy of public morality.
Cur. adv. vult.
FitzGerald C.J. :
19 Dec.
This is an appeal by the plaintiff from the judgment and
order of the President of the High Court dismissing
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her action against the defendants. The plaintiff is a married
woman aged 27 years, who lives with her husband, a
fisherman, and their children at Loughshinny, Skerries,
County Dublin. She was married in the year 1968, and has
four children. The first two children of the marriage were
boys; the third and fourth were twin girls who were born on
the 15th November, 1970. The parents and children are all
Irish citizens and of the Roman Catholic religion.
In her statement of claim the plaintiff pleaded that her
second and third pregnancies were complicated by serious
attacks of cerebral thrombosis; that the second caused a
temporary paralysis, and that the third caused toxaemia with
high blood pressure and a threat of cerebral thrombosis. She
alleged that she had been warned by her medical adviser
that her life would be in danger if she were to become
pregnant again. She further alleged that, having considered
this advice, she and her husband decided that they should
have no more children and would resort to the use of
contraceptives. She further alleged that her doctor
prescribed the use of a diaphragm together with a
contraceptive jelly known as "Staycept Jelly", and that he
supplied her with a quantity of it. At the trial her evidence,
the evidence of her husband, and the evidence of her doctor,
duly established the case which she had pleaded. She
further pleaded, and adduced evidence to support her plea,
that when she attempted to import a quantity of "Staycept
Jelly" it was seized by the customs authorities, and that they
refused her application to release it on the ground that its
importation was prohibited by s. 17, sub-s. 35 of the Criminal
Law Amendment Act, 1935. The plaintiff claims a declaration
that s. 17 of the Act of 1935 is inconsistent with the
Constitution and that, therefore, it was not carried forward
by Article 50 of the Constitution, and that it no longer forms

part of the law of the State. She further claims a declaration
that the seizure by the second defendants of the packet of
jelly was unauthorised by law and illegal, and she claims
damages for its detention or conversion.
It is clear that s. 17 of the Act of 1935 was part of the law of
Saorstt ireann between the year 1935 and
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the coming into operation of the Constitution in 1937 and
that, therefore, it would be carried forward by the
provisions47 of s. 1 of Article 50 of the Constitution unless it
was inconsistent with the Constitution. [The Chief Justice
quoted s. 17 of the Act of 1935, and continued . . .] It is to be
observed that the section does not prohibit the manufacture
of a contraceptive, nor does it prohibit the use of a
contraceptive. In my opinion, it was clearly directed against
the market in contraceptives by prohibiting their importation
or sale. If it was intended to prohibit the manufacture or use
of contraceptives, I have no doubt that the section would
have so stated. There was evidence, and it appears to be the
fact, that the"Staycept Jelly" which the plaintiff endeavoured
to import is not manufactured in this country; presumably
that is so because a manufacturer could not sell the product
lawfully. There was no evidence of the elements or
constituents of which the jelly was composed. Consequently,
it does not appear to me to have been established that the
plaintiff, or anybody else who took the trouble of having it
analysed, should not proceed to make it and distribute it, if
so minded, so long as there was no sale.
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
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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
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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
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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

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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
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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.
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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 Saorstt
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
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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 Saorstt ireann 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
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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
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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
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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 Fin)
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.
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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
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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
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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.
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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
[1974]
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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
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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
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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 reaffirmation 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
[1974]
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Walsh J.
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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 Fin) 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
[1974]
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Walsh J.
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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
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1 I.R.
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320
Supreme Court
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, subs. 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
[1974]
1 I.R.
Budd J.
321
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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, subs. 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 Saorstt ireann 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
[1974]
1 I.R.
Budd J.; Henchy J.
322
Supreme Court
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
[1974]
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Henchy J.
323
Supreme Court
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
rights of the citizen."
[1974]
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Henchy J.
324
Supreme Court
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.
[1974]
1 I.R.
Henchy J.
325
Supreme Court
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
[1974]
1 I.R.
Henchy J.
326
Supreme Court
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
[1974]
1 I.R.
Henchy J.
327
Supreme Court
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
[1974]
1 I.R.
Henchy J.
328
Supreme Court
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
[1974]
1 I.R.
329
Supreme Court
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.
Griffin J. :
The plaintiff is a young woman aged 29 and she resides with
her husband, a share fisherman aged 30, at Loughshinny in
the County of Dublin. The plaintiff and her husband have
four children who reside with them in a mobile home. These
four children were all born to the plaintiff between
December, 1968, and November, 1970a period of only 23
months. With each of her three pregnancies the plaintiff had
very serious complications.
Prior to the birth of her first child in December, 1968, she
developed toxaemia, a urinary tract infection and high bloodpressure; her second child was born in January, 1970, and
during the currency of this pregnancy she again developed
toxaemia, a cerebral thrombosis or stroke, and a
continuation of her high blood-pressure, and she was lucky
to have survived. After the birth of her second child, having
regard to her medical condition, she was advised by her
doctor that a further pregnancy would be extremely unwise

because of the risk of recurrence of the cerebral thrombosis
which, if not fatal, would be likely to result in paralysis. She
discussed with her doctor the best methods to avoid another
pregnancy. She was unable to operate properly the
temperature method of birth control and, because of her
history of thrombosis,
[1974]
1 I.R.
Griffin J.
330
Supreme Court
oral contraceptives were unsuitable for her. She was advised
to use a diaphragm and, after serious consideration of the
entire matter and consultation with her husband, she
decided to be fitted with a diaphragm. Having reached this
decision with her husband, she went to see her doctor who
discovered on this visit that the plaintiff was again pregnant.
This visit was made in April, 1970, which was only three
months after the birth of her second child. It is not difficult to
imagine how upset and concerned the plaintiff was when this
information was conveyed to her. During this pregnancy she
also developed an infection and toxaemia, and she was very
ill. She gave birth to twins, which were premature, on the
15th November, 1970. She had very serious complications
during and subsequent to the birth of the twins.
In view of the birth to the plaintiff of four children between
December, 1968, and November, 1970, and having regard to
the risk to her life and health in the event of her becoming
pregnant again, the plaintiff and her husband decided that
they should have no more children. She was fitted with a
diaphragm by her doctor but with this it is necessary to use
a spermicidal jelly which was duly prescribed for her. This is
not manufactured within the State so it was necessary to
import it from England. As this jelly is a "contraceptive"
within the meaning of sub-s. 4 of s. 17 of the Criminal Law
Amendment Act, 1935, it was impounded by the Customs
authorities. Representations on behalf of the plaintiff were

made to the Customs authorities but, having regard to the
absolute prohibition against importation, the Customs
authorities had no alternative but to seize the goods as they
were powerless to allow importation of the jelly.
In consequence the plaintiff instituted these proceedings
and her claim, put in general terms, is based on a
submission that s. 17 of the Act of 1935 constitutes a
violation of her fundamental rights under Articles 40-44 of
the Constitution and is inconsistent with these Articles, and
also violates Article 45. For the purpose of this case, I do not
consider it necessary to consider Articles 42, 43, 44 or 45 of
the Constitution.
[1974]
1 I.R.
Griffin J.
331
Supreme Court
The Act of 1935 is entitled: "An Act to make further and
better provision for the protection of young girls and the
suppression of brothels and prostitution, and for those and
other purposes to amend the law relating to sexual
offences." The long title of the Act would seem to suggest
that the Act would have little relevance to the intimate
relations between the plaintiff and her husband. Sub-section
1 of s. 17 of the Act of 1935 is aimed only at the sale of
contraceptives or their importation for sale.70 Sub-section 2
of s. 17 provides that any person who acts in contravention
of sub-s. 1 commits an offence, and it provides for the
penalties on conviction. Sub-section 3 of s. 17 provides
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 . . ." Sub-section 4 of s.
17 defines the word "contraceptive."
By s. 42 of the Act of 1876, the goods enumerated and
described in the "Table of Prohibitions and Restrictions

Inwards" are thereby prohibited to be imported or brought
into the State so that, once contraceptives are included in
this table, the importation of contraceptives into the State is
totally prohibited. It is to be noted that whereas in sub-s. 1 of
s. 17 of the Act of 1935 importationfor sale is dealt with,
there is no such limitation in respect of sub-s. 3 of section
17. Section 186 of the Act of 1876 provides (inter alia) that
every person who shall import or bring or be concerned in
importing or bringing into the State any prohibited goods,
contrary to such prohibition, or shall knowingly acquire
possession of any such goods, shall for each such offence
incur the penalties specified in the section. Many other
offences are provided for in this section, but I have included
or dealt with only those that are relevant to the present
case. Having regard to the decisions in Frailey v. Charlton 71
and Attorney General v. Deignan 72, the offences of
importing or bringing prohibited goods into the State or
knowingly acquiring possession of them are committed only
where
[1974]
1 I.R.
Griffin J.
332
Supreme Court
there is an intent "to evade any prohibition applicable to
such goods."
It is to be noted that s. 17 of the Act of 1935 does not
prohibit the use of contraceptives. The prohibitions are
against sale, distribution for sale, importation for sale (sub-s.
1), or importation for any purpose (sub-s. 3). There is no
prohibition against manufacture within the State; but if
contraceptives were manufactured within the State they
could not be sold or distributed for sale or exposed, offered,
advertised or kept for sale. The net effect of sub-ss. 1 and 3
of s. 17 of the Act of 1935 is to ensure effectively that no
person can lawfully obtain contraceptives for use within the
State. If the plaintiff brings or imports contraceptives into the

State, or knowingly acquires possession of contraceptives
brought in or imported by another person, she commits an
offence under s. 186 of the Act of 1876.
The Act of 1935 was enacted prior to the date of the coming
into operation of the Constitution and, therefore, there is no
presumption of constitutionality in respect of it. The effect of
Article 50 of the Constitution73 is that any laws in force prior
to the coming into operation of the Constitution shall not be
continued in force and effect if they are inconsistent with the
Constitution. The plaintiff submits that s. 17 of the Act of
1935 is inconsistent with the provisions of s. 3 of Article 40
of the Constitution and that, therefore, it was not continued
in force when the Constitution came into operation.
[The judge referred to s. 3 of Article 40 of the Constitution,
and continued . . .] One of the "personal rights"claimed on
behalf of the plaintiff is the right of privacy in her marital
relations with her husband. The Constitution does not define
the personal rights which are guaranteed by Article 40.
However, it was pointed out by Mr. Justice Kenny in Ryan v.
The Attorney General 74at p. 313 of the report that the
general guarantee in Article 40, s. 3, extends to rights not
specified in Article 40, and that 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 all. On the hearing of the appeal in that case,
this Court
[1974]
1 I.R.
Griffin J.
333
Supreme Court
agreed (p. 344) with Mr. Justice Kenny that the personal
rights mentioned in sub-s. 1 of s. 3 of Article 40 are not
exhausted by the enumeration of "life, person, good name,
and property rights" in sub-s. 2 of s. 3, nor by the more
detached treatment of specific rights in the subsequent
sections of Article 40: see also O'Brien v.Keogh .75 The

Courts have not attempted to define with exactitude or to
make a list of the rights which may properly be included in
the category of personal rights, but Mr. Justice Kenny
instanced the right to bodily integrity and the right to marry.
It seems to me that the right of married persons to establish
a home and bring up children is inherent in the right to
marry. In so far as the plaintiff is concerned, the questions of
whether the right of privacy in relation to her intimate
relations with her husband is one of the unspecified rights
referred to in sub-s. 1 of s. 3 of Article 40 and, if so, whether
such right has been violated by s. 17 of the Act of 1935 are
essentially the matters for determination in this action.
In my opinion, the right of marital privacy is one of the
personal rights guaranteed by sub-s. 1 of s. 3 of Article 40
and so the nature of that right possessed by the plaintiff
must be considered. The plaintiff is without doubt in an
unenviable situation. She has four very young children who
live with her in a mobile home. We have no evidence of the
size of this structure but it is to be assumed that space is at
least limited. She and her husband are both young and they
are anxious to have normal marital relations. This they
cannot have because of the danger to the plaintiff's life or
health in the event of another pregnancy and because of the
unsuitability of oral contraceptives for her and her inability
to use what are called the natural methods of birth control. It
is in her interest and in the interests of her husband and
small children that she should not take the risk of another
pregnancy which might deprive the husband of his wife and
the children of their mother. The plaintiff, her husband, and
their children are a unit recognised by and given a special
place in the Constitution. [The judge referred to the
provisions76of s. 1 of Article 41 of the
[1974]
1 I.R.
Griffin J.
334
Supreme Court
Constitution, and continued . . .] The word "family" is not
defined in the Constitution but, without attempting a
definition, it seems to me that in this case it must
necessarily include the plaintiff, her husband and their
children.
The nature of the right of privacy in marriage has been
discussed by the Supreme Court of the United States of
America in considering the constitutionality of a Connecticut
statute which made the use of contraceptives a criminal
offence. In Poe v. Ullman 77 at p. 552 of the report Harlan J.
said: "'The family . . . is not beyond regulation,' Prince v.
Massachusetts 78, supra, and it would be an absurdity to
suggest either that offenses may not be committed in the
bosom of the family or that the home can be made a
sanctuary for crime. The right of privacy most manifestly is
not an absolute. Thus, I would not suggest that adultery,
homosexuality, fornication and incest are immune from
criminal enquiry, however privately practiced. So much has
been explicitly recognized in acknowledging the State's
rightful concern for its people's moral welfare . . . Adultery,
homosexuality and the like are sexual intimacies which the
State forbids altogether, but 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."Adultery and extra-marital
sexuality are not, as such, crimes here.
To return to sub-s. 1 of s. 3 of Article 40, the guarantee of
the State in its laws to respect the personal rights of citizens
is not subject to the limitation "as far as practicable" nor is it
circumscribed in any other way. The relevant portion of that
sub-section in the Irish version, which prevails, is in the
following terms:"Rthaonn an Stt gan cur isteach
lena dhlithibh ar
[1974]
1 I.R.
Griffin J.
335
Supreme Court
cheartaibh pearsanta aon tsaornaigh." The literal
translation makes it a guarantee "not to interfere with"
rather than a guarantee to "respect." Does a law which
effectively prevents the plaintiff and her husband in their
particular circumstances from resorting to the use of
contraceptives for the purpose of ensuring that the plaintiff
will not have another pregnancy "respect" or"not interfere
with" the right of family privacy of the plaintiff and her
husband? In this context, I wish to emphasise that this
judgment is confined to contraceptives as such; it is not
intended to apply to abortifacients, though called
contraceptives, as in the case of abortifacients entirely
different considerations may arise. In my opinion, a statute
which makes it a criminal offence for the plaintiff or her
husband to import or to acquire possession of contraceptives
for use within their marriage is an unjustifiable invasion of
privacy in the conduct of the most intimate of all their
personal relationships.
In Griswold v. Connecticut 79, which was another case
dealing with the same Connecticut law, Douglas J. delivered
the judgment of the Supreme Court of the United States; at
p. 485 of the report he said: "The present case, then,
concerns a relationship lying within the zone of privacy
created by several fundamental constitutional guarantees.
And it concerns a law which, in forbidding the use of
contraceptives rather than regulating their manufacture or
sale, seeks to achieve its goals by means having a maximum
destructive impact upon that relationship. Such a law cannot
stand in light of the familiar principle, so often applied by
this Court, that a 'governmental purpose to control or
prevent activities constitutionally subject to state regulation
may not be achieved by means which sweep unnecessarily

broadly and thereby invade the area of protected freedoms,'
NAACP v. Alabama .80 Would we allow the police to search
the sacred precincts of marital bedrooms for telltale signs of
the use of contraceptives? The very idea is repulsive to the
notions of privacy surrounding the marriage relationship. We
deal with a right of privacy older than the Bill of
Rightsolder than our political parties, older than our
school system. Marriage is a
[1974]
1 I.R.
Griffin J.
336
Supreme Court
coming together for better or for worse, hopefully enduring,
and intimate to the degree of being sacred. It is an
association that promotes a way of life, not causes; a
harmony in living, not political faiths; a bilateral loyalty, not
commercial or social projects."
Although in s. 17 of the Act of 1935 the use of
contraceptives is not prohibited, the section effectively
prohibits the plaintiff from obtaining contraceptives and
makes acquiring possession thereof a crime in the
circumstances which I have already outlined; in my view the
section achieves the same result as the Connecticut law.
It was submitted on behalf of the plaintiff that the entire of
s. 17 is inconsistent with the Constitution and that sub-ss. 1
and 3 of s. 17 should stand or fall together. One of the
grounds advanced in support of the argument that the entire
section should fall was that contraception is a matter of
private morality and not of public morality. In my view, in
any ordered society the protection of morals through the
deterrence of fornication and promiscuity is a legitimate
legislative aim and a matter not of private but of public
morality. For the purpose of this action, it is only necessary
to deal with the plaintiff as a married woman in the light of
her particular circumstances. In my opinion, by the inclusion
of sub-s. 3, the provisions of s. 17 of the Act of 1935 in the

words of Douglas J. do "sweep unnecessarily broadly and
thereby invade the area of protected freedoms." In my
judgment, this sub-section violates the personal rights of the
plaintiff, in this case, her right of privacy in her marital
relations with her husband under sub-s. 1 of s. 3 of Article
40. For the purposes of this action, it is not necessary that
the entire of the section should be struck down.
For the reasons I have given, sub-s. 3 of s. 17 of the Act of
1935 is inconsistent with the Constitution and was not
continued of full force and effect by Article 50 of the
Constitution and, to the extent only of making a declaration
accordingly, I would allow this appeal.
[1974]
1 I.R.
Griffin J.
337
Supreme Court
Solicitor for the plaintiff: Dudley Potter.
Solicitor for the Attorney General: The Chief State Solicitor.
Solicitor for the Revenue Commissioners: Alexander C. P.
Ross.
W.F.R.
[1974] I.R. 284
[1990]
1 I.R.
110
Christopher McGimpsey and Michael McGimpsey Plaintiffs v.
Ireland, An Taoiseach and Others Defendants
[S.C. No. 314 of 1988]
Supreme Court
1st March 1990
Constitution - Executive - International relations - Agreement
between governments of Ireland and UnitedKingdom in
relation to Northern Ireland - Affirmation by both

governments that change in status ofNorthern Ireland would
only come about by consent of majority of population of
Northern Ireland- Establishment of inter governmental
conference to deal with political, security and legal matters
andto promote cross border co-operation - Whether
agreement constituted an unconstitutional fetteringof
executive power to deal with international relations Whether agreement inconsistent withconstitutional claim to
whole island of Ireland as national territory - Constitution of
Ireland, 1937,Articles 2, 3, 29, 40.Constitution - Challenge to
constitutional validity of international treaty - Locus standi Plaintiffs bornand resident in Northern Ireland - Whether
plaintiffs citizens of Ireland - Whether plaintiffs had
locusstandi to challenge treaty - Whether courts should
entertain a constitutional challenge to the validityof an act
the sole purpose of which was to achieve an objective
directly contrary to the purpose of theconstitutional provision
invoked.Constitution - Equality - Agreement between
governments of Ireland and United Kingdom in relation
toNorthern Ireland - Establishment of intergovernmental
conference - Provision for Irish governmentto put forward
views and proposals in relation to legislation, policy and
devolution in so far as theyrelated to the interests of the
minority community - Whether government there by
abandoned concernfor majority - Whether invidious
discrimination against majority - Whether agreement a
"law"within the meaning of Article 40, s. 1 - Constitution of
Ireland 1937, Article 40, s. 1.
On the 15th November, 1985, an agreement, known as the
Anglo-Irish Agreement, was reached between the
governments of Ireland and the United Kingdom. This
agreement contained, inter alia provisions affirming the
existing status of Northern Ireland and recognising that this
status would only be changed with the consent of the
majority of the population of Northern Ireland; provisions
establishing an intergovernmental conference and a
secretariat to deal with matters covered by the agreement
and provisions allowing the Irish Government to put forward
its views on devolution and major legislative and policy

proposals within Northern Ireland in relation to the interests
of the minority community in Northern Ireland. Other
provisions related to security and legal matters, cross border
co-operation and economic development.
The plaintiffs, who were born in and resident in Northern
Ireland, sought a declaration that the Anglo-Irish Agreement
was contrary to the provisions of the Constitution of Ireland,
1937. In particular, they argued that, in recognising the
legitimacy of the present status of Northern Ireland, the
Agreement violated Articles 2 and 3 of the Constitution and
that the intergovernmental conference and secretariat
established by the Agreement restricted the Government of
Ireland in the exercise of the external relations power of the
State.
The defendants argued, inter alia, that the plaintiffs did not
have the locus standi necessary to challenge the agreement.
In the High Court, Barrington J. rejected the defendants' plea
of lack of locus standibut dismissed the plaintiffs'
constitutional challenge to the Anglo-Irish Agreement (see
[1988] I.R. 567) .
On appeal by the plaintiffs it was
Held by the Supreme Court (Finlay C.J., Walsh, Griffin,
Hederman and McCarthy JJ.), in dismissing the appeal, 1,
that, while the plaintiffs had neither alleged nor proved that
they were citizens
[1990]
1 I.R.
McGimpsey v. Ireland
111
S.C.
of Ireland, having regard to the finding of the trial judge against which no appeal had been taken - that the plaintiffs
having been born in Ireland were, in contemplation of Irish
law, citizens of Ireland, the Court would entertain the appeal
on its merits.
Quaere: Whether any citizen has locus standi to challenge
the constitutional validity of an act for the specific purpose

of achieving an objective directly contrary to the
constitutional provision invoked.
Per McCarthy J., that, as non-citizens of Ireland the plaintiffs
did not have locus standito challenge the constitutional
validity of a treaty made by the Government exercising the
external relations power of the State under Article 29 of the
Constitution.
The State (Nicolaou) v. An Bord Uchtla [1966] I.R. 567
considered.
2. That the claim to the national territory of the whole island
of Ireland, its islands and the territorial seas contained in
Article 2 of the Constitution was a claim of legal right.
In re The Criminal Law (Jurisdiction) Bill, 1975 [1977] I.R.
129 not followed. Boland v. An Taoiseach [1974] I.R. 338
and The People v. Ruttledge [1978] I.R. 376 considered.
3. That the re-integration of the national territory was a
constitutional imperative.
Russell v. Fanning [1988] I.R. 505 followed.
4. That the prohibition contained in Article 3 of the
Constitution on the enactment of legislation applicable in
Northern Ireland pending re-integration did not derogate
from the territorial claim of legal right contained in Article 2
and did not create an estoppel against the State asserting
the said claim.
5. That the recognition by the Anglo Irish Agreement of the
de facto situation in Northern Ireland whilst expressly
disclaiming any abandonment of the claim to the reintegration of the national territory was not inconsistent with
Articles 2 and 3 of the Constitution and there was no
question of Ireland being estopped in international law from
asserting that claim.
6. That article 4, para. (c) and article 5, para. (c) of the
Agreement, which allowed the Irish Government to put
forward views on devolution and major legislation and policy
issues were consistent with Ireland's devotion to
international peace and co-operation pursuant to Article 29,
s. 1 of the Constitution.
7. That the Irish Government, in carrying out its agreed
functions within the framework of the Anglo-Irish Agreement,

remained free to do so in the manner which it thought
appropriate and, accordingly, the Government's power to
conduct external relations on behalf of the State was not
fettered in breach of Article 29 of the Constitution.
Crotty v. An Taoiseach [1987] I.R. 713 distinguished.
8. That the Anglo-Irish Agreement did not constitute a "law"
within the meaning of Article 40 of the Constitution.
9. That the fact that the Irish Government could put forward
views in relation to the position of the minority community in
Northern Ireland pursuant to article 4, para. (c) and article 5,
para. (c) of the Agreement did not constitute a failure to
protect or to vindicate the rights of the majority population
in Northern Ireland pursuant to Article 40, s. 3, sub-s. 1 of
the Constitution.
10. That in so far as the Anglo-Irish Agreement provided a
means whereby the re-integration of the national territory
might be achieved by a process of consultation and
discussion, it would never be inconsistent with the
Constitution which is expressly devoted to peace and cooperation in international relations.
13.
Buckley and Others (Sinn Fin) v. The Attorney General
[1950] I.R. 67.
Crotty v. An Taoiseach [1987] I.R. 713; [1987] I.L.R.M. 400.
Eastern Greenland (1933) P.C.I.J. 22.
Golder (1975) 1 E.H.R.R. 524.
[1990]
1 I.R.
112
S.C.
129; (1976) 110 I.L.T.R. 69.

Kostan v. Ireland [1978] I.L.R.M. 12.
McGimpsey v. Ireland [1988] I.R. 567; [1989] I.L.R.M. 209
(H.C.).
Russell v. Fanning [1988] I.R. 505; [1986] I.L.R.M. 401.
Re U.S. Nationals in Morocco, France v. U.S.A. (1952) 19
I.L.R. 255; [1952] I.C.J. Rep. 176.
Temple of Preah Vihear [1962] I.C.J. Rep. 6.
The People v. Ruttledge [1978] I.R. 376.
The State (Nicolaou) v. An Bord Uchtla [1966] I.R. 567.
Appeal from the High Court.
The facts have been summarised in the headnote and set
out in the judgment of Finlay C.J., infra.
The plaintiffs issued a plenary summons on the 9th May,
1987, seeking a declaration that the Anglo-Irish Agreement
of 1985 was contrary to the Constitution of Ireland, 1937.
This declaration was refused by the High Court (Barrington J.)
on the 29th July, 1988. (See [1988] I.R. 567).
By notice of appeal dated the 16th August, 1988, the
plaintiffs appealed against the decision of the High Court.
The appeal was heard by the Supreme Court (Finlay C.J.,
Walsh, Griffin, Hederman and McCarthy JJ.) on the 31st
January, 1990 and the 1st February, 1990.
The relevant provisions of the Constitution and of the AngloIrish Agreement are set out in the judgment of Finlay C.J.,
infra.
Hugh O'Flaherty S.C. and Frank Clarke S.C. (with them
Gerard Hogan ) for the plaintiffs referred to Crotty v. An
Taoiseach ; Russell v. Fanning ; Boland v. An Taoiseach ;
Buckley and Others (Sinn Fin) v. The Attorney General ;
In Re The Criminal Law (Jurisdiction) Bill, 1975 ; Temple of
Preah Vihear; Eastern Greenland ;Irish Nationality and
Citizenship Act, 1956, ss. 2, 6 and 7; Maritime Jurisdiction
Act, 1959, s. 4, sub-s. 2; Northern Ireland Constitution Act,
1973 (U.K.).
Eoghan Fitzsimons S.C. (with him Esmond Smyth ) for the
defendants referred to Crotty v. An Taoiseach ; Re U.S.
Nationals in Morocco, France v. U.S.A. ; Golder ; Vienna
Convention on the Law of Treaties, 1969, Article 31; The

Single European Act.
Frank Clarke S.C. in reply referred to Vienna Convention on
the Law of Treaties, 1969, Article 31.
Cur. adv. vult.
[1990]
1 I.R.
Finlay C.J.
113
S.C.
Finlay C.J.
1st March 1990
This is an appeal by the plaintiffs against the dismissal on
the 25th July, 1988, by order of the High Court made by
Barrington J. of their claim for a declaration that the
"Agreement between the Government of Ireland and the
Government of the United Kingdom" made on the 15th
November, 1985 (the Anglo-Irish Agreement) is contrary to
the provisions of the Constitution.
The parties
The plaintiffs are two brothers, each of whom was born in
Northern Ireland, and each of whom now resides in Northern
Ireland.
In the course of his judgment Barrington J. described the
political ambitions and activities of both the plaintiffs in the
following words:
"Both plaintiffs are members of the Official Unionist party of
Northern Ireland. Both are deeply concerned about the
present state of Northern Ireland and of all Ireland. Both
reject any form of sectarianism and both have been involved
in peace movements working to accommodate people of
various traditions who live on the island of Ireland. Both gave
evidence before the New Ireland Forum and, in oral and
written submissions, attempted to explain to the Forum how

the problem appeared to men fully committed to unionism
but interested in finding a peaceful solution to the problem
of Northern Ireland and of Ireland.
Both believe that the Anglo-Irish Agreement has aggravated
the problem and instead of solving the problem, has become
part of it."
The learned trial judge, having heard the plaintiffs in
evidence, was satisfied that in the expression of these
opinions and in their attitude to the problems with which the
case is concerned, they were both sincere. Against these
findings by the learned trial judge there is no form of appeal,
nor is there any suggestion that they are otherwise than
justified by the evidence which he heard.
The plaintiffs' claim
The plaintiffs' claim for a declaration that the provisions of
the Anglo-Irish Agreement are contrary to the provisions of
the Constitution was directed in particular to Articles 1, 2, 4
and 5 of the Agreement, and the inconsistency alleged was
with Articles 2, 3, 29 and 40 of the Constitution.
The defence
The defendants in their defence, apart from joining issue on
the claims of the plaintiffs, raised a special defence denying
the locus standi of the plaintiffs in the following terms:
[1990]
1 I.R.
Finlay C.J.
114
S.C.
"The plaintiffs do not have the locus standi necessary to
seek the reliefs sought in the statement of claim on the
grounds that neither of them has any interest or right which
has or will suffer any injury or prejudice by reason of any of
the matters alleged in the statement of claim or by reason of
the coming into force of the said Agreement or at all, nor has
either a common interest with any other person who could
claim to be or to be likely to be adversely affected thereby."

Amongst the submissions made on behalf of the defendants
in the court below on foot of this plea of an absence of locus
standi was that the plaintiffs should not be permitted to
invoke Article 2 of the Constitution because they themselves
do not believe that "the national territory consists of the
whole island of Ireland" and are only invoking the Article in a
tactical manoeuvre.
In his judgment the learned trial judge stated:
"Both plaintiffs were born in Ireland and are therefore, in
contemplation of Irish law, citizens of Ireland."
The statement of claim contains no claim that either plaintiff
is a citizen of Ireland, although it is stated that the first
plaintiff is the holder of an Irish passport. No evidence was
given by either plaintiff that either he or either of his parents
had made the prescribed declaration pursuant to s. 7, sub-s.
1, of the Irish Nationality and Citizenship Act, 1956, or of any
facts which would indicate that he was "otherwise an Irish
citizen".
It may well be that the plaintiffs are Irish citizens under s. 6,
sub-s. 1 of the Act of 1956 because either or both of their
parents were Irish citizens at the respective dates of their
births, though this was not proved.
Since the defendants made no submissions to this Court on
this issue and have not sought to vary the finding of the
learned trial judge to which I have referred, I will assume
without deciding that each of the plaintiffs is an Irish citizen.
The learned trial judge decided this issue of locus standi in
favour of the plaintiffs in the following passage contained in
his judgment:
"The present case is, to say the least, unusual and there is
no exact precedent governing it. But it appears to me that
the plaintiffs are patently sincere and serious people who
have raised an important constitutional issue which affects
them and thousands of others on both sides of the border.
Having regard to these factors and having regard to the
wording of the preamble to the Constitution and of Articles 2
and 3, it appears to me that it would be inappropriate for this
court to refuse to listen to their complaints."
Against this finding the defendants did not enter any crossappeal or notice to vary. This Court, as it would be bound to
do, raised the query as to the locus standi of the plaintiffs
and the consequent jurisdiction of this Court to determine
the issues raised on the appeal. Counsel for the defendants,
upon that being raised, did not seek by any special
submission or argument to vary the decision which had been
reached by the learned trial judge.
As a general proposition it would appear to me that one
would have to entertain considerable doubt as to whether
any citizen would have the locus standi to challenge the
constitutional validity of an act of the executive or of a
[1990]
1 I.R.
Finlay C.J.
115
S.C.
statute of the Oireachtas for the specific and sole purpose of
achieving an objective directly contrary to the purpose of the
constitutional provision invoked. However, having regard to
the evidence in this case, to the findings of fact made by the
learned trial judge, and to the absence of any cross-appeal
brought on behalf of the defendants, I am satisfied that the
plaintiffs' claim in this case and their appeal against the
dismissal of it by the High Court should be entertained on its
merits.
The relevant constitutional provisions
The relevant constitutional provisions are as follows:
Article 2
"The national territory consists of the whole island of
Ireland, its islands and the territorial seas."
Article 3
"Pending the re-integration of the national territory, and
without prejudice to the right of the Parliament and
Government established by this Constitution to exercise
jurisdiction over the whole of that territory, the laws enacted
by that Parliament shall have the like area and extent of
application as the laws of Saorstt ireann and the like

extra-territorial effect."
Article 29
settlement of international disputes by international
arbitration or judicial determination.
other States.
Government."
Article 40
1. All citizens shall, as human persons, be held equal before
the law . . .
Article 40
3. 1 The State guarantees in its laws to respect, and, as far
[1990]
1 I.R.
Finlay C.J.
116
S.C.
The Anglo-Irish Agreement
ARTICLE 1
The two Governments
(a) affirm that any change in the status of Northern Ireland
would only come about with the consent of a majority of the
people of Northern Ireland;
(b) recognise that the present wish of a majority of the
people of Northern Ireland is for no change in the status of
Northern Ireland;
(c) declare that, if in the future a majority of the people of
Northern Ireland clearly wish for and formally consent to the
establishment of a united Ireland, they will introduce and
support in the respective Parliaments legislation to give
effect to that wish.
ARTICLE 2
(a) There is hereby established within the framework of the
Anglo-Irish Intergovernmental Council set up after the
meeting between the two Heads of Government on the 6
November 1981, an Intergovernmental Conference
(hereinafter referred to as "the Conference"), concerned with
Northern Ireland and with relations between the two parts of
the island of Ireland, to deal, as set out in this Agreement, on
a regular basis with
(i) political matters;
(ii) security and related matters;
(iii) legal matters, including the administration of justice;
(iv) the promotion of cross-border co-operation.
(b) The United Kingdom Government accepts that the Irish
Government will put forward views and proposals on matters
relating to Northern Ireland within the field of activity of the
Conference in so far as those matters are not the
responsibility of a devolved administration in Northern
Ireland. In the interests of promoting peace and stability,
determined efforts shall be made through the Conference to
resolve any differences. The Conference will be mainly
concerned with Northern Ireland, but some of the matters
under consideration will involve co-operative action in both
parts of the island of Ireland, and possibly also in Great
Britain. Some of the proposals considered in respect of
Northern Ireland may also be found to have application by
the Irish Government. There is no derogation from the
sovereignty of either the Irish Government or the United
Kingdom Government, and each retains responsibility for the
decisions and administration of government within its own
jurisdiction.
[1990]
1 I.R.
Finlay C.J.
117
S.C.
ARTICLE 4
(a) In relation to matters coming within its field of activity,
the Conference shall be a framework within which the Irish
Government and the United Kingdom Government work
together
(i) for the accommodation of the rights and identities of the
two traditions which exist in Northern Ireland; and
(ii) for peace, stability and prosperity throughout the island
of Ireland by promoting reconciliation, respect for human
rights, co-operation against terrorism and the development
of economic, social and cultural co-operation.
(b) It is the declared policy of the United Kingdom
Government that responsibility in respect of certain matters
within the powers of the Secretary of State for Northern
Ireland should be devolved within Northern Ireland on a basis
which would secure widespread acceptance throughout the
community. The Irish Government support that policy.
(c) Both Governments recognise that devolution can be
achieved only with the co-operation of constitutional
representatives within Northern Ireland of both traditions
there. The Conference shall be a framework within which the
Irish Government may put forward views and proposals on
the modalities of bringing about devolution in Northern
Ireland, in so far as they relate to the interests of the
minority community.
ARTICLE 5
(a) The Conference shall concern itself with measures to
recognise and accommodate the rights and identities of the
two traditions in Northern Ireland, to protect human rights
and to prevent discrimination. Matters to be considered in
this area include measures to foster the cultural heritage of
both traditions, changes in electoral arrangements, the use
of flags and emblems, the avoidance of economic and social
discrimination and the advantages and disadvantages of a

Bill of Rights in some form in Northern Ireland.
(b) The discussion of these matters shall be mainly
concerned with Northern Ireland, but the possible application
of any measures pursuant to this Article by the Irish
Government in their jurisdiction shall not be excluded.
(c) If it should prove impossible to achieve and sustain
devolution on a basis which secures widespread acceptance
in Northern Ireland, the Conference shall be a framework
within which the Irish Government may, where the interests
of the minority community are significantly or especially
affected, put forward views on proposals for major legislation
and on major policy issues, which are within the purview
[1990]
1 I.R.
Finlay C.J.
118
S.C.
of the Northern Ireland Departments and which remain the
responsibility of the Secretary of State for Northern Ireland.
Interpretation of Articles 2 and 3 of the Constitution
Barrington J. in the course of his judgment identified from
previous decisions what appeared to him to be two
conflicting interpretations of Articles 2 and 3 of the
Constitution. He concluded that the impugned provisions of
the Agreement were not contrary to either of these
interpretations, and that accordingly it was not necessary for
him to decide between them.
The first interpretation mentioned by the learned trial judge
was derived by him from the decision of this Court on the
reference of the Criminal Law (Jurisdiction) Bill, 1975 [1977]
I.R. 129, and he quotes from that decision the following
paragraph at p. 584:
"One of the theories held in 1937 by a substantial number of
citizens was that a nation, as distinct from a State, had
rights: that the Irish people living in what is now called the
Republic of Ireland and in Northern Ireland together form the
Irish nation: that a nation has a right to unity of territory in

some form be it as a unitary or federal state; and that the
Government of Ireland Act, 1920, though legally binding was
a violation of that national right to unity which was superior
to positive law.
This national claim to unity exists not in the legal but in the
political order and is one of the rights which are envisaged in
Article 2; it is expressly saved by Article 3 which states that
the area to which the laws enacted by the parliament
established by the Constitution apply."
From that decision he concluded that the interpretation of
the Articles was as follows: Article 2 contained a claim to the
national territory of the whole of the island of Ireland, its
islands and the territorial seas as a claim in the political
order and not as a claim of legal right. Article 3 provided
that, pending the re-integration of the national territory, the
Parliament established by the Constitution could only enact
laws with a like area and extent of application as the laws of
Saorstt ireann and the like extraterritorial effect, and
therefore could not enact laws with an area of application in
the counties of Northern Ireland.
Counsel for both parties submitted in the High Court, and
repeated those submissions in this Court, that Article 2
constituted a claim of a legal right, but that, pursuant to
Article 3, the Parliament established by the Constitution was
entitled at any time it wished to enact laws applicable in the
counties of Northern Ireland, though pending the reintegration of the national territory, laws enacted which did
not otherwise provide are deemed to have the restricted
area and extent mentioned in the article.
In support of this submission they relied on the dictum of
O'Keeffe P. in Boland v. An Taoiseach [1974] I.R. 338, and on
the decision of O'Byrne J. in The People v. Ruttledge
decided in 1947 but reported at [1978] I.R. 376.
[1990]
1 I.R.
Finlay C.J.
119
S.C.
I am not satisfied that the statement that "this national
claim to unity exists not in the legal but the political order
and is one of the rights which are envisaged in Article 2",
necessarily means that the claim to the entire national
territory is not a claim of legal right.
The phrase occurs in a decision tracing the historical,
political and social background to the Constitution, and
seems more appropriately understood as a reference to the
origin of the claim than to its nature. If, however, it is so
construed, I would after careful consideration feel obliged to
decline to follow it. I do not accept the contention that Article
3 is to be construed as permitting, during the period pending
the re-integration of the national territory, the enactment of
laws applicable in the counties of Northern Ireland.
With Articles 2 and 3 of the Constitution should be read the
preamble, and I am satisfied that the true interpretation of
these constitutional provisions is as follows:
1. The re-integration of the national territory is a
constitutional imperative (cf. Hederman J. in Russell v.
Fanning [1988] I.R. 505).
2. Article 2 of the Constitution consists of a declaration of
the extent of the national territory as a claim of legal right.
3. Article 3 of the Constitution prohibits, pending the reintegration of the national territory, the enactment of laws
with any greater area or extent of application or extraterritorial effect than the laws of Saorstt ireann and
this prohibits the enactment of laws applicable in the
counties of Northern Ireland.
4. The restriction imposed by Article 3 pending the reintegration of the national territory in no way derogates from
the claim as a legal right to the entire national territory.
The provision in Article 3 of the Constitution contained in
the words "and without prejudice to the right of the
Parliament and Government established by this Constitution
to exercise jurisdiction over the whole of that territory" is an
express denial and disclaimer made to the community of
nations of acquiescence to any claim that, pending the reintegration of the national territory, the frontier at present
existing between the State and Northern Ireland is or can be
accepted as conclusive of the matter or that there can be
any prescriptive title thereby created and an assertion that
there can be no estoppel created by the restriction in Article
3 on the application of the laws of the State in Northern
Ireland. This is of course quite distinct from the extraterritorial effect of the laws of the State in respect of matters
occurring outside the State for which persons are made
answerable in the courts of the State.
The grounds of the plaintiffs' claim
Barrington J. has correctly identified the three main
submissions on which the plaintiffs' claim rested in the High
Court and they remain the same on the appeal to this Court.
[1990]
1 I.R.
Finlay C.J.
120
S.C.
"1. That the Agreement recognising the legitimacy of the
present constitutional arrangements in respect of Northern
Ireland, violates Articles 2 and 3 of the Constitution;
2. that, in as much as the Agreement establishes an
intergovernmental conference and secretariat, it fetters the
power of the Government to conduct the external affairs and
powers of the state under Articles 28 and 29 of the
Constitution.
3. that the State may not enter into a treaty whereby it
commits itself to have regard to one section of the Irish
nation (i.e. the "minority" population of Northern Ireland) and
to disregard the interests of a section of the Irish people,
namely, the "majority" community in Northern Ireland."
In regard to the first of these grounds the plaintiffs relied, in
addition to the terms of the Agreement and of the
Constitution, upon submissions that the terms of the
Agreement could in international law constitute an estoppel

preventing a subsequent assertion of right to the reintegration of the national territory and also on a submission
that the fact that the Agreement did not contain a fixed time
for its duration added to the alleged constitutional
inconsistency.
The decision
With regard to these three main grounds of appeal I have
come to the following conclusions.
1. Inconsistency of the Agreement with Articles 2 and 3 of
the Constitution
The main source of this submission was article 1 of the
Anglo-Irish Agreement. In the course of his judgment
Barrington J., after considering the details of that and other
provisions of the Agreement, reached the following
conclusion:
"It appears to me that in article 1 of the agreement the two
Governments merely recognise the situation on the ground
in Northern Ireland, (paragraph (b)), form a political
judgment about the likely course of future events,
(paragraph (a)), and state what their policy will be should
events evolve in a particular way (paragraph (c))."
I find myself in agreement with this economical but precise
analysis of the provisions of article 1. The learned trial judge
then concluded that on any interpretation of the provisions
of Articles 2 and 3 of the Constitution, these provisions of the
Anglo-Irish Agreement were not in any way inconsistent with
either of those two Articles. With that conclusion I am in
complete agreement. There can be no doubt but that the
only reasonable interpretation of article 1, taken in
conjunction with the denial of derogation from sovereignty
contained in article 2, para. (b), of the Anglo-Irish Agreement
is that it constitutes a recognition of the de facto situation in
Northern Ireland but does so expressly without
[1990]
1 I.R.
Finlay C.J.
121
S.C.
abandoning the claim to the re-integration of the national
territory. These are essential ingredients of the constitutional
provisions in Articles 2 and 3.
This interpretation is not affected by the provisions of article
4, para. (c) or article 5, para. (c) nor are either of these two
articles capable of any separate inconsistent interpretation.
In so far as they accept the concept of change in thede facto
status of Northern Ireland as being something that would
require the consent of the majority of the people of Northern
Ireland these articles of the Agreement seem to me to be
compatible with the obligations undertaken by the State in
Article 29, ss. 1 and 2 of the Constitution, whereby Ireland
affirms its devotion to the ideal of peace and friendly cooperation and its adherence to the principles of the pacific
settlement of international disputes.
The conclusion that these articles of the Anglo-Irish
Agreement do not constitute any form of abandonment of
the claim of right to the re-integration of the national
territory but constitute instead a realistic recognition of the
de factosituation in Northern Ireland leads to the
consequential conclusion that the Anglo-Irish Agreement
cannot be impugned on the basis of any supposed estoppel
arising to defeat the constitutional claim to re-integration,
nor on the basis of any indefinite duration in the Agreement.
2. Fettering of the power of Government to conduct external
relations in breach of Article 29 of the Constitution
The submission made on this issue was that the terms of
the Anglo-Irish Agreement were of similar character to the
terms of the Single European Act which the decision of this
Court in Crotty v. An Taoiseach [1987] I.R. 713 held to be
inconsistent with the provisions of Article 29 of the
Constitution.
I am satisfied that this analogy is quite false. The Anglo-Irish
Agreement is an agreement reached between two
governments, both of whom have an acknowledged concern
in relation to the affairs of Northern Ireland. It acknowledges
that the Government of Ireland may make representations,
put forward proposals, and try to influence the evolution of

peace and order in Northern Ireland.
The frameworks contained in the Agreement and structures
created by it provide methods of carrying out these
activities, it can be argued, in the manner most likely to
make them effective and acceptable, namely, constant
mutual discussion. The Government of Ireland at any time
carrying out the functions which have been agreed under the
Anglo-Irish Agreement is entirely free to do so in the manner
in which it, and it alone, thinks most conducive to the
achieving of the aims to which it is committed. A procedure
which is likely to lead to peaceable and friendly co-operation
at any given time must surely be consistent with the
constitutional position of a state that affirms its devotion not
only to the ideal of peace and friendly co-operation but to
that ideal founded on international justice and morality.
[1990]
1 I.R.
Finlay C.J.
122
S.C.
The basis of the decision of this Court in Crotty v. An
Taoiseach [1987] I.R. 713 was that the terms of the Single
European Act could oblige the Government in carrying out
the foreign policy of the State to make the national interests
of the State, to a greater or lesser extent, subservient to the
national interests of other member states. I have no doubt
that there is a vast and determining difference between the
provisions of this Agreement and the provisions of the Single
European Act as interpreted by this Court in Crotty v. An
Taoiseach [1987] I.R. 713.
3. Disregard of the interests of the "majority" community in
Northern Ireland
The submission made on the appeal in regard to this matter
was that the provisions of the Anglo-Irish Agreement
contained in article 4, para. (c) and article 5, para. (c) which
expressly recognised the conference as a framework within

which the Irish Government might put forward views and
proposals on bringing about devolution in Northern Ireland,
in so far as they relate to the interests of the minority
community, constituted a breach of Article 40, s. 1 of the
Constitution. The Anglo-Irish Agreement is not "a law" within
the meaning of that term contained in Article 40, s. 1 of the
Constitution. A provision for the capacity of the Irish
Government in regard to possible devolution in Northern
Ireland to put forward views and proposals as to the
modalities of bringing that about could not be the holding of
any person equal or unequal before the "law".
In the alternative, the submission was made that the
provisions of this subclause of the Agreement were
inconsistent with Article 40, s. 3, sub-s. 1 of the Constitution.
I am satisfied that they are not. The mere fact that there is
an express acknowledgment in the event of discussions
leading or intended to lead to devolution in Northern Ireland
of the right of the Irish Government to bring forward views
and proposals in so far as they relate to the interests of the
minority community in Northern Ireland is in no way an
abandonment of concern by the Irish Government for the
majority community in Northern Ireland.
It does not seem to me that there are any grounds for
suggesting that there has been an invidious or any
discrimination between the two communities in Northern
Ireland by virtue of the terms of the Anglo-Irish Agreement.
I am satisfied, therefore, that all the grounds of the appeal
brought by the plaintiffs must fail. I come to that conclusion
from an analysis of each of the submissions that have been
made, both in the High Court and in this Court. I would also
point out, however, that there is, looking at the Anglo-Irish
Agreement in its totality and looking at the entire scheme
and thrust of the Constitution of Ireland a high improbability
that a clear attempt to resolve the position with regard to
the re-integration of the national territory and the position of
Northern Ireland by a process of consultation, discussion and
reasoned argument structured by constant communication
between servants of each of the two states concerned could
ever be inconsistent with a Constitution devoted to the

ideals of ordered, peaceful international relations. I would
dismiss this appeal.
[1990]
1 I.R.
Walsh J.; Griffin J.; Hederman J.; McCarthy J.
123
S.C.
Walsh J.
I agree.
Griffin J.
I agree.
Hederman J.
I agree.
McCarthy J.
Locus standi
The trial judge concluded that each of the plaintiffs was a
citizen of Ireland. As citizens they are bound by the
provisions of Article 9, s. 2 of the Constitution which
prescribes that fidelity to the nation and loyalty to the State
are fundamental political duties of all citizens. Such fidelity
and loyalty do not prohibit or restrict disagreement with the
content of the Constitution nor with the actions of
government. There are few citizens who have made a public
declaration to uphold the Constitution which contains the
constitutional imperative in its preamble that the unity of our
country be restored and Article 2 which defines the national
territory as the whole island of Ireland, its islands and the
territorial seas. The plaintiffs uphold the union of Northern
Ireland with Britain, they reject Article 2 but claim that the
Anglo-Irish Agreement is in conflict with it, is therefore
invalid having regard to the provisions of the Constitution
and thereby call it in aid to achieve their objective which is

the maintenance of partition and of the union with Britain.
They approbate and reprobate.
There is a distinction between an objective and the means
of achieving it. One does not look to the objective of a
particular legal submission; one looks to the submission
itself. One does not determine locus standi by motive but
rather by objective assessment of rights and the means of
protecting them. In Cahill v. Sutton [1980] I.R. 269 the
plaintiff who invoked constitutional protection was denied
the right to do so because the type of protection invoked
would not, on the facts, have done her any good. It would
have done her a great deal of good if the result was to
condemn the section of the statute which defeated her
claim, but the argument of constitutional injustice did not
apply to her situation. Here the argument advanced by the
plaintiffs does apply to the facts of their case, as Irish and as
British citizens living in Northern Ireland, and in such case,
their motive is irrelevant. It is commonplace for litigants to
invoke the law for the worst of motives; many pleas of
statutory defence may have a most venal purpose but that
does not affect the validity of any such defence. The
plaintiffs appear to be contending that, being made Irish
citizens by this State, disapproving of the constitutional
claim in Article 2, being concerned as to the effect of the
Anglo-Irish Agreement on them as residents of Northern
Ireland, they are entitled to demand
[1990]
1 I.R.
McCarthy J.
124
S.C.
of this State that, as the People make the rules, they must
abide by them, whatever be the plaintiffs' motive or
objective.
Does this right, however, extend to a challenge to the
making of a treaty by the Government pursuant to Article
29? In Kostan v. Ireland [1978] I.L.R.M. 12 a foreign captain

of a fishery vessel successfully challenged the
constitutionality of certain provisions of the Fisheries
(Consolidation) Act, 1959, under which he was prosecuted
for unlawful fishing. In Crotty v. An Taoiseach [1987] I.R.
713 a successful challenge was made by an undoubted
citizen against the ratification of part of the Single European
Act. It seems unlikely that a non-citizen would have been
allowed to maintain such proceedings. The citizens of the
United Kingdom in Britain have a very real interest in the
Anglo-Irish Agreement; is each one of them to be heard to
challenge its validity as being repugnant to the Constitution
of Ireland? I think not. Might such a claim be sustained at the
suit of a person living in Northern Ireland but born outside of
Ireland? I think not. The plaintiffs' right to sue, if right there
be, must depend upon citizenship. In The State (Nicolaou) v.
An Bord Uchtla [1966] I.R. 567 Teevan J., said at p.
600:
"Circumstances may exist by reason of which it would be no
more than impertinent for a non-citizen to attack the
constitutionality of one of our statutes, or by reason of which
it would otherwise be necessary or prudent to take the
point."
In the Supreme Court, Walsh J., at p. 645 said:
"This Court expressly reserves for another and more
appropriate case consideration of the effect of noncitizenship upon the interpretation of the Articles in question
and also the right of a non-citizen to challenge the validity of
an Act of the Oireachtas having regard to the provisions of
the Constitution."
In a case such as the present, in my judgment, a non-citizen
does not have thelocus standi to maintain a challenge of the
kind propounded here against the constitutional validity of
the Anglo-Irish Agreement. The issue of locus standi was
raised in the defence and contested at the trial. The
statement of claim does not allege that either plaintiff is a
citizen of Ireland and neither plaintiff testified as to being a
citizen or having made the prescribed declaration pursuant
to s. 7, sub-s. 1 of the Irish Nationality and Citizenship Act,
1956. In my view, the plaintiffs were not shown to be Irish

citizens although Barrington J., in his judgment, stated that
both plaintiffs were born in Ireland and "are therefore in
contemplation of Irish law citizens of Ireland." No appeal or
notice to vary was brought in respect of this finding. Because
of this and the importance of the issue raised, whilst I am not
satisfied that the plaintiffs have locus standi to maintain this
action, I think it right to determine the main issue in the
case.
The constitutional issue
I have read the judgment delivered by the Chief Justice and I
wholly agree with the conclusion that the plaintiffs have
failed in their challenge to the Anglo-Irish
[1990]
1 I.R.
McCarthy J.
125
S.C.
Agreement. I would wish to state my firm opinion that,
whatever the political background to the wording of Article 2
of the Constitution, it is an unequivocal claim as of legal right
that the national territory consists of the whole island of
Ireland, its islands and the territorial seas (see O'Keeffe P. in
Boland v. An Taoiseach [1974] I.R. 338 at p. 363).
I would dismiss the appeal.
Solicitors for the plaintiffs: Brendan Walsh & Partners.
Nuala Butler, B.L.
[1990] 1 I.R. 110
Court declares by election delay unconstitutional PEARSE DOHERTY
APPLICANT AND GOVERNMENT OF IRELAND, ATTORNEY GENERAL
RESPONDENTS AND DIL IREANN
Doherty -v- Government of Ireland & anor

Neutral Citation:
[2010] IEHC 369
High Court Record Number:
2010 959 JR
Date of Delivery:
11/03/2010
Court:
High Court
Judgment by:
Kearns P.
Status:
Approved
Neutral Citation Number: [2010] IEHC 369
THE HIGH COURT
JUDICIAL REVIEW
2010 959 JR
BETWEEN
PEARSE DOHERTY
APPLICANT
AND
GOVERNMENT OF IRELAND, ATTORNEY GENERAL
RESPONDENTS
AND
DIL IREANN
NOTICE PARTY
JUDGMENT of Kearns P. delivered the 3rd day of November,
2010
By Order of the High Court (Peart J.) made on the 12th July,
2010 the applicant was given leave to apply by way of an
application for judicial review for the following reliefs:(i) A declaration that in view of the duration of the vacancy
for membership of the Dil in the Donegal South West

constituency and the extent to which its electors and
population are presently under-represented, the Government
is under a duty not to oppose motions put down by others to
have the writ moved for a by-election there.
(ii) An order directing the Government not to oppose any
such motion that may be moved.
(iii) Further and other relief.
By consent of the parties, an additional relief was sought
further to notice of motion dated the 18th October, 2010 as
follows:(2) A declaration that there has been excessive delay in
filling the said vacancy since it occurred on 6th June, 2009.
The grounds set out in the Statement to ground the
application for judicial review are elaborated in the following
simple terms:"In the light of the Constitution's affirmation of a "democratic
State" (Art. 5) and the requirement that, in any constituency,
there shall be "not less than one member for 30,000 of the
population" (Art. 16.2.2), there has been excessive delay in
filling the said vacancy since it occurred on 6th June, 2009.
On account of existing Dil arithmetic, the only realistic
prospect of getting this vacancy filled is for the Government
(which effectively controls the Dil) at least not to oppose a
motion to that effect, in accordance with s. 39(2) of the
Electoral Act, 1992. In somewhat different circumstances,
leave for this type of relief was granted in Dudley v. An
Taoiseach et al [1994] 1 I.L.R.M. 321."
Leave having been granted by the High Court, it is to say the
least surprising that no application was brought by or on
behalf of the respondents to set aside the leave granted
given that the main ground relied upon by the respondents
herein is that the matters in issue are non-justiciable by
reason of the doctrine of separation of powers.
However, a lengthy Statement of Opposition was filed on
behalf of the respondents, contending, inter alia:-
(1) The pleas and contentions of the applicant in relation to

provisions of the Constitution, section 39(2) of the Electoral
Act 1992 and the judgment of the High Court in Dudley v. An
Taoiseach [1994] 1 I.L.R.M. 321 concern matters of law and
the respondents make no admissions in respect thereof.
(2) Without prejudice to the foregoing:(i) It is denied that Article 16.2.2 of the Constitution imposes
a requirement that, in any constituency, there shall be not
less than one member for 30,000 of the population as
alleged. Article 16.2.2 of the Constitution provides that "the
number of members shall from time to time be fixed by law,
but the total number of members of Dil ireann shall not be
fixed at less than one member for each thirty thousand of
the population, or at more than one member for each twenty
thousand of the population".
(ii) It is denied that the provisions of the Constitution upon
which the applicant relies and/or section 39(2) of the
Electoral Act 1992 and/or the judgment of the High Court in
Dudley v. An Taoiseach [1994] 1 I.L.R.M. 321 provide any
basis for the reliefs sought or any relief.
(iii) . . .
(iv) At the hearing of these proceedings, the respondents will
rely upon inter alia, the provisions of the Constitution,
(including Articles 5, 6, 15, 16, 28, 29, 34, 37, 46 and 47
thereof and section 39(2) of the Electoral Act 1992. In
particular but without prejudice to the generality of the
foregoing:(a) the respondents will rely upon Article 16.7 of the
Constitution which provides that "subject to the foregoing
provisions of this Article, elections for membership of Dil
ireann, including the filling of casual vacancies, shall be
regulated in accordance with law";
and
(b) the respondents will rely upon section 39(2) of the

Electoral Act 1992 which was enacted pursuant to and in
accordance with, inter alia, Article 16.7 of the Constitution
and provides as follows: "where a vacancy occurs in the
membership of the Dil by a person ceasing to be a member
otherwise than in consequence of a dissolution, the
Chairman of the Dil (or, where he is unable through illness
absence or other cause to fulfil his duties or where there is a
vacancy in the Office of Chairman, the Deputy Chairman of
the Dil) shall, as soon as he is directed by the Dil so to do,
direct the Clerk of the Dil to issue a writ to the returning
officer for the constituency in the representation of which the
vacancy has occurred directing the returning officer to cause
an election to be held of a member of the Dil to fill the
vacancy mentioned in the writ.
(v) The Constitution expressly recognises that there may be
casual vacancies in the membership of Dil ireann but does
not impose any timeframe within which such vacancies must
be filled; rather, the Constitution provides that it is a matter
for the Oireachtas to regulate the filling of casual vacancies
by way of legislation. The power to regulate the filling of
casual vacancies which the Constitution confers upon the
Oireachtas encompasses, inter alia, the power to regulate
the holding of elections to fill such vacancies and the timing
of the holding of such elections.
(vi) In accordance with the provisions of the Constitution
(including, in particular, Article 16.7 thereof), the Oireachtas
enacted section 39 (2) of the Electoral Act 1992 to regulate
the filling of casual vacancies in the membership of Dil
ireann by persons ceasing to be members otherwise than in
consequence of a dissolution of Dil ireann. By virtue of
that legislative provision, it is a matter exclusively for Dil
ireann to determine when to direct the Chairman of the Dil
to direct the Clerk of the Dil to issue a writ to the returning
officer for the constituency in the representation of which the
vacancy has occurred directing the returning officer to cause
an election to be held of a member of the Dil to fill the
vacancy mentioned in the writ.

(vii) The respondents have not failed to fulfil any obligation
under the Constitution or otherwise acted in breach of the
Constitution; further the respondents have not failed to fulfil
any statutory obligations or otherwise acted in breach of
such obligations.
(viii) The Court should not grant the reliefs claimed or any
relief having regard to, inter alia, the provisions of the
Constitution (including Articles 15 and 16 of the Constitution
and the provisions of the Constitution concerning the
separation of powers between the organs of Government
established by the Constitution and the mutual respect as
between those organs of government) and section 39 (2) of
the Electoral Act 1992. Further, the Court should not grant
relief the effect of which would be to constrain the
Government in the exercise of its functions under the
Constitution and/or constrain members of the Government in
relation to voting in the Dil and/or imposing on such
members a requirement to exercise their votes in a
particular manner.
(ix) The claim of the applicant herein entails a fundamentally
misconceived application to the Court to ignore and/or
amend legislation enacted by the Oireachtas in accordance
with the Constitution, to impose impermissible constraints
and/or requirements on the Executive organ of government
established by the Constitution, to breach the separation of
powers which is mandated by the Constitution and to ignore
and/or amend the provisions of the Constitution, including, in
particular, Articles 15 and 16 thereof."
The remainder of the Statement of Opposition includes a
denial that there has been excessive delay in filling the
vacancy for membership of Dil ireann in the Donegal
South West constituency since the vacancy occurred on the
6th June, 2009. The Statement of Opposition further relates
that on the 29th September, 2010, the Minister of State at
the Department of An Taoiseach, Mr. John Curran T.D.,

informed Dil ireann on behalf of the Government that it is
the intention of the Government to move the writ for the byelection to fill the vacancy for membership of Dil ireann in
the Donegal South West constituency in the first quarter of
2011. In those circumstances, and without prejudice to the
other pleas contained in the statement of opposition, it is
contended that the proceedings are now moot and
unnecessary and that there is no basis for granting the
reliefs sought against the respondents.
At the commencement of the hearing, counsel on behalf of
the applicant advised the Court that no mandatory order was
sought directing the Government either to put down or not
to oppose a motion put down by others to have the writ
moved for the by-election. Put another way, the applicant
confined the relief sought to one of seeking a declaration, by
reference to his constitutional rights, that there has been
excessive delay in filling the said vacancy since it occurred
on the 6th June, 2009. There was no suggestion on behalf of
the respondents that the Government was not capable of
being enjoined in the proceedings as the relevant organ of
the State with power and responsibility to either move or not
resist a motion in the Dil to convene a by-election, although
of course, the respondents strongly argued that no
justiciable issue arose because of the doctrine of separation
of powers.
BACKGROUND
Senator Pearse Doherty, the applicant in this matter, is a
civil engineering technician from Letterkenny in Co. Donegal
and is registered as an elector for the Dil constituency of
Donegal South West. The constituency in question is a three
seat constituency but since the 6th June, 2009 one of the
three seats there has been vacant as a result of its occupant
having been elected to the European Parliament. From time
to time efforts had been made in Dil ireann to move a writ
for the by-election, all of which had been resisted by the
Government, such initiatives being voted down on the 2nd
July, 2009, the 5th May, 2010 and the 29th September,
2010. When making his affidavit on the 12th July, 2010
(some two months before the Minister of State at the

Department of An Taoiseach indicated to Dil ireann that
the by-election would be moved in the first quarter of 2011),
the applicant asserted that there was no realistic prospect of
the Government ceasing to resist such motions for the
foreseeable future. He believed that, on account of the
Government whipping control of many Dil members, there
was little or no prospect of the writ being moved for so long
as it continued to be opposed.
In the last general election, the following had been elected
to fill the three seats in that constituency: Mary Coughlan
(now the Tnaiste) Dinny McGinley T.D. and Pat "The Cope"
Gallagher, now an M.E.P. On his election to
Brussels/Strasbourg on the 6th June, 2009 Mr. Gallagher's
seat became vacant. With a population of just over 71,000,
the 30,000 ceiling provided for in Article 16.2.2 and Article
16.2.3 of the Constitution has, according to the applicant,
been exceeded to a very considerable extent. Endeavours
had been made by Sinn Fin members of the Dil to move
the writ with the outcomes already referred to. Under Dil
standing orders, a motion to move the writ could not be
tabled again for another six months from the previous
occasion except when the Ceann Comhairle otherwise
agreed. The applicant asserted that, as a result of
discussions he had had with many individuals in the
constituency, there was a great level of dissatisfaction with
the current exceptional under-representation of the
constituency in Dil ireann, a dissatisfaction which was
exacerbated by the fact that one of its two T.D.'s has
extremely onerous responsibilities as Tnaiste and Minister
for Education, factors which inevitably must encroach on her
time and availability to engage in the normal constituency
work of a T.D. He deposed to his belief that in other
comparable countries there is no equivalent resistance by
Governments to holding by-elections when vacancies occur
in their parliaments. In his affidavit sworn on the 12th July,
2010 the applicant avers that:-
"For instance, the general practice in relation to vacancies at

the House of Commons is to move a writ within three months
of the vacancy arising. There have been exceptional
instances of seats remaining vacant longer than six months
before a by-election, and seats are sometimes left vacant
towards the end of a Parliament, to be filled by the
subsequent general election. In other jurisdictions
governments are obliged to hold by-elections within a
prescribed time period. By way of example, by-elections in
France are held for the Lower House of Parliament and in the
Upper House (in the case of resignation) within three months
of a vacancy occurring. In the Czech Republic, by-elections
are held within 90 days of a vacancy occurring for the Upper
House of Parliament. Canada requires by-elections to be
called for the Federal Parliament within six months of a seat
becoming vacant; however, there is no limit on how far in
the future the actual date of the by-election may be set. It
would appear that the majority of other European electoral
systems use the list system to replace parliamentary
vacancies when they arise. In comparison with other
countries that use by-elections to fill vacancies, Ireland
would seem to be the only country whereby inordinate
delays arise in holding by-elections."
In a further affidavit, Sinn Fein member Mr. Caoimhghin
Caolain T.D., confirmed the unsuccessful attempts made by
his and other parties in bringing motions for the issue of the
writ for the by-election in Dil ireann. In relation to Mr.
Curran's statement that it was the intention of the
government to hold the by-election in the first quarter of
2011, Mr. Caolain pointed out that a by-election held on
that basis might not take place until April 2011, almost two
years from the occurrence of the vacancy in Donegal South
West, that being on the assumption that the government did
not decide on a further delay once the first quarter of 2011
was reached. Mr. Caolain referred to research he had
undertaken in Dil and political records as a result of which
he ascertained that during the period 1922 to 1937 there
were approximately 33 by-elections in which all the
vacancies were filled within six months. There have been 88
by-elections since the enactment of the Constitution. In

almost all instances the vacancies were filled within six
months. One of the longest delays was the delay in holding
the by-election in Dublin South which was held in June 2009,
some eleven months from the vacancy. He deposed to his
belief that the delay in Donegal South West was therefore
considerably longer even than the very lengthy delay in a
previous by-election within the present Dil ireann under
the present Government, thereby compounding the unequal
treatment of Donegal South West electors. The delay in
moving the writ for the current vacancy is the longest in the
history of the State. As the present Dil first met on the 14th
June, 2007, it must be dissolved by the 13th June, 2012. The
vacancy occurred in June 2009, at a point where the Dil had
potentially three further years to run. Almost half of that
period has now expired without the vacancy being filled and,
if the government's announced plans are carried out, well
over half that period will have expired without the vacancy
being filled. He stated his belief that such a failure results in
a denial of democratic rights. He referred to the example of
Zimbabwe where some election petitions from the 2000
parliamentary elections were pending in the courts for the
full term of office of parliamentarians, thus nullifying the
right to a legitimate determination of a contested or vacant
seat. While not suggesting that the situation in Ireland had
reached the same level, he believed the principle remained
the same, namely that a failure to address the vacancy
within a reasonable time results in a denial of democratic
rights.
In an affidavit sworn by Mr. John Curran, Minister of State at
the Department of An Taoiseach, he confirmed that on the
29th September, 2010 he informed Dil ireann on behalf of
the government that it is the intention of the government to
move the writ for the by-election to fill the vacancy for
membership of Dil ireann in the Donegal South West
constituency (and the writs for two other by-elections) in the
first quarter of 2011. He stated:"I referred to the severe and economical fiscal challenges
facing the country and the Government and explained that

until Christmas the Government would be working to ensure
that a budget is brought forward which is fair to the citizens
of the State and helps to further its economic recovery and
also would be working to address the problems in the
banking system. I explained the view of the Government that
to divert attention and energy to holding by-elections while
those problems are being addressed could be damaging to
the economy."
In her affidavit sworn on the 14th October, 2010 Ms. Riona Ni
Fhlanghaile, Principal Officer of the Department of
Environment, Heritage and Local Government, stated that
the total number of members of Dil ireann presently fixed
by law is 166 and when that figure is divided into the total
population number as recorded in the 2002 census
(3,917,203) the result is 23,598, a situation that complies
with the requirement of the Constitution as to ratios..
In his affidavit sworn on the 10th October, 2010, Sinn Fein
member Mr. Aengus O' Snodaig, TD replied to the affidavit
sworn by Mr. John Curran and emphasised that the
statement made by Mr. Curran to Dil ireann in no way
equated to proffering information to the Court as to the
reasons for the delay. He believed that had Mr. Curran made
the same statement to the Court it would have exposed him
to cross examination which would have allowed the entirely
manufactured nature of the excuses for the non- holding of
the by-election to be exposed. He stated when the first Dil
debate on the writ for the Donegal South West by-election
took place in July 2009, Tnaiste Mary Coughlan made no
attempt to suggest that a by-election would distract the
Government from its important work of dealing with the
economic crisis. When the second attempt to move the writ
took place in May 2010, Mr. Curran on behalf of the
Government did invoke current economic and financial
difficulties as a reason for not moving the writ. Mr. O'
Snodaig went on to state that the excuses offered for not
holding the by-election were wholly devoid of merit and
flew in the face of the electoral history of the previous two
years. Since the economic crisis occurred in September
2008, there had been nationwide local elections to 34 City

and County Councils in June 2009 as well as 5 Borough
Councils and 74 Town Councils. There had been a by-election
in June 2009 in Dublin South and a nationwide constitutional
referendum in October 2009. Mr. O' Snodaig stated that, by
applying the same reasoning offered to Dil ireann, the
Government could well have chosen to postpone the Dublin
South by-election on the basis of the economic crisis, but did
not do so. He stated that there was therefore no evidence
whatsoever that two nationwide electoral processes in June
and October 2009 had any measurable effects in terms of
taking the eyes of the Government and [political] parties off
the recovery of the economy. Mr. OSnodaig further
contended that, even accepting Mr. Currans logic, it had to
be borne in mind that the budget will take place on the 7th
December, 2010 and, that being so, there was no identified
reason why the by-election could not be called after that
date or why it was necessary to wait until the end of the first
quarter of 2011. In Mr. O'Snodaigs view, there was clearly
no guarantee that the banking crisis and economic crisis
would be any better by then and indeed they might well be
worse. Finally, he highlighted that Mr. Currans statements
were at variance with repeated statements from Government
that the economic crisis was under control and being
managed competently and that the worst is over . . . we
have turned a corner as stated by Minister for Finance Brian
Lenihan TD in December 2009.
RELEVANT PROVISIONS OF THE CONSTITUTION AND
RELEVANT STATUTORY PROVISIONS
Article 5 of the Constitution states:"Ireland is a sovereign, independent, democratic state"
Article 16.1 of the Constitution states:"2 (i) All citizens, and
(ii) such other persons in the State as may be determined
by law,
without distinction of sex who have reached the age of

eighteen years who are not disqualified by law and comply
with the provisions of the law relating to the election of
members of Dil ireann, shall have the right to vote at an
election for members of Dil ireann.
4 No voter may exercise more than one vote at an election
for Dil ireann, and the voting shall be by secret ballot."
Article 16.2 of the Constitution states:"1 Dil ireann shall be composed of members who
represent constituencies determined by law.
2 The number of members shall from time to time be fixed
by law, but the total number of members of Dil ireann
shall not be fixed at less than one member for each thirty
thousand of the population, or at more than one member for
each twenty thousand of the population.
3 The ratio between the number of members to be elected
at any time for each constituency and the population of each
constituency, as ascertained at the last preceding census,
shall, so far as it is practicable, be the same throughout the
country.
4 The Oireachtas shall revise the constituencies at least
once in every twelve years, with due regard to changes in
distribution of the population, but any alterations in the
constituencies shall not take effect during the life of Dil
ireann sitting when such revision is made.
5 The members shall be elected on the system of
proportional representation by means of the single
transferable vote.
6 No law shall be enacted whereby the number of members
to be returned for any constituency shall be less than three."
Article 16.3 to 16.7 of the Constitution states: 3. 1 Dil ireann shall be summoned and dissolved as
provided by section 2 of Article 13 of this Constitution.

2 A general election for members of Dil ireann shall take
place not later than thirty days after a dissolution of Dil
ireann.
4. 1 Polling at every general election for Dil ireann shall
as far as practicable take place on the same day throughout
the country.
2 Dil ireann shall meet within thirty days from that polling
day.
5. The same Dil ireann shall not continue for a longer
period than seven years from the date of its first meeting a
shorter period may be fixed by law.
6. Provision shall be made by law to enable the member of
Dil ireann who is the Chairman immediately before a
dissolution of Dil ireann to be deemed without any actual
election to be elected a member of Dil ireann at the
ensuing general election.
7. Subject to the foregoing provisions of this Article, elections
for membership of Dil ireann, including the filling of casual
vacancies, shall be regulated in accordancewith law."
Section 39(2) of the Electoral Act, 1992 provides:"Where a vacancy occurs in the membership of the Dil by a
person ceasing to be a member otherwise than in
consequence of a dissolution, the Chairman of the Dil (or,
where he is unable through illness, absence or other cause
to fulfil his duties or where there is a vacancy in the office of
Chairman, the Deputy Chairman of the Dil) shall, as soon as
he is directed by the Dil so to do, direct the Clerk of the Dil
to issue a writ to the returning officer for the constituency in
the representation of which the vacancy has occurred
directing the returning officer to cause an election to be held
of a member of the Dil to fill the vacancy mentioned in the
writ."
It is common case between the parties that section 39 of the
Electoral Act 1992 is the legislation designed to exercise the
discretion relating to the filling of casual vacancies conferred
by Article 16.7 of the Constitution.
Reference might also usefully be made at this point to the
statutory provisions relating to casual vacancies which arise
in Seanad ireann. Section 56(1) of the Seanad Electoral
(Panel Members) Act 1947 provides:"Where the Minister receives from the Clerk of Seanad
ireann a notice of a casual vacancy, the Minister shall, as
soon as conveniently may be and in any case not more than
one hundred and eighty days after receiving the notice,
make an order (in this Act referred to as a Seanad byeelection order) directing an election to be held in accordance
with this Part of this Act to fill the vacancy and stating the
panel and sub-panel in respect of which the vacancy
occurred and appointing for the purposes of the election the
times and places mentioned in whichever of the two next
following subsections of this section is applicable."
Given that the applicant also placed reliance on s. 2 of the
European Convention on Human Rights Act 2003, it is
important to set out the terms of that section which provide:"2(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 States 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."
The obligation which the applicant contends the State owes
under the Convention provision is set out in Protocol No. 1 of
the European Convention of Human Rights which provides:"Article 3
Right to free elections
The High Contracting Parties undertake to hold free elections
at reasonable intervals by secret ballot, under conditions

which will ensure the free expression of the opinion of the
people in the choice of the legislature. (Emphasis added)
THE ISSUES RAISED
Counsel on behalf of the applicant submitted that the issues
in the case could be summarised under the following five
headings:1.
Are the proceedings moot or unnecessary by reason of
Minister John Currans statement to the Dil on the 29th
September, 2010?
2.
Is the matter non-justiciable by reason of seeking to
constrain members of the Government in terms of how they
vote in Dil ireann?
3.
Is there an obligation to fill the vacancy within a
reasonable time?
4.
If there is such an obligation, is it entirely a matter for
Dil ireann and/or the Government, and therefore nonjusticiable by reason of the doctrine of separation of powers?
5.
Is there an obligation to fill the vacancy within a
reasonable time, and if that question is justiciable, has there
been an excessive delay in filling the vacancy in Donegal
South West having regard to constitutional and statutory
principles?
It seems to me, however, that the matter which the court
must first address is whether the issues raised in this case
are justiciable. In doing so I appreciate that, as pointed out
by counsel for the respondents, this application is not a
challenge to the constitutionality of the Electoral Act 1992,
or any provision of that Act.
JUSTICIABILITY
When the hyperbole associated with many of the
submissions advanced on behalf of both the applicant and

the respondents is dispensed with in this case, particularly
those on behalf of the respondent which suggested that it
would tear asunder the tripartite division of powers under
the Constitution for the Court to express any view on the
matters raised, it seems to me that a fairly basic and simple
question requires to be addressed. As the provisions of
Article 16.7 of the Constitution delegate to the Oireachtas
the power to legislate for elections to membership of Dil
ireann, including the filling of casual vacancies, and as the
Oireachtas has purportedly executed that power by enacting
s. 32 of the Electoral Act 1992, does the court have a
function in determining whether the provisions of section
39(2) require to be interpreted as meaning that a by-election
is to be held within a reasonable time, or, as the respondents
submit in the alternative, the terms of the subsection leave
the Dil at large as to whether and when it shall direct the
Clerk of the Dil to issue a writ directing the returning officer
to cause an election to be held of a member of the Dil to fill
the vacancy mentioned in the writ.
A useful starting point is to consider the approach taken to
this issue in the High Court by Geoghegan J. in Dudley v. An
Taoiseach [1994] 2 I.L.R.M. 321.
In that case the applicant was a student residing in the
Dublin South Central constituency. Some fourteen months
after the sitting Dil Deputy, John OConnell resigned his Dil
ireann seat, the vacancy had not been filled by a byelection. Numerous attempts in the Dil to have the writ
moved for a by-election had been successfully resisted by
the Government and its supporters. The applicant argued
that, as a registered elector in the constituency, his rights to
vote at common law, by statute and under the constitution
were being infringed.
At p. 323, Geoghegan J. stated:Having regard to Article 16 of the Constitution and in
particular s. 7 of that Article which envisages that casual

vacancies will be filled and that the filling of them shall be
regulated in accordance with law, there must, I think, be at
least an arguable case that there is a constitutional
obligation to hold a by-election within a reasonable time of a
vacancy occurring.
Geoghegan J. then went on to consider the very grounds of
objection which had been raised by the respondents in the
instant case. In a later passage on p. 323 he stated:"But even if I am right in both of those propositions the
question arises, should leave be given for judicial review
having regard to the separation of powers and having regard
also to the particular proposed respondents. (In that case
Dil ireann had also been joined as a party by the
applicant). In order to address that question it is necessary
to review the procedure prescribed by law for the holding of
a by-election. That is governed now by s. 39(2) of the
Electoral Act 1992."
Having recited the subsection in full, Geoghegan J.
continued:"It follows from this that a by-election cannot be held until a
writ has been issued to the returning officer for the
constituency. As no such writ has yet issued the returning
officer is not at fault in failing to hold a by-election. The writ
to the returning officer is issued by the clerk of the Dil. But
the clerk of the Dil is not at fault either in not issuing the
writ to the returning officer since under the subsection he
can only do so if directed by the Dil itself. The Dil has not
given such direction. The only machinery by which the Dil
can give such direction is by a motion laid before the Dil by
a member of the Dil and then carried by a majority of the
Dil. In my view, declaratory relief as sought by way of
judicial review is not obtainable as against Dil ireann
because such relief should only be granted where it could be
followed up either in the same proceedings or in some other
proceedings by an enforceable order. No enforceable order
can be made by the courts as against Dil ireann as such.
Dil ireann can only give the direction if the majority of the
members vote for the motion, but the courts cannot
mandamus the body of members of the Dil as such to vote
in a particular way on a particular motion.
Having expressed those views, Geoghegan J. refused leave
for judicial review as against Dil ireann, and further
refused leave to institute review proceedings against the
Taoiseach as he did not see that the Taoiseach was under a
personal responsibility in relation to any of the matters
complained of. However, Geoghegan J applied quite different
considerations to the proposed judicial review proceedings
insofar as they were brought against the Government of
Ireland. In this regard he stated at p. 324:"As Dil ireann cannot move of its own motion, I think that
there must be an arguable case at least that the
Government of Ireland has a constitutional obligation to set
down and support the motions for the issue of a writ for the
holding of a by-election after a reasonable time has elapsed
from the vacancy arising and that there is also an arguable
case that the Government is constitutionally obliged not to
impede or oppose such a motion after a reasonable time has
elapsed, except in the context of substituting its own motion.
As a Minister can be judicially reviewed in the exercise of his
powers and functions, there must, I think, be an arguable
case that the government can be judicially reviewed in the
circumstances of this particular case."
He then proceeded to grant leave to the applicant to bring
judicial review proceedings as against the Government of
Ireland and the Attorney General. He also directed that
Ireland be joined as a respondent.
That application, unlike the present proceedings, does not
appear to have proceeded any further, but, perhaps
significantly, and just as in the instant case, there was no
application brought on behalf of the respondents to set aside
the leave which had been granted on the grounds that the
issue sought to be determined was non-justiciable.
In considering whether any particular controversy is
justiciable, the courts take great care to uphold the principle
of the separation of powers and to avoid situations where

the court goes beyond its own proper own role in the
constitutional framework laid down by the Constitution.
In Maguire v Ardagh (2002) 1 I.R. 385 Keane C.J. noted that
the Constitution did not expressly exempt the actions of the
Oireachtas or individual members thereof from judicial
scrutiny save to the extent specified in Article 15.12 and
Article 15.13. Keane C.J. acknowledged that the doctrine of
the separation of powers precluded the courts from
accepting every invitation to interfere with the conduct by
the Oireachtas of its own affairs. Keane C.J. then continued to
list specific activities that were non- justiciable, stating as
follows at p. 537:
"Specifically, the courts have made it clear that they will not
intervene in the manner in which the House exercises its
jurisdiction under Article 15.10 to make its own rules and
standing orders and to ensure freedom of debate where the
actions sought to be impugned do not affect the rights of
citizens who are not members of the House: see the decision
of this court in Slattery v An Taoiseach [1993] 1 I.R. 286. It
was also held by the former Supreme Court in Wireless
Dealers Association v Minister for Industry and Commerce
(Unreported, Supreme Court, 14th March, 1956) that the
courts could not intervene in the legislative function itself:
their powers to find legislation invalid having regard to the
provisions of the Constitution arise only after the enactment
of legislation by the Oireachtas, save in the case of a
reference of a Bill by the President to this court under Article
26. Nor, in general, will the courts assume the role
exclusively assigned to the Oireachtas in the raising of
taxation and the distribution of public resources, as more
recently made clear by this court in T.D. and Others v
Minister for Education and Science and Others [2001] 4 I.R.
259.
A justiciable controversy may, at its simplest, be defined as a
dispute capable of litigation in the courts. In Baker v Carr
369 US 186 (1962), the United States Supreme Court held
that the issue of justicability should be determined on a case

by case basis. It has also been suggested that:"Non-justicability concerns whether a court can with
constitutional propriety adjudicate on the matter before it or
whether such an adjudication would be an infringement by
the court of the role which the Constitution has conferred on
it. Essentially the doctrine is concerned with identifying
those claims which may be legitimately advanced before a
court and those which must be advanced in parliament
through the political process. In other words, is it a case for
judicial or political relief. (McDermott, The Separation of
Powers and the Doctrine of Non-Justiciability 35 Irish Jurist
280 at p. 280).
Thus controversies surrounding purely political issues or the
extent to which the revenue or borrowing powers of the
State are exercised or the purposes for which funds are
spent are entirely outside the proper role of the court. Thus,
in O'Reilly v Limerick Corporation [1989] I.L.R.M. 181, the
question as to whether the Oireachtas had adequately
provided for disadvantaged groups via its taxation policies
was deemed to be non- justiciable.
Similarly, in international relations and the conduct of foreign
affairs, the courts have invariably taken the view that
controversies which may arise are non-justiciable at the
behest of individual citizens as the provisions of Articles 29.1
to Article 29.3 relate only to relations between states and
confer no rights upon individuals. (See Horgan v An
Taoiseach [2003] 2 I.R. 468).
However, even in this context, the courts have seen fit to
intervene when an actual or threatened breach of an
individuals constitutional rights may occur, as in Crotty v An
Taoiseach [1987] 1 I.R. 713 where Finlay C.J. stated at p.
774:"The overall provisions concerning the exercise of executive
power in external relations do not contain any express
provision for intervention by the Courts. There is nothing in
the provisions of Articles 28 and 29 of the Constitution, in my
opinion, from which it would be possible to imply any right in

the Courts in general to interfere in the field or area of
external relations with the exercise of an executive power.
This does not mean that the executive is or can be without
control by the Courts in relation to carrying out executive
powers even in the field of external relations. In any instance
where the exercise of that function constituted an actual or
threatened invasion of the constitutional rights of an
individual, the Courts would have a right and duty to
intervene."
Equally, in what might be described as a political context,
the Supreme Court by a majority decision in McKenna v An
Taoiseach (No.2) [1995] 2 I.R. 10 took the view that the
question of state funding for referendum campaigns was
justiciable. Hamilton C.J. stated, at p. 32, that the case law
established the three principles for judicial intervention:"1. The courts have no power, either express or implied, to
supervise or interfere with the exercise by the Government
of its executive functions provided that it acts within the
restraints imposed by the Constitution on the exercise of
such powers.
2. If, however, the Government acts otherwise than in
accordance with the provisions of the Constitution and in
clear disregard thereof, the courts are not only entitled but
obliged to intervene.
3. The courts are only entitled to intervene if the
circumstances are such as to amount to a clear disregard by
the Government of the powers and duties conferred on it by
the Constitution".
In Murphy v Minister for the Environment [2008] 3 I.R. 438,
Clarke J. considered the question of delay in implementing a
census. He held that it would not have been practicable to
implement the report within the two or three months
between publication of census and dissolution of the Dil.
However, at p. 471, he went on to say that if the Oireachtas
did not take steps with "the minimum delay", it might be
appropriate for the court to intervene:
"8.7 In the circumstances of this case I am not satisfied that

it would be appropriate to conclude that the Oireachtas has
failed in its constitutional obligations. I do not, therefore,
propose making a declaration in those terms. However it
does appear to me to be a case in which it is appropriate to
adopt the position taken by the Supreme Court in District
Judge MacMenamin v Ireland [1996] 3 I.R. 100, in which the
courts view as to the general constitutional obligations
which arise are set out and the Oireachtas is invited to take
whatever detailed measures it might consider appropriate to
deal with the issue which has arisen. The precise methods to
be adopted in the formulation of new constituencies, is, of
course, a matter for the Oireachtas. The only role of the
court is to intervene if the methods adopted are in breach of
the constitutional obligations of the Oireachtas. For the
reasons which I have indicated, I am not satisfied that that
position has been reached. However it seems to me to be
clear that if, without justifiable reasoning, the Oireachtas did
not take appropriate steps to ensure the minimum delay
between the finalisation of the ascertainment of the
population in a census and the determination and enactment
of a law providing for new constituencies, then it might be
appropriate for the court to take further action".
That decision would appear to have particular resonance in
terms of the facts of the instant case. In McDonald v Bord na
gCon [1965] 1 I.R. 217 Kenny J. in the High Court concluded
that a justiciable controversy is one of a type, which, as a
matter of history, has been capable of litigation in the courts
of this country.
While clearly, as illustrated by decisions such as O'Malley v
An Ceann Comhairle [1997] 1 I.R. 427 (a case in which the
applicant contended that certain parliamentary questions
had been wrongly disallowed by An Ceann Comhairle),
internal matters and the internal workings of Dil ireann not involving citizens outside the House - fall outside the
appropriate remit for the courts intervention, this is not such
a case because the applicant is in a position to assert that
his constitutional rights are being breached or rendered
inoperative because of the manner in which the Government
is applying and exercising the provisions of section 39(2) of

the Electoral Act, 1992.
It seems to me that there is ample precedent for concluding
that decisions or omissions which affect or infringe citizens
rights under the Constitution are prima facie justiciable. Thus
in Ahern v Minister for Industry and Commerce (No. 2) [1991]
1 I.R. 492, a decision to put a civil servant on compulsory
sick leave was held to be justiciable since it affected his right
to work. Similarly, in MacPharthalain v Commissioners of
Public Works [1992] 1 I.R. 111, the designation of certain
lands as constituting an area of scenic interest was held to
give rise to a justiciable controversy as it affected a
landowner's right to obtain certain types of grants.
It seems to me that a citizen's constitutional rights are
trenched upon and significantly diluted when no effect is
given to rights for representation clearly delineated in the
Constitution. These are rights which might usefully be
characterised as forming part of the "constitutional contract"
between the citizen and the State.
Implicit in Article 5 of the Constitution, which states that
Ireland is a sovereign, independent and democratic state, is
a recognition of the requirement for democratic
representation through the electoral system which the
Constitution provides. Article 16.1 of the Constitution
provides for a clear right for every citizen to have the right to
vote at an election for members of Dil ireann. Article 16.2
further provides that the number of members shall from time
to time be fixed by law, but in any event the total number
shall not be fixed at less than one member for each 30,000
of the population, or at more than one member for each
20,000 of the population. Article 16.2.3 requires that the
ratio between the number of members to be elected at any
time for each constituency and the population of each
constituency, as ascertained at the last preceding census,
shall, so far as is practical, be the same throughout the
country.
These provisions are in no sense aspirational. They do, as

already, noted, set out the citizens rights in clear and
unambiguous terms. Furthermore, Article 16.7 which
provides for elections for membership of Dil ireann to be
regulated in accordance with law, specifically refers to "the
filling of casual vacancies" which seems to me to imply
something more than the mere regulation, without more, of
elections for casual vacancies. (Emphasis added).
The applicant in the present case is a person who is entitled
in my view to seek judicial review in the limited declaratory
form being sought on the issue as to whether or not a
lengthy delay in moving the writ for the by-election in
question may be said to infringe those rights.
As has being emphasised, this is not a case in which the
constitutionality of section 39(2) of the Electoral Act, 1992
has per se been called into question. Rather, it is a case in
which the applicant invites the court to hold that, by
reference to the aforesaid constitutional provisions, the
Electoral Act, 1992 and, in particular, section39(2) thereof,
must be operated and applied by the Government in a
manner which upholds and reflects the constitutional
position. Put another way, a constitutional approach
necessarily means that section 39(2) of the Act of 1992 must
be interpreted as being subject to a temporal requirement
that a by-election motion be either moved by the
Government or not resisted by it within a reasonable time of
the vacancy arising.
I am satisfied that this is a justiciable controversy. It is not a
controversy which relates to the internal workings of Dil
ireann in relation to its own affairs; it is not a controversy in
relation to external affairs or to any issue which might be
characterised as a socio-economic issue. Rather this
applicant's case relates to the effects of delay on his right to
be represented by the number of members laid down by law,
and the right to equality of political representation.
THE CONSTITUTIONAL APPROACH TO STATUTORY

INTERPRETATION
It is well settled that the courts should interpret a statute in
accordance with the Constitution and on the assumption that
it complies with the Constitution (per McCracken J in Eastern
Health Board v McDonnell [1999] 1 IR 174 at p. 183).
In Minister for Social Community and Family Affairs v Scanlon
[2001] 1 I.R. 64 there had, as in the instant case, been no
direct challenge to the constitutionality of the legislation in
issue. Nevertheless Fennelly J in the course of his judgment,
at p 85, stated that:
The court must not interpret it so as to bring it into conflict
with the Constitution if that is reasonably possible as a
matter of interpretation
The presumption of constitutionality which applies to
statutes also means that a statute must, where possible, be
construed in a fashion which best protects constitutional
rights (per Hamilton CJ in Hanafin v Minister for the
Environment [1996] 2 IR 321 at pp. 423 and 424 and at pp.
441 and 442 per Blayney J).
In East Donegal Co-operative Ltd v Attorney General [1970]
I.R. 317 Walsh J stated that even where the mode of
performing official actions envisaged by an Act is not
specified in the Act, they must be performed in such a way
as to respect the Constitution. At p 341, Walsh J. stated the
following:
At the same timethe presumption of constitutionality
carries with it not only the presumption that the
constitutional interpretation or construction is the one
intended by the Oireachtas but also that the Oireachtas
intended that proceedings, procedures, discretions and
adjudications which are permitted, provided for or prescribed
by an Act of the Oireachtas are to be conducted in
accordance with the principles of constitutional justice. In
such a case any departure from those principles would be
restrained and corrected by the Courts.
Finally, a useful example may be referred to at this point to

illustrate how the courts can make a straight choice between
an interpretation which is constitutional and one which is
not. In Re National Irish Bank (No.1) [1999] 3 I.R. 145 the
ambit of section 18(a) of the Companies Act 1990, which
provides that answers given by a person pursuant to
statutory demand made by company inspectors may be
used in evidence against him, without specifying whether
this encompassed criminal cases, was considered. Barrington
J pointed out that, while there might be two possible
interpretations of the section, the better interpretation in
the light of the Constitution was that the section was not to
be construed as permitting the admission of a statement
made to a company inspector by a person who was legally
compelled to answer and section 18(a) accordingly only
applied to the admission of such evidence in civil
proceedings.
A construction which treats section 39(2) of the Electoral Act,
1992 as devoid of any temporal requirement clearly offends
the Constitutional provisions of Article 5 and Article 16. For
example, if an elected representative were to die within a
few days of being elected at a general election, could the
Government be said to be acting in conformity with the
Constitution if it kept putting off a by-election until the last
few months of the five year term of a Dil? To ask the
question is, I think, to know the answer: it most certainly
would not.
To read section 39(2) of the Electoral Act, 1992 as being
subject to the requirement that the writ be moved within a
reasonable time does no violence to the express wording of
the sub-section. Rather it gives effect to the sub-section in a
manner which honours the Constitutional provisions in
question.
Even looking at ordinary principles of statutory construction,
it is well settled that a statute should not be given an
interpretation which is illogical or absurd. Common sense
must be used and the court must strive to implement rather
than defeat the object of the legislation. This rule of

interpretation is sometimes referred to via the maxim ut res
magis valeat quam pereat (it is better for a thing to have
effect than to be made void). The absence of a temporal
requirement in section 39(2) of the Act of 1992 could
produce precisely that result. So construed, an entire Dil
term of 5 years could pass without any obligation falling on
the Government to exercise its control of the Dil to move or
not oppose a motion.
It must also be remembered that the Act of 1992 is part of a
code of Electoral Acts which includes the Electoral
(Amendment) Act, 2005 which provides as follows at section
2:
Dil ireann shall, after the dissolution thereof that next
occurs after the passing of this Act, consist of 166 members
Counsel for the respondents argued that this provision
meant nothing more than to specify the numbers that would
make up the present Dil following the last general election
but it seems equally open to the interpretation that, during
its lifetime, the Dil should, as far as practicable, continue to
have that number of deputies.
I conclude therefore that, by well settled principles of
constitutional and statutory construction, section 39(2) of
the Electoral Act, 1992 is to be construed as incorporating a
requirement that the discretion reserved thereunder be
exercised within a reasonable time.
ROLE OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS
I have already set out the provisions of s. 2(1) of the
European Convention on Human Rights Act, 2003 which
impose an obligation on a court, when interpreting and
applying any statutory provision, to do so, so far as is
possible, in a manner compatible with the States
obligations under the Convention provisions.
Every organ of the State is obliged (under s.3(1)) of the Act
of 2003 to perform its functions in a manner compatible
with the States obligations under the Convention provisions.
The President and the Oireachtas, or either House thereof, is

excluded from this definition. Any other body, other than a
court, through which the legislative, executive or judicial
powers of the State are exercised, is subject to this
requirement.
Article 3 of Protocol 1 of the Convention requires that
elections be held at reasonable intervals. The applicant
relies on this provision to argue that s. 39 (2) of the Electoral
Act, 1992 be interpreted and applied in accordance with
the requirements of s. 2 of the Act of 2003.
Some limited authority was opened to the Court by the
parties in this regard, there being an absence of cases
decided by the European Court of Human Rights indicating
that the reasonable intervals requirement applied to
anything other than general elections. Counsel for the
respondents suggested that, as many European countries
filled casual vacancies from a list system, it would be wrong
to apply any such requirement to a by-election.
Reference was made to passages from Clayton & Tomlinson
The Law of Human Rights (2nd Ed. Oxford, 2009) the first of
which, at para. 20.35 states:
The Court has observed that democracy is without doubt a
fundamental feature of the European public order and has
held that Article 3 of the First Protocol enshrines the principle
of efficient political democracy. It also protects individual
rights of participation; the right to vote and the right to
stand for election to the legislature. These rights are not
absolute and there is room for implied limitations. States can
make the rights subject to conditions and have a wide
margin of appreciation. However, the conditions must not
impair the very essence of the rights or deprive them of their
effectiveness.
At para. 20.37 the authors state:
Reasonable Intervals
The Convention does not lay down any particular interval for
holding elections. The question as to whether elections were

held at reasonable intervals must be decided by reference to
the purpose of parliamentary elections: ensuring that
changes in public opinion were reflected in the opinions of
the elected representatives. Too short an interval might
impede political planning. On the basis of these
considerations, an interval of five years between elections
was reasonable (see Timke v Germany [1996] E.H.L.R. 74).
It can hardly be disputed that, historically in this jurisdiction
at least, by-elections have been seen to provide a very clear
barometer of public opinion and to serve an important
function in the working of a democratic representative
system. Thus the same principles which underpin the
authors views about the requirement to hold general
elections at reasonable intervals seem to me to apply with
equal if not greater force where by-elections are
concerned. It would strike me as absurd to apply a
requirement of reasonable time to the holding of a general
election and then to flout or altogether ignore the same
principle at the micro level of a by-election. The issue of
representation is the same; the requirement to provide an
opportunity to the electorate to have their views expressed
by elected representatives is also the same.
I am of the view therefore that s. 2 of the Act of 2003 does
require that s. 39(2) of the Electoral Act, 1992 be
interpreted and applied (the latter requirement being
perhaps particularly relevant in this context) by reference to
Article 3 of Protocol I to the Convention as requiring that a
by-election be held within a reasonable time of the vacancy
arsing.
MOOTNESS
A fall-back position adopted by the respondents is to argue
that no declaratory relief should be granted because of the
commitment given to Dil ireann on the 29th September,
2010 that it was the intention of the Government to move
the writ for the by-election to fill the vacancy in Donegal
South West in the first quarter of 2011. It was argued on
behalf of the respondents that the Court is not therefore
confronted with a situation of which it could be said that the

by-election is not going to be held within the lifetime of the
current Dil. I would observe, en passant, that implicit in this
submission is a recognition that indefinite postponement of
the by-election would amount to a gross disregard of those
provisions of the Constitution which exist and are designed
to provide for an effective democracy.
I am of the view however that the Court should not resile
from its own constitutional obligations by reference to a
particular statement of intent made on a particular occasion
by a spokesman on behalf of the Government.
Circumstances might quite legitimately dictate a changed
statement of intent and the court has no right to conduct
any sort of watchdog role over events which call for
consideration within the political arena. Just as the Court has
no function to assess or evaluate statements made or
reasons offered when the Dil voted as it did on three
previous occasions on this issue, it has no adjudicative role
on any statement of intent in relation to future events either.
Its function is confined purely within the narrow confines
already outlined.
FORM OF DECLARATION
The Court will declare that section 39(2) of the Electoral Act,
1992 is to be construed as requiring that the writ for a byelection be moved within a reasonable time of the vacancy
arising.
Has there in fact been unreasonable delay in moving the writ
for the by-election in the Donegal South West constituency?
The Dil has a 5 year term and the unprecedented delay in
this instance the longest in the history of the State
represents a significant proportion of the term of the current
Dil. The Court notes that The Constitution Review Group in
its Report in 1996 proposed (at p 49) that Article 16.7 of the
Constitution be amended so as to require the holding of a
by-election within 90 days of the vacancy occurring.
Whatever else, this recommendation may be seen as
affording recognition to the requirement that by-elections
take place within a reasonable time of any vacancy arising.

Other instances of appropriate time intervals in different
countries which provide for by-elections in their electoral
systems have been referred to elsewhere in this judgment.
None is of the length that has occurred here. Even allowing
for the wide margin of appreciation which must be afforded
to the Government when moving the writ, not least for
reasons which it has offered to the Dil (and which are not
for this Court to evaluate), I am satisfied that the delay in
this case is so inordinate as to amount to a breach of the
applicants constitutional rights to such a degree as to
warrant the Court granting some form of relief. Far from the
Court tearing asunder the provisions of the Constitution by
adjudicating upon this application, it is the ongoing failure to
move the writ for this by-election since June 2009 which
offends the terms and spirit of the Constitution and its
framework for democratic representation.
However, as this matter has not been the subject matter of
detailed court analysis in the past, I do not propose to make
a declaration of the wider sort contemplated or implicit - as a
possibility at least - in the judgment of Geoghegan J in
Dudley v An Taoiseach [1994] 1 I.L.R.M. 321, i.e., that the
Government is obliged to set down and support the motion
for the issue of a writ or at least not impede or oppose such
a motion. I would hope, however, that any clarification
provided by this judgment would have that effect. As
Hamilton CJ stated in District Judge McMenamin v Ireland
[1996] 3 IR 100 at 136:
I do not propose to make a declaration giving effect to my
views because, having regard to the respect which the
separate organs of government, the legislature, the
government and the judiciary have traditionally shown to
each other, I am satisfied that once the Government is made
aware of the situation with regard to this constitutional
injustice, it will take the necessary steps to have the matter
remedied in accordance with the law and in accordance with
its constitutional obligation.
The court might in another case following on from this one

feel constrained to take a more serious view if any
government, and not just necessarily the present one, was
seen by the courts to be acting in clear disregard of an
applicants constitutional rights in continually refusing over
an unreasonable period of time to move the writ for a byelection. That the Court can intervene in a more draconian
way in extreme cases to protect constitutional obligations
was made clear by OFlaherty J in OMalley v An Ceann
Comhairle [1997] 1 I.R. 427 and by Murray CJ in TD v
Minister for Education [2001] 4 I.R. 259 at p. 337. This is not
yet such a case but in my opinion it is not far short of it.
However, for the reasons outlined above, the Court will
simply make the declaration sought by the applicant to the
effect that there has been unreasonable delay in moving the
writ for the by-election in Donegal South West.
http://courts.ie/judgments.nsf/597645521f07ac9a80256ef30048ca52/b
af3228928ac3b4b802577d0003fedb8?OpenDocument
[1982]
1 I.R.
241
Francis Murphy and Mary Murphy Plaintiffs v. The Attorney
General Defendant
[1978 No. 1435P]
High Court
12th October 1979
25th January 1980
25th April 1980
Constitution -Statute - Validity - Income tax - Husband and
wife - Incomes aggregated -Graduated scale of taxation Amount of tax normally payable on aggregated income
exceedingamounts payable by two unmarried persons in
receipt of same individual incomes - Equality beforethe law Income Tax Act, 1967 (No. 6), ss. 138, 192-198 - Constitution
of Ireland, 1937, Articles40, 41.Revenue - Income tax - Tax
imposed by statute - Statute declared to be invalid Recovery bytaxpayer of tax overpaid - Money paid under
mistake of law - Date from which overpaymentsrecoverable.
The plaintiffs, who were husband and wife, had been
employed as national schoolteachers since their marriage in
July, 1975. Income tax was deducted at source from each of
their salaries by their respective employers under schedule E
(s. 109) of the Income Tax Act, 1967. By virtue of s. 192 of
that Act the plaintiff wife's income was deemed for income
tax purposes to be her husband's income and not her own.
Section 197 of the Act of 1967 provided that either plaintiff
might apply to have income tax assessed, charged and
recovered separately on the income of each plaintiff, as
though they had not been married; but s. 193 provided that,
in such a case, the plaintiffs should not be entitled to any
greater sum by way of personal relief under Part IV (ss. 134154) of the Act, as amended, than that to which they would
have been entitled if no such application were made. Until
the enactment of the Finance Act, 1978, ss. 138-142
inclusive (as amended) of the Act of 1967 provided that the
income level of married couples which first attracted liability
to income tax was less than twice the amount of the level for
a single person for that purpose. In addition, the aggregated
salaries of a married couple attracted a higher rate of tax
than was applicable to the same amounts of income earned
by two unmarried people. The adverse differential thus
applied to married couples was lessened, but not completely
removed, by the Act of 1978. The plaintiffs continued to be
adversely affected by the differential.
The plaintiffs instituted an action in the High Court by
plenary summons on the 7th March, 1978. They claimed a
declaration that certain sections of the Act of 1967 were
invalid having regard to the provisions of the Constitution of
Ireland, 1937. At the hearing of the action it was
Held by Hamilton J., in giving judgment for the plaintiffs, 1,
that the right of privacy of a spouse in his or her marital
affairs which the State is called upon by Article 40, s. 3,

sub.s. 1, of the Constitution to defend and vindicate is not
violated by the State in compelling one spouse to disclose
particulars of his or her income to the other, inasmuch as
such right of privacy relates solely to the purely personal
elements of their relationship with each other, and not to the
elements of that relationship which form part of their joint
relationship with society.
McGee v. The Attorney General [1974] I.R. 284
distinguished.
2. That the statutory provision of a joint tax-free personal
allowance to a married couple smaller than that provided in
respect of an identical combined income enjoyed by two
single persons living together does not constitute an
invidious discrimination against the married couple, being
justified by the social function of a married couple as a
family recognised by Article 41 of the Constitution.
[1982]
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242
H.C.
3. That the provisions of ss. 192, 193 and 197 of the Act of
1967, as amended, were invalid having regard to the
provisions of the Constitution because they created an
invidious discrimination against married couples contrary to
Article 40, s. 1, and because they failed to guard the
institution of marriage with special care and to protect it
against attack.
On appeal by the defendant it was
Held by the Supreme Court, in disallowing the appeal, 1, that
the unequal treatment, for the purposes both of the
assessment of taxable income and of the collection of tax
from income, of a married couple living together, as
compared with the treatment of two single persons also
living together, was not prohibited by Article 40, s. 1, being
justified by the difference of social function between the

married couple and the two single persons.
2. That the consequent imposition, in certain circumstances,
of tax on the married couple at a higher rate than would be
imposed on two single persons enjoying identical incomes
did constitute a breach by the State of its undertaking, by s.
3 of Article 41, to guard with special care the institution of
marriage and to protect it against attack.
3. That the provisions of ss. 192-197 of the Act of 1967, by
providing for the aggregation of the earned incomes of
married couples and thus normally imposing on them tax at
such higher rate, were repugnant to the Constitution and
invalid.
The defendant, on behalf of the Government, sought a
decision specifying (a) whether the impugned sections were
invalid ab initio or had only become invalid as from the date
of the pronouncement of their invalidity by the High Court or
the Supreme Court, and (b) the extent of the relief to which
the plaintiffs were entitled in respect of tax overpaid by them
pursuant to the impugned sections.
Held further by the Supreme Court (O'Higgins C.J., Henchy,
Griffin, Kenny and Parke JJ.), in ruling the further points
raised, 1, (O'Higgins C.J. dissenting) that the effect of the
decision of the court was that the sections were invalid ab
initio and had never had the force of law.
2. (O'Higgins C.J. and Kenny J. dissenting) That the date as
from which the plaintiffs were entitled to be repaid the sums
collected from them by way of tax invalidly imposed was the
first day of the financial year immediately succeeding that in
which they had challenged the validity of the imposition of
the tax in question, namely, the 6th April, 1978.
3. (O'Higgins C.J. and Kenny J. dissenting) That, inasmuch as
until that date the State had been entitled to act and to
expend the revenue which it had acquired from the tax in
question on the bona fide assumption, contributed to by the
absence of objections on the part of any taxpayer, that such
tax had been validly imposed and such revenue properly
acquired, the plaintiffs were the only taxpayers entitled to
maintain a claim for restitution of tax in pursuance of the
Court's decision, unless proceedings had been instituted by

any other taxpayer challenging the validity of the sections
impugned in the present proceedings.
Defrenne v. Sabena (1976) 2 C.M.L.R. 98 applied.
1 The Stale (Quinn) v. Ryan [1965] I.R. 70.
2 The State (Sheerin) v. Kennedy [1966] I.R. 379.
3 McDonald v. Bord na gCon [1965] I.R. 217.
4 East Donegal Co-Operative v. The Attorney General [1970]
I.R. 317.
5 O'Brien v. Keogh [1972] I.R. 144.
6 The State (Nicolaou) v. An Bord Uchtla [1966] I.R. 567.
7 McGee v. The Attorney General [1974] I.R. 284.
8 Hoeper v. Tax Commission of Wisconsin (1931) 284 U.S.
206.
[1982]
1 I.R.
243
H.C.
9 Knowlton v. Moore (1900) 178 U.S. 41, 77.
10 The Federal Constitutional Court of the Republic of
Germany , Case No. 9 of 1957 (17th January, 1957).
11 The Constitutional Court of Italy , Case No. 179/1976
(14th July, 1976).
12 Ryan v. The Attorney General [1965] I.R. 294.
13 Quinn's Supermarket v. The Attorney General [1972] I.R.
1.
14 O'Brien v. Manufacturing Engineering Co. Ltd. [1973] I.R.
334.
15 de Burca v. The Attorney General [1976] I.R. 38.
16 Lehnhausen v. Lake Shore Auto Parts Co. (1973) 410 U.S.
356.
17 Kahn v. Shevin (1974) 416 U.S. 351.
18 Nashville, Chattanooga & St. Louis Railway v. Browning
(1940) 310 U.S. 362.
19 O'Byrne v. Minister for Finance [1959] I.R. 1.

20 Derry v. Inland Revenue 1927 S.C. 714.
21 Moynihan v. Greensmyth [1977] I.R. 55.
22 Crowley v. Ireland [1980] I.R. 102.
23 Mikrommatis v. Republic of Cyprus (1961) 2 R.S.C.C. 125.
24 Republic of Cyprus v. Demetriades (1977) 12 J.S.C. 2102.
25 Ioannides v. Republic of Cyprus (Case No. 327/776th
November, 1978).
26 Murtagh Properties v. Cleary [1972] I.R. 330.
27 In re Tilson [1951] I.R. 1.
28 Byrne v. Ireland [1972] I.R. 241.
29 In re Beaumont, deceased [1980] Ch. 444; [1979] 3
W.L.R. 818.
30 Malone v. Harrison [1979] 1 W.L.R. 1353.
31 Helby v. Rafferty [1979] 1 W.L.R. 13.
32 Boland v. An Taoiseach [1974] I.R. 338.
33 The State (Healy) v. Donoghue [1976] I.R. 325.
34 McMahon v. The Attorney General [1972] I.R. 69.
35 The State (Byrne) v. Frawley [1978] I.R. 326.
36 Defrenne v. Sabena [1976] 2 C.M.L.R. 98.
37 Chicot County Drainage District v. Baxter State Bank
(1940) 308 U.S. 371.
38 Linkletter v. Walker (1965) 381 U.S. 618.
39 Stovall v. Denno (1967) 388 U.S. 293.
40 Cipriano v. City of Houma (1969) 395 U.S. 701.
41 Chevron Oil Co. v. Huson (1971) 404 U.S. 97.
42 United States v. Peltier (1975) 422 U.S. 531.
43 Ua Clothasaigh v. McCartan (1948) I.R. 219.
44 Marbury v. Madison (1803) 5 U.S. 49.
45 William Whiteley Ltd. v. The King (1909) 101 L.T. 741.
46 Glasgow Corporation v. Inland Revenue 1959 S.L.T. 230.
47 Dolan v. Neligan [1967] I.R. 247.
48 Mason v. New South Wales (1959) 102 C.L.R. 108.
49 Maclaine v. Gatty [1921] 1 A.C. 376.
50 Great Northern Railway Co. v. Sunburst Oil & Refining Co.
(1932) 287 U.S. 358.
[1982]
1 I.R.

244
H.C.
51 Griffin v. Illinois (1956) 351 U.S. 12.
52 Johnson v. New Jersey (1966) 384 U.S. 719.
53 R. v. National Insurance Commissioner; ex parte Hudson
[1972] A.C. 944.
54 Ex parte James (1874) 9 Ch. App. 609.
55 In re Tyler [1907] 1 K.B. 865.
56 Kiriri Cotton Co. Ltd. v. Dewani [1960] A.C. 192.
57 East Cork Foods v. O'Dwyer Steel [1978] I.R. 103.
58 Sebel Products Ltd. v. Commissioners of Customs and
Excise [1949] Ch. 409.
59 Larner v. London County Council [1949] 2 K.B. 683.
60 Norton v. Shelby County (1886) 118 U.S. 425.
61 Maher v. The Attorney General [1973] I.R. 140.
62 South Australia v. The Commonwealth (1941) 65 C.L.R.
373.
63 M. v. An Bord Uchtla [1975] I.R. 81.
64 In re Haughey [1971] I.R. 217.
65 Thomson v. St. Catherine's College, Cambridge [1919]
A.C. 468.
66 Henderson v. Folkestone Waterworks Co. (1885) 1 T.L.R.
329.
67 Moses v. Macferlan (1760) 2 Burr. 1005.
68 Bell Bros. Pty. Ltd. v. Shire of SerpentineJarrahdale
(1969) 121 C.L.R. 137.
69 Sargood Brothers v. The Commonwealth (1910) 11 C.L.R.
258.
70 Chicago, Indianapolis & Louisville Railway Co. v. Hackett
(1931) 228 U.S. 559.
71 Almeida-Sanchez v. United States (1973) 413 U.S. 266.
72 In re Evelyn Doyle (Supreme Court, 21st December,
1955).
Plenary Summons.
On the 7th March, 1978 the plaintiffs, Francis and Mary
Murphy, who were husband and wife, commenced an action

in the High Court in which they claimed a declaration that
the provisions of ss. 192-198 and of s. 138 of the Income Tax
Act, 1967, were invalid, having regard to the provisions of
the Constitution of Ireland, 1937. Section 198 of the Act of
1967, which related to sur-tax, had been repealed by s. 86 of
the Finance Act, 1974 (which came into operation on the 6th
April, 1974) and, therefore, did not affect the plaintiffs.
Article 11 of the Constitution of Ireland provides:
"All revenues of the State from whatever source arising
shall, subject to such exceptions as may be provided by law,
form one fund, and shall be appropriated for the purposes
and in the manner and subject to the charges and liabilities
determined and imposed by law."
[1982]
1 I.R.
245
H.C.
Article 15, by s. 1, provides that the National Parliament
(generally referred to in the Constitution as the Oireachtas)
shall consist of two houses, a house of representatives to be
called Dil ireann and a senate to be called Seanad
ireann . Article 15, s. 4, of the Constitution provides:
"1 The Oireachtas shall not enact any law which is in any
respect repugnant to this Constitution or any provision
thereof.
2 Every law enacted by the Oireachtas which is in any
respect repugnant to this Constitution or to any provision
thereof, shall, but to the extent only of such repugnancy, be
invalid."
"1 As soon as possible after the presentation to Dil
ireann under Article 28 of this Constitution of the
Estimates of receipts and the Estimates of expenditure of the
State for any financial year, Dil ireann shall consider
such Estimates.
2 Save in so far as may be provided by specific enactment
in each case, the legislation required to give effect to the
Financial Resolutions of each year shall be enacted within
that year."
Article 22, s. 1, of the Constitution defines a money bill as
meaning a bill". . . which contains only provisions dealing
with all or any of the following matters, namely, the
imposition, repeal, remission, alteration or regulation of
taxation; the imposition for the payment of debt or other
financial purposes of charges on public moneys or the
variation or repeal of any such charges; supply; the
appropriation, receipt, custody, issue or audit of accounts of
public money; the raising or guarantee of any loan or the
repayment thereof; matters subordinate and incidental to
these matters or any of them."
The expressions "taxation," "public money," and "loan" in
this definition are expressed, in sub-s. 2 of s. 1, not to
include any taxation, money or loan raised by local
authorities for local purposes.
"1. As soon as any Bill, other than a Bill expressed to be a
Bill containing a proposal for the amendment of this
Constitution, shall be passed or deemed to have been
passed by both Houses of the Oireachtas, the Taoiseach shall
present it to the President for his signature and for
promulgation by him as a law in accordance with the
provisions of this Article."
Section 4, sub-s. 1, of Article 25 provides:
"1 Every Bill shall become and be law as on and from the
day on which it is signed by the President under this
Constitution, and
[1982]
1 I.R.
246
H.C.
shall, unless the contrary intention appears, come into

operation on that day."
Article 26, s. 1, sub-s. 1, of the Constitution empowers the
President after consultation with the Council of State to refer
any bill to which the Article applies to the Supreme Court for
a decision on the question whether such bill or any specified
provision thereof is repugnant to the Constitution. Among
the types of Bill to which the Article is stated at the outset
not to apply is a money bill.
Article 28, s. 4, sub-s. 3, of the Constitution directs the
Government to prepare estimates of the receipts and of the
expenditure of the State for each financial year, and to
present such estimates to Dil ireann for consideration.
Article 34, s. 4, sub-s. 1, declares that the court of final
appeal shall be called the Supreme Court, and, by sub-ss. 4
and 5, provides:
"4 No law shall be enacted excepting from the appellate
jurisdiction of the Supreme Court cases which involve
questions as to the validity of any law having regard to the
provisions of this Constitution.
5 The decision of the Supreme Court on a question as to the
validity of a law having regard to the provisions of this
Constitution shall be pronounced by such one of the judges
of that Court as that Court shall direct, and no other opinion
on such question, whether assenting or dissenting, shall be
pronounced, nor shall the existence of any such other
opinion be disclosed."
before the law. This shall not be held to mean that the State
shall not in its enactments have due regard to differences of
"3. 1 The State guarantees in its laws to respect, and, as far
every citizen."

"1. 1 The State recognises the Family as the natural primary
and
[1982]
1 I.R.
247
H.C.
fundamental unit group of Society, and as a moral
and the State.
2. 1 In particular, the State recognises that by her life within
the home, woman gives to the State a support without which
the common good cannot be achieved.
2 The State shall, therefore, endeavour to ensure that
3. 1 The State pledges itself to guard with special care the
to protect it against attack.
2 No law shall be enacted providing for the grant of a
dissolution of marriage.
3 No person whose marriage has been dissolved under the
civil law of any other State but is a subsisting valid marriage
under the law for the time being in force within the
jurisdiction of the Government and Parliament established by
this Constitution shall be capable of contracting a valid
marriage within that jurisdiction during the lifetime of the
other party to the marriage so dissolved."
"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.
1. 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."
"4. 1 The State pledges itself to safeguard with especial care
the economic interests of the weaker sections of the
community, and, where necessary, to contribute to the
support of the infirm, the widow, the orphan, and the aged.
2 The State shall endeavour to ensure that the strength and
health
[1982]
1 I.R.
248
H.C.
of workers, men and women, and the tender age of children
shall not be abused and that citizens shall not be forced by
economic necessity to enter avocations unsuited to their
sex, age or strength."
"1. Subject to this Constitution and to the extent to which
they are not inconsistent therewith, the laws in force in
Saorstt ireann 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."
The following statement of the pleadings and enactments
appeared in the judgment of Hamilton J., infra.
Sections 192-197, and s. 138, sub-s. 1, of the Income Tax
Act, 1967, provide:
"192(1) Subject to the provisions of this Chapter, a
woman's income chargeable to tax shall, so far as it is
income for a year of assessment or part of a year of
assessment during which she is a married woman living with

her husband, be deemed for income tax purposes to be his
income and not to be her income, but the question whether
there is any income of hers chargeable to tax for any year of
assessment and, if so, what is to be taken to be the amount
thereof for tax purposes shall not be affected by the
provisions of this subsection.
(2) Any tax falling to be assessed in respect of any income
which, under subsection (1), is to be deemed to be the
income of a woman's husband shall, instead of being
assessed on her, or on her trustee, guardian or committee,
or on her executors or administrators, be assessable on him
or, in the appropriate cases, on his trustee, guardian or
committee, or on his executors or administrators.
(3) References in this section to a woman's income include
references to any such sum which, apart from this section,
would fall to be included in computing her total income, and
this subsection has effect in relation to any such sum
notwithstanding that some enactment (including, except so
far as the contrary is expressly provided, an enactment
passed after the passing of
[1982]
1 I.R.
249
H.C.
this Act) requires that that sum should not be treated as
income of any person other than her.
193(1) This section shall have effect as respects
personal reliefs where, by virtue of an application under
section 197, income tax for any year is to be assessable and
chargeable on the incomes of a husband and a wife as if
they were not married.
(2) The total relief from tax given to the husband and the
wife by way of personal reliefs shall be the same as if the
application had not had effect with respect to the year and,
subject to subsection (3), the benefit flowing from the
personal reliefs may be given either by way of reduction of

the amount of the tax to be paid, or by repayment of any
excess of tax which has been paid, or by both of these
means, as the case requires, and shall be allocated to the
husband and the wife
(a) so far as it flows from relief under sections 138 and 141
(other than subsection (2)), section 11 of the Finance Act,
1971, and section 8 of the Finance Act, 1974, in the
proportions of one-half and one-half,
(b) so far as it flows from relief under sections 143, 145, 151
and 152, to the husband or to the wife according as he or
she made the payment giving rise to the relief,
(bb) so far as it flows from relief under section 12 of the
Finance Act, 1967, in the proportions in which they bore the
expenditure giving rise to the relief,
(c) so far as it flows from relief in respect of a dependent
relative under section 142 or relief in respect of a child under
section 141(2), to the husband or the wife according as he or
she maintains the relative or child,
(cc) so far as it flows from relief under section 3 of the
Finance Act, 1969, in the proportions in which they bear the
cost of employing the person in respect of whom the relief is
given,
(dd) so far as it flows from relief under section 16 of the
Finance Act, 1976, in proportion to the net emoluments
included in A in the formula in subsection 1 (a) of that
section.
(3) Where the amount of relief allocated to the husband
under subsection (2) exceeds the income tax chargeable on
the income of the husband for the year of assessment, the
balance shall be applied to reduce the income tax
chargeable on the income of the wife for that year, and
where the amount of relief allocated to the wife under that
subsection exceeds the
[1982]
1 I.R.
250
H.C.
income tax chargeable on her income for the year of
assessment, the balance shall be applied to reduce the
income tax chargeable on the income of the husband for
that year.
(4) Returns of the total incomes of the husband and the wife
may be made for the purposes of this section either by the
husband or by the wife but, if the Revenue Commissioners
are not satisfied with any such return, they may obtain a
return from the wife or the husband, as the case may be.
(5) The Revenue Commissioners may by notice require
returns for the purposes of this section to be made at any
time.
(6) In this section 'personal reliefs' means relief under any of
the following:
(a) sections 138 to 145 and 151 and 152,
(b) section 12 of the Finance Act, 1967,
(c) section 3 of the Finance Act, 1969,
(d) section 11 of the Finance Act, 1971 and
(e) section 8 of the Finance Act, 1974.
(7) Where an application under section 197 has effect with
respect to a year of assessment, section 5 of the Finance
Act, 1977, shall apply for that year, in relation to each of the
spouses concerned, as if the part of taxable income specified
in that section that is to be charged to tax at any of the rates
specified therein (other than the rate expressed to be
chargeable on the remainder of taxable income) were onehalf of the part so specified.
(8) Where the part of taxable income of a spouse
chargeable to tax in accordance with subsection (7) at a
particular rate specified in section 5 of the Finance Act,
1977, is less than that of the other spouse and is less than
the part (hereinafter referred to as 'the appropriate part') of
taxable income in respect of which, by virtue of subsection
(7), the first-mentioned spouse is chargeable to tax at that
rate, the part of taxable income of the other spouse which, in
accordance with subsection (7), is to be charged to tax at
that rate shall be increased by the amount by which the
taxable income of the first-mentioned spouse chargeable to

tax at that rate is less than the appropriate part.
194(1) Where
(a) an assessment to income tax (in this section referred to
as the original assessment) has been made for the year
beginning on the 6th day of April, 1958, or any subsequent
year of assessment on a man, or on a man's trustee,
guardian or committee, or on a man's executors or
administrators.
[1982]
1 I.R.
251
H.C.
(b) the Revenue Commissioners are of opinion that, if an
application for separate assessment under section 197 had
been in force with respect to that year of assessment, an
assessment in respect of, or of part of, the same income
would have fallen to be made on, or on the trustee, guardian
or committee of, or on the executors or administrators of, a
woman who is the said man's wife or was his wife in that
year of assessment, and
(c) the whole or part of the amount payable under the
original assessment has remained unpaid at the expiration of
twenty-eight days from the time when it became due,
the Revenue Commissioners may give to her, or, if she is
dead, to her executors or administrators, or, if such an
assessment as is referred to in paragraph (b) could, in the
event therein referred to, have been made on her trustee,
guardian or committee, to her or to her trustee, guardian or
committee, a notice
(i) stating particulars of the original assessment and of the
amount remaining unpaid thereunder, and
(ii) stating particulars, to the best of their judgment, of the
assessment which would have fallen to be made as
aforesaid,
and requiring the person to whom the notice is given to pay

the amount which would have been payable under the lastmentioned assessment if it conformed with those particulars,
or the amount remaining unpaid under the original
assessment, whichever is the less.
(2) The same consequences as respects
(a) the imposition of a liability to pay, and the recovery of,
the tax with or without interest,
(b) priority for the tax in bankruptcy or in the administration
of the estate of a deceased person,
(c) appeals to the Special Commissioners, the rehearing of
such appeals and the stating of cases for the opinion of the
High Court, and
(d) the ultimate incidence of the liability imposed,
shall follow on the giving of a notice under subsection (1) to
a woman, or to her trustee, guardian or committee, or to her
executors or administrators, as would have followed on the
making on her, or on her trustee, guardian or committee, or
on her executors or administrators, as the case may be, of
such an assessment as is referred to in subsection (1) (b),
being an assessment which
[1982]
1 I.R.
252
H.C.
(i) was made on the day of the giving of the notice,
(ii) charged the same amount of tax as is required to be
paid by the notice,
(iii) fell to be made and was made by the authority who
made the original assessment, and
(iv) was made by that authority to the best of his or their
judgment,
and the provisions of this Act relating to the matters
specified in paragraphs (a) to (d) shall, with the necessary
adaptations, have effect accordingly.
(3) Where a notice is given under subsection (1), tax up to

the amount required to be paid by the notice shall cease to
be recoverable under the original assessment and, where
the tax charged by the original assessment carried interest
under section 550, such adjustment shall be made of the
amount payable under that section in relation to that
assessment and such repayment shall be made of any
amounts previously paid under that section in relation
thereto, as are necessary to secure that the total sum, if any,
paid or payable under that section in relation to that
assessment is the same as it would have been if the amount
which ceases to be recoverable had never been charged.
(4) Where the amount payable under a notice given under
subsection (1) is reduced as the result of an appeal or of the
stating of a case for the opinion of the High Court
(a) the Revenue Commissioners shall, if, in the light of that
result, they are satisfied that the original assessment was
excessive, cause such relief to be given by way of repayment
or otherwise as appears to them to be just; but
(b) subject to any relief so given, a sum equal to the
reduction in the amount payable under the notice shall again
become recoverable under the original assessment.
(5) The Revenue Commissioners and the inspector or other
proper officer shall have the like powers of obtaining
information with a view to the giving of, and otherwise in
connection with, a notice under subsection (1) as they would
have had with a view to the making of, and otherwise in
connection with, such an assessment as is referred to in
subsection 1 (b) if the necessary conditions had been
fulfilled for the making of such an assessment.
195(1) Where a woman dies who, at any time before her
death, was a married woman living with her husband, he or,
if he is dead, his executors or administrators may, not later
than two months from the date of the grant of
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253
H.C.
probate or letters of administration in respect of her estate
or, with the consent of her executors or administrators, at
any later date, give to her executors or administrators and to
the inspector a notice in writing declaring that, to the extent
permitted by this section, he or they disclaims or disclaim
responsibility for unpaid income tax in respect of all income
of hers for any year of assessment or part of a year of
assessment, being a year of assessment or part of a year of
assessment which began on or after the 6th day of April,
1958, and during which he was her husband and she was
living with him.
(2) A notice given pursuant to this section to the inspector
shall be deemed not to be a valid notice unless it specifies
the names and addresses of the woman's executors or
administrators.
(3) Where a notice under this section has been given to a
woman's executors or administrators and to the inspector
(a) it shall be the duty of the Revenue Commissioners and
the Special Commissioners to exercise such powers as they
may then or thereafter be entitled to exercise under section
194 in connection with any assessment made on or before
the date when the giving of the said notice is completed,
being an assessment in respect of any of the income to
which the said notice relates, and
(b) the assessments (if any) to tax which may be made after
that date shall, in all respects and in particular as respects
the persons assessable and the tax payable, be the
assessments which would have fallen to be made if
(i) an application for separate assessment under section 197
or under section 198, as the case may be, had been in force
in respect of the year of assessment in question, and
(ii) all assessments previously made had been made
accordingly.
(4) In this section 'the inspector' means, in relation to a
notice, any inspector who might reasonably be considered
by the person giving the notice to be likely to be concerned
with the subject-matter thereof or who declares himself
ready to accept the notice.

(5) Any notice under this section may be served by post.
196(1) A married woman shall be treated for income tax
purposes as living with her husband unless either
(a) they are separated under an order of a court of
competent jurisdiction or by deed of separation, or
[1982]
1 I.R.
254
H.C.
(b) they are in fact separated in such circumstances that the
separation is likely to be permanent.
(2) Where a married woman is living with her husband and
either
(a) one of them is, and one of them is not, resident in the
State for a year of assessment, or
(b) both of them are resident in the State for a year of
assessment but one of them is, and one of them is not,
absent from the State throughout that year,
the same consequences shall follow for income tax purposes
as would have followed if, throughout that year of
assessment, they had been in fact separated in such
circumstances that the separation was likely to be
permanent.
(3) Where subsection (2) applies and the net aggregate
amount of income tax falling to be borne by the husband and
the wife for the year is greater than it would have been but
for the provisions of that subsection, the Revenue
Commissioners shall cause such relief to be given (by the
reduction of such assessments on the husband or the wife or
the repayment of such tax paid (by deduction or otherwise)
by the husband or the wife as the Revenue Commissioners
may direct) as will reduce the said net aggregate amount by
the amount of the excess.
197(1) If an application is made for the purpose in such
manner and form as may be prescribed by the Revenue

Commissioners, either by a husband or wife, within six
months before the 6th day of July in any year of assessment,
income tax for that year shall be assessed, charged and
recovered on the income of the husband and on the income
of the wife as if they were not married, and all the provisions
of this Act with respect to the assessment, charge, and
recovery of tax shall, save as otherwise provided by this Act,
apply as if they were not married.
(1A) Where an application is made under subsection (1),
that subsection shall have effect not only for the year of
assessment for which it was made but also for each
subsequent year of assessment:
Provided that, in relation to a subsequent year of
assessment, the applicant may, by notice in writing given to
the inspector before the 6th day of July in that year of
assessment, withdraw the application and thereupon
subsection (1) shall not have effect for the year of
assessment in relation to which the notice was given or any
subsequent year of assessment.
(2) An application for the purposes of this section may in the
case of persons marrying during the course of a year of
assessment be made as
[1982]
1 I.R.
255
H.C.
regards that year at any time before the 6th day of July in
the following year.
(3) The Revenue Commissioners may require returns for the
purposes of this section to be made at any time.
198(1) If an application is made for the purpose in such
manner and form as may be prescribed by the Revenue
Commissioners, either by a husband or wife, within six
months before the 6th day of July in the year of
assessment
(a) sur-tax for that year shall be assessed, charged, and

recovered on the income of the husband and on the income
of the wife as if they were not married, and all the provisions
of this Act with respect to the assessment, charge, and
recovery of sur-tax, shall apply as if they were not married;
and
(b) the income of the husband and wife shall be treated as
one in estimating total income for the purpose of sur-tax,
and the amount of sur-tax payable in respect of the total
income shall be divided between the husband and wife in
proportion to their respective incomes, and the total amount
payable shall not be less than it would have been if an
application had not been made under this section.
(2) An application for the purposes of this section may in the
case of persons marrying during the course of a year of
assessment be made as regards that year at any time before
the 6th day of July in the following year.
(3) The Revenue Commissioners may require returns for the
purposes of this section to be made at any time."
Section 138, sub-s. 1, of the Act of 1967 provides that:
"(1) The claimant, if he proves that for the year of
assessment he has his wife living with him, or that his wife is
wholly maintained by him during the year of assessment,
and that he is not entitled in computing the amount of his
income for that year for the purposes of this Act to make any
deduction in respect of the sums paid for the maintenance of
his wife, shall be entitled to a deduction of 394, and in any
other case to a deduction of 234."
Section 138, sub-s. 1, was amended by s. 12 of the Finance
Act, 1968, by which the following proviso was added to the
sub-section: "Provided that, where, but for this proviso,
the claimant would be entitled to a deduction of 394
under the foregoing provisions of this subsection, he shall, if
he proves that his marriage took place in the year of
assessment, be entitled to a deduction of 494 in lieu of
the deduction of 394." The deductions allowed by the subsection, as amended by subsequent enactments, were as
follows:
[1982]
1 I.R.
256
H.C.
1968
1969
1972
1974
1975
1976
1977
1978
1979
Married man
394
424
494
800
920
1010
1100
1730
2230
Single man
234
249
299
500
575
660
665
865
1115
For year of marriage
494
524
594
900
1035
1125
1215
1845
2345
Sections 2, 3, 4, 5 and 11 of the Married Women's Status
Act, 1957, provide that:

"2(1) Subject to this Act, a married woman shall
(a) be capable of acquiring, holding, and disposing (by will
or otherwise) of, any property, and
(b) be capable of contracting, and
(c) be capable of rendering herself, and being rendered,
liable in respect of any tort, contract, debt or obligation, and
(d) be capable of suing and being sued, and
(e) be subject to the law relating to bankruptcy and to the
enforcement of judgments and orders,
as if she were unmarried.
(2) Subsection (1) shall apply as between a married woman
and her husband in like manner as it applies as between her
and any other person . . .
3All property which
(a) immediately before the commencement of this Act was
the separate property of a married woman or held for her
separate use in equity, or
(b) belongs at the time of her marriage to a woman married
after such commencement, or
(c) after such commencement is acquired by or devolves
upon a married woman,
shall belong to her as if she were unmarried and may be
disposed of accordingly.
4A husband and wife shall
(a) be capable of acquiring, holding and disposing of any
property jointly or as tenants in common, and
(b) be capable of rendering themselves, and being
rendered, jointly liable in respect of any tort, contract, debt
or obligation, and
(c) be capable of suing and being sued, and
(d) be capable of exercising any joint power given to them,
in like manner as if they were not married.
[1982]
1 I.R.
257
H.C.
5. A husband and wife shall, for all purposes of acquisition of
any property, under a disposition made or coming into
operation after the commencement of this Act, be treated as
two persons."
"11(1) The husband of a woman shall not, by reason only
of his being her husband,
(a) be liable in respect of any tort committed by her,
whether before or after the marriage, or
(b) be sued, or made a party to any legal proceedings
brought, in respect of any such tort, or
(c) be liable in respect of any contract entered into, or debt
or obligation incurred by her before the marriage, or
(d) be liable in respect of any contract entered into, or debt
or obligation incurred by her (otherwise than as agent) after
the marriage, or
(e) be sued, or made a party to any legal proceedings
brought, in respect of any such contract, debt of obligation . .
."
The plaintiffs claimed:
"(1) An order declaring that the provisions of the Income Tax
Act, 1967 (No. 6 of 1967) Part IX, Chapter 1, sections 192 to
198 inclusive (as amended), containing special provisions as
to married persons, are repugnant to the Constitution of
Ireland and void, in so far as they provide that the income of
a married woman living with her husband is to be deemed to
be his income for income tax purposes, and not to be her
income.
(2) An order declaring that the provisions of the Income Tax
Act, 1967, section 138 (as amended) are repugnant to the
Constitution of Ireland and void, in so far as they provide
that a lower personal allowance is to be allowable as a
deduction against taxable income in dealing with the
combined incomes of husband and wife than would be
allowable if they were not married to each other.
(3) An order declaring that the provisions of the Income Tax
Act, 1967, section 193(4), which give rise to an obligation on
the part of a husband or wife, in the circumstances therein
referred to, to make returns concerning the income of the

other party are repugnant to the Constitution of Ireland and
void.
(4) An order declaring that the plaintiffs are entitled to be
assessed separately in each year for income tax purposes
and are entitled to make separate returns, without being
required to invoke the provisions of section
[1982]
1 I.R.
258
H.C.
197 of the Income Tax Act, 1967, (as amended) and are
entitled to the same reliefs and exemptions as if each of
them was a single person and to have the rates of tax
payable by them determined by reference to the income of
each separately without aggregating their incomes for the
said purpose, and declaring that each is liable only to make
returns and payments in respect of his or her own separate
income."
At paragraph 11 of their statement of claim the plaintiffs
alleged:
"The special provisions as to married persons contained in
the Income Tax Act, 1967, Part IX, Chapter 1, sections 192 to
198 (as amended) and the provisions of section 138 of the
said Act (as amended) discriminate in an unjust and
invidious manner against married persons living together,
and in favour of unmarried persons, by reason of the
particular features of the said legislative provisions already
referred to. They are repugnant to the Constitution of
Ireland, and in particular to the provisions of ss. 1 and 3 of
Article 40, Article 41 and Article 42 thereof for the said
reason and on the following additional grounds:
(a) they fail to respect the guaranteed right of equality
before the law and fail to respect, defend and vindicate the
personal rights of every citizen;
(b) they tend to undermine the family in its constitution and
authority by holding out financial inducements to couples to

live together as man and wife without entering into the
obligations, duties and responsibilities of the married state;
(c) by the enactment of the said provisions the Oireachtas
has failed to comply with the pledge given in Article 41, s. 3,
of the Constitution on the part of the State to guard with
special care the institution of marriage on which the family is
founded and to protect it against attack;
(d) they endanger the family as the primary and natural
educator of the child;
(e) they are inimical to public order and morality;
(f) they infringe the guaranteed personal rights of the
husband and wife by making the husband legally liable for
tax on income which is not his own income and over the
disposition of which he may have no control; by rendering
him liable to the penalties and sanctions contained in the
said Act for failure to make returns containing information
which may not be available to him, or for failure to pay a tax
assessed on that part of his
[1982]
1 I.R.
259
H.C.
taxable income which is represented by income (whether
actual income or assessed income) of his wife. He is made
liable to pay tax based on the amount of his wife's income,
which may never come into his custody or control in whole
or in part; the amount of which may be unknown to him; and
where he may have no access to any reliable information
which would enable him to challenge the accuracy of any
assessment made as to the amount of same in default of the
making of proper returns by his wife."
Each of the plaintiffs had been employed before marriage in
a primary school as a national schoolteacher, and each
remained continuously so employed as from the date of their
marriage. The school in which the husband had taught
throughout his teaching career was in a suburb of the city of

Dublin at a distance from that in which the wife had been
teaching since her marriage. The plaintiffs' individual
teaching contracts were with the respective clerical
managers of the schools in which they taught (who are
normally clergymen of the parishes in which the relevant
schools happen to be situated); at no time during their
teaching careers had both plaintiffs been immediately
employed by the same person. Their salaries were paid
directly to them, however, by the Department of Education.
Income tax under schedule E of the Act of 1967 which
relates, inter alia, to "every public office or employment of
profit and . . . every annuity, pension or stipend payable out
of the public revenues of the State . . ." (s. 109) was charged
on the plaintiffs, and was deducted at source from their
salaries by a system of deduction colloquially known as
P.A.Y.E. (Pay As You Earn), pursuant to the provisions of s.
110 and ss. 124-133 of the Act of 1967, which re-enacted the
provisions of Part 2 (ss. 3-14) of the Finance (No. 2) Act,
1959, by which the P.A.Y.E. system had first been introduced
into the taxation system of the Republic of Ireland. Section
554 of the Act of 1967 had repealed (inter alia) the operative
sections (ss. 3-17) of the Act of 1959, which had been
replaced by virtually identical provisions (s. 110, ss. 120-134
and ss. 137, 138 and 143) in the Act of 1967.
Under the Finance Act, 1974, and all subsequent Finance
Acts, income tax was payable at a graduated rate, which
gradually increased in proportion to the amount of the
income being taxed. Until the enactment of the Finance
[1982]
1 I.R.
260
H.C.
Act, 1978, the total made up by the sum allowed to a
married man by way of personal allowance, added to that
allowed to him by way of working wife's allowance (which
varied both in amount and in precise proportion to the

amount of the taxpayer's personal allowance from year to
year, but amounted each year to something in the order of a
quarter of the taxpayer's personal allowance) corresponded
exactly to double the amount allowed by way of personal
allowance to a single taxpayer.
By s. 6 of the Act of 1978, the working wife's allowance was
continued at its previous figure of 230, but the personal
relief allowed in addition to a married man was fixed at
1,730or double a single person's personal allowance of
865. By s. 2, sub-s. 1, of the Finance Act, 1979, the
married man's working wife's allowance was continued at
230, but his personal allowance was increased to
2,230thus remaining at double the personal allowance
of a single person, which was increased by the Act of 1979 to
1,115.
Tables were prepared on behalf of the plaintiffs by a
chartered accountant indicating the amount of tax actually
payable by each of the plaintiffs in the years 1976-77 to
1979-80 and the amount to which each would have been
liable in each of those years, if unmarried and in receipt of
exactly the same remuneration. The figures produced for
1978-79 and 1979-80 were only estimated figures. The table
for the tax year 1977-78 is reproduced on the next page.
In their year of marriage, 1975-76, Mr. and Mrs. Murphy had
had less tax deducted from them than would have been
deducted from an unmarried couple in similar circumstances.
That was due, first, to the fact that, while the couple's joint
personal allowance for the year (920) and Mrs. Murphy's
working wife's allowance (230) equalled the two individual
personal allowances (575 each) to which two unmarried
persons in receipt of the same remuneration would have
been entitled, they were entitled also (under s. 138, sub-s. 1,
of the Act of 1967 as amended) to an additional allowance of
115 restricted to the year of their marriage; and it was
due, secondly, to the fact that Mrs. Murphy was entitled to
the full single personal allowance up to the date of her
marriage, and therefore no tax was payable in respect of the
545 which she had earned during the portion of the
financial year 1975-76 which preceded her marriage. The

joint taxable income of the couple consequently was (as
would have been the individual income of each if they had
not been married) taxable under s. 3, sub-s. 2, of the Finance
Act, 1974, as amended by s. 10 of the Finance Act, 1975, at
the lowest rate of taxation imposed upon
[1982]
1 I.R.
261
H.C.
YEAR 1977-78
COL A.
COL B.
COL C.
COL D.
COL E.
Francis Murphy
Mary Murphy
COL A.
Francis & Mary Murphy
After Tax Gain (Loss)
(Single)
(Single)
COL B.
Married
COL D.COL C.
SALARY
4432
4162
8594
(S)
4432
(W)
4162
4432
4162
8594
8594
0
Less: Expense
28
39
67
Social Welfare
27
0
27
Interest
568
____
533
____
1101
____
623
572
1195
1195
0
3809
3590
7399
7399
0
Less: Medical Insurance
35
33
68
Life Assurance
11
__
11
Personal Allowance
665
____
711
665
___
698
1409
1100
Working Wive's
Allowance
__
__
230
___
1409
Taxable Income
3098
2892
5990
5990
0
Taxable
Tax
Taxable
Tax
Tax
Taxable
TaX
Tax
Tax Payable:
@ 20%
500
100.00
500
100.00
500
100.00
@ 25%
1000
250.00
1000
250.00
1000
250.00
@ 35%
1598
559.30
1392
487.20
3000
1050.00
@ 45%
1490
670.50
909.30
837.20
1746.50
2070.50
(324.00)
Less Remission
31.07
28.12
59.19
32.07
27.12
Net Tax Payable
878.23
809.08
1687.31
2038.43
(351.12)
Additional Gross Income required to
699.90 (8.14% of Combined Gross Income)
compensate for shortfall
[1982]
1 I.R.
Hamilton J.
262
H.C.
income by that Act, namely, the rate of 26 per cent. referred
to in s. 3, sub-s. 2, of the Act of 1974 as "the reduced rate."
The plaintiffs' action was heard by the High Court (Hamilton
J.) on the 10th and 11th July, 1979.
R. J. O'Hanlon S.C. and Mary Robinson for the plaintiffs.

T. J. Conolly S.C. ; D. P. M. Barrington S.C. and J. D. Cooke for
the
defendant.
Cur. adv. vult.
Hamilton J.
12th October 1979
[The judge, having referred to the pleadings, to ss. 193-198
of the Income Tax Act, 1967, and to ss. 2-5 and 11 of the
Married Women's Status Act, 1957, continued] It is clear
from these and other provisions of the Married Women's
Status Act, 1957, that a wife's property is in the fullest
degree her separate property and is in no sense that of her
husband.
Notwithstanding the provisions of the Act of 1957, s. 192 of
the Income Tax Act, 1967, provides that a woman's income
chargeable to tax shall, so far as it is income for a year of
assessment or part of a year of assessment during which she
is a married woman living with her husband, be deemed for
income tax (including sur-tax) purposes to be his income and
not to be her income. For tax purposes, a married couple's
income is aggregated and belongs to the husband, save
where the couple are separated under an order of a court of
competent jurisdiction or by deed of separation or they are
in fact separated in such circumstances that the separation
is likely to be permanent, and any tax falling to be assessed
in respect of such income is assessable on the husband. The
effect of this is that, depending on the relative incomes of
the husband and wife and the aggregation thereof, a married
couple may incur a higher liability for income tax than
unmarried persons earning the same incomes and, in the
absence of an application for separate assessments in
accordance with the provisions of ss. 197 and 198 of the Act
of 1967, a husband is liable for tax on income over a portion
of which he has no control and from which he may not

receive or derive any benefit.
[1982]
1 I.R.
Hamilton J.
263
H.C.
Sections 197 and 198 of the Act of 1967, dealing
respectively with income tax and sur-tax, provide that, if an
application is made within six months before the 6th day of
July in any year of assessment, income tax for that purpose
may be assessed, charged and recovered on the income of
the husband and on the income of the wife as if they were
not married, and that all the provisions of the Act with
respect to the assessment, charge and recovery of tax
should apply as if they were not married. With regard to
surtax, however, s. 198, sub-s. 1(b), provides that: "The
income of the husband and wife shall be treated as one in
estimating total income for the purpose of sur-tax, and the
amount of sur-tax payable in respect of the total income
shall be divided between the husband and wife in proportion
to their respective incomes, and the total amount payable
shall not be less than it would have been if an application
had not been made under this section."
Section 193, sub-s. 2, provides that: "The total relief
from tax given to the husband and the wife by way of
personal reliefs shall be the same as if the application had
not had effect with respect to the year . . ."
Consequently though ss. 197 and 198 provide for separate
assessment, charge and recovery of tax, the total relief from
tax given to the husband and the wife by way of personal
reliefs is not in any way affected by the separate
assessments and, in the case of sur-tax, the amount payable
shall not be less than it would have been if the application
had not been made under s. 198.
The first-named plaintiff, Francis Murphy, lives at No. 447
Orwell Park, Templeogue, in the city of Dublin with his wife,

the second-named plaintiff. They were married on the 19th
July, 1975, and both are and were at all times employed as
teachers, the first-named plaintiff at St. Benedict's National
School, Grange Park, Raheny in the city of Dublin and the
second-named plaintiff at Scoil Naomh Maolruan, Junior
National School, Old Bawn, Tallaght in the county of Dublin.
They have one child, Orla, who was born on the 10th March,
1979. Since their marriage, both plaintiffs continued in their
respective employments. They allege and have satisfied me
in evidence that, by virtue of the Income Tax Act, 1967, and
the various amendments thereof that have taken place from
time to time, they have paid more by way of income tax
since the date of their marriage than they would have paid if
they had remained single.
This situation has arisen by virtue of the provisions of s. 192
of the Act of 1967 and by virtue of the fact that the
allowance granted to the first-named plaintiff was less than
the aggregate of the allowances that would have been
granted if they were two single persons.
[1982]
1 I.R.
Hamilton J.
264
H.C.
[Having referred to Articles 40 and 41 of the Constitution,
the trial judge continued] It is clear from the statement of
claim delivered, and the submissions made by counsel on
behalf of the plaintiffs, that their claim can be divided into
three separate parts, namely:
1. Their challenge to the provisions of s. 192, s. 193, sub-s.
2, and s. 198, sub-s. 1 (b), of the Act of 1967, which sections
provide, inter alia, that the woman's income chargeable to
tax shall be deemed for income tax (including sur-tax)
purposes to be income of the husband and that the total
relief from tax given to the husband and the wife by way of
personal benefits shall be the same as if an application for

separate assessment had not had effect with respect to the
year of assessment, and which provide that the income of
the husband and wife shall be treated as one in estimating
total income for the purpose of sur-tax and that the amount
of sur-tax payable in respect of the total income shall not be
less than it would have been if an application for separate
assessment had not been made.
2. Their challenge to the provisions of s. 138 which provide
for the personal allowance which is less than the aggregation
of two personal allowances of single persons.
3. Their challenge to the provisions of s. 193, sub-s. 4, which
provide that the return of the total incomes of the husband
and wife may be made for the purposes of this section either
by the husband or by the wife; and that, if the Revenue
Commissioners are not satisfied with any such return, they
may obtain a return from the wife or the husband, as the
case may be.
Before dealing with these particular claims, it is desirable
that certain fundamental and obvious propositions be stated.
1. The determination of the revenue necessary for the
administration of, and provision of services by, the State and
the manner in which it is to be raised is a matter for the
legislature.
2. It is not open to the Courts to interfere with the
legislature's right in this regard, unless the legislature
interferes with the constitutional rights of the citizen or any
of them.
3. Acts of the Oireachtas enjoy the presumption of not being
repugnant to the Constitution unless such repugnancy is
clearly shown: The State (Quinn)v. Ryan 1 (at p. 125); The
State (Sheerin) v. Kennedy 2 (at p. 386); McDonald v.Bord
na gCon 3 (at p. 239); East Donegal Co-Operative v. The
Attorney General 4 (at p. 340); and O'Brien v. Keogh 5 (at p.
155).
[1982]
1 I.R.
Hamilton J.
265
H.C.
4. The onus rests on anybody impugning the provisions of
any Act of the Oireachtas, or any section thereof, to show
clearly that it is invalid having regard to the provisions of the
Constitution.
5. Section 1 of Article 40 of the Constitution is not to be read
as a guarantee or undertaking that all citizens shall be
treated by the law as equal for all purposes, but rather as an
acknowledgement of the human equality of all citizens and
that such equality will be recognised in the laws of the State.
The section itself states that "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" and so recognises that inequality may or must
result from some special abilities or from some deficiency or
from some special need. It is clear that the article does not
either envisage or guarantee equal measure in all things to
all citizens: per Mr. Justice Walsh in The State (Nicolaou) v.
An Bord Uchtla 6 at p. 639 of the report. Article 40 does
not require identical treatment of all persons without
recognition of differences in relevant circumstances. It only
forbids invidious discrimination.
6. In Article 41 of the Constitution the State, while
recognising the family as the natural primary and
fundamental unit 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 a woman, meaning the wife, within that unit; the
article also offers special protection for mothers 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 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: per Mr. Justice Walsh in McGee v. The Attorney
General 7 at p. 311 of the report.
By these articles the Constitution guarantees to the family,
founded on the institution of marriage, a role and a social
function as the natural primary and fundamental unit group
of society which it does not grant to individuals who live
together. However, as stated by Mr. Justice Walsh in McGee
v. The Attorney General 7 at p. 310 of the report, the family,
as a unit of society, has
[1982]
1 I.R.
Hamilton J.
266
H.C.
duties and obligations to consider and respect the common
good of that society. Accepting as I do these propositions, I
now proceed to deal with the plaintiffs' claim herein which I
have stated can be divided into three separate claims. I will
deal with them in the reverse order to that in which I stated
them.
The plaintiffs submit that the provisions of s. 192 of the Act
of 1967 (which by implication require that the husband be in
a position to provide for the Revenue Commissioners
particulars not only of his own income but of his wife's) and
the provisions of s. 193, sub-s. 4 (which provides:
"Returns of the total incomes of the husband and the wife
may be made for the purposes of this section either by the
husband or by the wife but, if the Revenue Commissioners
are not satisfied with any such return, they may obtain a
return from the wife or the husband, as the case may be")
are unconstitutional in that they infringe the constitutional
right of each of the parties to the privacy of his or her

income, by obliging the party to disclose to his or her spouse
particulars of his or her income. It is submitted that each
spouse has a constitutional right to privacy in respect of his
or her income and should not be obliged to disclose same to
his or her spouse and that, in default of an obligation to
make such a disclosure, the husband or the wife would not
be in a position to make satisfactory returns.
In my opinion the Constitution does not guarantee any such
privacy to either the husband or the wife. Though McGee v.
The Attorney General 7 was cited in support of this
submission, it is clear that the right of privacy therein
referred to was the right to the privacy of their relationships
which did not impinge upon the common good or destroy or
endanger human life. When a man and a woman marry, they
form a family which is a unit of society regarded by the
Constitution as the natural primary and fundamental unit
group of that society which has rights as such which the
State cannot control. As members of that unit and that
society, they acquire under the Constitution a special status
in that society but must respect the common good of that
society.
The common good of that society requires that revenue be
raised for the purposes of that society by taxation that
information be made available for the purposes of
determining the amount payable by any individual. The
Constitution does not guarantee the right to either spouse
not to disclose to his or her spouse the source or amount of
his or her income for the purpose of making such returns.
Consequently, I am satisfied that the challenge to these
particular sections of the Act of 1967 on these particular
grounds fails.
[1982]
1 I.R.
Hamilton J.
267
H.C.
The plaintiffs further claim that the provisions of s. 138 (as

amended) of the Act of 1967 are repugnant to the
Constitution of Ireland and void, in so far as they provide
that a lower personal allowance is to be allowed as a
deduction against taxable income dealing with the combined
incomes of husband and wife than would be allowable if they
were not married persons. It was submitted on their behalf
that this provision discriminates in an unjust and invidious
manner against married persons living together and in
favour of unmarried persons, that it fails to respect the
guaranteed right of equality before the law and to respect,
defend and vindicate the personal rights of the plaintiffs, and
that it tends to undermine the family in its constitution and
authority by holding out financial inducements to couples to
live together as man and wife without entering into the
obligations, duties and responsibilities of the married state.
It was further submitted on behalf of the plaintiffs that the
said section failed to comply with the pledge given in Article
41, s. 3, of the Constitution on the part of the State to guard
with special care the institution of marriage on which the
family is founded and to protect it against attack; that it
endangered the family as the primary and natural educator
of the child and was inimical to public order and morality.
It is clearly established that, by virtue of the terms of s. 138
of the Act of 1967 and the amendments thereto up to the
Finance Act, 1979, the plaintiffs since the date of their
marriage have received relief from taxation in an amount
less than they would have received if they had remained
unmarried. They allege that a provision or provisions of an
Act or Acts which permits this situation is an infringement of
their constitutional rights under Article 40, s. 1, of the
Constitution and a failure by the State 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, and a failure to guard with special care the
institution of marriage on which this family is founded and to
protect it against attack.
I cannot accept any of the submissions made on behalf of
the plaintiffs in regard to this aspect of their claim. The

section gives to the claimant husband the right to make a
greater deduction by way of personal relief than he could
have made if he were single. The amount of such deduction
is not equal to double the deduction which he would have
been entitled to make if he were a single person but the
legislature was entitled to take into consideration the fact
that when a husband and wife are living together certain
expenditure is common to both.
[1982]
1 I.R.
Hamilton J.
268
H.C.
It was argued on behalf of the plaintiffs that this is true also
of single persons living together but there is a difference of
social function between a husband and wife living together
and single people living together to which the legislature was
entitled to have regard. The husband and wife living
together do so as a family recognised by the Constitution.
The law or the Constitution does not recognise or have
regard to any other union or liaison between single persons.
I am satisfied that the section impugned does not
discriminate or invidiously discriminate against married
couples. Providing as it does a greater allowance for a
married man than he would have been entitled to as a single
man, I am also satisfied that it does not infringe the
provisions of Article 41 of the Constitution.
Though these form important aspects of the plaintiffs' claim
in these proceedings, their main challenge is to the
provisions of s. 192, s. 193, sub-s. 2, and s. 198, sub-s. 1(b),
of the Income Tax Act, 1967.
By virtue of the terms of s. 192 of the Act of 1967 a
woman's income chargeable to tax shall, in so far as it is
income for a year of assessment or part of a year of
assessment during which she is a married woman living with
her husband, be deemed for income tax (including sur-tax)

purposes to be his income and not to be her income, and
any tax falling to be assessed on that income shall, instead
of being assessed on her be assessable on him, the husband.
Though ss. 197 and 198 provide for an application to be
made by either the husband or the wife for the purpose of
having income tax assessed, charged and recovered on the
income of the husband and on the income of the wife as if
they were not married and that, in the event of such an
application being made, all the provisions of the Act of 1967
with respect to the assessment, charge and recovery of tax
shall apply as if they were not married, it is specifically
provided by the terms of s. 198, sub-s. 1(b), that the income
of the husband and the wife shall be treated as one in
estimating total income for the purpose of sur-tax and the
amount of sur-tax payable in respect of the total income
shall be divided between the husband and the wife in
proportion to their respective incomes and the total amount
payable shall not be less than it would have been if an
application had not been made under this section.
When one is dealing with a graduated system of taxation
whereby the rates of tax increase progressively according as
they are applied to higher levels of income, as applies in this
country, the effect of these provisions on a
[1982]
1 I.R.
Hamilton J.
269
H.C.
married couple is that in certain circumstances the
aggregation of the husband's and the wife's income in this
manner means a higher tax bill than would have been
payable by them if the income tax code dealt with them as
two separate persons.
As these provisions apply only to married couples, it is
submitted on behalf of the plaintiffs that such provisions are
contrary to Article 40, s. 1, of the Constitution as they
discriminate invidiously against married couples and are in

addition contrary to the provisions of Article 41 in which the
State guarantees to protect the family in its constitution and
authority and pledges itself to guard with special care the
institution of marriage, on which the family is founded, and
to protect it against attack. It is further submitted that they
contravene Article 42 by discriminating against the family
and detracting from the ability of parents to provide
according to their means for the religious and moral,
In support of these submissions counsel on behalf of the
plaintiffs has referred me to a number of decisions of High
Courts in other jurisdictions.
The first of these was Hoeper v. Tax Commission of
Wisconsin 8 where the opinion of the Supreme Court of the
United States of America was delivered by Roberts J. It is
helpful to quote from pp. 212-215 of the report:
"Appellant, a resident of Marathon County, Wisconsin,
married in the year 1927. Subsequently to his marriage he
was in receipt of income taxable to him under the income
tax statute of the state. His wife, during the same period,
received taxable income, composed of a salary, interest and
dividends, and a share of the profits of a partnership with
which her husband had no connection. The assessor of
incomes assessed against the appellant a tax computed on
the combined total of his and his wife's incomes as shown by
separate returns, treating the aggregate as his income. The
amount so ascertained and assessed exceeded the sum of
the taxes which would have been due had their taxable
incomes been separately assessed. The authority for the
assessor's procedure is found in the following sections of the
act:
Section 71.05(2)(d): '. . . In computing taxes and the amount
of taxes payable by persons residing together as members of
a family, the income of the wife and the income of each child
under eighteen years of age shall be added to that of the
husband or father, or if he be not living, to that of the head
of the family and assessed to him except as hereinafter
provided. The taxes levied shall be payable by such husband
or head of the family, but if not paid by him may be enforced

against any person whose income is included within the tax
computation'.
[1982]
1 I.R.
Hamilton J.
270
H.C.
Section 71.09 (4)(c): 'Married persons living together as
husband and wife may make separate returns or join in a
single joint return. In either case the tax shall be computed
on the combined average taxable income. The exemptions
provided for in subsection (2) of section 71.05 shall be
allowed but once and divided equally and the amount of tax
due shall be paid by each in the proportion that the average
income of each bears to the combined average income'.
Appellant paid the tax under protest, and after complying
with requisite conditions precedent, instituted proceedings to
recover so much thereof as was in excess of the tax
computed on his own separate income. He asserted that the
statute as applied to him violates the Fourteenth
Amendment . . ."
I interpose here the provisions of s. 1 of the Fourteenth
Amendment of the United States Constitution: "All
persons born or naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United States
and of the State wherein they reside. No State shall make or
enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws."
Roberts J. went on to say:
"The Supreme Court of Wisconsin overruled this contention
and affirmed a judgment for appellees. The question is
whether the state law as interpreted and applied deprives
the taxpayer of due process and of the equal protection of

the law. The appellant says that what the state has done is
to assess and collect from him a tax based in part upon the
income received by his wife, and that such exaction is
arbitrary and discriminatory, and consequently violative of
the constitutional guaranties.
At common law the wife's property, owned at the date of
marriage or in any manner acquired thereafter, is the
property of her husband. Her earnings and income are his,
he may dispose of them at will, and he is liable for her debts.
Were the status of a married woman in Wisconsin that which
she had at common law, the statutory attribution of her
income to her husband for income tax would, no doubt, be
justifiable. But her spouse's ownership and control of her
property have been abolished by the laws of the state.
Women are declared to have the same rights as men in the
exercise of suffrage, freedom of contract, choice of residence
for voting purposes, jury service, holding office, holding and
conveying property, care and custody of children, and in all
other respects. Under the title 'Property Rights of Married
[1982]
1 I.R.
Hamilton J.
271
H.C.
Women' it is enacted that a wife's real estate and its rents,
issues and profits shall be her sole and separate property as
if she were unmarried, and shall not be subject to the
disposal of her husband; and this is true of her personal
property as well, whether owned at the date of marriage or
subsequently acquired. She may convey, devise or bequeath
her property, real and personal, as if she were unmarried,
and her husband has no right of disposal thereof, nor is it
liable for his debts. Either spouse may convey his or her
property to the other or create a lien thereon in favor of the
other. The individual earnings of every married woman,
except those accruing from labor performed for her husband,
or in his employ or payable by him, are her separate

property, and are not subject to his control or liable for his
debts. She may sue in her own name and have all the
remedies of an unmarried woman in regard to her separate
property or business and to recover her earnings, and is
liable to suit and to the rendition of a judgment, which may
be enforced against her separate property as if she were
unmarried.
Since, then, in law and in fact, the wife's income is in the
fullest degree her separate property and in no sense that of
her husband, the question presented is whether the state
has power by an income-tax law to measure his tax, not by
his own income but, in part, by that of another. To the
problem thus stated, what was said in Knowlton v. Moore 9
is apposite:
'It may be doubted by some, aside from express
constitutional restrictions, whether the taxation by Congress
of the property of one person, accompanied with an arbitrary
provision that the rate of tax shall be fixed with reference to
the sum of the property of another, thus bringing about the
profound inequality which we have noticed, would not
transcend the limitations arising from those fundamental
conceptions of free government which underlie all
constitutional systems.'
We have no doubt that, because of the fundamental
conceptions which underlie our system, any attempt by a
state to measure the tax on one person's property or income
by reference to the property or income of another is contrary
to due process of law as guaranteed by the Fourteenth
Amendment. That which is not in fact the taxpayer's income
cannot be made such by calling it income."
At the conclusion of his judgment (at p. 218 of the report)
Roberts J. said: "Neither of the reasons advanced in
support of the validity of the statute as applied to the
appellant justifies the resulting discrimination. The exaction
is arbitrary and is a denial of due process."
[1982]
1 I.R.

Hamilton J.
272
H.C.
In the judgment of the Federal Constitutional Court of the
Federal Republic of Germany of the 17th January, 195710
the question of the compatibility of Article 26 of the Income
Tax Law, 1951, in the version of the 17th January, 1952, with
the basic law of the Federal Republic of Germany was
considered.
The said article 26 provided:
"(1) A husband and wife are assessed jointly, if both are
unlimitedly taxable and are not permanently separated.
These conditions must apply for at least four months of the
assessment period.
(2) The incomes of the husband and wife shall be calculated
together in the joint assessment."
It appears from the judgment that the husband and wife
were assessed jointly in accordance with article 26 of the
Law of 1951 by a decision of the tax office in respect of the
husband's pension as a retired civil servant, and his wife's
income from her retail business. The husband and wife
lodged an objection to the tax decision, objecting in
particular to the joint assessment, because they had to pay
more thereby because of the progressive changes in the
scale than they would have done if they had been assessed
separately; the tax authorities rejected the objection as
groundless in so far as joint assessment was concerned. The
husband and wife appealed the case and eventually the case
came before the Federal Constitutional Court of the Federal
Republic of Germany.
Article 3 of the Basic Law of the Federal Republic of
Germany provides that:
"(1) All persons shall be equal before the law.
(2) Men and women shall have equal rights.
(3) No one may be prejudiced or favoured because of his
sex, his parentage, his race, his language, his homeland and
origin, his faith, or his religion or political opinions."
Article 6 of the said Basic Law provides:

(1) Marriage and family shall enjoy the special protection of
the State.
(2) The care and upbringing of children are a natural right
of, and the duty primarily incumbent on, the parents; the
national community shall watch over their endeavours in this
respect."
The Federal Constitutional Court of the Federal Republic of
Germany held that the provisions of article 26 of the Law of
1951 were exceptional provisions which discriminated
against married persons and infringed the
[1982]
1 I.R.
Hamilton J.
273
H.C.
value established by article 6 (1) of the Basic Law to the
detriment of marriage and held that the said article was null
and void as being incompatible with the provisions of article
6 (1) of the Basic Law.
Article 3 of the Constitution of the Italian Republic provides
that: "All citizens are invested with equal social status
and are equal before the law, without distinction as to sex,
race, language, religion, political opinion and personal or
social conditions."
Article 29 of the said Constitution provides that: "The
State recognises the family as a natural association founded
on marriage. Marriage is based on the moral and legal
equality of husband and wife within the limits laid down by
the laws for ensuring family unity."
Article 31 provides that: "The Republic facilitates, by
means of economic and other provisions, the formation of
the family and the fulfilment of the tasks connected
therewith with particular consideration for large families. It
safeguards maternity, infancy and youth, promoting and
encouraging institutions necessary for such purposes."
Article 53 of the said Constitution provides that: "Every
one shall contribute to public expenditure in proportion to his

resources. Fiscal levy shall be on a progressive scale."
In a judgment of the Constitutional Court of the Republic of
Italy of the 14th July, 197611 the Constitutional Court held
that the particular regulations which laid down that for
the determination of the total income (for the purposes of
T.P.I.) of the husband, as the subject of the personal income
tax, there should be imputed to him, as well as his own
income, the income of his wife (except that which is freely
available to the wife legally and effectively separated) and
that the incomes of the married couple should be added
together for purposes of the application of the tax were
unconstitutional by reason of the terms of articles 3, 29 and
53 of the Constitution.
From a consideration of the judgments in these three cases
it is clear that the State of Wisconsin, the Federal Republic of
Germany, and the Republic of Italy had provisions in their
respective income-tax codes similar to the provisions of s.
192 of the Income Tax Act, 1967; that the Supreme Court of
the United States of America held that the provisions in the
Wisconsin code contravened the provisions of the Fourteenth
Amendment to the American Constitution; that the
Constitutional Court of the Federal Republic of Germany held
that they contravened the provisions of article 6(1) of the
Basic Law of the Federal Republic of Germany; and that the
Constitutional Court
[1982]
1 I.R.
Hamilton J.
274
S.C.
of the Republic of Italy held that they contravened the
provisions of articles 3, 29 and 53 of the Constitution of the
Republic of Italy.
The Constitution of the United States of America does not
guarantee any particular role to the family or afford to it any
special protection. The Basic Law of the Federal Republic of
Germany, as I have already stated, provides at article 6(1)

that: "Marriage and family shall enjoy the special
protection of the State." The Constitution of the Italian
Republic also does provide at article 29 that: "The State
recognises the family as a natural association founded on
marriage."
The provisions of the section and the effect of s. 192 of the
Act of 1967 are contrary to the principles underlying the
remainder of the Act, viz., the principle of individual taxation
on an individual's income. In no other circumstance is
provision made for deeming an income which an individual
does not earn or receive to be his income for income-tax or
sur-tax purposes. The provision applies in the case of
married couples living together and in no other
circumstances. It does not apply in the case of any other
individuals living together, whether they be members of a
family or not, or forming a household.
As it does not apply in the case of other individuals living
together and sharing household expenses, the mode of
assessment is based on the circumstance of marriage as
such and discriminates against married persons, because as
a result thereof they may have to pay more by way of tax
than other persons as a result of the fact that the wife's
income chargeable to tax is added to the husband's income.
Consequently I am satisfied that the provisions of s. 192 and
s. 198, sub-s. 1(b), of the Income Tax Act, 1967, are invalid,
having regard to the provisions of Article 41 of the
Constitution. I am also satisfied that they are invalid, having
regard to the provisions of Article 40, s. 1, of the Constitution
as they discriminate invidiously against married couples, and
the husband in particular, and cannot be justified on any
ground.
There will be liberty to apply in respect of the other relief
sought in these proceedings.
The defendant appealed to the Supreme Court from the
judgment and order of the High Court. The plaintiffs crossappealed against so much of the judgment and order of the
High Court as declared that the provisions of s. 138 of the
Act of 1967, as amended, in so far as they provided in

respect of any tax
[1982]
1 I.R.
Hamilton J.
275
S.C.
year that a lower personal allowance was to be allowable as
a deduction against taxable income in dealing with the
combined incomes of husband and wife than would have
been allowable if they had not been married to each other,
were not repugnant to the Constitution of Ireland, 1937, or
void.
The appeals were heard on the 5th-7th and 10th-12th
December, 1979.
T. J. Conolly S.C. and R. J. O'Neill S.C. (with them F. D.
Murphy S.C. andJ. D. Cooke ) for the defendant.
The effect of s. 193, sub-ss. 7 and 8, of the Act of 1967,
which were added to the section by s. 3 of the Finance Act,
1978, is to provide that the liability for income tax of
husband and wife is identical, whether their incomes are
assessed jointly or severally.
There is no provision in the Constitution of Ireland, 1937,
expressly relating to the raising of revenue by taxation.
Article 11 provides for the existence of a central fund, but
without specifying the means of its creation. Article 15, s. 2,
sub-s. 1, relates to the law-making power of the legislature,
but again without specifically relating such power to the
power of the State to raise revenue.
The onus of establishing the repugnancy of a statute to the
Constitution rests upon the party asserting such repugnancy;
the statute must be presumed not to be so repugnant,
unless such repugnancy is clearly shown: O'Brien v.Keogh. 5
A money bill, such as formed the preliminary to the Act of
1967, is defined in Article 22, s. 1, sub-s. 1, and is
specifically excluded by Article 26 from the class of bills
which may be referred by the President to this Court before
their enactment for a decision as to whether they are, in

whole or part, repugnant to the Constitution.
In considering the validity of the challenged sections, one
must have regard to the totality of legislation in operation in
the State at the time when they are challenged.
No system of taxation can achieve precise equality as
between all taxpayers; regard may legitimately be had to the
difference in social function, and must be had to the
difference in capacity to pay between different groups of
taxpayers; each taxpayer is treated as a tax unit and regard
is had to his legitimate claims to different treatment and to
his capacity to pay. A married couple's personal allowance is
greater than that of a widowed person, because they are
more likely, by reason of their marital status, to have
dependent relatives and unavoidable commitments; and, for
precisely the
[1982]
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Hamilton J.
276
S.C.
same reason, a widowed person's personal allowance is
greater than that of a single person.
For the same reason, also, a married couple's personal
allowance has been less than that of two single persons, in
as much as a wife ought not lightly to be encouraged to risk
the neglect of what is normally her primary obligationthe
care of her home and family. [They referred to Article 41 of
the Constitution of Ireland, 1937]
Article 41, which deals with the family, relates only to the
family based on marriage: The State (Nicolaou) v. An Bord
Uchtla. 6 There was no factual basis for the contention of
the trial judge that s. 192 of the Act of 1967 was invalid, as
being calculated to induce couples not to marry, in as much
as no evidence had been called in the court below showing
that any couple had in fact been induced not to marry by the
provisions of the section: Ryan v. The Attorney General. 12
The trial judge misdirected himself in law in holding that the

general scheme of the Act of 1967 was based upon the
principle of individual taxation of each individual's income.
Sections 438, 439, 440, 448, 449, 530 and 531 of the Act of
1967like s. 192all deal with situations in which the
income of one person will be deemed for tax purposes to be
the income of another. [They also referred to s. 57 of the
Finance Act, 1974]
Article 40, s. 1, does not guarantee absolute equality of
treatment to all citizens in all circumstances: it merely
acknowledges their equality in their essential dignity as
human persons. That equality is unaffected by the disparity
in their various social functions: The State (Nicolaou) v. An
Bord Uchtla 6 ; Quinn's Supermarket v. The Attorney
General 13 ; O'Brien v. Keogh 5 ; O'Brien v. Manufacturing
Engineering Co. Ltd. 14 ; de Burca v. The Attorney General
15and it is precisely with that disparity that ss. 138 and
192 are concerned.
It is constitutionally justifiable for the Oireachtas to
discriminate as among classes of taxpayers: such
discrimination is not invidious where resting upon a genuine
and rational distinction between the social functions of the
different classes of taxpayers. [They referred to Lehnhausen
v. Lake Shore Auto Parts Co. 16 ; Kahn v. Shevin 17 ;
Nashville, Chattanooga and St. Louis Railwayv. Browning 18 ;
Hoeper v. Tax Commission of Wisconsin 8 ]
There are many instances in the income-tax code of
different classes of citizens being treated differently for tax
purposes. For instance, farmers are taxed not by relation to
the actual profits or income which they have received during
a tax year but by reference to the poor law valuation of their
lands.
[1982]
1 I.R.
Hamilton J.
277
S.C.
Section 135 of the Act of 1967later repealed by the

Finance Act, 1974, but re-enacted in substance by that
Actprovides for allowances for the unearned income of
persons over 65. Writers and artists are exempted from tax
on their earnings as such by virtue of s. 2 of the Finance Act,
1969. [He referred to the judgment of Lavery J. in O'Byrne v.
Minister for Finance 11 at p. 55 of the report]
By analogy, it is permissible for the Oireachtas to
differentiate for taxation purposes between married couples,
on the one hand, and other tax units-single persons or
unmarried coupleson the other. Income tax constitutes a
part only of the taxation system of the State. In other
aspects of that system, a married couple is treated much
more favourably than an unmarried couple. In relation, for
example, to inheritance and gift taxes, see s. 2 and the
second schedule, Part II, of the Capital Acquisitions Tax Act,
1976. For the taxation of capital disposed of by one spouse
to another or to a child, see ss. 13, 26 and 27 of the Capital
Gains Tax Act, 1975, and s. 8 of the Capital Gains Tax
(Amendment) Act, 1978. For stamp duty on the transfer of
land to a member of the family, see para. 4 of the fourth
schedule to the Finance Act, 1975.
Other statutory provisions affecting property which do not
directly deal with taxation but which do leave a married
couple, by virtue of their social function, in a financially more
advantageous position than two single individuals in receipt
of identical incomes are ss. 111, 112 and 117 of the
Succession Act, 1965, and ss. 3 and 14 of the Family Home
Protection Act, 1976, and s. 5 of the Family Law
(Maintenance of Spouses and Children) Act, 1976. [They also
referred to s. 58, sub-s. 2, of the Capital Acquisitions Tax Act,
1976; to s. 121 of the Act of 1965 and to Derry v. Inland
Revenue 20 ]
It is conceded that the plaintiffs, like most other married
couples where both the husband and the wife are whole-time
wage earners, are obliged by the provisions of the Act of
1967 which they challenge to pay a sum by way of income
tax which exceeds the total amount which would be payable
by an unmarried man and an unmarried woman identically
remunerated. The right of a wife to be maintained by her

husband, even if she possesses an income of her own, is a
right recognised and enforceable by law. The more normal
situation is for a wife either not to be a wage earner at all or
to be a part-time wage earner, so that in substance the
couple is in receipt of only one income. In such cases, a
married couple is in a more beneficial situation than that of a
single man and of a woman dependent on him.
To deprive an individual of some of his property is not ipso
facto an
[1982]
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Hamilton J.
278
S.C.
unjust attack on his property rights contrary to Article 40, s.
3, of the Constitution, provided that such deprivation can be
justified as being reasonably required in the interests of the
common good; O'Brien v.Manufacturing Engineering Co. Ltd.
14 ; Moynihan v. Greensmyth. 21 [They also referred to
O'Brien v. Keogh 5 ; Crowley v. Ireland. 22 ]
The German and Italian decisions relied upon by Mr. Justice
Hamilton are distinguishable in as much as (a) the provisions
relating to the family in the Constitutions of Italy and of the
Federal German Republic differ from those of the
Constitution of Ireland, 1937, and differ from them
particularly in not according recognition to the family as the
fundamental unit of society; (b)neither of those courts has
considered the overall fiscal positions of married couples,
balancing whatever other advantages might accrue to them
against the particular disadvantage which it had found to
accrue to them; and (c) our Constitution imposes no
constitutionalas distinct from legalobligation upon the
citizen to contribute according to his capacity to the revenue
of the State, such as is imposed by article 53 of the Italian
Constitution. [They also referred to Mikrommatis v. Republic
of Cyprus 23 ; Republic of Cyprus v.Demetriades 24 ;
Ioannides v. Republic of Cyprus 25 ]

Similarly, in the United States, the taxation unit is patently
the individual. In the United States Constitution, in contrast
to the Constitution of Ireland, 1937, the family is nowhere
recognised as a unit of society. [They referred to Article 41 of
the Constitution]
T. K. Liston S.C. and D. Gleeson S.C. (with them Mary
Robinson ) for the plaintiffs:
A graded system of income tax must, virtually of necessity,
involve some degree of discrimination in favour of an
unmarried couple and against a married couple, in as much
as, on the unmarried couple's scale, there must inevitably be
a double figure on the lowest rate.
There was evidence in the court below showing that it is not
necessarily in the best interests of the family in general or of
the wife in particular that the wife should be restricted from
earning money. The design of Article 41 is to facilitate
mothers who wish to devote themselves entirely to the care
of their homes and families, not to coerce mothers not to
exercise their right to earn a livelihood, nor to penalise them
if they choose to do so. [They referred to Murtagh Properties
v. Cleary 26 ]
A discriminatory statutory provision contravening a
constitutional right of a married couple will not be validated
by the existence of other statutory
[1982]
1 I.R.
Hamilton J.
279
S.C.
advantages which married couples may be shown to
enjoyand this is particularly applicable to the present
case, where the discriminatory provisions complained of are
all contained in two only of the 37 parts of the Act of 1967,
and the counterbalancing statutory provisions referred to by
counsel for the defendant are to be found in other parts of
the Act of 1967 or in completely different statutes. Many of
these provisions are inapplicable to the plaintiffs, or to the

normal run of working married couples whose main capital is
their health and intelligence.
The duty of the Courts in interpreting the Constitution is to
do so in the light of currently prevailing ideas of prudence,
justice and charity, which must inevitably be conditioned by
the passage of time and by changes in society: McGee v.
The Attorney General 7 ; In re Tilson. 27 [They also referred
to Byrne v. Ireland 28 ]
The practical exclusion of women from jury panels effected
by the Juries Act, 1927, was assumed to be constitutional for
nearly 40 years because it corresponded with the attitude of
both men and women towards the social function of women
which prevailed at the time of the enactment of the
Constitution of 1937. [They referred to de Burca v. The
Attorney General 15 ] A more accurate guideline as to the
attitude now prevailing towards the function of women in
society can be derived from the judgments in the de Burca
Case 15 and from the Employment Equality Act, 1977.
It is conceded that the Constitution does not prohibit all
statutory discrimination as between sections of the
community.
Where, however, a right is expressly conferred or protected
by the Constitution, as is the equality of citizens before the
law by Article 40, s. 1, or the right to marry by Article 41, s.
3, the State is not empowered so to legislate as to ignore
those express rights.
The effect of the sections of the Act of 1967 complained of
is to inhibit unmarried couples from marrying and to
encourage married couples to separate. They inhibit parents
from performing the duty imposed on them by Article 42, s.
1, of the Constitution of Ireland, 1937 "to provide, according
to their means, for the . . . education of their children" by the
simple fact of unnecessarily lessening the means available
to them with which to educate their children.
F. D. Murphy S.C. , in reply, referred to: In re Beaumont,
deceased 29 ; Malone v. Harrison 30 ; Helby v. Rafferty .31
Cur. adv. vult.
[1982]
1 I.R.
Kenny J.
280
S.C.
The decision of the Supreme Court upon the validity of ss.
192-198 of the Act of 1967 having regard to the provisions of
the Constitution was delivered by one of the judges of the
Supreme Court (Kenny J.) in accordance with Article 34, s. 4,
sub-s. 5, of the Constitution.
Kenny J., delivering the judgment of the Court:
25th January 1980
The plaintiffs, Mr. and Mrs. Murphy, are citizens of Ireland
and a married couple with one child. They were married in
July, 1975. They are employed as teachers in different
schools. In this action the question is whether ss. 192 to 198
(inclusive) of the Income Tax Act, 1967 ("the Act of 1967"),
which have the effect that, on marriage, the wife's income is
aggregated with that of the husband for the purpose of
assessment to income tax, are repugnant to the
Constitution. The text of these sections is set out in the
judgment of the trial judge (Mr. Justice Hamilton).
Section 192 of the Act of 1967 provides that a woman's
income chargeable to income tax shall, so far as it is income
for a year of assessment during which she is a married
woman living with her husband, be deemed for income tax
to be his income and not hers. This is not, however, to affect
the computation of her income in any way. Any income of
hers which is deemed to be his is to be assessed on him and
not on her. Sur-tax, which is referred to in s. 192, was
formerly charged on the amount of income which exceeded
a specific amount. It has been abolished by the Finance Act,
1974, a matter which, through inadvertence, was not

referred to in the judgment of the trial judge. This Act
provided that, subject to allowances given by the Act of
1967, (a) the taxable income which did not exceed 1,550
was to be charged at the rate of 26 per cent. (this was
known as "the reduced rate"); (b) so much of the taxable
income which exceeded 1,550 but did not exceed 4,350
was to be charged at the standard rate (35 per cent.); (c) the
taxable income in excess of 4,350 was to be charged, as
to the first 2,000 at the rate of 50 per cent., as to the next
2,000 at the rate of 65 per cent.; and (d) the remainder of
the income at the rate of 80 per cent. These higher rates
have been altered by Finance Acts passed since then so that
the highest rate is now 60%. The Act of 1974 also introduced
a new relief for working wives which was to be deducted
from gross income for the purpose of computation of liability
to income tax. In 1974 it was fixed at 200 but it also has
been altered by subsequent Finance Acts.
To make the scheme of taxation of husbands on their wives'
incomes
[1982]
1 I.R.
Kenny J.
281
S.C.
intelligible, it is now necessary to pass to s. 197 of the Act of
1967. It provides that if the husband or the wife make the
appropriate application, income tax shall be charged and
recovered on the income of the husband and that of the wife
as if they were not married.
The Act of 1967 (ss. 138 to 145) gives allowances against
the income of any individual to be assessed to tax. The
reliefs which appear to be relevant to this case are:
(a) a personal relief for a man who has his wife living with
him;
(b) a relief for any man or woman in respect of each child of
his or hers under 16;
(c) a relief for a married man in respect of life assurance

premiums or contributions to provide for his widow or
children;
(d) an exemption from tax of persons whose income does
not exceed a certain amount;
(e) a relief for payments in respect of insurance or other
provision to pay the costs of illness.
This list of reliefs is not exhaustive as there are many
others: we have stated those which we think are relevant to
this case.
If a claim for separate assessment is made by a husband or
wife, the reliefs have to be apportioned between the
husband and wife. However, s. 193 of the Act of 1967
provides that the total relief from tax given to the husband
and wife who have applied for separate assessments is not
to exceed that which would be given to them if they had not
made such an application. The scheme of taxation for
spouses who have made such an application was altered by
s. 3 of the Finance Act, 1978, which, broadly speaking,
provided that the income taxable when each of the spouses
had the same income was to be one-half of the joint income,
and where the separate incomes of husband and wife were
different, provision was made for the amount which was to
be assessed on each spouse. The result is that no tax
advantage is obtained by the separate assessment of
husband and wife: each becomes liable for an amount of tax
and the two sums paid by them are the same as would have
been payable if they had been taxed on a joint assessment.
Separate assessment results in an apportionment between
them of the amount of tax which would have been payable
by the husband if they had not applied for separate
assessments. Lastly, a married woman is to be treated for
income tax liability as living with her husband unless they
are separated under a court order or by a deed of separation
or in such circumstances that the separation is likely to be
permanent.
[1982]
1 I.R.

Kenny J.
282
S.C.
The consequence of the assessment on the husband in
respect of his wife's income is to make the amount of tax
which he pays greater than the aggregate of the amounts
which would be payable by the two of them if they were
either not married or married and separated. There are some
cases of husband and wife having low incomes to which this
generalisation does not apply. In the present case, however,
the addition of the wife's income to the husband's gives him
a bigger income for income tax purposes, which therefore
makes him liable to a higher rate of tax. This is the ground of
the plaintiffs' complaint.
In the tax year 1976/77, the plaintiff Mr. Murphy had a gross
salary of 3,711 and, after deductions, had a taxable
income of 2,391. The plaintiff Mrs. Murphy, who had a
gross salary of 3,483, had a taxable income of 2,223.
When her taxable income was added to his, the total income
tax payable by him was 1,579. If they had been
separately assessed, their combined tax bill would have
been 1,329. Thus, because they were married and living
together, he had an extra liability to tax of 250. In the tax
year 1977/78, when her taxable income was added to his,
the total income tax payable by him was 2,070; if they
had been separately assessed, his tax liability would have
been 1,746. Thus, because they were married and living
together, he had an extra liability to tax of 324. For the
year 1979/80 their accountant has estimated (and the
figures have not been challenged by counsel for the Attorney
General) that the extra tax payable by Mr. Murphy, because
he is married and living with his wife, will be 512. The
aggregation of their incomes has the result that he has to
pay income tax on some of his income at the rate of 45 per
cent., on another part of it at the rate of 50 per cent., and on
a third part at the rate of 60 per cent. If the plaintiffs were
separately assessed, the highest rate at which each would
be assessed would be 35 per cent.

Income tax was introduced as a temporary measure during
the Napoleonic wars but was not renewed in 1815. It first
became an annual feature of life in England under the
Income Tax Act, 1842, which was subsequently extended to
Ireland. The Act of 1842 contained a provision (s. 45) by
which a husband became liable to be assessed to tax on his
wife's income. Under the law before the Married Women's
Property Act, 1870, was passed, payment to a married
woman of her earnings did not give the employer a good
discharge unless she had her husband's authority to receive
them and a husband could, in his own name, recover his
wife's wages (see Carson's Real Property Statutes, second
edition (1910) at p. 338). The
[1982]
1 I.R.
Kenny J.
283
S.C.
earnings and income of a married woman thus belonged to
her husband. It was therefore thought just that he should be
assessed to tax on them. Since the Married Women's
Property Act, the earnings and income of a married woman
belong primarily to her. The assessment of the husband on
his wife's earnings is a survival from days when the law and
social conditions were different. In 1979, when examples are
to be found of married women holding high office in their
own right, the assessment to income tax on the husband in
respect of his wife's earnings is not easy to justify.
The plaintiffs contend that ss. 192 to 198 (inclusive) are
repugnant to the Constitution on the ground that they violate
Article 40, s. 1, and on the additional but separate ground
that they are a breach by the State of the pledge by it in
Article 41 to guard with special care the institution of
marriage, on which the family is founded, and to protect it
against attack.
Article 40, s. 1.
[Mr. Justice Kenny, having quoted Article 40, s. 1, of the

Constitution, continued . . .] This section is not a guarantee
of equality before the law in all matters or in all
circumstances. It is a qualified guarantee to all citizens as
human beings that they will be held equal before the law. It
therefore relates to those attributes which make us human:
it is concerned with the essentials of human personality.
The second paragraph of Article 40, s. 1, is a recognition
that inequality may be recognised and provided for, but only
if it flows from or is related to a difference of capacity,
physical or moral, or a difference of social function. The
plaintiffs contend that aggregation of their assessable
incomes subjects them, because they are married and living
together, to a method and burden of taxation which bear
unfavourably on them in comparison with two unmarried
people living together. The method and burden, however,
apply to all married couples living together.
There is, admittedly, an inequality for income-tax purposes
between, on the one hand, married couples living together
and, on the other hand, married couples who are separated
or unmarried couples living together. That inequality,
however, is justified by the particular social function under
the Constitution of married couples living together. The mere
fact that a heavier financial or other burden falls on some
defined person or persons does not of itself constitute a
repugnancy to s. 1 of Article 40. Having regard to the second
paragraph of Article 40, s. 1, an inequality will not be set
aside as
[1982]
1 I.R.
Kenny J.
284
S.C.
being repugnant to the Constitution if any state of facts
exists which may reasonably justify it.
The inequality alleged in this case is, first, as between
married couples and, secondly as between, on the one hand,
married couples living together and, on the other, unmarried

couples living together. As to the former, since the impugned
provisions apply only to married couples living together, and
since all such couples are dealt with equally by a common
set of rules, it is impossible to hold that the way in which
married couples living together are dealt with amounts to
unequal treatment contrary to s. 1 of Article 40. In so far as
unequal treatment is alleged as between, on the one hand,
married couples living together and, on the other, unmarried
couples living together, the social function of married
couples living together is such as to justify the legislature in
treating them differently from single persons for income tax
purposes. Numerous examples could be given from the
income-tax code of types of income-tax payers who are
treated differently, either favourably or unfavourably,
because of their social function. This particular unfavourable
tax treatment of married couples living together, set against
the many favourable discriminations made by the law in
favour of married couples, does not, in the opinion of the
Court, constitute an unequal treatment forbidden by Article
40, s. 1, particularly having regard to the vital roles under
the Constitution of married couples as parents, or potential
parents, and as heads of a family.
The plaintiffs' counsel placed strong reliance on four cases
decided in the United States of America, the Federal Republic
of Germany, Italy and Cyprus. A close examination of these
shows that they do not assist the plaintiffs' contentions on s.
1 of Article 40.
In Hoeper v. Tax Commission of Wisconsin 8 the Supreme
Court of the United States of America held, by a majority of
six to three, that the assessment of a husband to tax on his
wife's income was repugnant to the Constitution of the
United States because it violated "due process" which is
guaranteed by the Fourteenth Amendment of that
constitution. But our Constitution does not provide for "due
process" in the sense in which it was applied under the
Fourteenth Amendment in that case.
In the decision10 of the Federal Constitutional Court of the
Federal Republic of Germany in which judgment was
delivered on the 17th January, 1957, the joint assessment of

married couples under the Income Tax Law of 1951 was held
to be unconstitutional. The joint assessment of married
couples, which had been introduced in 1934 for the express
purpose of
[1982]
1 I.R.
Kenny J.
285
S.C.
forcing women to leave the labour market, and which was
suspended during the second world war when working
women were again required, was reintroduced in 1951 with
the aim of "restoring the working wife to the home." It was
believed that the increased tax burden involved would
induce wives not to seek work outside their homes. This
provision was held to have infringed the principle of
individual taxation to the detriment of married persons. It
was also held that the law impugned in the case interfered
with the freedom of married persons to make personal
decisions, including the right of the wife to decide whether
she would devote herself to the home or earn an income of
her own. As the legislature had no right under the
constitution to impose directly a certain pattern of the way in
which the private sphere of marriage would be arranged, the
same objective could not be achieved by a measure, such as
joint assessment, which was intended to serve the same
purpose indirectly. The measure was held to be
unconstitutional, not as infringing article 3 of the Basic Law,
which provided that all persons should be equal before the
law, but as being incompatible with article 6(1) of the Basic
Law, which calls for the special protection of marriage and
the family by the State. It is also to be noted that there is no
provision in the Basic Law similar to Article 41, s. 2, of our
Constitution.
In the case decided11 by the Constitutional Court of the
Republic of Italy on the 14th July, 1976, the aggregation of
the incomes of the married couple for tax purposes was held
to be unconstitutional. The taxpayers relied on articles 3, 29
and 53 of the Constitution of the Italian Republicthe text
of these articles is set out in the judgment of the trial judge.
Article 3, which deals with equality before the law, has no
provision similar to that in the second paragraph of Article
40, s. 1, of our Constitution. Article 29 of the Italian
Constitution, which deals with the family and marriage, is
quite different in terms to Article 41 of our Constitution, and
article 53 of the Italian Constitution, which provides that
everyone shall contribute to public expenditure in proportion
to his resources, has no equivalent in our Constitution.
Therefore, the reasoning in that case does not provide any
help in relation to Article 40, s. 1, of our Constitution.
The decision in the Republic of Cyprus ( The Republic of
Cyprus v.Demetriades 24 ) was based primarily on a
provision of the Cypriot Constitution which provided that
every person is bound to contribute according to his means
towards the public burdens. The constitutional and other
considerations which led to the Cypriot decision are so
different to Article 40, s. 1, and Article 41 of our Constitution
that the decision has little or no
[1982]
1 I.R.
Kenny J.
286
S.C.
relevance to the application of Article 40, s. 1, to the facts in
this case.
Throughout the argument in the present case the phrase
"invidious discrimination" was used to indicate the type of
inequality which is prohibited by s. 1 of Article 40. According
to the 1979 edition of Collins English Dictionary "invidious"
means "1. incurring or tending to arouse resentment,
unpopularity 2. (of comparisons or distinctions) unfairly or
offensively, discriminatory." While the second meaning can
be used to describe the inequality prohibited by Article 40, s.
1, the primary meaning of the word is the first and its use in
discussing Article 40, s. 1, is more likely to mislead than to
help.
In his judgment the trial judgepresumably thinking of the
German casereferred to what he called "the principle of
individual taxation on an individual's income." No section of
our income tax code and no decision of any Irish court was
referred to which acknowledged the existence of such a
principle. In our view there is no such principle in our
taxation code.
Therefore, we are of opinion that the plaintiffs' case, in so
far as it is based on s. 1 of Article 40, fails.
Article 41
[Mr. Justice Kenny, having quoted Article 41 of the
Constitution, continued. . .] It is to be noted that Article 41
has three sections. Section 1 recognises 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. It is because of those fundamental features that the
State gives the guarantee in s. 1, sub-section 2.
Section 2 stresses the importance of woman in the home
and pledges that mothers shall not be obliged by economic
necessity to engage in labour to the neglect of their duties in
the home. Section 3, sub-s. 1, must be read not only in the
context of the whole of s. 3 but in that of the whole Article.
This means that the pledge given in s. 3, sub-s. 1, to guard
with special care the institution of marriage is a guarantee
that this institution in all its constitutional connotations,
including the pledge given in Article 41, s. 2, sub-s. 2, as to
the position of the mother in the home, will be given special
protection so that it will continue to fulfil its function as the
basis of the family and as a permanent, indissoluble union of
man and woman.
The onus is on the plaintiffs to establish that the higher
income-tax liability which may fall on the husband is a clear
breach by the State of its
[1982]
1 I.R.
Kenny J.
287
S.C.
pledge to guard with special care the institution of marriage
and to protect it against attack.
Counsel for the Attorney General conceded that in some
cases, but not in all, marriage could, as a result of s. 192 of
the Act of 1967, have the consequence that the husband
could become liable for more than the total sum of income
tax which husband and wife would have to pay if they were
assessed separately on what each of them earned. They
argued, however, that to decide whether the State had failed
in its pledge the whole of our law in relation to married
couples should be looked at and that, when this was done, it
would be found that in many respects numerous benefits are
given to husband, wife and children. They submitted,
accordingly, that when the Court took account of the many
advantages and privileges given by the State to married
couples and their children, they outweighed the
disadvantage of the increased income-tax liability of the
husband created by s. 192 of the Act of 1967.
The Court accepts the proposition that the State has
conferred many revenue, social and other advantages and
privileges on married couples and their children.
Nevertheless, the nature and potentially progressive extent
of the burden created by s. 192 of the Act of 1967 is such
that, in the opinion of the Court, it is a breach of the pledge
by the State to guard with special care the institution of
marriage and to protect it against attack. Such a breach is, in
the view of the Court, not compensated for or justified by
such advantages and privileges.
The Court will, accordingly, declare that ss. 192 to 198
(inclusive) of the Act of 1967, in so far as these sections
provide for the aggregation of the earned incomes of
married couples, are repugnant to the Constitution.
On the 31st January, 1980, counsel for the Attorney General
requested the Supreme Court to indicate to the High Court

on what basis the accounts and inquiries mentioned in the
order of the Supreme Court dated the 25th January ought to
be takenwhether the judgment ought to be held to
operate prospectively only or retrospectively and, if
retrospectively, relative to what precise period of time and to
what taxpayers, if any, other than the plaintiffs.
The matter of the operation of the judgment of the Court
was adjourned for argument until the 12th February, 1980,
and was argued on the 12th-14th February, 1980.
[1982]
1 I.R.
Kenny J.
288
S.C.
T. J. Conolly S.C. and R. J. O'Neill S.C. (with them F. D.
Murphy S.C. andJ. D. Cooke ) for the defendant:
The obligations which the State has undertaken under
Article 45 of the Constitution of "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" (s.
1) and the pledge "to safeguard with especial care the
economic interests of the weaker sections of the community,
and, where necessary to contribute to the support of the
infirm, the widow, the orphan, and the aged"(s. 4) cannot be
undertaken without the taxation of the stronger sections of
the communityamong which, in this context, the plaintiffs
must be numbered.
Article 11 of the Constitution requires the State so to
maintain itself by taxation as to be in a position to meet the
charges and liabilities which by its laws it has seen fit to
impose upon itself. This involves the preparation of
estimates of the receipts and expenditure of the State for
each forthcoming financial year, and the presentation of
such estimates to Dil ireann for consideration (Article
28, s. 4, sub-s. 3). The duty of considering such estimates is
imposed on Dil ireann by Article 17, s. 1, of the

Constitution and s. 2 of Article 17 requires that, in normal
circumstances, the legislation necessary to give effect to the
financial resolutions of each year shall be passed within that
year. The estimation of the amount of income tax necessary
to sustain the expenditure of the State is, hence, a task
which must be carried out annually, and estimates can be
prepared and considered realistically only on the basis that
the Government, in exercising its executive power of
taxation up to date, has been correct in its assumption that it
was exercising that power in compliance with the
Constitution. [They referred to Boland v. An Taoiseach 32 ] If
the Courts were empowered to strike down estimates
retroactively, legislation would lose a great deal of its
meaning. [They referred to s. 138, sub-s. 3, of the Act of
1967]
If the decision of this Court were to be held to operate
retroactively, its retroactive operation should be only as from
the date of the judgment of this Court, as it was then only
that a final determination was made regarding the
constitutionality of the impugned sections. The decision of
Mr. Justice Hamilton was wider than that of this Court, having
been based, unlike the decision of this Court, on the
provisions of Article 40 of the Constitution as well as on
those of Article 41, and relating, unlike the decision of this
Court, to a wife's unearned income as well as to her earned
income.
The effect of the decision of this Court was not to invalidate
s. 192 of the
[1982]
1 I.R.
Kenny J.
289
S.C.
Act of 1967 in its entirety; this Court did not in terms
declare that a wife's income must not be deemed to be her
husband's, but merely that the income of husband and wife
might not be aggregated for the purpose of assessment to

tax.
There is no requirement in the Constitution that a statute
which has been held to be unconstitutional must necessarily
be held to have been unconstitutional at the time when it
was enacted: McGee v. The Attorney General 7 ; The State
(Healy) v. Donoghue 33 ; Ryan v. The Attorney General. 12
Executive or legislative actions carried out in good faith in
compliance with such a statute are not necessarily
invalidated by a finding, some years after the enactment of
the statute, that it was unconstitutional: McMahon v. The
Attorney General 34 ; de Burca v. The Attorney General 15 ;
The State (Byrne) v.Frawley. 35 [They also referred to
Defrenne v. Sabena 36 ]
The Criminal Law Amendment Act, 1935, might easily have
been passed by the Oireachtas after the enactment of the
Constitution of 1937, and if, in that event, it had been
referred before signature by the President to the Supreme
Court pursuant to Article 26 of the Constitution or questioned
shortly after its enactment pursuant to Article 34, it might
well have been irrevocably held to have been in conformity
with the Constitution.
It has been held in the United States of America that the
actual enactment and existence of a statute which is later
found to be unconstitutional, and the fact that individual and
public rights have been bona fide determined on the basis of
the valid existence of the statute, may be matters which
cannot justly be ignored: Chicot County Drainage District
v.Baxter State Bank. 37 A change in law ought to be held to
be operative retroactively only if such a ruling will advance
the primary purpose of the change effected in the
lawwhich will normally be the case only where individual
rights which were adversely affected by the law as it
originally stood can be maintained or re-established by the
retroactive operation of the law as amended: Linkletter v.
Walker 38 ; Stovall v. Denno. 39
A decision ought not to be applied retroactively if its
retroactive application will produce substantial injustice or
hardship, either to individuals or to the public at large:
Chevron Oil Co. v. Huson 41 ; Cipriano v. City of Houma. 40

While the rule should be operated to restrain future conduct
by public officials of a nature which has for the first time
been held to be improper, it ought not to be operated to
invalidate past actions of a similar nature by such officials
which were carried on in good faith and in conformity with
the statutory or constitutional norms prevailing at the time:
United Statesv. Peltier. 42 [They also referred to Ua
Clothasaigh v. McCartan. 43 ]
[1982]
1 I.R.
Kenny J.
290
S.C.
The jurisdiction of the United States Supreme Court to
declare statutes unconstitutional is based on essentially the
same principle as that laid down in Article 15 of the
Constitution of Ireland, 1937. [They referred to Marbury
v.Madison. 44 ]
The primary purpose of the opinion of the Court in this case
is to safeguard the institution of marriage in general, rather
than the individual rights of any particular married couple;
any damage that the Act of 1967 has done to that institution
has been done and cannot now be undone or compensated
for; future damage to the institution can be guarded against
as effectively by the prospective as by the retrospective
application of the Court's decision.
Money voluntarily paid under mistake of law has in fact
been illegally demanded, but is nonetheless normally not
recoverable: William Whiteley Ltd.v. The King 45 ; Glasgow
Corporation v. Inland Revenue. 46 It may become
recoverable when the party demanding the money is
primarily responsible for the other party's mistake, or if the
party which has paid the money has been compelled to do
so to secure a right or a privilege: Dolan v. Neligan 47 ;
Masonv. New South Wales. 48
A taxpayer who has permitted the Revenue Commissioners

without protest to assess tax on him and to recover tax from
him on a basis which is erroneous is prima facie estopped
from asserting that tax already assessed and recovered has
been assessed and recovered erroneously and should be
repaid. His right is primarily to be safeguarded in the future
from the errors to which he contributed in the past, but, in
view of his own past contribution to those errors, he is
normally not entitled to be recompensed for moneys which
he has paid in consequence thereof. [They referred to
Maclaine v. Catty 49 ]
T. K. Liston S.C. and D. Gleeson S.C. (with them J. O'Driscoll
S.C. andMary Robinson ) for the plaintiffs:
Article 15, s. 4, sub-s. 2, of the Constitution of Ireland, 1937,
empowers this Court merely to decide that a particular
statutory provision is invalid: it does not empower the Court
to go further and determine the particular date at which the
invalidity commenced. [They referred to O'Brien v. Keogh 5 ;
McMahon v. The Attorney General 34 ; de Burca v. The
Attorney General 15 ; Moynihan v. Greensmyth 21 ; O'Brien
v. Manufacturing Engineering Co. Ltd. 14 ]
A pre-Constitution statute which has been held to be
inconsistent with the Constitution is conceded by the
defendant not to have been carried over by Article 50.
Similarly, the words of Articles 15 and 24 are perfectly
[1982]
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unambiguous. It is ultra vires the legislature to enact
legislation which is repugnant to the Constitution. Such
legislation is, hence, a nullity from the outset, and cannot be
held to have become invalid only when declared so.
The jurisdiction of the United States Supreme Court to
supervise legislation has developed with precedent and
derives from the Court's own decisions; that of this Court is
strictly limited by the express provisions of the Constitution:

Boland v. An Taoiseach. 32
The United States Supreme Court is, therefore,
constitutionally free to decide the question of the
prospective or retrospective invalidation of legislation as a
pure matter of discretion and public policy: Linkletter
v.Walker 38 ; Great Northern Railway Co. v. Sunburst Oil and
Refining Co. 50 [They also referred to Griffin v. Illinois 51 ]
The doctrine of the prospective overruling of legislation is
largely applied in the United States in criminal cases in
circumstances where a retrospective overruling would
disrupt the administration of the criminal law, by requiring
the retrial or release of convicted persons who had been
found guilty on trustworthy evidence introduced in good faith
and in conformity with previously accepted constitutional
standards: Johnson v. New Jersey 52 ; United States v.
Peltier. 42 [They also referred to Linkletter v. Walker 38 ;
Defrennev. Sabena 36 ; R. v. National Insurance
Commissioner; ex parte Hudson 53 ]
On the assumption that this Court were free to hold
legislation to be invalid prospectively only, this course ought
to be adopted only with the greatest caution and where an
overwhelming disruption would be caused by a retrospective
overruling. There is no reason for believing that the State
would be caused any undue inconvenience by the
retrospective application of the Court's decision in this case.
There is no absolute rule that money paid in mistake of law
is not recoverable, merely that money so mistakenly paid is
normally not recoverable where paid voluntarily and on foot
of an honest claim. [They referred to Goff and Jones's Law of
Restitution (2nd ed., 1978) at pp. 90-91] A court officer, who
finds that he has in his hands money which in equity belongs
to someone else, is not relieved of his obligation to pay the
money to the person really entitled to it by the fact that it
has come into his hands through that person's erroneous
view of the law: Ex parte James 54 ; In re Tyler. 55 This is
so because it is the especial duty of the Courts, which
enforce honest dealings on citizens, themselves to set an
example of honest dealings. The Executive, which shares the
Courts' duty of enforcing honest dealings, similarly must

share this obligation.
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Similarly, if the mistake of law has been caused primarily by
the defendant, the money may be recovered back: per Lord
Denning M.R. in Kiriri Cotton Co. Ltd. v. Dewani 56 at p. 204
of the report. [They also referred to East Cork Foods v.
O'Dwyer Steel. 57 ]
No real question arises here, however, of payments made
under a mistake of law. The plaintiffs did not pay money to
the revenue; they were deprived of money which they ought
to have received but which their employers deducted in error
of law and paid to the revenue. The plaintiffs' view as to the
correctness of the payments was immaterial, in as much as
they had no means of effectively preventing the payments
from being made.
The plaintiffs, not having acted at all, had not acted in error,
hence the parties were not in pari delicto, and the plaintiffs
were entitled to recover: Kiriri Cotton Co. Ltd. v. Dewani. 56
[They also referred to Sebel Products Ltd. v.Commissioners
of Customs and Excise. 58 ] The State cannot escape liability
by saying that it has spent the money, for the demand of the
money by the State was, at the very least, based on an
innocent misrepresentation on its part: Larner v. London
County Council. 59
R. J. O'Neill S.C. , in reply, referred to Article 15, s. 4, and
Article 34, s. 3, sub-s. 2, of the Constitution of Ireland, 1937;
McGee v. The Attorney General 7 ; de Burca v. The Attorney
General 15 and The State (Sheerin) v. Kennedy. 2
Cur. adv. vult.
O'Higgins C.J.
25th April 1980
In its judgment of the 25th January, 1980, in these
proceedings this Court declared ss. 192 to 198 of the Income
Tax Act, 1967, in so far as the same provided for the
aggregation of the earned income of married couples, to be
invalid having regard to the provisions of the Constitution.
Subsequent to that judgment the Court received submissions
and entertained arguments as to the date from which that
declaration should operate and as to whether and in respect
of what period the plaintiffs could claim a refund of tax paid
in accordance with aggregation.
The questions
These questions arising as a consequence of the Court's
judgment
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involve considerations of importance in the interpretation of
the Constitution. While they arise as a consequence of a
decision on validity, they do not form part of that validity
question but have a much wider and more general impact. It
follows that this Court, in pronouncing upon them, is not
bound by the one opinion requirement of Article 34, s. 4,
sub-s. 5, of the Constitution and is free to arrive at its
decision through the separate judgments of each member of
the Court.
It seems to me that the matters which the Court has been
asked to consider can conveniently be grouped as
followswhether the Court's declaration as to invalidity
operates retrospectively and, if so, to what extent; whether it
operates prospectively; whether the principles of estoppel
apply in respect of claims for the recovery of tax paid; and

whether tax paid under a law which was presumed to be
valid and was subsequently declared to be invalid can ever
be recovered. I propose to deal with the matters raised in the
above order to the extent to which I find it necessary to refer
to them.
American practice
The American Supreme Court has adopted a practice of
deciding, in relation to the facts and surrounding
circumstances, whether a ruling which upsets what was
regarded as the law should operate retrospectively or merely
prospectively. This extends both to the rules of the common
law and to statutes held to be unconstitutional. The practice
grew up gradually. It constituted a rejection of Blackstone's
view that the duty of a court was not to"pronounce a new
law, but to maintain and expound the old one." (1.
Blackstone's Comm. 69). Blackstone's view was accepted
originally without question both in relation to the common
and statutory law. In Norton v.Shelby County 60 , decided in
1886, the court declared at p. 442 of the report that
unconstitutional action "confers no rights; it imposes no
duties; it affords no protection; it creates no office; it is in
legal contemplation, as inoperative as though it had never
been passed." It was, however, appreciated that such a view,
applied without exception, could work considerable hardship
and injustice. In 1940 Hughes C.J. in Chicot County Drainage
District v. Baxter Stale Bank 37 stated at p. 374 of the
report that the Norton view "must be taken with
qualifications." He said that the actual existence of a statute
prior to the determination of its constitutionality "is an
operative fact and may have consequences which cannot
justly be ignored. The past cannot always be erased by a
new judicial declaration." In 1932 Cardozo J. in Great
Northern
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Railway Company v. Sunburst Oil and Refining Company 50
had upheld a decision of the Montana Supreme Court to
apply a ruling prospectively, asserting at p. 364 of the report
that prospectivity could be necessary to avoid injustice or
hardship and on the principle that laws set aside "are law
none the less for intermediate transactions." Finally in
Linkletter v. Walker 38 the American Supreme Court,
declaring that the Constitution neither prohibits nor requires
retroactive effect to be given to such rulings, decided that in
each case it was proper to determine whether retroactive or
prospective application was appropriate.
It has been urged by counsel for the Attorney General that
this Court should follow these American precedents and
should, in particular, in this case, as a matter of judicial
choice, provide for prospectivity in relation to the declaration
made. I must, and do, treat with respect a practice which, in
its long and widespread experience, the American Supreme
Court has found to be both competent and practical. I must
exercise caution, however, lest too precipitate a following
leads to confusion and error. Important differences exist
between the American Constitution and ours and, because of
these differences, constitutional practices and procedures
possible in one country may not be permissible in the other.
Unlike ours, the American Constitution confers on the
Supreme Court no express power of judicial review over
legislation. This power, of course, exists but its existence
came through judicial recognition. In the landmark decision
of Marbury v. Madison 44 the Supreme Court declared such
a power to be implicit in the Constitution and to be of the
very essence of the judicial power and duty under the
Constitution. As the power was first recognised and declared
by the courts, it is not surprising that its subsequent
development in America should have been the result of
changing judicial views as to the consequences which should
flow when a law was declared unconstitutional or when a
previously accepted principle was upset. The change from
the view expressed in the Norton Case 60 to that which was

later declared in Linkletter 38 was not made more difficult
by the written words of a Constitution. While, therefore,
noting the American precedent, I feel bound to consider this
matter on the basis of our own Constitution and in the light
of its particular provisions. It is on these and on nothing else
that the consequences of a declaration as to invalidity on a
question raised under Article 34 of the Constitution must be
determined.
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The Constitution and legislation
Article 15 of the Constitution deals with the National
Parliament or the Oireachtas. This consists of the President
and the two Houses, Dil ireann and Seanad
ireann . Under Article 15, s. 2, the sole and exclusive
power of making laws for the State is vested in the
Oireachtas. By Article 15, s. 4, sub-s. 1, it is provided that
the Oireachtas "shall not enact any law which is in any
thereof." The Article does not provide for any machinery to
enforce this prohibition or to advise or indicate to the
Oireachtas what may be repugnant. One can assume that
the Oireachtas would recognise and observe the express
prohibitions contained in the Constitution. Examples of these
are the prohibitions on legislation to provide for retrospective
infringement of the law (Article 15, s. 5), to disqualify
citizens on the ground of sex from membership of Dil
ireann or from voting (Article 16, s. 1, sub-s. 3), to reduce
constituency numbers below three (Article 16, s. 2, sub-s. 6),
to remove the Supreme Court's appellate jurisdiction on
constitutional matters (Article 34, s. 4, sub-s. 4); to provide
for the dissolution of marriage (Article 41, s. 3, sub-s. 2). If a
situation ever arose in which express prohibitions of this

nature were ignored by the two Houses and the President,
then the Constitution itself would have ceased to matter. The
problem that was foreseen was not this. It was the fact that
the Oireachtas might from time to time make laws which,
unwittingly, contravened the Constitution. To deal with such
a situation, Article 15, s. 4, sub-s. 2 provided:
"Every law enacted by the Oireachtas which is in any
respect repugnant to this Constitution or to any provision
thereof, shall, but to the extent only of such repugnancy, be
invalid."
Retroactivity or prospectivity
The question which now arises is what meaning and effect
ought to be given to the words "shall . . . be invalid" used in
Article 15, s. 4, sub-s. 2. Must the law found to be repugnant
be regarded and treated as never having had the force of
law and as being void ab initio? In other words, has the
establishment of repugnancy a retroactive effect on the
validity of the impugned law? That this is the true meaning
and effect of the sub-section is a view which must command
considerable support because of the use of the word
"invalid" and which is mandatory if this word, in the context,
means
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"void." The alternative view, based on reading the word
"invalid" in the sense of meaning "voidable", is that the subsection should be construed as meaning that invalidity stems
from the detection or establishment of the repugnancy.
Under this alternative view a declaration of the invalidity of
an impugned law operates from the date of the declaration
and, therefore, prospectively. Coexistence of these two views
is not possible. One or other must represent the correct
interpretation of the sub-section. Accordingly, in my view,
our Courts have not a choice between declaring invalidity

retroactively or declaring it prospectively. A declaration, once
made, has the effect and operates in accordance with what
the Constitution, correctly interpreted, ordains and not in
accordance with what may be thought desirable, feasible or
convenient by the court making the declaration. For this
reason we can put aside, in my view, the practice and
procedure of the American Supreme Court in exercising a
choice between retroactivity and prospectivity and, in so
doing, be thankful that we avoid the complications and
difficulties which the making of such a choice necessarily
entails.
In referring to the meaning to be attached to the word
"invalid" in Article 15, s. 4, sub-s. 2, I have not overlooked
the fact that, in the event of a conflict between the two texts
of the Constitution, the Irish text is to prevail (Article 25, s. 5,
sub-s. 4). However, I am satisfied that the English
word"invalid" and the Irish words "gan bhail" have similar
possible meanings in each of the respective languages and
that the exact meaning to be attached in any one instance
depends on the context in which they are used. In my view,
no conflict exists between the two texts and the reasoning
adopted to ascertain the true meaning is as appropriate in
relation to the one text as it is to the other.
I turn now to consider the two opposed or conflicting views
as to the effect of Article 15, s. 4, sub-s. 2. I do so in the
realisation that this is just one provision in the Constitution
and should not be considered in isolation from the general
scheme of the Constitution and from other relevant
provisions. Interpretation requires that regard be had to the
entire text and, where consistency and harmony is made
possible by giving a particular interpretation, such should be
preferred to an interpretation which leads to distortion and
contradiction.
Article 50
Before considering Article 15, s. 4, sub-s. 2, however, I find
it necessary
[1982]
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to refer to Article 50. I do so in order to indicate the
difference which exists between the two provisions. Article
50 deals with pre-Constitution laws. These, of course, enjoy
no presumption of constitutionality. Such laws are considered
under Article 50 having regard not to their validity but to
their consistency with the Constitution. The question to be
considered is whether any such law was continued in force
after the Constitution came into operation. It may be
accepted that such law was a valid law before the
Constitution but continuance in operation after the date of
the Constitution depends on consistency. If an examination
of any such law discloses that it is inconsistent with the
Constitution, then this disclosure means that under Article
50, to the extent of such inconsistency, that law was not
continued in force. In pronouncing the provision of any such
law to be inconsistent with the Constitution, a court makes a
declaration which can only be a declaration that the law in
question was never in force once the Constitution came into
operation.
Consequences of retroactivity
Unlike Article 50, Article 15, s. 4, sub-s. 2, deals with laws of
the Oireachtas. It is accordingly concerned with laws which
are presumed to be constitutional and which may only be
struck down if repugnancy to the Constitution is clearly
established. If a finding of such repugnancy has the same
retroactive effect as a finding of inconsistency has under
Article 50, then certain consequences follow. In the first
place the law in question would have to be regarded as
never having been in operation and as being void ab initio.
This in turn would mean that all actions and conduct directed
or permitted by such a law would be deprived of all legal
authority. Such actions and conduct may have involved an
interference with constitutional rights, the prosecution,
conviction and punishment of citizens for offences created
by the law in question, the expenditure of public monies or

the encouragement of innocent people to enter into
obligations and to accept liabilities of a permanent nature.
All of these various activities and the people involved in
them would lose all legal protection and authoritythe
various actions taken emerging suddenly as serious wrongs
against individuals and society and the persons who took
them standing culpable and amenable before the law.
Even if indemnifying action were possible in respect of
conduct which amounted to breaches of constitutional rights,
so much other harm may have been caused that
compensation or remedial action may be impossible. The
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law thus condemned would have been one properly
regarded as valid and constitutional and properly obeyed
and respected as part of the laws of the State. It may have
been in operation for many years before its validity was
questioned. Indeed, even if it created offences and directed
prosecutions, no question of its validity could be raised in
any of the lower courts by judge, prosecution or defence.
Faced with consequences such as these which seem to arise
on a particular interpretation of the words used in Article 15,
s. 4, sub-s. 2, one inclines to seek an alternative meaning. It
is in this respect reassuring to know that the words used in
the sub-section do not stand alone and must not be
considered in isolation. Article 15, s. 4, sub-s. 2, forms part of
the general scheme of the Constitution and must be
considered and interpreted as such.
The scheme of the Constitution
Article 15 is one of the two Articles of the Constitution in
which the word"repugnant" is used. The other is Article 26.
This latter Article deals with the President's power to refer "a
Bill" to the Supreme Court to consider a question of
repugnancy. Here there is a significant difference. A Bill is a

legislative proposal which has gone through the procedure
set out in Article 20. When it comes to the President it
represents the decision and will of the two Houses of the
Oireachtas but as such has no legal force or effect. Article
15, s. 4, sub-s. 2, however, deals with a "law enacted by the
Oireachtas." As already mentioned the Oireachtas consists of
the President and the two Houses of the Oireachtas (Article
15, s. 1, sub-s. 2). A Bill which has been passed or is deemed
to have been passed by the two Houses of the Oireachtas
must be presented by the Taoiseach to the President under
Article 25, s. 1,"for his signature and for promulgation by him
as a law." The signing of the Bill by the President is the final
"enactment" by the Oireachtas of the legislative proposal
into a "law." This is made clear by Article 25, s. 4, sub-s. 1,
which declares:
"Every Bill shall become and be law as on and from the day
on which it is signed by the President under this Constitution,
and shall, unless the contrary intention appears, come into
operation on that day."
Once the Bill is so signed by the President, it is promulgated
or announced to the people as a new law by the publication
of a notice by the President under Article 25, s. 4, sub-s. 2,
which states:
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"Every Bill signed by the President under this Constitution
shall be promulgated by him as a law by the publication by
his direction of a notice in the Iris Oifigiil, stating that the
Bill has become law."
It is such a Bill, duly signed by the President and enacted
and promulgated by him as a law, which is referred to in
Article 15, s. 4, sub-s. 2. Irrespective of what repugnancy
may exist, what has been signed, enacted and promulgated

is by virtue of Article 25 immediately in force as a law of the
State. The existence of the repugnancy, it may be assumed,
would have been neither recognised nor suspected,
otherwise the Bill, if not a Money Bill, would have been
referred by the President to the Supreme Court under Article
26. A Money Bill, however, such as the Bill which led to the
Act of 1967, cannot be referred by the President and,
accordingly, this safeguard was not available in relation to
the law with which this case was concerned. The validity of a
law so enacted and promulgated can only be considered if,
after it has been in operation and in force, a question as to
its validity is raised in appropriate proceedings. Until this is
done the law remains in force commanding respect,
obedience and enforcement in the Courts in the same
manner as any other law. A question of validity can only be
raised in either the High Court or the Supreme Court. When
so raised it is considered under Article 34, s. 3, sub-s. 2
which provides:
"Save as otherwise provided by this Article, the jurisdiction
of the High Court shall extend to the question of the validity
of any law having regard to the provisions of this
Constitution, and no such question shall be raised (whether
by pleading, argument or otherwise) in any Court established
under this or any other Article of this Constitution other than
the High Court or the Supreme Court."
Conflict to be avoided
Once the repugnancy is established upon such a question
being raised, then the resulting invalidity must be declared
in accordance with Article 15, s. 4, sub-s. 2. If such invalidity
is held to date back to the very enactment of the law, then a
clear conflict emerges between Article 15, s. 4, sub-s. 2, and
Article 25, s. 4, sub-s. 1. On such a construction the former
provision would be interpreted as declaring the law invalid
from the moment it was signed by the President (its
enactment) while the latter provision expressly states that
on its signature by the President it becomes law and goes
into operation as
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such. Any interpretation of Article 15, s. 4, sub-s. 2, which
brings about such a conflict with the express provisions of
Article 25, s. 4, sub-s. 1, must be suspect. In my view, it is
also erroneous. The question of validity which has to be
considered under Article 34, s. 3, sub-s. 2, must be
considered "having regard to the provisions of this
Constitution." Necessarily what is considered is a "law", that
is, a Bill which has been signed and which is in operation
under Article 25, s. 4, sub-s. 1. The provisions of the
Constitution to which regard must be had are not merely
those provisions which render the law repugnant, but also
Article 25, s. 4, sub-s. 1, under which, up to then, it was in
operation as a law. Conflict between the two provisions of
the Constitution is avoided and harmony and order in the
Constitution's scheme of operation is ensured if the
declaration of invalidity under Article 15, s. 4, sub-s. 2, is
regarded as taking effect only from the moment it is made.
Having given the matter very careful consideration, I am
convinced that it is in this manner that the word "invalid" in
Article 15, s. 4, sub-s. 2, should be interpreted and that
invalidity as a consequence operates only from the date of
its declaration on a question raised under Article 34, s. 3,
sub-s. 2. If I am correct in this view, the various problems
and difficulties which I have already mentioned disappear.
Laws as enacted will continue to be obeyed and respected in
the sure knowledge that they can never be declared always
to have been a nullity. At the same time the Courts will
continue to exercise appropriate powers of judicial review in
the knowledge that what the Constitution requires to be
done will not lead to turmoil and chaos.
Conclusion
Therefore, I conclude that under the Constitution a
declaration as to the invalidity of a law or any provision
thereof can only operate from the moment such invalidity is

declared in the High Court or in the Supreme Court. I have
been able to arrive at this conclusion from an examination
and interpretation of the express provisions of the
Constitution. However, even if this had not been possible,
the requirements of an ordered society would have inclined
my mind to such a conclusion. It would appear to me to be
unthinkable that a people, who adopted a Constitution in the
interests, inter alia, of achieving a"true social order" (see
Preamble) should have intended that, under that
Constitution, laws, formally passed, which went into
operation and which were respected and obeyed, could,
years after their enactment, be declared never to have had
the force of law. Such an interpretation of the Constitution
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would provide for our people the very antithesis of a true
social orderan uneasy existence fraught with legal and
constitutional uncertainty.
I am aware that this view which I hold and which I have
endeavoured to explain is not shared by my brother judges
as following judgments will make clear. In these judgments,
which I have been afforded an opportunity of reading, some
reliance is placed on previous decisions of this Court as
indicating acceptance that invalidity in this context operates
ab initio. While, of course, respecting the view of my
brethren in this regard, I must suggest a slight note of
caution. I cannot see in any of the cases referred to that this
question was either argued or considered. As a
consequence, the orders made have, in my view, little
relevance. In fact an examination of the cases could suggest
an interpretation of what was said suitable to either view. An
exception in this regard is McMahon v. The Attorney
General. 34 This, however, was a case decided under Article
50. In my view, as already indicated, inconsistency declared

under Article 50 necessarily has a retroactive effect. The
consequences of such were not dealt with in the McMahon
Case 34 for the reasons mentioned in the majority judgment
of Dlaigh C.J. but were certainly present to the mind of
FitzGerald J., one of the dissenting judges. However, I would
regard that case as irrelevant as it was not concerned with
validity under Article 34, s. 3, sub-s. 2, of the Constitution.
Claims for refund
Applying these considerations to the issues in the present
case, I would conclude that the declaration of the invalidity
of ss. 192 and 198 of the Income Tax Act, 1967, operates
only from the date of the decision in the High Court. This
means that the plaintiffs can only claim a refund of tax in
respect of the period that has elapsed since the High Court
judgment. Up to that date the sections in question were
lawfully in force and the tax collected was lawfully collected.
Any tax collected under these sections after the High Court
judgment was, however, illegally collected from the
plaintiffs. As they had challenged the validity of the sections
in question, the payment or deduction for tax must be taken
to have been made under protest by them. For these
reasons although the payment or deduction was made
illegally it is, in my view, recoverable by the plaintiffs in
respect of the period which has elapsed since the date of the
High Court judgment.
Whether other persons can claim a refund of tax similarly
paid or deducted since the High Court judgment must
depend on the circumstances
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of each case. There is, in my view, no general right to
recover tax illegally collected. This is certainly the view held
in the American Courts where a considerable jurisprudence
in this field exists. The question is whether the payment or

deduction of tax was made voluntarily or involuntarily. These
terms are not applied in their ordinary sense. Thus a
payment may be voluntary although it is made unwillingly. To
establish that the payment was not a voluntary one some
element of duress or of protest is necessary (see American
Jurisprudence, Vol. 72, paragraphs 1081 and 1082, 2nd. ed.).
I suspect that in the majority of cases neither of these
elements will be shown to exist. It seems proper, however, to
refrain from expressing any more detailed view in the
absence of a knowledge as to facts and circumstances which
apply in particular cases.
Estoppel
On the view I have formed I do not find it necessary to deal
with the argument addressed to this Court on estoppel. This
is a concept which is defined in many ways and which
assumes many forms. Broom (10th ed. p. 104) attributes its
development as a rule of law to acceptance of the
maximallegans contraria non est audiendus. Whatever be its
form, however, it would require for its application both full
knowledge of the true facts and conduct, representation or
attitude inconsistent with that knowledge. For this reason I
doubt if it could be relied upon as a possible or normal
answer to the majority of claims which would arise if a law
declared to be invalid was so invalid ab initio. It may,
however, have some particular application to the facts of this
case. Here we are concerned with a finance or taxation
statute. A particular duty lies on the Government and on the
Oireachtas under the Constitution to provide each year for
the financial requirements of the State. Under Article 11 of
the Constitution all monies raised in revenue form one fund
and all such monies are appropriated and expended for the
purposes and in the manner determined by law. This must be
taken as a matter of general knowledge. Any citizen who
accepts such taxation laws as are in operation and who pays
his taxes without protest does so in the full knowledge that
as a member of the community he will share in the
expenditure and derive a benefit from the Central Fund. Such
a citizen can scarcely have merits if after invalidity is
established he seeks to recover back what has already been

collected and appropriated with his knowledge and implied
approval for the common good.
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Henchy J.
The plaintiffs are a husband and wife. Each is a qualified
national teacher and, since their marriage in 1975, they
have continued in their employment as national teachers.
Under certain provisions of the Income Tax Act, 1967, the
wife's income was deemed that of her husband and his
liability to income tax was assessed accordingly. The result
was that the amount of income tax he paid was greater than
the aggregate of the amounts that would be payable by the
two of them if they were not married, or, if married, they
were separated. For this reason they were advised that the
relevant provisions of the Income Tax Act, 1967, were
repugnant to the Constitution and therefore invalid.
I
In March, 1978, the plaintiffs instituted proceedings in the
High Court to have the alleged unconstitutionality judicially
established. In their statement of claim they asked primarily
for a declaration that certain provisions of the Income Tax
Act, 1967, were repugnant to the Constitution and therefore
invalid; but they also asked that any necessary accounts or
inquiries be taken and made. It was clear, therefore, as was
confirmed at the hearing, that they were seeking not only to
have struck down as unconstitutional the statutory
provisions which make the husband liable to be taxed as if
he had earned his wife's salary but also to recover, so far as
the law permitted, the sums of money which their employers
had excessively deducted from their salaries for income tax
under the Pay As You Earn (PAYE) system of income tax

collection.
The proceedings instituted in the High Court, with the
Attorney General named as the sole defendant, duly came
on for hearing before Mr. Justice Hamilton in July, 1979. In a
reserved judgment delivered in October, 1979, he declared
that s. 192 and s. 198, sub-s. 1(b), of the Act of 1967 were
repugnant to the Constitution and therefore invalid. He
concluded his judgment by saying: "There will be liberty to
apply in respect of the other relief sought in these
proceedings." This meant that he was retaining within the
seisin of the High Court, upon the matter being pursued by
making an application in the High Court, the question
whether and to what extent the plaintiffs could recover back
the income tax collected by the revenue authorities under
the statutory provisions that were declared to be
unconstitutional.
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An appeal was taken to this Court by the Attorney General
against the decision of Mr. Justice Hamilton. The grounds of
appeal were three: (1) that the judge had wrongly held that
s. 192 of the Act of 1967 infringed the guarantee of equality
given by Article 40, s. 1, of the Constitution; (2) that he had
wrongly held that s. 192 was repugnant to the Constitution
or any provision thereof; and (3) that he had failed to have
regard to the fact that s. 198 had been repealed by s. 86 of
the Finance Act, 1974. A notice to vary, served by the
plaintiffs, was confined to points in favour of the argument
for unconstitutionality which had been decided against them
by the trial judge.
It was clear, therefore, as was borne out by the written and
oral submissions made by both sides for the purpose of the
appeal, that the onlymatter open on the appeal was the

question of the constitutionality of the challenged sections. It
was a necessarily implicit consequence of the absence from
the appeal of any challenge to the judgment and order of the
High Court, in so far as it reserved to the High Court the
question of the recovery of the alleged overpayments of
income tax, that that question lay outside the range of the
appeal, and that both sides had accepted that, since the
High Court had not entered on a resolution of that question,
it was one that remained exclusively within the jurisdiction of
the High Court for determination in that court as a matter of
first instance.
In the event, the arguments made in the appeal in this
Court were confined exclusively to the question of the
constitutionality of the impugned sections. The decision of
this Court on such a question is required, under Article 34, s.
4, sub-s. 5, to be delivered in a judgment to be given by such
one of the judges as the Court shall direct, without disclosure
of any other opinion, whether assenting or dissenting, or
even of the existence of such other opinion. In this case, the
judgment of the Court was given by Mr. Justice Kenny on the
25th January, 1980. It rejected the plaintiffs' case in so far as
the claim of unconstitutionality was based on Article 40, s. 1,
of the Constitution, but it upheld their claim in so far as it
was based on Article 41, s. 3, sub-s. 1. The judgment
summed up the Court's decision in its last sentence:
"The Court will, accordingly, declare that ss. 192 to 198
(inclusive) of the Act of 1967, in so far as these sections
provide for the aggregation of the earned incomes of
married couples, are repugnant to the Constitution."
That declaration fully disposed of all matters raised by the
defendant's notice of appeal as well as by the plaintiffs'
notice to vary. The defendant, however, indicated that the
import of the Court's judgment, particularly its
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final sentence, was not clear to him, so he applied to have
the appeal re-entered for the purpose of "speaking to the
minutes of the order."
The appeal was duly re-entered for that purpose. Any
possible ambiguity that might be inferred from the last
sentence of the judgment, and which might have been
reproduced in the order of the Court, was soon dispelled
when it was made clear to the parties that what was decided
by the judgment was that ss. 192 to 198 (inclusive) were
declared to be repugnant to the Constitution because they
provided for the aggregation of the earned income of
married couples. Those sections, therefore, fell in their
entirety in their relation to the plaintiffs. Counsel for the
defendant, however, pressed for further clarification as to
whether this constitutional invalidity meant that the
plaintiffs' claim for accounts and inquiries as to the income
tax that had wrongly passed to the revenue authorities could
be sustained by them, and if so, to what extent. An
argument then ensued, under the heading of "speaking to
the minutes of the order" (which order was yet not in draft),
as to whether this Court had jurisdiction to give such a
ruling. After a short recess, the members of the Court gave
individual judgments on the point.
The opinion I expressed in my judgment on this point was
that this Court had not the necessary jurisdiction to
determine the point; that the constitutional and statutory
jurisdiction of this Court in this case was entirely appellate;
that this point was outside the scope of the appeal; that the
High Court's "full original jurisdiction in and power to
determine all matters and questions whether of law or fact,
civil or criminal" (Article 34, s. 3, sub-s. 1, of the
Constitution) had been invoked by the plaintiffs and had
been exercised by the High Court to the extent that it
reserved liberty to apply to it on this point; that this was a
matter that was required to be decided at first instance in
the High Court, upon due determination of the necessary
facts (which facts had not yet been fully investigated); and
that this Court could exercise the necessary jurisdiction only

if an appeal had been taken from the decision of the High
Court.
I found, however, that in this opinion I was a lone
dissentient. My brethren saw no impediment, in the
Constitution, in the statutes, or in the Rules of the Superior
Courts, which would debar the Court from ruling on the
further arguments propounded by counsel for the defendant.
In these circumstances, notwithstanding my dissent, I
respectfully defer to the majority opinion of the Court and
enter into a consideration of the point that has been thus
raised.
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II
The question that has arisen in the manner I have indicated
may be formulated thus. Where the plaintiffs have paid, or
have had deducted from their earnings, income tax collected
under statutory provisions which were subsequently declared
unconstitutional, can they recover back such income tax. If
so, to what extent? It is a question of profound importance,
not only for the plaintiffs and similar taxpayers, and not only
in terms of the fiscal arrangements and requirements of the
State, but also in a wider context, for its resolution involves a
consideration of the further question whether, and to what
extent, what has been done pursuant to, or what has
happened on foot of, an unconstitutional enactment may be
revoked, annulled, rectified, or made the subject of a claim
for damages or for some other form of legal redress. The
starting point of the investigation of the question necessarily
lies in the constitutional provisions dealing with the nature,
scope and effect of the jurisdiction of the Courts to declare
an enactment invalid having regard to the provisions of the
Constitution.
III
Unlike some other Constitutions, our Constitution
specifically vests in nominated courts, originally and on
appeal, the jurisdiction to decide whether any law is valid
having regard to the provisions of the Constitution. The
effect of Article 34, ss. 3 and 4, is that, save for cases of
references of Bills to the Supreme Court by the President
under Article 26, the jurisdiction to determine such questions
at first instance is vested in the High Court, with a right of
appeal (which cannot be abrogated by law) to the Supreme
Court. But this power of judicial review is exercisable under
one or other of two constitutional provisions, which depend
for their application on whether the enactment in question
was passed before or after the coming into operation of the
Constitution.
If it is a pre-Constitution enactment, Article 50, s. 1,
provides in effect that the statutory provision in question
shall, subject to the Constitution and to the extent that it is
not inconsistent therewith, continue in full force and effect
until it is repealed or amended by enactment of the
Oireachtas, i.e., the Parliament established by the
Constitution. The issue to be determined in such a case is
whether, when the impugned provision is set beside the
Constitution, or some particular part of it, there is disclosed
an inconsistency.
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If the impugned provision is shown to suffer from such

Such a declaration under Article 50, s. 1, amounts to a
judicial death certificate, with the date of death stated as the
date when the Constitution came into operation. While a
declaration under Article 50, s. 1, does not arise in this case,
it is of importance to note that, notwithstanding a judicial
declaration of the demise in 1937 of a statute or a statutory
provision, it may be that, because of a person's conduct, or
because of the irreversible course events have taken, or for
any one of a number of other reasons, what was done on
foot of the condemned statute or statutory provision may not
necessarily be relied on as a ground for a claim for
Court in The State (Byrne) v. Frawley. 35 In other words, a
declaration under Article 50, s. 1, that a law had lost validity
in 1937 on constitutional grounds does not necessarily carry
Article 50, s. 1, that, for want of consistency with the
the reach of legal action based on that invalidity.
If (as happened in this case) it is a post-Constitution
enactment issuing from the Oireachtas, or National
Parliament, that is attacked on constitutional grounds, the
power of judicial review rests on a different, but no less
explicit, constitutional footing. Under the Constitution, the
Oireachtas has the exclusive, but not unlimited, function of
acting as the legislative authority for the purpose of making
laws for the State. Its legislative limitations derive in part
from express provisions in the Constitution, and in other part
from implied constitutional restrictions on the legislative

power. The basic question in such a case is always the same:
in enacting the impugned provisions, did the Oireachtas act,
having regard to
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the requirements and limitations arising from the
Constitution, intra vires orultra vires?
Since Article 15, s. 4, sub-s. 1, prohibits the Oireachtas from
enacting any law which is in any way repugnant to the
Constitution or any provision thereof, and since Article 15, s.
4, sub-s. 2, emphasises the consequence of such ultra vires
legislation by stating that it will be invalid, but to the extent
only of such repugnancy, the Constitution, like a number of
other constitutions with similar or comparable provisions,
adopts the normal consequence of ultra vires acts by
branding as invalid what has been put forward, in breach of
constitutional limitations, as an enactment. The legislative
provision in question, unless it is overtly or professedly
unconstitutional, enjoys a presumption of constitutionality,
so that the onus of establishing its unconstitutionality will
rest on those who call its constitutionality into question. And
even if it be shown that the Oireachtas acted in excess of its
constitutional limitations in enacting it, the statute or
statutory provision will not suffer in its entirety from
invalidity if a part of it is both free from the taint of
unconstitutionality and is capable of standing in its own right
as representing the enacted will of the Oireachtas: see
Maher v. The Attorney General 61 at pp. 147-8 of the report.
In the present case, however, there is no question of the
impugned provisions being condemned for
unconstitutionality in part only. Sections 192 to 198
(inclusive) have been condemned in their entirety as invalid.
The argument that invalidity is to attach to the condemned
sections only when the High Court or Supreme Court says

sowhich is in essence what has been propounded on
behalf of the Attorney Generalfails in my view for three
main reasons: (1) it fails to recognize the true nature of the
constitutional limitation of the legislative power vested in the
Oireachtas; (2) it distorts the meaning that must be given to
"invalid" in its constitutional context; and (3) it flies in the
face of an unbroken line of judicial decisions which, expressly
or by necessary implication, point to the date of enactment
as the date from which invalidity is to attach to the measure
which has been struck down because of its
IV
The National Parliament, designated the Oireachtas in the
Constitution, is entirely the creature of the Constitution.
While Article 15, s. 2, sub-s. 1,
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invests it with the sole and exclusive power of making laws
for the State, that investiture is limited by the restriction
imposed on it by Article 15, s. 4, whereby its law-making
power is confined to legislating in a way and to a degree that
will not be repugnant to the Constitution; and invalidity is
designated as the consequence of a breach of that
limitation. A central feature of the ideological rationale and
political philosophy underlying the Constitution is that "all
powers of government, legislative, executive and judicial,
derive, under God, from the people, whose right it is to
designate the rulers of the State and, in final appeal, to
requirements of the common good" (Article 6, s. 1).
The delegation by the people to the Oireachtas of the
legislative power is not only limited by the requirement that
its enactments must conform to the express and implied
requirements of the Constitution; it is also subject to the

reserved right of the people to amend by referendum that
delegation, whether by variation, addition or repeal (Article
46, s. 1); and to the further reserved right (in prescribed
circumstances) that a Bill duly and constitutionally passed by
both Houses of the Oireachtas shall not receive the signature
of the President (which is necessary to give it the force of a
statute) unless and until the proposal in the Bill shall have
been approved either by the people at a referendum or by a
resolution of Dil ireann after a dissolution and
reassembly of Dil ireann (Article 27).
The Constitution, therefore, as part of its inbuilt checks and
balances, has made it abundantly clear that the delegated
power of legislation given to the Oireachtas (a power which
may in turn be sub-delegated by the Oireachtas pursuant to
Article 15, s. 2, sub-s. 2) is a power which, regardless of any
interim presumption of constitutionality that may attach to
its enactments, cannot be exercised save within the
constitutionally designated limitations of that power; and
once it has lost the presumption of constitutionality as a
result of a judicial condemnation on the ground of
unconstitutionality, it must, in accordance with Article 15, s.
4, sub-s. 2, be held to "be invalid"not, be it observed, to
have "become invalid." It is to be deemed null and void from
the moment of its purported enactment, no less than if it had
emanated from a person or body with no power of
legislation. In my judgment, the constitutional disposition of
the powers of the State in this respect falls into line with the
general principle that, when a constitution or a constitutional
statute gives a specifically confined power of legislation to a
legislature, laws found to have been enacted in excess of
that delegation areultra vires and therefore void ab initio.
This is a principle which is inherent in
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the nature of such limited powers, but it is unequivocally
spelled out in some constitutions and constitutional statutes.
Having regard to the general principles governing the
exercise of delegated powers of this kind, and to the
particular nature and terms of the legislative powers
delegated by the Constitution, I would hold that the
unconstitutional enactment of ss. 192 to 198 of the Act of
1967 resulted in those sections being invalid ab initio: see,
for example, South Australia v. The Commonwealth 62 at p.
408 of the report.
V
The proposition that "invalid" in Article 15, s. 4, sub-s. 2,
should be given the meaning of "voidable" and that an
unconstitutional provision becomes void only when it is
judicially condemned as unconstitutional, apart from being in
conflict with the general principles and the particular
interlocking constitutional provisions to which I have
referred, suffers from the defect that, even if in the English
language it were possible in the constitutional context to
equate "invalid" with "voidable", the expression gan bhail
(which is what is to be found in the Irish text and is,
therefore, the expression that must prevail if there is a
conflict between the two texts) does not lend itself to that
equation of meaning. In its dictionary, literary, or colloquial
connotation in modern Irish, gan bhail means "worthless,
void, ineffective." The fact that the concrete noun bail, the
abstract noun bailocht and the adjectiveneamhbhail have
been used throughout the Constitution only in reference to a
law or the operation of a law would indicate that in this
context gan bhailmeans "without legal effect", and not
"voidable" or "liable to be deprived of legal effect."
For example, in Article 29, s. 4, sub-s. 3 (a sub-section
added, after a referendum, as a constitutional amendment
rendered necessary by Ireland's entry into the E.E.C., and
which deprives the Constitution of the power of invalidating
laws enacted in necessary consequence of Ireland's
accession to the relevant Treaties) the Irish version of "No
provision of this Constitution invalidates laws enacted . . . by
the State" is "N dhanann aon fhorileamh at insan

Bhunreacht so aon dlighthe d'achtuigh . . . an Stt . . . do
chur bhail dlighidh . . ." A proposition that laws so enacted
by the Oireachtas in breach of the Treaty of Rome could be
treated as voidable rather than void would be inconsistent
with the juridical basis of membership of the E.E.C.
I find nothing, therefore, either in Article 15, s. 4, sub-s. 2, or
in the
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expressions of a comparable nature elsewhere in the
Constitution, that would give support to a linguistic or
semantic argument to the effect that "invalid"should be read
as meaning "voidable", and not "lacking in validity." On the
contrary, I consider that such a retrospective indulgence
towards a legislative breach of the limitations imposed on
the Oireachtas would be repugnant to both the letter and the
spirit of the Constitution.
VI
The third and final reason why I find it impossible to accept
the proposition that invalidity attaches to an unconstitutional
enactment only from the date of the judicial determination of
its unconstitutionality is that (apart from the arbitrariness
and inequality, in breach of Article 40, s. 1, that would result
in a citizen's constitutional rights depending on the fortuity
of when a court's decision would be pronounced) such a
conclusion would run counter to a well-settled line of judicial
decisions.
We have not been referred to, nor am I aware of, any
decision of either the High Court or this Court which held, or
even suggested, that a post-Constitution legislative provision
struck down for unconstitutionality should be accorded
retrospective validity until it suffered the fate of judicial
condemnation, or indeed for any period after its enactment.
In fact, I consider that every relevant decision of the High

Court and Supreme Court points to the opposite conclusion.
A cause which at first sight seems to give some support to
the defendant's argument is McMahon v. The Attorney
General. 34 But on close examination it is plain that this
decision provides no authority for the proposition that the
invalidity of an unconstitutional law may arise only
subsequent to its enactment. The successful contentions put
forward by the plaintiff in McMahon's Case 34 were that
because certain provisions of the Electoral Act, 1923,
enabled a voter's completed ballot to be identified, they
breached the constitutional guarantee of a secret ballot, and
were therefore not continued in force by Article 50 of the
Constitution; and that such of the provisions of the Electoral
Act, 1963, as enabled such identification to be made were
invalid under Article 34, s. 3, sub-s. 2, of the Constitution. An
order accepting those contentions was made by Pringle J. in
the High Court, and it was affirmed in its entirety by this
Court ( Dlaigh C.J., Walsh and Budd JJ.; FitzGerald and
McLoughlin JJ. dissenting).
In assessing the scope of that decision it has to be borne in
mind that
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neither in the pleadings nor in the argument did the plaintiff
contend that any elections that had been held under the
impugned provisions were invalid. His case was confined to a
claim for a declaration that the impugned provisions were
invalid, in part under Article 50, s. 1, and in other part under
Article 34, s. 3, sub-s. 2. Hence it was that Dlaigh C.J.,
in giving the judgment of the majority in the Supreme Court,
concluded by saying, at p. 113 of the report:"I would affirm
the order of Mr. Justice Pringle. In doing so I should note that
it has been no part of the plaintiff's case, either in this Court
or in the High Court, that the validity of the last or any

previous election has been, or can be, affected by the
irregularity of which he has complained in these
proceedings."
In other words, while the impugned provisions were
condemned as unconstitutionalthose of the Act of 1923
from the date of the coming into operation of the
Constitution in 1937, and those of the Act of 1963, by
necessary implication, from the date of their
enactmentthe electoral consequences of the invalidity of
those provisions did not even arise for consideration. In my
opinion, therefore, McMahon's Case 34 gives no support to
the argument that the Courts have power to postpone the
invalidity of statutory provisions unconstitutionally enacted
by the Oireachtas until the date of a judicial decision.
In fact, the decided cases show that judicial opinion has
always been to the contrary effect. By way of example, I
choose two decisions, one from the High Court and one from
this Court. They lend weight to my reading of McMahon's
Case 34 because the judge of the High Court who decided
the first of those cases ( M. v. An Bord Uchtla 63 ) was
Pringle J. and the judgment of this Court in the second case
( O'Brien v. Keogh 5 ) was given by Dlaigh
C.J.namely, the main deciding judges in McMahon's
Case. 34
In M. v. An Bord Uchtla 63 the primary question was
whether s. 12, sub-s. 2, of the Adoption Act, 1952, (which
required that an applicant for adoption should be of the
same religion as the child and his parents, or, if the child was
illegitimate, his mother) was invalid having regard to the
prohibition of discrimination on the ground of religious
profession or belief in Article 44, s. 2, sub-s. 3, of the
Constitution. Pringle J. (in a judgment which was not
appealed) held that it was; and he proceeded to declare
unlawful and invalid an order of the Adoption Board dated
the 1st May, 1973, which had refused, on religious grounds,
to make an adoption order. That decision carries the
necessary implication that Pringle J. considered that sub-s. 2
of s. 12 of the Act of 1952 was invalid from the date of its
enactment.
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In O'Brien v. Keogh 5 , which was decided in this Court in
July, 1972, it was held that an action claiming damages for
negligence in respect of personal injuries sustained in an
accident in September, 1963, which had been commenced in
January, 1968 (and was, therefore, outside the period of
limitation fixed for the initiation of such an action by s. 49,
sub-s. 2(a)(ii), of the Statute of Limitations, 1957) was not
statute-barred by that provision because (so the Court held)
that provision was invalid having regard to the guarantee
contained in Article 40, s. 3, sub-s. 2, of the Constitution.
Thus, the Court, in a judgment read by Dlaigh C.J., held
in effect that the invalidity of the statutory provision in
question existed and took effect before its constitutional
invalidity was declared by the Court.
The two cases I have cited are chosen simply to exemplify
what is an unbroken line of judicial decisions to the effect
that a statute of the Oireachtas which incurs judicial
condemnation for its repugnancy to the Constitution has
invalidity attached to it from the time of its purported
enactment by the Oireachtas.
For all the foregoing reasons I am satisfied that the
argument suggesting that it is for the Courts to say whether
a statute or a statutory provision, which has been held to
have been enacted in breach of a constitutional limitation of
the legislative power of the Oireachtas, should be held
invalid prospectively or with only limited retrospectivity
cannot prevail. Such enactments are, and have been
consistently held to be, invalid from the time of their
purported enactment because the Constitution, truly read
and duly accorded the necessarily implied consequences of a
breach of its legislative limitations, so ordains. Examples to

the contrary, derived from the practice under other
constitutions such as that of the United States of America,
which depend on different constitutional provisions, different
judicial options and different historical considerations
cannot, in my view, gainsay that conclusion.
VII
Once it has been judicially established that a statutory
provision enacted by the oireachtas is repugnant to the
Constitution, and that it therefore incurred invalidity from the
date of its enactment, the condemned provision will normally
provide no legal justification for any acts done or left
undone, or for transactions undertaken in pursuance of it;
and the person damnified by the operation of the invalid
provision will normally be accorded by the Courts all
permitted and necessary redress. Thus, for example, when
this Court, in
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June, 1971, in In re Haughey 64 declared s. 3, sub-s. 4, of
the Committee of Public Accounts of Dil ireann
(Privilege and Procedure) Act, 1970, to be unconstitutional, it
proceeded, by way of ancillary relief, to quash a conviction
and sentence that had been made and imposed in March,
1971, in pursuance of the condemned statutory provision.
But it is not a universal rule that what has been done in
good cause of action: see, for example, the decision of this
Court in The State (Byrne) v. Frawley. 35 While it is central
to the due administration of justice in an ordered society that
one of the primary concerns of the Courts should be to see
that prejudice suffered at the hands of those who act without
legal justification, where legal justification is required, shall
not stand beyond the reach of corrective legal proceedings,

the law has to recognize that there may be transcendent
impractical, or impossible.
Over the centuries the law has come to recognize, in one
degree or another that factors such as prescription (negative
or positive), waiver, estoppel, laches, a statute of limitation,
res judicata, or other matters (most of which may be
grouped under the heading of public policy) may debar a
person from obtaining redress in the courts for injury,
pecuniary or otherwise, which would be justiciable and
redressable if such considerations had not intervened. To
take but two examples, both from a non-constitutional
context, where a judicial decision is overruled by a later one
as being bad law, the overruling operates retrospectively,
but not so as to affect matters that in the interval between
the two decisions became res judicatae in the course of
operating the bad law (see Thomson v. St. Catherine's
College, Cambridge 65 ) or to undo accounts that were
settled in the meantime in reliance on the bad law: see
Henderson v. Folkestone Waterworks Co. 66
slept on their rights, the quality of legalityeven
irreversibilitythat tends to attach to what has become
and
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other factors may convert what has been done under an
part of the corpus juris. This trend represents an inexorable
process that is not peculiar to the law, for in a wide variety of
other contexts it is either foolish or impossible to attempt to
turn back the hands of the clock. As an eminent historian
vividly put it, speaking of the pointlessness of seeking to
undo or reshape the facts of history: "The statue has taken
its shape and can never go back to the quarry."
immune from suit in the Courts; for any conclusion I might
express would in the main be obiter. In any event, I think
experience has shown that such constitutional problems are
best brought to solution, step by step, precedent after
precedent, and when set against the concrete facts of a
specific case. I confine myself, therefore, to the precise
question raised. Notwithstanding the invalidity ab initio of
the condemned sections, are the taxes collected under them
recoverable?
VIII
The plaintiffs' subsidiary claim that any necessary accounts
or inquiries be taken and made is, strictly speaking, not
maintainable in these proceedings. It is an invocation of the
High Court's equity jurisdiction to take such steps as are
necessary, by means of accounts or inquiries, so that the
amount of income tax collected by the revenue authorities
under the condemned sections, and appropriated to the
central fund pursuant to Article 11 of the Constitution, shall
be quantified. Inherent in that equitable claim for
quantification is the contention that the State is a
constructive trustee of that money for the plaintiffs and that
there should be a consequential order directing the State to
pay to the plaintiffs the money thus quantified.
For such a claim to be valid in form and enforceable in
effect, the State should have been joined as defendant. Yet

the only defendant is the Attorney General. He was made
defendant merely in compliance with order 60 of the Rules of
the Superior Courts, 1962, which ensures that the Attorney
General must either be a party, or be given an opportunity of
appearing, whenever the proceedings raise a question as to
the validity of a law having regard to the provisions of the
Constitution. But even when the Attorney General is made a
party in such proceedings, the jurisdiction of his office is
such that an order may not be made against him which
would necessarily bind the State. In the
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S.C.
present case, the plaintiffs' claim for the recovery of income
tax collected under the constitutionally invalid sections
required the State to be made a defendant: see Byrne v.
Ireland 28 at p. 289. However, as the Attorney General has
not taken this point, I am prepared to deal with this aspect of
the case as if the State had been made a defendant.
The implied contention that the State is a constructive
trustee of the money collected as income tax under the
condemned sections is the counterpart in equity of a claim in
common law for money had and received. In Moses v.
Macferlan 67 at p. 1012 of the report, Lord Mansfield held
that "the gist of this kind of action is, that the defendant,
upon the circumstances of the case, is obliged by the ties of
natural justice and equity to refund the money."Thus, he put
the claim on the footing of equity, or unjust enrichment,
rather than under the fiction of an implied promise to repay
money had and received.
Whether the action be framed at common law for money
had and received or (as here) in equity for an account of
money held as a constructive trustee for the plaintiffs, I
would hold that, in the absence of countervailing
circumstances (to which I shall presently refer), such money

may be recovered: see Mason v. New South Wales 48 and
also Bell Bros. Pty. Ltd. v.Shire of SerpentineJarrahdale.
68 In Mason v. New South Wales 48 Windeyer J. (at p. 141),
quoting O'Connor J. in Sargood's Case 69 , summed up the
relevant legal rule thus:
"Where an officer of Government in the exercise of his office
obtains payment of moneys as and for a charge which the
law enables him to demand and enforce, such moneys may
be recovered back from him if it should afterwards turn out
that they were not legally payable even though no protest
was made or question raised at the time of payment.
Payments thus demanded colore officii are regarded by the
law as being made under duress."
Certain differences between those Australian cases and the
present case are worthy of note. In both the Mason Case 48
and the Bell Bros. Case 68 the claim was for a fixed sum of
money and it was brought at common law for money had
and received. In the Mason Case 48 the successful claim
was for the recovery from the State of New South Wales of
5,467 for licence fees exacted within the period between
the 16th April, 1953 (when a decision of the Australian High
Court held that such fees were exigible) and the 17th
November, 1954 (when the Privy Council on appeal reversed
that decision and held that such fees were not exigible in
respect of inter-State trade). The
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317
S.C.
particular circumstances under which the plaintiffs paid the
licence fees-leading to the conclusion that they paid them
under duress-suggest that it would not be open to many
other plaintiffs to claim the benefit of the decision. In the
Bell Bros. Case 68 the plaintiffs were allowed to recover
1,686 Australian dollars imposed and paid under an invalid
bye-law requiring excavation licences to be paid. The ground

of the decision was that the exaction of the licence fees by
the defendant local authority, with whom the plaintiffs were
not on an equal footing, and the licences being at the time
essential for the plaintiffs' excavations, amounted to money
exacted colore officii, which was therefore recoverable as
money had and received. There is no suggestion in the
report that many such claims could spring from the decision,
so there was no difficulty in restoring the status quo.
There are certain other characteristics of the present case
which make it in some respects distinguishable. The
plaintiffs' claim in the present case (apart from the question
of constitutionality) is an equitable one for the necessary
accounts and inquiries as to the income tax collected under
the invalid sections. The implicit allegation is that the State
was unjustly enriched by those payments and thereby
became a constructive trustee of them for the plaintiffs. Any
one of such payments would normally be recoverable as
money exacted colore officii, for the nature of PAYE collection
of income tax is such that in the relevant period the
plaintiffs' salaries were subject to compulsory deduction by
their employers of the income tax which was exigible under
the now condemned statutory provisions. The payments
were, therefore, involuntary to the point of being compulsory
collections.
What particularly distinguishes the present case from nearly
all of those referred to in the course of the argument is that
tens of thousands of married couples also had income tax
deducted from their earnings in this same way,i.e., by
compulsory deductions from their earnings for transmission
by their employers to the revenue authorities. The question
arises as to the extent to which the sweep of that income tax
(which operated on the taxable incomes of married couples
for the tax years 1967-8 to 1979-80, inclusive) affect the
right of the plaintiffs to recover the moneys which were
deducted from their earnings under those sections.
IX
So far as the present case is concerned, the question has to
be related to the plaintiffs' personal circumstances. They got
married in July, 1975. 1975-6

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S.C.
was therefore the first tax year in which taxation under the
condemned sections could possibly bear on them. Yet, as the
evidence given in the High Court shows, their liability for
income tax for that year was 160 less than the sum of
what their several tax liabilities would have been if they had
remained single. So they cannot complain that the operation
of the condemned sections caused them any loss in that tax
year. For the years 1976-7, 1977-8, 1978-9 and 1979-80, the
evidence pointed to the fact that in each of those tax years
the aggregation of their incomes resulted, or would result, in
their paying more income tax than the aggregate of what
each would have paid if they had remained single. They
would, therefore, have been entitled, if they had issued
proceedings in time, to claim recovery of the
unconstitutional deductions of income tax made in those
years. However, it was not until the 7th March, 1978 (i.e., in
the last weeks of the tax year 1977-8 and after virtually all
the income tax claimed for that year had been collected
from them) that they instituted proceedings in the High
Court questioning the constitutionality of the sections under
which they had been taxed, and seeking recovery of the
taxes that had been collected from them.
In my judgment, the plaintiffs' right to recover the sums by
which they claim the State was unjustly enriched, by the
collection of the taxes that have now been held to have been
unconstitutionally imposed, begins for the year 1978-9, that
is, the first year for which they effectively objected to the
flow of those taxes into the central fund. Up to that year the
State was entitled, in the absence of any claim of
unconstitutionality, to act on the assumption that the taxes
in question were validly imposed, that they were properly
transmissible to the central fund, and that from there they

were liable to be expended, according to the will of
Parliament, for the multiplicity of purposes for which
drawings are made on the central fund of the State. Equally,
every taxpayer whose income tax was deducted from his
earnings throughout a particular tax year, no matter how
grudgingly or unwillingly he allowed the deductions to be
made from his weekly or monthly income, could not avoid
having imputed to him the knowledge that the tax he was
paying was liable to be immediately spent by the State. As
time went by, his right to complain of the State's unjust
enrichment ran the risk of being extinguished by laches on
his part. As Snell's Principles of Equity (27th ed., p. 35) puts
it: "Laches essentially consists of a substantial lapse of time
coupled with the existence of circumstances which make it
inequitable to enforce the claim." What is a "substantial
lapse of time" must depend on the circumstances of the
particular case.
I would consider that a taxpayer who allowed his PAYE tax
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319
S.C.
contributions to be deducted from his earnings, every week
or every month, for the whole of a tax year, without bringing
proceedings to assert the unconstitutionality of such
deductions, should (in the absence of exceptional and
excusing circumstances) be held barred from recovering the
sums unwarrantedly collected during that tax year. The
circumstance that tax payments are liable to be quickly
absorbed into the financial system of the State, and not to
be amenable to extraction and repayment without
considerable disruption and unfairness, has led United States
authorities to treat such payments as being so unique in
character that repayments have been legislatively held to be
barred by laches of periods as short as thirty days: see Field
on The Recovery of Illegal and Unconstitutional Taxes, 45

Harvard Law Review 501, at p. 519. For my part, I consider
that, in the absence of special circumstances (which have
not been shown to exist in this case), payment of PAYE taxes
during the whole of a tax year, without instituting
proceedings to have the taxes invalidated on the ground of
unconstitutionality, should be held to defeat a claim made
later to recover the taxes paid during that year.
It is one of the first principles of the law of restitution on the
ground of unjust enrichment that the defendant should not
be compelled to make restitution, or at least full restitution
when, after receiving the money in good faith, his
circumstances have so changed that it would be inequitable
to compel him to make full restitution. The American
Restatement of Restitution(142) states the general rule
thus: "The right of a person to restitution from another
because of a benefit received is terminated or diminished if,
after the receipt of the benefit, circumstances have so
changed that it would be inequitable to require the other to
make full restitution."
A New Zealand statute (cited in Goff and Jones's The Law of
Restitution, 2nd ed., p. 546) puts the matter perhaps more
clearly when it states that payments made under a mistake
may not be recoverable "if the person from whom the relief
is sought receives the payment in good faith and has so
altered his position in reliance on the validity of the payment
that in the opinion of the Court, having regard to all possible
implications in respect of other persons, it is inequitable to
grant relief, or to grant relief in full, as the case may be."
Applying that general principle (which is widely supported
by judicial authorities ranging from Lord Mansfield to Lord
Denning) to the present case, it is beyond question that the
State in its executive capacity received the moneys in
question in good faith, in reliance on the presumption that
the
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320
S.C.
now-condemned sections were favoured with
constitutionality. In every tax year from the enactment of the
Income Tax Act, 1967, until the institution of these
proceedings in March, 1978, the State justifiably altered its
position by spending the taxes thus collected and by
arranging its fiscal and taxation policies and programmes
accordingly.
At the end of each tax year up to and including the tax year
1977-78, those charged by the State with auditing,
controlling or planning the finances of the State were, in the
absence of any formulated proceedings or any other sound
reason for doubting the validity of the taxes in question,
entitled to close their books for that year in the justified
assurance that, if any of the taxes that had been collected,
allocated, spent or been made the basis of projections for
future taxation or fiscal policy, were to become at some
future date judicially faulted for having been
unconstitutionally exacted, restitution of those taxes would
not be ordered.
For a variety of reasons it would be inequitable, if not
impractical, to expect restitution. Each tax year involves a
different group of taxpayers, if only because of the deaths of
some taxpayers and the accession of new persons to the
lists of taxpayers. Restitution could be effected only by
means of a special statutory provision, which would involve
the imposition of fresh taxation to meet what would become
an unquantifiable number of claims with the passage of
time. The primary purpose of an order of restitution is to
restore the status quo, in so far as the repayment of money
can do so. But when, as happened here, the State was led to
believe, by the protracted absence of a claim to the
contrary, that it was legally and constitutionally proper to
spend the money thus collected, the position had become so
altered, the logistics of reparation so weighted and distorted
by factors such as inflation and interest, the prima facie right
of the taxpayers to be recouped so devalued by the fact
that, as members of the community, and more particularly

as married couples, they had benefited from the taxes thus
collected, that it would be inequitable, unjust and unreal to
expect the State to make full restitution.
Whether the taxpayer's action be framed as a common-law
action in quasi-contract for money had and received, or as
an equitable claim for restitution of money by which the
State was unjustly enriched, there is ample authority for the
conclusion that the radical change of circumstances of the
kind I have indicated would be sufficient to defeat, at least in
part, the taxpayers' claim: see Jones's Change of
Circumstances in Quasi-Contract, (1957) 73 L.Q.R. 48.
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Henchy J.
321
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In this case, whether the claim be treated as one in quasicontract or as one in equity, I would consider the enforceable
cause of action to have arisen at the beginning of the tax
year 1978-9.
X
The conclusion that the plaintiffs are entitled only to limited
recoupment is supported by comparable decisions in other
jurisdictions.
For example, the United States Supreme Court,
unencumbered as it is by any constitutional imperative such
as is contained in Article 50 or Article 15, s. 4, sub-s. 1, of
our Constitution, has varied in its rulings as to whether its
condemnation of a statute as unconstitutional should be
given effect to prospectively only or with some degree of
retroactivity. However, even in cases where the statute has
been declared to have been invalid ab initio (as is the
position in the present case), it has come to recognize that
legal transactions that took place under the void statute did
not necessarily suffer retrospective invalidity with the fall of
the statute. The difficulty, if not impossibility, of laying down

a general rule on the matter was dealt with by Hughes C.J. in
delivering the opinion of the court in Chicot County
Drainage District v. Baxter State Bank 37 at p. 374 of the
report:
"The courts below have proceeded on the theory that the
challenged decree. Norton v. Shelby County 60 at p. 442;
Chicago, I. & L. Rly. Co. v.Hackett 70 at p. 566. It is quite
clear, however, that such broad statements as to the effect
of a determination of unconstitutionality must be taken with
qualifications. The actual existence of a statute, prior to such
a determination, is an operative fact and may have
consequences which cannot justly be ignored. The past
cannot always be erased by a new judicial declaration. The
effect of the subsequent ruling as to invalidity may have to
be considered in various aspectswith respect to particular
relations, individual and corporate, and particular conduct,
private and official. Questions of rights claimed to have
become vested, of status, of prior determinations deemed to
have finality and acted upon accordingly, of public policy in
the light of the nature both of the statute and of its previous
application, demand examination. These questions are
[1982]
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Henchy J.
322
S.C.
among the most difficult of those which have engaged the
attention of courts, state and federal, and it is manifest from
numerous decisions that an all-inclusive statement of a
principle of absolute retroactive invalidity cannot be
justified."
In other words, it has been found that considerations of
equity of the case, and suchlike matters, may require that

force and effect be given in certain cases to transactions
carried out under the void statute.
A good example, from a different juridical metier, of the
subjugation of abstract principle and the symmetry of logic
to the compulsion of economic or practical demands of
society is to be found in the judgment of the E.E.C. Court in
Defrenne v. Sabena. 36 Miss Defrenne was an air hostess
employed by the Belgian airline, Sabena. She unsuccessfully
brought proceedings in Belgium claiming compensation for
the loss she had suffered when she terminated her duties
with Sabenain terms of salary, allowance on termination
of service, and pensionas a result of the fact that air
hostesses and male members of the air crew performing
identical duties did not receive equal pay. On a reference to
the E.E.C. Court under article 177 of the Treaty of Rome, it
was held, inter alia, that in the events that happened, article
119 had introduced directly into the national law of each
member State the principle that men and women should
receive equal pay for equal work, that the Belgian law which
denied Miss Defrenne that right was made invalid from the
date when article 119 became directly applicable in Belgium
as between the State and individual persons, and that
accordingly Miss Defrenne was entitled to succeed in her
claim. The court, however, proceeded to declare that, except
as regards those workers who had already brought legal
proceedings or made an equivalent claim, the direct effect of
article 119 could not be relied on in order to support claims
concerning pay periods to the date of its judgment.
The reasons adduced in the judgment for this limited
retroactive validation of what had been done under a
national law which was invalid for being repugnant to
Community law are not easy to harmonize or to
conceptualize. It would seem that the court was affected by
the arguments put forward, particularly on behalf of Ireland
and of the United Kingdom, that full retrospective
invalidation of the failure of member States to observe the
requirements of article 119 would produce a cascade of
claims that could swamp many private employers and do
irreparable harm to national economies. The court's dilemma

in preserving the objectivity and
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Henchy J.
323
S.C.
paramountcy of Community law, while not applying that law
to a degree that might endanger the underlying economic
aims of the Treaty of Rome, is evident in the following
rationale with which it concluded its judgment at p. 128 of
the report:
"Although the practical consequences of any judicial
decision must be carefully taken into account, it would be
impossible to go so far as to diminish the objectivity of the
law and compromise its future application on the ground of
the possible repercussions which might result, as regards the
past, from such a judicial decision.
However, in the light of the conduct of several of the
member-States and the views adopted by the Commission
and repeatedly brought to the notice of the circles
concerned, it is appropriate to take exceptionally into
account the fact that, over a prolonged period, the parties
concerned have been led to continue with practices which
were contrary to Article 119, although not yet prohibited
under their national law.
The fact that, in spite of the warnings given, the
Commission did not initiate proceedings under Article 169
against the member-States concerned on grounds of failure
to fulfil an obligation was likely to consolidate the incorrect
impression as to the effects of Article 119.
In these circumstances, it is appropriate to hold that, as the
general level at which pay would have been fixed cannot be
known, important considerations of legal certainty affecting
all the interests involved, both public and private, make it
impossible in principle to reopen the question as regards the
past.
Therefore, the direct effect of Article 119 cannot be relied on

in order to support claims concerning pay periods prior to
the date of this judgment, except as regards those workers
who have already brought legal proceedings or made an
equivalent claim."
The fact that that judgment was given in the context of the
Treaty of Rome, of the graduated implementation of that
treaty by nine member States of the apparent silent mutual
approbation of contra-Treaty conduct by certain member
States and of the non-condemnation thereof by certain
Community authorities, and of the possible catastrophic
economic consequences that might result in applying the
relevant treaty provision to the full, gives a distinctiveness to
that decision which may limit its persuasiveness as a
precedent for a case such as the present, which has to be
decided in the
[1982]
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324
S.C.
context of domestic law. Nevertheless, it stands as a cogent
example of the principle that what has been done or left
undone under a constitutionally invalid law may, in certain
events, such as the evolution of a set of circumstances which
it would be impossible, or unjust, or contrary to the common
good, to attempt to reverse or undo, have to be left beyond
the reach of full redressive legal proceedings and have to be
treated as an exemplification of the maxim communis error
facit ius.
XI
Since my opinion is that ss. 192 to 198 (inclusive) of the
Income Tax Act, 1967, were invalid from the date of their
enactment, I would hold, on the evidence as it stands, that
moneys collected for income tax on an income based on an
aggregation of the income of the plaintiffs is not recoverable
by them for any period prior to the tax year 1978-9, which
was the tax year in respect of which the constitutionality of

those sections was first effectively impugned. The period to
be covered by any necessary accounts and inquiries,
therefore, would appear to be the tax years 1978-9 and
1979-80.
The evidence given in the High Court did not disclose that a
claim had been formulated on behalf of any other taxpayers
impugning the sections in question or seeking the recovery
of any taxes collected under them. If that be the true
position, it would seem that, in the events that have
happened and for the reasons given in this judgment, no
taxpayers other than the plaintiffs would have the standing
necessary to maintain a claim that the State should
reimburse them for any taxes collected under the
condemned sections.
Griffin J.
On the 25th January, 1980, this Court declared ss. 192 to
198 of the Income Tax Act, 1967, (as amended) invalid in so
far as they provided for the aggregation of the earned
incomes of married couples. Arising out of that decision, the
Court agreed to entertain further argument in respect of the
date from which the said provisions were invalid.
Submissions in writing were delivered by the plaintiffs and
the defendant, and oral submissions were subsequently
made by both parties. Arising out of these submissions,
written and oral, the questions which arise for decision
are:
1. Whether ss. 192 to 198 were invalid ab initio, or only
prospectively.
2. If prospective only, whether such invalidity should be
applicable
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Griffin J.
325
S.C.
from the date of the decision of the High Court or that of

this Court.
3. If the sections were invalid ab initio, whether and to what
extent the plaintiffs are entitled to recover the excessive
amounts of income tax collected by the revenue authorities
from them under the sections declared to be invalid.
It is to be noted that there is no express claim in the
statement of claim for the recovery of any such
overpayments, but in the argument no point was taken on
this by counsel for the Attorney General, and the matter was
argued as if the claim "that any necessary accounts or
inquiries be taken and made"was impliedly such a claim.
I
It is provided by Article 15, s. 4, sub-s. 1, of the Constitution
that the Oireachtas "shall not enact any law which is in any
thereof." Article 15, s. 4, sub-s. 2, provides:"Every law
enacted by the Oireachtas which is in any respect repugnant
to this Constitution or to any provision thereof, shall, but to
the extent only of such repugnancy, be invalid." Under
Article 34, s. 3, sub-s. 2, and Article 34, s. 4, sub-s. 3, the
jurisdiction to determine the validity of any law having
regard to the provisions of the Constitution is given
exclusively to the High Court and the Supreme Court. Article
34, s. 4, sub-s. 4, prohibits the enactment of any law
excepting from the appellate jurisdiction of the Supreme
Court cases which involve questions as to the validity of any
law having regard to the provisions of the Constitution.
It was submitted on behalf of the Attorney General that
"invalid" in Article 15, s. 4, sub-s. 2, should be construed as
meaning not "void" but"voidable" and that, if this were the
true construction of that provision of the Constitution, the
sections held to be repugnant to the Constitution would be
valid from the date of their enactment until the date upon
which they were condemned by this Court, and would then,
and only then, become void. That this construction was the
correct one was, it was said, not only to be arrived at from a
consideration of the relevant provisions of the Constitution,
but was also reinforced by a long line of decisions of the
Supreme Court of the United States within the past fifty

years in which the doctrine of "prospective overruling" was
developed; a number of these cases were referred to in the
argument and were relied on by counsel in support of this
submission.
First, in relation to the American cases. The technique of
prospective
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326
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overruling was evolved to limit the retroactive sweep of a
decision of a court when it overruled one of its own previous
decisions. It would appear to have received judicial
benediction for the first time from Cardozo J. in Great
Northern Railway Company v. Sunburst Oil and Refining Co.
50 In that case, the Supreme Court of Montana overruled
one of its earlier decisions but, nevertheless, held that the
earlier decision governed the case before it, and announced
that the earlier decision would not be followed in future.
Sunburst therefore succeeded, and the railway company
appealed on the ground that the failure to apply the decision
retroactively deprived it of due process of law. In the course
of delivering the opinion of the court, Cardozo J. said at p.
364:
"This is a case where a court has refused to make its ruling
retroactive, and the novel stand is taken that the
constitution of the United States is infringed by the refusal.
We think the federal constitution has no voice upon the
subject. A state in defining the limits of adherence to
precedent may make a choice for itself between the principle
of forward operation and that of relation backward. It may
say that decisions of its highest court, though later
overruled, are law nonetheless for intermediate
transactions."
The expressed reason stated by Cardozo J. for giving cases
that effect was that it may do so "whenever injustice or

hardship will thereby be averted."
The Sunburst Case 50 permitted prospectivity in relation to
judicial decisions. But in 1939 the Supreme Court of the
United States extended the right of the court to include
prospectivity in respect of the overruling of statutes. [ The
judge here referred to Chicot County Drainage District v.
Baxter State Bank 37and quoted the passage from the
judgment of Hughes C.J. appearing at pp. 321-2, supra]
The question was further discussed in Linkletter v. Walker.
38 There Clark J., delivering the opinion of the court, having
considered and reviewed (inter alia) the cases already
referred to, said at p. 628 of the report:
"Thus, the accepted rule today is that in appropriate cases
the Court may in the interest of justice make the rule
prospective. . .
While the cases discussed above deal with the invalidity of
statutes or the effect of a decision overturning longestablished common-law rules, there seems to be no
impedimentconstitutional or philosophicalto the use
of the same rule in the constitutional area where the
exigencies of the situation require such an
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Griffin J.
327
S.C.
application . . . we believe that the Constitution neither
prohibits nor requires retrospective effect. As Justice Cardozo
said, 'We think the Federal Constitution has no voice upon
the subject'."
Notwithstanding the general acceptance of the rule by the
supreme court, the unsatisfactory and unjust results which
may flow from it have been highlighted in dissenting
judgments in many cases. Black J. in Linkletter v.Walker 38
and Douglas J. (one of four dissentients) in United States v.
Peltier 42 the latest case cited to us, were especially critical.
In the latter case, Douglas J. at p. 543 said that it was largely

a matter of chance that it was held in Almeida-Sanchez v.
United States 71 (decided by the supreme court in 1973)
that an automobile search without a warrant was
unconstitutional under the Fourth Amendment rather than in
Peltier's Case 42 and that "Equal justice does not permit a
defendant's fate to depend upon such a fortuity."
I have referred to these cases at some length in deference
to the industry and the research of counsel for the Attorney
General. In my opinion, however, reliance cannot be placed
on these cases for the purpose of interpreting the relevant
provisions of our Constitution insofar as the time from which
a statute, held by our Courts to be invalid, is to be construed
(as distinct from the question as to what has been the effect
of what may have been done under and in pursuance of the
condemned statute). In the Constitution of the United States
there is no express provision similar to Article 15, s. 4, of our
Constitution and, unlike our Constitution, there is no express
provision which gives a reviewing power to the courts.
Undoubtedly, although in the years immediately following
1776 the power of the courts in the United States to review
legislation was disputed, the supreme court decided in
Marbury v. Madison 44 that it had such powers.
These powers were, however, held to arise by direct
construction of the constitution, i.e., by holding that the
constitution required that any law passed that was
unconstitutional should be reviewable by the courts. It is
from that decision, and not from any express provisions of
the constitution, that the courts in the United States obtain
their jurisdiction to condemn statutes which conflict with the
constitution. Under the decisions of the supreme court,
therefore, the American courts are free to decide in each
case whether the particular condemned statute should have
prospective or retrospective effect. By contrast, the limits of
the respective powers of the legislature and judiciary are
clearly spelled out in our Constitution, and our Courts have
not the freedom which the United States courts have
decided that they have.
[1982]
1 I.R.
Griffin J.
328
S.C.
The effect of a declared repugnancy of a statute or any of
the provisions of a statute must therefore, in my view, be
ascertained solely from the relevant provisions of the
Constitution. Under the Constitution, a statutory provision
may be condemned under Article 15, s. 4, or under Article
50. Article 15 is referable to enactments of the Oireachtas,
and Article 50 to pre-Constitution statutes. Whilst the
provisions held to be repugnant to the Constitution in this
case were contained in an Act of the Oireachtas, it is useful
to consider the effect of legislation condemned under Article
50 for the purpose of considering the effect of a declaration
of repugnancy in respect of a statutory provision contained
in an Act of the Oireachtas.
Under Article 50 the laws in force immediately prior to the
coming into operation of the Constitution shall, subject to the
Constitution and to the extent to which they are not
inconsistent with the Constitution, continue to be of full force
and effect until they or any of them are repealed or
amended by the Oireachtas. If a provision of any such law is
impugned and is held to be inconsistent with the
Constitution, then in such case the High Court, or this Court
on appeal, will have no option but to declare that such
provision was not continued of full force and effect as part of
the laws of the State, and the entire of that provision will be
condemned unless part of it is independent of, and severable
from, the rest and is capable of standing on its own as a
separate enactment, in which case the latter part will be
saved from condemnation. The effect of a declaration under
Article 50 is not that the condemned provision has ceased to
be in force but that, as of the date when the Constitution
came into operation, it was at no time thereafter in force.
But, as Mr. Justice Henchy has pointed out in his judgment,
the fact that a provision was held to be no longer in force

since 1937 does not automatically carry the corollary that
what has been done under and in pursuance of that
provision after the Constitution came into force will
necessarily be condemned for lack of validity.
The provisions with which we are concerned in this case
were contained in an Act of the Oireachtas, and it was
therefore under Article 15, s. 4, that they were held to be
repugnant to the Constitution. The Articles which are
relevant in considering whether the repugnant provisions
were void ab initio,or merely voidable, are Articles 15, 20
and 25.
Article 15 deals with the constitution and powers of the
National Parliament, the OireachtasArticle 15, s. 1, sub-s.
1. The Oireachtas consists of the President, Dil ireann ,
and Seanad ireann Article 15, s. 1, sub-s. 2. The sole
and exclusive power of making laws for the State is vested in
the
[1982]
1 I.R.
Griffin J.
329
S.C.
OireachtasArticle 15, s. 2, sub-s. 1. Article 15, s. 4, which
is the section to be construed in this case, has already been
cited earlier in this judgment. Article 20 deals with
legislation, and under s. 3 a Bill passed by either House and
accepted by the other House shall be deemed to have been
passed by both Houses. Article 25 deals with the signing and
promulgation of laws. Under s. 1, as soon as any Bill shall
have been passed or deemed to have been passed by both
Houses of the Oireachtas, the Taoiseach shall present it to
the President for his signature and for promulgation by him
as a law in accordance with the provisions of Article 25.
Under s. 4, sub-s. 1, of that Article every Bill shall become
and be law as on and from the day on which it is signed by
the President, and shall, unless the contrary intention
appears, come into operation on that day. Under sub-s. 2 of

s. 4 every Bill signed by the President shall be promulgated
by him as a law by publication of a notice in the Iris Oifigiil
stating that the Bill has become law.
In consequence of these provisions, before a Bill containing
legislative proposals becomes law, it is necessary that each
of the three arms of the Oireachtas (the President, Dil
ireann and Seanad ireann ) should have performed its
constitutional functions i.e., the Bill must have been passed
or be deemed to have been passed by Dil ireann and
Seanad ireann and have been signed and promulgated
by the President. The prohibition in Article 15, s. 4, sub-s. 1,
against enacting any law which is in any respect repugnant
to the Constitution or any provision thereof applies to the
Oireachtas and to all three arms thereof. If, therefore, a Bill,
passed by Dil ireann and Seanad ireann , contains
provisions which are repugnant to the Constitution, the
President cannot, in my opinion, validate the repugnant
provisions by performing his constitutional functions in
respect of the Bill under Article 25, i.e., by his signature of
the Bill and by promulgation by him of the Bill as a law.
Where any Bill passed, or deemed to have been passed, by
both Houses is signed and promulgated by the President as a
law, and the particular law is not expressly prohibited by the
Constitution, and where it is sought to establish that that law
is repugnant to the Constitution, such repugnancy must be
clearly established as there is a presumption of its
constitutionality. That presumption, however, no longer
exists in respect of any provision which has been declared by
the Court to be repugnant to the Constitution. Every such
provision enacted by the Oireachtas is made in excess of the
powers conferred on the Oireachtas under the Constitution,
and must, in compliance with Article 15, s. 4, sub-s. 2, be
declared to be "invalid." And, as stated
[1982]
1 I.R.
Griffin J.
330
S.C.
earlier, counsel for the Attorney General submitted that
here the word"invalid" should not be construed as "void" but
as "voidable", and thus a statute would be valid until
declared to be invalid.
I cannot accept that "invalid", in the context of Article 15, s.
4, sub-s. 2, should be interpreted as meaning "voidable." In
its ordinary meaning,"invalid" means having no legal force or
effect, and in the context of Article 15, s. 4, in which there is
an absolute prohibition against enacting a law in any respect
repugnant to the Constitution, I find it difficult to see how
"invalid"could be given any meaning other than its ordinary
meaning. That this is so is, in my view, reinforced by the Irish
text, which prevails in the case of conflict between the texts
of the Constitution. I do not consider that there is any such
conflict. In the Irish text, the expression used is gan bhail,
which in Dineen's Irish-English Dictionary, which was the one
in common use at the time when the Constitution was
passed, is translated as "void"the special meaning being
"ineffective" in relation to a sacrament, the source for this
latter being Donlevy's Irish Catechism (1742). In my opinion,
"invalid" in the context of Article 15, s. 4, sub-s. 2, can only
mean void, and not voidable.
This construction is in line with that given to similar
expressions found in other constitutions. For example, under
s. 109 of the Australian Constitution, when both the
Commonwealth Parliament and a State Parliament have
power to make laws then, in case of inconsistency, the
Commonwealth law prevails and the State law, to the extent
of the inconsistency, is invalid. In South Australia v. The
Commonwealth 62 Latham C.J. said at p. 408 of the
report:
"Common expressions, such as: 'the courts have declared a
statute invalid,' sometimes lead to misunderstanding. A
pretended law made in excess of power is not and never has
been a law at all. . . The law is not valid until a court
pronounces against itand thereafter invalid. If it is
beyond power it is invalid ab initio."
The construction at which I have arrived is also reinforced

by decisions of this Court when declaring enactments of the
Oireachtas invalid under Article 15, s. 4, sub-s. 2. In In re
Evelyn Doyle 72 the Court held that certain provisions of s.
10, sub-s. 1(d) and (e), of the Children Act, 1941, were
repugnant to the Constitution. The child in question had
been sent by the District Court to an industrial school under
sub-s. 1(e) (iii) of s. 10 of the Act of 1941 on the consent of
one parent, the other parent having deserted the home. The
Court held the detention of the child to be invalid and the
High Court, in consequence, directed her release. There is
nothing in the judgment of Maguire C.J. to suggest that the
section was valid until it was
[1982]
1 I.R.
Griffin J.
331
S.C.
declared to be repugnantindeed, the contrary is to be
implied from the order of the Court.
Again, in O'Brien v. Keogh 5 in the case of an action in tort
which had been commenced outside the period of limitation
of three years fixed by s. 49, sub-s. 2(a)(ii), of the Statute of
Limitations, 1957, for the institution of such proceedings, the
Court held that the plaintiff's action was not barred on the
ground that the particular provision of the statute was
repugnant to the Constitution and invalid. If the declaration
of invalidity came into operation only at the time of the
decision, the plaintiff could not have succeeded (which he
did) as the statute had already run before the decision was
given by the Court.
In my judgment, therefore, "invalid" in the context of Article
15, s. 4, of the Constitution must be construed as meaning
void ab initio. In the result, ss. 192 to 198 inclusive of the
Income Tax Act, 1967, were void ab initio.
II
As I would hold that the sections were void ab initio, the
second question to which I have referred does not arise.

III
When a statute has been declared to be void ab initio, it
under which such act was done, the Courts recognise the
invalid statuteas it was put so succinctly during the
argument, "the egg cannot be unscrambled." In regard to
this aspect of the case, and the plaintiffs' right to recover the
sums collected from them in excess of those which should
properly have been collected from them if their incomes had
not been aggregated, I have had the advantage of reading in
advance the judgment of Mr. Justice Henchy and I agree with
his conclusions and the reasons which he has stated
therefor.
I would accordingly hold (1) that ss. 192 to 198 inclusive of
the Income Tax Act, 1967, were void ab initio and were thus
invalid from the date of their enactment; (2) that the
plaintiffs are entitled to recover the excessive
[1982]
1 I.R.
Griffin J.; Kenny J.
332
S.C.
amounts of income tax collected by the revenue authorities
from them by reason of the aggregation of their incomes in
respect of the tax years 1978-9 and 1979-80 only; and (3)
that, unless proceedings have been instituted on behalf of
any other taxpayers claiming the condemnation of the said
sections or seeking the recovery of any excess taxes
collected from them, only the plaintiffs can maintain a claim
in pursuance of this decision.
Kenny J.
In the judgment which the Court gave on the 25th January
we held that ss. 192 to 198 (inclusive) of the Act of 1967, in
so far as these sections provide for the aggregation of the
earned incomes of married couples, are repugnant to the
Constitution. Before the order had been perfected, counsel
for the Attorney General applied to us for decisions on
questions of considerable constitutional importance which,
because they arose only after judgment had been given in
the main action, were not argued in that suit. The ground for
this highly unusual application was urgency. It was said that,
without an answer to these questions, the Minister for
Finance could not prepare estimates of expenditure for the
financial year 1980-81 (Article 17, s. 1, sub-s. 1, of the
Constitution). This is an appellate court only but, as the
circumstances were so unusual, we decided to accede to this
request.
The first question is whether the words "this declaration to
have effect from 6th April, 1980" should be added after the
declaration of the constitutional invalidity of ss. 192 to 198
(inclusive). This involves a decision as to whether the
sections were invalid from the date of the Act of 1967 being
signed by the President or whether the Court has power to
declare that they are to be regarded as being effective until
the 6th April, 1980, and invalid thereafter.
One of the features of the Constitution of 1922 and that of
1937 was that they abolished the doctrine of Parliamentary
sovereignty. While the Oireachtas has the sole and exclusive
power of making laws for the State, its power to legislate is
limited by the Constitution, which can be amended by
referendum only. This is the result of Article 15, s. 4, which
reads:"4. 1 The Oireachtas shall not enact any law which
is in any respect repugnant to this Constitution or any
provision thereof. 2 Every law enacted by the Oireachtas
which is in any respect repugnant to this Constitution or to
any provision thereof, shall, but to the extent only of such
repugnancy, be invalid."
[1982]
1 I.R.
Kenny J.
Sub-section 1 is a prohibition binding on the Oireachtas not
to make laws which are in any respect repugnant to the
Constitution. Sub-section 2 states what the effect is of the
Oireachtas passing legislation which is repugnant to the
Constitution or any provision thereof. The effect of a decision
of the High Court or, on appeal, this Court that an Act of the
Oireachtas or any section of it is repugnant to the
Constitution is a judgment that the Oireachtas has exceeded
its powers. All legislation passed by the Oireachtas since
1937 has a presumption in its favour that it is not repugnant
to the Constitution but, when this Court decides that any
part of it is repugnant, the presumption is dispelled. The
impugned legislation is invalid not from the date of the
judgment of the court but from the date when the President
signed it. A decision that the Court had power to state the
date from which it was invalid would thus have the
extraordinary result that the legislation and everything done
under it would have to be treated as valid until that date but
invalid thereafter. Once it is realised that the effect of Article
15, s. 4, is a restriction on the law-making power of the
Oireachtas, the impossibility of acceding to the Attorney
General's request becomes clear. By doing so, we would be
sanctioning something which the Constitution prohibits. We
would, in my opinion, be arrogating to ourselves a power to
supersede the Constitution if we did this.
This conclusion is fortified by the admission made by
counsel for the Attorney General that legislation passed
before the 29th December, 1937, which is inconsistent with
the Constitution ceased to be in force not when the Court
has declared it to be such but on the date mentioned when
the Constitution came into force: see Article 50.
Counsel for the Attorney General relied on decisions of the
Federal Supreme Court of the United States of America in
which such a power to suspend the operation of a decision of
theirs that a statute was repugnant to the Constitution was
exercised ( Great Northern Railway Co. v. Sunburst Oil and
Refining Co. 50 ; Linkletter v. Walker 38 ; Chevron Oil Co. v.

Huson 41 ) and on a decision of the Court of the European
Communities: Defrenne v. Sabena. 36
The Constitution of the United States does not contain any
provision that laws passed by Congress which are repugnant
to the constitution are invalid nor does it provide that the
Federal Supreme Court has jurisdiction to declare Acts of
Congress invalid. The Federal Supreme Court spelled the
doctrine of judicial review out of the constitution and, as it
created the power, it may declare its limits. We have no such
power. "Judicial review is one of the distinctive features of
United States constitutional law. It is no small wonder,
[1982]
1 I.R.
Kenny J.
334
S.C.
then, to find that the power of the federal courts to test
federal and state legislative enactments and other actions
by the standards of what the Constitution grants and
withholds is nowhere expressly conveyed, but it is hardly
noteworthy that its legitimacy has been challenged from the
first and while now accepted generally it still has detractors
and its supporters disagree about its doctrinal basis and its
application."see The Constitution of the United States of
America: Analysis and Interpretation, which is prepared by
the Congressional Research Service, 1972 edition at p. 669.
The decisions of the Federal Supreme Court cited by counsel
have no relevance to our constitutional position and so do
not assist the Attorney General's contentions.
Defrenne v. Sabena 36 was a case in which a Belgian air
hostess claimed payment from her employers of the amount
due to her under the equal pay provision (article 119) of the
Treaty of Rome. The Court of the European Communities held
that all national courts are bound to give effect to that
article. The court ordered payment to the plaintiff of the
arrears of salary due to her on the basis that she was
entitled to pay equal to that of men, but held that other

employees who had not brought proceedings could not
recover arrears of salary due to them. They expressed their
reasons for not doing this in these words at paragraph 74 of
the judgment:
"In these circumstances, it is appropriate to hold that, as the
general level at which pay would have been fixed cannot be
known, important considerations of legal certainty affecting
all the interests involved, both public and private, make it
impossible in principle to reopen the question as regards the
past."
It has not been suggested in the instant case that the
moneys overpaid by the plaintiffs and other taxpayers
cannot be ascertained.
The next argument advanced by counsel for the Attorney
General was that the first plaintiff was estopped from
recovering payment of the tax overpaid by him. It was
submitted (a) that the conduct of the taxpayer in not
objecting to the system of taxation under ss. 192 to 198
(inclusive) of the Act of 1967 amounted to a representation
that, until he started these proceedings, he accepted that
the system was valid; (b) that the Government, the
Oireachtas and the Revenue Commissioners acted on that
footing and in the belief that such representation was
correct; (c) that the first plaintiff is not entitled to claim that
the system was invalid; and (d) that the first plaintiff is,
therefore, estopped from contending that the tax paid by
him was not validly due.
[1982]
1 I.R.
Kenny J.
335
S.C.
There was no evidence that the Government or the
Oireachtas or the Revenue Commissioners relied upon the
representation made by the first plaintiff by not objecting to
the system. Indeed, the whole argument that each husband

in the State whose wife has earned income made a
representation to the Government, the Oireachtas or the
Revenue Commissioners which they acted on is based upon
an unreal assumption. The Government, the Oireachtas and
the Revenue Commissioners did not rely on any
representation by any taxpayer: they merely continued the
system inherited from the Income Tax Act, 1842, because it
was administratively convenient and fiscally profitable.
There was no argument as to how the first plaintiff could
recover the income tax which he had overpaid. I have gone
through the Income Tax Act, 1967, and the Acts passed since
it was enacted. Section 191 of the Act of 1967 allows
repayment of tax when there has been an error or mistake in
the tax charged under an assessment but the first plaintiff
received one assessment only which he got in the year he
was married. Part XXXIV of the Act of 1967 deals with
repayment and s. 498 (which is in that Part) as amended by
the Finance (Miscellaneous Provisions) Act, 1968,
provides:
"498. Save as otherwise expressly provided by any provision
of this Act, no claim for repayment of income tax under this
Act shall be allowed unless it is made within ten years next
after the end of the year of assessment to which it relates."
The section is therefore confined to repayment of the
income tax assessed under the Act of 1967 and the plaintiff's
claim cannot be based upon the Act of 1967.
The first plaintiff may, however, recover the tax overpaid by
him not merely because elementary justice requires that he
should but in an action for money had and received by the
Revenue Commissioners colore officii to his use. The flexible
form of action for money had and received to the use of the
first plaintiff includes a claim for money wrongly demanded
and received by an official by virtue of his office.
In Dolan v. Neligan 47 I dealt, when I was a judge of the
High Court, with the English cases on this branch of the law. I
did not then know of the two decisions of the High Court of
Australia in Sargood Brothers v. The Commonwealth 69 and
Mason v. New South Wales. 48 In the first of these, O'Connor
J. said at p. 276 of the report:

"Where an officer of Government in the exercise of his office
obtains payment of moneys as and for a charge which the
law
[1982]
1 I.R.
Kenny J.; Parke J.
336
S.C.
enables him to demand and enforce, such moneys may be
recovered back from him if it should afterwards turn out that
they were not legally payable even though no protest was
made or question raised at the time of payment. Payments
thus demanded colore officii are regarded by the law as
being made under duress."
All the income tax payable by the plaintiff on the total of his
wife's and his salary was deducted at source before
payment. If money is recoverable because it was not due
when it was demanded by an official and paid, it must follow
that money wrongly deducted from a payment due to a
payee by a Government official is recoverable by this form of
action. The time limit for such an action is six years from the
date of deduction.
As the tax overpaid may, in my opinion, be recovered by
this form of action, it is not necessary to consider whether it
may be recovered as money paid under a mistake and
whether the mistake is one of fact or law.
Parke J.
I agree with the judgments which have been delivered by
Mr. Justice Henchy and Mr. Justice Griffin.
Solicitors for the plaintiffs: R. F. Gallagher, Shatter & Co.
Solicitor for the defendant: Chief State Solicitor.
E.P. de B.
[1982] I.R. 241
[2001]
2 I.R.
545
James Sinnott, (a person of unsound mind not so found suing
by his mother and next friend Kathryn Sinnott) Plaintiff v.
The Minister for Education, Ireland and the Attorney
General,Defendants, and Kathryn Sinnott, Plaintiff, v.The
Minister for Education, Ireland and the Attorney General
Defendants
[1996 No. 11170P and 1997 No. 54P; S.C. Nos. 326and 327
of 2000]
High Court
4th October 2000
Supreme Court
12th July 2001
Constitution - Personal rights - Education - State's obligation
toprovide for free primary education - First plaintiff suffering
fromprofound mental and physical disablement and autism Whether Stateobliged to provide for primary education after
age of majority -Adequacy of provision - Constitution of
Ireland, 1937, Article 42.4.Constitution - Personal rights Breach - Family - Cause of action -Whether family member
had independent cause of action for wrongsuffered by that
family member because of breach of constitutionalright of
another family member - Constitution of Ireland,
1937.Constitution - Separation of powers - Mandatory
injunction -Expenditure of public funds - Whether declaration
of rights sufficient- Whether appropriate to grant mandatory
injunction.
Article 42.4 of the Constitution of Ireland, 1937, provides,
inter alia, that "the State shall provide for free primary
education and, when the public good requires it, provide
other educational facilities or institutions "
The first plaintiff was born in 1977 and developed autistic
symptoms and mental and physical disfunction at around the
age of four months. The second plaintiff, the mother and
primary carer of the first plaintiff, failed in her endeavours to
secure the provision of the appropriate treatment and
education from the State despite assurances that such

services would be provided to the first plaintiff.
Up to the hearing of the action, when the first plaintiff was
23 years old, he had received no more than about two years
of primary education and training provided by or on behalf of
the State.
The first plaintiff sought declarations that the State had
failed in its constitutional duty to provide primary education
for the first plaintiff, a mandatory injunction directing the
defendants to provide for free education for the first plaintiff
appropriate to his needs for as long as he was capable of
benefiting from same and damages. The second plaintiff
sought, inter alia, declarations that the State had failed to
respect, defend and vindicate her constitutional rights as
mother of the first plaintiff by failing to provide any
education appropriate to the first plaintiff, imposing
inordinate burdens on her. She also sought a similar
mandatory injunction and damages.
The defendants contended that the first plaintiff was not
autistic but that he suffered from a profound mental and
physical handicap with some autistic features and
[2001]
2 I.R.
Sinnott v. Minister for Education
546
H.C.
that the available facility was suitable for his ongoing
education and care. It was further submitted that the State's
obligation under Article 42.4 of the Constitution ceased when
a child reached 18. It was further submitted on behalf of the
defendants that the first plaintiff's claims were tortious in
nature, and that the tort in question did not exist until
established by O'Donoghue v. Minister for Health on the
27th May, 1993, the date judgment was delivered, and that
no claimant was entitled to maintain a retrospective claim
prior to the date of that judgment.
Held by the High Court (Barr J.), in granting the plaintiffs a
mandatory injunction, declaration and damages, 1, that,

having regard to the provisions of Article 42.4 of the
Constitution, there was a constitutional obligation upon the
State to provide for free, basic, elementary education of all
children. Such education constituted giving each child such
advice, instruction and teaching as would enable him or her
to make the best possible use of his or her inherent and
potential capacities, physical, mental or moral, however
limited these capacities might be.
O'Donoghue v. Minister for Health [1996] 2 I.R. 20 followed.
2. That there was nothing in Article 42.4 which supported
the contention that there was an age limitation on a citizen's
right to primary education provided by or on behalf of the
State. It was evident that the right to primary education
would be fundamentally flawed if narrowly interpreted as
ending at an arbitrary age of 18 years.
3. That, in the absence of a specific provision in such terms,
it would be wrong to imply any age limitation on the
constitutional obligation of the State to provide for the
primary education of those who suffer from severe or
profound mental handicap.
4. That the ultimate criterion in interpreting the State's
obligation under Article 42.4 to the grieviously disabled was
based on need and not age. Where a child's disability was
such that he or she required ongoing specialist primary
education and training for life, the State's obligation to
provide that service would continue into adulthood.
5. That, accordingly, the obligation to provide and continue
to provide for primary education and ancillary services for
the first plaintiff was open-ended and would continue as long
as such education and services were reasonably required by
him.
6. That O'Donoghue v. Minister for Health did not create a
new right but declared an existing one. The first plaintiff's
constitutional right to education existed from the enactment
of the Constitution and breach of that right sounded in
damages from at least the 1970s, when expert opinion
widely accepted that sufferers of his disablement were
capable of and would benefit from appropriate primary
education. The first plaintiff's right and cause of action arose

when he was diagnosed and treated in October, 1981, and it
continued into the future.
Murphy v. Attorney General [1982] I.R. 241 distinguished;
McDonnell v. Ireland [1998] 1 I.R. 134 followed.
7. That the duty of the State which gave rise to the
plaintiffs' claims derived solely from the Constitution for
which there was no corresponding duty in ordinary law and it
was appropriate to bring a constitutional action. A claim for
damages for breach of constitutional rights was analagous to
a common law action in tort and the Statute of Limitations,
1957, applied to such a claim.
8. That the first plaintiff's claim was instituted within the
limitation period prescribed by the Statute of Limitations,
1957, and he was entitled to damages from October, 1981,
up to the present and into the future.
[2001]
2 I.R.
547
H.C.
9. That the second plaintiff suffered harm, loss and damage
by reason of the State's failure to honour its constitutional
obligation to provide adequately for the first plaintiff's
education and training and this was a reasonably
foreseeable consequence of the State's conduct in that
regard. The second plaintiff's claim was analogous to a claim
for personal injury in tort and was subject to the three year
limitation period in the Statute of Limitations Act, 1957. The
wrong done to the second plaintiff was a continuing one and
she was entitled to damages for the harm done to her in the
three years prior to the institution of proceedings and into
the future.
Quaere: Whether an award of punitive damages would be

made against the State for a deliberate and conscious failure
to comply with its constitutional obligations?
The defendants appealed to the Supreme Court. Prior to the
hearing of the appeal, the defendants conceded that the
constitutional right of the first plaintiff to free primary
education up to the age of 18 years had been violated by
them and informed the court that no appeal was being
pursued in relation to the damages awarded to the first
plaintiff. In relation to the second plaintiff's case, the
defendants informed the court that the appeal was being
pursued in respect of the entire judgment and order, other
than the award of special damages.
Held by the Supreme Court (Denham, Murray, Hardiman,
Geoghegan and Fennelly JJ.; Keane C.J. and Murphy J.
dissenting in part), in allowing the limited appeal against the
first plaintiff, 1, that the duty to provide for free primary
education under Article 42.4. of the Constitution was owed to
children and not to adults.
2. That the first plaintiff was entitled to a declaration that
the first defendant, in failing to provide for free primary
education for him up to the age of 18 years of age,
appropriate to his needs as a severely autistic child with
related profound mental and physical handicap, had
deprived him of his constitutional rights under Article 42.4 of
the Constitution.
Per Keane C.J. dissenting: That that part of the judgment of
the High Court which found that the first plaintiff was
entitled to damages in respect of his entitlement to free
primary education up to the age of 22 years was not the
subject of an appeal, an advisory judgment should not be
granted in respect of the issue of whether the constitutional
entitlement to free primary education was limited to children
and did not extend to adults, and the first plaintiff was
entitled to a declaration that the first defendant was obliged
by Article 42.4 of the Constitution to provide for free primary
education for the first plaintiff appropriate to his needs for as
long as he was capable of benefiting from same.
Att. Gen. v. Southern Industrial Trust Ltd. (1959) 94 I.L.T.R.
161 considered.
Per Murphy J. dissenting: That the right to free primary
education, which was basic scholastic education provided by
teachers in classrooms, under Article 42 of the Constitution
ceased when a person reached the age of 12 years.
Per Geoghegan J. (Murray J. concurring): Primary education
included suitable education for mentally handicapped
children. Whereas primary education might be regarded as
education up to the age of 12 in the case of a normal child,
because of slow learning or learning incapacity, the period to
be covered by primary education might obviously have to be
extended in the case of handicapped children and, in that
sense, the defendants' arbitrary choice of the age 18 was
not necessarily illogical.
Per Keane C.J. and Hardiman J.: It was normally sufficient to
grant declaratory relief in the expectation that the
institutions of the State would respond by taking whatever
action was appropriate to vindicate the constitutional rights
of the successful
[2001]
2 I.R.
548
H.C.
applicant and the fact that the courts had powers to deal
with the extreme circumstances in which a hypothetical
government not only ignored a constitutional imperative and
defied a court declaration was not a basis for the exercise of
such powers in any other circumstances. The purported
retention by the High Court of jurisdiction in the case after it
had delivered its final judgment was an erroneous exercise of
its jurisdiction.
Per Denham J.: While the courts assumed that, where an
order was being made against the State, a declaratory order
would be sufficient and appropriate, the court might have a
jurisdiction and even a duty to make a mandatory order in a
rare and exceptional case of protecting constitutional rights.
Held by the Supreme Court (Keane C.J., Murphy, Murray,

Hardiman, Geoghegan and Fennelly JJ.: Denham J. dissenting
in part), in allowing the appeal against the second plaintiff,
1, that there was no cause of action known to the law which
provided that where the constitutional rights of a member of
a family had been violated, the wrongdoer must compensate
not only the person concerned but also any other member of
his or her family, as constitutionally defined, in whom no
independent right of action was vested, but who had
suffered in some sense because of the wrong done to the
other family member.
McLoughlin v. O'Brian [1983] 1 A.C. 410; Mullally v. Bus
ireann [1992] 1 I.L.R.M. 722 ; P.H. v. John Murphy & Sons
Ltd. [1987] I.R. 621 considered.
2. That the second plaintiffs constitutional right of parental
choice as to the nature of education which her child would
receive was not breached by the defendants.
Per Denham J. dissenting: That the defendants' failure to
provide free primary education to the first plaintiff
constituted a breach of the second plaintiff's right to be held
equal before the law as a parent and a mother under Article
40.1 of the Constitution and amounted to invidious
discrimination. The second plaintiff, as a parent of a family,
had a duty to the first plaintiff as a child of that family, and
the second plaintiff was entitled under Article 41 of the
Constitution to defend the institution of the family which
suffered as a consequence of the defendants' breach of the
first plaintiff's rights. The special constitutional recognition
given to the role of women and mothers within the home
must be read harmoniously with other articles of the
Constitution when a combination of articles fell to be
analysed.
Cases mentioned in this report:Adoption (No. 2) Bill, 1987 [1989] I.R. 656; [1989] I.L.R.M.
266.
Attorney General v. Paperlink [1984] I.L.R.M. 373.
Att. Gen. v. Southern Industrial Trust Ltd. (1957) 94 I.L.T.R.
161.
A.G. (S.P.U.C.) v. Open Door Counselling Ltd. [1988] I.R. 593;
[1987] I.L.R.M. 477.

Barber v. Guardian Royal Exchange (Case C 262/88) [1990]
E.C.R. I - 1889.
13.
Brady v. Cavan County Council [1999] 4 I.R. 99; [2000] 1
I.L.R.M. 81.
[2001]
2 I.R.
549
H.C.
Breathnach v. Ireland [2000] 3 I.R. 467.
Bromley B.C. v. Needs Tribunal [1999] 3 All E.R. 587.
Buckley and Others (Sinn Fin) v. Attorney General [1950]
I.R. 67.
Comerford v. Minister for Education [1997] 2 I.L.R.M. 134.
Conway v. Irish National Teachers Organisation [1991] 2 I.R.
305; [1991] I.L.R.M. 497.
Crowley v. Ireland [1980] I.R. 102.
Defrenne v. Sabena (Case 43/75) [1976] E.C.R. 455; [1976]
2 C.M.L.R. 98.
Director of Public Prosecutions v. Best [2000] 2 I.R. 17;
[2000] 2 I.L.R.M. 1.
M.F. v. Superintendent Ballymun Garda Station [1991] 1 I.R.
189; [1990] I.L.R.M. 243.
D.G. v. Eastern Health Board [1997] 3 I.R. 511; [1998] 1
I.L.R.M. 241.
P.H. v. John Murphy & Sons Ltd. [1987] I.R. 621; [1988]
I.L.R.M. 300.
Hanley v. Minister for Defence [1998] 4 I.R. 496; [1999] 4
I.R. 392; [2000] 2 I.L.R.M. 276.
Hanrahan v. Merck, Sharp and Dohme [1988] I.L.R.M. 629.
Kelly v. Hennessy [1995] 3 I.R. 253; [1996] 1 I.L.R.M. 321.
L. v. L. [1992] 2 I.R. 77, 101; [1992] I.L.R.M. 115; [1989]

I.L.R.M. 528.
MacMathna v. Attorney General [1995] 1 I.R. 484; [1995]
1 I.L.R.M. 69.
Matrimonial Home Bill, 1993 [1994] 1 I.R. 305; [1994] 1
I.L.R.M. 241.
McCulloch v. Maryland (1819) 17 U.S. (4 Wheat 316).
McDonnell v. Ireland [1998] 1 I.R. 134.
McEneaney v. Minister for Education [1941] I.R. 430.
McGee v. Attorney General [1974] I.R. 284; (1973) 109
I.L.T.R. 29.
McKenna v. An Taoiseach (No. 2) [1995] 2 I.R. 1; [1996] 1
I.L.R.M. 81.
McLoughlin v. O'Brian [1983] 1 A.C. 410; [1982] 2 W.L.R.
982; [1982] 2 All E.R. 298.
McMahon v. Leahy [1984] I.R. 525; [1985] I.L.R.M. 423.
McMenamin v. Ireland [1996] 3 I.R. 100; [1997] 2 I.L.R.M.
177.
Meskell v. Coras Iompair ireann [1973] I.R. 121.
Mullally v. Bus ireann [1992] 1 I.L.R.M. 722.
[2001]
2 I.R.
550
H.C.
Murphy v. Attorney General [1982] I.R. 241.
Murphy v. Dublin Corporation [1972] I.R. 215; (1972) 107
I.L.T.R. 65.
Murray v. Ireland [1985] I.R. 532; [1985] I.L.R.M. 542.
F.N. (a minor) v. Minister for Education [1995] 1 I.R. 409;
[1995] 2 I.L.R.M. 297.
O'B. v. S. [1984] I.R. 316; [1985] I.L.R.M. 86.
O'Byrne v. Minister for Finance [1959] I.R. 1; (1958) 94
I.L.T.R. 11.
O'Donoghue v. Minister for Health [1996] 2 I.R. 20.
O'Reilly v. Limerick Corporation [1989] I.L.R.M. 181.
O'Shiel v. Minister for Education [1999] 2 I.R. 321; [1999] 2

I.L.R.M. 241.
The People v. O'Shea [1982] I.R. 384; [1983] I.L.R.M. 549.
People (Director of Public Prosecutions) v. Quilligan (No. 3)
[1993] 2 I.R. 305.
R. v. East Sussex C.C., ex p. Tandy [1998] A.C. 714; [1998] 2
W.L.R. 884; [1998] 2 All E.R. 769.
Riordan v. An Taoiseach [2000] 4 I.R. 542.
Ryan v. Attorney General [1965] I.R. 294.
In re the School Attendance Bill, 1942 [1943] I.R. 334 (1943)
77 I.L.T.R. 96.
The State (Browne) v. Feran [1967] I.R. 147.
The State (Healy) v. Donoghue [1976] I.R. 325; (1975) 110
I.L.T.R. 9; (1976) 112 I.L.T.R. 37.
The State (Nicolaou) v. An Bord Uchtla [1966] I.R. 567;
(1966) 102 I.L.T.R. 1.
105.
Plenary summonses.
The facts are summarised in the headnote and are set out in
full in the judgment of Barr J., infra.
By plenary summons dated the 17th December, 1996, the
plaintiff in the second action claimed, inter alia:1. a declaration that the first defendant, in failing to provide
for free education for the plaintiff's son, the plaintiff in the
first action, appropriate to his needs as a profoundly
mentally disabled child, and in discriminating against the
plaintiff's son with respect to the provision of appropriate
educational facilitiesvis- -vis other children, has deprived
the plaintiff of her constitutional rights under Article 40.1.
and 40.3.1 to 2 and Article 42.1.2 to 4;
[2001]
2 I.R.
Barr J.
551
H.C.
2. damages for breach of the plaintiff's constitutional rights,

negligence and breach of duty;
3. a mandatory injunction directing the first defendant to
forthwith provide for free education for the plaintiff's son
appropriate to his needs for as long as he is capable of
benefitting from same and free transport to such educational
facilities.
Proceedings were also instituted by plenary summons by
the plaintiff in the first action seeking similar reliefs.
Statements of claim were delivered on the 31st January,
1997 and defences filed 10th November, 1997.
The actions were listed together and heard by the High
Court (Barr J.) on the 2nd to 5th, 10th to 12th, and 30th
November, 1999, on the 1st to 3rd, 8th to 10th, and 14th to
17th, December, 1999, on the 17th to 21st, 25th to 31st
January, 2000, and on the 14th and 21st February, 2000.
Paul Sreenan S.C. ,Michael Gleeson S.C. andPearse Michael
Sreenan ) for the plaintiffs.
James O'Reilly S.C. andJohn L. O'Donnell for the defendants.
Cur. adv. vult.
Barr J.
4th October, 2000
Both actions arise out of the same events and were tried
together. I propose to treat them as one.
The evidence has established the following facts and
conclusions on the balance of probabilities:The first plaintiff was born on the 11th October, 1977. He is
now almost 23 years of age, the third child of nine. The
second plaintiff, his mother, is separated from her husband
for a number of years and has been the first plaintiff's
primary carer all his life. At birth he was a healthy baby and
developed normally for about the first four months. The
second plaintiff is an American of Irish extraction. She came
to live in this country at or about the time of her marriage

and the first plaintiff was born here. Her father, Dr. John
Kelly, is a surgeon who has maintained close ties with Ireland
and has a house in County Cork at Enniskean where the
second plaintiff and her children resided originally. When the
first plaintiff was about four months old he was vaccinated in
the usual way. Soon thereafter
[2001]
2 I.R.
Barr J.
552
H.C.
he began to develop autistic symptoms. Subsequently, in
course of her endeavours on behalf of autistic children
generally, the second plaintiff founded an organisation called
The Hope Project. She stated in evidence that she has details
of about 300 families on computer who came to her for help
- each having a child suffering from autism or other condition
within the autistic spectrum. In almost every case such
children were, like the first plaintiff, normal for the first few
months of life and then sustained an insult of one type or
another and became "derailed into autism". Experience
indicates that there usually is a precipitating event after
which autistic symptoms emerge.
The first symptom which the first plaintiff displayed was that
he began to scream incessantly as though in acute pain. He
lost the ability to attach to the breast. He became extremely
distressed at light and sound. He did not want to be touched
or handled. The second plaintiff's description of him at that
time was "He seemed to cry all of the time. The only times
he seemed to be happy is if he was in bed away from all
sound and lights dimmed, curtains closed and no-one
touching him; then he could remain calm for short periods of
time".The first plaintiff's problems also extended to physical
incapacity. This was very clearly demonstrated on an
occasion when he was about six months old. The second
plaintiff's sister paid a visit and brought her son, Barry, who
was a month younger than the first plaintiff. The second

plaintiff described the two babies lying on the floor side by
side. "Barry was looking at this mother and smiling and
kicking and doing all of the appropriate six months things
the first plaintiff was lying next to him, unusually not
crying just lying there completely flat, he was not doing
anything and he was not looking at anybody ". This was in
sharp contrast with the interaction of the two babies when
together up to the time when the first plaintiff developed
autism. The first plaintiff was then entirely normal in
behaviour and was more advanced than Barry.
The second plaintiff's father carried out an assessment of
the first plaintiff and became concerned about him. Dr.
Quigley, the family G.P., was consulted and he referred him
to the paediatric unit at St. Finbarr's Hospital in June, 1978,
where he was assessed by Professor Barry. At that stage he
had lost control of his jaw which had started to clamp. He
has never regained full jaw control and since then up to the
present time he drools saliva which causes him on-going
distress as well as creating an element of revulsion in those
who come in contact with him. The first plaintiff was
detained in hospital for a period of observation and tests on
the basis of which Professor Barry advised that the child was
not reaching his milestones. He was healthy and they had
found nothing physically wrong with him. It was reported
that all of his tests were normal. On being pressed by Dr.
Kelly, Professor Barry stated that he would not discount
[2001]
2 I.R.
Barr J.
553
H.C.
autism. His advice was that the first plaintiff be taken home
and that they watch the autism develop. They were not
directed to any other service where the child might receive
treatment, nor were they asked to bring him back to the
hospital for further assessment.
The first plaintiff was brought home and the second plaintiff
embarked upon a search for appropriate treatment for her
son which in turn developed into a crusade on behalf of
autistic children generally - a huge struggle over two
decades seeking to prevail on State health and education
authorities to recognise autism and to provide appropriate
education and training for those afflicted by it - particularly
children like the first plaintiff with severe or profound
physical and mental disabilities which are frequently a
feature of autism. Anyone who heard the second plaintiff's
evidence in court and witnessed her demeanour must have
been moved by her account of intelligent, selfless dedication
and heroism in contending over the years with so much
official indifference and persistent procrastination which has
continued up to and through this trial. It is a sad
commentary that even at this late stage the State has failed
to address realistically its constitutional obligation to provide
for the on-going education of the first plaintiff.
The history of the second plaintiff's efforts for upwards of 20
years to obtain education and care for the first plaintiff and
others seriously afflicted with autism and related symptoms
is a very depressing story with many disappointments and
set-backs arising out of failure on the part of officialdom to
address the problem of autism and how it should be treated notwithstanding substantial international progress in that
area since the 1960's and earlier which is well-known and
documented. The evidence of Mr. Matthew Ryan, a senior
administrator in the Department of Education who has
particular responsibility in the area under review, underlines
the depth of ignorance of autism and its problems at official
level. In the first plaintiff's case the difficulty was aggravated
by actual professional misinformation on how he should be
treated which contributed to setting back his education and
training for years.
The second plaintiff's own family home is in Chicago, Illinois,
where her father carried on practice as a surgeon. Having
endeavoured without success to obtain treatment for the
first plaintiff from several institutions in Cork, the second
plaintiff decided to bring him to Chicago and see what might
be done for him there. He was brought to the paediatric unit

at Loyola University Hospital where he came under the care
of Dr. Eugene Diamond. He was detained for five days and
had a comprehensive series of tests under a team of
specialists. He was found to be generally healthy and of
good growth. It appears that his substantial disablement was
diagnosed as autistic in origin with a major deficit in motor
development which affected his muscles, skeleton and
general movement. He was diagnosed as
[2001]
2 I.R.
Barr J.
554
H.C.
suffering from a psycho-motor problem the effect of which
was that the brain was not sending messages to his muscles
and limbs. The second plaintiff was informed that the first
plaintiff needed intense therapy designed to teach the brain
to send the messages necessary to put him back on track.
The Loyola specialists recommended intensive intervention
in the nature of occupational therapy, physiotherapy, speech
and language training.
The first plaintiff was then enrolled at the Disfunctioning
Child Centre at the Michael Reese Hospital, Chicago, the
director of which was Dr. Naomi Abraham. The centre
provides a range of therapists to deal with dysfunctional
children, including those suffering from autism and related
disabilities. The first plaintiff attended three sessions a week
from the end of September until Christmas, 1978. There
were two sessions with Ms. Elizabeth Osten, occupational
psychotherapist, and one session with other therapists or
undergoing tests. Every month a written assessment was
made of the first plaintiff's progress by the therapists
concerned in consultation with the second plaintiff and her
father. She described that when her son arrived at the centre
he was screaming continuously and when not screaming he
was lying there like a spongy lump. He did not appear to see
anybody or do anything. She described him as being "glazed

over" and not wishing to be touched. He had also started to
display repetitive autistic behaviour. An autistic person is
self-centred in a literal sense who tends to shut out the world
around him. He or she is also prone to repetitive behaviours
such as pulling the hands and mouthing them. The
treatment at the Michael Reese Hospital brought about
substantial improvements in the first plaintiff's behaviour,
physical capacity and enjoyment of living. He was watching
people and giving some eye contact. He stopped most of his
autistic repetitive movements. He started interacting with
people around him. He ceased to cry and he even smiled.
There was quite a traumatic change in his level of happiness.
He was able to weight bear on his legs and to push with
them. He was able to sit up and could be put in a high chair
with the family at meal times. The second plaintiff described
that she and the family could touch the first plaintiff and "he
could be one of us in the midst of the family". As time went
on he developed his capacity to interact and he started
playing with toys.
An important part of the training at the centre involved the
second plaintiff and the first plaintiff's elder siblings. Family
collaboration and participation in the first plaintiff's
education and care was regarded as being of particular
importance. A detailed programme was developed with the
intention of having it carried on when the first plaintiff
returned to Ireland.
[2001]
2 I.R.
Barr J.
555
H.C.
The second plaintiff was asked what practical differences did
the first plaintiff's improvement in Chicago make in her own
life. In response she spoke of the difference of being able to
get a couple of hours sleep. Previously she had to catnap
when she could in the context of a very demanding, very

upset baby. She was able to put on some weight herself and
have some more energy, time and freedom to work with her
son. She went on to say "As a mother having him actually
look at me and acknowledge that he knew I existed, you
know, that recharges a mother. It enabled me to bring much
more of myself to him. In practical ways within the family the
fact that he was looking at brothers and sisters re-enforced
their interest in him. You know everything seemed to run
better every single thing he gained had huge practical
consequences for us "
The second plaintiff returned to Ireland with the first plaintiff
and her other children at Christmas, 1978. She was provided
with a programme, notes and records from the
Disfunctioning Child Centre and also medical records from
Loyola Hospital. She also had her own notes about the
treatment the first plaintiff had received while in Chicago.
The intention was that all of these would be handed over to
Professor Barry and others in the belief that continuing
treatment and educational facilities would be made available
to the first plaintiff in Ireland. Dr. Abraham also expected
that that would happen. She had a particular interest
because she had a home in west Cork which she visited
frequently. She had been assured that there were facilities in
Cork similar to those provided at her Centre in Chicago.
Sadly the hopes of the second plaintiff and Dr. Abraham
were not realised. It seems that nothing was achieved with
Professor Barry and the second plaintiff continued to be
fobbed off by other organisations in Cork. All the while the
first plaintiff regressed and gradually sank back to the
situation he had been in before going to Chicago. One of
those approached by the second plaintiff was Dr. Patrick
Murray, now deceased. He was a Southern Health Board
psychiatrist who worked with the Brothers of Charity
institution at Lota which dealt with mentally disabled
children. He did not respond at first.
The second plaintiff was asked how she reacted to her
inability to obtain assistance for the first plaintiff and, in
particular, continuation of the successful treatment he had
received at Chicago. Her reply was "I was very upset. The
way I reacted was no-one on the phone was straight with
me. No-one on the phone ever said to me look these
services do not exist, you need not ring again. That would
have been honest. I would have done something about it.
Maybe I would have returned to the States, I don't know.
Instead it was all evasive. It was all vague. It was as if there
was a wonderful service there but, but something " She
concluded that one of
[2001]
2 I.R.
Barr J.
556
H.C.
the problems was living in Enniskean which is 28 miles from
Cork. So she moved to basic rented accommodation in the
city and incurred financial hardship for herself and family in
the first plaintiff's interest. She explained her difficulties to
Dr. Abraham who wrote to Dr. Murray and this led to an
appointment with him. Unfortunately, Dr. Murray appears to
have been misinformed as to the cause of autism in children.
In the 50's and 60's in America a doctor called Bruno
Bethelheim propounded the theory that children were made
autistic by cold unloving mothers. What were referred to as
"refrigerator mothers" rejected their children and thereby
made them autistic. This theory had been discredited and
rejected in the United States and elsewhere at the time
when the first plaintiff was treated there. However, Dr.
Murray did not appear to be aware of that. He told the
second plaintiff that it was his policy to take an autistic child
and cut him off from his known environment and put him
into hospital for six weeks for the purpose of assessment.
The second plaintiff was appalled by that suggestion,
particularly having regard to her experience of watching the
minimal attention which the first plaintiff had received as an
in-patient in St. Finbarr's Hospital. She contacted Dr.
Abraham who also shared her view that the proposal was
"crazy". She contacted Dr. Murray but, it seems, the only

compromise which he was prepared to make was that the
second plaintiff might visit the first plaintiff at weekends or
perhaps even take him home then "if things were going
alright". The second plaintiff was not prepared to agree to
that course because she realised that the first plaintiff's
primary problem was isolation and she had been led to
believe that to make him even more isolated was not the
answer. She also knew very well that she was not a
"refrigerator mother". The second plaintiff stated that she
had Dr. Murray's lecture notes to nurses in which he
propounded the discredited Bethelheim theory. She also
discovered the practical application of it subsequently when
dealing with nurses at the Cork Polio Nursery. Furthermore,
she was informed later by three other parents who handed
their autistic children over to Lota for six weeks at the
behest of Dr. Murray that they deeply regretted having taken
that course because when their children were returned to
them a breach had been created which they were never able
to overcome subsequently. It is appropriate to add that it
seems to be accepted by all on both sides of this case that
the second plaintiff is a loving, caring mother of exceptional
dedication.
In November, 1979, the second plaintiff was successful,
through the efforts of her landlady, a medical doctor, to have
the first plaintiff assessed at Cork Polio, the forerunner of the
COPE Foundation, by Dr. Irene Leahy, a psychologist, and Dr.
McCarthy. They were interested in the treatment he had
received in Chicago and recommended that he needed
services for five days a week. However, that did not
materialise. He was given the benefit
[2001]
2 I.R.
Barr J.
557
H.C.
of what transpired to be a"baby-sitting" service run by
nurses who, though kind and loving, were not teachers or

therapists but were carers only. It seems that they were also
disciples of Dr. Murray's discredited theories on the cause of
autism. The baby-sitting service commenced in January,
1980, for a couple of hours per day, once, twice, or three
times a week. It broke up for the summer months and then
recommenced.
As nothing was being done for the first plaintiff, who was
regressing substantially, the second plaintiff decided that he
should return to the Disfunctioning Child Centre at the
Michael Reese Hospital, Chicago. She returned with him to
her family home and he attended the centre as before for
five months until April, 1981. They were particularly
interested in having him back again as they felt that it was
not only an opportunity to help the first plaintiff but also
gave them a chance to see what could happen in
rehabilitating a very young child through intensive services
who had been seriously derailed by autism. He was the
youngest child they had treated in that regard. They were
concerned to ascertain how much of the long term disability
could be avoided. In consequence, he was accepted as a
research project and no charge was made for his treatment
at the centre.
Lost ground was recovered and further progress was made.
Under the overall direction of Dr. Abraham, the first plaintiff,
again came under the care of Ms. Elizabeth Osten,
occupational psycho therapist, and also Dr. Margaret
Creedon, developmental psychologist, both of whom gave
evidence at the trial. Each has long experience in the
treatment of autism and related disabilities. Having
presented in much the same way as he had been originally
in 1978, great improvement was achieved and when he
returned to Ireland in April, 1981, he was well on his way to
walking, beginning to crawl, able to play with toys,
responding to people and having spoken his first word. Most
of the sessions at Chicago were videotaped. In the last two
weeks before returning to Ireland a teaching video was made
at the centre for the benefit of people who would deliver the
services and treatment that the first plaintiff needed in
Ireland. It was shown at the trial. The second plaintiff offered

it to the staff at the Cope Nursery and also to Dr. Murray with
whom Dr. Abraham had again corresponded and other
possible providers of services for the first plaintiff, but noone was interested.
As a result of further pressure exerted by Dr. Abraham on
Dr. Murray she received assurances that appropriate services
would be provided for the first plaintiff, including a preschool service at a school operated by Lota in Fitton Street,
Cork. In fact no such service eventuated and all he received
there was more baby-sitting twice a week for two hours each
session. No teacher was provided and a nurse was in charge.
That service continued from September, 1981, until October,
1982. From then until 1985 Cork
[2001]
2 I.R.
Barr J.
558
H.C.
Polio provided one (and later two) afternoons per week "a
baby-sitting facility". From 1985 until October, 1988, the first
plaintiff attended Cork Polio, at St. John's, Strawberry Hill
initially and then at Montenotte, five days per week which
was also a baby-sitting service with no formal education
provided.
In October, 1988, when the first plaintiff was 11 years old he
participated in a course of education for the first time. Ms.
Naomi Smith, a physiotherapist in Cork Polio, who had
studied in Hungary at the Peto Institute set up an
experimental conductive education unit for a period of six
months at Tracton. It was designed chiefly for physically
handicapped people. The first plaintiff was not considered
suitable for it but it was put to the second plaintiff that if she
could transport a neighbouring child to the course then the
first plaintiff could attend also. The course was structured on
a"one to one" basis and was physical in orientation. There
was a lot of physical work which the first plaintiff needed and
he got on very well. Walking, including use of stairs, was an

important aspect. He also learned to feed himself and he got
top marks for toileting. He was happier in himself and this
was apparent at home. There were six children on the course
and all made progress. The parents were encouraged to
participate and attend the classes. Sadly, at the end of the
trial period it was decided at Cope not to proceed with the
project. This was regarded by the second plaintiff and the
other parents as a disaster. There was at that time a waiting
list of disabled children whose parents were hoping that the
project would be expanded. There was also a difficulty about
returning the first plaintiff to the Cope day centre. Before
joining Ms. Smith's education project he was unsteady on his
feet and inclined to fall which constituted a danger for other
children. In consequence, he had been obliged to sit down all
day and this gave rise to regression in his autism. The
second plaintiff hoped that the first plaintiff would be allowed
resume at the day centre with no restriction on walking as he
had progressed so well on the Tracton course. However, to
her dismay she found that there was no place available for
him at Cope. This caused her to replicate as best she could
with the aid of a neighbour the Tracton conductive education
programme. She bought similar equipment to that used by
Ms. Smith and had considerable success with the first
plaintiff including an improvement in his mobility so that he
could walk for two miles at a time. This continued from
March, 1989, to January, 1991. Although reasonably
successful, one difficulty was that the first plaintiff became
lonely through lack of contact with other children.
Fortunately, a place became available at the Our Lady of
Good Counsel School at Lota which is for profoundly mentally
handicapped children. The first plaintiff joined in January,
1991, when he was 131/2 years old. He was in a "blue
report" class,i.e., 12 children and one teacher, Ms. Yvonne
[2001]
2 I.R.
Barr J.
559
H.C.
O'Malley. She found that she could not manage 12 children
together so the group was divided into two classes, one in
the morning and one in the afternoon. By and large this was
a successful experience for the first plaintiff. The main
problem about it was that terms followed the same pattern
as in primary schools. The long summer break caused much
distress for the child who seemed to be at a loss to
understand why the regime he enjoyed was discontinued for
so long. He had a very good relationship with Ms. O'Malley
who, in the second plaintiff's opinion, was an exceptionally
gifted and dedicated teacher. Toilet training was a problem
there, primarily because toilets were cold and substantially
removed from the classroom. It had been much more
successful during the conductive education period. The first
plaintiff still required a nappy and continues to do so at 23
years of age.
The first plaintiff remained at the Our Lady of Good Counsel
School for about two and a half years until June, 1993, when
he was nearly 16 years old. At that time the Education and
Development Centre at Lota was restructured with disastrous
results. For reasons of funding the school became more
health orientated than educational. The judgment of
O'Hanlon J. in O'Donoghue v. Minister for Health [1996] 2
I.R. 20 which laid down a class size of six for children
suffering from severe or profound mental handicap was
ignored and so was the"blue book" recommendation of 12
such pupils per class which Ms. O'Malley had discovered
from experience was unworkable. The new"school" had a
class of 23, including all 12 from the first plaintiff's original
class. Ms. O'Malley was the only teacher. In addition, there
was a director of the project but she did not teach. The
centre opened in October, 1993. Not surprisingly, Ms.
O'Malley was unable to handle 23 seriously disabled pupils.
By the following January she was obliged to take leave as her
own physical health was suffering under the strain of an illconceived regime. The second plaintiff reminded the
headmistress about O'Donoghue v. Minister for Health and
the group of parents asked her to obtain three more teachers

in accordance with its terms but nothing happened.
Thereafter Ms. O'Malley confined herself to the original group
of 12 children. Not only had she no help from any other
teacher, but the volunteers who had assisted her previously
were also informed by the Brothers of Charity that their
services were no longer required. There has been no
explanation of why that happened. The only available
assistants were some health care staff who had no teaching
experience. Eventually a second teacher was appointed for
the remaining 11 younger pupils. The first plaintiff was
allocated to the latter group but later was transferred to Ms.
O'Malley's class. He was bullied and subsequently assaulted
and seriously injured by one of the other pupils and required
treatment in hospital. As a result of that he was transferred
back to
[2001]
2 I.R.
Barr J.
560
H.C.
the younger children again which in terms of age was
inappropriate for him. From June, 1995, there was no further
education at the Child Educational Development Centre and
it became a health facility only. The withdrawal of teachers
also entailed the withdrawal of transport to and from the
school as this had been provided by the Department of
Education. Even before the withdrawal of teachers, the first
plaintiff was receiving only one 45 minute teaching session
per day with the result that 1994/5 was a bad year for him.
The converted premises for the younger group was small
with not much space to move around. Toilet training was not
possible because the only toilet was downstairs and was
used by the staff. The first plaintiff and some other disabled
children may get tired during the day. He could not lie down
anywhere because no beds or beanbags were provided. The
point was taken up with the staff but the response was that if
the first plaintiff was tired he should not go to school. An

offer of beds made by the parents association was turned
down. It was not appreciated that disabled children might
get tired at school. All but the second plaintiff and one other
parent were pressurised by the Brothers to accept a health
orientated scheme in lieu of that which had existed before.
The children of those who accepted the change were all
resident at Lota and the parents did not wish to antagonise
the Brothers by failing to support their proposition. The first
plaintiff and the other child were day attenders. The end
result for the first plaintiff in consequence of the change of
orientation was that he lost much of his ability to walk and it
was necessary to provide him with a wheelchair which had to
be used at times even within his home. The second plaintiff
described her son as being quite miserable at that time and
he was not making progress in any area of his life. He also
was having epileptic fits more often than had been the case
in previous years. He had begun to have very short minor fits
several years earlier. About 40% of autistic people suffer
from such manifestations.
The second plaintiff was asked to contrast the first plaintiff's
condition in March, 1995, when St. Martin's was dissolved as
an educational model, with the way he had been when in Ms.
O'Malley's class and in the conductive educational class
earlier. She responded by saying that it was like describing
night and day. He was not happy and he was not making
progress. Sometimes he wanted to go to the school and
sometimes he did not, whereas earlier he had always wanted
to go to school. As already described, his capacity for
walking had become severely diminished. The second
plaintiff regarded St. Martin's as a failure and she stated that
that was the consensus view of others at parents' meetings.
That unhappy state of affairs continued for about two years
in the first plaintiff's life. The plaintiffs' solicitors had
correspondence with the Minister for Education in 1994/95.
The information furnished by the latter about services
allegedly
[2001]
2 I.R.
Barr J.
561
H.C.
being provided for the first plaintiff was untrue and indicates
that the Minister appears to have been misinformed about
the realities of the case (See Book 13, letter of the 19th
September, 1994, and subsequent correspondence - in
particular the Minister's letter of the 21st December, 1994).
Eventually the father of the other child who, like the second
plaintiff, had supported the concept of an educational
facility, contacted the press in Cork as a result of which the
refusal of the State to provide educational facilities for his
mentally handicapped daughter received major front page
coverage. This brought about immediate capitulation and a
special class was set up for Eimer and the first plaintiff in
January, 1996, at St. Paul's School, Cope. Educational
facilities with an enlightened qualified teacher, Ms. Miriam
Kingston, was provided for five full school days per week. Ms.
Kingston had specialised training in dealing with children
with severe or profound mental handicap. She had some
knowledge of autism; had much enthusiasm and was
anxious to develop her ability in that regard. There followed
a short golden period in the education of the first plaintiff
which restored much lost ground and a variety of new
talents were developed. It illustrates graphically what would
have been achieved if he had received similar education
from his early years. Ms. Kingston brought a lot of happiness
into the first plaintiff's life which helped him greatly in
overcoming the misery of the previous two years. He was
then 18 years of age and it was necessary to lobby the
Minister to obtain an extension of his education for another
year. Eventually agreement was arrived at in that regard.
The school year at St. Paul's had been lengthened in
response to O'Donoghue v. Minister for Health [1996] 2 I.R.
20 and the summer holiday was only one month.
Unfortunately, when the first plaintiff returned in September
Ms. Kingston had left and this caused some disruption in his
education - particularly when later in the year her successor

took maternity leave and there was a succession of
unqualified substitutes for several months.
In September, 1997, the first plaintiff's time at St. Paul's was
finally up and the school was not prepared to educate him
any longer, even though, manifestly, he needed a great deal
more training to make up in some way for the many years
when no education had been provided for him. An impasse
emerged. The second plaintiff brought the first plaintiff to
school as usual. He was allowed to sit in the class but
received no education there. Eventually she was told that it
was intended to move the first plaintiff to the Orchard,
another institution at Cope, where he would join a class of
six severely or profoundly mentally handicapped young
adults of about his own age and would receive some
education and instruction from an unqualified teacher who
had little training in dealing with the profoundly handicapped
and no experience at all of autism. The second
[2001]
2 I.R.
Barr J.
562
H.C.
plaintiff had serious reservations about the proposed move
on the ground that by their own admission the authorities at
Cope and the staff employed by them had no experience in
dealing with any form of autism - far less severely autistic
young adults like the first plaintiff. None of the others in his
class were ambulatory. They were not autistic and none had
a range of problems like his. No programme was devised for
the first plaintiff's education and training until halfway
through the trial when a grossly defective one was cobbled
together in haste which was roundly condemned by the
experts - even those called on behalf of the defence. It
demonstrated a fundamental lack of understanding of
autism and its problems. Professor James Hogg, a world
renowned authority on autism, stated in evidence that if one
of his staff had produced the Orchard programme he would

have been genuinely dismayed. He went on to specify a
series of fundamental flaws which it contained. Professor
Peter Mittler, also a major world authority on autism, who
was called on behalf of the defence, was critical of the
programme and the best he was able to say of it was that it
might be a beginning on which a proper programme could be
built. In course of the trial a great deal of time was wasted
by the defence in a forlorn effort to establish that the first
plaintiff was not autistic but that essentially he is profoundly
mentally handicapped with some autistic tendencies. In the
end there was no sustainable case to support that
extraordinary proposition having regard to the wealth of
evidence and expert testimony, which I accept, that the first
plaintiff is severely autistic and has been so afflicted since he
was about four months old. (He was examined and
diagnosed as autistic by, among other experts, Professor
Hogg, Dr. Creedon, Ms. Osten, Mr. Willis and Mr. Reid.) That
line was pursued in the hope of persuading the court that
the regime at the Orchard is appropriate for the first
plaintiff's education and training. Manifestly it is not. I am
satisfied that the first plaintiff was moved to the Orchard as
a temporary stop-gap measure without any realistic
knowledge of what his educational requirements are. The
decision-makers were, or ought to have been, well aware
that having regard to his autism, it was entirely unsuitable
for him, not least because of the absence of any staff with
experience of autism and the special problems which it
entails and the lack of crucial services such as speech and
other therapies.
The second plaintiff gave evidence about the C.A.B.A.S.
(comprehensive applied behaviour analysis system) school
which was set up in Cork in the summer of 1999. It is a "oneto-one" teaching service with auxiliary staff, for 12 autistic
three to five year old children. They suffer from varying
degrees of autism, but three of them on entry were as
disabled as the first plaintiff had been at the same age. It is
run by an American professor, Burgus Grier, and his
assistant Mrs. Keohane. The second
[2001]
2 I.R.
Barr J.
563
H.C.
plaintiff's daughter, Brigid, is a trainee teacher there who is
studying for an M.A. postgraduate degree. It is a pilot project
which is intended to run for three years. The school is having
substantial success and the parents concerned are well
pleased with it. One of them, Mr. Brendan Toomey, gave
evidence to that effect. A particular success is in toilet
training. The system devised is specially suited to the
autistic mind. Brigid Sinnott has adopted the same method
at home in training her brother, the first plaintiff, and in a
short time she has had such success that it has been
possible to discontinue the wearing of diapers. He now rarely
has accidents in that regard. The second plaintiff has
endeavoured to persuade Ms. Healy, the first plaintiff's
teacher at the Orchard, to adopt a similar system for him
there, but without success and the first plaintiff has reverted
to wearing nappies at school. This is another illustration of
the lack of co-operation between the Orchard and parents.
The end result is that the first plaintiff has one system of
toileting at home and another at school which causes him
unnecessary confusion and sets back his progress in that
crucial area.
The second plaintiff and her daughter, Brigid, explained the
C.A.B.A.S. system of education. In essence the objective is to
make everything very logical. They examine every message
they give a child and every message a child is trying to give
them and they endeavour to ensure that everything they do
is in the logical pattern of the messages which are
interacting between the child and the teacher. They are
concerned not to give the wrong message to the child or to
misinterpret a message received from him or her. No system
of that sort obtains in the Orchard. The first plaintiff is the
only person in his class who is ambulatory. The other five are
confined to special chairs and so is the first plaintiff though it

is unnecessary in his case. The second plaintiff is dubious
about the amount of teaching hours (such as it is) which he
receives per week as on several occasions when she has
called to the Orchard at times when the class ought to have
been receiving instruction, the teacher was not present and
no instruction of any sort was in progress.
The second plaintiff has found that the disinterest in
parental involvement at the Orchard differs greatly from Ms.
Naoimi Smith's conductive education course where the
parents were involved and were specifically brought in to
watch what was going on. Ms. Smith and her colleagues
worked with the parents as partners who then tried to carry
on the instruction at home. She found a degree of
partnership also with Ms. Yvonne O'Malley in her class at St.
Paul's and again with Ms. Miriam Kingston in her class there.
They were concerned to develop a co-operative relationship
with the parents. She found that it was particularly beneficial
for the first plaintiff when there was interplay between
parent and teacher and they worked in partnership for the
benefit of the child. The second plaintiff has
[2001]
2 I.R.
Barr J.
564
H.C.
found from experience that such collaboration is the only
way forward. Her experience has been that the occasions
when the first plaintiff has made most progress were in
programmes based on partnership. Unfortunately, the
general attitude at Cope is not conductive to that concept
and there is little interaction and co-operation with parents.
The second plaintiff made it clear in evidence that her
experience had been over the years that those caring for the
first plaintiff had always been particularly kind to him. Her
criticism of them relates solely to what she perceives as lack
of experience, training and expertise and also the lack of a
viable structured programme for his education and training

devised in collaboration with her. Experience has established
that educators have achieved more with the first plaintiff
than health personnel. Teachers are also more likely to coordinate efforts between school and home. A few teachers,
such as Ms. O'Malley and Ms. Kingston, have been successful
in that regard and have achieved more with the first plaintiff
than health orientated carers with the exception of Ms.
Naoimi Smith.
The second plaintiff was asked about the time she had
devoted to her son over the years. She responded that she
had spent a great deal of time in doing a lot of things. Trying
to be his mother, therapist and educator. "Coping with things
like dressing and lifting and things that I feel wouldn't have
been necessary and hopefully will not arise in the future."
She referred to the fact that the first plaintiff suffers a lot of
frustration, particularly in connection with changes in
regimes or withdrawal of regimes which he enjoyed and
periods of depression arising out of his frustration. The
manifestation of depression is that he doesn't wish to move
and curls into himself. This has a gloomy effect on the entire
family. His physical capacity has also seriously deteriorated
in times of regression - even to the extent of requiring a
wheel-chair though previously he had learned to walk as
much as two miles at a time. As to the future; she stated "I
have always envisaged taking care of the first plaintiff and I
have never planned on ever putting him into an institution as
long as I can take care of him....". The effect of lack of
services for the first plaintiff over the years on his mother
was congently described by Bridget Sinnott in her evidence.
When asked what percentage of her mother's time and
thoughts were devoted to the first plaintiff and his cause
over the years her reply was "a huge disproportionate
amount".
Although at best the likelihood is that the first plaintiff
always would have suffered from serious mental and
physical incapacity arising out of his autism and related
disabilities, even if he had received appropriate on-going
education and training at an early age similar to that which
he had in Chicago and which the C.A.B.A.S. organisation is

pioneering in Cork, the expert evidence indicates a
probability that his physical and mental
[2001]
2 I.R.
Barr J.
565
H.C.
capacity and his enjoyment of life would have improved
substantially from an early age. It is reasonable to assume
that, in particular, he would have been fully toilet trained
from early childhood; his persistent drooling would have
been cured or at least greatly improved long ago; he would
have been substantially more mobile and would have
developed greater dexterity with his hands. There are
positive indications that his mental capacity probably would
have improved and, through professional speech therapy, he
may have developed in time a rudimentary capacity with
language - though the latter development appears to be no
more than a possibility. Early signs indicate a probability that
he could have been successfully trained for sheltered
employment similar to that of the towel-folding youngster
employed in a gymnasium which was referred to by Dr.
Walsh in course of her evidence. This would have done
wonders for his self-esteem by giving him the status of a
place, albeit a very simple one, in the work-force.
All of the experts agree that the earlier a severely autistic
and mentally handicapped child such as the first plaintiff has
specialised education and training the greater the likelihood
of improving the capacity and quality of life of the sufferer.
The first plaintiff has had less than three years of meaningful
education and training so far in 23 years of existence. He
has suffered grievously through the failure of the State to
meet its constitutional obligation to provide him with such
services and its negligence in that regard. The end result is
that he has lost many years which in all probability would
have been of great value to him in the improvement of his
physical and mental capacity and quality of life through

education and training. Whatever happens to him in the
future, that loss can never be fully restored because, as the
experts point out, education now is arriving too late in his life
to achieve optimum results. Progress is more difficult and
potentially more stressful for him than would have been the
case if he had been educated from an early age. At best he
has suffered through lack of educational training a
diminution in the quality of his life which has been
substantial up to now but which will also continue
significantly into the future - even if he derives major benefit
from the education and training now proposed for him. It is
probable that he will have a life-long need for on-going basic
education and training consistent with his requirements as
they emerge in the future. Regular assessment will be
important for him.
Expert evidence
Apart from the second plaintiff and her daughter, Brigid (a
trainee), the following experts gave evidence on behalf of
the first plaintiff:Ms. Elizabeth Osten, occupational psychotherapist; Dr.
Margaret Creedon, developmental psychologist; Ms. MarieLouise Hughes, education
[2001]
2 I.R.
Barr J.
566
H.C.
psychologist; Dr. Patricia Nonan Walsh, clinical psychologist;
Ms. Gillian Boyd, principal of Foyle Special School, Derry; Ms.
Jennifer Nowell, speech and language therapist; Ms. Judith
Brereton, music therapist; Professor James Hogg; Chair of
Profound Disability, Dundee University. Mr. Alan Willis,
education and psychology consultant; Mr. Albert James Reid,
educational and clinical psychologist; Professor Barry
Carpenter and Dr. Michael Shevlin.
Some, such as Professor Hogg and Professor Carpenter,
have major international reputations in the sphere of autism

and profound mental handicap. Two other international
authorities in that area, Professor Peter Mittler and Dr. Jean
Ware, were called as witnesses for the defendants. There
was no significant controversy between their testimony and
that of the other experts.
The defendants' evidence
Apart from the testimony of Professor Mittler and Dr. Ware
to which I have already referred, evidence adduced on behalf
of the defendants was in three segments. First, that of Dr. M.
J. Ledwith, psychiatrist, and Dr. Rita Honan, senior clinical
psychologist of the Eastern Region Health Authority, in
support of the contention that the first plaintiff is not autistic
but suffers primarily from a profound mental and physical
handicap with some autistic features. As already stated, the
defence hoped to persuade the court to accept that
assessment, even though it was against a formidable tide of
expert testimony to the contrary, and to accept also that the
Orchard is a suitable place for the first plaintiff's ongoing
education and care - notwithstanding the established fact
that none of the carers there have any experience of autism
whether in the nature of so called "autistic features" or
otherwise. The defence evidence failed to establish that
proposition. Dr. Ledwith ultimately conceded that the first
plaintiff is autistic and that the autistic aspects of his
condition should have been taken into account in the
provision of appropriate education for him. Dr. Honan, who
was instructed in the matter on behalf of the State in course
of the trial, deposed that through other work commitments
she did not have sufficient time to carry out a full formal
assessment of the plaintiff and she had so informed the
defence. She was unable to carry out tests which would have
been of assistance in formulating her diagnosis. She also had
no time to read the reports and assessments made by fellow
psychologists, Mr. Willis and Mr. Reid, nor to consider the
various reports received from Chicago. She had obtained
extensive professional documentation from the State but
through lack of time she read only those documents referred
to in her report. She did not see the Chicago or music
therapy videos. Dr. Honan's assessment

[2001]
2 I.R.
Barr J.
567
H.C.
was based solely upon the first plaintiff's contemporary
situation as it appeared to her at one short interview in
November, 1999, supplemented by questioning the second
plaintiff on that occasion which was also limited to her son's
contemporary situation. She did not investigate his earlier
history. It transpired in course of Dr. Honan's evidence that
there were many significant aspects of the plaintiff's
contemporary and earlier behaviour of which she was
unaware and which were relevant to a diagnosis of autism. It
seems to me that the criticisms made by other psychologists
of her assessment of the first plaintiff and her opinion based
thereon are well founded. I am satisfied that her assessment
was based on an incomplete and insufficiently informed
investigation. I reject her conclusions. I have no hesitation in
accepting the wealth of expert testimony that the first
plaintiff suffers, and has suffered almost all of his life, from
severe autism and related profound mental and physical
handicap. Even if both disabilities are not directly related,
they each require specialist education and treatment. In
practical terms it is unreal to attempt to differentiate
between them. As previously stated I am satisfied that the
Orchard is entirely unsuitable for the education and care of
the first plaintiff and ought not to have been selected by the
State for that purpose. It is of interest that the selection was
made without seeking or obtaining any expert advice as to
its suitability for the first plaintiff's education or the
formulation of any programme in that regard. It is obvious
that it was a hurried, ill conceived stop-gap solution.
The second segment of the defendant's evidence comprises
the testimony of Mr. Matthew Ryan, the Department of
Education administrator having responsibility for special
education of those with severe or profound learning

difficulties such as the plaintiff; Mr. Peadar McCann, the
senior inspector of special schools in Munster and parts of
Leinster and Connaught; Mr. Gerry Buttimer, the chief
executive officer of the Cope Foundation and Ms. Louise
Healy, the first plaintiff's teacher at the Orchard. The third
segment comprises relevant documentation, including interdepartmental memoranda and correspondence which throws
much light on the attitude of the State towards the
education of the first plaintiff and its response to
O'Donoghue v. Minister for Health [1996] 2 I.R. 20.
The following conclusions emerge from the defendants'
evidence:It is established that the primary weakness in our
administrative structure which has given rise to the plaintiffs'
claims is twofold. First, insufficient liaison between
departments of State where a particular problem involves
two or more of them (e.g. as in the first plaintiff's case where
he requires continuing education/training and also medical
type services including various therapies). The evidence of
Inspector McCann and Mr. Ryan both senior officials in the
Department of Education with long
[2001]
2 I.R.
Barr J.
568
H.C.
experience in the area of special educational needs, indicate
that there is an urgent requirement for an integrated
departmental approach to the fulfilment of the constitutional
obligations of the State to disabled sections of society such
as those like the first plaintiff who are profoundly
handicapped and to whom a life-long obligation may exist. I
understand from their evidence that they regard it as unreal
to draw demarcation lines between the obligations of
individual departments of State to such claimants. The
reality is that the constitutional obligation to provide primary
education, training and health care for the plaintiff and

others like him is that of the State per se. It seems to me, as
indicated by Messrs Ryan and McCann, that this must be
recognised and accepted particularly in cases where the
problem is obviously inter-departmental in nature. It is
encouraging to learn that a beginning has been made
recently in moving towards integration of education and
health services for the profoundly mentally handicapped.
Secondly, the administrators in the Department of Finance,
who play a major role in advising on the dispositioning of the
financial resources of the State, appear to be insufficiently
informed regarding the constitutional obligations of the State
to the weak and deprived in society to enable them to
assess realistically the degree of priority which should be
attached to each such claim and the structure of priority
which the State should devise in meeting its constitutional as
distinct from other non-constitutional obligations. It is, of
course, a fact of life that in times of economic difficulty the
State may be obliged to rein back severely on expenditure,
and many projects for which exchequer funding is sought
may have to be postponed or curtailed through lack of
resources at the particular time. In such circumstances the
need for government, and financial administrators, to
exercise a balance of constitutional justice where appropriate
in prioritising such claims is of particular importance. This
necessarily implies that the ultimate financial decisionmakers and officials who devise annual revenue/exchequor
budgets and administer State funds must have real
awareness and appreciation of the constitutional obligations
of the State to all sectors of the community and in particular
to the rights of the grievously deprived in society, including
those such as the first plaintiff who suffer profound mental
disablement. Those entitled to State aid by constitutional
right should not have to depend on numerical strength and
or political clout to achieve their just desserts. Needs should
be met as a matter of constitutional priority and savings, if
necessary, should be made elsewhere. A citizen's
constitutional right must be responded to by the State in full.
A partial response has no justification in law, even in difficult
financial circumstances which may entail the raising of new

tax revenue to meet such claims - happily a situation which
has not pertained for several years.
[2001]
2 I.R.
Barr J.
569
H.C.
The first plaintiff and those like him who are grievously
handicapped have a profound need for on-going primary
education, training and medical care and a constitutional
right to such services from the State. Yet we find (as
illustrated in the inter-departmental correspondence to
which I have referred and the evidence of Mr. Ryan and the
Mr. McCann) that the Department of Finance has persistently
dragged its feet in recognising and implementing the
obligations of the State as made abundantly clear by
I.R. 20. It seems that the reason for that unhappy state of
affairs is a lack of understanding by finance providers of the
status and implications of the constitutional obligations of
the State and in consequence an inability on their part to
prioritise in constitutional justice claims made on the
resources of the State by those having such rights which the
State has an obligation to vindicate in full and as a matter of
urgency.
The circumstances of this case also indicate that another
problem area of potential difficulty arises out of the long
established practice of the State in meeting many of its
constitutional obligations to society at large, and to the
handicapped in particular, not by direct intervention but
through the employment of others, notably charitable and
religious institutions, to provide services on its behalf. The
State is entitled to fulfil its obligations in that way and it may
elect to discharge its duties through third party
organisations. However, if it takes that course I believe that
it has an obligation to the service providers and to the
beneficiaries of such services to adopt in discharge of its

constitutional obligations a hands-on approach, as advised
by Professor Peter Mittler, to take a positive role in the
organisation, provision and supervision of services offered on
its behalf, and also to provide funds necessary to meet its
constitutional obligations where they are contracted out in
that way. Professor Mittler's observations on the practice in
New Zealand, where the structure as to the provision of such
services is similiar to that in Ireland, is of particular interest.
The sad history of the first plaintiff is an indictment of the
State and cogently illustrates that it has failed to participate
actively and meaningfully in the provision of appropriate
services for him and those like him over the years. The
history of some others referred to in this action comprise a
similar indictment of the State. It is unfair to the Cope
Foundation and other such institutions, who are trying with
great dedication to do their best for those suffering profound
mental disablement, not to give them all necessary support
in organisation and finance - including the provision of
expertise, equipment and appropriately trained personnel
necessary to provide the services which such claimants
require and the State has a constitutional duty to provide.
[2001]
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Barr J.
570
H.C.
The documentation submitted in evidence underlines the
failure of the Department of Finance to accept the judgment
of O'Hanlon J. in O'Donoghue v. Minister for Health [1996] 2
I.R. 20, that children with severe or profound mental
handicap should have the benefit of a pupil-teacher ratio of
6:1 and also two child care assistants per class. The final
paragraph of a speaking note for the Minister for Education
and Science dated the 18th September, 1997, for a meeting
with the Minister for Finance is particularly illuminating. It
reads as follows:"Given the original High Court judgment [in O'Donoghue v.

Minister for Health [1996] 2 I.R. 20], the Department of
Finance has used the impending appeal as a justification for
not conceding the pupil-teacher ratio of 6:1 and the two child
care posts per class. As indicated above this excuse is no
longer valid."
In fact there was never any validity in that excuse. In the
light of the overwhelming expert opinion in O'Donoghue v.
Minister for Health [1996] 2 I.R. 20, in support of a pupilteacher ratio of 6:1 and the finding of the Government's own
Special Education Review Committee that reported in 1993,
soon after the judgment of O'Hanlon J. and which also called
for implementation of such a pupil/teacher ratio for the
severe or profoundly mentally handicapped, it must have
been obvious to all in the Department of Finance that there
never was any hope whatever of successfully challenging in
the Supreme Court the findings of O'Hanlon J. regarding
pupil-teacher ratio and the provision of child care assistants
for the education of those with severe or profound learning
difficulties. Government approval was ultimately granted on
the 29th October, 1998, more than five years after the
judgment in O'Donoghue . In the meantime many hundreds
of children with severe or profound mental handicap,
including the first plaintiff, were deprived of education
notwithstanding their established constitutional right to that
service from the State.
It seems from the memorandum of the Secretary to the
Government to which I have referred that it had been
decided also that autistic children are to have a pupilteacher ratio of 6:1, but with only one child care assistant
per class. There is no evidence to suggest that any decision
has been made at departmental or government level even
yet about the provision of any ancillary services for sufferers
from severe autism (e.g. speech, occupational and physio
therapies and general health care) which are fundamental to
their education and training. That omission further
underlines the apparent lack of appreciation by the State of
the basic problems associated with severe autism and
related disabilities.
The documentation also confirms that there are hundreds of
claims broadly similar to that brought on behalf of the first
plaintiff which are outstanding against the State. This is an
alarming situation which points to
[2001]
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Barr J.
571
H.C.
a fundamental problem which needs to be addressed
urgently. It is the essence of a democratic society that we
live under the rule of law. It is important that the State
should be seen to lead the way in support of that
fundamental principle - particularly in the area of
constitutional obligations. It is unjust that the grievously
handicapped, such as the first plaintiff, and their families
should have to struggle painfully for years to obtain their
constitutional rights; that they should have to contend with
persistent obstruction and obduracy from officialdom as the
evidence in these actions illustrates and that in the end they
should be obliged to seek the aid of the courts as guardians
of their constitutional rights.
In making the foregoing observations, I recognise that I
should not trespass into the realm of executive or
administrative decision-making by the State in which under
the doctrine of separation of powers the court has no
function. However, the evidence herein establishes that the
difficulties encountered by the first plaintiff and his mother in
pursuing their rights against the State are symptomatic of a
widespread malaise. It seems to me that the court as the
guardian of the constitutional rights of the citizen has a duty
to criticise the response of the State to such claims. In the
instant case the grounds for criticism are overwhelming. In
my view the court would be failing in its responsibility as
guardian of such rights if it did not allude to the perceived
problem areas which appear to have collectively contributed
to the failure of the State to honour its constitutional

obligations to the plaintiffs which comprise rights into the
future as well as in the past. It is now a matter for the State
to assess the problem areas in its administrative and
decision-making structure which have brought about its
failure to honour constitutional obligations to the plaintiffs
and other similiar claimants, and to remedy the situation
thus revealed as in its wisdom it deems most appropriate.
Suffice it to add that having regard to the hundreds of similar
actions outstanding against the State and the likelihood of
many more in the future if the present situation persists, it is
obvious that such a review is imperative, not only in the
interest of those who otherwise would become future
claimants seeking constitutional redress against the State,
but also in the interest of the State exchequer to avoid or
reduce a potentially massive liability for damages and costs
in such cases.
The law
The primary judicial authority relied upon by the plaintiffs in
their respective actions is the judgment of O'Hanlon J. in the
High Court in O'Donoghue v. Minister for Health [1996] 2 I.R.
20. It is a major landmark in Irish constitutional law and
jurisprudence. Paul O'Donoghue's situation
[2001]
2 I.R.
Barr J.
572
H.C.
was broadly similar to that of the first plaintiff. He was born
in 1984. At the age of eight months he contracted an illness
which left him physically disabled and profoundly mentally
handicapped. He resided in Cork with his mother. His
disability differs from the first plaintiff's in that he is not
autistic. At the relevant time the Cope Foundation provided
residential and day-care services for disabled children. It was
the only institution in the Cork area which was equipped to
offer full-time education facilities to children with both
physical disability and profound mental handicap. When the

applicant reached school age, his mother applied on a
number of occasions to have him admitted there as a pupil.
These applications were refused on the grounds that there
were no vacancies and he was placed on a waiting list. His
mother cared for him at home and arranged private
education at her own expense. He benefited from and
enjoyed the teaching which he received.
In 1992 the applicant, then eight years old, instituted
proceedings against the respondents, seeking by way of
judicial review an order ofmandamus compelling the first and
second respondents to provide him with free primary
education. Shortly afterwards the applicant was informed
that he would be provided with a place at the Cope
Foundation in the following September where he would be
educated in a group of 12 pupils by one teacher, assisted by
care-workers.
In the High Court it was submitted on behalf of the
respondents, first, that such efforts as were made to educate
profoundly mentally handicapped children were of no real or
lasting benefit to them, and that the applicant was
effectively ineducable; secondly, that the education which
the State was obliged to provide pursuant to Article 42.4 of
the Constitution was education of a scholastic nature as
exemplified in the curriculum for national schools, which
could be of no benefit to the applicant; thirdly, that such
training as could be provided for the applicant and as might
benefit him could not be described as education or primary
education, and, fourthly, that the applicant, having been
provided with a place at the Cope Foundation, he had
achieved the central relief sought and that the instant
proceedings were accordingly moot.
It was held by O'Hanlon J.:(1) that having regard to the provisions of Article 42.4 of the
Constitution there was a constitutional obligation upon the
State to provide for free, basic, elementary education of all
children;
(2) that such education consisted in giving each child such
advice, instruction and teaching as would enable him to
make the best possible use of his inherent and potential

capabilities, physical, mental and moral, however limited
these capacities might be;
[2001]
2 I.R.
Barr J.
573
H.C.
(3) that having regard to the evidence, which was to the
effect that the applicant had made good progress and could
make further progress, the applicant was not ineducable;
(4) that the curriculum advocated for schools for profoundly
mentally handicapped children was directed towards the
promotion of the child's physical, intellectual, emotional,
social, moral and aesthetic development; that this
curriculum differed only in degree from the curriculum used
in schools for the mildly and moderately mentally
handicapped, which schools were integrated into the
national schools system; and that education for profoundly
handicapped children could, accordingly, correctly be
described as "primary education" within the meaning of that
phrase in Article 42.4 of the Constitution;
(5) that it had been established on a world-wide basis for
many years that children suffering from profound mental
handicap could benefit from formal education. Accordingly,
there was a constitutional obligation upon the State to
provide for free primary education for profoundly
handicapped children in as full and positive a manner as it
had done for other members of the community;
(6) that while the respondents had granted the applicant a
place at the Cope Foundation since the institution of the
proceedings, this place was granted to him as a concession
and could be withdrawn at any time at the discretion of the
respondents [a situation similar to that of the first plaintiff at
the Orchard];
(7) that the facilities which had been provided to the
applicant at the Cope Foundation were inadequate, having

regard, inter alia, to the pupil/teacher ratio, the hours of
instruction, the age of commencement, continuity and
duration of education, and that the said facilities, could not,
accordingly, be regarded as meeting the State's obligation to
provide the applicant with free primary education;
(8) that the applicant was entitled to an award of damages
in respect of the respondent's failure to provide him with free
primary education.
As to the requirements referred to at (7) above, O'Hanlon J.
concluded in the light of the evidence of numerous expert
witnesses on both sides that the pupil/teacher ratio should
be 6:1 and that in addition there should be two assistants
per group.
The judgment includes an extensive review and analysis of
world-wide developments in the area of education for
children who suffer from severe or profound mental
handicap. As the State now concedes the finding of O'Hanlon
J. that such persons are educable, it is unnecessary to
reiterate in
[2001]
2 I.R.
Barr J.
574
H.C.
detail his analysis in that regard. Suffice to comment that
the learned judge traced developments in that area from the
report to the Government in 1965 of a commission of inquiry
into mental handicap which recommended establishment of
a network of schools for children suffering from mild and
moderate handicap of that nature (which was duly done). He
also examined in depth the report of a subsequent
commission chaired by Mr. Sean Mac Glenoin, then Chief
Inspector of the Department of Education, (who also gave
evidence). This report was published in 1983 and is known
as the "Blue Report". The commission concluded that
children who suffer from severe or profound mental handicap
are educable in special classes by appropriately trained

teachers and that there should be a pupil teacher ratio of
12:1 in that regard.
O'Hanlon J. accepted the evidence of Professor James Hogg
and others that the severe and profoundly mentally
handicapped are and have been for many years widely
regarded as capable of education in a real sense. He
instanced developments in that field in England, Wales,
Scotland and the United States of America, in all of which
countries it had been made compulsory by law to provide
education for the severely and profoundly mentally retarded.
In bringing about the changeover from health to education in
that area, Professor Hogg had stated that considerable
international material had been available on the subject for
many years. He instanced the United Kingdom Change from
Health to Education Report (1971), the Warnock Report
(1978) and many documents and Acts of Parliaments
responding to these developments.
Mr. Jerry Buttimer, chief executive officer of Cope, gave
evidence in O'Donoghue v. Minister for Health [1996] 2 I.R.
20 that his foundation was the only place in Cork catering for
those with profound mental and physical handicap. They had
one teacher provided under the Blue Report
recommendations as of July, 1992, and at that time they
could cater for 12 pupils at most. He estimated that there
were a further 24 disabled children in the Cork area living at
home for whom they were unable to provide the necessary
service and they were on a waiting list. Cope had applied to
the Department of Education in 1991 for more teachers but
had had no response. However, in 1992, when O'Donoghue
v. Minister for Health [1996] 2 I.R. 20 was listed for hearing,
sanction was given for one additional teacher. As to back-up
staff; he expressed the opinion that at least four child care
assistants were needed i.e. two for each group of 12
children. When asked about the feasibility of imparting
education to severe and profoundly handicapped children Mr.
Buttimer stated "we would be convinced that they are
capable of being educated - I have been saying this for 20
years". (It is evident from Mr. Buttimer's evidence in
O'Donoghue v. Minister for Health [1996] 2 I.R. 20 that for

upwards of eight years the
[2001]
2 I.R.
Barr J.
575
H.C.
State had been dragging its feet in the matter of
implementing the basic recommendation in the"Blue Report"
which had been formally accepted by government. More
administrative foot dragging continued for five years after
the judgment of O'Hanlon J. and persists to this day seven
years later in relation to those, such as the first plaintiff, who
suffer from autism in addition to profound mental handicap).
Mr. Mac Glenoin gave evidence in O'Donoghue v. Minister
for Health [1996] 2 I.R. 20 that his Commission
recommended a pilot scheme that should be set up for the
education of severe or profoundly mentally handicapped
children. The pilot scheme was duly initiated in 1986. A
cadre of 19 special teachers was provided. The Department
of Education concluded in 1989 that the project was working
reasonably well. However, the scheme was not developed
and was held back not only by the Department of Finance
but also by divisions of opinion between different interests
and the need for the full co-operation and support of two
separate Departments of State - Health and Education. (That
problem too remains unresolved many years later although
evidence in this case indicates that in recent times there has
been some movement in that area).
It is also of interest that O'Hanlon J. quoted the following
prophetic observation in chapter 11, para. 141 in the report
of the Commission of Inquiry into Mental Handicap published
in 1965:"Targets in the care of the mentally handicapped are
constantly changing; what was regarded as adequate a
decade ago is not so regarded today; what is regarded as
adequate today may not be so regarded in another decade.
In these circumstances, a continuous evaluation of the

effectiveness of different forms of care and treatment is
essential."
The third Irish report considered by O'Hanlon J. was that
published in 1990 which was formulated by a review group
on mental handicap services and is called the "Lilac Report".
He quoted with approval,inter alia, one of the important
conclusions which is recorded at p. 35 of the report:"The results of a number of intensive programmes over the
past decade have shown that there is scope for considerable
improvement in the quality of life of persons with a severe or
profound intellectual disability. Such programmes require a
major input of personnel resources. Provisions for this group
of people simply by way of passive institutional care is no
longer acceptable An individual programme for each
person is essential. Intensive personalised approaches to the
needs of such people will also reduce problem behaviour
The education curricula of students of all relevant
professions should be reviewed to ensure that they are
aware of and trained to deal with intellectually disabled
persons within the community."
[2001]
2 I.R.
Barr J.
576
H.C.
Clearly the foregoing pertinent observation includes autism.
It has long been known and accepted, and it has been
established again in evidence in this case, that those who
deal with persons who suffer from severe autism require
specific training as to the nature of that form of disablement
and how it should be addressed. It seems that that need is
not yet appreciated by finance administrators in Ireland.
In the course of his conclusions the learned judge adopted
the definition of education by Dlaigh C.J. in Ryan v.
The Attorney General [1965] I.R. 294 at p. 350:-
"Education essentially is the teaching and training of a child

to make the best possible use of his inherent and potential
capacities, physical, mental and moral."
O'Hanlon J. continued at p. 62:"What the Chief Justice there stated is in harmony with the
dramatic advances which have been made since that
judgment was delivered in seeking to alleviate the lot of the
mentally handicapped through education, initially focusing
on the mild and moderate cases of mental handicap and in
more recent times including all children, however serious
their handicap in the educational system.
The whole momentum, as evidenced in the declarations
emanating from the Vatican, from the United Nations, and in
the protocol to the European Convention on Human Rights,
has been towards the provision for every individual of such
education as will enable him/her - in the words of the Chief
Justice - 'to make the best possible use of his [or her]
inherent and potential capacities, physical, mental and
moral' - however limited those capacities.
Counsel for the respondents, in closing their case, urged me
to hold that it still remained uncertain whether the efforts
put in to the education of the severely and profoundly
mentally handicapped were of any real and lasting benefit to
these children, and whether any advances made were not
lost again as soon as the stimulus of the teacher was
withdrawn.
I am led to believe, however, by the evidence of Professor
Hogg, of the applicant's mother and of the other mothers of
handicapped children who were witnesses in the case, and
by other evidence in the case, that this contention by the
respondents is not well-founded. I am supported in this
conclusion by the further evidence that for many years past
it has been compulsory to provide educational facilities for
this category of handicapped children in many countries, for
example in the United States, in England, Scotland, Wales
and Denmark, and it seems inconceivable that this
enormous commitment of resources
[2001]
2 I.R.
Barr J.
577
H.C.
would have been undertaken without convincing evidence
that it was worthwhile to do so."
O'Hanlon J. referred to Article 42 of the Constitution and
continued at pp. 65 to 67:"I conclude, having regard to what has gone before, that
there is a constitutional obligation imposed on the State by
the provisions of Article 42.4 of the Constitution to provide
for free basic elementary education of all children and that
this involves giving each child such advice, instruction and
teaching as will enable him or her to make the best possible
use of his or her inherent and potential capacities, physical,
mental and moral, however limited these capacities may be.
Or, to borrow the language of the United Nations Convention
and Resolution of the General Assembly - 'such education as
will be conductive to the child's achieving the fullest possible
social integration and individual development; such
education as will enable the child to develop his/her
capabilities and skills to the maximum and will hasten the
process of social integration and reintegration'.
This process will work differently for each child, according to
the child's own natural gifts, or lack thereof. In the case of
the child who is deaf, dumb, blind, or otherwise physically or
mentally handicapped, a completely different programme of
education has to be adopted and a completely different rate
of progress has to be taken for granted, than would be
regarded as appropriate for a child suffering from no such
handicap.
The State has hitherto responded generously to its
obligations in relation to virtually all of these categories of
handicapped children, as has been recognised in the reports
already referred to, but has clearly lagged behind many
other developed countries in what has been undertaken on
behalf of the small but most seriously handicapped group of
all - the category to which the applicant in the present
proceedings belongs. Admittedly, it is only in the last few

decades that research into the problems of the severely and
profoundly physically and mentally handicapped has lead to
positive findings that education in a formal setting involving
schools and teachers, educational equipment of many kinds,
and integration as far as possible in the conventional school
environment, can be of real benefit to children thus
handicapped. But once that has been established - and my
conclusion is that it has been established on a world-wide
basis for many years past, then it appears to me that it gives
rise to a constitutional obligation on the part of the State to
respond to such findings by providing for free primary
education for this group of children in as full and positive a
manner as it has done for all other children in the
community I therefore come to the
[2001]
2 I.R.
Barr J.
578
H.C.
conclusion that the education to which the applicant in the
present case lays claim in reliance on rights derived from the
provisions of Article 42 of the Constitution can be correctly
described as 'primary education' within the meaning of that
phrase as used in Article 42.4."
In assessing the services provided by the Cope Foundation
O'Hanlon J. commented at p. 69 that:" I am far from convinced, notwithstanding the very
noble and dedicated work which is being carried out by
those engaged in the pilot scheme at the Cope Foundation
and elsewhere, that it can be regarded as meeting the
specific obligation imposed on the State by Article 42.4 of
the Constitution which provides for free primary education in
the case of the applicant.
The evidence in the present case was sufficient to convince
me that the provision of free primary education for children
who are severely or profoundly handicapped, mentally
and/or physically, requires a much greater deployment of

resources than was thought appropriate even as recently as
1983 when the Blue Report was completed. To ask a single
teacher to undertake the primary education of 12 severely or
profoundly handicapped children, in my opinion, far exceeds
the workload deemed appropriate for a teacher in the
ordinary primary school where the pupils do not suffer from
mental or physical handicap. Mr. O'Gorman, former president
of the National Association for the Mentally Handicapped,
gave evidence that the teacher/pupil ratio in the United
Kingdom was 2:5, and in Denmark he found that 2 qualified
teachers and 1 assistant had responsibility for 7 pupils."
The learned judge also expressed the following conclusions
at pp. 69 to 70:"The evidence given in the case also gives rise to a strong
conviction that primary education for this category, if it is to
meet their special needs, requires a new approach in respect
of:(1) Age of commencement: Early intervention and
assessment being of vital importance if conditions of mental
and physical handicap are not to become intractable.
(2) Duration of primary education: As this category will, in
all probability never proceed further, and are unlikely to
proceed far up the ladder of primary education itself, the
process should, ideally, continue as long as the ability for
further development is discernible. [Emphasis added. This
seems to imply continuation into adulthood].
(3) Continuity of education: The lengthy holiday breaks
which take place in the life of the ordinary primary school
appear likely to cause serious loss of ground which may
never be recovered in the
[2001]
2 I.R.
Barr J.
579
H.C.
case of children with severe or profound handicap.
Accordingly, to deal adequately with their needs appears to

require that the teaching process should, as far as
practicable, be continuous throughout the entire year.
These factors lead me to believe that the respondents are
misled in their belief that the arrangements already made to
provide a place for the applicant at the Cope Foundation are
sufficient of themselves to satisfy any claim that may arise in
his favour under the provisions of the Constitution to have
free primary education provided for his benefit.
I am satisfied from the evidence in the case that the
respondents have failed for some years past to carry out a
duty imposed on them by the Constitution to provide for free
primary education for his benefit, and for this breach of his
constitutional right that they are liable in damages for any
loss and damage thereby caused to the applicant."
I adopt with respect the learned judge's definition of
education and his foregoing findings, including that relating
to the right of the severely or profoundly mentally
handicapped to primary education provided for by the State
under Article 42.4 of the Constitution; the pupil-teacher ratio
and care assistants ratio per group of six students.
In August, 1991, the then Minister for Education established
the Special Education Review Committee comprising a group
of 22 experts which was charged with the task of reporting
and making recommendations on the educational position
for children with special needs, including the linkage which
should exist between the Department of Education and other
Departments of State and the services provided under their
aegis. By coincidence, the report of that body was furnished
to the Minister almost coincidentally with the
pronouncement of O'Donoghue v. Minister for Health [1996]
2 I.R. 20 and it was published four months later in October,
1993.
The report contains much information of importance and
value in the assessment of the educational requirements of
those who suffer from severe or profound mental handicap.
It is stated at pp. 19 to 20:"In charting the way forward into the next century, the
Review Committee proposes the following seven principles
which should serve as basic guidelines for the future

development of the system. [There are two of these which
are of particular interest in the present case]
Principle 3.
[2001]
2 I.R.
Barr J.
580
H.C.
The parents of a child with special educational needs are
entitled and should be enabled to play an active part in the
decision-making process; their wishes should be taken into
consideration when recommendations on special educational
provisions are being made
Principle 7.
The State should provide adequate resources to ensure that
children with special educational needs can have an
education appropriate to those needs."
In a section dealing with childhood autism (pp. 140 to 142)
it is observed in the report under a heading entitled "Nature
of the Disability":"This condition is recognised as one of the most severe
mental disorders affecting children. While approaches to
diagnosing autism may differ, there is general agreement
that it is present from infancy For children with autism,
identification and intervention early during the pre-school
period is a first priority. It will be necessary to take account
of factors such as the pervasiveness and degree of severity
of the autistic symptoms and the level of intelligence and
language development when considering the question of the
most suitable school enrolment in individual cases "
It is of particular interest and significance that the Review
Committee recommended a pupil-teacher ratio of 6:1 for
pupils with autism who have been identified in accordance
with accepted criteria, with one special needs assistant for a
class of six, or two special needs assistant where the
students are also severely or profoundly mentally

handicapped. It will be observed that the foregoing
assessment is similar to that made by O'Hanlon J. in
O'Donoghue v. Minister for Health [1996] 2 I.R. 20 which,
surprisingly, was appealed by the State. Not surprisingly the
ground of appeal that children who suffer from severe or
profound mental handicap are not educable was abandoned
at the door of the Supreme Court on the 6th February, 1997,
as was opposition to the pupil-teacher and special needs
assistant ratios specified in the judgment. It is impossible to
avoid the conclusion that such grounds of appeal were
persisted in against an overwhelming tide of national and
international expert opinion without any hope of success on
the appeal but with the intention of delaying the
implementation of O'Donoghue v. Minister for Health [1996]
2 I.R. 20 for as long as possible. In the event, there was no
compliance with it until 1998 - five years after the judgment.
Even then nothing was done for those suffering from autism.
There is no doubt whatever that the judgment of O'Hanlon J.
and the Review Body report in 1993, made it absolutely clear
that the State had a constitutional duty to provide for the
primary education of those who suffer severe or profound
mental handicap and that performance of that duty was a
matter of urgency.
[2001]
2 I.R.
Barr J.
581
H.C.
Diagnosis of the first plaintiff's condition
I note that in their closing written submission counsel for the
defendants have again contended that the first plaintiff
suffers primarily from severe or profound mental handicap
with an overlay of autistic tendencies or characteristics
(whatever that may mean). I have already commented on
this persistent attempt during the trial to downgrade the
autism from which the plaintiff has patently suffered since

four months old and which has been well established by an
abundance of expert testimony and other evidence,
including video film and reports made by experts on the first
plaintiff's condition over the years, some of which have
emerged from the defendants' own discovery of documents.
I have already commented that counsel sought to make that
case for the first time during the trial when at a late stage
Dr. Rita Honan was recruited to advise the defendants.
Based on insufficient research and investigation she has
advanced the "autistic tendencies" theory since espoused by
counsel for the defendants. Her evidence has been
discredited and, as previously stated, I reject the opinions
expressed by her which are of no value in the light of the
admittedly inadequate investigation which she made. It is of
interest that two experts of high international repute,
Professor Peter Mittler and Dr. Jean Ware, who gave evidence
for the defendants, and who had been advising them before
trial, did not challenge the first plaintiff's autism and were
not invited to support Dr. Honan's theories. As previously
stated, in the light of the evidence I have no doubt whatever
that the first plaintiff suffers and has suffered since infancy
from profound mental disablement, physical disablement
and severe autism. Which of these conditions gave rise to
which, and what connection, if any, there are between them
does not seem to me to be of significance in the context of
the primary education and training which the first plaintiff
requires. The autistic symptoms which he has displayed over
the years and continues to display are obvious, numerous
and seriously disablingper se. His history makes it
abundantly clear that his autistic symptoms require a
specialist education and training by experts in that sphere.
The primary education which he needs includes features
which are irrelevant to other profoundly handicapped
students who are not autistic. He is the odd man out in his
class at the Orchard - none of whom are ambulatory or
autistic. His autism, which is a major part of his disablement,
is not being addressed there because, as Mr. Buttimer has
stated, Cope has no staff trained in dealing with autism or
facilities, such as speech therapy, which is required in the

treatment of that condition. Sadly, experience has shown
that the Orchard is not good for the first plaintiff. I accept his
mother's evidence that he is regressing there. Nothing is
being done by or on behalf of the State to put matters right
and to provide him
[2001]
2 I.R.
Barr J.
582
H.C.
with meaningful primary education having regard to his
particular needs either at the Orchard or elsewhere.
Limitations (if any) on the first plaintiff's right to primary
education
Two arguments have been advanced on behalf of the
defendants which comprise the kernel of their case. The first
deals specifically with age limitation and the other with
retrospection.
Age
It is argued that the constitutional obligation of the State
under Article 42.4 to provide primary education for those
who are severely or profoundly mentally handicapped is a
benefit which by implication applies only to children and,
therefore, ceases when the child reaches the age of 18
years. In that regard reliance was placed on the definition of
education by Dlaigh C.J. in the Supreme Court in Ryan
v. Attorney General [1965] I.R. 294 at p. 350 to which I have
already referred. That definition was recited with approval by
I.R. 20. In course of his judgment he stated that education
"constituted giving each child such advice, instruction and
teaching as would enable him to make the best possible use
of his inherent and potential capabilities, physical, mental
and moral, however limited these capacities might be".
The issues which Dlaigh C.J. in Ryan v. Attorney
General [1965] I.R. 294 at p. 350 and O'Hanlon J. in
O'Donoghue v. Minister for Health [1996] 2 I.R. 20, were

addressing did not include the question which arises in this
case as to whether the State's obligation to provide for free
primary education under Article 42.4 is subject to an agelimit or may be open-ended in particular circumstances.
Neither had occasion to turn his mind to that matter. Each
was dealing with a problem relating to all minor children in
Ryan and a minor child of eight years of age in O'Donoghue
. I do not accept that the foregoing definitions of education
import into Article 42.4 an age limitation which is not stated
in the provision itself. It is also submitted that if the court
interprets it as being open-ended in given circumstances,
that amounts to a declaration of an unspecified personal
right under Article 40.3 which on the facts is not justified. I
accept that where the court considers that a particular
personal right ought to be regarded as an unspecified
constitutional right that such a declaration
[2001]
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Barr J.
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H.C.
amounts to a far-reaching exercise of judicial authority
which if not justified would amount to an abuse of judicial
power. The making of such a declaration opens up a difficult
area of constitutional jurisprudence. Happily in this case
those potentially hazardous waters do not require to be
navigated by me. If the first plaintiff needs continuing
primary education and related services from the State
probably for life, which I am satisfied he does, it seems to
me that his right to such services derives from Article 42.4 of
the Constitution and is not a newly found and declared
previously unspecified constitutional right. The sub-article
enacts that "The State shall provide for free primary
education and when the public good requires it, provide
other educational facilities or institutions "
As already stated there is general agreement that the first
plaintiff suffers from severe or profound mental handicap

with substantial autistic symptoms and has done so since he
was about four months old. I have pointed out already that
the only area of apparent disagreement is the relationship
between his autism and his profound mental handicap. No
one contends that the first plaintiff's autism does not require
specialist education, therapy and training by experts who are
capable of dealing with that condition. He will probably
remain grievously afflicted for the rest of his life, but if given
appropriate education and ancillary services his condition
and the quality of his life can be significantly improved. The
education which he requires includes specialised instruction
to help him contend with his autistic symptoms. It also
includes the ancillary services such as speech therapy,
occupational therapy, physiotherapy, job training and
general health care which are an integral part of the primary
education package which a disabled person such as the first
plaintiff requires as a minimum meaningful education and
training. There is nothing in Article 42.4 which supports the
contention that there is an age limitation on a citizen's right
to ongoing primary education provided by or on behalf of the
State. It is evident that the right to primary education would
be fundamentally flawed if narrowly interpreted as ending at
an arbitrary age - 18 years. It has been conceded on behalf
of the Minister for Education that the first plaintiff at 23
years of age requires on-going primary education and
training and that he will probably continue to do so
indefinitely. However, it is submitted that his entitlement in
that regard is not derived from Article 42.4.but, it seems, is
an undefined "right" which is likely to be granted to him only
by way of ministerial grace and favour. If the Oireachtas
reduces the arbitrary threshold into adulthood as it has done
in the past (from 12 to 18 years) does that entail also an
arbitrary contraction of the citizen's constitutional right to
free primary education? That cannot be so. The Oireachtas
has no power to interfere with such rights - only the people
by referendum may amend the Constitution.
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The first plaintiff's history graphically underlines the
importance of ongoing education and training from early
childhood as advocated by the experts on both sides which
should continue for as long as it is required. It follows,
therefore, that in his case, and others like him, there is a
fundamental need for continuous education and training
which is not age related. In my opinion, in the absence of a
specific provision in terms, it would be wrong to imply any
age limitation on the constitutional obligation of the State to
provide for the primary education of those who suffer from
severe or profound mental handicap. In the light of the
foregoing I am satisfied that the constitutional obligation of
the State under Article 42.4 to provide and continue to
provide for primary education and related ancillary services
for the first plaintiff is open-ended and will continue as long
as such education and services are reasonably required by
him.
In the final analysis the defendants' contention that the first
plaintiff, and others who suffer from severe or profound
mental handicap, have no constitutional entitlement to
primary education and ancillary services after the age of 18
years has no reality. In my opinion the ultimate criterion in
interpreting the State's constitutional obligation to provide
for primary education of the grievously disabled is "need"
and not "age". If a child's disability is such that he/she
requires ongoing specialist primary education and training
for life, then the obligation of the State to provide for that
service will continue into adulthood for the lifetime of the
child. To cut off a crucial educational life-line because a child
has reached his or her majority and to thereby condemn the
sufferer to the risk of regression in hard earned gains which
have enhanced his/her life would amount to an appalling
loss, the effect of which might be to negative the advantages
of the constitutional right to education (if provided) enjoyed

by the sufferer for many years during infancy. The argument
advanced on behalf of the defendants in support of the
submission that I am obliged to hold that the first plaintiff's
constitutional right to ongoing education provided for him by
the State ceased when he reached arbitrary adulthood, even
though unsupported by the wording of the Article 42.4, is
fundamentally flawed for the foregoing reasons. Such an
interpretation would create an obvious constitutional
injustice.
Notwithstanding the defendants' contention that there is no
constitutional obligation to provide continuing primary
education for the first plaintiff after he reached adulthood, a
form of continuing education has been provided for him at
the Orchard in consequence of this litigation. However, it
does not meet the State's obligation under Article 42.4 and
no alternative service has been made available to him. I
have already referred to the inadequacies of the purported
form of education which he is presently receiving at the
Orchard. I note that there are plans to provide an
[2001]
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H.C.
adult educational service there for those suffering from
severe or profound mental handicap, including autism, which
may eventuate in or about two or three years time. No firm
plans are yet in being. If and when such a service does come
on stream it may meet the first plaintiff's on-going
educational and related requirements. In the meantime the
constitutional obligation of the State to provide for his
continuing primary education should be met by the provision
of sufficient funds for an alternative system of primary
education, therapy and training which is suitable to his
needs and such funding should continue, at least on an
interim basis, pending the outcome of the possible
developments at Cope.
Retrospection
Judgment in O'Donoghue v. Minister for Health [1996] 2 I.R.
20 was delivered on the 27th May, 1993. The first plaintiff
first obtained treatment for his disabilities at Chicago in
October, 1981. He reached the age of 18 years on the 11th
October, 1995, and his action commenced on the 6th
January, 1997. His mother's action commenced on the 17th
December, 1996.
It was submitted on behalf of the defendants that the first
plaintiff's claims are tortious in nature. It is alleged that
the"tort" in question did not exist until established by
O'Donoghue v. Minister for Health [1996] 2 I.R. 20 and
therefore the question of retrospection beyond the date of
that judgment cannot arise. In support of that contention the
State relied upon the judgments of the Supreme Court in
Murphy v. Attorney General [1982] I.R. 241; McDonnell v.
Ireland [1998] 1 I.R. 134, and judgments of the European
Court of Justice in Defrenne v. Sabena (Case 43/75) [1976]
E.C.R. 455 and Barber v. Guardian Royal Exchange (Case C262) [1990] E.C.R. I-1889. Murphy declared unconstitutional
certain provisions of the Income Tax Act, 1967, relating to
the taxation of married women in a manner that failed to
respect their rights under the Constitution. The effect of the
judgment was that the relevant provisions in the Statute are
deemed to be void from enactment. Nonetheless, the
Supreme Court held that other claimants who had not
commenced proceedings prior to the judgment in Murphy v.
Attorney General were not entitled to mount claims
retrospectively. Counsel for the defendants submitted that by
analogy with Murphy v. Attorney General the constitutional
right of those suffering from severe or profound mental
handicap to the provision of primary education by the State
was created by the judgment in O'Donoghue v. Minister for
Health [1996] 2 I.R. 20 and no claimant was entitled to
maintain a retrospective claim prior to the date of that
judgment. Accordingly, it was argued that the
[2001]
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Barr J.
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H.C.
first plaintiff could maintain a claim under Article 42.4 only
from the 27th May, 1993, until his eighteenth birthday in
1995. In my opinion that argument is not well founded. A
crucial distinction between the particular facts in Murphy v.
Attorney General and the circumstances of O'Donoghue is
that in Murphy v. Attorney General the Supreme Court
struck down a provision of the Income Tax Act, 1967, which
until then had a presumption of legality. In O'Donoghue
,O'Hanlon J. did not create a new right but declared that the
obligation of the State to provide for primary education
under Article 42.4 of the Constitution applies to all citizens
and that those who suffer from severe or profound mental
handicap are not excluded from the constitutional benefit of
appropriate primary education. That right has existed from
the enactment of the Constitution in 1937 and failure to
honour it has sounded in damages at least from the early
1970's when expert opinion widely accepted that those who
suffer grievous mental disablement are capable of and would
derive benefit from appropriate primary education. In short,
the first plaintiff is not availing of a new right and cause of
action which did not exist prior to O'Donoghue in 1993. The
right which he enjoys existed from the time when he was
diagnosed and treated in Chicago in October, 1981, and, it
remains ongoing into the future. His entitlement to damages
for breach of that right does not spring from the
O'Donoghue judgment, the effect of which was to underline
an existing right - not to create a new one.
McDonnell v. Ireland [1998] 1 I.R. 134 deals with the
enforcement of constitutional rights and contains the
following passage from the judgment of Keane J. (as he then
was) at p. 158:"In Meskell v. Coras Iompair ireann [1973] I.R. 121,
Walsh J. said at p. 132:'It has been said on a number of occasions in this Court, and
most notably in the decision in Byrne v. Ireland [[1972] I.R.

241] that 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 it's own right to
a remedy or for the enforcement of it.'
I think that passage is perfectly consistent with the
constitutional right being protected by a new form of action
in tort, provided, of course, the form of action thus fashioned
sufficiently protects the constitutional right in question.
Nor do I see any conflict between that view and the passage
in the judgment of Henchy J. in Hanrahan v. Merck, Sharp &
Dohme
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H.C.
(Ireland) Ltd. [1988] 1 I.L.R.M. 629 on which counsel for the
plaintiff relied. The learned judge pointed out at p. 636:'A person may of course in the absence of a common law or
statutory cause of action, sue directly for breach of a
constitutional right (see Meskell v. Coras Iompair ireann
); but when he founds his action on an existing tort he is
normally confined to the limitations of that tort. It might be
different if it could be shown that the tort in question is
basically ineffective to protect his constitutional right'."
Keane J. continued at pp. 158 and 159:"There is nothing in that passage to suggest that were a
plaintiff is obliged to have recourse to an action for breach of
a constitutional right, because the existing corpus of tort law
affords him no remedy, or an inadequate remedy, that action
cannot in turn be described as an action in tort, albeit a tort
not hereto recognised by the law, within the meaning of, and
for the purpose of, the Act of 1957.
Nor does the reference by Finlay C.J. in Conway v. Irish

National Teachers Organisation [1991] 2 I.R. 305 to
'damages in tort or for breach of a constitutional right' assist
the plaintiff. The learned Chief Justice was solely concerned
at that point in his judgment with considering the differing
headings of damages recoverable in Irish law, whether in an
action for tort in the conventional sense or in an action for
breach of a constitutional right. Whether the second
category, actions for breaches of constitutional rights, could
appropriately be grouped under the heading of 'actions in
tort' in other contexts, such as the Act of 1957, was not
under consideration in that case."
Later at p. 160 having referred to policy considerations
which underlie statutes of limitation such as the Act of 1957,
the following pithy observation was made:"I can see no reason why an actress sunbathing in her back
garden whose privacy is intruded upon by a long-range
camera should defer proceedings until her old age to
provide herself with a nest egg while a young man or woman
rendered a paraplegic by a drunken motorist must be cut off
from suing after three years. The policy considerations
identified by the learned Chief Justice are applicable to
actions such as the present as much as to actions founded
on tort in the conventional sense."
Barrington J. in McDonnell v. Ireland [1998] 1 I.R. 134 on
the topic of dual causes of action i.e. constitutional and at
common law, referred by way of example to a citizen's
constitutional right to his or her good name which also has
the protection of the law of defamation. He stated that in
[2001]
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H.C.
such circumstances the victim is obliged to avail of his
remedy in ordinary law which entails being bound by the
appropriate limitation period.
The following conclusions emerge from the judgment of the

Supreme Court in McDonnell v. Ireland :(i) Claims for damages for breach of constitutional rights as
in the present actions are analogous to a common law action
in tort and the relevant provisions of the Statute of
Limitations, 1957, apply.
(ii) In the first plaintiff's case (and that of his mother) the
duty of the State which gave rise to his claim is one deriving
solely from the Constitution and there is no corresponding
duty in ordinary law. Accordingly, it was appropriate for him
to bring a constitutional action.
(iii) Apart from the fact that he is profoundly mentally
handicapped, a condition which stops the limitation clock
from running against him, he was an infant until his
eighteenth birthday on the 11th October, 1995, and his
action commenced within three years from that date.
Accordingly, he is entitled to damages from October, 1981,
(being the time when the State ought to have provided for
his primary education) up to the present and into the future.
The second plaintiff's claim
Her claim is also based on breach by the State of
constitutional rights enjoyed by her and there is no
corresponding right in ordinary law. Defence counsels'
submission dated the 8th February, 2000, seems to concede
by inference that the second plaintiff has constitutional
rights relating to the duty of the State to provide for
appropriate primary education for her son, the first plaintiff.
The case made against her is essentially concerned with
retrospection and also a contention that her claim relates to
rights created by the judgment in O'Donoghue v. Minister for
Health delivered on the 17th May, 1993. As her action did
not commence until the 17th December, 1996, it is
contended that it is barred under s. 11(2) of the Statute of
Limitations, 1957. In my opinion the latter submission is
unfounded.
In essence the second plaintiff's constitutional rightsvis-
-vis the State may be summarised as follows:(i) She is and has been at all material times a de facto single
parent and head of the Sinnott family of which she is the
primary carer. Her position and that of the family is

specifically recognised
[2001]
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H.C.
in the Constitution. The State guarantees to protect the
family in its constitution and authority (Article 41.2). In
O'B. v. S. [1984] I.R. 316 the Supreme Court held that "the
provisions of Article 41 create not merely a State interest,
but a State obligation to protect the family".
(ii) The second plaintiff and her family (in particular her son,
the first plaintiff) are entitled to equality of treatment by the
State and ought not to be deprived without just cause of
basic advantages which the State provides for others (Article
40.1. "All citizens shall as human persons, be held equal
before the law ")
(iii) The State shall provide for free primary education - and
when the public good requires it, shall provide other
educational facilities and institutions (Article 42.4). This is a
right for the benefit of the family as a unit as well as for
individual members thereof. If the State fails in that duty the
burden of providing primary education for a child of the
family thus deprived will in the ordinary course devolve on
the parents - in the present case on the mother as de facto
sole parent.
(iv) The State has failed to honour its foregoing
constitutional obligations to the second plaintiff and her son,
the first plaintiff, the foreseeable consequence of which has
been, inter alia, that she has had imposed on her an
inordinate burden, which has dominated her life, of
endeavouring to provide for the education of her profoundly
disabled child. There is no doubt that the first plaintiff would
have been a substantial problem for her even if optimum
educational services and training had been provided for him.
However, the evidence establishes that her burden has been
greatly aggravated by the failure of the State to provide

adequately for the first plaintiff's primary education and for
that aggravation she is entitled to appropriate damages.
(v) Although the defendants' argument regarding
retrospection which I have already addressed in the context
of the first plaintiff's claim is in my opinion not well founded,
the period of damage for which the second plaintiff is
entitled to compensation differs from that of her son where
infancy and mental incapacity are relevant factors in the
context of limitation of action. Having regard to the
judgment of the Supreme Court in McDonnell v. Ireland
[1998] 1 I.R. 134, it follows that the second plaintiff's claim is
analogous to a claim for personal injury in tort and is subject
to the limitation period of
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H.C.
three years as provided in the Act of 1957 in that regard.
However, unlike a claim for personal injury arising out of, for
example, a traffic accident where the date of the
precipitating event determines the limitation period, the
wrong done to her is a continuing one which existed from
1981 and has gone on since then. Her action commenced on
the17th December, 1996. Accordingly, she is entitled to
damages for the harm done to her from the 17th December,
1993, and into the future.
The structure of the State's liability under Article 42.4 of the
Constitution
There is one other aspect of the State's obligations under
the foregoing provision which requires to be addressed. In
stipulating that the State shall provide for free primary
education, the concept envisaged included a continuance of
the structure which existed in 1937 when the Constitution
was enacted on foot of which education was provided by
non-state bodies, notably religious institutions, which were
funded in whole or in part by the State. As previously stated,

the latter does not have a constitutional obligation to provide
education directly but may rely on other appropriate bodies
to supply that service on its behalf. However, when the State
elects to take that course in so doing it does not water down
its obligation under Article 42.4. In my opinion it retains
primary responsibility for the nature and quality of the
educational service which is provided on its behalf. If that
were not so then the State could shelter behind third party
incompetence in a given case and seek to avoid
constitutional responsibility for not providing a citizen with
appropriate primary education.
Duplicity of actions
Finally, one other point has been taken by counsel on behalf
of the defendants relating to the second plaintiff's action. It
is contended that she had no justification for bringing
separate proceedings from that of her son. Such an
argument would have substance if two separate actions
were tried. However, in fact both actions were listed together
and for practical purposes I have treated them as one and
that will be reflected in due course in the matter of costs.
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Conclusions and summary of essential facts
Having reviewed all of the evidence adduced at the trial, I
am satisfied that the following conclusions which are
summarised hereunder emerge beyond reasonable
controversy in the light of the established facts:(i) In the course of his 23 years the first plaintiff has had no
more than about two years of meaningful primary education
and training provided by or on behalf of the State.
(ii) The first plaintiff was a normal child in good health up to
the age of four months who achieved the usual milestones
until then.
(iii) At or about that age there was a profound change in
him. He has been diagnosed as suffering from symptoms of
severe autism and mental and physical dysfunction. It is not
in dispute that he is and will remain severely or profoundly
mentally handicapped.
(iv) A period of partial schooling (two hours or less per day)
which had continued for about 18 months came to and end
in July, 1997, the explanation given being that by reason of
age, the first plaintiff was no longer entitled to State
education.
(v) From the 23rd September, 1998, in consequence of
pressure deriving from this litigation which was then heading
towards trial, a place was found for the plaintiff at the
Orchard, Cope, which provides for severely or profoundly
mentally handicapped people of about his own age. The
group he joined also suffered from severe physical
disablement and, unlike him, they were not ambulatory.
None were autistic. The teacher in charge is unqualified and
has no experience or training in autism and little training in
dealing with the profoundly handicapped. There was not
then and never had been a programme for the first plaintiff's
training or education. In course of the trial an individual
training course programme for the plaintiff was hurriedly
assembled for the first time. It was fundamentally flawed
and was severely criticised by all of the experts, including Dr.
Ware and Professor Mittler, the defendants' witnesses.
Counsel for the defendants, has conceded that it is
inadequate and must be replaced. Mr. Gerry Buttimer, the
chief executive officer at Cope, conceded in evidence that
his foundation has no-one available to it with experience of
autism and no facilities for the education or training of
autistic persons. The regime at the Orchard has been (in my
view rightly) criticised as being wholly unsuitable for the first
plaintiff's education
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and training. The admittedly poor programme of instruction;
the absence of essential therapies; insufficient facilities in
that regard and the lack of any personnel who are trained in
autism and its management amply bears that out.
Alternative meaningful education and training for the first
plaintiff is an urgent imperative.
(vi) The first plaintiff probably will need further education
and training for the rest of his life. In my opinion those are
not sustainable grounds for measuring his constitutional
right in that regard in terms of actual age - particularly
bearing in mind that the State has failed to honour its
constitutional obligation to him for most of his life and in
breach of duty has failed to provide such services for many
years as a result of which he has suffered significant
additional permanent harm. The first plaintiff has thereby
lost valuable time which has not only caused him
unnecessary distress, but has also significantly damaged his
prospects of fully recovering lost ground in his education and
training. All of the experts agree that early intensive
intervention with continuing education and training
thereafter is of great importance if optimum results are to be
achieved for those, such as the first plaintiff, who are
severely afflicted by autism and also physical and mental
disablement.
(vii) The State has no alternative to the Orchard presently
available to the first plaintiff. There are tentative plans afoot
at Cope and a centre for education and training of adults
suffering from severe autism and mental disablement may
eventuate there in two or three years time. Whether it will be
adequately staffed with trained personnel and will be
suitable for the first plaintiff's on-going education, including
job training which might lead to sheltered employment,
remains to be seen.
(viii) The first plaintiff has suffered substantial personal
harm and damage by reason of the breach of constitutional
duty of the State, its servants and agents, and its failure to
honour its constitutional obligation to provide him with

education, training and health care appropriate to his
particular situation. This has been aggravated by persistent
failure to honour the terms of the judgment of O'Hanlon J. in
O'Donoghue v. Minister for Health [1996] 2 I.R. 20 and also
failure to provide the plaintiff, whose afflications include
severe autism, with vital ancillary services such as speech,
occupational and physio therapies.
[2001]
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(ix) The State's breach of duty includes:- failure to provide or to have provided adequate primary
education for the first plaintiff;
- failure to provide continuity of educational and other
services for him;
- failure to provide necessary ancillary services, in particular
speech therapy; occupational therapy; physiotherapy; and
music therapy;
- failure to provide sufficient psychological and medical
assessment and treatment for the first plaintiff;
- failure to devise and operate an appropriate curriculum for
the first plaintiff's education and care;
- failure to devise, revise and keep in operation a viable
programme for the first plaintiff's education and training and
to do so in consultation with his mother;
- failure to keep adequate records of his education, training
and treatment;
- Failure to keep his mother adequately informed of her
son's progress and of intended plans for his education and
training;
- failure to collaborate with his mother in devising plans for
his education and training;
- failure to recognise and respond adequately to his needs;
- failure to give him adequate training in personal care,

hygiene and mobility;
- failure to address and provide instruction and treatment
for his on-going drooling problem which is and has been a
major difficulty for the plaintiff since infancy and a source of
continuing distress;
- failure to provide him with any occupational training which
might enable him to obtain meaningful sheltered
employment;
- failure to provide for the first plaintiff a teacher and other
ancillary experts who are trained in autism and familiar with
its problems;
- failure to establish and maintain reasonable co-ordination
between the Orchard and the second plaintiff;
- placing the first plaintiff in an institution (the Orchard)
which is unsuitable to his requirements and positively
harmful to him by creating a climate for regression;
- failure to supervise adequately the services for the first
plaintiff which the State contracted with the Cope Foundation
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H.C.
and others to provide on its behalf from time to time;
- failure to take any adequate steps to ensure that such
services were structured in a meaningful, appropriate way;
- failure to provide its contractors with the resources
necessary to meet the constitutional obligation of the State
to educate the plaintiff and to meet his special needs having
regard to his particular disabilities as a person who suffers
and has suffered from severe autism since the age of four
months and major physical and mental handicap.
(x) Harm done to the first plaintiff includes many bouts of
anguish, physical and mental damage, depression and
misery; also deprivation of the degree of happiness, wellbeing and human dignity which on the balance of
probabilities he would have enjoyed if the State had

provided him with the primary education and training which
was his right.
(xi) The second plaintiff has also suffered harm, loss and
damage by reason of the failure of the State to honour its
constitutional obligation to provide adequately for her son's
education and training, all of which was a reasonably
regard.
The relief
Both plaintiffs are entitled to the declarations which they
claim in their respective statements of claim and to damages
arising out of breach of their constitutional rights, negligence
and breach of duty by the State in that regard. In the first
plaintiff's case further damages may be awarded on review
of his situation in April, 2003. The mandatory injunction
claimed in each action shall be considered by the court as
part of the foregoing review, but, if necessary, the plaintiffs
shall have liberty to make earlier application in that regard.
Damages
(a) The first plaintiff
Special damages have been agreed as part of his mother's
claim.
As to the cost of future education and training; I have
already stated that I accept the unanimous opinion of the
experts on both sides that the first plaintiff is educable and is
entitled to continuing education and training for so long as
may be reasonably necessary in his particular
circumstances. The expert assessment is that he will
probably require such
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Barr J.
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H.C.
services for life and I note that that point has been
conceded by Mr. Ryan. The plaintiff's rights in that regard are
not limited by age. Expert opinion also indicates that it is

probably too late now for the first plaintiff to achieve
optimum results from education and training. The consensus
view is that, none the less, substantial progress is likely if he
receives the benefit of appropriate teaching and services. In
the interest of justice it is proper that he now should have
the best available primary education and training so that he
may have the maximum prospect of making up lost ground
and thus limiting the degree of permanent damage which he
has suffered through the defendants' breach of duty. I have
been much impressed by the evidence of Mr. Alan Willis
about the Applied Behaviour Analysis home-based
programme for sufferers from autism which is presently
being successfully pioneered in England. I note that it has a
methodology broadly similar to that of C.A.B.A.S. and the
Disfunctioning Child Centre at the Michael Reese Hospital,
Chicago. It comprises an intensive "one-to-one" education
programme at home supported by a multi-disciplinary team
comprising speech, physio, occupational and music
therapists together with general medical care. Mr. Willis
advises that the course should continue for two to three
years followed by a review of progress. If necessary the
experts required for providing the programme may be
recruited in England or elsewhere. The estimated annual cost
is about 21,000 sterling. Allowing for the present currency
differential the equivalent annual cost in Irish currency is
approximately IR 28,000per annum. Bearing in mind that
there appears to be some tentative plans for providing a
centre at Cope, for continuing education of autistic adults
which might prove suitable for the first plaintiff, it seems to
me that an equitable way of dealing with his future
education and training is to have provided by the State a
fund for a two and a half year Applied Behaviour Analysis
programme as envisaged by Mr. Willis. Towards the end of
that period the first plaintiff should be assessed and,inter
alia, due regard should be had to the possibility that a place
may be available to him at a centre for autistic adults in
Cope if one exists at that time and it offers a suitable ongoing programme of education and therapy run by a
sufficient number of appropriately trained and qualified

experts. In short, it may transpire then that the State is in a
position to offer the first plaintiff acceptable on-going
education and training at the proposed new centre in Cope
or, in the absence of such a facility, it may be necessary for
him to embark on a further Applied Behaviour Analysis
programme or some similar alternative regime. In the latter
event, of course, it also would be necessary for this court to
award further damages to cover the cost of any additional
programme which may be required. It occurs to me that
during the Applied Behaviour Analysis"one to one"
programme the first plaintiff may make sufficient progress to
[2001]
2 I.R.
Barr J.
596
H.C.
enable him to attend from time to time a FAS training
workshop leading to meaningful sheltered employment. I
envisage that such work instruction would be in tandem with
the Applied Behaviour Analysis programme.
There is another element of potential further loss which the
first plaintiff may suffer i.e. earnings from sheltered
employment if it transpires that through protracted delay in
his education he is unable to learn sufficient skills now to
open up that possibility. On reflection, it seems to me that
such a potential loss is too speculative to establish its
likelihood on the balance of probabilities.
Taking all the foregoing factors into account I assess
damages in the first plaintiff's case as follows:estimated cost of the Applied Behaviour Analysis
programme of education for two and a half years at IR
28,000 per annum (subject to review on completion)
70,000
ancillary services for a like period (speech, physio,

occupational and music therapists and medical care).
Estimated annual cost
37,500
general damages for additional suffering, distress and loss
of enjoyment of life from October, 1981, to date
90,000
ongoing distress in the future through gross delay in
providing education and training, and permanent additional
damage suffered by the Plaintiff on that account
25,000
Total:
222,500
As the first plaintiff is of unsound mind, application should
be made at an early date to the President of the High Court
to bring the plaintiff into wardship and to administer the
damages awarded to him.
(b) The second plaintiff
The breach of duty of the State in failing to honour its
constitutional obligations to the first plaintiff and to her has
given rise to a corresponding loss suffered by his mother and
primary carer which also will have some ongoing effect into
the future. She has had the anguish of seeing substantial
progress made by the first plaintiff frittered away through
the failure of the State over and over again to respond
meaningfully to his needs. She has seen time, a vital
commodity for the first plaintiff, squandered by bureaucracy.
It appears that she has worn herself quite literally to the
bone struggling
[2001]
2 I.R.
Barr J.
597
H.C.
on behalf of her son. Her heroic efforts to have education
and care provided for him have dominated her life to a
degree far greater than in all probability would have been
the case if the State had honoured its obligations to the first
plaintiff and to her. She has been subjected many times over
the years to the lack of understanding of an apparently
disinterested bureaucracy. She has had to contend with the
distress and indignity of having to deal with various
problems of a child, now a man, which, if the State had
provided appropriate services when required, probably would
have been resolved many years ago - not least of these are
his present lack of mobility, persistent frequent drooling and
the continuing need for diapers at the age of 23 years. I
have no doubt that all of these elements of avoidable
anguish in the second plaintiff's life are consequences of the
State's breach of duty in failing to honour its constitutional
obligations to the first plaintiff and to her. She has responded
to that failure with indefatigable love, courage and devotion
but at great personal cost. In that regard she is following in
the footsteps of Mrs. Marie O'Donoghue and Mrs. Annie Ryan
who gave evidence at this trial and many other heroic
parents of grievously disabled children who have had to
contend with similar difficulties. The State's breach of duty
and failure to honour its constitutional obligations has also
created distress which for the reason explained in the first
plaintiff's case will continue indefinitely, albeit to a lesser
degree, even if his future education is reasonably successful.
As to damages; I note that special damages (which include
the first plaintiff's case also) have been agreed at 15,000.
It is difficult to assess compensation for a devoted mother's
overlay of distress and anguish in a case like this and for the
burden of unnecessary work inflicted on her over the years
both as a carer and in her struggle trying to achieve the first
plaintiff's rights from a reluctant beaucracy. If, like him, the

second plaintiff was entitled to compensation from October,
1981, I would have awarded her general damages of
80,000 from then until now. However, as she is entitled to
compensation only for the wrong done to her from the 17th
December, 1993, there must be a substantial reduction in
that amount. She is entitled to a modest sum for probable
continuing distress in the future arising out of the loss of
time which militates against the first plaintiff making the
degree of progress which he probably would have made if he
had received from the State early primary education and
training. That situation casts at least a minor cloud over the
second plaintiff's future (including on-going avoidable work)
which ought not to be there and for which in my opinion she
is also entitled to compensation.
I assess damages for her as follows:[2001]
2 I.R.
Barr J.
598
H.C.
agreed special damages
general damages from 17th December, 1993, to date
general damages in the future
15,000
30,000
10,000
Total:
55,000
Postscript
The conscious, deliberate failure of Department of Finance
administrators to pay due regard to and take effective steps
to honour the obligations of the State to the first plaintiff on

foot of O'Donoghue v. Minister for Health [1996] 2 I.R. 20
opens up an issue as to whether punitive damages should be
awarded against the defendants. As that point was not
argued, I do not propose to pursue it in this judgment.
However, it is proper to lay down a marker that the issue of
punitive damages will arise if it transpires in future litigation
that this warning is not heeded and decision-makers persist
in failing to meet the constitutional obligations of the State
to the grievously afflicted and deprived in our society with
the urgency which is their right.
[Reporter's note: On the 30th October, 2000, the High Court
(Barr J.) granted a mandatory injunction that the first
defendant provide for free education for the first plaintiff, to
be reviewed in 2003].
By notices of appeal dated the 8th and 12th December,
2000, the defendants appealed the judgment and orders of
the High Court. The appeal came on for hearing before the
Supreme Court (Keane C.J., Denham, Murphy, Murray,
Hardiman, Geoghegan and Fennelly JJ.) on the 27th, 28th
and 29th March and the 3rd April, 2001.
Eoghan Fitzsimons S.C. (with himJames O'Reilly S.C.
andJohn L. O'Donnell ) for the defendants: The trial judge's
findings of fact were not in dispute and for the purposes of
the appeal, the State's constitutional obligation to provide
primary education under Article 42.4. of the Constitution
applied to those persons under 18 years of age but not to
adults. Regardless of special needs, the constitutional
obligation ceased once a child reached the age of majority
and the trial judge erred in holding that the constitutional
obligation was an open-ended one that continued for as
[2001]
2 I.R.
Barr J.
599
S.C.
long as education and special services referable to the first

plaintiff's special needs were required.
To extend the obligation beyond the age of 18 years would
permit any adult to claim a right to receive a primary
education at any time in his life. Reliance is placed upon the
references to "child " and"children" in Article 42.1, Article
42.3.1, Article 42.3.2 and Article 42.5 which, it is submitted,
are consistent only with a child having the status of a minor
or person under full age and not adults. The trial judge erred
in applying the natural law, Christian and democratic nature
of the State doctrine as a means to interpret"primary
education" in Article 42.5. of the Constitution and a historical
approach, as adopted in Crowley v. Ireland ,was the
appropriate means of interpretation. The trial judge should
have adopted the approach taken by Laffoy J. in O'Shiel v.
Minister for Education and examined Article 42 in its
entirety. The decision in O'Shiel v. Minister for Education
was not considered in Director of Public Prosecutions v. Best .
The State wanted to provide for persons such as the first
plaintiff but not on a constitutional basis, and the Education
Act, 1998, made provision for persons in the first plaintiff's
position.
The first plaintiff's case relied upon Article 42.4 of the
Constitution whereas the order made by the trial judge relied
upon Articles 40.1, 40.3.1 and 42.3.2 and the defendants'
appeal was predicated on the basis that the findings of fact
pertained to Article 42.4 of the Constitution and it was
submitted that the references to Articles 40.1, 40.3.1 and
42.3.2 did not form part of the ratio decidendi of the trial
judge's decision.
The trial judge breached the separation of powers principle
(as propounded in Buckley and Others (Sinn Fin) v.
Attorney General and restated in Riordan v. An Taoiseach )
in making mandatory orders against the State. The High
Court's jurisdiction did not extend to directing ministers of
government or State authorities or agencies on what was
required to give effect to an interpretation of the
Constitution. The separation of powers (Articles 6, 15, 17, 28
and 34 of the Constitution) required that any such decision
fell to the executive and the legislature within their

respective spheres of government. The primacy of Dil
ireann in the raising of public revenues, and of the
Oireachtas in enacting the Annual Appropriations Act, were
relevant considerations. It was not claimed that the courts
could never consider granting injunctive relief but, having
regard to the fact that the State generally complied with
declarations made by the courts and that the present case
was different from that in O'Donoghue v. Minister for Health
and was the first of its kind before the courts, the restraint
exercised by the courts as a matter of practice, in relation to
the granting of mandatory orders against the State, ought to
continue. If the Supreme Court were to affirm the decision of
the trial judge the appropriate
[2001]
2 I.R.
Barr J.
600
S.C.
relief would be to award damages for breach of the
constitutional right to primary education and a declaration of
his ongoing constitutional right to primary education. In
considering the appropriate remedy, the trial judge should
have taken all the factors into account, resisted making a
mandatory order in explicit terms and allowed the State to
attend to the implementation of the declaration and to
prescribe the appropriate remedies as a matter of policy
( Boland v. An Taoiseach ; Buckley and Others (Sinn Fin)
v. Attorney General ; Byrne v. Ireland ; MacMathna v.
Ireland ; McKenna v. An Taoiseach (No. 2) ; O'Reilly v.
Limerick Corporation ; Riordan v. An Taoiseach and
McMenamin v. Ireland relied upon).
The order made by the trial judge, in terms of granting a
mandatory injunction requiring that the first defendant
provide for free education for the first plaintiff and awarding
damages, and ordering a review in 2003, in reality,
contemplated a dual award of damages for the same cause
of action and, if a further order for damages was made in the

future, it should only be made in the context of fresh
proceedings.
The reference to negligence in the order made by the trial
judge was included without the trial judge ever having made
any finding of negligence or considered the elements of the
tort.
The Supreme Court had not yet propounded principles in
relation to the award of damages for breach of constitutional
rights. Article 42.4 of the Constitution accorded the State a
wide discretion in the implementation of policies providing
for free primary education and, in terms of the principles
used by the European Court of Justice to determine whether
a national government had manifestly disregarded the limits
to its discretion, Article 42.4 did not state clearly and
unambiguously the interpretation that was subsequently
afforded to it in O'Donoghue v. Minister for Health .
Because of the absence of case law to guide the State prior
to the decision in O'Donoghue v. Minister for Health , made
on the 23rd May, 1993, the defendants should not be liable
for any alleged damages sustained prior to that date and,
furthermore, liability should only extend to the date upon
which the first plaintiff reached his majority, the 11th
October, 1995.
The Irish courts could have regard to the approach taken by
the Community courts, in relation to State responsibility for
breach of directly applicable provisions of Community law,
when establishing the principles on the basis of which
damages should be awarded. This included the principles
that: a declaration by the European Court of Justice that an
item of Community legislation is void as contravening the
European Union Treaty did not grant an automatic
entitlement to damages; damages could only be considered
where there was a sufficiently serious breach of a superior
rule of law for the protection of the individual; and the
Community did not incur liability for one of its institutions in
the absence of the
[2001]
2 I.R.
Barr J.
601
S.C.
institution concerned manifestly and gravely disregarding
the limits on the exercise of its power.
A temporal limitation on damages for breach of
constitutional rights applied to such claims where the first
plaintiff relied on a cause of action that was only recently
declared by the superior courts. Where the first plaintiff
sought declaratory constitutional relief and damages in a
cause of action that was only pronounced by the superior
courts on the 23rd May, 1993, and the first plaintiff had not
instituted legal proceedings prior to this date, the courts
were entitled to consider any such claim on the facts relied
upon and proved after this date and restrict any claim for
damages to those facts and not for damages allegedly
suffered prior to this date. Furthermore, it was submitted
that the claim for damages only extended to the date on
which the first plaintiff attained the age of majority, the 11th
October, 1995.
The trial judge's observations with regard to punitive
damages in a postscript to his judgment were not addressed
at any point during the hearing.
Notwithstanding the second plaintiff's reliance on Article 41
of the Constitution, her claim was essentially a mirror claim
of the relief sought in the first plaintiff's case in terms of
Article 42.4 of the Constitution. The relevant provisions of
Article 41 did not create a remedy in damages and the
second plaintiff's cause of action in reliance upon that article
should be dismissed.
Any claim in reliance on Article 40.1 of the Constitution was
properly addressed in the first plaintiff's proceedings and this
provision did not extend to granting the declaratory and
other mandatory relief claimed by the second plaintiff.
The second plaintiff's reliance on Articles 42.1 and 42.2 of
the Constitution did not advance the substance of her claim
which was focussed on the meaning of Article 42.4 of the
Constitution and any duty under Article 42.4 was owed to

the first plaintiff in the context of primary education and
Article 42.4, which formed the substance of the second
plaintiff's claim, was not relevant to her.
If the second plaintiff's claim was based on an assertion that
the relationship between her and the first plaintiff was not as
rewarding as it should have been, this did not fit within a
cause of action based only on Article 42.4 of the Constitution
and there was no constitutional principle equivalent to
statutory claims forsolatium.
The trial judge applied the Statute of Limitations, 1957, to
the second plaintiff's claim notwithstanding the fact that the
defendants did not plead it in their defence and if the court
were to find that the defendants breached
[2001]
2 I.R.
Barr J.
602
S.C.
the second plaintiff's constitutional rights, she should be
compensated for the breach.
There were no grounds to justify the trial judge replicating
the relief granted to the first plaintiff to the second plaintiff.
The trial judge erred in finding that the defendants'
submissions conceded by inference that the second plaintiff
had constitutional rights relating to the duty of the State to
provide for appropriate primary education for the first
plaintiff. Having determined the first plaintiff's case, it was
unnecessary for the trial judge to separately consider a
parallel and virtually identical claim by the second plaintiff.
The second plaintiff had no collateral rights and no cause of
action automatically arose as a consequence of her being
adversely affected as a result of a breach of the first
plaintiff's constitutional rights. A separate cause of action
might, however, arise if the breach of a child's constitutional
rights was the proximate cause of his/her parent suffering
damage, for example an actual psychiatric illness in terms of
Mullally v. Bus ireann .

The second plaintiff had no claim against the defendants for
fulfilling the constitutional duty owed by her to the first
plaintiff under Articles 42.1. and 42.5. of the Constitution.
A grant of declaratory relief was not automatic and the High
Court was required to cautiously exercise its jurisdiction to
grant constitutional relief and this was not an appropriate
case in which to grant such relief.
Dermot Gleeson S.C. andPaul Sreenan S.C. (with
themMichael Gleeson S.C. andPearse Michael Sreenan ) for
the plaintiffs: We recognise that what might be referred to as
"mainstream" primary education normally finished at about
the age of 12 years. By conceding that pupils with certain
disabilities were entitled to education to the age of 18 years,
the defendants admitted that primary education in certain
circumstances had to be seen as need rather than age
related. If the defendants conceded an extra 6 years primary
education for persons such as the first plaintiff, why should
the arbitrary age of 18 be imposed if the needs continued
beyond that age? The defendants' submissions were
inconsistent in this regard. The first plaintiff relied upon
Article 42.3.2, Article 42.4 and Article 42.5, together with the
rights of the child springing from that article, namely; the
right to benefit from the intervention of the State so as to
receive a certain minimum education; to receive what was
the State's duty to provide; and the right to have the State
intervene and endeavour to supply the place of the parents
in exceptional cases. ( Crowley v. Ireland ; Comerford v.
Minister for Education ; F.N. (a minor) v. Minister for
Education ; In re the Adoption (No. 2)
[2001]
2 I.R.
Barr J.
603
S.C.
Bill, 1987 ; M.F. v. Superintendent Ballymun Garda Station
and O'Donoghue v. Minister for Health relied upon).

The reference to "child" in Article 42.5. referred to the child
of one's own parents or offspring, as opposed to a minor,
and that the guarantees of minimum education in Article 42
extended to all persons including, in the case of severely or
profoundly handicapped persons, persons who had passed
the age of 18 years. The Irish translation of Article 42
supported this interpretation of "child" in its reference to
"leanbh" or "leana" and "clann" and that the obligation and
direct promise therein was one with which the organs of
state were bound to comply.
As a general principle, it is accepted that it would not
generally be expected that a court would make mandatory
orders against the State. However, the court had a power
and duty to inquire into the degree and quality of primary
education being provided to the first plaintiff, to make
findings as to the adequacy and suitability of such education,
and to make findings as to how the State's constitutional
obligation under Article 42 should be discharged. This was
particularly the case since the High Court had found as a fact
that the first plaintiff was capable of benefiting from
education; the first plaintiff had only received two years of
primary education in his 23 years; and the defendants were
deficient in their implementation of O'Donoghue v. Minister
for Health . The education to which the first plaintiff claimed
entitlement constituted "primary education" within the
meaning of Article 42.4 and it was appropriate to adopt the
analysis and reasoning of O'Hanlon J. on this point in
O'Donoghue v. Minister for Health which accorded with the
concept of "education" in the Constitution as established by
the Supreme Court in Ryan v. Attorney General .
In circumstances where no free primary education had been
furnished for a considerable length of time, the onus was on
the State to rebut the prima facie evidence that the State
was not performing its duty to provide for that education.
The evidence at trial had established that the education
facilities which had been provided to date were grossly
inadequate and unsuited to the first plaintiff's needs and it
was abundantly clear that what was provided, or could be
provided, by the first plaintiff's family and by voluntary

organisations could not succeed in providing what was
required. In these circumstances, the State had and
continued to have a duty to act directly and provide such
education, in accordance with the principles recognised in
Crowley v. Ireland . Contrary to the very first principle of
arranging for educational needs, the Minister had no
standard in relation to qualifications for persons educating
autistic children or severely and profoundly handicapped
persons and, in accordance with the principle adopted by
O'Hanlon J. in O'Donoghue v. Minister for Health and
adopted
[2001]
2 I.R.
Barr J.
604
S.C.
by the trial judge in this case, the State's obligation to
provide suitable primary education for such persons was a
continuing obligation which survived for so long as there was
a clearly discernible ability on the part of the person for
further educational development.
The State had failed to intervene notwithstanding that it had
been expressly placed on notice of the first plaintiff's
difficulties and those of the second plaintiff in meeting her
son's educational needs. Therefore, the State did not
adequately "endeavour" as guardian of the common good
and as the guarantor of the first plaintiff's natural and
imprescriptible rights (in this context as the "child" of his
parents and not just, formerly, as a minor) to supply the
place of his parents in meeting those needs ( The State
(Quinn) v. Ryan ). In particular, the detailed technical and
personal evidence at trial supported the entire catalogue of
findings of failures on the part of the State to intervene.
These failures constituted a particular breach of the State's
positive obligation to intervene under Article 42.5 of the
Constitution to ensure, insofar as may be possible, that the
plaintiff received "a minimum standard of elementary

education of general application". ( A.G. (S.P.U.C.) v. Open
Door Counselling Ltd. ; Boland v. An Taoiseach ; Breathnach
v. Ireland ; Byrne v. Ireland ; Comerford v. Minister for
Education ; Crotty v. An Taoiseach ; Hanley v. Minister for
Defence ; McDonnell v. Ireland ; McKenna v. An Taoiseach
(No. 2) ; Riordan v. An Taoiseach ; The State (Healy) v.
Donoghue ; McMenamin v. Ireland relied upon).
While the courts had recognised that there might be a quite
exceptional need of a child, for which the State could not be
expected under the Constitution to provide, this was not
such an exceptional case.
The State had a particular obligation arising out of each of
the provisions of Article 42 and from the corresponding
educational rights of severely or profoundly handicapped
persons including the plaintiff, to assess the educational
needs and meet those needs and it was clear, from the
judgment of the trial judge, that the State had failed to carry
out this duty of assessment at perhaps the most critical
point in the first plaintiff's early life and had failed in its
continuing duty to assess his educational development and
needs over the years with a view to vindicating his
constitutional rights to a minimum education adapted to his
special needs. To withdraw educational facilities from autistic
persons after the age of majority would constitute an
abdication of an express constitutional duty and the State
was asking the court to allow it to benefit from the
dereliction of its constitutional obligations to provide free
primary education under Article 42.
The separation of powers between the three branches of
government was not pure and its most important feature in
the Constitution was the
[2001]
2 I.R.
Barr J.
605
S.C.
strong role given to the judiciary as guardian of the personal

rights recognised therein. The trial judge recognised that he
should not trespass into the realm of executive or
administrative decision-making by the State and that it was
a matter for the State to assess the problem areas in its
administrative and decision-making structure and to remedy
the situation as in its wisdom it deemed most appropriate. In
circumstances where the right was one which the executive
did not have the competence to grant or withhold, but which
was one provided for in the Constitution, the court would be
failing to respect the Constitution in failing to vindicate that
right in circumstances where the findings of fact established
such a breach. In these circumstances, the High Court had
ample powers to made such orders as were required to
vindicate the plaintiff's rights and it acted within the
boundaries of such powers in making the orders that it did.
The State had always been subject to the enforcement of the
law through the courts and this was never regarded as a
violation of the separation of powers. When the jurisdiction
of the High Court was invoked to protect the constitutional
rights of the citizen, the High Court had power to issue such
orders as might be necessary in order to ensure the proper
vindication of those rights and the orders which might be
granted were entirely discretionary for the High Court having
regard to the facts of the case. The High Court did not give
instructions to the Government and the Oireachtas on how
they should apportion and determine priorities but
interpreted the ambit of constitutional rights, found
infringement of those rights as a matter of fact, found that
that infringement was continuing, awarded damages and
gave the necessary ancillary orders. All of the court orders
were made in relation only to the first plaintiff. The facts of
the case manifested persistent breaches by the State of its
duty to the first plaintiff and, in those exceptional
circumstances, the court was justified in making the orders.
Executive powers of the State referred to those powers
which are characteristic of states as distinct from those
which may be performed by individuals, commercial entities
or charities. Many of the modern functions of the executive
arm of government, such as the provision of roads, airports,

railways, social welfare schemes, transport, hospitals, etc.
had nothing to do with "the executive power of the State".
The provision of a system of education fell into the same
category of modern administrative state functions which was
not properly regarded as "the executive power of the State"
and accordingly, not subject to the doctrine of the separation
of powers.
The defendants' assertion that the trial judge required the
raising of additional tax revenue and failed to respect the
pre-eminent position of Dil ireann was an unfair
characterisation of the trial judge's judgment and was
contradictory because the Dil's position was not preeminent
[2001]
2 I.R.
Barr J.
606
S.C.
under Article 17.2 of the Constitution because it could not
act without a request from the Government.
The cost of complying with a court order necessary to
vindicate constitutional rights was not a relevant factor for
the court's consideration. The absence of a funding
allocation was not a bar to relief and the provision of funding
could be compelled by an order ofmandamus.
The entitlement to general damages was well recognised in
Irish law. The trial judge did not err in granting damages for
negligence and breach of duty because negligence was
pleaded in the plenary summons and statement of claim, it
was extensively referred to in the written and oral
submissions and evidence was given of negligence. The
contention that the trial judge failed to consider any
temporal limitation on an entitlement to damages was not
pleaded by the defendants, no witness was asked by counsel
for the defendants to distinguish between damage caused to
the plaintiff either prior or subsequent to 1993 and the
defendants did not put the first plaintiff on notice of the

issue in advance of raising it for the first time in their closing
written submissions.
The defendants' submissions were misconceived insofar as
they claimed that O'Donoghue v. Minister for Health
comprised the first declaration of the profoundly mentally
handicapped child's constitutional entitlement to primary
education; O'Donoghue v. Minister for Health could not be
given retrospective effect and enable the plaintiff to claim
damages for breach of constitutional duty prior to the 27th
May, 1993; and if O'Donoghue v. Minister for Health was
applied, damages should be restricted to the special
damages claimed and agreed at 15,000.00. The special
damages of 15,000.00 in the case of the second plaintiff
included matters arising prior to the 27th May, 1993, and it
was inconsistent for the defendants to agree to pay such
special damages and dispute their obligation to pay general
damages for loss and damage suffered prior to that date.
It was conceded that punitive damages were not claimed
nor awarded and there was no appeal against the failure to
award such damages.
The parent of an ablebodied child ought not to have to
spend their time fighting for the provision of education for
that child. Where a non-disabled child was capable of
benefiting from education, a school placement was made
available in the immediate vicinity of the family home which
provided an education appropriate to the child's needs and,
if the child failed to attend, the child's interests were looked
after and the parent might be prosecuted. The State owed a
duty to the second plaintiff to treat her, as a human person,
the same as other parents. However, as a parent of a
disabled child, she was discriminated against, in breach of
Article 40 of the Constitution, and no appeal was brought
against the High Court's finding of discrimination in this
regard.
[2001]
2 I.R.
Barr J.
607
S.C.
The inalienable right and duty of parents to educate their
children under Article 42.1 of the Constitution was retained
even where the parents chose to avail of the State's
obligation to provide free primary education under Article
42.4 of the Constitution ( O'Shiel v. Minister for Education ).
The second plaintiff had a right to be assisted by the State in
discharging the inalienable duty she owed to the first
plaintiff pursuant to Article 42.1 and she suffered by reason
of the State's failure in this regard.
Eoghan Fitzsimons S.C. in reply: If the first plaintiff's
contention was accepted, namely that the duty to educate
him could not be realistically performed without continuing it
beyond his majority, this would turn the Constitution on its
head. The court should ignore the facts of the case in
considering the ambit of the constitutional duty to educate.
The Constitution does not meet or respond to all social needs
and cannot be construed by reference to need at all times.
The inconsistency between the State's concession that the
first plaintiff was entitled to free education to the age of 18
years and the fact that it would be reasonable to construe
"primary education" as continuing to the age of
approximately 12 years was acknowledged.
The State, in an attempt to cater for the needs of persons in
a position such as that of the first plaintiff, sought to extend
the meaning of "primary education" to 18 years. The
plaintiffs in contending that "child" ought to be interpreted
as "offspring" sought to avoid the real meaning of "child". If
the right in Article 42.4 was to be construed as continuing for
life, then there was no reason why the parental duty in
Article 42.1 should be interpreted any differently.
There were no reasons in the trial judge's judgment to
justify the making of mandatory orders against the State.
There were no factual findings that the State did not intend
to comply with any declaration made by the trial judge and
the court should assume that the State would comply with
any order so made.

The trial judge's award of damages should be for a breach of
constitutional rights up to the commencement of the
proceedings, that any relief granted in the proceedings could
only pertain to the situation prior to such commencement,
and that the award of damages made into the future was to
remedy continuing breaches of constitutional rights. As such,
the education with which the first plaintiff would be provided
in the future would remedy any perceived continued breach
of constitutional right. This was so even though there was no
finding in the judgment that the State would not provide
education to the first plaintiff in the future. In the event of
there
[2001]
2 I.R.
Keane C.J.
608
S.C.
being a breach of the first plaintiff's constitutional right in
the future, the first plaintiff would have a new cause of
action.
Cur. adv. vult.
Keane C.J.
12th July, 2001
Introduction
The facts in these two cases are not at this stage in dispute
and, for the purpose of this judgment, I would propose to
adopt the comprehensive statement of them by Barr J. in the
judgment under appeal. It is unnecessary to do more than
summarise them and set out the inferences which the
learned trial judge drew from the primary facts and which,
again, are not at this stage in dispute.
The first plaintiff was born on the 11th October, 1977, and
was, at the date of the trial in the High Court, nearly 23
years of age. He was the third of nine children born to the
second plaintiff and her husband. The second plaintiff has
been separated from her husband for a number of years and
the primary responsibility for the care and upbringing of the
first plaintiff has been hers.
At about the age of four months, having developed normally
until then, the first plaintiff began to display symptoms of
the condition known as autism. While this appears to have
happened shortly after he had received the vaccinations
usual for a baby at his stage, there is no finding, and nor was
it necessary that there should be, that the autistic condition
was caused or contributed to by the vaccination he received.
The second plaintiff is an American citizen and her father,
Dr. John Kelly, is a surgeon who has a house in County Cork
where she and her children originally lived. He became
concerned about the first plaintiff's condition and Dr.
Quigley, the family's general practitioner, was consulted. He
referred him to the paediatric unit in St. Finbarr's Hospital in
June, 1978, where he was assessed by Professor Barry. At
that stage, he had lost control of his jaw which had started to
clamp and he has never since regained full jaw control. As a
result, he tended to drool saliva, a condition obviously
distressing both to him and those in contact with him, from
which he continued to suffer at the date of the High Court
hearing. Pressed by Dr. Kelly as to why the child was not
reaching his normal milestones, Professor Barry said that he
would not discount autism. He advised that he be taken
home and that they should watch the autism develop. The
second
[2001]
2 I.R.
Keane C.J.
609
S.C.
plaintiff and her father were not directed to any other
service where treatment might be given, nor was any

arrangement made with them for a further assessment by
the hospital.
There followed a depressing saga extending over 20 years
in which the second plaintiff's efforts to persuade the State's
health and education authorities to recognise autism and
provide appropriate education and training for those
suffering by it were met with what the trial judge described
at p. 10 as "official indifference and persistent
procrastination which continued up to and through this trial."
The second plaintiff's unremitting battle to secure proper
treatment and educational facilities for her son eventually
became a campaign on behalf of autistic children generally:
her commitment to that cause cannot be praised too highly.
It must be pointed out that the ignorance of the problems of
autism in official circles was in stark contrast to the well
known and documented international progress in the area
since the 1960s and earlier. The problem was compounded
in this case by misleading professional advice which set back
the education and training of the first plaintiff for years.
At an early stage, he was brought to Chicago where the
second plaintiff's father practised as a surgeon and where he
was diagnosed as suffering from a psycho-motor problem,
the effect of which was that the brain was not sending
messages to his muscles and limbs. The second plaintiff was
advised by the Chicago specialist that intensive intervention
was required in the form of occupation therapy,
physiotherapy and speech and language training. This
treatment was made available to him at the Michael Reese
Hospital, Chicago, the director of which was Dr. Naomi
Abraham. There he had regular sessions with Mrs. Elizabeth
Osten, an occupational psychotherapist, who gave evidence
in the High Court, and with other therapists. The treatment
brought about substantial improvements in the first
plaintiff's behaviour, including the virtual elimination of the
repetitive movements which are a feature of the autistic
condition. An important part of the training at the centre
involved the second plaintiff and the elder siblings: family
collaboration and participation in the education and care of
the first plaintiff was regarded as being of special

importance.
Unfortunately, these encouraging developments ceased
when the second plaintiff returned to Ireland with the first
plaintiff and her other children at Christmas, 1978. Although
she was provided with a programme, notes and records from
the institutions in Chicago, she failed to make any progress
with Professor Barry and received no co-operation from the
other organisations in Cork. During this time, the first
plaintiff regressed to the condition he had been in before he
went to Chicago.
[2001]
2 I.R.
Keane C.J.
610
S.C.
At this stage, the second plaintiff consulted Dr. Patrick
Murray, a psychiatrist with the Southern Health Board who
worked with the Brothers of Charity Institution at Lota which
dealt with mentally disabled children. Dr. Murray, who has
since died, appears to have been unhappily misinformed as
to the cause of autism in children. He espoused a theory
advanced in the United States in the 1950s and 60s by Dr.
Bruno Bethelheim that autism in children was the result of
cold, unloving mothers. This was, it would seem, a wholly
discredited theory, but Dr. Murray was not aware of this and
advised the second plaintiff that the child should be isolated
from his known environment and admitted to hospital for six
weeks for the purpose of assessment. The second plaintiff
was appalled by this suggestion and contacted Dr. Abraham
who agreed that the proposal was "crazy". She contacted Dr.
Murray, but the only compromise which he was prepared to
make was that she might visit him at the weekend or
perhaps even take him home, "if things were going all right".
However, in November, 1979, the second plaintiff
succeeded in having the first plaintiff assessed at "Cork
Polio", the forerunner of the Cope Foundation which featured

prominently in this case, by Dr. Irene Leahy, a psychologist
and Dr. McCarthy. They were interested in the treatment
given in Chicago and recommended that he needed services
for five days a week. However, all he was given in fact was a
"baby-sitting service" by nurses who were not teachers or
therapists and were also disciples of Dr. Murray's discredited
theories on autism. Although they were kind and loving, it
was clearly not a suitable form of treatment for the child
and, since he was regressing substantially, the second
plaintiff brought him back to the centre in Chicago, where he
attended as before for five months until April, 1981. Some
progress was made under the direction of Dr. Abraham and
under the care of Mrs. Osten and Dr. Margaret Creedon, a
developmental psychologist, who also gave evidence at the
trial. A teaching video was provided to the second plaintiff
for the benefit of people who would deliver the services and
treatment that the first plaintiff needed in Ireland, but
although this was offered to the staff at the Cope
Foundation, to Dr. Murray and other possible providers of
services, no one was interested. All that resulted was further
baby-sitting services from September, 1981, until October,
1982. From then until 1985, Cork Polio provided a babysitting facility one and later two afternoons a week for him.
From 1985 until October, 1988, the first plaintiff attended
Cork Polio five days per week: this was simply a baby-sitting
service with no element of formal education.
In October, 1998, when the first plaintiff was 11 years old,
he participated in a course of education for the first time.
This was conducted by Mrs. Naomi Smith, a physiotherapist
in Cork Polio, who had studied in Hungary and had set up an
education unit designed chiefly for physically
[2001]
2 I.R.
Keane C.J.
611
S.C.
handicapped people. The first plaintiff made some progress

at this course, including in the area of feeding himself and
toileting, but, unfortunately, at the end of the trial period, it
was decided at Cope not to proceed with the project. The
second plaintiff's difficulties were increased at this stage by
the fact that there was no place available for him at Cope.
However, from March, 1989, to January, 1991, the second
plaintiff conducted her own education programme with the
first plaintiff, based on Mrs. Smith's model, which was
reasonably successful, but suffered from the disadvantage
that the child was not in contact with any other children.
Matters improved somewhat when a place became available
at the Our Lady of Good Counsel school at Lota which caters
for profoundly mentally handicapped children. The first
plaintiff joined in January, 1991, when he was 131/2 years
old, but it suffered from the disadvantage that the terms
followed the same pattern as in primary schools and the long
summer break caused much distress to the child. Toilet
training remained a problem, because the toilets were cold
and far removed from the classroom. The first plaintiff was
still wearing a nappy at this stage and continued to do so at
the time of the hearing in the High Court at the age of 23
years.
He remained at this school for about two and a half years
until June, 1993, when he was nearly 16 years old. There
was, however, another unfortunate development when the
optimum size for classes of children suffering from severe or
profound mental handicapped - generally acknowledged to
be six - was ignored. The teacher, Mrs. Yvonne O'Malley had
to cope with a class of 23 seriously disabled pupils and found
it impossible to do so. Ultimately, Mrs. O'Malley confined
herself to a class of 12 children, but without any help from
other teachers: the volunteers who had assisted her
previously were informed by the Brothers of Charity that
their services were no longer required. Eventually a second
teacher was appointed for the remaining 11 younger pupils:
the first plaintiff was allocated to the latter group but later
was transferred to Ms. O'Malley's class. He was bullied and
subsequently assaulted and seriously injured by one of the
other pupils, requiring treatment in hospital. He was then

transferred back to the group for the younger children,
which, in terms of age, was not appropriate for him.
From June, 1995, no further education was available at this
centre and it became a health facility only. The withdrawal of
teachers also meant the withdrawal of transport to and from
the school which had previously been provided by the
Department of Education. Even before that development, the
first plaintiff had been receiving only one 45 minute teaching
session per day. Toilet training was not possible and there
were no facilities for resting, although it is known that
disabled children tend to get tired more
[2001]
2 I.R.
Keane C.J.
612
S.C.
easily than other children. The point was taken up with the
staff but she was told that, if the child was tired, he should
not go to school.
As a result of these defects in the centre, the first plaintiff
lost much of his ability to walk and had on occasions to be
provided with a wheelchair. He was also developing epileptic
fits more frequently.
The next development of importance was the setting up of a
special class for the first plaintiff and another child in a
similar position at St. Paul's School, Cope. Here educational
facilities were provided by a qualified teacher, Ms. Miriam
Kingston, who had specialised training in dealing with
children with severe or profound mental handicap and who
had some knowledge of autism. The trial judge commented
at p. 561 that:"There followed a short golden period in the education of
the first plaintiff which restored much lost ground and a
variety of new talents were developed. It illustrates
graphically what would have been achieved if he had
received similar education from his early years."
The first plaintiff was now 18 years of age and the

Department of Education was asked to extend his education
for another year. As a result, it would seem, of the judgment
of the High Court in O'Donoghue v. Minister for Health
[1996] 2 I.R. 20, the school year at St. Paul's had been
lengthened and the summer holiday was now only one
month. Unfortunately when the first plaintiff returned in
September, Ms. Kingston had left and this led to some
further disruption.
In September, 1997, the first plaintiff's period at St. Paul's
came to an end: the school was not prepared to educate him
any longer. This obviously created considerable difficulties
for the second plaintiff, since he needed further training in
such basic areas as toilet training to make up for the long
periods when he had received no education of any sort.
Eventually the second plaintiff was told that it was intended
to move him to the Orchard, another institution at Cope,
where he would be in a class of six severely or profoundly
mentally handicapped young adults of about his own age.
The second plaintiff had serious reservations about the
proposed move, having regard to the lack of qualifications of
the teacher. None of the other young people in the class
were ambulatory, they were not autistic and they did not
have the range of problems which he had.
There was evidence at the trial of another school in Cork
which followed what was called the C.A.B.A.S. system. This is
an acronym for"comprehensive applied behavioural analysis
system": it has a "one to one" teaching service and auxiliary
staff for 12 autistic three to five year children and is run by
an American professor and his assistant. (The second
plaintiff's daughter was a trainee teacher there at the time of
the High Court hearing.) This was a pilot project, intended to
run for three years, and was having substantial success,
particularly in the area of toilet training.
[2001]
2 I.R.
Keane C.J.
613
S.C.
The second plaintiff sought to persuade the Orchard to
adopt a similar system, but without success, leading to the
first plaintiff reverting to wearing nappies at school.
The trial judge summed up the first plaintiff's experience as
follows at p. 562:"No programme was devised for the first plaintiff's
education and training until half way through the trial when
a grossly defective one was cobbled together in haste which
was roundly condemned by the experts - even those called
on behalf of the defence. It demonstrated a fundamental
lack of understanding of autism and its problems. Professor
James Hogg, a world renowned authority on autism, stated in
evidence that if one of his staff had produced the Orchard
programme he would have been genuinely dismayed. He
went on to specify a series of fundamental flaws which it
contained. Professor Peter Mittler, also a major world
authority on autism, who was called on behalf of the
defence, was critical of the programme and the best he was
able to say of it was that it might be a beginning on which a
proper programme could be built "
The trial judge continued at p. 564:"Although at best the likelihood is that the first plaintiff
always would have suffered from serious mental and
physical incapacity arising out of his autism and related
disabilities, even if he had received appropriate on-going
education and training at an early age similar to that which
he had in Chicago and which the C.A.B.A.S. organisation is
pioneering in Cork, the expert evidence indicates a
probability that his physical and mental capacity and his
enjoyment of life would have improved substantially from an
early age. It is reasonable to assume that, in particular, he
would have been fully toilet trained from early childhood; his
persistent drooling would have been cured or at least greatly
improved long ago; he would have been substantially more
mobile and would have developed greater dexterity with his
hands. There are positive indications that his mental
capacity probably would have improved and, through
professional speech therapy, he may have developed in time

a rudimentary capacity with language - though the latter
development appears to be no more than a possibility. Early
signs indicated a probability that he could have been
successfully trained for sheltered employment similar to that
of the towel-folding youngster employed in a gymnasium
which was referred to by Dr. Walsh in the course of her
evidence
All of the experts agree that the earlier a severely autistic
and mentally handicapped child such as the first plaintiff has
specialised education and training; the greater the likelihood
of improving the
[2001]
2 I.R.
Keane C.J.
614
S.C.
capacity and quality of life of the sufferer. The first plaintiff
has had less than three years of meaningful education and
training so far in 23 years of existence Whatever
happens to him in the future, that loss can never be fully
restored because, as the experts point out, education now is
arriving too late in his life to achieve optimum results.
Progress is more difficult and potentially more stressful for
him than would have been the case if he had been educated
from an early age. At best he has suffered through lack of
educational training a diminution in the quality of his life
which has been substantial up to now but which will also
continue significantly into the future - even if he derives
major benefit from the education and training now proposed
for him. It is probable that he will have a life-long need for
on-going basic education and training consistent with his
requirements as they emerge in the future. Regular
assessment will be important for him."
The trial judge found that the primary weaknesses in the
administrative structures of the State which gave rise to the
claims of the plaintiffs were twofold. First, there was a lack of
liaison between the two relevant departments of state education and health - where a particular problem involved
both of them. Thus, in the first plaintiff's case, he required
both continuing education and training and also services
properly classified as medical, including various therapies.
The evidence established that it was accepted by senior
officials at the time of the trial that it was unreal to draw
demarcation lines between the obligations of individual
departments of State to the claimant. He commented at p.
568 that:"The reality is that the constitutional obligations to provide
primary education, training and health care for the plaintiff
and others like him is that of the State per se."
The second feature of the administrative structures which
gave rise to the weaknesses resulting in the institution of the
proceedings was the role of the Department of Finance. The
trial judge said it appeared to him that its officials were
insufficiently informed as to the constitutional obligations of
the State to the weak and deprived in society. Having
observed that it was a fact of life that in times of economic
difficulty the State might be obliged severely to curtail
expenditure and other projects for which exchequer funding
is sought, he said that the need for government, and
financial administrators, to exercise what he described as "a
balance of constitutional justice" in determining the priorities
of competing claims was of particular importance. He
concluded, at p. 569, that:"A citizen's constitutional right must be responded to by the
State in full. A partial response has no justification in law,
even in difficult financial circumstances which may entail the
raising of new tax revenue
[2001]
2 I.R.
Keane C.J.
615
S.C.
to meet such claims - happily a situation which has not
pertained for several years."

He summed up his findings by saying that the sad history of
the first plaintiff cogently illustrated that the State had failed
to participate actively and meaningfully in the provision of
appropriate services for him and those like him over the
years. He cited, at p. 570, in particular a "speaking note" for
the Minister for Education and Science dated the 18th
September, 1997, for a meeting with the Minister for Finance
which said:"Given the original High Court judgment [in O'Donoghue v.
Minister for Health [1996] 2 I.R. 20], the Department of
Finance has used the impending appeal as a justification for
not conceding the pupil-teacher ratio of 6:1 and the two child
care posts per class. As indicated above this excuse is no
longer valid."
The trial judge pointed out that government approval for
these changes was not granted until the 29th October, 1998,
i.e. more than five years after the judgment in O'Donoghue
v. Minister for Health [1996] 2 I.R. 20. His uncontroverted
conclusion was that, in the meantime, many hundreds of
children with severe or profound mental handicap including
the first plaintiff, had been deprived of education, not
withstanding their established constitutional right to the
provision of such education by the State.
Finally, it should be noted that, since the institution of these
proceedings the Education Act, 1998, came into force. The
Act of 1998, which constituted the first statutory regulation
of education in Ireland since the foundation of the State,
contains special provisions dealing with the education of
mentally handicapped persons which will be referred to at a
later point.
The proceedings
The first plaintiff claims that, as a result of the facts already
summarised, the first defendant had failed to provide for free
education for the first plaintiff, had discriminated against
him in the provision of free education facilities, had failed to
vindicate his right to education and, in particular, his right to
receive a certain minimum education, moral, intellectual and
social, and had failed to supplement or give any reasonable
aid to private educational initiatives for the provision of

educational facilities for the first plaintiff. It was further
claimed that the first defendant discriminated against the
first plaintiff by failing to provide free transport for
substantial periods of time to the limited facilities that had
been made available to the first plaintiff. A declaration was
claimed that, in the result,
[2001]
2 I.R.
Keane C.J.
616
S.C.
the first plaintiff had been deprived of his constitutional
rights pursuant to Article 40 and 42 of the Constitution and
in particular Articles 40.1, 40.3.1 and 2, 42.3.2 and 42.4.
Damages were claimed for breach of the first plaintiff's
constitutional rights, negligence and breach of duty. A
mandatory injunction was also claimed directing the first
defendant to provide for free education for the first plaintiff
benefiting from it. Special damages were also claimed in
respect of the various treatments, etc. for which the second
plaintiff had paid.
In their defence, the defendants said that the first
defendant had provided for the free primary education of the
first plaintiff for specified periods. It was denied that they
had deprived the first plaintiff of any of his constitutional
rights pursuant to Articles 40 and 42 of the Constitution.
In the second proceedings, the second plaintiff claims that,
as a result of the facts already summarised, the defendants
had failed to respect, defend and vindicate the second
plaintiff's constitutional rights as the mother of the first
plaintiff by failing to provide any education appropriate to
him, imposing inordinate burdens on her, and discriminating
against the first plaintiff in the provision of free primary
educational facilities and in failing to provide free transport
for substantial periods of time. She claimed a declaration
that these actions had deprived her of constitutional rights

pursuant to Articles 40.1, 40.3.1 and 2, 41.2.1 and 2 and
42.1 to 4 and a mandatory injunction similar to that claimed
in the first proceedings. She also claimed special damages in
respect of treatment etc. provided by her.
In their defence, the defendants again plead that the
Minister had provided for the free primary education of the
first plaintiff for specified periods and denied that they had
deprived the second plaintiff of any of her constitutional
rights pursuant to the Articles referred to.
The action was at hearing for 29 days in the High Court. In
his reserved judgment, having set out the facts as already
summarised, the trial judge cited with approval the
conclusions of O'Hanlon J. in O'Donoghue v. Minister for
Health [1996] 2 I.R. 20 and, in particular, his conclusion that
in such cases, the process of primary education should
continue "as long as the ability for further development is
discernible". He concluded that, in the light of the facts, the
first plaintiff was in need of continuous education which was
not "age related". He said, at p. 41, that:" I am satisfied that the constitutional obligation under
Article 42.4 to provide and continue to provide for primary
education and related ancillary services for the first plaintiff
is open-ended and will continue as long as such education
and services are reasonably required by him."
[2001]
2 I.R.
Keane C.J.
617
S.C.
Having rejected claims that both actions were barred under
the Statute of Limitations, 1957, he held that both plaintiffs
were entitled to the declarations which they claimed in their
respective statements of claim and to damages arising out of
the breach of their constitutional rights.
As to the damages to which the first plaintiff was entitled,
the trial judge said at p. 595 that:"In the interest of justice it is proper that he now should
have the best available primary education and training so
that he may have the maximum prospect of making up lost
ground and thus limiting the degree of permanent damage
which he has suffered through the defendants' breach of
duty."
The trial judge said that the ongoing education and training
would be best provided in the form of a scheme called
Applied Behaviour Analysis, a home based programme for
sufferers from autism which was being pioneered
successfully in England. The estimated annual cost of this
programme was approximately 28,000. He said that,
towards the end of the period, the first plaintiff should be
assessed and due regard had to the possibility that a place
might be available to him at a centre for autistic adults in
Cope if one existed at the time. If a suitable facility did not
exist, it might be necessary for him to embark on a further
Applied Behaviour Analysis programme or a similar
alternative regime. In the latter event, he said that it would
be necessary for the court to award "further damages to
cover the cost of any additional programme which may be
required."
He accordingly awarded damages as follows:Estimated cost of the Applied Behaviour Analysis
programme for education for two and a half years at
28,000 per annum:
Ancillary services for a like period at 15,000per annum:
General damages for additional suffering, distress and loss
of enjoyment of life from October, 1981, to
date:
Ongoing distress in the future resulting from the delay in
providing education and training,etc.:
Total:
70,000
37,500
90,000
25,000
222,500
The trial judge also found that there had been a breach of
the second plaintiff's constitutional rights and that, in
addition to agreed special damages of 15,000, she was
entitled to the sum of 40,000 general damages.
[2001]
2 I.R.
Keane C.J.
618
S.C.
As to the claim for a mandatory injunction in both actions,
the trial judge said at p. 594:"The mandatory injunction claimed in each action shall be
considered by the court as part of the foregoing review, but,
if necessary, the plaintiffs shall have liberty to make earlier
application in that regard."
The order in the first proceedings provided in para. (1) that
the first plaintiff should recover from the defendants the sum
of 222,500 damages computed as already indicated. It
then went on to order:"(2) that the first defendant do forthwith provide for free
primary education for the first plaintiff appropriate to his
needs for as long as he is capable of benefiting from same;
(3) that an application be made forthwith to have the first
plaintiff taken into wardship;
(4) (i) that the first plaintiff be provided with the necessary
funding for the Applied Behavioural Analysis home based
programme for sufferers from autism for two and a half
years estimated at 28,000 per annum subject to review on
completion,
(ii) that the first plaintiff be provided with the necessary
funding for home based ancillary services, speech,
physiotherapy, occupational and music therapies and
medical care estimated at 15,000 per annum subject to

review on completion;
(5) that the mandatory injunction and damages granted
herein be reviewed in April, 2003, and that a claim for
further damages over and above the damages awarded by
the court to date be adjourned to this review with liberty to
the first plaintiff to re-enter or to apply in the interim in that
regard."
Two features of the order should be noted. There was an
element of duplication in respect of the relief granted at
para. (4)(i) and (ii): the relevant sums are included in the
total of 222,500 damages ordered to be paid in para. (1).
It is also not clear that the trial judge envisaged the granting
of an immediate mandatory injunction as set out in para. (2):
he appears to have taken the view that it might arise on the
review which was to be carried out in April, 2003.
It should be noted that the defendants did not contend in
the High Court that the admitted constitutional right of the
first plaintiff to free primary education ended at the age
when primary education would normally cease: it was
accepted that, having regard to his special needs, it did not
cease until he reached the age of 18. His claim, however,
and that of the second plaintiff to damages and other relief
were resisted on the ground that (i) there had been no
breach of his right to free primary education up to the age of
18 and (ii) he was not entitled to free primary education
beyond the age of 18.
[2001]
2 I.R.
Keane C.J.
619
S.C.
The appeal
In both proceedings, the defendants filed notices of appeal
in which they, in effect, appealed against the entire of the
judgment and orders in both cases. However, in a letter
dated the 23rd November, 2000, it was indicated to the

solicitors for the plaintiffs in both cases that, not only was no
appeal being brought from that portion of the orders of the
High Court which awarded the plaintiffs the costs of the
proceedings, but that the defendants would also meet the
plaintiffs' costs of appearing as respondents to the proposed
appeals to this court on a party and party basis, the costs to
be taxed in default of agreement. It was stated that their
decision to meet the plaintiffs' costs of the appeal was
without prejudice to their clients' entitlement to appeal.
In a further letter of the 8th March, 2001, which followed
earlier correspondence between the solicitors for the
plaintiffs and the Chief State Solicitor, the latter stated:"Further to the [sic] your letter of today's date, the
Minister's press release of this evening and our
conversations of this evening, we confirm that the Minister
intends to discharge the award of damages made by Barr J.
in his judgment."
The plaintiffs then brought a notice of motion in each of the
proceedings to this court seeking directions as to
"The scope of the issues (if any) which remained to be
determined by this honourable court, in the light of
communications by, or on behalf of, the
defendants/appellants."
On the hearing of that motion, counsel for the defendants
informed the court that, for the purposes of the appeal, it
was conceded on behalf of his clients that the constitutional
right of the first plaintiff to free primary education up to the
age of 18 had been violated by them and that no appeal was
being pursued in relation to the sums awarded to him by
way of general and special damages amounting to
222,500. The appeal would, accordingly, in that case be
confined to so much of the judgment and order as found the
first plaintiff entitled to free primary education appropriate to
his needs from the age of 18 onwards for as long as he was
capable of benefiting from such education and to the reliefs
by way of mandatory injunction and otherwise granted to the
first plaintiff in respect of those findings at para. 2 of the
order of the High Court. In the case of the second
proceedings, counsel informed the court that the appeal of

the defendants was being pursued in respect of the entire of
the judgment and order of the High Court in favour of the
second plaintiff, other than the award of special damages of
15,000 and the order for costs.
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S.C.
Submissions of the parties
Counsel for the defendants said that it was accepted that no
issue arose as to the facts in this case. Nor were the
defendants seeking to set aside the award of damages to the
first plaintiff. The defendants were, however, concerned with
those aspects of the judgment and order of the High Court
which proceeded on the basis that the first plaintiff, and
other persons in a like situation, were entitled as a matter of
constitutional right to free primary education without any
limitation as to age. While he acknowledged that the posture
now being adopted by the defendants was open to criticism
on the ground that it was not consistent with their admission
that the defendant was entitled to an award of damages in
respect of the period up to the hearing in the High Court,
during which the first plaintiff reached the age of 22 years,
he said that the defendants' contention was that, even in the
case of persons with special needs such as the first plaintiff,
the constitutional right to free primary education ceased
when they reached the age of majority at 18 and were no
longer children. That did not mean that thereafter no
facilities appropriate to his special needs would be available
to the first plaintiff: on the contrary, such facilities would be
provided to him for so long as they were required by him in
the light of his special needs. They would be so available,
however, he said, not as a matter of constitutional right, but
in the appropriate exercise by the Minister of the powers and
functions conferred on him by the Act of 1998 in respect of

persons with disabilities or other special educational needs.
Counsel for the defendants submitted that the finding in the
High Court that the guarantee of free primary education
contained in Article 42 of the Constitution extended to adults
in certain circumstances was in conflict with the language of
the Article which, in both the Irish and English texts, made it
clear that children, and not adults, were to be the recipients
of the free primary education thereby guaranteed. It was
also inconsistent with the interpretation of Article 42.4
adopted by this court in Crowley v. Ireland [1980] I.R. 102
and with the decision of the High Court in O'Shiel v. Minister
for Education [1999] 2 I.R. 321. Counsel for the defendants
further submitted that the approach adopted in the High
Court was based on an unwarranted extension of what had
been said as to the right to free primary education of
persons with disability in O'Donoghue v. Minister for Health
[1996] 2 I.R. 20.
Counsel for the defendants submitted that the form of relief
granted by the High Court Judge, other than the award of
damages in respect of the breach of his constitutional rights
up to the time of the hearing in the High Court, was in
violation of the doctrine of the separation of powers enjoined
by the Constitution. The court was, in effect, usurping the
exclusive roles
[2001]
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621
S.C.
of the Oireachtas and the executive in giving directions to
those organs of State as to how monies should be expended
in order to meet any special educational needs of the first
plaintiff. It was, he said, undertaking a function which had
required elaborate legislative provisions in the United
Kingdom, such as the Education Act, 1993, and the
Education Act, 1996, and which the court had neither the
legal authority nor the necessary resources to discharge.

Counsel for the defendants further submitted that the court,
in reserving to itself the right to award further damages to
the first plaintiff at the "review date" in April, 2003, was
proceeding on the assumption that the defendants would fail
to comply with the order in para. (2): the provision for the
assessment of damages at that point in time was a form of in
terrorem remedy. He said that this assumption was without
any justification in law and that the course adopted was
unprecedented and contrary to principle.
As to the claim made on behalf of the second plaintiff in the
second proceedings, counsel for the defendants submitted
that the proceedings disclosed no cause of action known to
the law. The claim pursued on behalf of the second plaintiff
was a purely derivative one arising from the admitted breach
of the constitutional right of the first plaintiff to free primary
education. No such right of the second plaintiff had been
infringed by the defendants. Counsel for the defendants said
that, in those circumstances, the second plaintiff had been
driven to relying on the provisions of Article 41 affording
protection to the family as an institution. The fact that the
constitutional right of a member of a family had been
infringed entitled that member to appropriate relief to
remedy that wrong, but there was no justification for
affording a similar remedy to other members of the same
family whose rights had not been infringed in any way. He
cited in support the decision of the High Court in P.H. v. John
Murphy & Sons Ltd. [1987] I.R. 621.
Counsel for the plaintiffs submitted that the guarantee of
free primary education contained in Article 42 should be
construed in the light of its unique character as the only
provision expressly requiring the State to spend money on a
specific social objective. There was no such provision, they
said, in respect of what would nowadays be regarded as
such essential features of the State's obligations as the
health services and social welfare benefits. They submitted
that, while the most obvious beneficiaries of a free primary
education are children who have not reached the age at
which secondary education normally began, there was
nothing in the wording of Article 42 which would justify the

withholding of free primary education from a person such as
the first plaintiff who, because of his special needs, would
continue to require it long after that age. It was indeed
conceded on
[2001]
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Keane C.J.
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S.C.
behalf of the defendants that he was entitled to it as a
matter of constitutional right at least until the age of 18, at
which stage he would have clearly passed the age level at
which primary education normally ceased and secondary
education began. They submitted that the constitutional
guarantee of free primary education was not subject to an
implied restriction that it would be unavailable to persons
who, because of their disability, would require a longer
period of primary education than more fortunately endowed
children. The finding of the High Court Judge that need, and
not a rigid determination related to age, should be the
criterion for determining whether a person was
constitutionally entitled to free primary education was
correct and should be upheld: it was also in accord with the
views expressed by O'Hanlon J. in O'Donoghue v. Minister
for Health [1996] 2 I.R. 20.
Counsel for the plaintiffs submitted that, so far as the nature
of the order in the first proceedings was concerned, the trial
judge was not merely entitled, but bound, to fashion a
remedy which would deal effectively with the wrongs
inflicted on the first plaintiff by the defendants. Since this
was a case, they urged, in which the High Court Judge had
found as a fact that the first plaintiff had less than three
years of meaningful education and training during the first
23 years of his life, a finding which was not disputed on this
appeal, it followed that he also had to provide a remedy
which would ensure that, within the resources available to
the law, that situation was remedied in the future. That did
not involve any violation of the doctrine of the separation of
powers, since each of the organs of State was obliged to
protect and vindicate the constitutional rights of the first
plaintiff and the courts could not abdicate their
responsibilities in that regard where there had been so single
a failure on the part of the executive to perform their duty.
While it was true that the implementation of distributive
justice was a matter for the Oireachtas and the executive,
this was not an instance of such justice: this was properly
regarded as a case of commutative justice, which required
the framing of such a remedy. They said that the High Court
was perfectly entitled, in the light of the history of the case,
to proceed on the assumption that the defendants would
again fail in their duty to uphold the constitutional rights of
the first plaintiff in the absence of continuing supervision by
the High Court.
As to the claim of the second plaintiff, counsel submitted
that Article 42 of the Constitution acknowledged her primary
role as a parent in the education of her children and her right
to chose the form of education which she considered most
suitable for them, provided it attained the minimum level
required by the Article. In the case of the first plaintiff her
parental right of choice had been infringed by the failure of
the defendants to make freely available to her, as they were
required to do, a form of
[2001]
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S.C.
primary education suitable to his special needs. The High
Court Judge had found, and again this was not disputed for
the purposes of the appeal, that the State's failure in this
regard had placed a huge and unacceptable burden on the
second plaintiff and, as in the case of any other violation of a
constitutional right, she was entitled to the appropriate
remedy, which in this case was the award of general

damages made in the High Court.
The applicable law
Article 42.4 of the Constitution provides that:"The State shall provide for free primary education and shall
endeavour to supplement and give reasonable aid to private
and corporate educational initiative, and, when the public
good requires it, provide other educational facilities or
institutions with due regard, however, for the rights of
parents, especially in the matter of religious and moral
formation."
The corresponding provision in the Constitution of the Irish
Free State was much shorter and simply provided that:"All citizens of the Irish Free State (Saorstt ireann )
have the right to free elementary education."
Article 42.4 was considered by this court in Crowley v.
Ireland [1980] I.R. 102. In the course of their judgments,
O'Higgins C.J. and Kenny J. laid emphasis on the use of the
expression "provide for" rather than "provide". They pointed
out that this carefully chosen language reflected the
historical background to the Article: it was clearly envisaged
that education, in the main, would not be provided in State
schools, but in schools owned and managed by religious
denominations, the necessary finances being provided by
the State. As already noted, in the case of children, such as
the first plaintiff, suffering from severe mental handicap,
such facilities as were available have, for the most part,
been provided in institutions run by religious orders. No issue
arises between the parties, however, in this context: it is
acknowledged that the extent of the State's obligation to
provide for free primary education, which is at issue, is the
same, whether the State provides that education itself
directly, or indirectly by ensuring that the necessary finances
are available to private bodies engaged in its provision.
The extent of the State's obligations was considered by
O'Hanlon J. in O'Donoghue v. Minister for Health [1996] 2 I.R.
20. The plaintiff in that case had, at the age of eight months,
contracted an illness which left him physically disabled and
profoundly mentally handicapped. He also lived in Cork and,
when he reached school age, his mother applied on a

number of occasions to the Cope Foundation to have him
admitted as a pupil. She was
[2001]
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S.C.
informed, however, that there were no vacancies and the
applicant was placed on a waiting list. His mother cared for
him at home and arranged for him to be educated privately
at her own expense. Following the institution of proceedings
by him seeking an order ofmandamus compelling the
Minister for Health and the Minister for Education to provide
him with free primary education, he was told that he would
be provided with a place at the Cope Foundation at the
beginning of the following school year, that he would be
given day care facilities until that time and would be
provided with free transport to and from the foundation, so
far as was required.
The proceedings came on for hearing in the High Court
when the applicant was aged eight. It was contended on
behalf of the respondents that efforts that were made to
educate profoundly mentally handicapped children, such as
the applicant, were of no real or lasting benefit to them and
that he was effectively ineducable. They also claimed that
the education referred to in Article 42.4 was "of a scholastic
nature" which could be of no benefit to the applicant and
that such training as could be provided for the applicant and
might benefit him was not "primary education" within the
meaning of the Article. They also urged that the applicant,
having been provided with a place at the Cope Foundation,
had achieved the essential relief sought and that the
proceedings were, accordingly, moot.
All of these contentions were rejected by O'Hanlon J. He
concluded, in the light of the evidence, that the applicant
was not ineducable and that, having regard to the
explanation by Dlaigh C.J. in Ryan v. Attorney General

[1965] I.R. 294 of what is meant by"education" in Article 42,
the respondents had failed to provide for the free primary
education of the applicant in breach of his constitutional
rights under that Article. The learned judge was also of the
view that, while the applicant had been granted a place at
the Cope Foundation since the institution of the proceedings,
this had been done as a matter of concession which could be
withdrawn at any time and that in any event the facilities so
provided were, in his opinion, inadequate. In the result, he
held that the applicant was entitled to establish his
continuing constitutional right to free primary education and
to an award of damages in respect of the breach of that right
which had already occurred.
The respondents appealed to this court and, on the opening
of the appeal, the court was informed by counsel that the
respondents were now providing for the applicant, education
appropriate to his current condition. The court then
substituted for the declaration in the High Court a
declaration that the applicant was entitled to free primary
education in accordance with Article 42.4 of the Constitution
and that the State was under an obligation to provide for
such education. The court noted statements by counsel
reserving the positions of their respective clients as to the
correctness
[2001]
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Keane C.J.
625
S.C.
or otherwise of the manner in which the learned trial judge
had interpreted the obligation in question. Although it is not
contended in this case, as it had been in O'Donoghue v.
Minister for Health [1996] 2 I.R. 20, that the first plaintiff is
ineducable or that the free primary education referred to in
Article 42.4 is confined to education in the purely scholastic
sense, the basis upon which O'Hanlon J. arrived at that
conclusion is of considerable assistance in resolving the

matter which is at issue, i.e. the age, if any, at which persons
in the situation of the first plaintiff cease to be entitled to
free primary education.
In the earlier part of his judgment, O'Hanlon J. considered in
some detail the developments that have taken place,
particularly in the second half of the last century, in the field
of the education of mentally handicapped children. He
referred to two reports of particular relevance in the Irish
context: the report of the working party to the Minister for
Education and the Minister for Health and Social Welfare on
the Education and Training of Severely and Profoundly
Mentally Handicapped Children in Ireland (known as"the Blue
Report") published in January, 1983, and the report of the
Review Group on Mentally Handicap Services (known as "the
Lilac Report") published in July, 1990. He also traced the
evolution of changes in public awareness as to the benefit of
educating children with more severe degrees of mental
handicap in England and the United States which were
reflected in legislation enacted in those jurisdictions making
the provision of free appropriate education for all children
compulsory, no matter how severe or profound their
handicap, citing as examples the Education of All
Handicapped Children Act, 1975 (United States Public Law
94-142), and the English Education Act, 1970. At pp. 44 to
45, he quoted a passage from p. 28 of the Blue Report as
follows:"In the past, certain groups of handicapped children were
excluded from access to education and training because of a
very narrow definition of education, and it was felt that
certain children's disabilities were so great that they could
not benefit from the curriculum in schools. More recently,
however, the aims of education have been broadened
considerably and there is a world wide awareness that
education can be of help in maximising human potential
even for the most disabled people "
That report also referred to the following definition of
education to be found in the Warnock Report in England, and
was quoted by O'Hanlon J. at p. 45:-
"The aims of education are the same, whatever the

advantages or disadvantages of the child concerned. These
aims are, first, to increase the child's knowledge of the world
he lives in and his imaginative understanding, both of the
possibilities of that world and of his own
[2001]
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Keane C.J.
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S.C.
responsibilities in it; and, secondly, to give him as much
independence and self sufficiency as he is capable of, by
teaching him those things he must know in order to find
work and to manage and control his own life.
Children have manifestly different obstacles to overcome in
their path towards this double goal, and for some the
obstacles are so enormous that the distance they travel will
not be very great. But for these children any progress at all
is significant. For the most severely handicapped, education
seeks to have them overcome their difficulties one by one."
The report went on to list three categories of skills in which
education and training could be given to severely and
profoundly mentally handicapped children. These were
"basic skills", including"self-help skills", such as dressing,
washing, feeding, toileting,"expressive skills", such as
communication skills and "leisure skills" such as playing with
toys and participation in simple games.
O'Hanlon J., at pp. 48 to 50, also summarised the contents
of the primary school curriculum produced in 1951 which laid
particular stress on three aspects of primary education which
were regarded as of importance, although not, within the
scope of the conventional subjects associated with schools,
i.e. social and environmental studies, music and physical
education.
Having referred to the provisions of some international
conventions, including the United Nations Convention on the
Rights of the Child which laid emphasis on the right of a
mentally or physically disabled child to "a full and decent

life", O'Hanlon J., at pp. 56 to 61, went on to consider the law
applicable in this jurisdiction. At p. 56, he cited a passage
from the judgment of Kenny J. in the High Court in Ryan v.
Attorney General [1965] I.R. 294, the case in which the
plaintiff claimed that the introduction of fluoride into the
municipal water supply in Dublin was a breach of her
constitutional rights. It was argued on her behalf that she
was entitled to provide as she thought fit for the health and
welfare of her children and that this was part of the process
of education in respect of which the primary role of the
parent was acknowledged by the provisions of Article 42 of
the Constitution. Kenny J. rejected this submission saying at
p. 310:" It seems to me that the terms of the Article show that
the word 'education' was not used in this wide sense in the
Constitution. Section 1 of the Article recognises the 'right
and duty of parents to provide, according to their means, for
the religious and moral, intellectual, physical and social
education of their children', but in section 2 it is provided
that the parents are free to providethis education in their
homes or in schools recognised or established by the State.
The education
[2001]
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627
S.C.
referred to in section 1 must, therefore, be one that can be
provided in schools and must, therefore, be one of a
scholastic nature."
In this court, the judgment of Kenny J. was upheld, but
Dlaigh C.J., delivering the judgment of the court, adopted a
wider definition of "education" than that which had found
favour in the High Court, saying at p. 350:"[Counsel] contends that the provision of suitable food and
drink for children is physical education. In the court's view
this is nurture, not education. Education essentially is the

teaching and training of a child to make the best possible
use of his inherent and potential capacities, physical, mental
and moral. To teach a child to minimise the dangers of dental
caries by adequate brushing of his teeth is physical
education for it induces him to use his own resources. To
give him water of a nature calculated to minimise the danger
of dental caries is in no way to educate him, physically or
otherwise, for it does not develop his resources." [Emphasis
added.]
Having said that, he considered the definition adopted by
Dlaigh C.J. as more useful in the context of the case
which he was deciding, O'Hanlon J. held that the education
to which the applicant in that case claimed to be entitled
under the provisions of Article 42 could be correctly
described as "primary education" within the meaning of
Article 42.2.
O'Hanlon J. went on to consider the claim that the case was
in any event a moot and, as already noted, expressed his
view that the education being provided at that stage in the
Cope Foundation did not meet the plaintiff's constitutional
entitlements. He then went on in an important passage at p.
70 to state that:"The evidence given in this case also gives rise to a strong
of:-
process should, ideally, continue as long as the ability for the
development is discernible. Professor Hogg suggests that
age eighteen may not be unrealistic in this context"
[Emphasis added].
He accordingly granted the declaration already referred to
and awarded the applicant the sum of 7,645.71 by way of
damages.
The materials referred to in this judgment are also
considered exhaustively by Barr J. in the judgment under
appeal. He approved of the statement of the law by

O'Hanlon J. in that case and applied the principles laid down
to the facts of the present case which are, of course, similar
in many respects.
[2001]
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S.C.
I am also satisfied that the statement of the law by
O'Hanlon J. in O'Donoghue v. Minister for Health [1996] 2 I.R.
20 is correct. It is not material in this context that the
respondents did not proceed with their appeal in that case,
since it would be open to this court in the present case to
disapprove of the decision. However, although there is a
suggestion (not elaborated upon) in the written submissions
on behalf of the defendants that the approach of Barr J. in
interpreting Article 42.4 was in conflict with that of this court
in Crowley v. Ireland [1980] I.R. 102, I did not understand
counsel for the defendants in his oral arguments to invite
this court to disapprove of the decision in O'Donoghue v.
Minister for Health [1996] 2 I.R. 20. I think that his approach
can be fairly summarised as being that the decision of the
High Court in this case constituted an unwarranted extension
of the principles laid down by O'Hanlon J. in O'Donoghue v.
Minister for Health [1996] 2 I.R. 20. To put it another way, he
was contending that although O'Hanlon J. had found that, in
the case of a severely mentally handicapped child, the
entitlement to free primary education might last up to the
age of 18, there was nothing in the judgment to indicate that
he was finding by implication that the constitutional right
continued into "adulthood", as found by Barr J.
Since the other provisions of Article 42 were also relied on in
the course of the arguments as throwing light on the nature
of the guarantee contained in Article 42. 4, they should be
set out in full:-

2. Parents shall be free to provide this education in their
homes or in private schools or in schools recognised or
established by the State.
3. 1 The State shall not oblige parents in violation of their
conscience and lawful preference to send their children to
schools established by the State, or to any particular type of
school designated by the State.
3. 2 The State shall, however, as guardian of the common
good, require in view of actual conditions that the children
social.
4.
5. 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
[2001]
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Keane C.J.
629
S.C.
supply the place of the parents, but always with due regard
for the natural and imprescriptible rights of the child."
These Articles reflect a philosophy in which the State is seen
as playing, in theory at least, a secondary role only in the
provision of education, the primary role being that of the
parents. The qualification is important, since practice in this
area had travelled far from theory even at the time of the
enactment of the Constitution. This is most graphically
illustrated by the prominence given in the Article to the right
of parents to educate their children at home. In modern
conditions, the number of parents who elect to educate their
children in this manner is a tiny minority, the vast majority

obviously taking the view, apart from other considerations,
that learning to associate with other children outside the
home at work and at play is an important feature of
education. The practical difficulties encountered by parents,
who sincerely believe that they are acting in their children's
best interests in attempting to provide such education in the
home, are exemplified in the case recently decided by this
court in Director of Public Prosecutions v. Best [2000] 2 I.R.
17.
In those schools and third level institutions where tuition
and other fees are charged, the parents can be said to be
providing, albeit indirectly, the education of their children.
However, since the mainstream of Irish education takes
place in primary and secondary schools and third level
institutions, and not in the home, and is not provided by the
parents save in the indirect manner indicated, the thrust of
these provisions of the Article is to ensure that the right of
parents to choose the form of education in schools and
colleges which they deem most suitable to their own
offspring is recognised and protected. In an age when there
is increasing emphasis on the autonomy of children, parental
choice becomes of less importance as they become older: it
remains, of course, of great significance at the stage when
children are not equipped to make the appropriate choices
for themselves. It is probably unnecessary to add that,
however theoretical, in some respects at least, the
philosophy underlying these provisions appears to be in
modern conditions, they must be fully upheld by the courts
in any case where they become relevant.
It is, however, the case, in my view, that they afford little
guidance to the appropriate construction of the opening
words of Article 42.4 with which this case is centrally
concerned. This is of some importance since a significant
part of the argument in the case was directed to a
meticulous parsing of both the Irish and English texts of
these provisions with a view to ascertaining whether they
lend support to the view that the only beneficiaries of the
right acknowledged in those opening words are "children"
who had not yet reached the age of 18. As it happens, while
it is not of critical importance in this case, those opening
words contain no reference
[2001]
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S.C.
whatever to children, whether in family units or otherwise,
and do not differ substantially from the plain unvarnished
text of the 1922 Constitution. It would also seem clear that
the closing words, with their reference to "the rights of
parents" were intended to qualify the obligation on the State
to give reasonable aid to other initiatives and to provide
educational facilities themselves. As noted in Crowley v.
Ireland [1980] I.R. 102, the use of the words"provide for" in
the opening words were sufficient to safeguard the rights of
parents to have their children educated in schools of their
own choice rather than State schools.
It is clear, accordingly, that while the principal beneficiaries
of the right to free primary education recognised and
protected in Article 42.4 are children in family units, they
were not intended to be the only beneficiaries. Children
without parents, natural or adoptive, whether they grow up
in the care of institutions, foster parents or older relatives,
are equally entitled to the right protected in Article 42.4. The
issue with which the High Court and this court is concerned
is whether the rights of the beneficiaries, whether they are
children in family units or otherwise, cease when they reach
a particular age, irrespective of the fact that they might still
be reasonably regarded as being in need of primary
education.
The next issue in the case is as to the form of relief granted
by the High Court. Since the decision of this court in Byrne
v. Ireland [1972] I.R. 241, difficulties in executing against
any of the organs of the State have never been regarded as
a ground for refusing relief to a person whose constitutional
or even purely legal rights have been violated by the organ

in question. It is of interest to note, that in his judgment in
this court in that case, Walsh J. referred to the right
acknowledged in article 10 of the 1922 Constitution to free
elementary education as being one that was"clearly
enforceable" against Saorstt ireann , if no provision
had been made to implement that article. While the learned
judge refers elsewhere in his judgment to the possibility of a
decree against the State being executed by way of an order
for mandamus, there is nothing to suggest that he would
have regarded that as an appropriate remedy against the
Oireachtas, since that would clearly be in violation of the
separation of powers. Relief of that nature could, however,
undoubtedly be granted against other organs of State, such
as Ministers.
Where, however, the granting of the relief sought would
trespass on the exclusive role of Dil ireann , as the
popularly elected house of parliament, in the raising of
taxation and the appropriation of public monies, more
difficult problems arise. Neither the High Court nor this court
has ever gone further than finding, (in McKenna v. An
Taoiseach (No. 2) [1995] 2 I.R. 10), that a declaration could
be granted that the expenditure of monies by the Oireachtas
on an unlawful object - in that
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case the use of public funds to encourage a"yes" vote in a
referendum - was in violation of the Constitution. However,
in that case, the court expressly refrained from granting an
injunction restraining the expenditure of the monies already
voted and I think it is clear that this court would not grant
mandatory relief requiring the Oireachtas to provide funds
for a particular purpose in order to uphold the constitutional
or purely legal rights of members of the public: see Brady v.
Cavan County Council [1999] 4 I.R. 99.

That is not to say that where a plaintiff successfully claims
that his constitutional rights have been violated by the State
in the past and will continue to be so violated in the future
unless the court intervenes, the courts are impotent when it
comes to the protection of those rights. That is of particular
relevance in a case such as the present where it is not
suggested that it is beyond the financial resources of the
Minister to provide the facilities which the first plaintiff
requires, the situation that arose in Brady v. Cavan County
Council [1999] 4 I.R. 99. As Lord Browne-Wilkinson, speaking
for the House of Lords, observed in Reg. v. East Sussex C.C.,
ex p. Tandy [1998] A.C. 714 at p. 749, where a local
authority contended that it lacked the resources to maintain
home tuition for a schoolgirl suffering from a particular
condition:"My Lords, I believe your lordships should resist this
approach to statutory duties. First, the county council has as
a matter of strict legality the resources necessary to perform
its statutory duty under s. 298. Very understandably it does
not wish to bleed its other functions of resources so as to
enable it to perform the statutory duty under s. 298. But it
can, if it wishes, divert money from other educational or
other applications which are merely discretionary, so as to
apply such diverted monies to discharge the statutory duty
laid down by s. 98."
A fortiori those observations apply to the allocation by a
Minister of resources sufficient to meet a constitutional
obligation owed to a particular person. In such cases, while
in principle there is nothing to preclude the granting of
mandatory relief directed to the Minister concerned, it is
appropriate, in my view, for the courts to presume that
where this court grants a declaration that he or she has
failed to meet his or her constitutional obligations, the
Minister will take the appropriate steps to comply with the
law as laid down by the courts.
As to the claim on behalf of the second plaintiff, no authority
has been cited for the general proposition that where the
constitutional rights of a member of a family have been
violated, the wrongdoer must compensate not only the

person concerned but also any other member of his or her
family, as constitutionally defined, in whom no independent
right of action was vested but who suffered in some sense
because of the wrong done to
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the other family member. Such authority as exists would
appear to suggest that no such cause of action is known to
the law.
Thus, in P.H. v. John Murphy & Sons Ltd. [1987] I.R. 621, the
plaintiffs' father suffered severe personal injuries in the
course of his employment with the defendant at the
defendant's factory premises. Proceedings instituted on his
behalf against the defendant alleging that his injuries were
caused by the defendants' negligence were settled. The
minor plaintiffs, suing by their mother, instituted
proceedings against the defendant claiming, inter
alia,damages in tort and breach of constitutional duty for the
loss of the non-pecuniary benefits which the father of a
family bestows on his children. The defendant denied liability
and preliminary issues were tried as to whether, inter
alia,the plaintiff's claim disclosed a cause of action against
the defendant. In holding that the defendants had not been
guilty of any breach of a constitutional duty imposed on
them either by virtue of Article 41.1 or Article 42, Costello J.
said at p.627:"[Article 42] contains an acknowledgment by the State that
the Family is the primary and natural educator of the child
and under its provisions the State guarantees 'to respect the
inalienable right' of parents to provide for the education of
their children. Certainly, in this case, Mr. H. is unable to
exercise this right because of the fearful injuries he has
sustained and his children's rights to be educated by their
father (which I think are to be implied from this Article) have

certainly been impaired by the negligent act which caused
those injuries. Whether they have been unconstitutionally
infringed will depend on whether the negligent act
constituted a breach of constitutional duty imposed by this
Article. I do not think it did. The State has given a 'guarantee
to respect' Mr. H.'s right to educate his children, but I do not
think that by these words the rights which Mr. H. enjoyed
under this provision included an ancillary right not to be
injured by a negligent act which interfered with his ability to
exercise his rights vis- -vis his children. His children would
not therefore enjoy any implied ancillary right that their
father would not be negligently injured. This being so the
defendant's negligent act did not infringe any of their Article
42 rights."
In Mullally v. Bus ireann [1992] 1 I.L.R.M. 722, the High
Court (Denham J.) found that a plaintiff whose husband and
children had been involved in a serious bus accident, caused
by the negligence of the defendants' employee, was entitled
to damages in respect of the psychological damage she
sustained as a result of having personally witnessed the
appalling scene which followed the accident. That, however,
was not based on the constitutional right of the plaintiff to
damages: it was expressly treated by the learned judge as
an appropriate development of the law of
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tort, similar to that which had taken place in England and
Wales: see the decision of the House of Lords in McLoughlin
v. O'Brian [1983] 1 A.C. 410 and in particular the speech of
Lord Bridge in that case. It is accordingly of no assistance in
considering the claim made on behalf of the second plaintiff
in this case.
Conclusions
It is right to say at the outset that the posture adopted by

the defendants in this case is, in purely legal terms at least,
with which this court is exclusively concerned, not easy to
follow. They acknowledge that, by virtue of s. 7(1) of the Act
of 1998, the Minister is obliged:" to ensure, subject to the provisions of this Act, that
there is made available to each person resident in the State,
including a person with a disability or who has other special
educational needs, support services and a level and quality
of education appropriate to meeting the needs and abilities
of that person "
While it is unnecessary, and indeed inappropriate, in the
context of the present proceedings, to determine whether
the expression "a person with a disability or who has other
special educational needs" is confined to children who have
not reached the age of 18, it is clear from the evidence in
this case that the Minister, not surprisingly, takes the view
that it is not so confined in its application and, specifically,
that the first plaintiff is entitled to the benefit of this
provision.
The claim made on behalf of the first plaintiff is, accordingly,
resisted by the Minister solely on the ground that he was not
entitled to those services as a matter of constitutional right
beyond the age of 18. However, whether the first plaintiff is
entitled to them as a matter of legal or constitutional right
would, it might be thought, be a matter of indifference to the
Minister, unless he proposed at some time in the future to
withdraw them or to urge the Oireachtas so to do, a course
of action which he predictably assures the court he does not
contemplate. The same considerations would apply to those
suffering from severe mental handicap who are in the same
position as the first plaintiff.
The Minister's concerns, accordingly, arise because of what
are seen as the more far-reaching implications of adults, as
distinct from children, being entitled to free primary
education.
It is undoubtedly the case that a significant number of
children leave the primary system without having achieved
the minimum level of education which it is designed - and
constitutionally mandated - to impart. But that is not to say

that the State has, in the case of those children, failed in its
constitutional duty to them to an extent which requires
intervention
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by the courts. The failure may be due to many causes,
including the inability of the children to benefit to that
minimum extent from any system of primary education,
however properly structured and however ample the
resources provided by the State may be. The learning
difficulties of the children concerned may be such that the
minimum result can never be achieved in their case.
Moreover, defects in the system itself - whether they derive
from overcrowded classrooms, inadequate school buildings
or any other cause - which may similarly result in a failure to
achieve the minimum standard are not necessarily
remediable by the courts. That would involve the judicial arm
usurping the function of the Oireachtas and the executive in
the proper distribution of the resources available to the
State, an issue to which I will return. It is sufficient at this
point to say that it is an illusion to suppose that, because the
High Court in this case has found that the first plaintiff's
entitlement to free primary education extends beyond the
age of 18, the courts will be obliged at some stage to treat
other adults as enjoying an equivalent right, where
their"need" for primary education results from an inherent
inability to benefit from such education in their childhood or
from the defects in the system provided by the State to
which I have referred. None of these considerations arise in
the present case: it is solely concerned with the
constitutional rights of the first plaintiff and the second
plaintiff, although the findings of the High Court, in so far as
they have not been the subject of an appeal, and the
findings of this court will necessarily extend to persons in the

same situation as the plaintiffs.
In considering the contention advanced on behalf of the first
plaintiff that his right to free primary education had not
come to an end at the time of the hearing in the High Court
and would continue into the future so long as he reasonably
required such education, the sequence of events in this case
is of some importance.
As already noted, in the defence to the claim of the first
plaintiff delivered on the 11th November, 1997, when he was
aged 20, the defendants denied that they had deprived the
first plaintiff of any of his constitutional rights pursuant to
Articles 40 and 42 of the Constitution. At the hearing in the
High Court when he was aged 22, the defendants, while
accepting that he was entitled to free primary education
suitable to his special needs up to the age of 18, denied that
he had not been afforded such education and further denied
that his right to such education continued beyond the age of
18. Both those propositions were rejected by the learned
High Court Judge who, as already noted, found the first
plaintiff entitled to general damages in respect of the failure
of the first defendant to provide him with the appropriate
primary education up to the date of the hearing in the High
Court.
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There is, accordingly, a finding by the High Court in this
case that the plaintiff was entitled as a matter of
constitutional right to free primary education suitable to his
special needs up to the date of the hearing in the High Court
and that his right to that education had been violated by the
defendants. On the basis of that finding, the first plaintiff
was awarded damages, not simply in respect of the period
up to age 18, but also in respect of the period from 18 to 22.

It is not suggested that there was any basis on which he
could have been awarded damages in respect of the period
from 18 to 22 other than his entitlement to free primary
education under the Constitution in respect of that period.
It must be borne in mind that in deciding not to appeal from
the finding of the learned High Court Judge that the first
plaintiff was entitled to damages in respect of the period up
to the hearing of the action, and not simply in respect of the
period until he reached the age of 18, the defendants are not
properly described as making a"concession" (for whatever
reason) to the first plaintiff. Since it has not been appealed
from - or, to put it more accurately, the appeal originally
lodged in respect of it has not been pursued in this court the careful and comprehensive judgment of the High Court,
delivered after a lengthy hearing in which all the factual and
legal issues were exhaustively ventilated and analysed,
constitutes the law in this country unless and until another
judge of the High Court or this court takes a different view of
the law. The High Court is the only court with full original
jurisdiction in all constitutional issues in this jurisdiction and
its judgments are not to be treated as in some sense
qualified as authoritative statements of the law because they
have not yet been reviewed by this court.
However, if it were indeed the case that the first plaintiff
was entitled to free primary education on that basis until the
age of 22, there would be insurmountable difficulties
confronting the State in arguing that free primary education
is available under the Constitution only to children and not to
adults. Hence, they have sought to argue in this case that,
notwithstanding the unappealed award of damages, his
constitutional entitlement ceased when he reached the age
of 18.
That approach to the case by the State gives rise to two
possible consequences. It is accepted that there are a
significant number of persons in the same position as the
first plaintiff who, as a result of the High Court judgment and
irrespective of what is decided by this court on this appeal,
may also be entitled to damages because of a similar breach
of their constitutional rights. A finding by this court that the

first plaintiff's entitlement came to an end at age 18 would
seem to have as its necessary consequence awards of
damages on a less favourable basis to the plaintiffs
concerned than the unappealed award of damages in this
case. It may be
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that plaintiffs in such a situation might be in a position to
resist such a clear inequality of treatment by the court in
accordance with the decision of this court in McMahon v.
Leahy [1984] I.R. 525. It would, in any event, be pointless
and inappropriate to prejudge in any way what might happen
in cases which are still to be heard. Nor would it be fair to
assume that the objective of the State, in adopting this
course, was to achieve such a result.
The reason for the strategy adopted by the State is perfectly
clear. It is evident from the correspondence between the
Chief State Solicitor and the solicitors for the first plaintiff, to
which I have already referred - and it is unnecessary to refer
to any other materials such as statements made by public
figures who are not parties to these proceedings - that the
first defendant is unwilling to be seen as seeking a reduction
in the award of damages to the first plaintiff and, for that
reason, has declined to adopt the straightforward course of
simply appealing from so much of the award of damages as
related to the post 18 period. In the result, he invites this
court to treat a finding by the High Court judge as wrong in
law, which he has already accepted, by declining to appeal,
as being right in law. To accept that contention as correct
involves a feat of mentallegerdemain of which I am
incapable.
It may be suggested that this is not, in the context of these
proceedings, a matter of any great moment, since the
Minister is naturally concerned that the law should not be left

in a state of uncertainty in so important an area, while at the
same time not being prepared to disturb the award of
damages in favour of the first plaintiff. But that would be to
have insufficient regard to an important feature of the
jurisprudence of this court. On this aspect of the case - I
leave aside entirely the issues as to the relief actually
granted in the High Court and the award of damages to the
second plaintiff in respect of which the Minister has pursued
an appeal to this court as is his constitutional right - the
Minister is seeking a determination in respect of a matter
which is moot. He accepts that the first plaintiff is entitled to
damages in respect of the period up to age 22 and, by
implication, that his constitutional entitlement to free
primary education lasts beyond the age of 18 for as long as
the first plaintiff is in need of what is admitted to be a form
of primary education. He accepts that the necessary facilities
would continue to be available to the first plaintiff within the
framework of the Act of 1998 for so long as the first plaintiff
requires them. But he wishes to obtain a ruling from the
court that, irrespective of what may be the position in this
case, the entitlement to free primary education under the
Constitution is limited to children and does not extend to
adults.
This court, and its predecessors, has in general declined to
grant advisory judgments of that nature to any party. Such
precedents as exist for
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such a course are not encouraging. In A.G. v. Southern
Industrial Trust Ltd. (1957) 94 I.L.T.R. 161, Lavery J.,
speaking for the former court, said at p. 173 that:"The parties have by a series of admissions (some of which
might well have been withheld) presented net issues for the
decision of the court. Their purpose clearly is to get a

decision not merely in the particular case but one of general
application. It was questionable whether the court should
entertain a case so presented."
It was, accordingly, only with misgivings that the court
proceeded to determine the appeal in that case. Unlike the
present case, however, the strategy in that case was the
result of an agreement between the parties: in the present
case, the first plaintiff vigorously objected to the course
being taken by the defendants.
Even if that part of the judgment which found the first
plaintiff entitled to damages in respect of his entitlement to
free primary education up to the age of 22 had been the
subject of an appeal to this court, which it has not, I would
have concluded that the judgment was correct in point of law
and should be upheld by this court. In this connection, I do
not think that any useful guidance can be derived from
dictionary definitions as to what is meant by the expression
"primary education". Its meaning, in the vast majority of
cases, is clear. It denotes the stage of a child's education
lasting from ages six to twelve and does not extend to the
kind of training and human development that takes place
from birth to age four. The latter normally takes place in the
home and not in a school setting. The primary school
curriculum in this country has since 1831 had as its central
component education in literacy and numeracy, and now
includes as already noted, in addition, mathematics, social
and environmental studies, music and physical education. In
addition, Irish is a compulsory subject in the primary school
curriculum. It should be noted, however, as pointed out in
Director of Public Prosecutions v. Best [2000] 2 I.R. 17 that
the curriculum, as it now exists, represents more than the
"minimum education, moral, intellectual and social" which it
is the State's duty to ensure that children receive pursuant
to Article 42.3.2.
That is not the form of "primary education" to which the first
plaintiff was found to be entitled in O'Donoghue v. Minister
for Health [1996] 2 I.R. 20 by O'Hanlon J. and to which Barr
J. found the first plaintiff in this case to be entitled. The
latter's needs at this stage of his life still do not extend

significantly beyond the basic skills which more fortunately
endowed children acquire in the home between birth and
four.
The evidence in this case, which is not challenged on behalf
of the defendants established that the need for this form of
education continues into
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what, in other people, would be regarded as"adulthood". As
Mrs. Osten, an acknowledged expert, put it in her evidence:" The feeling is that as long as you maintain a certain
level of stimulation and care and learning where the
individual is actively involved in their day to day process that
they will do well, but I think in the first plaintiff's case if the
plan for him to act stops you will again see regression. So an
ideal situation for him in adulthood would be to be an active,
particularly a physical, programme where he has to move
and that that be maintained as long as his health allows.
133 Q. Barr J.: Right through life in other words?
A. Right through life " [Transcript, Day 3]
In O'Donoghue v. Minister for Health [1996] 2 I.R. 20,
O'Hanlon J. pointed out that primary education for the
category of the severely mentally or physically handicapped
requires, in the legal context, a new approach and, in
particular, so far as its duration is concerned, the process
should, ideally, continue as long as the ability for further
development is discernible. While Professor Hogg in that
case suggested the age of 18 as realistic, the evidence in
this case, so far as the first plaintiff is concerned, indicated a
longer time scale than 18.
Even if it were open to this court to treat as incorrect the
finding in the High Court that the first plaintiff was entitled to
free primary education up to the age of 22, the defendants
would encounter serious difficulties in acknowledging the

constitutional right of the first plaintiff to free primary
education up to the age of 18, because of his special needs,
but not thereafter. If a person is in receipt of education on
the eve of his 18th birthday, it is in the vast majority of
cases a total misuse of language to describe that as primary
education in the normal sense. However, it is properly
regarded as primary education in the case of a person such
as the first plaintiff, even though in chronological and
physical terms he has ceased to be a person who would
normally be regarded as being in receipt of such education.
If it is the law that a person in the position of the first
plaintiff ceases to be entitled to free primary education at
the stage in his life when he becomes an adult, it is for the
courts alone, in the absence of any specific age limit to be
found in Article 42, to determine when that stage would be
reached. The contention on behalf of the first plaintiff is that
he has not yet become an adult in terms of his educational
needs and may never reach that stage. The contention on
behalf of the Minister is that the age is fixed at 18 years.
While that, as it happens, is the age fixed by legislation as
the age of majority for a number of important legal
purposes, it was not within the competence of the
Oireachtas to subject the first plaintiff's constitutional right
to such an age limitation and they have not attempted so to
do in the Act of 1998. A fortiori,it is certainly not the function
of the Minister to
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determine the age at which the constitutional right of a
person in the position of the first plaintiff ceases. As the
whole history of this litigation from beginning to end
eloquently demonstrates, that is the function of the courts
and the courts alone.
All those who survive that period of their life, which is

properly and unarguably described as childhood, begin to
pass certain legal and societal milestones. At the age of 14,
they are capable of committing criminal offences. At the age
of 16, they are no longer required to attend school and may,
if the opportunity arises, enter the adult world of work. (The
school leaving age was fixed at this level by s. 2(1) of the
Education (Welfare) Act, 2000.) At the age of 17, their
parents cease to be responsible for their welfare. (It should
be noted, however, that s. 2(1) of the Child Care Act, 1991,
defines a"child" as "a person under the age of 18 years other
than a person who is or has been married".) Between the
ages of 15 and 17, they are classified by the criminal law as
"young persons" and may suffer what amounts to a form of
imprisonment. At that stage, consensual sexual intercourse
with them by a person of the same age or older ceases to be
a criminal offence. At the age of 18, they are entitled to
marry, to vote and to incur legal obligations under the civil
law. Although the age of 21 is no longer the significant legal
watershed that it once was, the custom of treating it as a
form of entry into adult life does not seem to have entirely
vanished. The Constitution itself does not recognise persons
who have not reached the age of 35 as of sufficient maturity
to be eligible to be President of Ireland.
Where in this spectrum can it be said with any semblance of
truth that the first plaintiff passed from childhood to
adulthood? So far as the evidence in this case goes, virtually
none of these stages is of any significance in his case. He is
one of a relatively small category of people in our society
who, because of their mental handicap, can never enjoy life
in all its diversity and richness but to whom at least a
measure of happiness may be available. The uncontested
evidence in this case is that, to attain even that low plateau,
the first plaintiff requires continuing access to what, in his
case, is education, as defined by Dlaigh C.J., albeit
often extremely basic in character. No principled basis exists
either in law or in the evidence for the contention advanced
by the defendants that a person in his position ceases to be
in need of primary education at age 18, at age 22 or at any
age in the future which can now be identified with any

precision.
I am accordingly, satisfied that the first plaintiff was entitled
to a declaration that the first defendant was obliged by
Article 42.4 of the Constitution to provide for free primary
long as he was capable of benefiting from the same. While
counsel on his behalf are correct in their submission that,
among
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what might broadly be described as the social services,
education is uniquely under our constitutional arrangements
the only one in respect of which the State are subject to a
specific obligation in relation to its provision, it by no means
follows, as was also urged on his behalf, that this necessarily
involves the courts in the continuing supervision of its
provision in any particular case. Where, as here, the State
have conspicuously failed in their constitutional obligation to
provide the education to which a citizen is entitled the courts
will ensure that the right is given full legal effect by
whatever remedy is appropriate. The next question that
arises in this case is as to whether the form of relief granted
in the High Court was appropriate in the light of the
conclusions at which I have arrived.
I have already pointed out that it is by no means clear from
the terms of the judgment that the trial judge envisaged the
granting of an immediate mandatory injunction. In practice,
it may not be of any great significance whether the relief
granted is by way of a declaration or a mandatory injunction:
the respect each of the three great organs of State owe to
one another requires obedience to the order of this court or
the High Court, whether it takes the form of a declaration or
a mandatory injunction. The raising of taxes and the
appropriation of public monies being quintessentially

matters for Dil ireann alone, however, I am satisfied
that the appropriate form of relief in this case was a
declaration rather than a mandatory injunction.
I am also satisfied that the purported retention by the High
Court of jurisdiction in this case after it had delivered what
was in every respect a final judgment, subject only to review
by this court on appeal, was an erroneous exercise of its
jurisdiction. I can fully understand the misgivings of the trial
judge in the light of the previous conduct of the defendants
in this case but, despite the strenuous submissions to the
contrary on behalf of the first plaintiff, I have no doubt that
the case should have been approached on the basis that, if
the first defendant was at any stage in the future found by
the High Court to have been in breach of his or her
obligation, the powers of the court to ensure the upholding
and vindication of the first plaintiff's rights would, in the
famous words of Dlaigh C.J. in The State (Quinn) v.
Ryan [1965] I.R. 70, at p. 122, be:"as ample as the defence of the Constitution requires."
In the judgment which he will deliver in this case, Hardiman
J. cogently demonstrates that the approach which the court
was invited to adopt on this issue is fundamentally at
variance with the doctrine of the separation of powers which
is at the heart of our constitutional structures. In particular, it
would violate the exclusive role of the legislature and the
executive in the distribution of the nation's wealth. I entirely
agree with what he says and have nothing to add on this
matter. I would, however,
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also wish to make it clear that I fully share his reservations
as to the criticism, which is at least implicit in the judgment
under appeal, of the decision by the State to appeal the
judgment in O'Donoghue v. Minister for Health [1996] 2 I.R.

20. That, as he points out, is the constitutional entitlement of
the State as much as of any other person and anything I
have said as to the inconsistency of the posture adopted by
the defendants in this case on the hearing of the appeal
should not be taken as questioning in any way the right of
the defendants in this case under the Constitution to appeal
from any part of the judgment and order of the High Court.
As to the claim of the second plaintiff to general damages
for the breach of her constitutional rights alleged to have
flown from the admitted breach of the first plaintiff's rights, I
am satisfied that this claim is wholly unsustainable. Parents
who find themselves in the position of the second plaintiff
naturally evoke our respect, admiration and compassion, but
those are not grounds in law for an award of damages. If the
second plaintiff is to be entitled to damages, it would follow
inexorably that every member of a family in the
constitutional sense would also be entitled to damages
where another member of the family suffered personal
injuries affording him or her a cause of action in tort, unless
the injury was so trivial that the resultant anxiety caused to
the other family members was transient and of such little
moment as to justify its being disregarded. In every other
case, from a moderate whiplash injury to the most massive
quadriplegia, since the constitutional rights of the plaintiff to
his or her bodily integrity would unquestionably have been
violated, the other family members would be entitled to
damages if they could plausibly assert that they suffered
some degree of anxiety as a result of the person's injuries.
That is plainly not the law.
Confronted with that difficulty, counsel for the second
plaintiff valiantly attempted to argue that the actions of the
first defendant in this case were in some sense a violation of
her right to choose the form of education appropriate to her
child under Article 42. That again is a wholly unsustainable
proposition. The parental right of choice as to the nature of
the education which their children will receive is, of course,
guaranteed by Article 42, but that was not what was being
frustrated by the actions of the defendants in this case. It
was the right of the first plaintiff to a form of primary

education appropriate to his needs which was being denied
and for that, as a result of the decision of the High Court, he
was fully and properly compensated. Had the appropriate
facilities which the first plaintiff required been available for
him free of charge in a single institution in the Cork area
capable of meeting his special needs, the second plaintiff
would have had no complaint either in law or in fact and
there is not the slightest
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reason to suppose that she would have instituted
proceedings on her own behalf against the defendants.
I would allow the appeal against the award of general
damages to the second plaintiff.
In the result, I would allow the appeal in the first case and
vary the order of the High Court by deleting paras. (2), (4)
and (5) of the order and substituting therefor a declaration
that the first defendant is obliged to provide for free primary
long as he is capable of benefiting from same. In the second
case, I would allow the appeal and substitute for the order of
the High Court an order dismissing the second plaintiff's
claim save in respect of the sum of 15,000 in respect of
special damages.
Denham J.
1. Two Appeals
The appeals in the above entitled cases were taken
together. In both cases the Minister for Education, Ireland
and the Attorney General appealed against a decision of the
High Court. The first plaintiff, was born on the 11th October,
1977, and is profoundly mentally disabled. The second
plaintiff is the mother of the first plaintiff.
2. The High Court

In a judgment delivered on the 4th October, 2000, the High
Court (Barr J.) determined the cases in favour of the
plaintiffs. The learned High Court Judge treated both of these
actions as one and, in his judgment, found at p. 551:"The first plaintiff was born on the 11th October, 1977. He is
now almost 23 years of age, the third child of nine. The
second plaintiff, his mother, is separated from her husband
for a number of years and has been the first plaintiff's
primary carer all his life. At birth he was a healthy baby and
developed normally for about the first four months
thereafter he began to develop autistic symptoms."
He held that the first plaintiff had a right to have primary
education provided for him with no age limitation. He stated
at p. 583:"There is nothing in Article 42.4 which supports the
to ongoing primary education provided by or on behalf of the
State. It is evident that the right to primary education would
be fundamentally flawed if narrowly interpreted as ending at
an arbitrary age - 18 years."
On the 31st October, 2000, the High Court declared:[2001]
2 I.R.
Denham J.
643
S.C.
"The court doth declare that the first defendant in failing to
provide for free primary education for the first plaintiff
appropriate to his needs as a severely autistic child with
related profound mental and physical handicap and in
discriminating against the first plaintiff with respect to the
provision of appropriate educational facilities vis- -vis other
children has deprived the first plaintiff of his constitutional
rights pursuant to Articles 40 and 42 of the Constitution and
in particular Article 40.1, Article 40.3.1 and 2, Article 42.3.2
and Article 42.4."

And the court ordered, inter alia:(1) that the first plaintiff do recover against the defendants
the sum of 222,500.00 damages for breach of the first
plaintiff's constitutional rights negligence and breach of duty
the aforesaid sum being computed as follows:(a) general damages to date (b) general damages for the future (c) special damages for a 30 month period commencing on
the 1st November, 2000, to the 30th April, 2003, in respect
of Applied Behaviour Analysis home
programme (d) Special damages in respect of ancillary services for a 30
month period commencing on the 1st November, 2000, to
the 30th April, 2003 90,000.00
25,000.00
70,000.00
37,500.00;
(2) that the first defendant do forthwith provide for free
needs for as long as he is capable of benefiting from same;
(3) that an application be made forthwith to have the first
plaintiff taken into wardship;
(4) (i) that the first plaintiff be provided with the necessary
funding for the Applied Behavioural Analysis home based
programme for sufferers from autism for two and a half
years estimated at 28,000 per annum subject to review on
completion;
(ii) that the first plaintiff be provided with the necessary
funding for home based ancillary services, speech,
physiotherapy, occupational and music therapies and
medical care estimated at 15,000.00 per annum subject
to review on completion;
(5) that the mandatory injunction and damages granted
herein be reviewed in April, 2003, and that a claim for

further damages over and above the damages awarded by
the court to date be adjourned to this review with liberty to
the first plaintiff to re-enter or to apply in the interim in that
regard.
[2001]
2 I.R.
Denham J.
644
S.C.
In relation to the second plaintiff the High Court ordered:"The court doth declare that the first defendant in failing to
provide for free primary education for the second plaintiffs
son, the first plaintiff, appropriate to his needs as a severely
autistic child with related profound mental and physical
handicap and in discriminating against the second plaintiff's
son with respect to the provision of appropriate educational
facilities vis- -vis other children has deprived the second
plaintiff of her constitutional rights pursuant to Articles 40.1,
40.3.1 and 2, 41.2.1 and 2, and 42.1 to 4 of the
Constitution."
It was ordered that the second plaintiff do recover against
the State the sum of 55,000 damages for breach of her
constitutional rights, negligence and breach of duty (being
the sum of 40,000 in respect of general damages herein
and the sum of 15,000 in respect of special damages
herein), that the first defendant do forthwith provide for free
needs for as long as he is capable of benefiting from same,
and that the mandatory injunction granted herein be
reviewed in April, 2003, with liberty to the first plaintiff to reenter or to apply in the interim in that regard.
The learned High Court Judge summarised the second
plaintiff's constitutional rights vis- -vis the State as follows
at pp. 588 and 589:"(i) She is and has been at all material times a de facto
single parent and head of the Sinnott family of which she is

the primary carer. Her position and that of the family is
specifically recognised in the Constitution. The State
authority (Article 41.2). In O'B. v. S. [1984] I.R. 316 the
Supreme Court held that the 'provisions of Article 41 create
not merely a State interest, but a State obligation to protect
the Family'.
(ii) The second plaintiff and her family (in particular her son,
the first plaintiff) are entitled to equality of treatment by the
State and ought not to be deprived without just cause of
basic advantages which the State provides for others (Article
40.1 'All citizens shall as human persons, be held equal
before the law ').
(iii) The State shall provide for free primary education - and
when the public good requires it shall provide other
educational facilities and institutions (Article 42.4). This is a
right for the benefit of the family as a unit as well as for the
individual members thereof. If the State fails in that duty the
burden of providing primary education for a child of the
family thus deprived will in the ordinary course devolve on
the parents - in the present case on the mother as de facto
sole parent.
[2001]
2 I.R.
Denham J.
645
S.C.
(iv) The State has failed to honour its foregoing
constitutional obligations to the second plaintiff and her son,
the first plaintiff, the foreseeable consequences of which has
been, inter alia,that she has had imposed on her an
inordinate burden, which has dominated her life, of
endeavouring to provide for the education of her profoundly
disabled child
(v) Although the defendants' argument regarding
retrospection which I have already addressed in the context

of the first plaintiff's claim is in my opinion not well founded,
the period of damage for which the second plaintiff is
entitled to compensation differs from that of her son where
infancy and mental incapacity are relevant factors in the
context of limitation of action. Having regard to the
judgment of the Supreme Court in McDonnell , it follows that
the second plaintiff's claim is analogous to a claim for
personal injury in tort and is subject to the limitation period
of three years as provided in the Act of 1957 in that regard.
However, unlike a claim for personal injury arising out of, for
example, a traffic accident where the date of the
precipitating event determines the limitation period, the
wrong done to her is a continuing one which existed from
1981 and has gone on since then. Her action commenced on
the 17th December, 1996. Accordingly she is entitled to
damages for the harm done to her from the 17th December,
1993, and into the future."
The learned trial judge found at pp. 596 and 597:"The breach of duty of the State in failing to honour its
constitutional obligations to the first plaintiff and to [the
second plaintiff] has given rise to a corresponding loss
suffered by his mother and primary carer which also will
have some ongoing effect into the future. She has had the
anguish of seeing substantial progress made by the first
plaintiff frittered away through the failure of the State over
and over again to respond meaningfully to his needs. She
has seen time, a vital commodity for the first plaintiff,
squandered by bureaucracy. It appears that she has worn
herself quite literally to the bone struggling on behalf of her
son. Her heroic efforts to have education and care provided
for him have dominated her life to a degree far greater than
in all probability would have been the case if the State had
honoured its obligations to the first plaintiff and to her. She
has been subjected many times over the years to the lack of
understanding of an apparently disinterested bureaucracy.
She has had to contend with the distress and indignity of
having to deal with various problems of a child, now a man,
which, if the State had provided appropriate services when
[2001]
2 I.R.
Denham J.
646
S.C.
required, probably would have been resolved many years
ago - not least of these are his present lack of mobility,
persistent frequent drooling and the continuing need for
diapers at the age of 23 years. I have no doubt that all of
these elements of avoidable anguish in the second plaintiff's
life are consequences of the State's breach of duty in failing
to honour its constitutional obligations to the first plaintiff
and to her. She has responded to that failure with
indefatigable love, courage and devotion but at great
personal cost. In that regard she is following in the footsteps
of Mrs. Marie O'Donoghue and Mrs. Annie Ryan who gave
evidence at this trial and many other heroic parents of
grievously disabled children who have had to contend with
similar difficulties. The State's breach of duty and failure to
honour its constitutional obligations has also created distress
which for the reason explained in the first plaintiff's case will
continue indefinitely, albeit to a lesser degree, even if his
future education is reasonably successful. As to damages; I
note that special damages (which include the first plaintiff's
case also) have been agreed at 15,000.
It is difficult to assess compensation for a devoted mother's
overlay of distress and anguish in a case like this and for the
burden of unnecessary work inflicted on her over the years
both as a carer and in her struggle trying to achieve the first
plaintiff's rights from a reluctant bureaucracy. If, like him, the
second plaintiff was entitled to compensation from October,
1981, I would have awarded her general damages of
80,000 from then until now. However, as she is entitled to
compensation only for the wrong done to her from the 17th
December, 1993, there must be a substantial reduction in
that amount. She is entitled to a modest sum for probable
continuing distress in the future arising out of the loss of
time which militates against the first plaintiff making the

degree of progress which he probably would have made if he
had received from the State early primary education and
training. That situation casts at least a minor cloud over the
second plaintiff's future (including on-going avoidable work)
which ought not to be there and for which in my opinion she
is entitled to compensation.
I assess damages for her as follows:agreed special damages:
general damages from the 17th December, 1993, to date:
general damages in the future:
Total:
15,000
30,000
10,000
55,000"
[2001]
2 I.R.
Denham J.
647
S.C.
3. Facts
The facts are not in issue on these appeals. The State has
taken no issue on the findings of fact of the learned High
Court Judge. Thus the facts as found by the High Court are
the basis for the decisions on the law and the Constitution in
these cases.
The State has undertaken to pay all costs of the plaintiffs in
these proceedings before the Supreme Court and in the
proceedings before the High Court. The State has agreed to
pay the general damages awarded to the first plaintiff and
the education as ordered for three years and the special
damages to the second plaintiff irrespective of the outcome

of the appeals. The State has accepted that they were in
breach of the first plaintiff's rights when a child. There were
discussions as to whether this appeal was in fact a moot in
view of the stance of the State. However, in view of the
important legal issues at stake, the appeal proceeded.
Consequently this appeal is an appeal only on certain issues
of law and the Constitution.
4. Constitution of Ireland, 1937
The relevant articles of the Constitution of Ireland, 1937, are
as follows:Article 40.1:"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
Article 40.3.1:"The State guarantees in its laws to respect, and, as far as
rights of the citizen."
Article 40.3.2:"The State shall, in particular, by its laws protect as best it
every citizen."
Article 41:"41.1.1 The State recognises the Family as the natural
primary and fundamental unit group of Society, and as a
rights, antecedent and superior to all positive law.
[2001]
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Denham J.
648
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41.1.2 The State, therefore, 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.
41.2.1 In particular, the State recognises that by her life
within the home, woman gives to the State a support without
which the common good cannot be achieved.
41.2.2 The State shall, therefore, endeavour to ensure that
41.3.1 The State pledges itself to guard with special care
the institution of Marriage, on which the Family is founded,
and to protect it against attack."
Article 42:"42.1 The State acknowledges that the primary and natural
42.2 Parents shall be free to provide this education in their
home or in private school or in schools recognised or
established by the State.
42.3.1 The State shall not oblige parents in violation of their
school designated by the State.
42.3.2 The State shall, however, as guardian of the common
good, require in view of actual conditions that the children
social.
42.4 The State shall provide for free primary education and
shall endeavour to supplement and give reasonable aid to
private and corporate educational initiative, and, when the
public good requires it, provide other educational facilities or
formation.
42.5 In exceptional cases, where the parents for physical or
means shall endeavour to supply the place of the parents,

[2001]
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Denham J.
649
S.C.
but always with due regard to the natural and
imprescriptible rights of the child."
5. Submissions
Counsel for the defendants presented full written
submissions and in addition submitted orally that there were
five questions to be considered on this appeal. These were
as follows:1. Does the Constitution of Ireland afford a constitutional
right to education to adults?
2. Does the right to primary education envisaged by Article
42.4 of the Constitution of Ireland envisage a right to
education for life?
3. Does a judge of the High Court have the right to
formulate and direct the application of future policy in
relation to educational needs?
4. Can a judge seek to award damages twice arising from
the same cause of action?
5. In relation to the mother, does there exist a collateral
constitutional right vested in individuals who suffer harm as
a result of breaches of constitutional rights of others?
The State accepted that there was an obligation to provide
for free primary education but submitted that it ceased when
the first plaintiff was 18 years of age. Whilst the High Court
has made an award of general damages and special
damages and provision for education for the next three
years, which the State has agreed to pay, it has done this on
a "without prejudice" basis. Thus while the education for the
first plaintiff will proceed until 2003, as a matter of law the
State submitted that the first plaintiff's right exists only to
the age of 18.
The State accepted that a person such as the first plaintiff
needs education for life. However, the State submitted that,

the Constitution does not make provision for free primary
education after the age of 18. The State submitted that while
18 is an arbitrary age, it is consistent with the Constitution.
Furthermore, it was argued that Article 42 provides for the
education of children not the education of adults, that Article
42 cannot be construed in isolation, and in fact that it was
stretching its interpretation to run it to the age of 18.
Counsel for the defendants informed the court that since the
decision of the High Court the State has taken action to
provide new support services for children with autism and a
task force has been set up. It was submitted that the State
had responded to the judgment.
Counsel for the plaintiffs presented full written submissions
and submitted orally seven points, as follows:[2001]
2 I.R.
Denham J.
650
S.C.
1. The State has said that it would pay the damages on an
ex gratia basis. However, the general damages awarded for
the delay in getting education was made on the premise of
the two and a half years' intensive education ordered and a
potential arrangement for the future being put in place in
2003. He submitted that the first plaintiff's constitutional
rights were infringed and that he is entitled to damages
insofar as they flow from that fact. Counsel submitted that
the first plaintiff was entitled to the full order of the High
Court and that if he were not to receive it then he was
entitled to more future damages. Counsel pointed out that
the State had conceded that it had violated the first
plaintiff's constitutional rights and had conceded damages,
therefore, he argued that, the first plaintiff should get
damages as a matter of law and not ex gratia.
2. Counsel stressed the particular nature of the obligation
established under Article 42 of the Constitution. He

submitted that there is a mandatory spending obligation
under Article 42 that gives it a unique character that sets it
aside from all other personal rights provisions of the
Constitution. Article 42.4 sets this part of national
expenditure on a plane above and apart from a whole range
of expenditures that we now consider at the core in our
nation. Counsel submitted that the language of Article 42.4
is unique. He submitted that the vast majority of choices as
regards spending are political issues and that the courts
have no place in the making of such choices. However, he
argued, that in the Constitution of 1937 the people made a
promise, a promise for future generations, that there would
be free primary education.
3. Counsel addressed the nature of education. In this case it
was conceded by the State that what the first plaintiff was
receiving now was education. The education that the first
plaintiff gets is simple yet complicated. He is taught simple
things. However, teaching him is complicated. He is taught
how to get out of a wheelchair, he is given toilet training, he
is taught not to drool. Such simple matters are taught to
other children pre-school by their parents. However, counsel
submitted that for handicapped children these social skills
are part of their education. Further, this education has to be
reiterated all the time. Whereas the first plaintiff can learn to
walk, if it is not continuously reinforced, he regresses.
Counsel admitted that there is not the remotest chance of
the first plaintiff reaching elementary education. It is a
question of keeping up achieved learning: how to walk, toilet
training, signal he has a headache, signal he is thirsty, etc.
This training needs to continue
[2001]
2 I.R.
Denham J.
651
S.C.
for the rest of his life. It is very basic, physical and social. It
is education to his capacity. It has to do with human dignity,

happiness, comfort. This is an education that never ends.
Counsel submitted that the nature of the education was not
in issue in this case.
4. Counsel considered cases which have endorsed the
power of the courts to intervene where constitutional rights
have been violated.
5. Counsel, while accepting that mandatory orders are
exceptional, submitted that the High Court was faced with
such an exceptional case. Counsel submitted that the
learned High Court Judge was addressing an acknowledged
breach of constitutional rights in a person of unsound mind
who had received only three years' education in 22 years;
that the State had no facility to access or address the son's
need, at that time. All were agreed that any further delay in
commencing education would be very damaging. Counsel
submitted that the State had consistently dragged its feet,
no-one in Cope had any training to deal with the first
plaintiff, yet Cope was the best available in Cork. The State
had in one other case consented to a particular type of
training, the Applied Behaviour Analysis envisaged in this
case. It was submitted that during the trial the State had for
the first time in 20 years produced an individual education
plan for the first plaintiff. Counsel submitted that its
inadequacy and incompetence had led to it being
condemned and treated with dismay by all experts. At the
conclusion of the trial the State were still arguing that the
first plaintiff was not autistic. Counsel submitted that the
home based Applied Behaviour Analysis recognised
programme was the only viable programme presented to the
court. Thus, he submitted, this was an exceptional case
requiring a mandatory order such as that made.
6. Counsel addressed the second plaintiff's case. He referred
to the summarisation of her position by the learned trial
judge and he referred to the findings of the learned High
Court Judge. Counsel for the plaintiffs submitted that the
State now submitted that she had no constitutional rights.
He submitted that this had not been pleaded, that her rights
were not disputed in the High Court, that the case was made
on duplicity in the High Court.

7. Counsel then drew conclusions and argued that the court
should uphold the learned trial judge on the issue of the
entitlement to have free primary education provided to
adults, sought that the mandatory order be upheld in the
exceptional circumstances and submitted that the appeal
against the decision in the second plaintiff's case be
dismissed.
[2001]
2 I.R.
Denham J.
652
S.C.
6. The first plaintiff's case
The State has conceded that the first plaintiff had a right to
have the State provide for free primary education throughout
childhood. The State has conceded that it has breached the
first plaintiff's rights. The State has agreed to pay the
general damages and education for the three years ordered
for the first plaintiff by the High Court and has undertaken to
pay all the costs of the proceedings in the High Court and
Supreme Court.
The State submitted that the first plaintiff's right to free
primary education exists only until he is an adult. The case
was submitted that 18 is the age at which a child becomes
an adult. Consequently, it was submitted, the right to free
primary education ceases when a person achieves the age of
18. On the other hand counsel for the first plaintiff submitted
that the right to free primary education is a promise open to
all citizens with no time limitation.
Thus the issue for determination on this appeal is whether
the right to the provision of free primary education under
Article 42.4 of the Constitution of Ireland is a right given to
children or to all citizens irrespective of age. If it is a right
only for a child, then the question is at what age does the
right cease.
The State shall provide for free primary education:

Constitution of Ireland, Article 42.4. This is an obligation
expressly stated in the Constitution. The nature of primary
education has been the subject of previous cases: In re the
School Attendance Bill, 1942 [1943] I.R. 334; Ryan v.
Attorney General [1965] I.R. 294; Crowley v. Ireland [1980]
I.R. 102; O'Donoghue v. Minister for Health [1996] 2 I.R. 20;
O'Shiel v. Minister for Education [1999] 2 I.R. 321; Director
of Public Prosecutions v. Best [2000] 2 I.R. 17. The nature of
primary education is not in issue in this case. The State has
conceded that the education which the first plaintiff is
receiving is primary education. Whether or not the education
is primary education is not a matter for analysis or decision.
The issue for determination is the age to which a person is
entitled to the provision of free primary education, whether
the entitlement is for life or for childhood. It is a matter of
construing the Constitution to determine the age ambit for
which free primary education is provided. Does it exist for
children only? Does it exist for people of all ages?
Article 42.4 of the Constitution states that the State shall
provide for free primary education. Article 42 comes under
the heading"Education". The Constitution 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 42.1. Parents are free to
provide this education in their homes or in private
[2001]
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Denham J.
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S.C.
schools or in schools recognised or established by the State:
Article 42.2. The Constitution expressly provides that the
State shall not oblige parents in violation of their conscience
and lawful preference to send their children to schools
established by the State, or to any particular type of school

designated by the State: Article 42.3.1. The State shall,
however, as guardian of the common good, require in view
of actual conditions that the children receive a certain
minimum education, moral, intellectual and social: Article
42.3.2. Onto this bedrock comes Article 42.4, the article in
issue, which provides:"The State shall provide for free primary education and shall
formation."
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.
It is clear from the wording of Article 42 that education is
grounded in the family sphere. The family consists of
children and parents. The primary educator is the family,
which is expressly protected. Both the parents and children
have rights. A balance is created. Whilst the family remains
the primary educator, the State, as guardian of the common
good, shall require a certain standard. This standard is
described as a certain minimum education, moral,
intellectual and social. It is certainly not a high standard.
Into this formation the right to have provided free primary
education is placed. I am satisfied that counsel for the first
plaintiff was correct when he described it as a promise to the
people. It is reflective of community values. It is reflective of
the approach of the people of Ireland to education.
Article 42.4 is placed in an Article redolent of the family,
where children are addressed as part of a family, where the
primary educator is acknowledged as the family. It paints a
picture of a family of two parents, mother and father, and
children learning from their parents.
The term "child" falls to be construed in light of the plain

language of Article 42. The word "child" in general use
describes a young person. It is a term used in a context
where the focus is on the family, parents and children. The
Article anticipates the teaching of young children. The Article
makes reference to schools - of different types. The Article
specifically refers to children. The Article speaks of a certain
minimum education. The Article addresses the rights of
parents. The Article stresses
[2001]
2 I.R.
Denham J.
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S.C.
education in a context of schools. The article is not
addressing issues such as, for example, succession where
the term "child" might be used in a different sense. It would
be rewriting the Constitution to construe the term "child" as
meaning a childish person. Consequently, the meaning of
the words "child" and"children" is clear. There is no
ambiguity. The child is described within a family where the
parents are the educator. It is addressed to a young person.
It is age related.
I am reinforced in this view by the fact that Article 42
follows Article 41 which relates to the family. The family is
acknowledged as the natural primary and fundamental unit
group of society. The words of Article 42, including those
relating to the family, parents and children, continue the
theme.
The essence of Article 42 is the concept of the family, and a
child growing up in the heart of the family. Article 42
describes the situation of the education of a young person
within the family unit, a young person who is growing and
learning. It also makes provision for intervention for the
common good to require that children receive a certain
minimum education. A person who has achieved adulthood
is no longer subject to parental authority or decisions such
as are envisaged in Article 42.

For all these reasons I am satisfied that Article 42 does not
relate to adults. It does not give to adults the right to free
primary education. This right is reserved for children. This is
not to limit in any way other rights which may be extant in
the Constitution relating to adults, whether they be able
bodied or disabled. Thus as the right provided for in Article
42.4 runs for children only, the next question is to what age
the right runs.
In general primary school is completed when a child is
under 14 years of age. This case deals with particular facts.
It is conceded that the first plaintiff has the right until he is
18. The choice of 18 years of age is somewhat arbitrary. The
choice is based on the fact that a young person becomes an
adult in the eyes of the community in many aspects at the
age of 18. He or she may vote, inter alia.
Most children finish primary education, as it is understood in
a general sense, between the ages of 12 and 14 years of
age. Thus on first impression it would appear that 14 is a
more logical age than 18. However, the right to have free
primary education provided is a fundamental and important
right established by the Constitution. It is a right with which
certain individuals or groups may encounter physical, mental
or social difficulties in exercising. Therefore, the norm may
not cover minorities. The right is given to all children. It is
appropriate that the construction of the Article should ensure
that all children may get the benefit of the right.
Consequently, it is fitting that the age at which the right
ceases to exist is when the person is no longer a child.
Therefore it is reasonable to take the age at which society
[2001]
2 I.R.
Denham J.
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S.C.
treats a young person as an adult as the age when the right
ceases to exist. The State's case that the first plaintiff is
recognised as an adult when he reaches 18 years of age is

reasonable.
To sum up this issue: I am satisfied that the right that the
State shall provide for free primary education is a right in
relation to children. The term children is age related. Under
society'smores, general practice and some laws it is
appropriate to determine that a person is no longer a child at
the age of 18. Thus the first plaintiff had a right to the
provision of free primary education until he reached 18 years
of age but he has not got the constitutional right to free
primary education after that age. That is not to say that the
first plaintiff will not require continuing support and training
beyond the age of 18. Much of the first plaintiff's education
at present, using the word in its broad sense, is not the
teaching of anything new but rather continued practice so
that he may retain the skills he has learnt. Such is not an
Article 42.4 matter. However, the first plaintiff's other
personal rights under the Constitution, including the right to
dignity and bodily integrity, continue.
7. Separation of powers
The order of the High Court envisaged ongoing education
and gave rise to legal argument in this court on the
separation of powers. All powers of government derive from
the people: Article 6.1. These powers are exercised by the
organs of government established by the Constitution, being
legislative, executive and judicial. The functions of
government are divided between these three branches of
government. The separation of powers involves not only
rights - but duties also. It establishes areas of activity and
boundaries: Crotty v. An Taoiseach [1987] I.R. 713, Finlay
C.J. at p. 772. No one of the three organs is given a
paramount place. In Murphy v. Dublin Corporation [1972]
I.R. 215 at p. 234, Walsh J. stated:"As the legislative, executive, and judicial powers of
government are all exercised under and on behalf of the
State, the interest of the State, as such, is always involved.
The division of powers does not give paramountcy in all
circumstances to any one of the organs exercising the
powers of government over the other."
In addition to recognising and applying the doctrine of the

separation of powers it is important to afford respect to the
decisions of each of the constitutional organs of State. It is
from this basis that analysis of governmental decisions
commences.
The doctrine of the separation of powers arose for debate
only in relation to the issue of a mandatory order of the court
as to the education of the first plaintiff. However, the State
has conceded breach of the first plaintiff's right and has
agreed to continue the first plaintiff's education as
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ordered by the High Court. Also, as the first plaintiff's
constitutional right ceased when he became 18 years of age
there is no question of a mandatory order for the future. It is
no longer a matter for determination, thus there is no issue
of separation of powers to be decided in this case.
In general the matter of a mandatory order will not arise. It
is a practice for the executive, when an issue is being
litigated that could give rise to a mandatory order, to
indicate that should the decision be against the State a
declaratory order would be sufficient. Similarly, the courts
assume that decisions will be implemented and that
mandatory orders are not necessary. Thus a declaratory
order, if any order is necessary, is usually appropriate.
However, I would not exclude the rare and exceptional case,
where, to protect constitutional rights, the court may have a
jurisdiction and even a duty to make a mandatory order.
8. The second plaintiff's case
8.1. Noteworthy factors
There are a number of noteworthy factors about the second
plaintiff's case. It is unusual in a number of ways.
(a) As regards the course of the case itself it is unusual.
(i) The second plaintiff claimed a declaration that the State
in failing to provide for free education for the first plaintiff

appropriate to his needs as a profoundly mentally disabled
child and in discriminating against her son, in respect of the
provision of appropriate educational facilities vis- -vis other
children, has deprived her of her constitutional rights
pursuant to Articles 40.1, 40.3.1 and 2, 41.1.2, 41.2, 42.1 to
4. The second plaintiff claimed damages for breach of her
constitutional rights, negligence and breach of duty. Further,
the second plaintiff claimed a mandatory injunction directing
the State to provide for free education for the first plaintiff
benefiting from same. The State pleaded in defence that it
had provided for free primary education for the first plaintiff;
it denied that the State had deprived the second plaintiff of
any of her constitutional rights pursuant to Article 40.1,
40.3.1 or 2, 41.1 or 2, 42.1 or 42.2 to 4, it denied that the
State had been guilty of negligence or breach of duty; and it
pleaded that the second plaintiff is not entitled to have her
son provided with free education for as long as he is capable
of benefiting from it; and it was pleaded that she was not
entitled to the relief sought or any relief.
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(ii) In the High Court, the State opposed the claim of the
second plaintiff largely on the ground that it duplicated the
first plaintiff's claim.
(iii) However, on this appeal the State submitted that the
second plaintiff has no cause of action in law. This was not
pleaded in the High Court. The Supreme Court was asked to
take this point of its own motion. Counsel for the second
plaintiff pointed to this unusual situation, that aspects - not
pleaded or advanced in submissions nor the subject of
appeal - had been placed before the Supreme Court by
counsel for the defendants with the request that they be

taken into account. Counsel for the second plaintiff
submitted that this should not be allowed and supported this
argument by submitting that the State did not contest her
rights in the High Court but argued a duplicity. Further, it was
submitted that the Statute of Limitations was not pleaded,
the learned trial judge took the point and it was not
appealed.
(b) It is noteworthy also that the State has made
considerable concessions in this case. The State has
conceded the majority of the first plaintiff's case. The case
took 29 days in the High Court. It was hard fought. Now the
State has conceded the first plaintiff's right to free primary
education to the age of 18 and has undertaken to pay
damages and costs. Further, apparently the State has agreed
to pay the 15,000 special damages awarded to the second
plaintiff.
(c) The claim is noteworthy also in that, as regards the
second plaintiff, it is grounded on aspects of the Constitution
which have not been the subject of much attention in case
law.
(d) An analogy was drawn between the position of the
second plaintiff and the developing law on negligence and
injury, such as post-traumatic stress disorder, where the
plaintiff was not at the scene of the event yet suffered injury.
Reference was made to Mullally v. Bus ireann [1992] 1
I.L.R.M. 722.
(e) The facts are not in issue. Thus the case is based on the
facts as found by the learned High Court Judge. On the facts
the High Court made a clear finding on fact and law in favour
of the second plaintiff.
I bear these noteworthy factors in mind in reaching a
decision in this case.
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8.2. Remedies
It has long been recognised that the courts have the power
to remedy breaches of constitutional rights. This was
described classically in The State (Quinn) v. Ryan [1965] I.R.
70 by Dlaigh C.J. at p. 122 where he stated:"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 the
Courts' powers in this regard are as ample as the defence of
the Constitution requires."
Also, in Byrne v. Ireland [1972] I.R. 241 at p. 264, Walsh J.
stated:"In several parts in the Constitution, duties to make certain
provisions for the benefit of citizens are imposed on the
State in terms which bestow rights upon the citizens and,
unless some contrary provision appears in the Constitution,
the Constitution must be deemed to have created a remedy
for the enforcement of these rights."
He continued at p. 280:"In my view, that was clearly enforceable against Saorstt
ireann if no provision had been made to implement that
Article of its Constitution.
There are several instances in the Constitution of Ireland
also where the State undertakes obligations towards the
citizens. It is not the case that these are justiciable only
when some law is being passed, which directly infringes
these rights or when some law is passed to implement them.
They are justiciable when there has been a failure on the
part of the State to discharge the obligations or to perform
the duties laid upon the State by the Constitution. It may
well be that in particular cases it can be shown that some
organ of the State already has adequate powers and may in
fact have had imposed upon it the particular duty to carry
out the obligation undertaken by the State, but that would

not mean that the State was not vicariously liable for the
non-performance by its various organs of their duties."
He also stated at p. 281:"Where the People by the Constitution create rights against
the State or impose duties upon the State, a remedy to
enforce these must be deemed to be also available."
Barrington J., in McDonnell v. Ireland [1998] 1 I.R. 134 at
pp. 147 to 148, said:[2001]
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"It is only when the legislature has failed in its constitutional
duties to defend or vindicate a particular constitutional right,
pursuant to the provisions of Article 40.3 of the Constitution,
that this court, as the court of last resort, will feel obliged to
fashion its own remedy."
Later, Barrington J. said at p. 148:" constitutional rights do not need recognition by the
legislature to be effective. If necessary the courts will
define them and fashion a remedy for their breach."
In Boland v. An Taoiseach [1974] I.R. 338, Fitzgerald C.J.
said at pp. 361 to 362:"[Article 6] [established] beyond question the separation
of the executive, legislative and judicial powers of
government Consequently, in my opinion, the courts
have no power, either express or implied, to supervise or
interfere with the exercise by the Government of its
executive functions, unless the circumstances are such as to
amount to a clear disregard by the Government of the
powers and duties conferred upon it by the Constitution."
In the same case, Griffin J., at pp. 370 and 371, having
referred to Article 15.2.1, Article 28.2 and Articles 34.1,
stated that:-
"In the event of the Government acting in a manner which is

in contravention of some provisions of the Constitution, in
my view it would be the duty and right of the courts, as
guardians of the Constitution, to intervene when called upon
to do so if a complaint of a breach of any of the provisions of
the Constitution is substantiated in proceedings brought
before the courts."
And in D.G. v. Eastern Health Board [1997] 3 I.R. 511 at p.
522 Hamilton C.J. stated:"If the courts are under an obligation to defend and
vindicate the personal rights of the citizen, it inevitably
follows that the courts have the jurisdiction to do all things
necessary to vindicate such rights."
The second plaintiff seeks a declaration and damages. It is
not a case where a mandatory order against the State is in
issue. The question is whether the cause of action or the
right or rights contested exist and were breached. The issue
is whether the second plaintiff has rights which have been
breached or another cause of action. If she has, the court
has jurisdiction to make the relevant orders.
8.3. Articles of the Constitution
The major contention on behalf of the second plaintiff rests
on a number of Articles and rights thereunder. These rights
are the rights and duties arising in relation to the right to
equality: Article 40.1; rights in relation to the family: Article
41; and the rights and duties arising under Article 42.
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8.3.a. Equality
Article 40.1 provides that all citizens as human persons shall
be held equal before the law. This does not mean uniformity.
Due regard may be had to differences of capacity, physical
and moral, and of social function.
Article 40.1 forbids discrimination or distinctions which are

unjust, unreasonable or arbitrary: O'B. v. S. [1984] I.R. 316,
Walsh J. at p. 335. The mere fact of discrimination or
distinction as between persons or groups does not make the
difference unconstitutional. Invidious discrimination is
unconstitutional: People (Director of Public Prosecutions) v.
Quilligan and O'Reilly (No. 3) [1993] 2 I.R. 305 at p. 321.
There is no question but that the treatment of the first
plaintiff by the State would not be as an able bodied child.
However, he was entitled to be held equal - to be provided
with free primary education. Similarly the second plaintiff
was entitled to be held equal before the law as a parent and
a mother.
The second plaintiff had duties in relation to all her children
- including those duties related to education. In her role as
mother of the first plaintiff, the second plaintiff was
subjected to discrimination as between herself and another
mother of a child with no handicap and as between herself
as mother to her other children and as mother to the first
plaintiff. Distinctions of themselves would not be invalid;
indeed they would be valid in that the education of the first
plaintiff would follow a different pattern. But an absence of
provision of free primary education for the first plaintiff,
which the State has conceded breached the first plaintiff's
rights, also discriminated against the second plaintiff's duty
and role, as opposed to that of the mother of a child of
average intelligence, in a manner that was unjust and
invidious. Thus the second plaintiff's rights were breached
and she was discriminated against invidiously.
There were facts found as to the position of the second
plaintiff by the learned trial judge. These included the
additional burden of work, the additional time and effort
required to attend to the first plaintiff, the fact that this left
the second plaintiff worn out, and gave rise to anguish and
distress because of the State's attitude. These facts were not
appealed.
As a parent and mother, the second plaintiff was entitled to
be held equal before the law. In accordance with her rights
and duties as a parent and mother she sought that free
primary education be provided for the first plaintiff. This was

not done. The State did not provide for her disabled son. As
a consequence she had to shoulder additional burdens. This
lack of provision is now recognised as a breach of the first
plaintiff's rights by the State. However, it is also a breach of
the second plaintiff's right to be held equal. The second
plaintiff was not held equal to a parent of a normal child in
that no provision was made for her son's education.
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This is an invidious discrimination. This is not to say that the
second plaintiff is to be treated identically to a parent of a
child who is able bodied. Nor is it to say that provision must
be made for education to optimum levels in all
circumstances. Matters of policy and finance are relevant
factors for the policy makers. However, in this case, where
the breach of the first plaintiff's right is acknowledged by the
State, a consequence is that the rights and duties of the
parents were also affected and breached. The second
plaintiff's rights in relation to her child were not held equal.
The second plaintiff suffered invidious discrimination. Nonparental family members do not have such rights and no
claim of discrimination would be sustainable.
8.3.b. The family
Article 41 comes under the heading "The Family". It states:"41.1.1 The State recognises the Family as the natural
primary and fundamental unit group of Society, and as a
rights, antecedent and superior to all positive law.
41.1.2 The State, therefore, guarantees to protect the
Family in its constitution and authority, as the necessary
the Nation and the State."
The family of the Constitution, which has rights and duties,

is based on a valid marriage. In The State (Nicolaou) v. An
Bord Uchtla [1966] I.R. 567, at p. 643, Walsh J. pointed out
that the family referred to in Article 41:" is the family which is founded on the institution of
marriage and, in the context of the Article, marriage means
valid marriage under the law for the time being in force in
the State."
The fact that the family under the Constitution is based on a
valid marriage has been a matter for discussion.
Recommendations for some alterations in the Article were
made by the Constitution Review Group, 1995. However, any
such controversy is irrelevant to this case. The plaintiffs are
a family for the purpose of Article 41.
The second plaintiff was married to the first plaintiff's father.
Whilst the second plaintiff has been separated from her
husband for a number of years and she is the sole carer for
the first plaintiff, they are still a family in accordance with
the Constitution. Consequently the benefits, rights and
duties of the Constitution are attached to the second
plaintiff.
Article 41.1 recognises the family as a unit. It is the building
block of our society. This unit has rights. In Murray v. Ireland
[1985] I.R. 532, at pp. 537 and 538, Costello J. said:[2001]
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" the rights, in Article 41, s. 1, sub-s. 1 are those which
can properly be said to belong to the institution itself as
distinct from the personal rights, which each individual
member may enjoy by virtue of membership of the family."
The rights recognised by Article 41 are those of the family
and they may be protected by a member of the unit. The
member qua member of the unit also has rights which he or
she may defend. The parents have a duty to the children of

the family which they may defend.
Thus the second plaintiff has rights as part of the unit of the
family and duties as a parent within that unit. If there is a
breach by the State of a right of one of the members of the
unit, as, for example, here the child the first plaintiff, then
because of the nature of the right breached this may have
an impact on the family as a unit and the parent in the
family. The negative impact on the family and the second
plaintiff of the breach by the State was fully documented by
the learned High Court judge.
Article 41 does not mention the child. It has been inferred
that this may be interpreted as giving to parents more value
than children. Even taking this interpretation at face value it
strengthens the position of the second plaintiff.
The Constitution does not recognise a special role for
fathers. However, at the time when the Constitution was
enacted, as case law illustrates, the father had a dominant
authority in the family. It was taken for granted that he
would provide for the family and lead the family.
The mother is specifically mentioned in Article 41.2. which
states:"41.2.1 In particular, the State recognises that by her life
within the home, woman gives to the State a support without
which the common good cannot be achieved.
41.2.2 The State shall, therefore, endeavour to ensure that
engage in labour to the neglect of their duties in the home."
And Article 41.3.1 further emphasises the special position of
the family by stating:"The State pledges itself to guard with special care the
to protect it against attack."
The position afforded to women and mothers by Article 41
has been described in a negative fashion. Thus the
Constitution Review Group, at p. 333, stated:"Article 41.2 assigns to women a domestic role as wives and
mothers. It is a dated provision much criticised in recent
years. Notwithstanding its terms, it has not been of any
particular assistance even to women working exclusively

within the home."
[2001]
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It is true that the Article has not been of assistance even to
women working exclusively within the home. In L v. L.
[1992] 2 I.R. 77, the High Court (Barr J.) held that a wife who
had not worked outside the home could derive rights from
Article 41. Barr J. stated at pp. 98 and 99:"In my view the judiciary has a positive obligation to
interpret and develop the law in a way which is in harmony
with the philosophy of Article 41 as to the status of woman in
the home. It is also in harmony with that philosophy to
regard marriage as an equal partnership in which a woman
who elects to adopt the full-time role of wife and mother in
the home may be obliged to make a sacrifice, both economic
and emotional, in doing so. In return for that voluntary
sacrifice, which the Constitution recognises as being in the
interest of the common good, she should receive some
reasonable economic security within the marriage. That
concept can be achieved, at least in part, by recognising that
as her role as full-time wife and mother precludes her from
contributing, directly or indirectly, in money or money's
worth from independent employment or avocation towards
the acquisition by the husband of the family home and
contents, her work as home-maker and in caring for the
family should be taken into account in calculating her
contribution towards that acquisition - particularly as such
work is of real monetary value."
Barr J. held that the wife and mother had a 50% beneficial
ownership in the family home. This was reversed on appeal
by the Supreme Court. However, by inference it raised the
possibility of joint ownership of the home. There followed the
Matrimonial Home Bill, 1993, which was referred to the

Supreme Court under Article 26 by the President. In In re the
Matrimonial Home Bill, 1993 [1994] 1 I.R. 305, under the
provisions as provided in the Constitution for such
references, the judgment of the court, determining that the
bill was unconstitutional, was given by Finlay C.J. who stated
at p. 326:"Having regard to the extreme importance of the authority
of the family as acknowledged in Article 41 of the
Constitution and to the acceptance in that Article of the fact
that the rights which attach to the family including its right
to make decisions within its authority are inalienable and
imprescriptible and antecedent and superior to all positive
law, the court is satisfied that such provisions do not
constitute reasonably proportionate intervention by the
State with the rights of the family and constitute a failure by
the State to protect the authority of the family."
Both L. v. L. [1992] 2 I.R. 77, 101 and In re the Matrimonial
Home Bill, 1993 [1994] 1 I.R. 305 related to property (the
home). They also related to rights as between spouses - a
balance involving property
[2001]
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ownership. Neither case related to rights of a parent or
parents or of the family as against others outside the family
unit.
When Article 41 was being drafted and included in the
Constitution there was a negative view expressed of the role
apparently consigned to women. It has been considered by
some that the Article was rooted in a particular Christian
philosophy. It was queried as to whether it placed the woman
in the home to the detriment of other areas.
Whatever historical concepts and byways may be traced the
reality is that the Constitution sets out constitutional rights,
duties and powers. The Constitution is a living document. It

must be construed as a document of its time. In McGee v.
Attorney General [1974] I.R. 284 at p. 319 Walsh J. stated:" no interpretation of the Constitution is intended to be
final for all time. It is given in the light of prevailing ideas
and concepts."
Thus Article 41 is an Article of the 21st century, an Article of
our times. In this century the family remains the core unit of
our society. While the nature of family is evolving in society,
as a constitutional unit the family remains grounded on
marriage.
The Constitution is a constitution of the people expressing
principles for its society. It sets the norms for the community.
It is a document for the people of Ireland, not an economy or
a commercial company. The first of the cases in this
judgment illustrates the promise given by the people of
Ireland to future generations that the State would provide for
free primary education for its children. The promise is an
acknowledgement of the great importance placed by the
people of Ireland on the education of children.
Equally, the second case in this appeal is grounded on a
fundamental concept - even more so perhaps - that our
society is built on the family. Further, that within the family
the special benefit given by women in the home, is
recognised. It is acknowledged that that benefit is not just
for the particular home, family and children, but for the
common good.
This special recognition is of the 21st century and belongs
to the whole of society. It is not to be construed as
representing a norm of a society long changed utterly.
Rather it is to be construed in the Ireland of the Celtic Tiger.
As important now as ever, is the recognition given. It is a
recognition for all families - of whatever religion or none.
Thus, in Ireland, in relation to the family and the home,
women have a constitutionally recognised role which is
acknowledged as being for the common good. This gives to
women an acknowledged status in recognition not merely of
the physical aspect of home making and family building, but
of the emotional, social, physical, intellectual and spiritual
work of women and mothers. The undefined and valuable

role of the father was presumed and remained
unenumerated by the drafters of the Constitution.
[2001]
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Article 41.2 does not assign women to a domestic role.
Article 41.2 recognises the significant role played by wives
and mothers in the home. This recognition and
acknowledgement does not exclude women and mothers
from other roles and activities. It is a recognition of the work
performed by women in the home. The work is recognised
because it has immense benefit for society. This recognition
must be construed harmoniously with other Articles of the
Constitution when a combination of Articles fall to be
analysed.
8.3.c. Education
Article 42 comes under the heading "Education". It
acknowledges the primary role of the family as the educator
of the child and guarantees protection of the role of the
parents in providing, according to their means, for the
religious and moral, intellectual, physical and social
education of their children. Parents are given a choice as to
where they give the education to their children provided that
the children receive a certain minimum education, moral,
intellectual and social. The requirement for free primary
education is provided for and the rights of parents is
expressed. It is only in exceptional cases where the parents
fail in their duty towards their children that the State as
guardian of the common good shall endeavour to supply the
place of parents, but this has to be with due regard to the
rights of the child.
Consequently, educational rights are interwoven with the
family, parental rights and duties, and the rights of the
children. Article 42.4 creates rights. The provision in Article

42.4 is not created in a vacuum. It imposes a duty to provide
the right and a right to receive it.
Thus O'Higgins C.J. stated in Crowley v. Ireland [1980] I.R.
102 at p. 122:" the imposition of the duty under Article 42, s. 4 creates
a corresponding right on those in whose behalf it is imposed
to receive what must be provided it cannot be doubted
that citizens have the right to receive what it is the State's
duty to provide for under Article 42, s. 4."
I adopt this approach. It applies to all who have a right to
receive the provision of the education - the family, the
parents, the child. Thus the first plaintiff had the right to
have free primary education provided for him. So too did the
second plaintiff have the right to have free primary
education provided for the first plaintiff.
The second plaintiff had a constitutional right as part of the
family and as mother in relation to her son's education. As a
parent she had rights and duties. The duty included the
education of the first plaintiff. This duty was breached in that
she could not afford private education and needed to rely
[2001]
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on the constitutional right to have free primary education
provided. This was not done. Thus her rights as a parent
were breached. The second plaintiff's rights under Article 42,
and especially under Article 42.4 were breached. Indeed, as
the case law over the last 60 years shows most cases
relating to children's education are brought by parents - not
children - as a breach of their rights as well as the children's
rights.
8.3.d. Duty of care
Counsel on behalf of the second plaintiff also raised the
issue of duty of care, and negligence was pleaded in the
pleadings. The analogy was drawn and reference made to

Mullally v. Bus ireann [1992] 1 I.L.R.M. 722. I took a
similar approach in Kelly v. Hennessy [1995] 3 I.R. 253
where at p. 274, I stated:"I am satisfied that a person with a close proximate
relationship to an injured person, such as the plaintiff, who,
while not a participant in an accident, hears of it very soon
after and who visits the injured person as soon as is
practicable, and who is exposed to serious injuries of the
primary victims in such a way as to cause a psychiatric
illness, then she becomes a secondary victim to the
accident. In reaching these determinations it is necessary to
review the accident and immediate aftermath in an ex post
facto way to test the situation."
The nexus between the plaintiffs could not be closer, nor is
there any appeal against the findings of fact of injury to the
second plaintiff. As to whether the State can breach with
impunity the constitutional rights of a person and thereby
injure a person in close proximity is an issue that need not
be determined in light of the breach of the second plaintiff's
constitutional rights. I make no decision on the civil issue of
duty of care in this case.
9. Conclusion
The Constitution of Ireland is a constitution for the people of
Ireland not an economy. The Constitution is a constitution for
Irish society. The Constitution establishes the principles by
which the community wish to live. It places the family as the
primary unit group of society. It sets out the rights of the
members of the society. At issue in this case are
fundamental concepts of the Constitution, the right to have
free primary education provided, the role of the family in
education, equality and the recognition of the work done by
women and mothers in the home for the common good.
There were facts found as to the additional burden of work,
additional time, worry and anguish placed on the second
plaintiff in her duties in
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relation to the first plaintiff by the State's acknowledged
breach of its duties. The High Court held at p. 594 that:"The second plaintiff has also suffered harm, loss and
damage by reason of the failure of the State to honour its
constitutional obligation to provide adequately for her son's
education and training, all of which was a reasonably
regard."
Upon the facts found it was open to the learned trial judge
to come to such a conclusion. There was no appeal on the
facts.
As to the law and the Constitution I am satisfied that:(a) There are a number of noteworthy factors about the
second plaintiff's case, see para. 8.1.
(b) The courts have the power to remedy breaches of
constitutional rights.
(c) The second plaintiff as a parent with duties to her child
was not held equal and suffered invidious discrimination
from the State, see para. 8.3.
(d) The second plaintiff as a parent of a family had a duty to
her child of the family and she was entitled to defend the
institution of the family which suffered as a consequence of
the State's breach, see para. 8.3.
(e) The special recognition given to the role of women and
mothers within the home by the Constitution must be read
harmoniously with other articles of the Constitution, see
para. 8.3.
(f) The second plaintiff had the right as a parent to the
benefit of the provision of free primary education for her
child and this right was breached by the State.
In light of these and the other matters herein relating to
Article 40.1, Article 41 and Article 42.4 of the Constitution,
the learned High Court Judge had a constitutional basis for
his decision which I would uphold.
In relation to the five issues submitted as needing to be
determined by counsel for the defendants, I would answer as

follows:1. Article 42.4 of the Constitution of Ireland does not afford
a constitutional right to free primary education to adults.
2. The right to free primary education established in Article
42.4 of the Constitution does not envisage a right to
education for life.
3. The matter of a mandatory order does not arise, it is not
an issue in the appeal as a consequence of the decisions at
paras. numbers 1 and 2 above.
4. Question 4 presupposes that there is only one cause of
action. This is an error. The second plaintiff has a cause of
action. Damages may be awarded to separate persons
arising out of the same set of
[2001]
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Denham J.
668
S.C.
facts, for example victims of a road traffic accident; and
where persons have suffered a breach of a constitutional
right by the State.
5. Question 5 presupposes, in error, that there was no
breach of the constitutional rights of the second plaintiff.
Counsel for the plaintiffs raised six points. I would answer
them as follows:1. The matter of a breach of the first plaintiff's constitutional
rights was conceded by the State. The first plaintiff is
entitled as a matter of law to an order for damages; an ex
gratia payment does not reflect the (conceded) breach of his
2. Article 42 requires the provision of free primary education
for children. The State has a duty to provide for free primary
education to all children. It is reasonable to construe the
Constitution as granting this childhood right as including
persons up to the age of 18. This is a broad interpretation in
light of the more usual age when free primary education
ceases but is consistent with recognising the special needs

of some children and cherishing all children.
3. The nature of primary education was not an issue. The
State conceded that the first plaintiff was now receiving
primary education.
4. The courts have the power and, in certain circumstances,
the duty to intervene in circumstances where constitutional
rights have been violated or to protect constitutional rights. I
would not exclude the possibility of a mandatory order
against the State in the rare and exceptional case where it
may be necessary in the circumstances to protect
5. The matter of mandatory orders does not arise in this
case in light of the decision that the right to the provision of
free primary education ceases when a child reaches 18 years
of age. There is no question of a mandatory order as the first
plaintiff is now an adult.
6. The State case argued in the Supreme Court against the
second plaintiff was different from that argued in the High
Court. As a matter of proceedings and law this approach is
inappropriate. I am satisfied that the second plaintiff has a
constitutional status, rights and duties as a mother which
should be upheld and were not.
Thus in relation to the three kernel issues of this case I
conclude:1. The breach of the first plaintiff's constitutional right that
the State provide for free primary education was conceded.
The first plaintiff's constitutional right to the provision of free
primary education existed during his childhood and ceased
when he reached adulthood
[2001]
2 I.R.
Denham J. Murphy J.
669
S.C.
which, it is reasonable to construe, commenced at the age
of 18.
The first plaintiff is entitled to a declaration that the first

defendant in failing to provide for free primary education for
him up to the age of 18 years of age, appropriate to his
needs as a severely autistic child with related profound
mental handicap, has deprived him of his constitutional
rights under Article 42.4 of the Constitution. He is also
entitled to the damages awarded as a matter of law.
Nothing in this judgment should be regarded as negating
any other constitutional rights which the first plaintiff might
have.
2. The matter of mandatory orders does not arise for
decision as the first plaintiff has passed his 18th birthday.
Also, the issue does not arise for consideration as the State
has agreed to pay the damages and to pay for the education
ordered by the High Court for the first plaintiff to 2003.
In light of the determination that the right to the provision of
free primary education exists only for children and ceases at
the age of 18, and that provision is made for education for
the first plaintiff to an age in excess of 18 years, I am
satisfied that the damages need not be reassessed. In
coming to this conclusion, while I am conscious of the loss
afforded to the first plaintiff by the absence of education in
his youth, I balance this against the conceded future
education as ordered by the High Court and the fact that the
State informed this court that it accepted the first plaintiff
would need further training and that provision would be
made for that.
3. For the reasons stated, I would dismiss the appeal of the
State against the judgment and order of the High Court in
relation to the second plaintiff. The second plaintiff is
entitled to a declaration that her constitutional rights under
Article 42.4, Article 41 and Article 40.1 were breached and to
the award of damages made by the learned High Court
Judge.
Murphy J.
The first plaintiff was born on the 11th October, 1977.
Within some months of his birth he began to display the
symptoms of the autism with which he is afflicted. The heroic
efforts made by his mother, the second plaintiff, to have his

condition assessed, treated and managed both in the United
States and this country have been set out in the judgment of
Barr J. and summarised in the judgment of Keane C.J. It is
unnecessary for me to repeat them. Suffice it to say that it
has been difficult, and it will be
[2001]
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Murphy J.
670
S.C.
impossible, for this devoted mother to meet unaided the
very special needs of her autistic son.
The extent of the first plaintiff's disability or the
consequences of it were summarised by his counsel in this
court in the following terms:"The first plaintiff is not capable of learning much more than
toilet training, preserving his mobility and responding to
simple instructions, and perhaps a few words."
It was in those tragic circumstances that the proceedings on
behalf of the first plaintiff were instituted. It was contended
that the State failed to afford him certain specific
constitutional rights to which he was entitled. Article 42.4 of
the Constitution imposes a mandatory obligation on the
State to "provide for free primary education". The same subarticle requires the State to "endeavour to supplement and
give reasonable aid to private and corporate educational
initiative, and, when the public good requires it, provide
other educational facilities or institutions". An absolute duty
exists in relation to what is described as "primary
education". The qualified duty exists in respect of the
provision of any other form of education or facilities for it.
The Constitution significantly imposes no obligation on the
State to provide health care of any description for its
citizens.
The first plaintiff was and is educable. In the most
favourable phases of his young life when he attended
schools managed by skilled therapists and operated on the

basis of a low ratio of students to teachers considerable
progress was made. However, the goals attainable are
limited and, tragically, there is the further complication that
progress when achieved cannot be maintained without
continuous support. In the High Court it was argued that the
help and assistance which the first plaintiff required (and
continues to require) consisted in whole or in part of what is
described as "primary education" in Article 42 of the
Constitution. The argument advanced was similar to that
which had been made successfully to the High Court in
O'Donoghue v. Minister for Health [1996] 2 I.R. 20. In his
analysis of the words"primary education" at p. 62, O'Hanlon
J. referred to the observations of Dlaigh C.J., in Ryan v.
Attorney General [1965] I.R. 294 where he explained, at p.
350 what constituted education and, more particularly, what
did not:"Education essentially is the teaching and training of a child
to make the best possible use of his inherent and potential
capacities, physical, mental and moral. To teach a child to
minimise the dangers of dental caries by adequate brushing
of his teeth is physical education for it induces him to use his
own resources. To give him water of a nature calculated to
minimise the danger of dental caries is in no way
[2001]
2 I.R.
Murphy J.
671
S.C.
to educate him, physically or otherwise for it does not
develop his resources."
In O'Donoghue v. Minister for Health [1996] 2 I.R. 20,
O'Hanlon J. not merely extended that definition of education
but, unlike Dlaigh C.J., expressly related, at pp. 65 to
67, his definition to Article 42.4 of the Constitution in the
following terms:"I conclude, having regard to what has gone before, that
there is a constitutional obligation on the State by the

provisions of Article 42.4 of the Constitution to provide for
free basic elementary education of all children that this
involves giving each child such advice, instruction and
teaching as will enable him or her to make the best possible
use of his/her inherent and potential capacities, physical,
mental and moral, however limited these capacities may be.
Or to borrow the language of the United National Convention
and Resolution of the General Assembly - 'such education as
will be conducive to the child's achieving the fullest possible
social integration and individual development; such
education as will enable the child to develop his or her
capabilities and skills to the maximum and will hasten the
process of social integration and reintegration."
The decision of O'Hanlon J. in O'Donoghue v. Minister for
Health [1996] 2 I.R. 20 was appealed to this court but the
appeal was withdrawn on terms which are recorded in a
footnote (at p. 72) to the report of the High Court decision in
the following terms:"The appeal on the part of the respondents pursuant to
notice of appeal dated the 23rd July, 1993, from the
judgment and order of the High Court (Mr. Justice O'Hanlon)
given and made on the 27th May, 1993, coming on for
hearing this day
Whereupon and upon opening and debate of the matter,
this Court being informed by counsel for the applicant and
by counsel for the respondents that the State is now
providing for the infant applicant education appropriate to
his current condition, this Court substitutes for the
declaration in the High Court a declaration that the infant
applicant is entitled to free primary education in accordance
with Article 42, s. 4 of the Constitution and the State is under
an obligation to provide for such education
And this Court notes the statement of counsel for the
respondents that the said respondents are not to be taken as
accepting the manner in which the learned trial judge
interpreted the said obligation
And this Court notes the statement of counsel for the
applicant that he is not to be taken as acknowledging any
error in the matter in which the learned trial judge

interpreted the said obligation
[2001]
2 I.R.
Murphy J.
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IT IS ORDERED that the order of the High Court do otherwise
stand affirmed and that the respondents do pay the
applicant the costs of this appeal, the said costs to be taxed
in default of agreement."
I believe that the judgment in O'Donoghue v. Minister for
Health [1996] 2 I.R. 20 was erroneous and that Barr J.
likewise erred in the conclusion which he reached as to the
meaning of the crucial words "primary education".
There is no question of setting aside the judgment of the
learned trial judge in that respect or the orders consequent
upon it. No appeal has been taken from that finding. The
State deliberately conceded that the needs of the first
plaintiff must be met within the context of the system of
primary education. The main thrust of the argument
addressed to this court on behalf of the State concerned the
period for which this obligation would persist. On behalf of
the State it was argued that the obligation to provide
primary education for the first plaintiff ceased when he
attained the age of 18 years. On the first plaintiff's behalf it
was argued that the right to primary education endured as
long as the student could benefit from it and, in the first
plaintiff's case, that would be for the remainder of his life.
It seems to me, however, that it is not possible to isolate
this debate from the more fundamental issue as to the
nature and meaning of"primary education" as used in Article
42 of the Constitution. This is a matter of legal interpretation
for the court and cannot be founded upon the agreement of
the parties or any concession made by either of them.
Furthermore, to require the court to decide what is a
derivative or consequential issue on the footing that the

substantive issue had been correctly determined would be to
invite the court to engage upon a moot. I do not see how this
court could purport to determine the duration or possible
duration of primary education without first satisfying itself as
to the meaning of that expression.
The nature, basis and purpose of the fundamental rights
recognised by the Constitution must be distinguished from
the purpose and character of not dissimilar rights inscribed
in other constitutions and the charters of distinguished
international organisations. The preamble to the
Constitution, which is frequently cited in identifying and
construing the rights and duties which it confers or
recognises, contains the following assertion:"In the Name of the Most Holy Trinity, from Whom is all
authority and to Whom, as our final end, all actions both of
men and States must be referred "
It is that destiny which provides the logical basis for the
constitutionally recognised rights of the individual. They
exist, and are exercisable primarily, as a means of achieving
the goal identified in the preamble. However desirable it may
appear economically or practically to permit or
[2001]
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Murphy J.
673
S.C.
require the State to engage in activities, or provide facilities
or services, the Constitution is careful to restrain the State
and any other organisation from usurping the functions of
the individual in his or her right and duty to achieve his
purpose and fulfill his destiny to the best of his ability.
Nowhere is this philosophy more clearly identified than in
Article 42 of the Constitution.
Having established the importance of "The Family" in Article
41.1.1 in the following terms:"The State recognises 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."
Article 42.1 then goes on to provide as follows:"The State acknowledges that the primary and natural
intellectual, physical and social education of their children."
The scheme of the article is best appreciated by passing
then to Article 42.5 which provides as follows:"In exceptional cases, where the parents for physical or
means shall endeavor to supply the place of the parents, but
always with due regard for the natural and imprescriptible
rights of the child."
Article 42 is unique: alone among all the fundamental rights
expressly or impliedly recognised by the Constitution it
refers to aduty imposed on the person upon whom the right
is conferred. The scheme of the Article is helpful for the
manner in which it recognises where the right and duty lies
and the circumstances in which the State may supplement
the performance of that duty. Whilst Article 42 does impose
significant duties on the State in relation to education the
article repeatedly expresses limitations on the right of power
of the State to intervene. In Article 42.3.1 it is provided that:"The State shall not oblige parents in violation of their
school designated by the State."
In Article 42.4 having empowered the State to provide
certain"educational facilities or institutions". This is limited to
circumstances where it can be done:" with due regard, however, for the rights of parents,
especially in the matter of religious and moral formation."
[2001]
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Murphy J.
674
S.C.
Similarly in Article 42.5 the right of the State to endeavour
to supply the place of parents who have failed in their duties
to their children can also be exercised only:" with due regard for the natural and imprescriptible
rights of the child."
In those circumstances it is perhaps surprising to find two
Articles expressly requiring the State to provide, or to
provide for, or to insist upon certain levels of education or
educational facilities. Article 42.3.2 provides as follows:"The State shall, however, as guardian of the common good,
require in view of actual conditions that the children receive
a certain minimum education, moral, intellectual and social."
And then the crucial provision with regard to primary
education at Article 42.4 in the following terms:"The State shall provide for free primary education and shall
formation."
The learned trial judge in the present case interpreted, as
O'Hanlon J. had done in O'Donoghue v. Minister for Health
[1996] 2 I.R. 20, the words "primary education" by adopting
the definition of education as provided by Dlaigh C.J. in
Ryan v. Attorney General [1965] I.R. 294, and equating the
word "primary" as used in the Article as meaning basic or
fundamental and in that way concluded that this was
education suitable to meet the very pressing needs of the
first plaintiff. Whilst I would have no difficulty in accepting
that the first plaintiff is in need of what would fall within the
general ambit of education and has a proven ability of
responding, albeit at a modest level, to such education I
could not accept that the needs which the first plaintiff had,
and has, for assistance from therapists, teaching staff,

paediatricians, consultant psychiatrists, social workers,
family therapists and psycho therapists could be equated
with primary education as that term was used in the
Constitution and understood by anybody familiar with the
system which existed when the Constitution was adopted or
indeed the philosophy lying behind the enactment of the
particular constitutional rights in respect of education. The
imposition of an express obligation on the State to provide
for primary education might, as I say, seem surprising but it
was not revolutionary. When the Constitution was adopted
such an obligation was already in existence as Murnaghan J.
explained in McEneaney v. Minister for Education [1941] I.R.
430 at p. 438 as follows:[2001]
2 I.R.
Murphy J.
675
S.C.
"For now more than a century it has been recognised that
the provision of primary education is a national obligation;
and for very many years this duty was entrusted to a
corporate body created by Royal Charter called the
Commissioners of National Education in Ireland."
The nature of that education and the children for whom it
was provided is well understood by the people who adopted
the Constitution. Its meaning is not to be found by reference
to experts however distinguished. No doubt improvements
have been made in the buildings in which such education is
provided and hopefully the facilities are better now than they
were 60 years ago but these are changes in detail and in
style. In my view primary education as identified in the
Constitution is education provided for children the age limits
of which were determined historically by the Education
(Ireland) Act, 1892, which required parents to send their
children between the ages of 6 and 14 years to receive
certain schooling. Primary education is provided by teachers

in classrooms. It was and is a basic scholastic education in
the sense that it is a first stepping stone on a career which
may lead to secondary level and ideally graduate to the third
level. It is distinguishable from secondary level education on
the one hand and nursery schools, or any other form of preprimary education, on the other.
If such needs as toilet training fell within the ambit of
"primary education" at all, it seems to me that they would
also necessarily come within the scope of the "minimum
education, moral, intellectual and social" which every child is
bound to receive. Having regard to the structure of the
Constitution it is extremely unlikely that those who framed it
or the people by whom it was adopted would have
authorised the State to intervene in such intimate matters.
I have no doubt that the State has ample powers under
Article 42.4 to supplement available educational facilities
and to provide others. Perhaps more should have been done.
Hopefully more will be done. The constitutional power was
always there. It was a matter for politicians and the People
as their ultimate masters with, perhaps, the assistance of
the media and dedicated campaigners like the second
plaintiff to ensure that resources are in fact made available
to meet the needs of such people as the first plaintiff and
other persons with disabilities or disadvantages. Regretfully I
do not accept that the obligation was there or could be found
under the heading "Primary Education". It follows that in my
view that such obligation as the State has to provide
education for any person ceases when that person attains
the age of 12 years. A fortiori no obligation in respect of such
education exists in respect of a student over the age of 18
years. Accordingly, I would allow the appeal insofar as it
relates to that issue but of course without prejudice to any
concession which has been made or may
[2001]
2 I.R.
Murphy J. Murray J.
676
S.C.
be made by the Minister to the first plaintiff whether in
respect of damages, costs or otherwise.
If there had been a failure by the defendants to meet their
obligations in respect of primary education it would be the
first plaintiff and not the second plaintiff who would have a
cause of action. As there was no such failure neither the first
plaintiff nor his mother can sustain any action. Accordingly, I
would allow the appeal against the award of general
damages to the second plaintiff.
Murray J.
The first of the two above named cases, which have been
heard together, concerns the first plaintiff who was born on
the 11th October, 1977, and who, a few months after his
birth, was diagnosed as suffering from a severe form of
autism.
The facts of the case, and in particular the history
concerning the first plaintiff's upbringing and education are
clearly and extensively set out in the judgment of Keane C.J.
as well as in the judgment of the High Court of Barr J. The
present appeal before this court could perhaps be said to be
the ultimate point of an arduous odyssey pursued with
remarkable perseverance and fortitude by his mother, the
second plaintiff, with a view to establishing his rights in law
to an education appropriate to his needs as a person
suffering from severe intellectual and physical handicap.
The findings of fact made by the learned High Court Judge
are not in issue in this appeal. More significantly not all the
matters comprised in the order of the learned High Court
Judge are in issue, largely as a result of concessions made by
the State. Accordingly, I think it is important to identify the
constitutional issue or issues with which this appeal is
concerned and those with which it is not.
As Geoghegan J. correctly points out in his judgment the
decision and order of the High Court was based exclusively
on the first part of Article 42.4. This was also the basis of the
first plaintiff's arguments in this court.
In summary the High Court order made the following

findings in favour of the first plaintiff:(a) he has had at all material times a constitutional right to
free primary education appropriate to his needs as a
severely autistic child;
(b) he has a right to be provided with free primary education
- not only as a child but as a constitutional entitlement from
the point when he reached adulthood into the future for as
long as he is capable of benefiting from it;
[2001]
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Murray J.
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(c) he is entitled to general damages to date and in the
future against the State for breach of its constitutional duty
to provide for his primary education;
(d) a mandatory order directing the defendants to forthwith
provide free primary education in the future appropriate to
his needs for as long as he is capable of benefiting from
same.
There was also provision for damages to cater for special
damages for his educational and ancillary needs for a 30
month period following the making of the High Court order
with provision for a review by the High Court of the
mandatory order and the damages awarded at the end of
that period. The State is not appealing against the finding of
the learned High Court Judge that it was in breach of its
constitutional obligations in failing to provide for free primary
education for the first plaintiff in the years before he reached
the age of an adult. As an integral part of this concession, it
concedes that this right continued to the age of 18 but not
beyond. Neither does the State contest the learned High
Court Judge's findings as to the content or nature of the care,
training and education which was appropriate to his needs
and which constituted primary education within the meaning
of Article 42.4. The State also does not contest the damages
awarded to the first plaintiff in particular the general
damages to date which were calculated on the basis that he
has suffered a breach of his constitutional rights up to the
age of 23 (his age at the time of the hearing of the High
Court action), beyond the age limit of 18 years
notwithstanding that the State submits that its constitutional
obligations end at that latter age. This was stated to be an
ex gratia stance taken by the State. It has also been
indicated that as a matter of policy the first plaintiff will
continue to receive care, training and education in
accordance with his mother's wishes. Since this is a matter
of policy only we are not concerned with that here.
In my view the case is not concerned with the content or
quality of what constitutes primary education within the
meaning of Article 42.4 since this point was not appealed
and must be considered as moot for present purposes. Nor is
it concerned with the constitutional right of the first plaintiff
to free primary education as a child. Neither is it in issue in
this appeal whether, in the future, the first plaintiff will or
ought, solely as a matter of policy or legal right pursuant to
statute, receive a form of care and education.
The primary issue in this appeal is whether Article 42.4 in
requiring the State to "provide for free primary education"
should be interpreted as creating a constitutional obligation
on the State to provide such education to all persons, that is
to say children and adults, at any stage of their life should an
individual be in need of such education.
[2001]
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Murray J.
678
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In their appeal the defendants have also put in issue certain
parts of the order made by the learned High Court Judge
which are consequent upon his declaration that the first
plaintiff is entitled to be provided with free primary

education into the future so long as he is in need of it, in
particular, that part of the order which is mandatory as
against the State and which involves the High Court in a
supervisory role on the post trial implementation of its order
by the State. These latter issues only arise if the defendants
are unsuccessful on the primary issue.
The primary issue
The primary issue in this appeal is whether Article 42.4 of
the Constitution is to be interpreted, as found by the learned
High Court Judge, as requiring the State to provide free
primary education "as an open-ended obligation, based on
need rather than age." The implications of this order go
beyond the circumstances of a handicapped person in the
tragic situation of the first plaintiff. The consequence of the
High Court finding, and it was so argued by counsel for the
first plaintiff, is that the duty of the State is to provide free
primary education not only to children but to adults at any
stage of their life according to their need. Counsel for the
first plaintiff argued that the right would extend to a 65 year
old who was in need of primary education. He also submitted
that the constitutional obligation on the State to provide for
free primary education pursuant to Article 42.4 was of a
unique character and embraced a constitutional
commitment of the highest order. Article 42.4 elevated the
State's obligation to commit a proportion of national
resources to the provision of free primary education to a
plane above the vast range of decisions concerning the
allocation of the national budget which are normally a matter
of political choice. In this he is correct.
This issue is one of fundamental importance to both parties
and has important constitutional ramifications for the organs
of State, including the extent to which the powers of the
Oireachtas should be limited in the choices it makes in the
spending of the public purse in the interests of the
community as a whole. In these circumstances it is clearly a
constitutional issue which merits, if not requires, in the
public interest a final determination and clarification on
appeal to this court as the court of final instance. For this
reason and the reasons given by both Hardiman and

Geoghegan JJ., I am of the view that the apparent
inconsistency between the State accepting liability for the
damages awarded to the first plaintiff up to the age of 23
and its contention that the constitutional obligation to
provide for free primary education does not extend beyond
the age of 18 years is not such as to preclude it from raising
this issue on appeal.
[2001]
2 I.R.
Murray J.
679
S.C.
Article 42.4:
Article 42.4 states:"The State shall provide for free primary education and shall
formation."
It is axiomatic that the point of departure in the
interpretation of a legal instrument, be it a constitution or
otherwise, is the text of that instrument, albeit having regard
to the nature of the instrument and in the context of the
instrument as a whole.
In The State (Browne) v. Feran [1967] I.R. 147 in a
unanimous decision of this court, Walsh J. at p. 159, while
differentiating between the application of canons of
construction to a statute and a written constitution stated "In
the construction of a Constitution words, which in their
ordinary meaning import inclusion or exclusion, cannot be
given a meaning other than their ordinary literal meaning
save where the authority for so doing can be found within
the Constitution itself."
Relying on that dictum, O'Higgins C.J., in The People v.

O'Shea [1982] I.R. 384 at p. 397 stated:"The Constitution, as the fundamental law of the State, must
be accepted, interpreted and construed according to the
words which are used; and these words, where the meaning
is plain and unambiguous, must be given their literal
meaning. Of course the Constitution must be looked at as a
whole and not merely in parts and, where doubt or ambiguity
exists, regard may be had to other provisions of the
Constitution and to the situation which obtained and the
laws which were in force when it was enacted. Plain words,
must however be given plain meaning unless qualified or
restricted by the Constitution itself."
As Walsh J. was known to say, both judicially and extrajudicially, the Constitution is written in the present tense. In
McGee v. Attorney General [1974] I.R. 284 he stated, at p.
319:"It is but natural that from time to time the prevailing ideas
of [prudence, justice and charity] may be conditioned by the
passage of time; no interpretation of the Constitution is
intended to be final for all time."
O'Higgins C.J. in The State (Healy) v. Donoghue [1976] I.R.
325 similarly observed at p. 347 that " rights given by the
Constitution must be considered in accordance with the
concepts of prudence, justice and charity which may
gradually change or develop as society changes and
[2001]
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Murray J.
680
S.C.
develops and which fall to be interpreted from time to time
in accordance with prevailing ideas".
Agreeing as I do with the view that the Constitution is a
living document which falls to be interpreted in accordance
with contemporary circumstances including prevailing ideas
and mores, this does not mean, and I do not think it has ever
been so suggested, that it can be divorced from its historical

context. Indeed, by definition that which is contemporary is
determined by reference to its historical context.
What is understood by "primary education" in Article 42.4?
It was not in contention in this appeal that historically
primary education has always been understood as the basic
education given to children in primary schools by primary
teachers up to the age of 12 or 14 years. For immediate
purposes I don't think it is necessary to review the definition
given to primary education by reference to its content in a
number of judicial authorities. However education as a
concept is defined, primary education has always been
understood to be a form of basic education given to children
in the primary school cycle. It stands in contrast with
secondary education and third level education as well as,
nowadays, pre-school attendance of infants. The precise age
at which the primary cycle begins and ends may be a variant
of history, culture and policy in any given country but in the
end it has been traditionally understood as referring to that
primary cycle in which children, as opposed to adults, are
taught.
Primary education has been part of the education system in
this country since the nineteenth century. As Murnaghan J.
observed in McEneaney v. Minister for Education [1941] I.R.
430 at p. 438: "For now more than a century it has been
recognised that the provision of primary education is a
national obligation; and for very many years this duty was
entrusted to a corporate body created by Royal Charter
called to the Commissioners of National Education in
Ireland". The Constitution of 1922 made express provision
for the availability of primary education.
In short, primary education in the pre-1922 and post-1922
education system was understood as ordinarily and naturally
referring to the education of children. This was the system in
place when the Constitution of 1937 was adopted. Counsel
for the first plaintiff argued that in adopting the Constitution
of 1937, Article 42.4 represented a dramatic decision of the
people to ensure that there was a financial commitment of
constitutional status to the provision of free primary
education. It certainly was a fundamentally important

statement in the Constitution of the State's obligation to
provide free primary education but there is nothing to
indicate that it had any dramatic or any material effect on
the existing structure. In fact the Constitution was not a
catalyst for change in that regard. Primary education
[2001]
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as naturally and generally understood, continues to be
afforded to children to the present day.
In my view even today the generally understood meaning of
primary education, (and primary school and primary teacher)
is the teaching of children and contemporary English
dictionaries define it in such a way.
The late Professor John Kelly, writing in The Constitution of
Ireland 1937-1987 (Institute of Public Administration, 1988)
suggested guidelines to achieve a balance as between
possible competing claims of the historical approach to
constitutional interpretation and the contemporary or
"present-tense" approach. The"present-tense" or
contemporary approach, he suggested is appropriate to
standards and values. "Thus elements like 'personal rights',
'common good', 'social justice', 'equality', and so on, can
(indeed can only be) interpreted according to the lights of
today as judges perceive and share them." He felt that on
the other hand the historical approach was appropriate
"where some law-based system is in issue, like jury trial,
county councils, the census." This he said was not to suggest
that the "shape of such systems is in every respect fixed in
the permafrost of 1937. The courts ought to have some
leeway for considering which dimensions of the system are
secondary, and, which are so material to traditional
constitutional values that a willingness to see them diluted
or substantially abolished without a referendum could not be
imputed to the enacting electorate".

There is undoubted value in such an approach which
Professor Kelly clearly had in mind as a guide to, rather than
formal canons of, interpretation.
As correctly emphasised by counsel for the first plaintiff, the
obligation to provide for free primary education in Article
42.4 is unique in the extent to which it circumscribes the
discretion which the organs of State, government and
Oireachtas, normally enjoy under the Constitution as to the
allocation of national resources. That particular obligation is
limited to primary education. It excludes other forms of
education. If Article 42.4 was intended to extend that
constitutional obligation to the provision of free primary
education to all adults, irrespective of their age, according to
their need, I think it can fairly said that one would have
expected that such a far reaching limitation on the powers of
the Oireachtas to have been expressly stated in the
provision.
That is not to say that the content or nature of the
education to be provided for cannot be interpreted in the
light of present day circumstances. The nature and quality of
the primary education to be provided is a more abstract
concept with connotations of standards and values.
Historically there is no doubt that many persons who
suffered from mental or physical handicap were not capable
of benefiting from the kind of education that
[2001]
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S.C.
was traditionally available. However, with greater insight
into the nature of people's handicaps, the evolution of
teaching methods, new curricula as well as new tools of
education there is no doubt that the nature and content of
primary education must be defined in contemporary
circumstances. That means where children are capable of
benefiting from primary education (however its content is

defined) the State have an obligation to ensure that it is
provided free to children who can benefit from it including
those who suffer from severe mental or physical handicap.
In my view, primary education taken in its ordinary and
natural meaning is at once both inclusive and exclusive. It
relates to the teaching of children only. It includes children
but excludes adults. I do not find in the Constitution
authority for interpreting it otherwise.
The question remains as to the age to which a child is
entitled to benefit from the constitutional obligation of the
State to provide for primary education. The obligation to
ensure that the constitutional duty of the State is fulfilled lies
in the first instance with the relevant organs of government
referred to in Article 6 of the Constitution, the executive and
the legislature. Thus this question in my view is a secondary
matter which is in the first instance one of judgment by
government and the Oireachtas subject to judicial review by
the courts should such judgment fail to fully respect the
obligation concerned. Whether the obligation to provide for
free primary education begins to take effect in respect of
children aged four or five, for example, must in the first
instance be a matter for such judgment. Similarly, like
Geoghegan J., I am of the view that the State must have a
margin of appreciation as to the age up to which primary
education should be provided for pursuant to Article 42.4. In
judging that age as 18 years, the age at which children
legally achieve adulthood, the State is not acting
inconsistently with its obligations under Article 42.4 and I
agree fully with the reasons given by Geoghegan J. in his
judgment in this regard.
Article 42 generally
As already indicated, Article 42.4 also falls to be interpreted
within the context of Article 42 as a whole and indeed the
Constitution itself. In examining whether the obligation of the
State to provide for free primary education is confined to
children rather than extending to adults in the context of
that article as a whole I find that my earlier conclusions are
confirmed. Article 42 commences with the provision:-

intellectual, physical and social education of their children".
[2001]
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S.C.
In my view this introductory paragraph to Article 42 sets the
tenor and ambit of the article, focusing as it does on the
family as the natural educator of the child with a
corresponding rights and duties of parents to provide, inter
alia, for the education of their children. Articles 42.2, 42.3
and 42.5 set certain parameters to the exercise of parents of
their rights and duties providing for the State to intrude upon
those rights, "as guardian of the common good," so as to
require that children receive a certain minimum education,
moral, intellectual and social. The State may also intrude
where the parents fail in their duty but this in turn is
circumscribed, in Article 42.5 by the requirement that the
State must have "due regard for the natural and
imprescriptible rights of the child."
In my view Article 42 taken as a whole is child centred and
Article 42.4 as relied on in this case is an obligation imposed
on the State to provide for free primary education with a
view to facilitating parents in the exercise of their duties
towards their children or, should the parents fail to do so, to
give effect to children's right to primary education. Neither
do I find that there is any other provision of the Constitution
which would authorise any other interpretation.
For the foregoing reasons I conclude that the obligation of
the State to provide for free primary education pursuant to
Article 42.4 of the Constitution extends to children only.
As regards other arguments relied on by the first plaintiff
and on this issue generally I agree with the judgments of

Denham, Geoghegan and Hardiman JJ. and in particular
Hardiman J.'s analysis of the use of the words child or
children in the English and Irish text of the Constitution.
In these circumstances I do not consider it necessary to
consider for the purposes of this appeal the other issues
which have arisen concerning the making of a mandatory
order against the State, its supervisory nature and the
question concerning the separation of powers.
I would allow this appeal and agree that the declaration
proposed by Geoghegan J. in his judgment be made.
With regard to the action brought by the second plaintiff, I
agree with the judgment of Keane C.J. and that appeal
should be allowed.
Hardiman J.
The first of these cases arises from the tragic handicap
which has blighted the life of the first plaintiff and from the
response of the State to it. The learned trial judge made
declarations and mandatory orders, awarded damages, and
adjourned the case for further consideration in 2003. He did
so in a manner wholly satisfactory to the first plaintiff's
advisers who seek no alteration in his orders. We have been
told that these orders have
[2001]
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Hardiman J.
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S.C.
brought about considerable benefit to the first plaintiff: his
condition has improved and the improvement has been
maintained. We have also been told that, regardless of the
outcome of the appeal, the sums awarded will be paid and
the regime available to the first plaintiff under the terms of
the learned trial judge's order will continue to be available.
If the result of the appeal depended on whether the regime
mandated by the trial judge's order was, on the evidence,
the best prescription for the first plaintiff, I would agree that
it is. But that is not the issue, nor does it form any part of the
questions raised by this appeal. Equally, the appeal is not
concerned with the general rights of the first plaintiff or of
handicapped persons as a class. As argued in this court, the
appeal raises narrower, but important, issues which may be
summarised as follows:(1) Whether Article 42.4 of the Constitution confers the right
claimed in the circumstances of this case to lifelong free
primary education?
(2) What order, if any should be made in respect of the first
plaintiff's education? In particular, has the court power to
make orders, including mandatory orders, formulating the
policy to be followed in the education of the first plaintiff,
directing in some detail the application of that policy to him
and ordering the State to provide, or pay for the provision of
services along these lines? If such powers exist in principle,
is the present an appropriate case for the making of such
orders?
Specific issues not arising
Each party has by deliberate steps arranged that specific
issues do not arise on this appeal.
The State has conceded that the first plaintiff's right to free
primary education as a child were breached, at least for long
periods of time.
Accordingly no question arises as to whether the highly
specialised services determined by the learned trial judge to
be required by the first plaintiff fall within the scope of
"primary education" as those words are used in Article 42.
The court approaches the present case on the basis of this
concession. But a concession is not a proper basis for an
authoritative construction of a constitutional provision. See
The State (Quinn) v. Ryan [1965] I.R. 70 at p. 120.
Still more significantly, the first plaintiff's advisers have very
consciously based their claims exclusively on the first line of
Article 42.4:"The State shall provide for free primary education "
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Although other Articles of the Constitution are referred to in
the pleadings and the judgment, this provision emerged
clearly as the sole basis of the first plaintiff's contentions on
the appeal.
This decision has the consequence that the first plaintiff's
case rescinds, not only from any alternative constitutional
basis, but from any basis at all in the very significant and
specific statutory provisions in relation to education and
otherwise, and notably from the Education Act, 1998. In
answer to a specific question, counsel for the first plaintiff
stated that he did not rely at all on the provisions of this Act,
even as an alternative to his preferred argument. He also
confirmed that this reluctance did not arise from a view that
any of the Act's provisions were repugnant to the
Constitution.
The case was argued as well as a case could be, and the
express narrowing of the first plaintiff's claim was done in
pursuance of a very deliberate strategy. This strategy, in
turn, is based on a very precisely articulated view of Article
42.4. This is that the right conferred by that provision,
unique amongst all the constitutional provisions securing
rights to citizens, is a wholly unqualified oneand extends
throughout life if needed. No consideration of expense, or of
competing values, alternative claims on State expenditure or
of debatable policy, on this view, can interfere with the
State's obligation in relation to primary education. This
obligation was contended to be "a constitutional transaction
of the very highest order"; "one of a very small number of
mandatory expenditures in the Constitution"; a right ranking
in priority to any other; the consequence of a decision by the
People in 1937 that "we will splash out on this one thing
only". It was contended that Article 42.4 "puts this item of
national expenditure on a plane apart from and above all
other expenditure". The reason expressly given for the

decision not to rely on the terms of the Education Act, 1998,
was that, even though the statutory rights in relation to
education might be broader than the Constitution provides
for (and certainly makes specific reference to persons with
disabilities) yet those rights are subject to constraints in
terms of available resources which, it is contended, Article
42 is entirely independent of.
This drastic and deliberate limitation of the basis of the first
plaintiff's claim has obvious consequences. In order to
achieve the claimed unqualified and limitless access, on a
lifelong basis, to primary education the first plaintiff's case
must establish that Article 42.4 indeed bears the unique
construction which is claimed for it. The strategy of the first
plaintiff's advisers involve the rejection of any easier routes
to public provision for his needs. These remain wholly
unexplored. I think this is unfortunate as it runs the risk of
making the best the enemy of the good. And if either of the
issues identified is resolved unfavourably to the first plaintiff,
fresh
[2001]
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Hardiman J.
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S.C.
proceedings may become necessary to deal with issues
which, one might think, could have been agitated here. I will
return to the statutory provisions, however, later in this
judgment since, although they are not relied upon on behalf
of the first plaintiff, I consider their existence to be of
relevance at least in so far as remedies are concerned.
Article 42 of the Constitution
The first question that arises is as to whether Article 42 of
the Constitution confers the right claimed for the first
plaintiff to lifelong free primary education. The learned High
Court Judge found that it did, and this finding is strongly
challenged by the defendants.
It is important to point out, and it follows from what has

been said in the preceding section of this judgment, that the
defendants are not, as I understand it, denying the first
plaintiff's entitlement to services appropriate to his
condition. They are denying, however, an entitlement to the
only type of service specifically claimedi.e. free primary
education on a lifelong basis. The court is solely concerned
with the first plaintiff's claim as so formulated.
The High Court Judge's findings
At p. 583 of his judgment, the learned High Court Judge
considered this topic. He held:"There is nothing in Article 42.4 which supports the
to on-going primary education provided by or on behalf of
the State It has been conceded on behalf of the Minister
for Education that the first plaintiff at 23 years of age
requires on-going primary education and training and that he
will probably continue to do so indefinitely. However, it is
submitted that his entitlement in that regard is not derived
from Article 42.4 but, it seems, is an undefined 'right' which
is likely to be granted to him only by way of ministerial grace
and favour."
On the hearing of this appeal it was strongly contended on
behalf of the defendants that they had not conceded that
the first plaintiff required ongoing primary education or
training. They had however contended that the duty to
provide primary education under Article 42.4 existed
exclusively in relation to children. This appears to be a
correct summary of what was contended in the High Court.
The learned trial judge found, at p. 584:"In my opinion, in the absence of a specific provision in
terms, it would be wrong to imply any age limitation on the
constitutional
[2001]
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Hardiman J.
687
S.C.
obligation of the State to provide for the primary education
of those who suffer from severe or profound mental
handicap. In the light of the foregoing I am satisfied that the
constitutional obligation of the State under Article 42.4 to
provide and continue to provide for primary education and
related ancillary services for the first plaintiff is open-ended
and will continue as long as such education and services are
reasonably required by him."
The rationale for the foregoing is perhaps to be gleaned
from the following passage at p. 584 of the judgment:"In my opinion the ultimate criteria in interpreting the
State's constitutional obligation to provide for primary
education of the grievously disabled is 'need' and not 'age'.
If a child's disability is such that he/she requires ongoing
specialist primary education and training for life, then the
obligation of the State to provide for that service will
continue into adulthood for the lifetime of the child. To cut off
a crucial educational life-line because a child has reached his
or her majority and it thereby condemn the sufferer to the
risk of regression in hard earned gains which have enhanced
his/her life would amount to an appalling loss, the effect of
which might be to negative the advantages of the
constitutional right to education (if provided) enjoyed by the
sufferer for many years during infancy."
It can be seen, therefore, that the learned trial judge, noting
the absence in Article 42.4, of an age at which the State's
obligation to provide free primary education ended, inferred
that such education was to end only when the need for it
ended. On this basis, the right to have free primary
education provided might, depending on individual
circumstances, subsist on a lifelong basis, to pension age
and beyond.
In this case, the first plaintiff commenced his proceedings
when he was 19 years of age and he was 22 at the time
judgment was given. He was thus obviously beyond the age
at which primary education normally terminates on both
dates. Furthermore, the learned High Court Judge was careful
to stress (at p. 40 of the judgment) that he was grounding
the right he found the first plaintiff to possess to lifelong free

primary education exclusively on Article 42.4 of the
Constitution and not on the basis that it derived from any
other Article of the Constitution, or from or through an
unenumerated constitutional right.
Construing Article 42.4 Construction
There has been considerable academic debate, some
reflected in the arguments in the hearing of this appeal, as
to the correct approach to the
[2001]
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Hardiman J.
688
S.C.
construction of a constitutional provision. Tensions are said
to exist between the methods of construction summarised in
the use of adjectives such as "historical", "harmonious" and
"purposive".In my view, much of this debate is otiose,
because each of these words connotes an aspect of
interpretation which legitimately forms part, but only part, of
every exercise in constitutional construction.
The strongest case for the limited use of a historical
approach to construction is perhaps that set out by the late
Professor Kelly in his contribution to The Constitution of
Ireland 1937-1987,(Litton ed., Dublin 1988). It is I think
beyond dispute that the concept of primary education as
something which might extend throughout life was entirely
outside the contemplation of the framers of the Constitution.
No argument to the contrary was addressed to the court.
More significant, however, is the question of duration of
education under Article 42, as discerned from a construction
of that Article in its own terms, and in its constitutional
context. Here, the approach to construction outlined by
Costello J. in Attorney General v. Paperlink Ltd. [1984]
I.L.R.M. 373 seems to me appropriate. He said at p. 385:"The Constitution is a political instrument as well as a legal
document and in its interpretation the courts should not
place the same significance on differences of language used

in two succeeding subparagraphs as would, for example be
placed on differently drafted sub-sections of a Finance Act. A
purposive, rather than a strictly literal approach to the
interpretation of the subparagraphs is appropriate."
Similarly, Dixon J. in O'Byrne v. Minister for Finance [1959]
I.R. 1 said at p. 21:" It may be that the literal meaning rather than the
intention should prevail, although, in the case of a
Constitution, which is a unique, fundamental document,
concerned primarily with the statement of broad principles in
general language, I am inclined to the view that it is not to
be parsed with the particularity appropriate to ordinary
legislation and that the intention, if it can be reasonably be
gathered, should prevail."
These two statements, I think, illustrate and expand what
was aphoristically expressed by Marshall C.J. in McCulloch v.
Maryland (1819) 17 U.S. 316:" we must never forget, that it is a constitution we are
expounding."
Approaching Article 42 with these things in mind, one notes
first its organic link with the preceding Article dealing with
the family. This linkage is accomplished in the opening words
of Article 42.1 where:[2001]
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Hardiman J.
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S.C.
"The State acknowledges that the primary and natural
[Emphasis added].
The next sub-article guarantees to parents the right to
provide this education in their homes, in private schools or in

schools recognised or established by the State. Even a
superficial examination of the remainder of the Article shows
that, throughout, parents are seen as the providers of
education either directly, through private schools, or through
schools established by the State. Even if they avail wholly of
State provided educational facilities a regard must be had for
their rights (Article 42.4). Even if they fail in their duty in this
respect towards their children, so that the State has to
discharge their function, it must do so "with due regard for
the natural and imprescriptible rights of the child".
Accordingly, I would respectfully endorse the conclusion of
Laffoy J. in O'Shiel v. Minister for Education [1999] 2 I.R.
321. Having adopted "a global approach to the interpretation
of Article 42" she concluded at p. 347:"In its entirety it is imbued with the concept of parental
freedom of choice. While parents do not have the choice not
to educate their children it recognises that all parents do not
have the same financial capacity to educate their children. It
is in this overall context that the obligation is imposed on the
State to 'provide for free primary education'."
I would digress slightly to emphasise an aspect of the
significance of this emphasis on parental freedom of choice.
Since a child will not himself or herself be capable of making
and acting upon decisions as to its own education, these
decisions must be made by some person or agency on its
behalf. In practice, this could only be a parent or a public
body of some sort. The Article accords a primacy to the
parent to make his own provision according to his means, to
join with others for the purpose of providing private or
corporate education, or to avail of State services. Even if the
latter option is taken, parental rights must be given "due
regard".
It is undoubtedly true that only very few parents themselves
directly provide education; the reasons for this are indicated
in the judgment of Keane C.J. I consider, however, that
parents taking other options retain a position of primacy to
be exercised according to their"conscience and lawful
preference". The Article envisages this, and the diversity
which must follow from it. Though it is the child who is to be

educated, the family is the "primary and natural educator".
[2001]
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Hardiman J.
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It is thus manifest that, whether one reads the Constitution
in its Irish or English text, the primary provider of education
is seen as the parent, and the recipient as a child of such
parent. This appears to me plainly to involve the
consequence that the recipient of primary education would
be a person who is not an adult and in respect of whom the
primary educator, according to the natural order, is his
family.
In making the contrary case, counsel for the first plaintiff
suggested that the word "child" where it occurs in Article 42
should be interpreted as meaning merely "offspring" or
"descendant", terms which, they said, might apply to a
person of any age. This view does not appear to me to be
tenable. Firstly, it entirely ignores the language and structure
of the Article, where the term "child" is never used in
isolation but always with a correlative of "parent" or"family".
Secondly, it is even more difficult to maintain the
construction contended for if one has regard to the primary
(Irish) text, where that connotation would be expressed in a
term such as"sliocht" rather than "leanbh".
The correlatives used for the term "child" ("leanbh")
are"Family" ("Teaghlach"), and "parents" ("tuist").
Moreover, the word "clann" is used as a synonym for the
recipients of education, meaning the children of a family.
Accordingly, I cannot accept the artificial construction
advanced on behalf of the first plaintiff: that the word "child"
or its equivalent in the national language should be
interpreted as extending to a person of any age who has an
ongoing need for education. Apart altogether from the
analysis of the language and of the structure of the Article

offered above, the first plaintiff's contention simply does
violence to the ordinary meaning of the word.
The same result follows from a consideration of the decided
cases in which this Article has been considered. Apart from
O'Shiel v. Minister for Education [1999] 2 I.R. 321, these
include, most relevantly, Ryan v. Attorney General [1965]
I.R. 294, Crowley v. Ireland [1980] I.R. 102, O'Donoghue v.
Minister for Health [1996] 2 I.R. 20 and F.N. v. Minister for
Education [1995] 1 I.R. 409.
It is not disputed that, in each of these cases the recipient of
education was regarded as being a child. While the precise
line of demarcation of childhood may vary from time to time,
and from context to context, it seems safe to say that all
legal uses of the term connotes the meaning of a person
other than an adult. This is so even where, as in context of
criminal law, there is an intermediate status of "young
person" created for certain purposes. For the purposes of the
Education (Welfare) Act, 2000, a person is regarded as a
"child" up to the age of 16 (the minimum permissible school
leaving age) and as a "young person" from 16 to 18. And the
United
[2001]
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Hardiman J.
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Nations Convention on the Rights of the Child defines a child
as a person under the age of eighteen,"unless under the law
applicable to the child, majority is attained earlier" (article
1).
To this the first plaintiff's counsel responded that, in the
cases cited, the person or class of persons being considered
was in fact a child as that term is normally used, so that it
was unnecessary to consider whether the position would be
different if he or they had passed beyond that stage of life.
The cases cited, they say, may have adopted the usage
"child" uncritically: or at the very least, they do not actually

preclude a broader meaning being given to the word.
Equally, it is submitted, there is no age specified in the
Article at which the condition of being a child ceases. This
point appears to have weighed particularly heavily with the
learned trial judge who referred to it on several occasions.
On the basis of the omission to specify an end to the status
of childhood, he equated the term"child" to"citizen" (at p.
40) and envisage that "a child" might require education into
adulthood.
This appears to me to empty the term "child" or its Irish
equivalent of all meaning and treat it as synonymous with
"person" or "citizen".Indeed, counsel for the first plaintiff
specifically submitted that Article 42.4 should be read "as
though primary education were guaranteed to the citizen".
This is plainly not the intention of the Constitution. Both of
these terms are used elsewhere in the text of the
Constitution; the use of the term "child", rather than either
of them in Article 42 must therefore be given significance.
For example, the term "citizen" is widely used in Article 40
and, in Article 40.1., emphasis is laid on the status of each
"citizen" as human persons. Article 40.4, in providing a
procedure for the challenging of unlawful deprivation of
liberty extends its protection to "persons" in Article 40.4.2:"Upon complaint being made by or on behalf of any person:
"
More restricted categories are envisaged in Article 41.2.1
and 2, which respectively refer to "woman" and "mothers". It
would be idle, I believe, to suggest that these provisions
referred to a person who was neither a mother nor a woman
on the basis that he devoted himself entirely to household
duties and was therefore entitled to invoke their provisions.
Similarly, Article 41.3.2.iii, in the context of dissolution of
marriage, envisages proper provision being made for"the
spouses, any children of either or both of them and any
other person prescribed by law". It would clearly not be
possible, in the absence of statutory provision, to import into
this wording a constitutional obligation to make proper
provision for a person who is neither a spouse nor the child
of a spouse.
It is clear that the recipients of education under Article 42
fall into the restricted category of "children" and not the
broader category of "citizens"
[2001]
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Hardiman J.
692
S.C.
or "persons". I believe that in equating children with
"citizens" the learned trial judge fell into error and
unwarrantedly extended the category of recipients of that
form of education which is required by the Constitution.
Article 42.1 to Article 42.5 have to be read together: it is
clear on such a reading that those for whom the State
provides for free primary education and/or supplements and
gives aid to private and corporate educational initiative, or,
when the public good provides it provides other educational
facilities or institutions, are the children of the parents whose
right and duty is preserved in the last phrase of Article 42.4
having been earlier recognised as "inalienable". Article 42.4
is a single sentence requiring due regard for the rights of
parents in the doing of any of the things required or
permitted to be done in the same sub-article. It cannot in my
view be read otherwise without doing violence to the
ordinary meaning of words, and ignoring its context in Article
42, and in the Constitution generally. It is not permissible, in
my view, to read the final words of Article 42.4, referring to
"the rights of parents" as qualifying only the obligation of the
State to give aid to non-State educational initiatives and to
provide educational facilities themselves in certain
circumstances. If regard is to be had for the rights of parents
"especially in the matter of religious and moral formation" in
relation to these obligations, it would be strange indeed if
there was no obligation to have regard to those rights in
relation to free primary education. This is the educational
service availed of by the great majority of children, both at
the present time and in 1937. To construe Article 42.4 as

meaning that the State had to have regard for the rights of
the parents in the matter of assisting private educational
initiative (which at primary school level only ever served the
minority of children), but not in providing for free primary
education (which was always availed of by the great
majority) would require one to ignore the spirit and historical
context of the Constitution. An obligation to have regard to
the rights of parents is consistent only with a view of the
recipients of primary education as children. The fact that
some children are unfortunately without parental guidance
does not in any way detract from this analysis: their position
is specifically envisaged in Article 42.5 and they are still
persons in respect of whom the primary educator, according
to the natural order, would be their family.
Obviously, the obligation to provide for free primary
education, does not restrict the State to that provision. By
statute, the State has provided for free secondary education
for the last 34 years and more recently has provided for free
undergraduate university education as well. It is clear from
the terms of Article 42.4 that the State may also provide
"other educational facilities or institutions"; other, that is,
than primary schools or institutions provided by "private and
corporate educational initiative".
[2001]
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If the term "primary education" is construed on a historic
basis it is clear that what was in the mind of the drafters of
the Constitution was the ordinary, scholastically oriented
primary education represented by the ministerially
prescribed National School curriculum. The contrary was not
submitted. The highly specialised services which, according
to the witnesses called on behalf of the first plaintiff at the
trial he stands in need seem quite different from the ordinary

content of "primary education" either in 1937 or today. Apart
from anything else, conventional primary education is
progressive and teleological in the sense of leading a child
through a predetermined course to the end of one level of
education and the beginning of the next. It is painfully clear
that the services required by the first plaintiff are at a much
more basic level. This is a level which the normal child
achieves before starting the ordinary process of primary
education and include such very basic features as
continence, mobility and the ability to talk. Moreover, it is
clear from the evidence that, in so far as the first plaintiff
can achieve any of the things it would be at a modest level,
requiring constant reinforcement because of the ever
present risk of"unlearning". The first plaintiff's counsel
expressed with great clarity his client's needs. He said:"The first plaintiff is not capable of learning much more than
toilet training, preserving his mobility and responding to
simple instructions, and perhaps a few words."
It must be doubted whether a child who was immobile or
largely so, incontinent and almost unable to talk or
communicate would be likely to benefit from primary
education in the ordinary sense of that term, or whether
indeed he would be accepted into the primary education
system. It may be, therefore, that facilities for such a child
might be provided in "other education facilities or
institutions", to use the wording of Article 42.4. But this case
was not made, even as an alternative. This, presumably, was
on the basis that the duty to provide such institutions was
qualified by the words "when the public good requires it".
These words, it may be thought, import a level of executive
discretion, which the first plaintiff says is entirely absent
from the first eight words of the sub-article. In any event, no
case was made based on any other part of the sentence
which constitutes Article 42.4.
Possible preclusion
I have considered whether the judgment of the learned High
Court Judge and the omission of the State to pursue an
appeal against the award of damages for breach of the first
plaintiff's right to education up to the date of the order,

preclude the State from arguing that the first plaintiff's
[2001]
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S.C.
right to free primary education does not extend beyond the
age of 18. I do not believe that the State is so precluded,
substantially for the reasons given by Geoghegan J. in his
judgment in this case. The claim that the State has an
ongoing liability to provide the first plaintiff with free primary
education on an indefinite basis will clearly have implications
into the future. Though the State's position is not fully
consistent, perhaps wholly or partly for the reasons
discussed later in this judgment, I consider that its omission
to focus a ground of appeal specifically on the period
between his 18th birthday and the present time is in ease of
the first plaintiff and does not, logically or in law, preclude
them from maintaining what has always been their position
i.e. that the State is obliged to provide for free primary
education, as a matter of constitutional duty under Article
42.4, only to children.
An unqualified duty?
It was strongly contended on behalf of the first plaintiff that
the opening words of Article 42.4, impose an absolutely
unqualified duty on the State. No consideration of limitation
of means, policy choices, competing demands, or alternative
priorities can arise, it was submitted. These words, they said,
imposed a duty on the State of a sort which is almost unique.
On a consideration of the Constitution, it was submitted on
behalf of the first plaintiff, the only similarly unqualified
duties were the duty to provide a residence for the President
in or near Dublin and the duty to hold elections at the
constitutionally required intervals, unless a shorter interval is
prescribed by law. In the course of later argument, it was
submitted that the duty, arising under Article 25.4, to
provide an official translation of a bill signed by the President

in one only of the official languages, was the only other
example of such an imperative, unqualified duty.
It will be observed that each of the other three alleged
examples of an unqualified duty is infinitely more specific,
and limited, than the alleged duty in relation to education. A
translation of the statutes is a simple and specific
requirement: it can be seen at a glance whether it has been
done or not. No question of policy is involved in complying
with this requirement: the only policy decision that arises
has already been taken and expressed in a constitutional
provision. The expense of complying with this provision is,
certainly considered as a percentage of the education
budget, tiny. The other examples may be somewhat more
expensive but are of the same general sort.
By comparison, the duty to provide for free primary
education is a complex one, involving enormous annual
expense, and requiring for its implementation the taking and
constant reviewing of decisions on policy
[2001]
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both by the legislature and by the executive. The content of
the education provided for, the standard to which that
content is to be taught, the mode of teaching, the age at
which it is to commence and end, and many other matters
must be decided upon and provided for.
Moreover, the enormous expense of educational provision
must be provided in the manner laid down by the
Constitution. That is to say, monies must be provided under
legislation giving effect to the annual financial resolutions.
The appropriation of such monies to publicly provided or
supported education can only be secured in accordance with
Article 17.2 of the Constitution which provides:"Dil ireann shall not pass any vote or resolution, and
no law shall be enacted, for the appropriation of revenue or

other public moneys unless the purpose of the appropriation
shall have been recommended to Dil ireann by a
message from the Government signed by the Taoiseach."
It seems to me that the constitutional requirements for the
conduct of public business, and in particular the expenditure
of public monies, as exemplified in this Article and other
provisions to be considered later, emphasise that the duty
imposed by Article 42 must be discharged in a manner
approved by the legislature on the recommendation of the
executive. It is true that neither of these organs of
government are in a position to disregard a constitutional
duty and that the courts have powers and duties in the
unlikely event of such disregard. But, excepting that extreme
situation, the duty imposed by Article 42 is a duty to be
discharged in the manner endorsed by the legislature and
executive who must necessarily have a wide measure of
discretion having regard to available resources and having
regard to policy considerations of which they must be the
judges.
This, in my view, is inconsistent with a concept of the duty
imposed by the first eight words of Article 42.4 as a simple
one, or as one different in kind from all other obligations
imposed on the State or its organs. Nor can the duty be
regarded as existing, as it was contended, on a higher plane
than any other such duty. The right to education is
undoubtedly a central and important one but it cannot
logically be regarded as in some way outranking the right to
life, or to bodily integrity, without which a right to education
may be redundant. In this context, it is appropriate to recall
what is said by Henchy J. in The People v. O'Shea [1982] I.R.
384 at p. 426:"Any single constitutional right or power is but a component
in an ensemble of interconnected and interacting provisions
which must be brought into play as part of a larger
composition, and which must be given such an integrated
interpretation as will fit it harmoniously into the general
constitutional order and modulation. It may be said of a
constitution, more than of any other legal instrument, that
'the letter
[2001]
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S.C.
killeth, but the spirit giveth life'. No single constitutional
provision may be isolated and construed with
undeviating literalness".
I would therefore reject two central planks of the first
plaintiff's case, viz. that the duty on the State, under Article
42, in relation to primary education is of a qualitatively
different sort to any other duty (including, for example the
duty to vindicate the citizen's right to life). I would also
reject, for the reasons already given, the proposition that the
duty to provide for primary education is open ended and
may extend throughout a person's life, or into old age. Any
terminal point would be to some extent arbitrary, but the
age of 18 as advanced by the State has the merit of being
the latest at which a person could, with any element of
reality, be regarded as a child.
This is not to say that a person, such as the first plaintiff,
with profound and obvious needs, is not entitled to have
them appropriately met after this age, but simply that they
cannot be compulsorily met thereafter (whatever about
before) on the basis of the single part of the single
constitutional Article on which this appeal was argued.
Statutory provisions
Accepting for the purposes of the case, and on the basis of
the concessions referred to earlier in this judgment, that the
first plaintiff's needs or any of them are to be met through a
service properly described as primary education, as used in
the Constitution, the first plaintiff's claim in respect of future
services might be put in other ways. The Education Act,
1998, has a long title which begins as follows:"An Act to make provision in the interests of the common
good for the education of every person in the State,
including any person with a disability or who has other

special educational needs "
Section 6 of the Act requires every person concerned with
the implementation of the Act to "have regard to the
following objects in pursuance of which the Oireachtas has
enacted this Act": these include:"(a) To give practical effect to the constitutional rights of
children, including children who have a disability or who
have other special educational needs
(d) To promote opportunities for adults, in particular adults
who as children did not avail of or benefit from education in
schools, to avail of educational opportunities through adult
and continuing education."
Section 7 confirms as a function of the Minister under the
Act:[2001]
2 I.R.
Hardiman J.
697
S.C.
"(a) to ensure, subject to the provisions of this Act, that
there is made available to each person resident in the State,
including a person with a disability or who has other special
educational needs, support services and a level and quality
of education appropriate to meeting the needs and abilities
of that person."
Section 32 of the Act provides for the establishment of
an"educational disadvantage committee" whose functions
are described in the Act. Section 38 provides for the
establishment of the National Council for Curriculum and
Assessment. Section 41(2) continues "It shall be the
function of the Council: (f) to advise the Minister on the requirements, as regards
curriculum and syllabuses, of students with a disability or
other special educational needs."
It appears that these provisions, together with those of the
Equal Status Act, 2000, and the Education (Welfare) Act,

2000, impose duties on public authorities which may be
relevant to a person in the position of the first plaintiff, or to
a child afflicted with the disabilities which have afflicted the
first plaintiff in one degree or another.
It must be perfectly clear that these provisions are, as one
would expect, at least in some respects considerably broader
than the constitutionally laid down minima. Section 7 of the
Act came into operation during the hearing of the present
case, which continued over a period of months thereafter. It
is a striking feature that no attempt was made to utilise the
new provision in relation to the first plaintiff's future
treatment.
The reliefs granted
The reliefs granted in this case are unusual and far
reaching. They include damages for breach of constitutional
rights and mandatory orders the effect of which is to lay
down, in detail, the regime of treatment or instruction which
the first plaintiff is to undergo until the year 2003 at which
time the judgment envisages that the court may make
further orders of the same sort. These orders, clearly, are in
the nature of instructions to the defendants and amount to
total acquiescence by the trial judge in the demand
advanced on behalf of the first plaintiff for a home based
programme of a sort being developed in England. It is
however to be noted that when issues of this sort have been
litigated in that jurisdiction, as in Bromley B.C. v. Needs
Tribunal [1999] 3 All E.R. 587, this has occurred against the
background of a detailed statutory structure to deal with
cases of educational disadvantage. This structure has, as an
integral part of it, procedures
[2001]
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Hardiman J.
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S.C.
for the resolution of disputes arising as to how individual
students are to be treated. This structure has no direct

counterpart here and, as noted above, no attempt was made
to rely upon our statutory provisions.
A number of cases from other jurisdictions were cited on the
hearing of this appeal, and in the similar case of
O'Donoghue v. Minister for Health [1996] 2 I.R. 20. In
relation to the cases from the United States and the United
Kingdom, it is important to stress that each of these
jurisdictions has an elaborate statutory scheme relating to
the education of handicapped persons. Of particular
relevance are the United States Education of the
Handicapped Act, 1975, and a number of the British statutes
now most relevantly the Education Act, 1996. These laid
down in considerable detail how an individual handicapped
child is to be assessed and what services are to be provided
to him or her. This is done by the making, under statutory
authority, of an"individualised education programme" in the
United States and a "a statement of special educational
needs" in the United Kingdom. In the latter jurisdiction, at
least, there is a statutory right of appeal to a special
educational needs tribunal and perhaps a further review in
the High Court and beyond. Decisions of the tribunal and the
bodies below it which feed into it may, if the usual conditions
are met, be subject to judicial review. But the basis of the
existing scheme, in each case, is statutory and the
procedures whereby the needs of a handicapped child are
assessed and met is a precise one, drawing heavily on the
evidence of experts. Indeed, one of the witnesses who gave
evidence in this case was an educational psychologist in
private practice whose work, to a significant degree,
consisted of advising one party or other in the statutory
decision making schemes.
Accordingly, it seems a fair observation that without any
legislative authority, and based wholly on the first eight
words of Article 42.4, the learned High Court Judge has
derived a power to make highly specific, and binding,
prescriptions for how the first plaintiff is to be treated by the
State authorities. The next question that arises is whether a
court has jurisdiction to do this where it relies on no
statutory authority.
Since the order made by the learned judge depends wholly
on the correctness of his interpretation of Article 42.4, it may
be unnecessary to consider its form further if it is held that
persons other than children cannot be beneficiaries of a duty
to provide for free primary education. But even if the learned
judge were correct in his interpretation on that Article, I
would still have grave reservations about a court's
jurisdiction to grant the reliefs actually granted, other than
the declarations, for the reasons set out below.
[2001]
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Jurisdiction to make orders of this sort
An order of this nature is a most unusual one for a court to
make. It appears, on the face of it, to make a decision, and
to enforce it on the executive authorities, in relation to a
matter normally within the discretion of the executive. This is
the matter of the services to be provided to the first plaintiff,
the recruitment of persons to provide services, the mode of
assessing the result of the provision of these services and
the costs of the services. The court has in effect taken these
decisions in lieu of any other body.
Decisions of this sort are normally a matter for the
legislative and executive arms of government. This is not
merely a matter of demarcation or administrative
convenience. It is a reflection of the constitutionally
mandated division of the general powers of government, set
out in Article 6 of the Constitution. A system of separation of
powers of this sort is a part of the constitutional
arrangements of all free societies. In the leading case of
Buckley and Others (Sinn Fin) v. Attorney General [1950]
I.R. 67, the Supreme Court addressed this topic as follows at
p. 81:-
"The manifest object of [Article 6] was to recognise and

ordain that, in the State, all powers of government should be
exercised in accordance with the well recognised principle of
the distribution of powers between the legislative, executive
and judicial organs of the State and to require that these
powers should not be exercised otherwise. The subsequent
articles are designed to carry into effect this distribution of
powers."
Both the basis of the principle of separation, and its
application in practice, are dealt with in the illuminating
judgment of Costello J. in O'Reilly v. Limerick Corporation
[1989] I.L.R.M. 181. This was a claim by various members of
the travelling community who lived on unofficial sites in
Limerick in conditions of considerable poverty and
deprivation. They wanted to be provided with halting sites.
They sought a mandatory injunction directing the local
authority to provide them with such sites, pursuant to a
statutory duty alleged to exist under the Housing Act, 1966.
They also claimed that the State should pay them damages
for past sufferings which they would have undergone, on the
basis that the conditions in which they had been required to
live amounted to a breach of their constitutional rights.
It is the last section of the judgment, at pp. 192 to 195,
which are of relevance here. Costello J. held that their claims
in relation to damages "should, to comply with the
Constitution, be advanced in Leinster House rather than in
the Four Courts". I believe that the reasons for this decision
are of the greatest relevance here.
[2001]
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Costello J. first noted that the claim for a mandatory
injunction was based wholly on statute, and the breach of
constitutional duty was alleged to ground an award of
damages only. He said at p. 193 that:"This seems to me to imply an admission that the court
would not have jurisdiction to make such an order and to
raise the question why if the court lacks jurisdiction to make
a mandatory order for the present breach of a constitutional
duty it has jurisdiction to award damages for past breaches?"
The learned judge pointed out that the jurisdiction claimed
would apply equally to breaches of other constitutional
rights, and he instances specifically the right to education.
He then said at p. 193:"The question raised by their claim is this; can the courts
with constitutional propriety adjudicate on an allegation that
the organs of Government responsible for the distribution of
the nation's wealth have improperly exercised their powers?
Or would such an adjudication be an infringement by the
courts of the role which the Constitution has conferred on
them?"
It seems to me that similar questions arise, at least in part,
in the present case.
Costello J. then went on to develop the basis of the
constitutional separation of powers. He traced it to the
distinction, acknowledged since classical times, between
distributive justice and commutative justice, at p. 194:"There is an important distinction to be made between the
relationship which arises in dealings between individuals
and the relationship which arises between the individual and
those in authority in a political community (which for
convenience I will call the Government) when goods held in
common for the benefit of the entire community (which
would nowadays include wealth raised by taxation) fall to be
distributed and allocated."
Having further discussed the basis of the distinction the
learned judge went on, in a passage of crucial importance, at
p. 194:"An obligation in distributive justice is placed on those
administering the common stock of goods, the common
resource and the wealth held in common which has been
raised by taxation, to distribute them and the common
wealth fairly and to determine what is due to each individual.
But that distribution can only be made by reference to the

common good and by those charged with furthering the
common good (the Government); it cannot be made by any
individual who may claim a share in the common stock and
no independent arbitrator, such as a court, can adjudicate on
a claim by an individual that he has been deprived of what is
his due. This situation is very different in the
[2001]
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Hardiman J.
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S.C.
case of commutative justice. What is due to an individual
from another individual (including a public authority) from a
relationship arising from their mutual dealings can be
ascertained and is due to him exclusively and the precepts
of commutative justice will enable an arbitrator such as a
court to decide what is properly due should the matter be
disputed. This distinction explains why the court has
jurisdiction to award damages against the State when a
servant of the State for whose activity it is vicariously liable
commits a wrong and why it may not get jurisdiction in cases
where the claim is for damages based on a failure to
distribute adequately in the plaintiff's favour a portion of the
community's wealth."
This passage, amongst other things, illustrates the fallacy of
one of the important arguments deployed by the first
plaintiff. In seeking to rebut suggestions that the relief
claimed in the present proceedings offended the separation
of powers, it was argued forcibly that the relief was no
different in principle to that which would readily be afforded
against a state authority which had committed a tort such as
negligence or trespass. But relief in such a case is plainly a
matter of commutative justice, arising from a specific
wrongful interference by the State with an individual or his
property. It is not a claim made by a citizen as such, or one
of a class of citizens, to have distributed to him in money or
monies worth, a specific part of the community's wealth, or

sufficient of it for a particular purpose.
In further, and perhaps even more directly relevant,
explanation of his decision, Costello J. said at pp. 194 and
195:"The State (against whom damages are sought) is the legal
embodiment of the political community whose affairs are
regulated by the Constitution. The powers of government of
the State are to be exercised by the organs of State
established by it. The sole and exclusive power of making
laws for the State is vested in the Oireachtas; the executive
power of the State is exercised by or on the authority of the
Government; and justice is to be administered in court
established by law. In relation to the raising of a common
fund to pay for the many services which the State provides
by law, the Government is constitutionally responsible to
Dil ireann for preparing annual estimates of proposed
expenditure and estimates of proposed receipts from
taxation. Approval for plans for expenditure, and the raising
of taxes, is given in the first instance by Dil ireann and
later by the Oireachtas by the enactment of the annual
Appropriation Act and the annual Finance Act. This means
that questions relating to raising common funds by taxation
and the mode of distribution of common funds are
determined by the Oireachtas, although laws enacted by the
Oireachtas may
[2001]
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Hardiman J.
702
S.C.
give wide discretionary powers to public authorities, and
public officials (including Ministers) as to their distribution in
individual cases."
Turning to the suggestion that the courts should in some
way oversee the work of the other organs of government
Costello J. said at p. 195:-
"The courts' constitutional function is to administer justice

but I do not think that by exercising the suggested
supervisory role it could be said that a court was
administering justice as contemplated in the Constitution.
What could be involved in the exercise of the suggested
jurisdiction would be the imposition by the court of its view
that there had been an unfair distribution of national
resources. To arrive at such a conclusion it would have to
make an assessment of the validity of the many competing
claims on those resources the correct priority to be given to
them and the financial implications of the plaintiff's claim
In exercising this function the court would not be
administering justice as it does when determining an issue
relating to commutative justice but it would be engaged in
an entirely different exercise namely an adjudication on the
fairness or otherwise of the manner in which other organs of
state had administered public resources."
Costello J. went on, at p. 195, to point out that apart from
these considerations "the judiciary have no special
qualification to undertake such a function".
In my view all of the considerations mentioned by Costello J.
are of prime importance in dealing with the present case. In
particular, the constitutionally mandated separation of
powers is a vital constituent of the sovereign independent
republican and democratic State envisaged by the
Constitution. It is not a mere administrative arrangement: it
is itself a high constitutional value. It exists to prevent the
accumulation of excessive power in any one of the organs of
government or its members, and to allow each to check and
balance the others. It is an essential part of the democratic
procedures of the State, not inferior in importance to any
article of the Constitution.
The principles set out by Costello J. were approved by the
Supreme Court in MacMathna v. Attorney General [1995]
1 I.R. 484. There, the plaintiffs, who were a married couple
with nine children, complained that, over time, the tax free
allowance to married couples in respect of dependent
children had been reduced to nil, while unmarried mothers
and other categories of parent continued to enjoy a tax free
allowance in respect of such children. Furthermore they

claimed that their other benefits had been increased at a
rate less than the rate of inflation whereas benefits received
by other categories of parent had increased to more than
keep pace with it. They claimed they were discriminated
against and that their rights under Article 41 of the
Constitution had been infringed.
[2001]
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Hardiman J.
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S.C.
The court upheld the High Court's decision to the effect that
the judicial arm of government lacked the power, by
declaration or otherwise, to direct the Oireachtas to initiate
and pass legislation in any particular form. In relation to the
alleged breach of constitutional rights, the court held as
follows at p. 499:"With regard to the provisions of Article 41 of the
Constitution, it is clearly conceivable that under certain
circumstances statutory provisions, particularly those
removing in its entirety financial support for the family, could
constitute a breach of the constitutional duty of the State
under Article 41. This is not a case in which such total
removal of support or absence of support can be asserted.
What is asserted here is that the measure of support over a
period has become insufficient.
It is clear that the provisions of the social welfare allowance
for children of married parents living together is not by any
means the only form of financial support provided by the
State for the upbringing of children by married parents. Such
matters as the contributions of the State to free primary and
secondary education, provision of free or assisted medical
services and other matters would all go into the question as
to whether the support was a proper discharge of the
constitutional duty. Added to that would be the vital question
as to whether it was a proper discharge of the duty of the

State under Article 41 bearing in mind the other
constitutional duties of the State and the other demands
properly to be made upon the resources of the State.
As is already indicated in this judgment these are peculiarly
matters within the field of national policy, to be decided by a
combination of the executive and the legislature, that cannot
be adjudicated upon by the courts."
Similar principles have been expounded in a number of
other cases including Boland v. An Taoiseach [1974] I.R. 338
and Riordan v. An Taoiseach [2000] 4 I.R. 542.
Indeed, these principles appear to have been accepted by
the learned trial judge in part at least of his judgment. Thus,
at p. 571 having made certain observations critical of the
State authorities, he said:" I recognise that I should not trespass into the realm of
executive or administrative decision making by the State in
which under the doctrine of separation of powers the court
has no function. However, the evidence herein establishes
that the difficulties encountered by the first plaintiff and his
mother in pursuing their rights against the State are
symptomatic of a widespread malaise. It seems to me that
the court as the guardian of the constitutional rights of the
citizen has a duty to criticise the response of the State to
such claims. In the instant case the grounds for criticism are
overwhelmingly. In my view the court will be
[2001]
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S.C.
failing in its responsibility as guardian of such rights if it did
not allude to the perceived problem areas which appear to
have collectively contributed to the failure of the State to
honour its constitutional obligations to the plaintiffs which
comprise rights into the future as well as in the past. It is
now a matter for the State to assess the problem areas in its
administrative and decision making structure which have

brought about the failure to honour constitutional obligations
to the first plaintiffs and other similar claimants, and to
remedy the situation thus revealed as in its wisdom it deems
most appropriate."
However, when the learned trial judge moved to consider
the question of remedies, he did not content himself with
declarations, criticisms, or allusions to specific problems. He
not merely held that the first plaintiff should have the best
available primary education and training but he went on to
prescribe in considerable detail what precisely that the
process should involve. Because the learned trial judge had
been "much impressed by the evidence of Mr. Alan Willis
about the Applied Behaviour Analysis home based
programme which is presently being successfully
pioneered in England", the judge required this to be provided
by mandatory order, together with funding for home based
ancillary services, speech, physiotherapy, occupational and
music therapies. If necessary, he said, the experts required
for providing the programme may be recruited in England or
elsewhere. He prescribed the length of this Applied
Behaviour Analysis programme as being two and a half
years, awarded damages based on the cost of this
programme, provided for review by the court in April, 2003,
at which time the question of further damages might arise.
Legal basis for the foregoing
A lengthy section of the learned trial judge's judgment,
between pp. 572 to 582 is entitled "The law". The only case
mentioned in this section apart from a reference to the
definition of education as deriving from Ryan v. Attorney
General [1965] I.R. 294 at p. 350, is O'Donoghue v. Minister
for Health [1996] 2 I.R. 20. The case is described by the
learned trial judge at p. 572 as "a major landmark in Irish
constitutional law and jurisprudence". The learned trial
judge's judgment contains many and lengthy quotations
from the judgment in O'Donoghue , summaries of further
portions of it, and quotations from documentary material
relied upon in it. It is therefore clear that O'Donoghue was
profoundly influential on the learned trial judge.
[2001]
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Despite this, the form of the order in this case is quite
different from that found in O'Donoghue v. Minister for
Health [1996] 2 I.R. 20. There, O'Hanlon J. granted
declaratory relief only. This was so despite the fact that the
judgment detailed his "strong conviction" that effective
primary education for a person such as the plaintiff in that
case required a "new approach" in respect of the various
specific matters which he detailed including the teacherpupil ratio to be observed and the number of care assistants
(two per six students).
There are a number of aspects of O'Donoghue v. Minister
for Health [1996] 2 I.R. 20 on which I wish to reserve my
position until they are raised in an appeal to this court.
However, I am in agreement with O'Hanlon J. in his reasons
for confining the relief granted to declarations. He said at p.
71:"In a case like the present one it should normally be
sufficient to grant declaratory relief in the expectation that
the institutions of the State would respond by taking
whatever action was appropriate to vindicate the
constitutional rights of the successful applicant. I therefore
propose to make no further order at the present time, save
in relation to the costs of the proceedings, but I reserve
liberty to the applicant to apply to the court again in the
future should it become necessary to do so for further relief
by way ofmandamus or otherwise as may come within the
scope of the present proceedings. A general liberty to apply
will also be given to all the parties to the proceedings."
The form of the declaration granted by O'Hanlon J. in
O'Donoghue v. Minister for Health [1996] 2 I.R. 20 was as
follows:-
" that the respondents, in failing to provide for free

primary education for the applicant and in discriminating
against him as compared with other children, have deprived
him of constitutional rights arising under Article 42 of the
Constitution, with particular reference to Article 42.3.2 and
Article 42.3.4 thereof."
On appeal, a new form of declaration was substituted for the
one just quoted, by consent of the parties. This was:" that the infant applicant is entitled to free primary
education in accordance with Article 42.4 of the Constitution
and the State is under an obligation to provide for such
education."
The events which occurred on appeal are the subject of an
editorial note after the report of O'Donoghue v. Minister for
Health [1996] 2 I.R. 20 at p. 72. From this it appears:(a) That the court was informed by both parties that the
State was then "providing for the infant applicant education
appropriate to his current condition".
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(b) Counsel for the Minister and the other respondents
stated that the respondents were not to be taken as
accepting the manner in which the learned trial judge had
interpreted the obligation to provide primary education to
the applicant.
(c) Counsel for the applicant stated that he was not to be
taken as acknowledging any error in the manner in which the
learned trial judge had interpreted the said obligation.
It thus appears that the appeal in O'Donoghue v. Minister
for Health [1996] 2 I.R. 20 was dealt with in a manner
satisfactory to the parties at the time but without a
resolution of the legal issues involved by this court. In the
present case, as noted at the start of this judgment, certain
concessions and limitations of the scope of argument by one

side or the other has again led to a situation in which the
issues before the court are much narrower than those
originally raised on the pleadings. The State appear to have
adopted an attitude of "nolo contendere" to the findings of
O'Hanlon J. in O'Donoghue ,and certain findings of the
learned trial judge in this case. The State does not wish to be
taken as accepting certain aspects of the judgment of
O'Hanlon J., but neither has it persisted in appealing them on
either of the two effective opportunities which were
available. This stance may relate to the fact that, in each
case, the plaintiff was in fact receiving services agreed to be
appropriate by the time the case came before this court, and
to the transformation of the legal landscape in relation to
education effected by the Act of 1998 and other statutory
interventions since this case commenced. But it has the
effect of leaving an area of uncertainty to whether the State
in fact accept, as opposed to conceding for the purposes of a
particular case, the main features of findings of O'Hanlon J.
and the learned trial judge in this case in relation to the type
of services to be provided to persons in the position of the
respective plaintiffs.
This, in turn, seems to reflect the concern within aspects of
the public service at any rate with the nature of the High
Court's decision in O'Donoghue v. Minister for Health [1996]
2 I.R. 20, rather than the details of it. The judgment in the
present case has attached to it certain correspondence
between departments of State. These include the comment:" it is the strong view of the Minister that the decision of
the High Court should be appealed to the Supreme Court in
view of the wider implications of having policy issues
determined by the courts."
In another document, dealing with the basis of the State's
appeal in O'Donoghue v. Minister for Health [1996] 2 I.R. 20,
the following was said:"(1) In appealing the decision of the High Court in the case
of Paul O'Donoghue, the State was not appealing the central
element of the High Court judgment - that a profoundly
handicapped child is
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S.C.
educable. The State accepted that education in a formal
school setting, including integration in the conventional
school environment, can be of real benefit to children with
disabilities.
(2) However, the judgment raised issues of more general
concern, primarily relating to the proper separation of the
powers and duties of the executive and judicial arms of
government and the appropriate relationship between the
two. These were viewed as constitutional matters of the
utmost importance, having relevance across the entire
spectrum of State activities."
It appears to me that the concerns raised in the public
service are serious ones entirely appropriate to be
considered by the executive and by persons holding
important positions in the service of the State. In so far as
the learned trial judge's judgment in this case can be read as
critical of the decision to appeal, I would respectfully demur.
Where an appellate jurisdiction exists it is the right of every
party, the State itself no less than the humblest citizen, to
invoke it. It is also inappropriate in any case to embarrass or
criticise a party for having exercised his right of appeal.
According to reports, there has been public comment of this
sort in connection with the present case.
In Buckley and Others (Sinn Fin) v. Attorney General and
Another [1950] I.R. 67, the High Court and the Supreme
Court affirmed in strong terms the courts' independence of
the other branches of government, and specifically the
unconstitutionality of a legislative measure purporting to
determine the disposal of funds when the courts were seized
of the issue. The striking affirmation in that case of the
separation of powers has already been quoted. It appears to
me that the courts must be equally concerned not to infringe
upon the proper prerogatives and area of operations of the

other branches of government. The functions of these
branches, like those of the courts, are themselves of
constitutional origin and constitutionally defined.
In my view, the foregoing principles underlie the essential
distinction drawn by Costello J. between issues which can be
pursued in the Four Courts and issues which, to comply with
the Constitution, must be pursued in Leinster House. It is
easy to imagine a particular case in which a party might
think, and might convince a judge, that a particular act or
omission of the legislature or executive was clearly wrong
and that another course of action (outlined perhaps in
considerable detail in uncontradicted evidence) clearly right
or at least preferable. That indeed was what happened in
O'Reilly v. Limerick Corporation [1989] I.L.R.M. 181. But
even if a court were quite satisfied that this situation existed,
that fact alone would not justify it in purporting to take a
decision properly within the remit of the legislature or the
executive. I reiterate that it is an independent constitutional
value, essential to the maintenance of parliamentary
democracy, that
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S.C.
the legislature and the executive retain their proper
independence in their respective spheres of action. In these
spheres, the executive is answerable to Dil ireann and
the members of the legislature are answerable to the
electorate.
Moreover, the independence of these organs of government
within their spheres must be real and not merely nominal.
This is imperatively required by the Constitution. Article
15.2.1 provides:"The sole and exclusive power of making laws for the State
is hereby vested in the Oireachtas: no other legislative
authority has power to make laws for the State."

Equally, Article 28.2 provides that:"The executive power of the State shall, subject to the
Article 28.4.1 provides that:"The Government shall be responsible to Dil ireann ."
The provisions under which, alone, public monies may be
appropriated to particular uses have already been cited.
Suggested basis of court intervention
The foregoing matters were extensively canvassed in the
course of argument and the difficulty of reconciling the
mandatory relief claimed and granted in the High Court with
the constitutional provisions cited was fully acknowledged.
The basis on which, it was said, the court's intervention was
nonetheless justified was expounded in some detail. It rests
on a number of strongly worded statements of eminent
judges over a period of years. I propose to deal with this
point on the basis of the strongest of them, that of
Dlaigh C.J. in The State (Quinn) v. Ryan [1965] I.R. 70
where he said at p. 122:"It was not the intention of the Constitution in guaranteeing
the courts were the custodians of these rights. As a
necessary corollary it follows that no-one can with impunity
set these rights or nought or circumvent them, and that the
courts' powers in this regard are as ample as the defence of
This passage was the subject of special reliance, in
particular the last phrase in it as to the scope of the courts'
power.
The State (Quinn) v. Ryan [1965] I.R. 70 related to the
notorious circumstances in which Mr. Quinn, having obtained
an absolute order of
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Hardiman J.
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S.C.
habeas corpus, was re-arrested and bundled out of the
jurisdiction in a manner characterised by subterfuge and
deceit. His right of access to the courts was wholly
subverted. Those responsible for this state of affairs were
found guilty of contempt, though this fact did not avail Mr.
Quinn who remained in custody abroad. Certain foreign
police officers found guilty of contempt tendered an apology
through counsel and were discharged without penalty. A
perusal of the report shows a sustained campaign to spirit
Mr. Quinn out of the country and to deceive his solicitor as to
his whereabouts.
The passage relied upon is in response to the answer made
by one of the members of the garda whose conduct was
impugned. This answer, as it is summarised in the judgment
of Dlaigh C.J. in two paragraphs immediately before
the passage relied upon is as follows at p.122:"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."
In my view it is essential to read the passage relied upon in
its context. So read, it is clear that it is not an assertion of an
unrestricted general power in the judicial arm of government
but rather a strong and entirely appropriate statement that a
petty fogging, legalistic response to an order in the terms of
Article 40.4 of the Constitution will not be permitted to
obscure the realities of the case, or to preclude appropriate
action by the courts.
Counsel for the first plaintiff argued with more effect there
must be residual power in the court to ensure that a persons
constitutional rights were not circumvented or denied. They
instanced a situation in which a hypothetical legislature and
government simply ceased to make any provision whatever
for free primary education: in such circumstances, they said,
the court must retain the jurisdiction to enforce the
constitutional right under Article 42.4.
In my view, it is neither logically sound nor desirable to
ground an argument by hypothesising an altogether extreme
situation which admittedly has no applicability to the facts of
the instant case, and to contend that the powers necessarily
available to deal with so acute an emergency are therefore
equally available to deal with an altogether different
situation.
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A position in which a hypothetical government would not
only ignore a constitutional imperative, and presumably defy
a court declaration on the topic, is indeed an extreme one. It
is a situation expressively described by counsel for the first
plaintiff as one of "meltdown".
The courts have, however, always retained necessary
discretion to deal with such circumstances. In MacMathna
v. Attorney General [1995] 1 I.R. 484, the court declined to
interfere with the social welfare and other provisions in
issue. This was on the basis that the plaintiff's complaints
related to " matters peculiarly within the field of national
policy, to be decided by a combination of the executive and
the legislature, but cannot be adjudicated upon by the
courts". But the Supreme Court specifically stated, at p. 499,
that it was "clearly conceivable that under certain
circumstances statutory provisions, particularly those
removing in its entirety financial support from the family

could constitute a breach of the constitutional duty of the
State under Article 41" thus requiring court intervention.
The fact that powers to deal with extreme circumstances
must be retained cannot be a basis for the exercise of such
powers in any other circumstances. Firstly, to do so would
offend the constitutional separation of powers. Secondly, it
would lead the courts into the taking of decisions in areas in
which they have no special qualification or experience.
Thirdly, it would permit the courts to take such decisions
even though they are not, and cannot be, democratically
responsible for them as the legislature and the executive
are. Fourthly, the evidence based adversarial procedures of
the court, which are excellently adapted for the
administration of commutative justice, are too technical, too
expensive, too focused on the individual issue to be an
appropriate method for deciding on issues of policy.
Challenge to the separation of powers
The view of the separation of powers summarised above
was for many years implicitly accepted by lawyers and
jurists. It can be found in most if not all of the great
constitutional documents and in the writings of such
commanding figures as Aristotle, Locke, Montesquieu and
the founding fathers of the United States. Central to this
view is a recognition that there is a proper sphere for both
elected representatives of the people and the executive
elected or endorsed by them in the taking of social and
economic and legislative decisions, as well as another
sphere where the judiciary is solely competent.
In the last quarter century, there has arisen another point of
view whose major manifestation in a quasi legal context is
found in the works of the American academic John Rawls. It
subordinates politics to a theory of
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S.C.
justice, seeming to view political philosophy as a branch of
jurisprudence. Theorists of this view consider that they can
provide a body of principles which can be interpreted and
applied by courts, to the virtual exclusion or marginalisation
of the political process. Preferably, but not essentially, the
mechanism of this process is to enshrine the selected
principles in some form of code or charter. Failing this, one
can try to imply them into older texts. The political process
thus avoided or marginalised is regarded as too diverse,
clamorous, and populist in values to be worth preserving as
more than an inferior organ of government.
In my view, conflicts of priorities, values, modes of
administration or sentiments cannot be avoided or ignored
by adopting an agreed or imposed exclusive theory of
justice. And if judges were to become involved in such an
enterprise, designing the details of policy in individual cases
or in general, and ranking some areas of policy in priority to
others, they would step beyond their appointed role. The
views of aspirants to judicial office on such social and
economic questions are not canvassed for the good reason
that they are thought to be irrelevant. They have no
mandate in these areas. And the legislature and the
executive, possessed of a democratic mandate, are liable to
recall by the withdrawal of that mandate. That is the most
fundamental, but by no means the only, basis of the
absolute necessity for judicial restraint in these areas. To
abandon this restraint would be unacceptably and I believe
unconstitutionally to limit the proper freedom of action of the
legislature and the executive branch of government.
I wish to emphasise that this is not a case in which the law
has no remedy for the first plaintiff on the fraught and
moving question of what is to be done for him in the future.
This is a case where, in my view, the first plaintiff is not
entitled to succeed in the single, limited avenue which, to
the exclusion of all others, was pursued on his behalf. In
particular, recent statutory provisions have effected a
revolution in educational legislation which will undoubtedly
be explored by some person with grievances about
educational services, but this has not been done here.

Similarly, the court retains its wide jurisdiction to ascertain
and enforce the rights of individuals, whatever their origin in
law or in the Constitution. The rejection of the very specific
and unique claim advanced by the first plaintiff in this action
does not alter the fact that the courts will continue to
develop the jurisprudence of individual rights and enforce
such rights on all appropriate occasions.
It is hardly necessary to point out that a case based on a
duty to provide services imposed by statute would avoid the
difficulties of principle described in O'Reilly v. Limerick
Corporation [1989] I.L.R.M. 181 and elsewhere. It is clearly
not possible to say, in the abstract, whether other
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difficulties might await a specific case, but the enforcement
of duties imposed by the legislature is obviously an exercise
of a different kind to the devising or inferring of such duties
without legislative intervention. The cases on autism cited
from the United Kingdom and the United States have
proceeded on the basis of a statutory duty.
I agree with Keane C.J. that the High Court had no power to
retain jurisdiction in this case after final judgment.
I agree with the alteration proposed to the declaratory order
by Geoghegan J. Otherwise, I would allow the appeal and
vary the order of the learned High Court Judge by deleting
the entirety of it save for the award of damages. The State
have agreed that these will be paid regardless of the
outcome of the appeal. The State has also agreed to pay the
costs of the appeal.
In relation to the second plaintiff's action, I agree with the
judgments of Keane C.J. and Geoghegan J. and I would
concur in the orders they propose.
In reaching the contrary conclusion Denham J. in a
memorable aphorism says that the "Constitution of Ireland is

a constitution for the people of Ireland, not an economy". It
may not be necessary to distinguish so rigidly between the
people and their economy. I would prefer to say that the
Constitution is not solely or primarily about the economic as
opposed to other attributes of the people. But the
Constitution is directly concerned with such economic topics
as natural resources, with the gathering and allocation of
public money, with the human rights to earn a livelihood and
hold property and with the regulation of these rights in the
interest of the common good.
But however one rephrases the aphorism I do not see it as
relevant to the question as to whether the second plaintiff
has a cause of action. The reasons for the conclusion that
she has no such cause are not economic in character, but
legal and constitutional. It is true that if she were found to
have such a cause of action, the economic consequences
might be very great. This might impact on the State or on
any other party found to have committed a constitutional
wrong, as a trade union was in Conway v. Irish National
Teachers Organisation [1991] 2 I.R. 305.
But these consequences would not be a reason to deny her
relief if a cause of action existed, and are irrelevant to the
question of whether it exists or not. The existence and scope
of a duty whose breach gives rise to liability requires to be
firmly identified in law if liability is justly to be imposed. In
my view this has not been done in the second plaintiff's case
for the reasons given in the judgments to which I have
referred.
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Geoghegan J.
Introduction
The first plaintiff, brought the first of the above entitled
actions against the State. In it he claimed that he was an
autistic child and that the State had not provided him with
the kind of education which it was constitutionally bound to
provide having regard to his disability. Various provisions of
the Constitution were relied on for this purpose. The relief
sought included a declaration that the first plaintiff had been
deprived of his constitutional rights pursuant to Articles 40
and 42 of the Constitution, and in particular Article 40.1,
Article 40.3.1, Article 40.3.2, Article 42.3.2 and Article 42.4,
damages for breach of the constitutional rights, for
negligence and for breach of duty, and a wide ranging
mandatory injunction directing the first defendant to provide
for free education for the first plaintiff, appropriate to his
needs for as long as he was capable of benefiting from
same. The first plaintiff's mother, the second plaintiff, also
sued the State in that action and claimed a declaration that
the first defendant, in failing to fulfill the first plaintiff's
constitutional rights, deprived the second plaintiff of alleged
constitutional rights of her own pursuant to Articles 40.1,
40.3.1 and 2, 41.1 and 2, and 42.1 to 4. The second plaintiff
also claimed damages for breach of her constitutional rights,
negligence and breach of duty and a similar wide-ranging
mandatory injunction as was sought in her son's action.
The two actions were fully contested by the defendants over
many days in the High Court before Barr J. The learned trial
judge heard the two actions together, and delivered a single
reserved judgment in which effectively, he found for both
plaintiffs. I will be returning to his judgment in due course.
The order, as drawn up in the first plaintiff's action, is to the
following effect. The High Court declared that the Minister for
Education, in failing to provide for free primary education for
the first plaintiff appropriate to his needs as a severely
handicap and in discriminating against the first plaintiff with
respect to provision of appropriate educational facilitiesvis-
-vis other children, has deprived the first plaintiff of his
constitutional rights pursuant to Articles 40 and 42 of the
Constitution, and in particular Article 40.1, Article 40.3.1 and

2, Article 42.3.2 and Article 42.4. It is then ordered that the
first plaintiff should recover 222,500 damages "for breach
of the first plaintiff's constitutional rights, negligence and
breach of duty" and that the Minister should "forthwith
provide for free primary education for the first plaintiff
benefiting from same". It is further provided in the order that
the
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S.C.
necessary funding be forthcoming for the "applied
behavioural analysis home based programme for sufferers
from autism" for two and a half years estimated at 28,000
per annum subject to review on completion, and that the
first plaintiff be provided with the necessary funding for
home based ancillary services, speech, physiotherapy,
occupational and music therapies and medical care
estimated at 15,000 per annum subject to review on
completion. The order then directs that the mandatory
injunction and damages granted by it are to be reviewed in
April, 2003, and that a claim for further damages over and
above the damages awarded by the court to date be
adjourned to that review with liberty to the first plaintiff to
re-enter or to apply in the interim in that regard. The order,
as drawn up, does not in some respects correspond to the
written judgment and I will return to that matter in due
course.
The order, as drawn up in the second plaintiff's action,
contains a declaration that the Minister "in failing to provide
for free primary education for the second plaintiff's son, the
first plaintiff, appropriate to his needs as a severely autistic
child with related profound mental and physical handicap
and in discriminating against the second plaintiff's son with
respect to provisions or appropriate educational facilities vis -vis other children has deprived the second plaintiff of her
constitutional rights pursuant to Articles 40.1, 40.3.1 and 2,
41.2.1 and 2 and 42.1 to 4 of the Constitution" and there is
then an award of 55,000 damages "for breach of the
second plaintiff's constitutional rights, negligence and
breach of duty" and an order that the Minister "do forthwith
provide for free primary education for the second plaintiff's
son appropriate to his needs for as long as he is capable of
benefiting from same".There followed a provision that the
mandatory injunction could be reviewed in April, 2003, with
liberty to the first plaintiff to re-enter or to apply in the
interim in that regard.
The defendants appealed both orders to this court. I think it
appropriate to summarise the grounds of appeal, as set out
in both notices of appeal, even though some aspects of the
appeals were subsequently withdrawn. In the first plaintiff's
action the defendants appealed on substantially the
following grounds:1. That the learned trial judge was wrong in interpreting
Article 42.4 of the Constitution as requiring the State to
provide for free education and related services for the first
plaintiff "as an open ended obligation, based on need rather
than age".
2. That such an interpretation by the trial judge constituted
a far-reaching exercise of judicial authority contrary to the
constitutional jurisprudence relating to judicial restraint.
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3. That the right declared by the learned trial judge was not
an express right under Article 42.4 and must therefore, if it
exists, be regarded as a non-specified constitutional right.
4. That the learned trial judge was wrong in holding that an
entitlement to free primary education for life in some

circumstances existed from the coming into operation of the
Constitution in 1937 and that failure to honour it has
sounded in damages since the early 1970s when expert
opinion widely accepted that the mentally handicapped were
capable of onward benefit from appropriate education.
5. That in the declarations and orders which the trial judge
made, he failed to have proper regard to the doctrine of
separation of powers under the Constitution and particularly
when the raising of tax revenue and the spending of public
monies were involved.
6. That the trial judge was in error in providing for a review
in the future of the reliefs by way of mandatory injunction
and damages.
7. That the trial judge erred in interpreting Article 40.1,
Article 40.3.1 and 2 and Article 42.3.2 as relevant to the
interpretation of the Constitution which he made.
8. That the trial judge erred in awarding damages and in
particular in failing to articulate the basis for such damages
and in failing to consider any temporal limitation thereon.
9. That there was no justification for awarding damages for
negligence or breach of duty as those claims had not been
maintained in the action.
10. That the trial judge erred in pronouncing on the liability
of the defendants for punitive damages.
The grounds of appeal as set out in the notice of appeal in
the second plaintiff's action, were more or less identical.
In the event, the State has agreed to pay the full award of
damages to the first plaintiff to date. This court is not now
being asked to set aside that award but what is still under
appeal is the following.
1. The mandatory injunction granted in the first plaintiff's
case.
2. The provision for review in April, 2003, and indeed the
entire concept of the court retaining control of the
proceedings and remedies into the future in any way.
3. The entitlement of the second plaintiff in her action to
any of the reliefs which she sought.
Counsel for the defendants was instructed to inform the
court that the defendants were conceding that the

constitutional duty under Article 42.4 of the Constitution, to
provide free primary education embraced a duty to provide
training and education to the first plaintiff appropriate to his
needs
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S.C.
until he reached the age of 18 and that the State had been
in breach of that duty. As far as this court is concerned it
would seem to me that two principles immediately arise
here. First of all, this court cannot be bound by any
agreement or concession as to matters of law. Secondly, this
court must, as far as possible, avoid deciding matters which
are not now under appeal. As some of the matters under
appeal are intertwined with other matters no longer under
appeal, the full application of the second principle may not
be entirely possible.
In considering the parameters of the appeal there is another
issue which needs to be considered and which I have already
mentioned. To some extent when it came to the reliefs, the
orders of the High Court appeared to have been drawn up by
reference to the respective statements of claim rather than
by reference to the actual judgment of Barr J. Presumably
this is because at one point in the judgment the learned trial
judge did state that the plaintiffs were entitled to the relief
sought in the statement of claim. This court, however, should
only concern itself with the relevant findings of fact and law
by the learned trial judge as expressed in his written
judgment. I propose now to examine what those findings
were, first in the first plaintiff's action and secondly, in the
second plaintiff's action.
Although at p. 51, the learned High Court Judge stated that
both plaintiffs were entitled to the declarations which they
claimed in their respective statements of claim and "to
damages arising out of breach of their constitutional rights,

negligence and breach of duty by the State in that regard", it
seems quite clear that in the case of the first plaintiff, at
least, only one constitutional duty was analysed and found to
be breached in the judgment and that is the duty under
Article 42.4 to provide for free primary education. Article
42.4 does not actually stop there but goes on to provide that
the State" shall endeavour to supplement and give
reasonable aid to private and corporate educational
initiative, and, when the public good requires it, provide
other educational facilities or institutions with due regard,
however, for the rights of parents, especially in the matter of
religious and moral formation." But as I read the judgment of
Barr J., he has concerned himself only with the first part of
Article 42.4 and, indeed, no argument was put forward on
behalf of the defendants in this court that the remainder of
the sub-article was relevant. Conceivably, the constitutional
requirement that "when the public good requires it" the
State must provide other educational facilities or institutions
could have been invoked by the first plaintiff but as it was
not, I do not intend to express any view on its relevance. The
point was made at the hearing of the appeal that normally
under the separation of powers principles, the courts do not
determine what might be required by the public good. But I
am not convinced that there would not be exceptions to that
principle. For the purposes of this
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S.C.
appeal, therefore, I am regarding the alleged failure to
provide for free primary education to the first plaintiff as the
only breach of constitutional duty found. The issues of
common law negligence and breach of duty were not dealt
with by the learned trial judge in his judgment and were not
argued before this court and, therefore, I do not think that
they arise for consideration.

In relation to breach of constitutional rights, the position of
the second plaintiff's appeal is somewhat different. The
learned trial judge, in addition to finding breaches of
constitutional duty to her by the State under Article 42.4 of
the Constitution, also found breaches of constitutional duty
to her under Article 41.2 and Article 40.1.
Given that the complaint against the State giving rise to
both actions is a complaint that appropriate training and
education was not given to the first plaintiff, having regard
to his autistic condition, I can understand that there is an
arguable case that in such circumstances a constitutional
duty would be owed to the second plaintiff under Article
42.4, but I find it impossible to understand how that basic
complaint underlying both actions could give rise to
breaches of constitutional duty to the second plaintiff under
Article 41.2 or Article 40.1. None of the conduct of the State,
as established in the evidence, was tantamount to any
attack on the Sinnott family in its constitution and authority
nor it would seem to me, does an equality issue arise under
Article 40.1. Insofar as the learned High Court Judge found
that there were breaches of these two constitutional
provisions, I am of opinion that his decision was wrong. As to
whether he was correct in his view that there was a
constitutional duty under Article 42.4 and that it had been
breached is a question to which I will return later in the
judgment.
In considering the matters under appeal it is important to
note that there has been no appeal against any finding of
fact by the learned trial judge. In considering the question of
future reliefs therefore I am assuming that those findings of
fact were correct.
The facts
The facts are exhaustively dealt with in the judgment of Barr
J. and again in the judgment of Keane C.J. on this appeal. I
find it unnecessary to repeat them in this judgment.
The law
For the purposes of determining whether the learned High
Court Judge made the appropriate orders or not, it is
necessary first to consider what is

[2001]
2 I.R.
Geoghegan J.
718
S.C.
the correct interpretation of the first part of Article 42.4 of
the Constitution. Although as I will be explaining, I am not of
the view that a historical interpretation of the Article must,
for all time, be regarded as the correct interpretation, it is
nevertheless important in interpreting any provision of the
Constitution to consider what it was intended to mean as of
the date that the people approved it. I do not think that any
judge or lawyer as of 1937 would have had any difficulty in
that task. The expression "primary education" was in
common currency and it meant the type of schooling that
was provided in the so called national schools up to about
the age of twelve. The word "free" meant what it said. Every
child was to be entitled to such primary education free of
charge. I doubt very much that it would ever have occurred
to anybody in 1937 that the obligation on the State meant
anything more than that. Furthermore, I would be reasonably
satisfied that the draftsman of Article 42.4 intended the
word"education" to have the meaning ascribed to it by
Kenny J. in Ryan v. Attorney General [1965] I.R. 294. In his
judgment in the High Court in that case Kenny J. said the
following at p. 310:"The education referred to in section 1 must, therefore, be
one that can be provided in schools and must, therefore, be
one of a scholastic nature."
But in limiting the meaning of "education" it seems clear
that Kenny J. had in mind that it was intended to cover only
the kind of teaching or training that is done in schools. I do
not think that he was using the word "scholastic" in a strictly
literal sense. In the same case in the Supreme Court,
Dlaigh C.J. at p. 350 rejected a contention of counsel for
the plaintiff in that case that "the provision of suitable food
and drink for children" was physical education, holding that

that was "nurture, not education". The former Chief Justice,
however, then went on to give a definition of "education"
which arguably was wider than that intended by Kenny J.
Dlaigh C.J. said at p. 350 that:"Education essentially is the teaching and training of a child
to make best possible use of his inherent and potential
capacities, physical, mental and moral. To teach a child to
minimise the dangers of dental caries by adequate brushing
of his teeth is physical education for it induces him to use his
own resources. To give him water of a nature calculated to
minimise the danger of dental caries is in no way to educate
him, physically or otherwise, for it does not develop his
resources."
This formulation of words by Dlaigh C.J. legitimises (if
such legitimation were ever required) a reinterpretation by
this court of the expression "primary education" in the light
of modern knowledge of the educational requirements of
handicapped children which are totally
[2001]
2 I.R.
Geoghegan J.
719
S.C.
different from that which was perceived in 1937. In a
somewhat different context Walsh J., in his judgment in the
Supreme Court in McGee v. Attorney General [1974] I.R. 284
at p. 319, commented as follows:" 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."
It would seem to me that this principle should apply to the
interpretation of any Article of the Constitution, but
particularly the Articles relating to fundamental rights. I
would, therefore, accept the basic proposition put forward by
counsel for the plaintiffs and supported by the learned trial
judge that the expression "primary education" must include

suitable education for mentally handicapped children. But
while I accept the basic proposition, I believe that even on a
contemporary interpretation of the Constitution it is much
more limited in application than has been put forward on
behalf of the plaintiffs.
It was pointed out by this court in Crowley v. Ireland [1980]
I.R. 102, that the duty of the State under Article 42.4 is not
to provide free primary education but rather to provide for
free primary education. But in my view for the purposes of
this case nothing turns on that distinction. Either the State
itself must provide the necessary educational requirements
of the autistic child or it must fund the availing by the child
of such services in some private institution or service.
There are other aspects of Article 42.4 which do need to be
considered. First of all, I would accept the argument made by
counsel for the defendants, that in the context in which
Article 42.4 is placed, the duty arising under it is a duty
owed to children and not to adults. I do not attach any
significance to the absence of the word"children" in Article
42.4. I am deliberately using the word"children" as
effectively meaning non-adults. While it does not fall to be
determined in this case, I would be of opinion that in the
case of the vast majority of children in this State who are
non-handicapped the constitutional duty is discharged
simply by ensuring that there are schools providing the
necessary minimum education available for every child and
that the education therein will be provided free of charge.
The Constitution must be interpreted in the light of the
realities of life. One of those realities is that no matter how
efficient an education system there may be, there cannot be
a guarantee of high quality teaching. It may well be,
therefore, that largely due to poor teaching in a particular
school a child who has difficulty in learning to read and write
may never acquire those skills. But apart from possibly
exceptional circumstances, such a child either at the time of
schooling or in later life would not be entitled to bring an
action based on an alleged breach of Article 42.4. Still less
would some
[2001]
2 I.R.
Geoghegan J.
720
S.C.
adult immigrant be entitled to invoke the Article, an idea
which was mooted at the hearing of the appeal. But in the
small percentage of mentally handicapped children the
scope of the constitutional duty on the State may be
different. If I am right in my view that Article 42.4 relates
only to children and not adults then I think that in the case of
mentally handicapped children the duty is owed to them as
children only and not as adults. I cannot accept that there is
no such thing as a mentally handicapped adult. Merely
because some mental or physical abilities do not surpass
those of a young child if they have even reached that stage,
does not mean that in ordinary parlance these children do
not become adults. Adulthood is as much to do with physical
development as anything else.
If I am right in my view so far, then the practical effect is
that whereas primary education might be regarded as
education up to the age of 12 in the case of a normal child,
because of slow learning or learning incapacity, the period to
be covered by the expression"primary education" may
obviously have to be extended in the case of handicapped
children. In that sense, the arbitrary choice by the State of
the age 18 is not necessarily illogical. In the perception of
most people a child becomes an adult at 18.
It seems quite clear on the evidence in this particular case
that at least in relation the first plaintiff, unless the
necessary basic training and education is continuous there is
danger that he effectively unlearns everything that he has
learned. Accordingly, no matter how appropriate the
education or training afforded to him by the State in
purported discharge of its obligations under Article 42.4
might have been it could be rendered useless in adulthood if
it was stopped at the age of 18. While there has been no
evidence before the court of the position in relation to forms

of mental handicap other than autism, I would be surprised if
this "unlearning" aspect applied in all forms of handicap. For
instance I do not think that it would apply in the case of a
down syndrome child. But I accept that it probably does
apply in other categories of mentally handicapped children.
Where it does not apply the constitutional duty would clearly
come to an end at probably about the age of 18 as
suggested by the State in this case or at the end of whatever
might in all the circumstances be a reasonable though lesser
extension over the normal period of primary education. I
have carefully considered whether the position might be
different in cases where the "unlearning" problem arises. It
could be argued that even though the duty is to a non-adult,
it cannot in practice be effectively discharged unless there is
continuing training into the future. But I have reluctantly
come to the conclusion that to so hold, would amount to an
excessive straining of the wording of Article 42.4 when read
in context.
In the conclusion which he reached the learned trial judge
relied primarily on the judgment of O'Hanlon J. in
O'Donoghue v. Minister for
[2001]
2 I.R.
Geoghegan J.
721
S.C.
Health [1996] 2 I.R. 20. No appeal from that judgment was
heard by this court. It is necessary now to consider the
judgment carefully.
The principal issue considered by O'Hanlon J. was whether a
severely mentally handicapped child was educable at all. It is
quite clear from the resum of evidence which the learned
judge gave in his judgment that there was ample evidence to
support the finding of the judge that the plaintiff, as a
severely mentally handicapped child, was educable.
O'Hanlon J. based his conclusions on evidence of research

and experience which long post-dated 1937. For the reasons
which I have already indicated in this judgment, I believe
that the learned judge on foot of such evidence was entirely
justified in giving a modern interpretation to Article 42. One
of the witnesses in that case was a Mr. John Twomey, an
educational and clinical psychologist employed as principal
and chief psychologist at the Cope Foundation from 1970 to
1982. He was a member of the working party which
produced the "blue report" on the education and training of
severely and profoundly mentally handicapped children in
Ireland in the year 1983, but his evidence in court was that
considerable further developments had occurred since then.
He was apparently asked what meaning he gave to the word
"primary" when linked with education and he said that it
meant "first" or"basic" education for children. As it would
have been for the court and not a witness to ascribe a
meaning to the word "primary" it must be assumed that this
line of questioning was simply to ensure that he was properly
focussed when giving the court his views about basic
education for mentally handicapped children. According to
the judgment Mr. Twomey considered that such children
should be given education from 4 to 18, the implication
being as I understand the judgment that that is the period
which would be required for such children to have a"basic"
education. O'Hanlon J. says the following at pp. 69 to 70:"The evidence given in the case also gives rise to a strong
of:(1) Age of commencement: Early intervention and
assessment being of vital importance if conditions of mental
and physical handicap are not to become intractable.
process should, ideally, continue as long as the ability for
further development is discernible. Professor Hogg suggests
that age eighteen may not be unrealistic in this context.
(3) Continuity of education: The lengthy holiday breaks

which take place in the life of the ordinary primary school
appear likely to
[2001]
2 I.R.
Geoghegan J.
722
S.C.
cause serious loss of ground which may never be recovered
in the case of children with severe or profound handicap.
Accordingly, to deal adequately with their needs appears to
require that the teaching process should, as far as
practicable, be continuous throughout the entire year."
I think that it is correct to adopt a modern interpretation of
Article 42 and I find no reason to disagree with the
conclusions reached by O'Hanlon J. in O'Donoghue v.
Minister for Health [1996] 2 I.R. 20 although some of the
sources relied on might be considered of doubtful value in an
Irish court. But I find nothing in the judgment of O'Hanlon J.
to support the view that a handicapped child may be entitled
under Article 42 to some kind of education or training for the
rest of his or her life or indeed into adulthood at all. I am
unable to discern in Article 42 no matter what contemporary
interpretation one gives to it any justification for the view
that it continues to apply into adulthood. I am, therefore,
persuaded by the argument of counsel for the defendants
that the duty does not extend beyond the age of eighteen.
It is important that at this point I refer to part of the
judgment of Keane C.J. which I have had the benefit of
reading. Keane C.J. is clearly of the view that as the first
plaintiff was 22 at the time of the High Court hearing and as
the State has accepted liability for the High Court award of
damages to date, this court can only consider whether the
right to free primary education continued beyond the age of
22 and is precluded from considering whether it came to an
end at the age of 18. It is pointed out by Keane C.J. that
there is no appeal by the State against the finding that the
right continued beyond the age of 18 and at least to 22.

Needless to say, I entirely subscribe to the view of Keane C.J.
that an unappealed High Court decision on a constitutional
issue, or indeed on any other issue, must be treated as being
an authoritative statement of the law. But rightly or wrongly,
I interpret the approach adopted on behalf of the Minister on
this appeal rather differently. He is accepting liability for the
award of damages to date and neither the amount of the
award or liability for it is in issue on this appeal. But in
considering the potential future liability of the Minister, his
counsel are not precluded, in my view, from arguing as a
reason why there can be no liability into the future, that the
constitutional right came to an end at age 18. They are
putting forward that proposition as a legitimate argument in
an aspect of the appeal which is before this court.
In the light of the view which I have expressed that the
constitutional duty does not extend into adulthood but that
the duty did continue until the age of 18 in the special
circumstances of this case, the question arises as to what
parts of the order of Barr J. ought to stand and what parts
ought to be set aside.
[2001]
2 I.R.
Geoghegan J.
723
S.C.
First of all, I would uphold the main thrust of the declaratory
order which the learned High Court Judge made, but I would
vary the wording so that it would read as follows:"The court doth declare that the first defendant in failing to
provide for free primary education up to the age of 18 for the
first plaintiff appropriate to his needs as a severely autistic
child with related profound mental and physical handicap
has deprived the first plaintiff of his constitutional rights
pursuant to Article 42.4 of the Constitution."
I would express no view as to the first plaintiff's legal
entitlement to damages for breach of that constitutional

right as that issue is not before this court, the parties having
agreed on a sum for damages.
I would obviously uphold the part of the order which directs
that an application be made to have the first plaintiff taken
into wardship.
As the first plaintiff has long ago reached the age of 18 I
would set aside the mandatory injunction directing the first
defendant to provide for free primary education into the
future and the orders for the provision of funding. It must
logically follow that I would also set aside the provisions for
the review of the mandatory injunction and damages in April,
2003, and I would set aside any orders for damages for the
future or providing for the possibility of damages for the
future.
At the hearing of the appeal there has been considerable
debate about separation of powers and, in particular the
difficult question of when if at all the courts can order the
State to allocate funds to a particular project even if there is
a constitutional obligation to provide for such a project. This
interesting question was analysed to some extent by
Costello J. in O'Reilly v. Limerick Corporation [1989] I.L.R.M.
181. The learned judge in that case pointed out that
questions relating to raising common funds by taxation and
the mode of distribution of common funds are determined by
the Oireachtas although wide discretionary powers may be
given to public authorities and public officials as to their
distribution in particular cases. The judge went on to observe
that the courts' constitutional function is to administer
justice and that a suggested supervisory role as to how
money should be spent in a particular instance was not
administering justice as contemplated by the Constitution.
Costello J. went on to point out that in order to form a view
as to whether there was an unfair distribution of national
resources the court would have to make an assessment of
the validity of many competing claims on those resources,
the correct priority to be given to them and the financial
implications of the plaintiff's claim. The judge opined (and I
agree) that the courts were singularly unsuited for that task
particularly having regard to the incremental way by which

particular problems may come before them. It is the peculiar
role of the Oireachtas to make these decisions.
[2001]
2 I.R.
Geoghegan J.
724
S.C.
If I had taken the view that there was a continuing
constitutional duty into the future owed by the State to the
first plaintiff I would have had to consider particularly in the
light of the principles identified by Costello J. whether the
kind of orders made by Barr J. would be permissible or
appropriate. As this matter does not have to be decided by
me having regard to my judgment, I would reserve my
position, but I do think that in very exceptional
circumstances it may be open to a court to order allocation
of funds where a constitutional right has been flouted
without justification or reasonable excuse of any kind. I
would have great doubts, however, that the courts should
ever involve themselves in making the detailed kind of
orders which were made in some of the American cases cited
in relation to education.
The ongoing education into the future which the trial judge
considered that the State was constitutionally bound to
provide is obviously highly desirable having regard to the
findings of fact of the learned trial judge and it may well be
that the Minister is at any rate now legally obliged to provide
such services under the Education Act, 1998. This court is
not concerned with those issues but only with the issue of
whether there is a continuing constitutional obligation after
the age of 18 in this particular case and, in my opinion, there
is not. I would, therefore, allow the appeal to the extent
which I have indicated.
There is only one other matter on which I would like to
comment. There has been some discussion at the hearing as
to whether the requirements of the first plaintiff can be

described as educational requirements at all or whether they
are more in the nature of health or therapy requirements. It
has been pointed out for instance that in the ordinary way
primary education for a normal child would not commence
before the age of four and that toilet training etc. which goes
on in the home before that is not "education" in any
accepted meaning of the term. The argument then runs that
the first plaintiff, because of his condition, never reaches the
stage of being able to benefit from any kind of training that
could reasonably be described as "education". I would wholly
reject this argument. The word"educate" in its Latin
derivation refers to bringing or leading out. If a handicapped
child, unlike a normal child, cannot naturally acquire skills in
the home but has to have special training to acquire them
then I cannot see why that special training would be
inappropriately described as "education". At any rate I do not
think that health therapy and education requirements are
mutually exclusive of each other. They can overlap and can
be given a double if not a treble description. I, therefore, find
no fault in the trial judge's interpretation of "education" in
the case of an autistic child.
[2001]
2 I.R.
Geoghegan J.
725
S.C.
I now turn to deal with the second plaintiff's action. I can do
so very briefly. The learned High Court Judge made, inter
alia,the following declaratory order in her action:"The Court doth declare that the first defendant in failing to
provide for free primary education for the second plaintiff's
son, the first plaintiff, appropriate to his needs as a severely
handicap and in discriminating against the second plaintiff's
son with respect to the provisions of appropriate educational
facilities vis- -vis other children has deprived the second

plaintiff of her constitutional rights pursuant to Articles 40.1,
40.3.1 and 2, 41.2.1 and 2, and 42.1 to 4 of the
Constitution."
Although numerous constitutional provisions are cited in the
declaratory order they all are alleged to relate directly or
indirectly to the basic complaint of the second plaintiff that
the first plaintiff did not receive appropriate constitutionally
required education. But any duty to educate or provide
education or provide for education can only be owed to the
person who is to be educated and not to the mother or any
other relative of that person. Of course, insofar as the duty is
to provide for primary education free of charge it may well
be argued that the duty not to impose a charge is a duty
owed to the parents. But that issue does not arise in this
case. The damages awarded to her apart from the 15,000
special damages were not the cost of having to privately
fund suitable training and education but rather general
damages. It has already been pointed out in this judgment
that notwithstanding the terms of the order in the first
plaintiff's case the only constitutional breach in respect of
which the learned trial judge gave a reasoned judgment was
a breach of the first part of Article 42.4. But even if an issue
did properly arise under Article 40.1 it would be an equality
issue involving the first plaintiff. Again, there is nothing in
the written judgment explaining any reasons why there
might have been infringements of Article 40.3.1 and 2 but if
there had been it could only have been the constitutional
rights of the first plaintiff, which would have been infringed
and not of his mother. There is no doubt that in an
appropriate case the mother might be able to claim breaches
of constitutional duties towards her under Articles 41.2.1 and
41.2.2 as these are constitutional provisions directly dealing
with the family, but it does not seem to me that any of the
behaviour of the State disapproved of by the learned trial
judge constituted an attack on the family. For the same
reason it would not seem to me that Article 42.1, 2 and 3 are
in any way relevant to this case. Indeed, quite apart from the
fact that no parental rights were being attacked contrary to
those Articles, the provisions of the Articles themselves

could not be relevant to the issues in this case. I therefore
fail to understand how she can be held to have a right of
action for infringement of any alleged constitutional
[2001]
2 I.R.
Geoghegan J. Fennelly J.
726
S.C.
rights. I am in complete agreement also with the analysis of
the second plaintiff's claim in the judgment of Keane C.J. Any
contraventions of the Constitution that there were appear to
have been breaches of constitutional duty owed to the first
plaintiff rather than to the second plaintiff. I would, therefore,
allow the appeal in the second plaintiff's case except in
relation to the award of 15,000 special damages.
Fennelly J.
I agree with the judgments of Hardiman and Geoghegan JJ.,
in the case of the first plaintiff, insofar as they state that the
constitutional duty of the State to provide for free primary
education is owed to children and not to adults. I agree in
particular with the analysis by Hardiman J. of the language of
the Irish and English texts of Articles 41 and 42 of the
Constitution.
I do not think it necessary or desirable to consider in the
present case the quality as distinct from the duration of the
education which the State is obliged to provide, i.e. whether
a person in the first plaintiff's tragic condition was ever in a
position to enjoy it. The State's decision to admit that the
first plaintiff's constitutional rights were infringed and not to
contest the award of damages renders that issue moot. The
comments on that issue contained in several judgments
delivered today are therefore, obiter.
It follows also that there is no continuing breach of the first
plaintiff's constitutional rights. There is, therefore, no need
for any declaration either as to the future. I agree with the
proposal of Geoghegan J. for reformulation of the

declaration. As the State is not contesting the payment of
any part of the damages awarded to the first plaintiff,
including the payment for Applied Behaviour Analysis, there
is no need to consider the issue of separation of powers. I do
not think the High Court order, properly considered and
certainly as it is now to be amended, does other than
provide a sum of money for the first plaintiff for the purpose
of providing that type of educational service. That is part of
the award of damages, which is not under appeal.
As to the claim of the second plaintiff I agree with the
judgment of Keane C.J.
Solicitors for the plaintiffs: Ernest Cantillon & Co.
Solicitor for the defendant: The Chief State Solicitor.
Cathleen Noctor, Barrister
[2001]
power of Oireachtas to amend 1922 Constitution
Invalid Defeated Illegal 59% 39% yes in October 25th 2011
Referendum Defeated but the Government still Passed it
under Article 30 into the Fiscal Treaty its all illegal Treason
THE STATE (at the prosecution of Jeremiah Ryan and Others)
v. CAPTAIN MICHAEL LENNON, Governor of the Military
Detention Barracks, Arbour Hill, Dublin, COLONEL FRANK
BENNETT and Others, The Members of the Constitution
(Special Powers) Tribunal ; and in the Matter of the Courts of
Justice Act 1924 and in the Matter of the Constitution of
Saorstt ireann (1)
High Court.
16,17, 18, 19, 25, July 1934
7,8, 9, 10, 14, 17, Aug. 1934
19, Dec. 1934
Constitution - Power of Oireachtas to amend - Extent of
power - Deletion ofprovisions for Referendum - Validity Extension of period of amendment"by way of ordinary
legislation" - Validity - Power to repealArticles of Constitution
- Whether fundamental and immutable principles- Habeas
corpus - Prohibition - Constitution of the Irish Free
State(Saorstt ireann ireann) Act, 1922, sect. 2 and

Sch. I, Art. 50 - Constitution(Amendment No. 10) Act, 1928
(No. 8 of 1928) - Constitution (AmendmentNo. 16) Act, 1929
(No. 10 of 1929) - Constitution (AmendmentNo. 17) Act,
1931 (No. 37 of 1931).
Article 50 of the Constitution of the Irish Free State (which
came into operation on 6th December, 1922), as originally
enacted, provided as follows:
"Amendments of this Constitution within the terms of the
Scheduled Treaty may be made by the Oireachtas, but no
such amendment, passed by both Houses of the Oireachtas,
after the expiration of a period of eight years from the date
of the coming into operation of this Constitution, shall
become law, unless the same shall, after it has been passed
or deemed to have been passed by the said two Houses of
the Oireachtas, have been submitted to a Referendum of the
people, and unless a majority of the voters on the register
shall have recorded their votes on such Referendum, and
either the votes of a majority of the voters on the register, or
two-thirds of the votes recorded, shall have been cast in
favour of such amendment. Any such amendment may be
made within the said period of eight years by way of
ordinary legislation and as such shall be subject to the
provisions of Article 47 hereof."
The "Scheduled Treaty" mentioned in this Article referred to
the"Articles of Agreement for a Treaty between Great Britain
and Ireland"set forth in the Second Schedule of the
Constitution of the Irish Free State (Saorstt ireann )
Act, 1922, to which the Constitution formed the First
Schedule.
By the Constitution (Amendment No. 10) Act, 1928, passed
within the said period of eight years, the Constitution was
amended by, inter alia, the deletion of Article 47 (dealing
with the Referendum) and the deletion from Article 50 of the
words "and as such shall be subject to the provisions of
Article 47 hereof."
By the Constitution (Amendment No. 16) Act, 1929, also
passed within the said period of eight years, Article 50 was
amended by the substitution of the words "sixteen years" for
the words "eight years" therein.

Held, by the Supreme Court (FitzGibbon and Murnaghan JJ.,
Kennedy C.J. dissenting) that these enactments were within
the power of amendment conferred on the Oireachtas by
Article 50 and were valid amendments of the Constitution;
and that, consequently, an amendment of the Constitution
enacted after the expiry of the original period of eight years
was not invalid by reason only of not having been, or having
been, capable of being submitted to a Referendum of the
people under Article 50 or Article 47, respectively, as
originally enacted.
By the Constitution (Amendment No. 17) Act, 1931, the
Constitution was amended by the insertion therein,
immediately after Article 2 thereof,
[1935]
1 I.R.
The State (Ryan and Others) v. Lennon and Others.
171
High Court.
of the Article set out in the Schedule to the Act (to be cited
as "Article 2aof the Constitution"). Article 2a consisted of five
parts and an Appendix. Part I provided for the Article coming
into force or ceasing to be in force by order of the Executive
Council which the Executive Council was empowered to
make whenever "of opinion that circumstances exist which
render it expedient"; and it also provided that Article 3 and
every subsequent Article of the Constitution should be read
and construed subject to the provisions of the said Article 2a
which was to prevail in the case of any inconsistency. Part II
provided for the establishment of a tribunal, to be known as
"the Constitution (Special Powers) Tribunal" and consisting of
officers of the Defence Forces of Saorstt ireann , with
jurisdiction to try and convict or acquit all persons charged
with an offence mentioned in the Appendix to Article 2a and
to sentence every person convicted by the tribunal of any
such offence, and with power, in lieu of the punishment
provided by law, to sentence such person to suffer any
greater punishment (including the penalty of death) if in the

opinion of the Tribunal such greater punishment was
necessary or expedient. Part III conferred special powers on
the police, including power of arrest on suspicion in certain
cases, power of detention on suspicion in certain cases,
examination of persons detained on suspicion or in custody,
power to bring detained persons before the Tribunal, and
power to stop and search vehicles. Part IV defined "unlawful
associations" and provided penalties for membership of, or
possession of documents relating to, such associations. Part
V conferred miscellaneous powers on the Executive Council,
the Tribunal, the Garda Siochna, etc. The Appendix to the
Article enumerated seven classes of offences, six of which
were classes of specific offences (including the class "any
offence under any section of this Article") and the seventh of
which read: "Any offence whatsoever (whether committed
before or after this Article was inserted in this Constitution or
before or after sections 4 to 34 of this Article came into
force) in respect of which an Executive Minister certifies in
writing under his hand that to the best of his belief the act
constituting such offence was done with the object of
impairing or impeding the machinery of government or the
administration of justice."
Held by the Supreme Court (FitzGibbon and Murnaghan JJ.,
Kennedy C.J. dissenting) that this enactment was a valid
amendment of the Constitution and was not ultra vires of the
Oireachtas either by reason of involving a partial repeal of
the Constitution, or by reason of conflicting with specific
articles of the Constitution such as Article 6 (as to the liberty
of the person), Article 64 (as to the exercise of judicial
power), or Article 72 (as to trial by jury), or by reason of
infringing or abrogating Articles of the Constitution, or
principles underlying or embodied in the Articles of the
Constitution, alleged to be fundamental and immutable.
Outside the area covered by the provisions of the Scheduled
Treaty (provided for by sect. 2 of the Constitution of the Irish
Free State (Saorstt ireann ) Act, 1922), no limit was
imposed by the Constituent Assembly which enacted the
Constitution upon the power of the Oireachtas to amend the
Constitution, and, as the Constitution (Amendment No. 17)

Act, 1931, had not been alleged to be inconsistent in any
way with the Scheduled Treaty, it was a valid amendment.
Decision of the High Court (Sullivan P., Meredith and O'Byrne
JJ.) affirmed.
Habeas Corpus and Prohibition.
The prosecutors, Jeremiah Ryan, Hubert Johnson, John Harty
and James Cantwell, moved to make absolute a conditional
order for habeas corpus and prohibition, granted on the 11th
day of June, 1934. The order, the parties to whom it was
directed, and the grounds upon which it was based, are set
out in the judgment of Sullivan P.
The application for the conditional order was based upon
the joint affidavit of the four prosecutors, filed on the 11th
June, 1934, in which it was stated that they were arrested
[1935]
1 I.R.
172
High Court.
by members of the Garda Siochna at their various
residences in the vicinity of the town of Thurles on the 22nd
April, 1934, and were immediately removed to the Garda
Siochna Barracks in that town, where they were
interrogated by Superintendent Muldoon, Superintendent
Buggy and Sergeant Corcoran. Subsequently they were
removed in custody to Limerick Goal, where they were
detained for eight days. On the 2nd May, 1934, they were
transferred in custody to Arbour Hill Military Detention
Barracks where they were at the date of this application. The
affidavit then stated that the Governor of Arbour Hill Military
Detention Barracks was Captain Michael Lennon whose office
was at the said Barracks. On the 31st May, 1934, the four
prosecutors were brought before the Constitution (Special
Powers) Tribunal at Collins Barracks, where the following
charges were brought against them:
Conspiracy to shoot with intent to murder.

Attempting to shoot with intent to murder contrary to sect.
14 of the Offences against the Person Act, 1861.
Conspiracy to shoot with intent to do grievous bodily harm.
Attempting to shoot with intent to do grievous bodily harm
contrary to sect. 18 of the Offences against the Person Act,
1861.
Being an accessory to shooting with intent contrary to sect.
Common assault.
Being members of all unlawful association contrary to sect.
20 of Article 2a of the Constitution.
Unlawful assembly.
Conspiracy to obstruct and interfere with the enforcement of
the law.
Being in possession of a firearm without holding a Firearm
Certificate therefore contrary to sect. 2 of the Firearms Act,
1925.
Being in possession of firearms with intent contrary to sect.
15 (a) of the Firearms Act, 1925.
The affidavit then stated that, as information had been
received that about ninety witnesses would be called to give
evidence against the four prosecutors, and as their solicitors
and counsel had only a few days in which to prepare their
defences, they applied for an adjournment, and an
adjournment was granted until the 12th June, 1934. At the
hearing on the 31st May, 1934, each of the four prosecutors
pleaded not guilty to the said charges.
Three affidavits were filed on behalf of the Attorney-General
[1935]
1 I.R.
173
High Court.
by way of showing cause against making the conditional
order absolute, viz., one by Captain Michael Lennon, one by
John S. O'Connor, solicitor for the Attorney-General, and the
third by Commandant Feeley, Registrar of the Constitution

(Special Powers) Tribunal.
The affidavit of Captain Michael Lennon, having stated that
he was Military Governor of Arbour Hill Prison, otherwise
known as Arbour Hill Detention Barracks, then stated that he
had the custody of prisoners awaiting trial and Sentence,
and of prisoners sentenced by the Constitution (Special
Powers) Tribunal; that the four prosecutors were detained by
him in said prison awaiting trial under and by virtue and
authority of a sealed order of the Constitution (Special
Powers) Tribunal, dated the 31st May, 1934. He exhibited a
sealed copy of the said order which had been served upon
him on the 31st May, 1934. He further stated that he
received the four prosecutors at Arbour Hill Prison on the 2nd
May, 1934, by virtue of four several committal orders, made
by the Minister for Defence on the said 2nd day of May,
1934, under Art. 2aof the Constitution, and he exhibited the
said committal orders. He further stated that the said Arbour
Hill Prison was a place of detention, and a place of
imprisonment prescribed by the Minister for Defence under
the said Art. 2a of the Constitution, as appeared from an
extract from the Regulations made by the Minister for
Defence on the 7th November, 1933, as amended on the
16th February, 1934, certified by the Secretary of the
Department of Defence under the seal of the Minister for
Defence on the 18th June, 1934.
John S. O'Connor, solicitor for the Attorney-General, in his
affidavit, filed the 21st June, 1934, stated that an order was
made by the Executive Council of Saorstt ireann on
the 11th August, 1933, declaring that Parts II, III, IV and V of
Art. 2a of the Constitution should come into force, and that
the said Parts II, III, IV and V of the said Article had since the
said date continued in force; that the members of the
Constitution (Special Powers) Tribunal appointed by the
Executive Council were: Colonel Francis Bennett, Colonel
Daniel McKenna, Major John V. Joyce, Commandant Conor
Whelan and Commandant Patrick Tuite, and he referred to
Iris Oifigiilof the 15th August, 1933, and of the 25th
August, 1933, containing the said order and appointments.
Commandant Richard Feely, in his affidavit, filed on the 21st

June, 1934, having stated that he was the Registrar of the
Constitution (Special Powers) Tribunal,
[1935]
1 I.R.
174
High Court.
and that he had read a copy of the conditional order made
by the High Court on the 11th June, 1934, and a copy of the
joint affidavit of the four prosecutors therein mentioned,
such copies having been served on him as such Registrar as
directed by the said order of the High Court, then stated that
on the 1st day of May, 1934, a sealed order was made by the
said Constitution (Special Powers) Tribunal, on the
application of an Inspector of the Garda Siochna, directing
that the trial of the four prosecutors be transferred to the
said Tribunal. He further stated that on the hearing of the
said application a certificate of an Executive Minister,
pursuant to clause 7 of the Appendix to Art. 2a of the
Constitution was produced and was before the Tribunal when
their said order was made. On the 22nd day of May, 1934, a
certificate of an Executive Minister, pursuant to clause 7 of
the Appendix to Art. 2a of the Constitution, was lodged with
him, and of this he made an exhibit. On the same day a
statement of the charges against the prosecutors and a
summary of the evidence to be given was lodged with him
as such Registrar, and said documents were served upon the
prosecutors. He then referred to the trial of the four
prosecutors, which commenced on the 31st day of May,
1934, the examination of certain witnesses, and the
adjournment of the trial until the 12th June, 1934, and he
then referred to the further adjournment on the 12th June by
reason of the conditional order made by the High Court on
the previous day.
J. A. Costello K.C. , A. K. Overend K.C. , V. Rice K.C. ,J. M.
FitzGerald K.C. , C. Lavery K.C. , J. Burke and C. Casey for
the prosecutors in support of the application to make the

conditional order absolute.
The Attorney-General K.C. , M. Maguire K.C. , J.
GeogheganK.C. , G. Gavan Duffy, Senior Counsel , P. McEnery
andK. Haugh for the parties showing cause.
The arguments were similar to those in the Supreme Court,
reported post.
Cur. adv. vult.
Sullivan P. :
25, July.
This is a motion on behalf of the prosecutors for an order
that an order of habeas corpus ad subjudiciendumand of
prohibition, made on the 11th June, 1934, be made absolute
notwithstanding cause shown.
That order directed:(1) An order of habeas corpus ad
[1935]
1 I.R.
Sullivan P.
175
High Court.
subjudiciendum to issue to Captain Lennon, Governor of
Arbour Hill Military Detention Barracks, to have before the
Court the bodies of the prosecutors, detained under his
custody, together with the day and cause of their detention,
to abide the order of this Court; (2), an order of prohibition to
issue, directed to the Constitution (Special Powers) Tribunal,
and to Colonel Frank Bennett and others, the members
thereof, prohibiting them from further proceeding in the
matter of a prosecution before them wherein the AttorneyGeneral is prosecutor and the several prosecutors herein are
defendants, on the grounds, as to prohibition:
"(1) That the Constitution (Amendment No. 17) Act, 1931
(No. 37 of 1931), is ultra vires, unconstitutional and void in

that (a) it is contrary to Art. 72 of the Constitution; (b) it is
contrary to Art. 6 of the Constitution; (c) it is contrary to Art.
64 of the Constitution; (d) as an amendment of the
Constitution it is contrary to Art. 50 of the Constitution as
enacted, the purported amendment of which Article by the
Constitution (Amendment No. 16) Act, 1929, is invalid.
(2) That the said Constitution (Special Powers) Tribunal had,
and has, no lawful existence, jurisdiction or authority.
Unless cause shown to the contrary within ten days of the
service" of the order as therein directed.
There is no dispute in the case as to any matter of fact. The
prosecutors are in detention in Arbour Hill Detention
Barracks awaiting their trial by the Constitution (Special
Powers) Tribunal on several charges preferred against them
by the Attorney-General. As justifying such imprisonment,
and as authorising the proposed trial, the respondents rely
upon orders made by the said Tribunal in exercise of the
powers and authorities conferred upon it by the Constitution
(Amendment No. 17) Act, 1931. The only matter to be
determined in this case is the validity of that Act, having
regard to the provisions of the Constitution. The juris diction
of this Court to determine that matter is conferred by Art. 65
of the Constitution which declares that: "The judicial power
of the High Court shall extend to the question of the validity
of any law having regard to the provisions of the
Constitution."
It is conceded that the Constitution (Amendment No. 17)
Act, 1931, is inconsistent with the provisions of the
Constitution as originally enacted. It authorises the exercise
of judicial power by persons who are not judges appointed in
the manner provided by the Constitution, contrary to
[1935]
1 I.R.
Sullivan P.
176
High Court.
Art. 64, and it sanctions the trial of a person on a criminal

charge without a jury, contrary to Art. 72, in cases not
coming within the exceptions mentioned in that Article. It
follows that if the Act is valid it must be so as
an"amendment" of the Constitution authorised by Art. 50.
That Article provides as follows:"Amendments of this
Constitution within the terms of the Scheduled Treaty may be
made by the Oireachtas, but no such amendment, passed by
both Houses of the Oireachtas, after the expiration of a
period of eight years from the date of the coming into
operation of this Constitution, shall become law, unless the
same shall, after it has been passed or deemed to have been
passed by the said two Houses of the Oireachtas, have been
submitted to a Referendum of the people, and unless a
majority of the voters on the register shall have recorded
their votes on such Referendum, and either the votes of a
majority of the voters on the register, or two-thirds of the
votes recorded, shall have been cast in favour of such
amendment. Any such amendment may be made within the
said period of eight years by way of ordinary legislation and
as such shall be subject to the provisions of Article 47
hereof."
In professed exercise of the power conferred by that Article,
the Oireachtas has, from time to time, passed Acts
purporting to amend the Constitution. The only amending
Act the validity of which is directly in question in this case,
apart from the Constitution (Amendment No. 17) Act, 1931,
is the Constitution (Amendment No. 16) Act, 1929, which
purported to amend Art. 50 of the Constitution by deleting
the words "eight years" and inserting in place thereof the
words "sixteen years" in that Article. As the period of eight
years from the date of the coming into operation of the
Constitution, within which amendments of the Constitution
could be made by way of ordinary legislation under Art. 50,
had expired when the Act of 1931 was passed, the validity of
that Act must depend in the first instance on the validity of
the Act of 1929.
The arguments addressed to us on the hearing of this
motion covered a variety of topics which I have duly
considered but which it is not necessary for me to discuss in

this judgment. Our decision on this motion must depend on
our interpretation of Art. 50 of the Constitution. The general
principle applicable to the interpretation of statutes is well
settled, although the language in which the principle is
stated is not always identical: the words of the statute
should be given their ordinary and natural meaning unless
that would lead to an absurdity or inconsistency. It is,
[1935]
1 I.R.
Sullivan P.
177
High Court.
however, quite consistent with that general principle that
certain statutes should receive a liberal construction while
others should be strictly construed; and there is authority for
the proposition that an Act such as the Constitution should
be liberally interpreted. In Edwards v. Attorney-General for
Canada (1) the Privy Council were called upon to interpret a
section of the British North America Act, 1867 (the object of
which was to grant a Constitution to Canada), and in
expressing the opinion of the Board, Lord Sankey, at p. 136,
said:"Their Lordships do not conceive it to be the duty of
this Boardit is certainly not their desireto cut down
the provisions of the Act by a narrow and technical
construction, but rather to give it a large and liberal
interpretation so that the Dominion to a great extent, but
within certain fixed limits, may be mistress in her own house,
as the Provinces to a great extent, but within certain fixed
limits, are mistresses in theirs," and he quotes from
Clement's Canadian Constitution, 3rd ed., p. 347, the
statement:"The Privy Council, indeed, has laid down that
Courts of Law must treat the provisions of the British North
America Act by the same methods of construction and
exposition which they apply to other statutes. But there are
statutes and statutes; and the strict construction deemed
proper in the case, for example, of a penal or taxing statute,
or one passed to regulate the affairs of an English parish,

would be often subversive of Parliament's real intent if
applied to an Act passed to ensure the peace, order and
good government of a British Colony."
If we apply the principle I have stated to the construction of
Art. 50, I think the meaning of that Article is reasonably
plain. It provides that "amendments of this Constitution
within the terms of the Scheduled Treaty may be made by
the Oireachtas . . . Any such amendment may be made
within the . . . period of eight years by way of ordinary
legislation." I cannot accept the view that the word
"amendment," when used in reference to an Act of
Parliament, is, as Mr. Costello suggested, limited in its
meaning to the removal of faults, corrections in matters of
detail but not of substance. I think the ordinary and natural
meaning of the word when so used includes alterations of
any kind. It will not, I think, be disputed that where the word
"amend" occurs in the title of a statute, as it so frequently
does, its usual if not invariable meaning is "alter" in the
widest sense of that word, and I think that we have on the
face of the Constitution itself an
[1935]
1 I.R.
Sullivan P.
178
High Court.
indication that the word "amend" is used in that sense. Art.
38 enacts that: "Every Bill initiated in and passed by Dil
ireann shall be sent to Seanad ireann and may,
unless it be a Money Bill, be amended in Seanad
ireann ,and Dil ireann shall consider any such
amendment."Art. 73 declares that: "Subject to this
Constitution and to the extent to which they are not
inconsistent therewith, the laws in force in the Irish Free
State (Saorstt ireann )at the date of the coming into
repealed oramended by enactment of the Oireachtas." It is

obvious that the word "amended" in each of these Articles
must be construed as equivalent to "altered," and that the
word "amendment" in Art. 38 must include "alteration."We
should give to the word "amendment" in Art. 50 the same
meaning as it bears in other Articles of the Constitution.
I am, therefore, of opinion that Art. 50 conferred upon the
Oireachtas the power to amend and alter the Constitution by
way of ordinary legislation passed within a period of eight
years from the date when the Constitution came into
operation, and that, in the absence of any indication in the
statute of an intention to the contrary, the power so
conferred is unrestricted, and authorises the alteration of
any Article of the Constitution, including Art. 50 itself.
I am, therefore, of opinion that the Constitution
(Amendment No. 16) Act, 1929, and the Constitution
(Amendment No. 17) Act, 1931, are valid amendments of the
Constitution. It follows that, in my opinion, the Constitution
(Special Powers) Tribunal has been lawfully established, and
has the jurisdiction and authority conferred upon it by the
latter Act. The cause shown in this case should be allowed
and the conditional order for habeas corpus and prohibition
discharged.
Meredith J. :
The Constitution itself is the exclusive source from which
this Court can derive any principle of law on the strength of
which it has jurisdiction to declare any law to be invalid. Of
course, to determine whether any law contravenes the
Constitution the Court has to analyse what is contained in
that law and what is contained in the Constitution, and then
to determine whether the law is consistent with the
Constitution; and this reasoning may, and indeed must,
follow principles of construction. But these principles of legal
reasoning are not principles of law constituting
[1935]
1 I.R.
Meredith J.
179
High Court.
part of the subject-matter of the comparison involved in the
question whether a law is consistent with the Constitution.
So it is true to say that there are no principles of law in
relation to which the validity of any law is to be tested
except those enshrined in the Constitution. Our Common
Law does not contain any principles of constitutional law,
and Art. 73 of the Constitution did not enact by reference
any principles of constitutional law, in relation to which any
law could be held by this Court to be valid or invalid.
I have thought it necessary to point this out, because some
of the arguments addressed to the Court by counsel for the
prosecutors seemed to imply the notion that on the question
of the validity of the law now under consideration it was
permissible to rove at large in search of legal principles with
the same freedom as would be enjoyed in an ordinary equity
suit. Such excursions are unwarranted in actions under Art.
65. In particular the one argument put up against the validity
of the Constitution (Amendment No. 16) Act, 1929, was the
result of a raid on the law of agency. It could not be
contested that the change of eight to sixteen years was in
the nature of an amendment, but it was urged that it was not
competent for the Oireachtas itself to enlarge the authority
delegated or entrusted to it by the people. That argument
asserts a legal principle, adopted in the form of a principle of
constitutional law, which looks outside the four corners of
the Constitution itself, and, accordingly, this Court has no
authority to pay regard to it in exercising its jurisdiction
under Art. 65. The power of amendment conferred by Art. 50
is, in terms, general. Power to amend Art. 50 itself could
have been expressly excepted, but it was not. This Court
cannot then declare an amendment of Art. 50 itself to be
invalid on a principle extraneous to the Constitution. If this
Court had authority to look outside the Constitution to
extraneous principles of law to determine the validity of any
law "having regard to the provisions of the Constitution"it
could build up a body of judge-made law standing alongside
the Constitution. Art. 65 gives no such authority.

The objection to the amendment of Art. 50 itself by the
Oireachtas by way of ordinary legislation might also be
disposed of in a few words on the following ground. The
objection would obviously have no force in the case of an
amendment passed after the prescribed period of eight
years with the requisite majority and approved by a
Referendum to the people. But the power of amendment
[1935]
1 I.R.
Meredith J.
180
High Court.
by way of ordinary legislation during the period of eight
years is (having regard to the words: "any such
amendment"), expressly coextensive with the power of
amendment after eight years subject to a Referendum.
During the eight years the Oireachtas has the fullest power
of amendment conferred by the Article.
The second branch of the argument for the prosecutors was
that the purported amendment of the Constitution by the
incorporation of Art. 2a into the Constitution by means of the
Constitution (Amendment No. 17) Act, 1931 (No. 37 of 1931),
was not a valid amendment within Art. 50, even as amended
by the extension of the eight to sixteen years. The
contention was that the amendment was so radical as to
amount to a repeal of the Constitution. But in point of fact no
single Article of the Constitution is abrogated by Art. 2a,
which has no greater effect than to introduce exceptions and
conditional modifications. Accordingly there is no substance
in the contention that assuming that the Oireachtas,
even with the help of a Referendum, could not repeal the
Constitution by constitutional meansthe Act is invalid
because it does not merely amend but in fact repeals the
Constitution. Consequently the contention has to abate to
this, that the operation of Art. 50 is confined to the
modification of subsidiary Articles, or Articles of merely
secondary importance, and that there are some Articles of

such fundamental importance that they cannot be altered.
As a provision is not usually incorporated into a Constitution
unless it is regarded as of fundamental importance, this
distinction between Articles of primary and secondary
importance is difficult to maintain. The emphatic language of
an Article and the universality of its terms are not relevant to
the question of the primary or secondary importance of the
Article as so worded, or to the question of its alterability.
Indeed, overstatement is a natural result of the confidence
and exuberance of youth, and may be what most of all
necessitates, and most readily yields to, amendment as the
Constitution matures. But not alone is the distinction
difficult, if not impossible, to draw, but there is nothing in the
language of Art. 50 to suggest that regard was paid to any
such distinction. The attempt to extract a regard to the
distinction from the choice of the word "amendment," which,
however, is generally taken as a word of wide import when
referred to legislative powers, begs the question. So, here,
again the complete answer to the objection is that if any
particular Articles were to be protected from the authority
given by Art. 50,
[1935]
1 I.R.
Meredith J.
181
High Court.
there was one way only of doing it, and that was by an
express exception of those Articles.
Hence the only force in the attempted impeachment of the
Act of 1931, incorporating Art. 2a into the Constitution, was
purely rhetorical. If this Court is not to declare Art. 2a to be
invalid, as undermining the Constitution, then, it was urged,
there is no principle of the Constitution, however sacred, that
may not be swept away. The provision in favour of
proportional representation was submitted to be one of the
inviolable provisions of the Constitution; and if Art. 2a was
declared valid proportional representation could be

abolished. What thenmaking an excursion into the law of
contractbecomes of the sacred compact with the
Proportional Representation Society, who, presumably, gave
good consideration, as without their approval the
Constitution could never have been established? Well, the
truth must be faced, however unpalatable: there is nothing
in Art. 50 to prevent the abolition of proportional
representation. Such is the devastating effect of Art. 50.
Equally serious, perhaps, is the fact that the entire position
of the judiciary, even their jurisdiction under Art. 65, might
be changed. If all this is so, then, it was argued, the whole
Constitution becomes a mockery. The answer to all this is
that the Court must take the Constitution as it finds it, and
there is in fact a very great difference between a Legislation
which can only act in accordance with its avowed principles,
though it may, from time to time, alter or modify its avowals,
and a Legislature which can do just as it pleases without
regard to principle. If every one acted up to his professions
this would be a different world; and we may not
unreasonably hope that the same is true of Legislatures. Art.
50 and Art. 65 taken together secure, and cannot do more
than secure, such consistency. The Legislature must be
trusted to remember, before lightly passing any amending
Acts sacrificing principles of the Constitution, that nothing so
much inspires respect for the law and good citizenship as
having a Constitution of which all citizens are entitled to feel
proud, and which is observed and honoured by those in
power.
For these reasons I entirely concur in the judgment of the
President.
O'Byrne J. :
I agree.
Counsel on behalf of the prosecutor strongly contended that
our Constitution was based upon the idea of popular
[1935]
1 I.R.

O'Byrne J.
182
High Court.
and not parliamentary sovereignty, and various other
questions of philosophical interest were discussed during the
arguments. In my opinion it is not necessary for the decision
of this case to express any opinion on these interesting
questions.
It is clear from the terms of the Constitution that it was
drawn up with considerable care. Certain of the provisions
contained in it were obviously of a tentative and novel
character, and it is only reasonable to suppose that the
Assembly which enacted it contemplated the possibility that
the Constitution would, or might, require to be altered or
amended in the light of experience. This possibility was not
overlooked, and the Constitution, as enacted, contains Art.
50, on which, in my opinion, the decision in this case turns.
Art. 50 provides that:[Reads Art. 50.]
It will be noted that the Article as enacted contemplates all
amendments to the Constitution within the terms of the
Scheduled Treaty and does not exclude Art. 50 itself. It is not
unusual in Constitutions to exclude from amendment the
amending power itself, or to provide that it may only be
altered in some special way. This was not done in the case of
our Constitution, and, accordingly, I am of opinion that the
power of amendment extends to Art. 50 in the same way
and to the same extent as it extends to every other Article of
the Constitution.
It was then argued that "amend," as used in Art. 50, meant
merely to free from faults, to correct, or rectify, and that it
did not include such alteration as the changing of "eight
years" to "sixteen years" in Art. 50. In my opinion it is quite
clear on the face of the Constitution that no such narrow
interpretation was intended. The term is used in two other
Articles and presumably it was used in the same sense
throughout.
Art. 38 provides that: "Every Bill initiated in and passed by
Dil ireann shall be sent to Seanad ireann and may,
unless it be a Money Bill, be amended in Seanad

ireann ." In this Article it is clear that the term
"amend"contemplates and includes the making of changes.
Supposing the Constitution as enacted were passed as a Bill
by the Dil and sent to the Seanad, could it be suggested
that the Seanad under Art. 38 could not make such an
amendment as the changing of "eight years"to "sixteen
years" in Art. 50? In my opinion there could be only one
answer to such a question.
Art. 73 provides that:"Subject to this Constitution and to
the extent to which they are not inconsistent
[1935]
1 I.R.
O'Byrne J.
183
High Court.
therewith, the laws in force in the Irish Free State (Saorstt
ireann ) at 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." It is clear that
the word "amended" is used here in the widest sense and
includes the making of changes of the most comprehensive
character. I see no reason for giving to the term a more
restricted meaning in Art. 50.
It was contended by counsel on behalf of the prosecutors
that under and in pursuance of the Constitution as enacted
no changes or alterations of a substantial character could be
made without a revolution and a resultant overthrow of the
entire Constitution. This is a contention which I thoroughly
and completely reject.
For these reasons I am of opinion that the Oireachtas was
competent to make the amendments to the Constitution
which have been in question in this case and that,
accordingly, the cause shown should be allowed and the
conditional order discharged.
h. e. h. c.
The prosecutors appealed to the Supreme Court (1) from the

judgment and order of the High Court and applied for an
order that the said order should be discharged and that in
lieu thereof it should be ordered that the conditional order of
11th June, 1934, be made absolute notwithstanding the
affidavits filed by the respondents by way of showing cause.
J. A. Costello K.C. and A. K. Overend K.C. (with themV. Rice
K.C. , J. M. FitzGerald K.C. , C. Lavery K.C. ,J. Burke and C.
Casey ) for the appellants:
The respondents seek to justify the detention of the
appellants and the jurisdiction of the Tribunal before which
the appellants have been charged by reliance on the
provisions of the Constitution (Amendment No. 17) Act,
1931. It is contended on behalf of the appellants that that
enactment is an invalid exercise of the power of the
Oireachtas to amend the Constitution both by reason of its
provisions and of the mode of its enactment.
The provisions of the Act in question are clearly in conflict
with many Articles of the Constitution (for example, Articles
6, 64, 72) and are wholly subversive of many vital and
fundamental principles of the Constitution. As such,
[1935]
1 I.R.
O'Byrne J.
184
Supreme Court.
they exceed the power of amendment conferred on the
Oireachtas by Article 50 of the Constitution. That Article is an
integral part of the Constitution and must be construed with
reference to the nature and frame of the Constitution as a
whole. The Constitution itself has a higher authority and
sanction than any ordinary law, as it was the fundamental
law of the State enacted, "in the exercise of undoubted
right," as the only legislative act of Dil ireann "sitting
as a Constituent Assembly": Preamble to the Constitution of
the Irish Free State (Saorstt ireann ) Act, 1922. This Act
gave the Constitution the force of law here, while it was

implemented in England by the Irish Free State Constitution
Act, 1922 (Session 2) (13 Geo. 5, c. 1).
[They referred to R. (Armstrong) v. County Court Judge of
Wicklow (1); R. (Alexander) v. Circuit Judge for Cork (2);
Fogarty and Others v. O'Donoghue and Others (3); In re
Reade, a Bankrupt (4); O'Donoghue v. Roche (5);
Bermingham and Others v. Attorney-General (6).]
The Constitution was the "fundamental structure upon
which the State was set": per Kennedy C.J., Lynham v.Butler
(No. 2) (7); and, as there pointed out, Article 2 established
the separation of the sovereign powers of government. That
Article contains a clear statement of the principle of popular
sovereignty (the ultimate source of authority being
acknowledged in the Preamble to the Constituent Act); and
the exercise of authority and powers of government on
behalf of the people is to be "in accord with" the
Constitution. Effect and weight must be given to these
solemn declarations. The British legal theory of
parliamentary sovereignty is inconsistent with this principle
and is inapplicable to a Constitution based on such a
principle and restraining parliamentary absolutism by
constitutional safeguards of the people's overriding
authority, such as the Referendum provided for in Article 47
and the initiation by the people of proposals for laws and
constitutional amendments provided for in Article 48.
The"sole and exclusive power" of legislation conferred on the
Oireachtas by Article 12 has merely reference to external
authority and international status; it does not extend the
constitutional powers of the Oireachtas or diminish the
internal limitations on such powers. Apart from the ultimate
authority and control being vested in the people, the
Oireachtas is also non-sovereign in respect of internal
[1935]
1 I.R.
O'Byrne J.
185
Supreme Court.
legislation by reason not only of the over-riding force of the
"Scheduled Treaty," provided for by sect. 2 of the Constituent
Act, but also by reason of the many limitations on their
powers expressed or implied in the Constitution (as originally
enacted). Thus, by Article 8, "no law may be made either
directly or indirectly to endow any religion," etc.; by Article
43 the Oireachtas have "no power" to create offences ex
post facto; and by Article 70"extraordinary courts shall not
be established." Article 4, which deals with the National
language, contains the provision that nothing in that Article
"shall prevent special provisions being made" for districts in
which only one language is in general use. This provision
would be unnecessary and superfluous if the Oireachtas had
unlimited powers of legislation or amendment. Special
enabling provisions in respect of the scope of legislation are
also contained in Articles 44 (as to subordinate legislature)
and 45 (as to functional or vocational councils); while Article
23 distinguishes the mandatory provision for payment of
members of the Oireachtas from the permissive provision of
travelling facilities, and Article 9 impliedly recognises the
power of the Oireachtas to regulate the right of free
assembly by laws which "shall contain no political, religious
or class distinction." These examples are sufficient to show
that the powers of the Oireachtas are circumscribed in many
ways, and this is made still clearer by the provision of Article
65, unique in a written Constitution, extending the judicial
power of the High Court to "the question of the validity of
any law having regard to the provisions of the Constitution."
These considerations, it is submitted, are sufficient to limit
the meaning of "amendment" in Article 50 to its ordinary and
natural meaning of improvement, variation in detail, or the
remedying of defects. It does not extend to repeal. If it did,
Article 2 could be deleted and the whole basis of the
Constitution removed. The power should not be construed so
as to permit of the repeal of the whole Constitution, as would
be the case if the power were held unlimited.
Even, however, if "amendment" were held to have a wider
meaning than that contended for, it is suggested that certain
principles of the Constitution are so fundamental as to be

immutable and incapable of amendment. Although no formal
distinction is made between the Articles of the Constitution,
certain of them contain such principles. The most important
is Article 2, which is fundamental to the whole Constitution.
By Article 8, freedom of conscience and the free profession
and practice of religion,
[1935]
1 I.R.
O'Byrne J.
186
Supreme Court.
and by Article 9, the right of free expression of opinion as
well as the right to assemble peaceably and without arms,
are "guaranteed"; while Articles 6 and 7 declare the liberty
of the person and the dwelling of each citizen to be
"inviolable." Viewed in this light, Amendment No. 17 is
clearly unconstitutional as it subverts the principle of some
of these Articles as well as of many others of the
Constitution and it certainly contravenes the whole spirit of
the Constitution. If it be a valid amendment, then these
"guaranteed" and "inviolable" rights are not only worthless
but their enactment was a misrepresentation to anyone
electing to remain a citizen of Saorstt ireann under
Article 3. Article 2 illustrates the difference between
fundamental principles and matters of detail. The
fundamental derivation of authority there is immutable,
while the machinery envisaged for the exercise of the
authority is capable of amendment in matters of detail.
Amendment No. 17 is also invalid by reason of its not having
been enacted in accordance with Article 50 (as originally
enacted). It was enacted after the preliminary period of eight
years had elapsed and without recourse to the people by
Referendum. The extension of this preliminary period to
sixteen years by the Constitution (Amendment No. 16) Act,
1929, was invalid as being a usurpation by the Oireachtas of
the powers reserved to the people after the expiration of
eight years. The word"amendment" cannot cover such a

usurpation or the use of a limited power to remove the
limitations on the power. That Act amounted to an
unauthorised and incompetent fresh grant by the Oireachtas
to itself of a new power. Both it and Amendment No. 17 are
further vitiated by the fact that the purported effect of the
Constitution (Amendment No. 10) Act, 1928, was to render it
impossible to consult the people, on any constitutional
amendment, by means of the Referendum under Article 47.
This Act was also a usurpation on the part of the Oireachtas.
The deletion of the reference to Article 47 in Article 50 was
erroneously supposed to be "consequential" on the deletion
of the former Article. In fact the reference was clearly
inserted in order that the provision would, irrespectively of
the fate of Article 47, apply to amendments of the
Constitution. In any other view it would have been
unnecessary. This consideration also demonstrates that
Article 50 was itself intended to be incapable of amendment.
The Attorney-General K.C. and G. Gavan Duffy,
SeniorCounsel (with them M. Maguire K.C. , J. Geoghegan
K.C. ,P. J. McEnery and K. Haugh ) for the respondents:
[1935]
1 I.R.
O'Byrne J.
187
Supreme Court.
The Constitution is based as much on the theory of
parliamentary as of popular sovereignty, and considerations
imported from theories evolved to suit British history and
conditions are misleading in the interpretation of a document
enacted by the supreme legislative authority of the Third
Dil ireann sitting as a Constituent Assembly. In
Saorstt ireann the legal seat of legislative authority is
the Oireachtas. The Constitution, in Article 2, distinguishes
carefully between the derivation of authority and its
exercise, and, by Article 12, it recognises the necessity of
vesting supreme legislative authority somewhere by

conferring it on the Oireachtas. As well as being a denial of
external authority, that Article transmitted the supreme
authority of the Constituent Assembly to the Oireachtas and,
in conjunction with Article 50, full amending
powersubject in either case to the limitation of eight
years imposed by Article 50. This limitation, however,
constituted merely one of the voluntarily imposed and freely
removable checks. The result was to make the Oireachtas for
the eight years both a legislative and constituent assembly.
Control was not reserved to the people but certain
(experimental) checks or expedients, such as the
Referendum and Initative, were provided. The Referendum
contemplated by Article 47 was not an automatic control but
required a prior written demand by Dil ireann or
Seand ireann , and even then it only extended to
proposed and not to enacted legislation. It is submitted,
therefore, that, in the exercise of its authority, the
Oireachtas was competent to effect the changes made by
Amendments Nos. 10 and 16 within the period of eight
years.
It is admitted, however, that the Constitution makes no
distinction between the types of amendment that could be
made within the period of eight years and outside the
period, and, consequently, amendments which could be
made after the expiry of the period by the procedure
originally contemplated could have been made within the
period "by way of ordinary legislation." It is sufficient,
therefore, to enquire whether the alterations effected by
Amendments Nos. 10 and 16 could have been effected by
the appropriate procedure after the preliminary period had
expired. It is submitted that they clearly could have. The
provision for a Referendum of the people on any
constitutional amendment after that period shows that
alterations in more than matters of mere detail were
contemplated as being within the meaning of
"amendment."This is also clear from the limitation as to the
Scheduled
[1935]
1 I.R.
O'Byrne J.
188
Supreme Court.
Treaty in Article 50 and the provision as to repugnancy in
sect. 2 of the Constituent Act, which would both have been
unnecessary and meaningless unless major amendments
were intended to be permissible. This is also true of the
provision in Article 48 for the Initiation of constitutional
amendments.
Article 50 itself, it is submitted, is co-extensive in scope with
the Constitution and applies, therefore, to itself. No
distinction is made for this purpose between any of the
Articles of the Constitution, nor is Article 50 expressly
exempted from the application of the amending power. It
may be presumed that the example of existing models,
exempting or protecting the amending power from
alteration, was deliberately rejected. "Amendment," the only
word used in Article 5 of the Constitution of the United
States, has extended to several repeals.
As to the suggestion that there are certain fundamental
principles or Articles incapable of amendment, it is
significant that the Constitution itself makes no such
distinction between any of its Articles or the principles
underlying them. If such a distinction had been intended, it
would have been expressed. In the Norwegian Constitution
certain provisions are designated by a word translated as
"fundamental." In Article 5 of the Constitution of the United
States, dealing with amendments to the Constitution, it is
provided that no State, without its consent, shall be deprived
of its equal suffrage in the Senate. In France, it is provided
that the republican form of government shall not be
changed; and other Constitutions similarly exclude particular
changes. No such policy was adopted in our Constitution. In
this connection it must be emphasized that the committal of
a Constitution to writing is a matter of convenience and does
not render the Constitution intrinsically more permanent or
unalterable than an unwritten one. The word itself may refer

either to the actual written document or, in the abstract
sense, to the structure of the State set up by it. In Article 50
of our Constitution, the phrase is not"amendments of the
Articles of this Constitution" but"amendments of this
Constitution," which is sufficient to extend to whatever
principles underlie the Constitution as a whole or any
particular Article. Even in written Constitutions, the only test
of the fundamentality of certain provisions is the difficulty of
effecting their amendment. The question is one of the
comparative difficulty or ease of change; and, in our
Constitution, no such test is imposed as between any one
Article or principle and any
[1935]
1 I.R.
O'Byrne J.
189
Supreme Court.
other Article or principle. The provisions of Articles 5 to 11
are an assertion of democratic rights but, from the point of
view of amendment, must be treated as maxims of political
morality rather than immutable enactments of positive law. If
the idea of the fundamental and immutable nature of some
of the provisions of the Constitution were accepted, it would
be necessary to obtain the decision of the Court on every
amendment to determine whether it was invalid by reason of
contravening some such provision. Even if the test of
"improvement" were accepted, the Courts would have to
decide whether each particular amendment was an
improvement, whereas it is suggested that the correct view
is that a change advocated by the Oireachtas must be
deemed to be an "improvement." In either of these views,
the Court, under Article 65, would be bound in certain cases
to deny the wishes of the people, whether expressed through
their elected representatives or by means of a Referendum.
[They referred to R. (Cooney) v. Clinton ; R. (Corcoran)v.
Clinton ; R. (O'Connell) v. Military Governor of Hare Park
Camp (see footnote, p. 245 post); McCawley v. The King (1);

Riel v. The Queen (2); Attorney-General for Ontario
v.Attorney-General for Canada (3); Henrietta Muir Edwardsv.
Attorney-General for Canada (4); Attorney-General for New
South Wales v. Trethowan (5); Croft v. Dunphy (6).
A. H. Overend K.C. in reply referred to Webb v. Outrim (7).
Cur. adv. vult.
Kennedy C.J. :
19, Dec.
This matter came before the High Court on an application by
Jeremiah Ryan, Hubert Johnston, John Harty and James
Cantwell, for an order of habeas corpus ad subjiciendum
directed to Captain Michael Lennon, Governor of Arbour Hill
Military Detention Barracks, to have the bodies of the
applicants before the High Court, they being taken and
detained under his custody, and for an order of prohibition
directed to the Constitution (Special Powers) Tribunal and to
Colonel Frank Bennett and others the members thereof
prohibiting them from further proceeding in the matter of a
prosecution before them wherein the Attorney-General is
prosecutor and the applicants are
[1935]
1 I.R.
Kennedy C.J.
190
Supreme Court.
defendants. The grounds of the application for the order
were set out as follows:
"1. That the Constitution (Amendment No. 17) Act, 1931,
No. 37 of 1931, is ultra vires, unconstitutional and void in
that
(a) It is contrary to Article 72 of the Constitution.
(b) It is contrary to Article 6 of the Constitution.

(c) It is contrary to Article 64 of the Constitution.
(d) As an amendment of the Constitution, it is contrary to
Article 50 of the Constitution as enacted, the purported
amendment of which Article by the Constitution
(Amendment No. 16) Act, 1929, was invalid.
2. That the said Constitution (Special Powers) Tribunal had
and has no lawful existence, jurisdiction or authority."
The application was grounded upon a joint affidavit sworn
by the four applicants on the 11th of June, 1934, in which the
following matters of fact were alleged. The applicants were,
on the 22nd of April, 1934, arrested by members of the
Grda Siochna at their various residences in the vicinity
of the town of Thurles. They were immediately removed to
the Grda Barracks in Thurles, where they were
interrogated by two superintendents and a sergeant of the
Grda Siochna. They were then removed in custody to
Limerick Gaol, where they were detained for eight days. On
the 2nd of May last, they were removed in custody to Arbour
Hill Military Detention Barracks, of which the Governor is
Captain Michael Lennon. On the 31st of May, they were
brought before the Constitution (Special Powers) Tribunal, at
Collins Barracks, where the following charges were brought
against them:
"Conspiracy to shoot with intent to murder.
Attempting to shoot with intent to murder contrary to sect.
Conspiracy to shoot with intent to do grievous bodily harm.
Attempting to shoot with intent to do grievous bodily harm
contrary to sect. 18 of the Offences against the Person Act,
1861.
Being an accessory to shooting with intent contrary to sect.
Common assault.
Being members of an unlawful association contrary to sect.
20 of Article 2a of the Constitution.
Unlawful assembly.
[1935]
1 I.R.
Kennedy C.J.
191
Supreme Court.
Conspiracy to obstruct and interfere with the enforcement of
the law.
Being in possession of a firearm without holding a firearms
certificate therefor contrary to sect. 2 of the Firearms Act,
1925.
Being in possession of firearms with intent contrary to sect.
15 (a) of the Firearms Act, 1925.
Each of them pleaded not guilty to the said charges and in
their affidavit also they asserted their innocence. Having
received information that about ninety witnesses would be
called for the prosecution and desiring time for the
preparation of their defence they applied for an
adjournment, which was granted until the 12th of June.
The present application was, in the first instance, madeex
parte to the High Court (Mr. Justice O'Byrne) on the 11th of
June last, when a conditional order of habeas corpusand
prohibition was made on the grounds I have already
mentioned and was directed to be served on the several
members of the Constitution (Special Powers) Tribunal and
upon the Registrar of the Tribunal and upon the Governor of
Arbour Hill Military Detention Barracks and upon the Chief
State Solicitor for the Attorney-General.
Three affidavits were filed on behalf of the Attorney-General
by way of showing cause against the making absolute of the
conditional order.
One was made by Captain Michael Lennon, Governor of
Arbour Hill Military Detention Barracks, who stated that the
applicants were detained by him, awaiting trial, under and
by virtue and authority of a sealed order of the Constitution
(Special Powers) Tribunal, dated the 31st of May, 1934. He
received the applicants on the 2nd of May by virtue of four
several committal orders made by the Minister for Defence
on the 2nd of May, 1934, under Article 2a of the
Constitution. He stated that Arbour Hill Prison is a place of

detention and a place of imprisonment prescribed by the
Minister for Defence under Article 2aof the Constitution by
regulations made on the 7th of November, 1933, amended
on the 16th of February, 1934. He exhibited the several
orders and regulations mentioned.
The second affidavit was made by Mr. O'Connor, solicitor for
the Attorney-General in the conduct of prosecutions before
the Constitution (Special Powers) Tribunal. He stated that an
order was made by the Executive Council of Saorstt
ireann on the 11th of August, 1933, declaring that Parts
2, 3, 4, and 5 of Article 2a of the Constitution should come
into force and that these Parts of the Article had since that
date continued in force. He referred also
[1935]
1 I.R.
Kennedy C.J.
192
Supreme Court.
to the issue of Iris Oifigiil of the 25th of August, 1933,
containing the appointments of Colonel Francis Bennett and
four others, officers of the National Army, as members of the
Constitution (Special Powers) Tribunal.
The third affidavit was made by Commandant Richard J.
Feely, Registrar of the Constitution (Special Powers) Tribunal.
He does not contradict the statement of the facts as they
appear in the applicants' affidavit but he adds the following
matters. On the 1st of May, 1934, a sealed order was made
by the Constitution (Special Powers) Tribunal, on the
application of an Inspector of the Gard Siochna, directing
that the trial of the applicants be transferred to the Tribunal.
On the hearing of that application a certificate of an
Executive Minister pursuant to clause 7 of the Appendix to
Article 2a of the Constitution was produced and was before
the Tribunal when the order was made. A like certificate was
lodged with the deponent on the 22nd of May, 1934, as was
also a statement of the charges preferred against the
applicants. Summaries of the evidence to be given were

lodged with him on several dates mentioned and were
served on the applicants. The trial of the applicants
commenced on the 31st of May, 1934. After the examination
of certain witnesses it was adjourned at the request of the
applicants, to which the Attorney-General assented, until the
12th of June, the Tribunal directing that the applicants be
detained in custody. On the 12th of June, an order was made
further adjourning the trial, having regard to the order of the
High Court.
The application then came before the High Court (Sullivan
P., Meredith J. and O'Byrne J.) on the motion of the applicants
for an order that the conditional order of habeas corpus and
prohibition be made absolute notwithstanding the cause
shown. The Court, after a lengthy hearing, reserved
judgment which was delivered on the 25th July, when an
order was made that the cause shown be allowed and that
the conditional order of habeas corpusand prohibition be
discharged with costs. The applicants immediately lodged
this appeal and, on the last day of the Trinity Sittings,
requested that this Court would regard the appeal as a
matter of such urgency that it should be heard as soon as
possible notwithstanding the commencement of the Long
Vacation on the following day. The Attorney-General
attended and informed us that he was unable to assent to,
and must oppose, the granting of bail to, or the release on
any terms of, the applicants pending a hearing of the appeal
in the normal course in the Michaelmas Sittings. Indeed, he
said that he must submit that it would not be
[1935]
1 I.R.
Kennedy C.J.
193
Supreme Court.
competent for the Constitution (Special Powers) Tribunal to
release, on bail or on parole or otherwise, any prisoner
charged before it pending his trial. We, therefore,
recognising that the validity in law of the deprivation of a

citizen of his liberty being in question, times fixed by the
Rules of Court for sittings and vacations and considerations
of personal convenience must give way, determined that this
Court should re-assemble forthwith and proceed with the
hearing of the appeal, which we did. The case has
accordingly been argued very fully, and at considerable
length, in the course of which matters of more than ordinary
importance and gravity, affecting the life and liberty of every
citizen in this State, were presented to us for determination.
At the conclusion of the lengthy argument, though, as we
mentioned then, a majority of the Court inclined to the
opinion that the cause shown against the order of habeas
corpus ad subjiciendum was sufficient, it was felt that the
questions raised were of such gravity and of such far
reaching importance, as well as of such difficulty, that it was
proper and, indeed, absolutely necessary, to take time for
their consideration, and we accordingly reserved our
opinions, to be stated in writing, and the judgment of the
Court now about to be pronounced.
The net question for decision is the validity of the
Constitution (Amendment No. 17) Act, 1931, No. 37 of 1931,
having regard to the provisions of the Constitution (Article 65
of the Constitution). The validity of that Act, which was
upheld by the High Court, depends, admittedly, on the
validity of the Constitution (Amendment No. 10) Act, 1928,
No. 8 of 1928, and of the Constitution (Amendment No. 16)
Act, 1929, No. 10 of 1929. The question of the validity of
these Acts has also been raised for decision. The decision of
these questions will bring us back to the interpretation of
Article 50 of the Constitution (in the form in which it was
enacted) as the principal matter for our consideration and
determination.
The immediate subject-matter of the application and appeal
is, as I have said, the Constitution (Amendment No. 17) Act,
1931, No. 37 of 1931. This Act was passed as an Act of the
Oireachtas on the 17th of October, 1931, that is to say, some
eleven months after the expiry of the period of eight years
mentioned in Article 50 of the Constitution (as enacted). It
was not submitted to a Referendum of the people. It was

described in its long title as an "Act to amend the
Constitution by inserting therein an Article making better
provision for safeguarding the rights of the people and
containing provisions for meeting
[1935]
1 I.R.
Kennedy C.J.
194
Supreme Court.
a prevalence of disorder." The discussion on this Act has
taken place in what I suppose must be an almost unique
situation. Counsel for the appellants has attacked it in
unqualified terms as being, along with the Acts No. 8 of 1928
and No. 10 of 1929, a usurpation of the power and authority
of the people and a subversion of the Constitution. Counsel
on the other side, arguing in support of the acts done under
the supposed authority of this Act, opened their argument by
an apology and an appeal, saying that they were in the
unenviable and very difficult position of having to stand over
an Act which was repellent to the instincts of every lawyer,
but that, nevertheless, they were confident in their ability to
establish its validity under the Constitution, and they
appealed to the Court to stifle the instincts naturally aroused
in lawyers against the measure, and to consider only
whether, in the ultimate result of a consideration of the
arguments, it was a valid enactment of the Oireachtas or
not. Such a reminder of what is our undoubted duty is such
an exceptional procedure that a survey of the measure that
could be supposed to call for it will be as interesting as it is
necessary for the purposes of the case.
The operative part of the statute is short and simple. It is
simply enacted that the Constitution be amended by
inserting therein a new Article, to be cited as "Article
2a,"immediately after Article 2 thereof. The new Article is set
out in a Schedule to the Act. It is not short or simple. It is
divided into five distinct Parts and contains thirty-four
sections and an appendix.

Part I of the Article lays down that the other Parts of the new
Article, that is to say, the effective provisions of the Article,
are not to be of any force or effect unless or until the
Executive Council makes an order declaring that they shall
come into force, and shall then continue in force until the
Executive Council makes an order declaring that they shall
cease to be in force. An order may be made by the Executive
Council bringing these Parts of the Article into force
"whenever the Executive Council is of opinion that
circumstances exist which render it expedient"to do so. An
order may be made by the Executive Council that these Parts
of the Article shall cease to be in force"whenever the
Executive Council is of opinion that circumstances rendering
it expedient that the said Parts of this Article should be in
force no longer exist."
One cannot pretend ignorance of the general use of the
expression "the Public Safety Act" in references to the Act to
introduce this Article into and make it a permanent
[1935]
1 I.R.
Kennedy C.J.
195
Supreme Court.
part of the Constitution. Indeed, in a volume entitled"Index
to the Legislation passed by the Oireachtas in the years
1922 to 1932," issued by the Government Stationery Office
within the past few weeks, a statement has been quite
gratuitously inserted on page 136 that: "This Article . . . is in
the nature of a Public Safety Act." We, of course, must avoid
the inaccuracy, carelessness or indolence of mind, or
dangerous complacency, shown by slipping into the use of
such an expression. Let us in this Court, at least, be clear
about it. The Act purports to introduce the Article as a
permanent amendment of the Constitution, giving
permanently to the Executive Council authority to bring into
operation, and to use, the special powers of the new Article
at any time thereafter, subject only to one condition, that the

Executive Council is of opinion that circumstances exist
which render it expedient to do so, that is to say, in any
undefined circumstances of any kind whatever in which, in
their uncontrolled discretion, the Council think it expedient.
Peril to "Public Safety," the existence of a state of war or
armed rebellion (as stipulated by the Constitution for the
suspension of certain rights of the citizen), the existence of a
state of disorder or violence such as to prevent the ordinary
civil Courts of the State or any of them from fulfilling their
functions, terrorism, panic, over-awing of juries, none of
these things existing in actual fact, nor even the opinion of
the Executive Council that they exist, or that danger
threatens the State or the Constitution or the Government,
or general peace or order, or the citizens or any section of
them, none of these is stipulated or prescribed as a condition
precedent for the assumption by the Executive Council of the
extraordinary powers given by this ineptly, nay dangerously,
called "Public Safety Act." The only preliminary requirement
is that the Executive Council for the time being, then, now,
or at any time hereafter, thinks it expedientand, as it cannot
be assumed that the order would be made at any time if the
Executive Council of the moment did not, for some reason or
another, good or bad, think it expedient, it is as much as to
say, whenever the Executive Council for any reason decides
that these Parts of the Act be put into operation.
Part I also contains a provision that the entire Constitution
commencing with Article 3 thereof (that is to say excluding
the first and second Articles) is to be read and construed
subject to this new Article, which is to prevail in case of
inconsistency. One consequence amongst many of this is
that the provision made by the Constitution
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for suspension of constitutional rights of the citizen in a few

cases and, in those cases, only in case of war or armed
rebellion, yields to the ipse dixit of the Executive Council that
it is expedient.
Let us now turn to Parts II to V to see the effect of an order
bringing the Article into operation, never losing sight of the
fact that such an order may be made in conditions of
absolute peace, no emergency, rebellion, or disorder
threatening the State or people, the ordinary civil Courts
under the Constitution unembarrassed in the fulfilment of
their functions. The first thing that happens on the making of
the order is that there is set up, under Part II of the Article,
what is called a "Tribunal" under the name of "The
Constitution (Special Powers) Tribunal."This "Tribunal" is to
consist of five members, of whom three are to constitute the
"Tribunal" for the purposes of a "sitting," the order or act of a
majority of the three who sit being made for all purposes the
order or act of the"Tribunal." The only qualification required
for membership of the "Tribunal" is that the member shall be
an officer of the Defence Forces of Saorstt ireann not
below the rank of commandant. No one of the five is
required to have any legal qualification whatever, nor any
knowledge of law or legal procedure, civil or criminal, of any
kind whatever. I was given to understand none of the
persons now constituting the "Tribunal" has any such
qualification or knowledge. All the members of the
"Tribunal"are to be appointed and to be removable at will by
the Governor-General acting on the advice of the Executive
Council. This body is given full and absolute control of its
own procedure and, in particular, in respect of the admission
or exclusion of the public to or from its sittings.
Sect. 6 of the Article purports to confer jurisdiction on the
"Tribunal," namely, jurisdiction to "try and to convict or
acquit" all persons charged with an offence mentioned in the
Appendix to the Article and brought before the"Tribunal"
under the Article, and to sentence such of them as the
"Tribunal" convicts of such offence. There is an express
prohibition of appeal from any order, conviction, sentence or
other act of the "Tribunal," and of restraint of or interference
with the "Tribunal" by any"Court." The range of offences

jurisdiction to "try"which is given to the "Tribunal" by the
Article includes a number of named offences or classes of
offence (some of the most serious character, such as
offences declared by the Treasonable Offences Act, 1925, to
be a treason or felony or a misdemeanour, or others of minor
gravity) and finally
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a class thus described:"Any offence whatsoever
(whether committed before or after this Article was inserted
in this Constitution or before or after sections 4 to 34 of this
Article came into force) in respect of which an Executive
Minister certifies in writing under his hand that to the best of
his belief the act constituting such offence was done with the
object of impairing or impeding the machinery of
government or the administration of justice." The more one
dwells on this paragraph, the more one is staggered by the
contemplation of the range of its operation and the scope of
the matters authorised by it. A person is charged with an
"offence," however trifling, however grave, whenever alleged
to have been committed, whether before or after the passing
of the Amendment Act, and the charge is made post factum
an offence to be "tried" by the "Tribunal" by means of a
certificate under the hand of an Executive Minister,
prejudging on his own sole responsibility the fact that the act
constituting the alleged offence was done, and testifying his
belief that it was done, with the object of impairing or
impeding the machinery of government. What remains for
the "Tribunal" to "try"save the validity of the Minister's
certified belief, if, indeed, even that question remains open,
and to exercise the jurisdiction to sentence the accused, to
which I will presently refer. The provision, moreover, is in
substance and practical effect repugnant to the principal and
the almost universal practice which forbids retro-active penal

legislation. It is within the application of the words of
Alexander Hamilton, writing in The Federalist, No.
LXXXIV:"The creation of crimes after the commission of
the fact or, in other words, the subjecting of men to
punishment for things which, when they were done, were
breaches of no law, and the practice of arbitrary
imprisonments, have been, in all ages, the favourite and
most formidable instruments of tyranny."
The jurisdiction which this Part of the Article gives to the
"Tribunal" extends also to sentences in this, even more
staggering, provision, sect. 7, sub-sect. 1:"Whenever the
Tribunal finds any person guilty of an offence mentioned in
the Appendix to this Article, the Tribunal may, in lieu of the
punishment provided by law (other than this Article) for such
offence, sentence such person to suffer any greater
punishment (including the penalty of death) if in the opinion
of the Tribunal such greater punishment is necessary or
expedient." The next sub-section gives the Tribunal power to
direct the manner in which, and the authorities by whom,
any sentence is to
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be carried out. It may, if it thinks it "expedient,"sentence
any person whom it convicts of any offence mentioned in the
Appendix to death, to be executed in such manner as it
directs, including even the most barbarous lethal process,
should a particular "Tribunal" at some future time be
overwhelmed by passion or be constituted of members of a
perverted morality. Detached measuring of sentences by
legal prescription is not to govern the"Tribunal." The
"Tribunal" will be safe from enquiry, for the fifth sub-section
prohibits a Coroner's inquest in the case of a person
executed under a sentence of death by the "Tribunal,"
though such an inquest is held in every case of an execution

under the sentence of a constitutional Court. In anticipation
of what events was this provision inserted?
In general it may be said that some of the provisions to
which I have been referring are the antithesis of the rule of
law, and are, within their scope, the rule of anarchy.
The next section protects every member of the Tribunal
from any action, prosecution or other proceeding, civil or
criminal, in respect of anything done by him in his capacity
as such member, whether or not it was necessary to the
performance of his duties or the exercise of his powers.
This Part of the Article goes on to provide for the transfer of
the trials of persons awaiting trial by the ordinary
constitutional Courts of the land, the Central Criminal Court
and the Circuit Court, to the "Tribunal," and that transfer is to
be effected by an order of the "Tribunal"itself, on the
application of a member of the Grda Sothchna "not
below the rank of inspector."
In this, shall I say, pioneer piece of constitution
draftmanship, there is a quantity of detail to which it is
unnecessary to refer, as I am for my present purpose
concerned only with the larger matters of principle. It is,
however, interesting to note that one of its pioneer
achievements is the implanting in the Constitution of a group
of provisions entitled "Special Powers for the Police," which
constitute Part III of the Article. This embodiment of a drastic
"Police" Act in a Constitution is further proof (if such be
necessary) that this State can point new ways. The "Police"
are the "Grda Sochna,"a body created by ordinary
legislation and hitherto unknown to the Constitution as such.
It is a body which has built up for itself a position high in the
esteem of the general public. One had not perhaps realised
how high until it was accorded, by an amendment of the
Constitution, a kind of constitutional status and, not only
that, but a constitutional
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certificate of character for its individual members, certain of
whose statements on oath are now declared to be
"conclusive evidence, incapable of being rebutted or
questioned by cross-examination, rebutting evidence, or
otherwise."
The same Part of the Article alters the ordinary law for the
protection of the citizen in one important respect. Under the
ordinary law, when a person has been arrested and is in the
custody of the police he is protected from interrogation by
his custodians for obvious reasons. Some time since an
attempt was made to distinguish between"detention" and
"arrest" for this purpose and to give evidence against a
person of statements obtained from him while, as it was
contended, he was only "detained" before a charge was
made against him. It was held, both in this Court and in the
Court of Criminal Appeal, that this was a fallacious
distinction, and that "detention" by the Grda cannot be
distinguished from "arrest" by them so as to permit evidence
against himself to be extracted by interrogation from a
person who is in the disadvantageous position of one in
custody, interrogated by his custodians without the
protection of legal adviser, or magistrate, or light of day on
the proceedings. Call it what you will, there is no distinction
in the holding of a person in custody whether you choose to
name it "in detention" or "under arrest." This Part of the new
Article imports into the Constitution of the Free State an
express authority for any member of the Grda Sochna
(of any rank), without limit on the number of such members,
or the number of occasions, or the time of day or night, to
enter the prison or other place of custody and interrogate a
person in custody. Nor is any protection afforded the prisoner
by requiring the presence of a Judge of any Court, or the
presence of an officer of the Grda Sochna of any rank,
or the presence of a legal adviser of the prisoner (if
demanded), or, indeed, of any third person whatsoever. If
the prisoner fails (of which the proof may be, presumably,
the sole evidence of his interrogator) to give the required,

information (which includes information alleged to be in his
possession in relation to the commission or intended
commission by another person of an offence mentioned in
the Appendix), he is guilty of an "offence" triable by the
"Tribunal," for which the punishment is "such punishment as
the Tribunal shall think proper to inflict."
One cannot lose sight of these powers, or the acts which
may be done in the use of them, when one contemplates the
provision that the prisoner, who has been removed
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from the jurisdiction of the Courts of Justice of the State,
may be held in custody, in all, for a month and seventy-two
hours before he is brought before the "Tribunal" and charged
with any offence.
I will refer only to one other of these provisions of the new
Constitution of the Free State, in contrast with the old. An
"order" to search any place or premises may be issued by an
inspector of the Grda Sochna without reference to any
Court or Judge whatever. It will be within common knowledge
that an attempt to introduce a similar provision in a
neighbouring country failed before a public opinion aroused
in defence of a treasured constitutional principle of liberty.
We have to decide whether the committal of such principles
to a written Constitution has secured them as effectually.
From those provisions which I have summarised it is clear
that the new Article 2a is no mere amendment in, but effects
a radical alteration of, the basic scheme and principles of the
Constitution enacted for the Saorstt by the Constituent
Assembly. The Constitution, in Article 2 (which curiously
enough is expressly excepted from amendment by the Act
under consideration), referring to their source, declares the
division of powers, legislative, executive and judicial, for the
exercise of which the instrument establishes, or provides for

the establishment of, the necessary organisations proper to
them respectively. The judicial power of the State is to be
exercised in the public Courts, established for that purpose,
by Judges appointed in manner thereby carefully prescribed.
The Executive authority is conferred on an organisation
thereby established to exercise it as thereby prescribed. It
has often been said that it falls to the Courts of Justice of the
State to stand between the citizen and the Executive and the
executive departments, as the only defence of the citizen
against encroachments on his rights and liberties, always in
danger of such encroachments when watchfulness
slackens,e.g., see per Farwell L.J. in Dyson v. AttorneyGeneral (1).
Now let me state the effect on the Constitution of these, the
outstanding provisions, which I have just summarised, of the
new Article 2a inserted in the Constitution by the
Amendment Act, No. 37 of 1931 (if valid).
Power is given permanently to the Executive Council for the
time being to put the new Article into operation at any time
and to supersede a great part of the Constitution whenever
and for so long a time as it finds it expedient to do so.
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No conditions are prescribed for the exercise of that power.
It is not made a condition precedent to its exercise that there
must be a state of war or armed rebellion, or other danger to
the public safety, or that there must be a prevalence of
disorder, or that there must be circumstances such as to
prevent the constitutional Courts of Justice or any of them
from sitting or fulfilling their constitutional functions, or such
as to interfere effectively with the constitutional right to trial
by jury. An Executive Council is thereby empowered to put

the Article into operation, if they think it expedient, in time
of complete peace and order and of law undisturbed and
unembarrassed.
When the Article is put into operation, the Executive Council
takes away from the constitutional Courts of Justice the trial
of certain specified offences against the ordinary law and of
others not specified but to be certified (before trial) by a
member of the Executive Council as having been done for a
named object, whereupon the persons charged are to be
"tried" without a Judge or jury by a group of non-legal
persons, appointed and removable at pleasure of the
Executive Council, and holding army commissions from the
Executive Council. That is to say, the exercise of the judicial
power of the State in a large and, to the citizen very
important, respect, is in truth and effect transferred from its
constitutional depositary, the Courts of Justice of the State,
to the Executive Council, for though the Executive Council
exercises that judicial power through a group of its own
nominees acting at its pleasure and called a "Tribunal," this
"Tribunal" is in truth in like case with the military tribunals to
which Lord Halsbury, speaking of courts martial in time of
war, referred in these terms:"If there is war, there is the
right to repel force by force, but it is found convenient and
decorous, from time to time, to authorise what are called
'courts' to administer punishments, and to restrain by acts of
repression the violence that is committed in time of war . . .
But to attempt to make these proceedings of so-called
'courts-martial,' administering summary justice under the
supervision of a military commander, analogous to the
regular proceedings of Courts of Justice is quite illusory":
Tilonko v. Attorney-General for Natal (1).
The Oireachtas, to which alone and exclusively the
Constituent Assembly entrusted the legislative power in
respect of peace, order and good government, by this Act (if
valid) has surrendered to the Executive Council power to
declare certain matters to be offences "triable" by the
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"Tribunal" by a certificate in the individual case of an
Executive Minister. The Oireachtas, notwithstanding such
exclusive trust, has in like manner surrendered to the
Executive Council the authority to declare by the mouth of
its nominees and servants at will, what shall be the
punishment of any offence "tried" by the "Tribunal,""in lieu of
the punishment provided by law" (sect. 7, sub-sect. 1),
without check or limit on the choice or quantum of
punishment, not even by a general rule governing all cases
of a class or type, but by a sentence devised and declared
for the individual case.
The net effect, then is that the Oireachtas has taken judicial
power from the Judiciary and handed it to the Executive and
has surrendered its own trust as a Legislature to the
Executive Council, in respect of the extensive area of
matters covered by the Appendix to the Article.
Remembering that the "Tribunal" is to consist of five persons
holding commissions as commandants (or higher ranks)
issued to them by, and held at the pleasure of, the Executive
Council, and holding membership of the"Tribunal" at the will
of the Executive Council, the result of the Article clearly is
that whenever any Executive Council thinks it expedient to
use the Article, that Council itself prosecutes (in pursuance
of its proper executive function) a person charged by it with
an offence (which may be an offence brought within the
scope of the Article by an Executive Minister's certificate)
and conducts the prosecution before itself, "trying" the
charge by its own removable nominees, and itself convicts
the accused person, by the same convenient and decorous
machinery, and prescribes any sentence for the individual
case it chooses through the same convenient and decorous
machinery. Every act, from the arrest of the individual and
the charging him with an "offence" to the sentence and its
execution, is, therefore, in naked reality, the act of the
Executive Council.
I am not making any criticism of, or comment upon, this
resulting position. I am trying to make clear what the
enactment purports to do and to show where and how it
conflicts with the Constitution enacted by the Third Dil in
1922, and the vast importance it may have at any time to
the life and liberty of every citizen (if it be effective and
valid) and, consequently, the awful gravity of the matters
before us for determination in this, as I consider, momentous
case.
Has then the Oireachtas validly and effectively, not merely
amended, but consummated this root and branch alteration
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in the fundamental principles of the Constitution enacted by
the Third Dil ireann as a Constituent Assembly in
1922? This is a question calling for most anxious, meticulous
and (especially as regards our own particular trust, the
judicial power of the State, now so rudely to be invaded)
most jealous care: Lynham v. Butler (No. 2) (1). Our trust is
for the people, our duty and responsibility to the people,
and, while bowing inevitably to lawful amendment, when
established to have been properly and duly made, we must
be watchdogs to protect against unlawful encroachment and
to maintain intact, so far as in us lies, the principles and
provisions embodied in the Constitution for the protection of
the liberties of the citizens in mass and individually.
The Constitution, or Bunreacht, is the fundamental structure
upon which the State was set up by the Third Dil
ireann sitting as a Constituent Assembly. The Dil
thereby formulated the system or principles, and created the
organs, of government of the State. In its second and basic
Article, a fundamental division of function was declared, for
the exercise of which respectively there were thereby
created distinct organs, as, for example, the Oireachtas as

the organ of ordinary legislation. The Assembly also laid
down in the instrument a few great traditional principles of
government (for the most part prohibiting or limiting action
of certain kinds, principally on the part of the executive
organ), any radical breach of which would, in the common
acceptation, involve either tyranny or anarchy.
Now, the first thing I should emphasise is that the
Constitution was enacted by the Third Dil, sitting as a
Constituent Assembly, and not by the Oireachtas, which, in
fact, it created. It ought not to be necessary to mention
thisone cannot imagine such a necessity arising in any
other country. A book has, however, been issued within the
last few weeks by the Government Stationery Office, called
"Index to the Legislation passed by the Oireachtas in the
years, 1922 to 1932," in which at several places the
Constitution is stated to have been enacted by the
Oireachtas (see pp. 6, 75, and passim), surely an
extraordinary blot on an official publication. I regret that it is,
therefore, necessary to state that the Constitution was
enacted as a Schedule to the Constituent Act, passed on the
25th of October, 1922, by the Third Dil ireann ,sitting
as a Constituent Assembly. It may be also necessary to recall
that that Assembly was a single-chamber parliament,
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membership of which was not restricted by, or conditioned
on, any test, oath, or declaration of any kind, and which did
not act in combination or association with any other
chamber or body or person (Lord Lieutenant or GovernorGeneral), and that it was the Parliament to which the then
Executive or administration, including the"Provisional
Government" as it was called, was responsible. The
Oireachtas did not come into existence until after the
Constitution itself had come into operation on the 6th of

December, 1922. These historical facts are, as I will show, of
no small importance in considering the questions before us.
It may be taken for granted (the contrary has not been
suggested) that, if the Constituent Assembly had not
conferred upon the Oireachtas, or upon some other
assembly or body or bodies of persons, or upon some
individual or individuals, power to alter the Constitution, it
could not have been altered, whether by amendment,
revision, deletion, repeal or otherwise, unless a Constituent
Assembly were again convoked for that purpose, a procedure
which is required in other countries. The Constituent
Assembly did, however, confer on the Oireachtas such a
power by Article 50, whereby it was provided
that:"Amendments of this Constitution . . . may be made
by the Oireachtas"that is the only power to alter the
Constitution outside action by the Constituent Assembly
itself, but that power is limited and circumscribed by a
number of restrictions in respect of the manner and
conditions of its exercise and of the substance of the
amendments permitted.
In the first place, what I may describe as an over-all
limitation arises in this way. The Constituent Assembly
declared in the forefront of the Constitution Act (an Act
which it is not within the power of the Oireachtas to alter, or
amend, or repeal), that all lawful authority comes from God
to the people, and it is declared by Article 2 of the
Constitution that "all powers of government and all
authority, legislative, executive, and judicial, in Ireland are
derived from the people of Ireland . . ." It follows that every
act, whether legislative, executive or judicial, in order to be
lawful under the Constitution, must be capable of being
justified under the authority thereby declared to be derived
from God. From this it seems clear that, if any legislation of
the Oireachtas (including any purported amendment of the
Constitution) were to offend against that acknowledged
ultimate Source from which the legislative authority has
come through the people to the Oireachtas, as, for instance,
if it were repugnant to the
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Natural Law, such legislation would be necessarily
unconstitutional and invalid, and it would be, therefore,
absolutely null and void and inoperative. I find it very difficult
to reconcile with the Natural Law actions and conduct which
would appear to be within the legalising intendment of the
provisions of the new Article 2a relating to interrogation. I
find it impossible to reconcile as compatible with the Natural
Law the vesting, in three military servants of the Executive,
power to impose as punishment for any offence within the
indefinite, but certainly extensive, ambit of the Appendix,
the penalty of death, whenever these three persons are of
opinion that it is expedient. Finally, the judicial power has
been acknowledged and declared (and the acknowledgment
and declaration remain) to have come from God through the
people to its appointed depositary, the Judiciary and Courts
of the State. While they can fulfil that trust, dare any one say
that the Natural Law permits it, or any part of it, to be
transferred to the Executive or their military or other
servants?
The second restriction controlling amendment of the
Constitution is one imposed in express terms by the
Constituent Assembly in the Constitution of the Irish Free
State (Saorstt ireann ) Act itself. It is enacted in sect. 2
of that Act that:"if any provision of the said Constitution
or of any amendment thereof or of any law made thereunder
is in any respect repugnant to any of the provisions of the
Scheduled Treaty, it shall, to the extent only of such
repugnancy, be absolutely void and inoperative . . ." This
enactment is followed by the complementary restriction in
Article 50 of the Constitution:"Amendments of this
made by the Oireachtas." Now, a Treaty between two
countries, negotiated and concluded, whether by authorised

envoys or directly by governments, does not constitute part
of the municipal law of either country, unless, and only to
the extent that, such Treaty, or some part or parts of it, has
been given the force of law by the legislative process of the
country in question. The Anglo-Irish Treaty of 1921 (called in
the Constitution the"Scheduled Treaty") was given the force
of law and became part of the municipal law in Great Britain
by the Irish Free State (Agreement) Act, 1922 (passed by the
British Parliament on the 31st of March, 1922), and it was
given the force of law and became part of the municipal law
in Saorstt ireann by the Constitution of the Irish Free
State (Saorstt ireann ) Act, 1922 (passed by the
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Third Dil ireann , on the 25th of October, 1922). Such
municipal legislation, so long as it remains unrepealed,
makes the treaty instrument of legal obligation, within the
State so enacting it, upon the Government, the Judiciary, and
the individual citizen, to the extent to which they are
respectively concerned. That is, of course, an obligation
having a sanction quite independently of the political and
moral obligation of such Treaty internationally as an
international agreement. Courts must have regard to the
former obligation but have generally no concern with the
latter standing alone and unsupported by municipal
legislation. A Treaty, as an international agreement, may by
a time limit contained in it, cease to be effective between
the contracting parties by the expiry of the time limited, or it
may cease to bind the contracting parties by some agreed
method of abrogating it or by denunciation or some
internationally recognised and accepted process of bringing
its obligation to an end, or it may be modified or altered by
new agreement or supplemental treaty between the
contracting parties. The agreement for such abrogation or

modification of a treaty between the contracting parties
would not have the effect of repealing or altering the
municipal legislation enacted to give the original treaty the
effect of municipal law. There must be municipal legislation
for that purpose (unless perhaps anticipated and provided
for in advance by the original legislation). It being in the
nature of things that a treaty being simply an agreement
between parties is not something fundamentally immutable
in its character as a treaty but is subject to modification or
termination in some of the ways I have indicated, the
reference to"the Scheduled Treaty" in the Constitution Act
and in Article 50 must be taken to have been made in
contemplation of that position and to have a certain
consequent flexibility.
In In re Reade (1), I pointed out (at p. 49) that "the Treaty
itself contains the whole basis and framework of what may
be called the external Constitution of the Free State," that is
to say, the constitutional status and relationships assumed
by Saorstt ireann upon entering as a political unit,
under the Treaty of 1921, into the Community of Nations
known as the British Commonwealth of Nations as one equal
member thereof. (See full discussion of this matter at pp. 46
to 49 of the report of that case.) The Treaty also contained
agreements between the two countries on particular
matters, some
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of which would be reflected in the Constitution of the
Saorstt itself so long as the Treaty and the particular heads
of agreement remain in force as an operative instrument
between the two contracting parties, and during such time
they would limit amendment of the Constitution of the
Saorstt in the sense that certain amendments might
constitute a breach of agreement between the two countries.

But the Treaty does not of itself limit in any other way the
power of the Saorstt to amend its own Constitution. The
power of amendment is conferred on the Oireachtas, and the
limitations on the extent and manner of exercise of that
power are imposed, by the Third Dil ireann , as of its
supreme right and authority. I need only refer, for the
purposes of this case, to one of the matters made the
subject of particular agreement by the Treaty. Article 16 of
that instrument contains a specific agreement that the
Parliament of the Irish Free State shall not make any law so
as to (a) endow any religion, (b) prohibit or restrict the free
exercise thereof, (c) give any preference or impose any
disability on account of religious belief, or (d) divert from any
religious denomination any of its property except as therein
mentioned. This Article of the Treaty is reflected in Article 8
of the Constitution, which guarantees freedom of conscience
and free profession and practice of religion to every citizen,
and prohibits legislation of the nature mentioned in the
sixteenth Article of the Treaty (though there is no reason to
suppose that such a provision would not have been inserted
in the Constitution by the Constituent Assembly of its own
volition independently of the stipulation in the Treaty). A
considerable part of Mr. Overend's argument has been
addressed to the question whether the power of amendment
can be read in such a way as to extend to that clause, as it
certainly would if some of the contentions put forward were
accepted as sound. His main contention on this matter was
that, if a power of amendment of the nature and extent
claimed were held to have been conferred by Article 50, then
a person who had elected for citizenship of the Saorstt
under Article 3, acting on the faith of the protection given to
his conscience and religion by Article 8, might find that
protection swept away from him some day by an
amendment deleting Article 8. The answer to that argument,
however, is that his election to accept citizenship of the
Saorstt under Article 3 must be taken to have been made
in full view of, and subject to, any amendment which can be
lawfully made under Article 50, and the question therefore
remains or this, as for any other, purpose, whether the

particular
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alteration of the Constitution is an amendment which can be
made lawfully under the power of amendment in Article 50,
and if it be so, Mr. Overend's citizen cannot, I fear, rely on
the representation in Article 8. He can only rue his folly and
bewail his fate. There is, however, another consideration
which touches the same point, one relied on very strongly by
Mr. Costello in his argument, and with which I now deal. It is
the third limitation which, it has been contended,
circumscribes and restricts the power of amendment.
In the Constitution, in addition to giving form to the
Constitution proper by establishing the organisations for the
exercise of the powers of government in its threefold division
of authority, the Constituent Assembly also enunciated
certain propositions, containing statements of fundamental
principle in the constitutional sphere so expressed as to
convey clearly the intention that they are to be accepted for
the purposes of the Constitution as immutable and absolute,
subject only to the specific qualifications expressed in
certain cases. For example, Article 2, with regard to the
derivation of the powers of government and authority, is
enunciated by the Constituent Assembly as a statement of
fundamental principle which is not to be questioned by the
Oireachtas. It is noticeable that, in the case of Article 2, that
position was recognised in the Constitution (Amendment No.
17) Act, whereby that Article was excepted from the general
overriding effect given to the new Article 2a over all the
subsequent Articles of the Constitution. A similar declaration
of principle is contained in Article 6, which lays it down that
the liberty of the person is inviolable, flowing from which
there follows the concrete case, "no person shall be deprived
of his liberty" with the specific qualification"except in

accordance with law." An enactment to the general effect
that a citizen may be taken and detained in custody, without
being charged with any offence known to the law but just
whenever and for as long as a soldier or policeman deems it
expedient, would conflict with the principle laid down in
Article 6, and, in my opinion, whether purporting to be an
ordinary law, or an amendment of the Constitution, would be
invalid and void and could not be sustained under the power
of amendment. On the other hand, ordinary laws may be
enacted validly specifying the cases in which, the causes for
which, the times during which, and the persons by whom, a
person may in accordance with the ordinary law be deprived
of his liberty. The same considerations apply to Article 7,
which declares that the
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dwelling of each citizen is inviolable. Article 8, in which
freedom of conscience and the free profession and practice
of religion are laid down as rights of the citizen, is in a
somewhat different form. It guarantees these liberties to
every citizen. So, also, the right of free expression of opinion
and the right to assemble peaceably are declared in Article
9, by guaranteeing them, subject to the equally fundamental
qualification that their exercise must not be for purposes
opposed to public morality.
The Third Dil ireann has, therefore, as Constituent
Assembly, of its own supreme authority, proclaimed its
acceptance of and declared, in relation to the Constitution
which it enacted, certain principles, and in language which
shows beyond doubt that they are stated as governing
principles which are fundamental and absolute (except as
expressly qualified), and, so, necessarily, immutable. Can
the power of amendment given to the Oireachtas be lawfully
exercised in such a manner as to violate these principles

which, as principles, the Oireachtas has no power to change?
In my opinion there can be only one answer to that question,
namely, that the Constituent Assembly cannot be supposed
to have in the same breath declared certain principles to be
fundamental and immutable, or conveyed that sense in
other words, as by a declaration of inviolability, and at the
same time to have conferred upon the Oireachtas power to
violate them or to alter them. In my opinion, any
amendment of the Constitution, purporting to be made
under the power given by the Constituent Assembly, which
would be a violation of, or be inconsistent with, any
fundamental principle so declared, is necessarily outside the
scope of the power and invalid and void.
I have been dealing with limitations of the power of
amendment in relation to the kinds of amendment which do
not fall within the scope of the power and which are
excluded from it always, irrespective of the time when,i.e.,
within the preliminary period of eight years or after, or the
process by which, the amendment is attempted. Such
considerations as I have been discussing may affect a
particular attempted amendment either in the whole or in
part only. I now come to deal with a restriction on the
exercise of the power of amendment affecting any
attempted amendment as a whole.
The fourth limitation on amendment of the Constitution is
that imposed in Article 50 on the method or process of
amendment by these words:
"but no such amendment, passed by both Houses
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of the Oireachtas, after the expiration of a period of eight
years from the date of the coming into operation of this
Constitution, shall become law, unless the same shall, after it
has been passed or deemed to have been passed by the said

two Houses of the Oireachtas, have been submitted to a
Referendum of the people, and unless a majority of the
voters on the register shall have recorded their votes on
such Referendum, and either the votes of a majority of the
voters on the register, or two-thirds of the votes recorded,
shall have been cast in favour of such amendment."
The clause then contained a special power to be exercisable
during the before-mentioned period of eight years:
"Any such amendment may be made within the said period
of eight years by way of ordinary legislation and as such
shall be subject to the provisions of Article 47 hereof."
The practical difference between the procedure for
exercising these powers is that, after the first period of eight
years, the Oireachtas is forbidden to make an amendment of
the Constitution without referring it to the people by
Referendum for approval; while for an initial period of eight
years a Referendum was not required unless demanded in
the manner provided by Article 47, thus allowing a time
within which drafting of formal or other unimportant
amendments could be effected without insisting on the
Referendum, which, however, could always, even during
such preliminary period, be demanded and insisted upon, so
that the check and control of the people could at any time be
exerted if a proposed amendment seemed to call for it. A
moment's consideration will demonstrate that this clause
was enacted in clear realisation of the relative positions of
the Constituent Assembly and the Oireachtas. Membership
of the Constituent Assembly, as I have mentioned already,
was not restricted by any oath or other test. The Assembly
therefore felt itself entitled to speak for all the people in the
territory for which it was elected, and it is very clear, on the
evidence of the Constitution itself which it enacted, that the
Assembly intended, and, so far as it could by constitutional
provision, tried to preserve intact the overriding authority of
the people. The Assembly established by the Constitution a
Legislature (the Oireachtas) upon membership of which the
Assembly felt bound for certain reasons (and I am not called
on here to discuss these reasons) to impose a test by way of
an oath, the possible, even probable, effect of which might

be anticipated as
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the exclusion of some of the people from membership of the
Oireachtas. That probable effect, in limiting membership of
the Oireachtas and so restricting the voice of opinion in
support of or opposition to its acts, was met by making
provision for the procedure known as the Referendum to the
people for decision (which was no doubt recommended to
the Constituent Assembly by other considerations as well as
that which I am discussing and which is obvious on the face
of the document itself). The Referendum was not limited by
any oath or other test. The decision of the matter submitted
was to be a decision of the whole people on the basis of
universal suffrage (Article 14, for which detailed provision
was actually made by statute, the Electoral Act, No. 12 of
1923, Part V). Thus, the Constituent Assembly, endowing the
more limited Assembly, the Oireachtas, with a power of
amendment of the Constitution, reserved to the people on
whose behalf it was enacting that Constitution absolute
control of the exercise of that power, so that in every case
after the period of eight years the decision of the people
must be obtained and, during that period, such control was
secured by the right to demand a Referendum.
Nevertheless, the Oireachtas has, it is contended, by means
of two amendments of the Constitution within the
preliminary period of eight years, namely, the Constitution
(Amendment No. 10) Act, No. 8 of 1928 (passed on the 12th
of July, 1928), and the Constitution (Amendment No. 16) Act,
No. 10 of 1929 (passed on the 14th of May, 1929),
succeeded in taking from the people the control so carefully
reserved, and endowed the Oireachtas itself with power to
amend the Constitution without limit or check of any kind
even to the extent of an "amendment"generally over-riding

the whole Constitution and depriving the people of their
constitutional rights and liberties whenever and during such
time as one of the limbs of government, the Executive,
thinks it expedient. The first of these two amendments
deleted Articles 47 and 48 from the Constitution. Those
Articles gave the people a voice in ordinary legislation by
means of the "Referendum" and the "Initiative." I am not
concerned with the amendment here in its bearing upon
ordinary legislation of the Oireachtas, in which respect it
may be an entirely valid exercise of the power of
amendment under Article 50. I have not to consider it in that
aspect. I am now only concerned with its express, though not
too strikingly prominent, extension to remove the condition
annexed to the power of amendment during the preliminary
period of eight years given
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by Article 50, namely, that it should be subject to the
provisions of Article 47, i.e., the Referendum. Having thus, as
it was supposed, removed all power of the people to
interfere by the Referendum in amendments made during
the preliminary term of eight years, and taken a free hand,
the Oireachtas passed the second of these amending Acts
extending by a further period of eight years the term for the
exercise of the preliminary power, now freed by the previous
amending Act of all reference to or control by the people. If
this was lawful it can be continued indefinitely in time and
scope of amendment, ultimately even to the exclusion of the
people from all voice in legislation and administration and
the open mockery of Article 2 of the Constitution. As against
this, counsel advanced the (rather political) argument that
the people were still fully protected, because, as he said, a
general election is equally effective with a Referendum, and
that in fact the majority which passed the amendment

containing Article 2a was immediately afterwards rejected at
the polls, though at the same time he admitted the answer,
also perhaps political though logical, that the majority which
succeeded after a general election did not repeal the statute
enacting the amendment, but only suspended the operation
of the amendment, and later put it again into full operation.
If, however, the result of the election of which counsel spoke
was a declaration of the mind of the people on the
Amendment No. 17 and the Article No. 2a, thereby inserted
in the Constitution, it follows that if submitted to the people
by Referendum it could never have reached the Statute Book
and we should not have had to consider its validity as an Act
of the Oireachtas in operation as we are now engaged in
doing.
Was, then, the Amendment No. 16 lawfully enacted by Act
No. 10 of 1929? There are two principal grounds for
impeaching its validity; the first, the taking away, whether
validly or not, in any case the effective removal from use, of
the Referendum and the right to demand a Referendum; the
second, that the Amendment No. 16 is not within the scope
of the power of amendment, and therefore the Oireachtas
was incompetent to enact it.
It has not been suggested or even hinted that, if the
Constituent Assembly had not conferred a power of
amendment of the Constitution, there would have been any
such power in the Oireachtas or in any other body. If no such
power had been given the only way in which the Constitution
could have been altered or amended in any respect would
have been by convoking the Constituent Assembly
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for that purpose. The Oireachtas, therefore, which owes its
existence to the Constitution, had upon its coming into being
such, and only such, power of amendment (if any) as had

been given it by the Constituent Assembly in the
Constitution, that is to say, the express power set out in
Article 50, and amendments of the Constitution could only
be validly made within the limits of that power and in the
manner prescribed by that power.
Now, the power of amendment is wholly contained in a
single Article, but the donee of the power and the mode of
its exercise are so varied with regard to a point of time as to
make it practically two separate powers, the one limited to
be exercised only during the preliminary period of eight
years, the other, a wholly different and permanent power, to
come into existence after the expiry of that preliminary
period and so continue thereafter.
During the preliminary fixed period of eight years, power
was given to the Oireachtas to make amendments of the
Constitution "by way of ordinary legislation," which I
understand to mean by the ordinary legislative procedure.
The Oireachtas had, therefore, under this clause power to
enact amendments as law during the specified period of
eight years. To this power, however, there was added the
condition that it "shall be subject to the provisions of Article
47," that is to say, the amendment must be submitted by
Referendum to the decision of the people, if,but only if,
demanded within a specified time by the Senate or by a
certain proportion of the people. Thus the Constituent
Assembly, even during the preliminary period, would not
relax the ultimate authority of the people, and expressly
reserved to the people the right to intervene when they
considered it necessary to restrain the action of the
Oireachtas affecting the Constitution. The frame of this
provision makes it clear to my mind that, even if, by
amendment of the Constitution under the power, Article 47
might cease to apply to ordinary legislation of the
Oireachtas, the provisions of that clause were declared,
deliberately, expressly and in a mandatory way, to be kept in
force and operative for the purpose of amendments of the
Constitution during the preliminary period of eight years.
Now, on the other hand, the permanent power of
amendment, to arise at the expiry of the period of eight

years, is a wholly different thing both as to the donee of the
power and the manner of its exercise. Power is not given to
the Oireachtas to enact amendments of the Constitution into
law in any circumstances. On the contrary,
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there is an express negativing of any such power. There is a
prohibition, utterly unambiguous in its terms, forbidding the
passing into law of any amendment which shall not have
been submitted to a Referendum of the people and been
approved by a specified majority of the people. In other
words, the only power of amendment of the Constitution,
after the 6th of December, 1930, was given by the
Constituent Assembly to the two Houses of the Oireachtas
and the people together. Under that power it is clearly not
lawful for the Governor-General to certify the passing into
law, by signifying the King's Assent, of any Bill purporting to
amend the Constitution, passed by the two Houses of the
Oireachtas, until the decision of the people thereon by
Referendum has been declared. If that clause still confers
and defines the power of amendment of the Constitution as
from and after the 6th of December, 1930, the Constitution
(Amendment No. 17) Act, No. 37 of 1931, stated to have
been passed on the 17th of October, 1931, has never
become law, and is void and inoperative, because it has
admittedly never yet been submitted to a Referendum of the
people, and the Oireachtas alone has not power to enact it
as law. We find, then, that the only power of amendment of
the Constitution given by the Constituent Assembly has not
been exercised, inasmuch as it has not been exercised by
the people, to whom the ultimate effective act in its exercise
was reserved: that, in fact, the purported passing of the Bill
into law by its presentation by the Executive Council to the
Governor-General for signification of the King's Assent was in

contravention of an express provision in the clause creating
the power. We have then to see what authority is invoked for
amendment by the Oireachtas alone and the exclusion of the
decision of the people as required by the power of
amendment given. The answer at the Bar is that the
Oireachtas, by the Constitution (Amendment No. 16) Act, No.
10 of 1929, before the 6th of December, 1930, amended the
power of amendment and changed the preliminary period of
eight years prescribed by the Constituent Assembly to a
period of sixteen years, i.e., a period ending the 6th of
December, 1938, and thereby gave itself power to make
amendments of the Constitution during a new period of eight
years ending at the latter date without submission to a
Referendum of the people contrary to the express prohibition
in, and in defiance of the clear spirit and intention of, the
clause. The authority for this far-reaching and (as we see in
its fruits) most grave action is a certain interpretation of the
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words of Article 50 which, upon the most attentive
consideration, I am of the clear opinion they do not bear.
We must now focus our attention on the Constitution
(Amendment No. 16) Act, No. 10 of 1929, and determine the
question of its validity. There are two grounds upon which it
is impugned, the first extrinsic, in that, in consequence of
the passing of Constitution (Amendment No. 10) Act, No. 8 of
1928, it is a defective execution of the preliminary power of
amendment given by Article 50; the second intrinsic, in that
it is an excessive execution of that power, an act purporting
to do under the power something unauthorised by the power
or even forbidden by it.
The Constitution (Amendment No. 10) Act, No. 8 of 1928,
was, as stated in its long title, passed to remove Articles 47
and 48 from the Constitution, that is to say, to get rid of the

intervention of the people by either procedure in respect of
ordinary legislation of the Oireachtas. I do not stop here to
discuss whether such amendment is within the express
power of amendment or not. I assume for my present
purpose that it was as regards ordinary legislation a valid
amendment. The Act was, however, expressed to extend to
"necessary consequential amendments"and, under cover of
this far from correct phrase, it purported to make another
amendment in the Constitution far more important and farreaching than the expressed principal purpose of the Act and
not at all consequential thereon, and to confer on the
Oireachtas a licence to amend the Constitution without
reference to the people during the residue of the fixed
preliminary period to the 6th of December, 1930. The
Constituent Assembly, when conferring on the Oireachtas a
special power of amendment of the Constitution during such
fixed period, attached an express requisite for the execution
of that power, stipulating that it should be subject to the
provisions of Article 47, that is to say, that the proposed
amendment must be referred to the decision of the people
by Referendum if demanded. The Oireachtas purported by
including in the Constitution (Amendment No. 10) Act, No. 8
of 1928, what was quite incorrectly called a"necessary
consequential amendment" (which, of course
unintentionally, misleading description was certainly
calculated to divert attention from what was being done), to
remove from the power of amendment itself a requisite
imposed on its exercise by the Constituent Assembly. In my
opinion, it was not competent to use the power for the
purpose of removing from itself the requisites for its
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exercise attached to it in the very terms of donation of the
power. That provision of the statute, No. 8 of 1928, was bad,

in my opinion, as being what is called in the general law of
powers "an excessive execution." It was outside the scope of
the power. We have not been referred to, nor have I found,
any precedent for such a use of a power. I do not believe
that there can be a precedent, because it defies logic and
reason. It was, therefore, invalid in my opinion. Nevertheless,
inasmuch as a Referendum must be carried out in
accordance with regulations made by the Oireachtas, the
actual practical effect of the Act was to nullify for the future
the provision that amendments should be subject to the
provisions of Article 47, by making it impossible in practice
to carry out those provisions. The consequence of that state
of affairs was that future executions of the power of
amendment during the fixed period must inevitably suffer
from what is called in the general law of powers "defective
execution." Therein lies the first ground of impeachment of
the Constitution (Amendment No. 16) Act, No. 10 of 1929.
I pass now to the other, and, in my opinion, conclusive,
ground for impeaching that Act as an invalid and ineffective
attempt by the Oireachtas to assume sole and unlimited
power of amendment of the Constitution. That Act, the
Constitution (Amendment No. 16) Act, No. 10 of 1929,
passed by the Oireachtas within the preliminary period of
eight years, is entitled "An Act to amend the Constitution by
extending the period within which amendments of the
Constitution may be made by the Oireachtas without
submission thereof to a Referendum of the people." This is
effected by deleting from Article 50 the words "eight years"
in each of the places where they occur and inserting in each
case in lieu thereof the words "sixteen years."If this
amendment is good there is no reason why the Oireachtas
should not have inserted, or should not even yet insert, a
very much larger term of years or, indeed, delete the whole
of Article 50 from the words "by the Oireachtas" in the
second line to the end of the Article.
I am dealing now with the permanent power of amendment
of the Constitution given in Article 50 and exercisable at any
time after the 6th of December, 1930. Most certainly that
power is not given to the Oireachtas to exercise at its own

will and pleasure. On the contrary, by a mandatory
prohibition in the clearest and most explicit terms, it is
forbidden to make any amendment of the Constitution after
the specified date without the
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co-operation of the people, to whom alone the effective
decision to make or not to make any proposed amendment is
explicitly and very definitely given by the plain words of the
power and sternly reserved. The attempt to take from the
people this right, this exclusive power and authority, and to
confer on the Oireachtas a full and uncontrolled power to
amend the Constitution without reference to the people
(even though for a period of years, whether it be until 1938
or Tibb's Eve, a matter of indifference in the circumstances)
was described by counsel in, I think, accurate language, as a
usurpation, for it was done in my opinion without legal
authority.
The only argument advanced in support of this position is
that the power to amend the Constitution gives power to
amend the power itself. It certainly does not say so. One
would expect (if it were so intended) that the power would
express that intention by the insertion of a provision to that
effect by some such words as:"including amendment of
this power of amendment," but no such intention is
expressed and there is nothing from which it can be implied.
On the contrary, the definite prohibition in the clause shows
that no such amendment was contemplated and seems to
me conclusive in its terms against implying such a power. It
is not, in my opinion, sound to argue from the fact that
because the power of amendment, though standing in a
separate self-contained Article or clause, is written upon the
same paper writing as the Constitution to which it applies, it
must therefore come within its own operation. As well might

it be said that one who lends another a pruning knife and
leaves it, for the cultivator's convenience, hanging on the
tree for the trimming of which it is lent, therefore authorises
him to whom it is lent, by some process of inversion, to turn
it upon itsef, and use it to prune and amend itself into some
other kind of instrument wherewith to back down the tree.
During the argument, an analogy was suggested with a
power sometimes contained in documents settling property
on trusts, by which the donee of the power is authorised to
revoke the trusts declared by the settlement and to declare
other trusts of the property, which power, it was said, gives
the donee of the power authority to revoke the power itself
and substitute another power with a wholly different scope
and without the requisites prescribed for the exercise of the
original power. I cannot assent to that proposition as a
general doctrine or rule of law. It is in every case a matter of
the interpretation of the particular document. If the
document, read according
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to the legal principles of interpretation, shows the intention
of the document to be that the power of revocation should
authorise revocation of the power itself and the substitution
of another power, then the proposition stated follows; if
however the interpretation leads to a different conclusion as
to intention, then the proposition stated cannot be asserted
of that case. This argument, therefore, depends upon a
petitio principii. The only real analogy between the two
matters is that in each case the question is one of the true
interpretation of the document under consideration
according to the settled rules of interpretation applicable, as
for instance the rule admitting consideration of the relevant
surrounding circumstances for the purpose of arriving at the
true meaning and intention expressed by the written words

which are to be construed. Again, in the case of a power, it is
a settled rule that we may not extend its scope beyond what
is expressed, or to be implied of necessity from what is
expressed, in the instrument containing it and also that the
requirements prescribed by the instrument for its due
execution must be fulfilled.
A power of amendment is not an essential part of, or
provision in, or addition to, a Constitution. The Constituent
Assembly which creates and grants a Constitution need not
grant any power to amend it, in which case amendment can
be effected only by re-convoking the Constituent Assembly
for that purpose. If it should have granted a power of
amendment and an amendment outside the scope of that
power should be proposed, that amendment can only be
effected by again convoking the Constituent Assembly to
enact it, if the Assembly think fit. A power of amending a
Constitution is something outside and collateral to the
Constitution itself. It may be conferred on a donee other than
an authority owing its existence to the Constitution, as, for
instance, on the whole body of the people, on a religious or
legal hierarchy, or any other person or body that might be
selected for the purpose. Again, such a power may be given
by the Constituent Assembly by a separate instrument and
not in the instrument containing the Constitution. In the
present case, Article 50 might have been enacted by the
Constituent Assembly as a separate Act or it might have
been enacted as a section of the Constitution Act instead of
being inserted in the Schedule containing the Constitution.
No doubt the Constituent Assembly could, if it had so
intended, have given a power of amendment of the power to
amend the Constitution, but in that case it would seem
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far more likely that it would rather have conferred on the

Oireachtas a general open and free power of amendment of
the Constitution, unlimited in scope and without limiting and
restraining requirements for its exercise, than have done the
same thing indirectly by giving a strictly limited power with
power to remove the limitations. The Constituent Assembly
clearly, to my mind, did not so intend. In my opinion, on the
true interpretation of the power before us, upon a
consideration of the express prohibition, limitations and
requirements of the clause containing it, the absence of any
express authority, the donation of the effective act in the
exercise of the power to the people as a whole, the relevant
surrounding circumstances to which I have already referred,
and the documents and their tenor in their entirety, there is
not here, either expressly or by necessary implication, any
power to amend the power of amendment itself.
For the reasons which I have set forth, I am of opinion that
the Constitution (Amendment No. 16) Act, No. 10 of 1929, is
invalid and the amendment of the Constitution contained in
it inoperative, null and void. It follows that, in my opinion, no
amendment of the Constitution passed by both Houses of
the Oireachtas after the 6th of December, 1930, could
become law unless and until it had been submitted for
decision to a Referendum of the people and had received the
approval of the people in the manner prescribed.
It follows that, in my opinion, the Constitution (Amendment
No. 17) Act, No. 37 of 1931, has never become law, and that
the matters of which the applicants here complain, being
acts and proceedings under that invalid statute, are all
wholly illegal and indefensible in law.
I have just stated my opinion that the Act, No. 37 of 1931,
as a whole enactment, has never become law. I have further
to add that I am also of opinion that, for the reasons already
given, parts of the amendment (the new"Article 2a") are
incapable of being validly enacted under the Constitution,
some as repugnant to the Natural Law and therefore
repugnant to the Source of power and authority
acknowledged and declared by the Constituent Assembly,
others as repugnant to some of the principles postulated by
the Constituent Assembly as fundamental.

Therefore, after most anxious and grave consideration of
this very serious and critical case, I have arrived at the clear
and deliberate opinion that the judgment of the High Court
should be reversed and that the cause shown should be
disallowed and the conditional order of habeas corpus and
prohibition made absolute.
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FitzGibbon J. :
It is impossible to overestimate the importance of the
questions which we have to decide on this appeal, involving
as they do, on the one hand, the validity of several Acts
already passed by the oireachtas and the powers possessed
by that body over future legislation, and, on the other, rights
and privileges of the citizens of the Saorstt which are
stated by our own Constitution to be "inviolable,"or to be
"guaranteed," and which are alleged by the appellants to be
"fundamental," "immutable," and incapable of being taken
away by any enactment whatsoever.
The detailed analysis which has just been read by the Chief
Justice, upon which I cannot hope to improve, makes it
unnecessary for me to recapitulate the character and effect
of the legislation which we have to consider. It is no part of
my duty to express an opinion upon anything connected with
that legislation except its validity under the Constitution, and
I refrain from any kind of criticism of its merits.
The appellants contend that "The Constitution (Amendment
No. 17) Act, 1931," No. 37 of the Acts of 1931, which I shall
refer to as "Amendment No. 17," is ultra
vires,unconstitutional and void, in that it is contrary to Article
72 of the Constitution, which enacts that "No person shall be
tried on any criminal charge without a jury save in the case

of charges in respect of minor offences triable by law before
a Court of Summary Jurisdiction and in the cases of charges
for offences against military law triable by Court Martial or
other Military Tribunal"; to Article 6 of the Constitution which
enacts that "The liberty of the person is inviolable, and no
person shall be deprived of his liberty except in accordance
with law . . ."; and to Article 64 of the Constitution which
enacts that "The judicial power of the Irish Free State
(Saorstt ireann ) shall be exercised and justice
administered in the public Courts established by the
Oireachtas by judges appointed in manner hereinafter
provided . . ."
There is no doubt, and it is indeed admitted by the AttorneyGeneral and his colleagues, that Amendment No. 17
expressly contravenes, in these and many other respects,
the Constitution as originally enacted by Dil ireann ,
sitting as a Constituent Assembly, but they contend that
Amendment No. 17 was a valid amendment of the
Constitution by the Oireachtas under the powers conferred
on the Oireachtas by Article No. 50, as amended by the
Constitution (Amendment No. 16) Act, 1929 (No. 10
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of 1929), and the Constitution (Amendment No. 10) Act,
1928 (No. 8 of 1928).
To this contention the appellants reply that the Acts by
which the Oireachtas purported to amend Article 50 of the
Constitution were themselves invalid and ultra viresof the
Oireachtas, and, consequently, that any amendment of the
Constitution which rests upon them must also be invalid. The
validity of Amendment No. 17 is also attacked upon a
substantive ground of far-reaching importance, namely, that
it violates certain rights of citizenship which are alleged to
be fundamental, and "inviolable" or"immutable," apparently

by any legislative authority whatsoever.
It is obvious that if the Oireachtas had no power to amend
Article 50 of the Constitution at all, or in the particular way in
which it was amended by the Amendments No. 10 and No.
16, it will be unnecessary to consider any of the other
objections to Amendment No. 17, and I shall, therefore,
endeavour to deal with that objection first.
Article 50 is in these terms:"Amendments of this
made by the Oireachtas, but no such amendment, passed by
both Houses of the Oireachtas, after the expiration of a
period of eight years from the date of the coming into
operation of this Constitution, shall become law, unless the
same shall, after it has been passed or deemed to have been
passed by the said two Houses of the Oireachtas, have been
submitted to a Referendum of the people, and unless a
majority of the voters on the register shall have recorded
their votes on such Referendum, and either the votes of a
majority of the voters on the register, or two-thirds of the
votes recorded, shall have been cast in favour of such
amendment. Any such amendment may be made within the
said period of eight years by way of ordinary legislation and
as such shall be subject to the provisions of Article 47
hereof." Article 47 made provisions for the suspension, in
certain events, of any Bill, for a period of ninety days, and for
the submission of any Bill so suspended to the decision of
the people by Referendum, if a demand should be made
within the ninety days either by a resolution of Seand
ireann , assented to by three-fifths of its members, or by a
petition signed by one-twentieth of the voters on the register
of voters. This Article was repealed in 1928 by Amendment
No. 10, and as consequential upon that repeal the reference
to the provisions of Article 47 in the last clause of Article 50
was deleted.
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Supreme Court.
The first contention of the appellants is that the
terms"amendments" and "amendment" in Article 50 do not
connote "repeal," and they have referred us to dictionary
interpretations of "amend" and "amendment" in the sense of
"to improve," "to make better," and so on. There are,
however, other equally common and authentic
interpretations which do include the sense of "repeal,"and
"improvement" may quite properly be effected by addition,
alteration, or omission. "Amend, v.t. 1. To correct, to rectify
by expunging a mistake; as, to amend a law.""Amend 2. To
change or alter, as a law, bill, motion or constitutional
provision by the will of a legislative body, or by competent
authority; as, to amend the Constitution"(Ogilvie's "Imperial
Dictionary"). "Amendment. The act of changing a
fundamental law, as of a political constitution, or any change
made in it according to a prescribed mode of procedure; as,
to alter the law byamendment; an amendment to the
Constitution": "Standard Dictionary," Funk and Wagnalls
(1894).
In legislation, the words "amendment" and "amend"are
constantly employed in the sense of "repeal," especially
when reference is made to the amendment of a lengthy
document, such as the Constitution or an Act of Parliament,
by a repeal, total as to some provisions of the enactment,
but partial when considered in relation to the document as a
whole. Taking a volume of the statutes of the Imperial
Parliament (Statutes, 8 Ed. VII), and opening it at random, I
find, within a few pages, the following instances: Chapter 3:
"An Act to amend the Prosecution of Offences Acts, 1879 and
1884." Sect. 3, sub-sect. 1: "The enactments mentioned in
the schedule to this Act are hereby repealed to the extent
specified in the third column of that schedule," and the
schedule, of"Enactments repealed," repeals the whole of one
section and parts of two others of the Act of 1879 and part of
one section of the Act of 1884. Chapter 15 of the same
year,"An Act to consolidate and amend the law relating to

the payment of costs in criminal cases" repeals by sect. 10,
sub-sect. 1, portions of twenty sections and the whole of
each of thirty-two sections, in thirty-six different statutes.
Chapter 8 of the same year is perhaps the most apt
illustration of all: "An Act to amend section eleven of the
Savings Banks Act, 1904." Sect. 1, sub-sect. 2: "Section
eleven of the Savings Banks Act, 1904, shall be and is
herebyrepealed." These instances might, I expect, be
multiplied by hundreds in English legislation, and they may
be paralleled from the comparatively few enactments of our
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own Legislature. The usage of Parliamentary draughtsmen
appears in the promiscuous interchange of the
words"amend" and "repeal" in the text and marginal
headings of different sections, but that of the Legislature
itself may be seen in the Local Elections Postponement
(Amendment) Act, 1924: "An Act to amend the Local
Elections Post-ponement Acts, 1922 and 1923." Sect. 1: "
The Local Elections Postponement (Amendment) Act, 1923
(No. 48 of 1923), shall be and is hereby repealed."
Article V of the Constitution of the United States enables
Congress to propose "Amendments to this Constitution"(the
very expression used, with the substitution of "of"for "to," in
Article 50 of our own Constitution), and "amendments"and
"amendment" are the only terms employed, yet
"Amendment No. 22" is in these words: "The Eighteenth
Article of Amendment to the Constitution of the United
States is hereby repealed. This Article shall be inoperative
unless it has been ratified as an Amendmentto the
Constitution by Conventions in the several States as
provided in the Constitution within seven years from the
date of submission hereof to the States by the Congress."
A further reason, conclusive in my opinion, against the

limitation of the meaning of the word "amendment"
to"improvement" is to be found in Article 65, which extends
the judicial power of the High Court to the"question of the
validity of any law, having regard to the provisions of the
Constitution." If the validity of an amendment of the
Constitution were to depend upon the decision of the High
Court that it was an "improvement,"the Judges and not the
Oireachtas would be made the authority to decide upon the
advisability of any particular amendment of the Constitution,
and this would involve a direct contravention of the
principles by which their respective spheres are assigned to
the Legislative, the Executive, and the Judicial organisations
in the Irish Free State. The Executive decides that the
Constitution would be improved by a particular alteration,
the Oireachtas, if it approves of the alteration proposed by
the Executive, embodies it in the form of an Act, and the
Judiciary decides whether that Act can be and has been
validly enacted, and then, and not till then, the Executive
enforces it as a law upon the people at large.
For all these reasons I am quite satisfied that the power
conferred upon the Oireachtas by Article 50 of the
Constitution to make amendments of the Constitution
includes a power to amend by alteration or repeal, and that
the Oireachtas alone has the right to decide whether any
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particular alteration, addition, or omission, is desirable, and
accordingly that neither Amendment No. 10, nor Amendment
No. 16, nor Amendment No. 17, is ultra viresof the
Oireachtas merely because it involves a partial repeal of the
Constitution.
The next objection is that, even if there be a power to
amend or repeal portions of the Constitution, this power
does not extend to an amendment or repeal of all or any part

of Article 50.
However undesirable it may appear to some that the
Oireachtas should have power, by merely passing an
amendment, to extend, as they have done, the period within
which amendments to the Constitution may be made by way
of ordinary legislation, or to legalise, as they have done,
amendments of the Constitution without submitting them to
a Referendum of the people, as contemplated by the
Constitution itself, nevertheless, if this be the true
construction of Article 50, the Court is bound to give effect to
that construction.
It is conceded that there is no express prohibition against
amendment of Article 50 to be found in the Constitution. It is
not unusual to find that Constitutions or Constituent Acts
impose such restrictions upon the legislative bodies set up
by them, and the omission of any such restriction in regard
to amendments of Article 50 is at least a negative argument
that Dil ireann as a Constituent Assembly did not
intend to impose any such restriction upon the oireachtas.
This negative argument is supported by the fact that both
the Constituent Act and Article 50 itself do Contain an
express restriction upon the powers of the Oireachtas to
amend the Constitution, and it is a legitimate inference that,
when certain restrictions were expressly imposed, it was not
intended that other undefined restrictions should be imposed
by implication. The Constitution was enacted by Dil
ireann ,sitting as a Constituent Assembly, unfettered by
any oath or test, open to all the elected representatives of
the constituencies in that Irish Free State whose
establishment was therein and thereby proclaimed, and it
was the only act of legislation of that Constituent Assembly.
By the Constituent Act it was decreed and enacted as
follows:
"1. The Constitution set forth in the First Schedule hereto
annexed shall be the Constitution of the Irish Free State
(Saorstt ireann ).
2. The said Constitution" (that is "The Constitution set forth
in the First Schedule hereto annexed") "shall
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be construed with reference to the Articles of Agreement for
a Treaty between Great Britain and Ireland set forth in the
Second Schedule hereto annexed (hereinafter referrred to as
'the Scheduled Treaty') which are hereby given the force of
law, and if any provision of the said Constitution or of any
amendment thereof or of any law made thereunder is in any
respect repugnant to any of the provisions of the Scheduled
Treaty, it shall, to the extent only of such repugnancy, he
absolutely void and inoperative and the Parliament and the
Executive Council of the Irish Free State (Saorstt ireann
) shall respectively pass such further legislation and do all
such other things as may be necessary to implement the
Scheduled Treaty.
3. This Act may be cited for all purposes as the Constitution
of the Irish Free State (Saorstt ireann )Act, 1922."
Then follows the
"First Schedule above referred to.
Constitution of the Irish Free State.
(Saorstt ireann )"
which contains eighty-three separate numbered "Articles,"of
which those numbered 73 to 83 inclusive are preceded by a
descriptive heading "Transitory Provisions," which is, for what
it may be worth, the sole indication of any intended
distinction between any one Article or group of Articles and
any other.
If there ever was an assembly which could claim to
represent the inhabitants of Saorstt ireann , it was that
Dil ireann , sitting as a Constituent Assembly, which
every elected representative of every constituency within
the Saorstt was free to attend, unfettered by any test, and
in which there wax no nominated or unrepresentative
element, and I am not disposed to quarrel with the
statement of the Attorney-General that "the framers of the

Constitution framed that instrument in accordance with
doctrines of popular sovereignty, and the instrument must
be construed as indicating the powers conferred upon the
Oireachtas," or, subject to two modifications, with the
propositions stated by Mr. Gavan Duffy as the foundation of
his argument, that:"1. The Constituent Assembly
proclaimed the Constitution by virtue of its own supreme
legislative authority. 2. It transmitted that authority to its
successor, the Oireachtas, at least for eight years. 3. It gave
the Oireachtas complete amending power for eight years,
subject to checks which are merely checks voluntarily
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Supreme Court.
imposed by the supreme authority and removable at its
will," and "4. That the Constitution was proclaimed in the
name of the people by Dil ireann as an act of supreme
authority, which it alone had the right to do, because it was
the mouthpiece of the people, requiring and receiving no
Royal assent."
The points in which it seems to me that Mr. Gavan Duffy has
overstated the powers conferred by the Constituent
Assembly upon the Oireachtas are his assertions (a) that
Dil ireann "transmitted that authority," i.e.,"supreme
legislative authority" to the Oireachtas, and (b) that "it gave
the Oireachtas complete amending power for eight years."
An examination of the Constituent Act and of the
Constitution will demonstrate that these statements
exaggerate the powers of the Oireachtas. Assuming that the
legislative authority of the Constituent Assembly was
supreme, it expressly decreed and enacted by the
Constituent Act that "the said Constitution," namely,"the
Constitution set forth in the First Schedule" to the
Constituent Act, "shall be construed with reference to the
Articles of Agreement for a Treaty between Great Britain and

Ireland set forth in the Second Schedule hereto annexed . . .
which are hereby given the force of law, and if any provision
of the said Constitution or of any amendment thereof or of
any law made thereunder is in any respect repugnant to any
of the provisions of the Scheduled Treaty,it shall, to the
extent only of such repugnancy, be absolutely void and
inoperative."
Therefore the supreme legislative authority, speaking as the
mouthpiece of the people, expressly denied to the
Oireachtas the power of enacting any legislation, by way of
amendment of the Constitution or otherwise, which might be
"in any respect repugnant to any of the provisions of the
Scheduled Treaty," and it reiterated this prohibition in Article
50, which empowered the Oireachtas to make "amendments
of this Constitution within the terms of the Scheduled Treaty."
It is further to be observed that this power to make
amendments is limited to "amendments of this
Constitution,"and that the Constituent Assembly did not
confer upon the Oireachtas any power to amend the
Constituent Act itself.
These express limitations, imposed by the mouthpiece of
the people upon the legislative powers of the Oireachtas
which it set up, support the view that the Oireachtas was
intended to have full power of legislation and amendment
outside the prohibited area, and, as there was no prohibition
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Supreme Court.
against amendment of Article 50, I am of opinion that
Amendment No. 10 in 1928, and Amendment No. 16 in 1929,
were within the powers conferred upon the Oireachtas by the
Constituent Act.
In this connection I may add that in my opinion an
amendment of Article 50 by the deletion of the words"within
the terms of the Scheduled Treaty" would be totally

ineffective, as effect is given to those words by the
Constituent Act itself, which the Oireachtas has no power to
amend.
In my opinion the object of Article 50 was to prescribe the
method by which legislative sanction was to be given to
those amendments of the Constitution which the Oireachtas
was empowered to make, and the Oireachtas had full power
during eight years, in the absence of any express prohibition,
to alter, modify or repeal the method prescribed. The
extension of the period of eight years to sixteen was, in the
absence of any such express prohibition, an amendment
within the powers conferred. I can find no sound justification
for the exclusion of Article 50 from the powers of
amendment, which appear to me to exist in respect of every
other Article of the Constitution except those which embody
provisions of the Scheduled Treaty, and in respect even of
those Articles so far as the amendments made to them are
not repugnant to any provision of the Scheduled Treaty.
It is by no means unusual to find in Constitutions, especially
in those of States of recent formation, express restrictions
upon the power of the Legislature to amend them imposed in
respect of particular articles; and, in the case of the Union of
South Africa, sect. 152 of the South Africa Act, 1909, which
enacts that "Parliament may by law repeal or alter any of the
provisions of this Act" (a declaration which appears to me
indistinguishable in substance from "Amendments of this
Constitution may be made by the Oireachtas within a period
of eight years by way of ordinary legislation"), goes on to
declare expressly "that no repeal or alteration of the
provisions contained in this section . . . shall be valid" unless
the Bill embodying such repeal or alteration shall have been
passed in a particular way and by a specified majority.
Our Constituent Assembly could in like manner have
excepted Article 50 from the amending powers conferred
upon the Oireachtas, but it did not do so, and in my opinion
the Court has no jurisdiction to read either into the
Constituent Act or into Article 50 a proviso excepting it, and
it alone, from those powers.
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Supreme Court.
Mr. Overend has endeavoured to support his argument on
this point by analogies from the law of principal and agent,
master and servant, trustee and cestui que trust,and
principal and attorney. "Who," said he, "ever heard of a
power of attorney by which the attorney could extend the
term of his own authority?" Perhaps there has never been
such an instrument, but I do not see any legal objection to
the insertion in a power of attorney, given for a specified
period, of a proviso authorising the attorney, by deed poll
registered and executed in compliance with the law or in any
specified manner, to extend the period of his authority,
provided that such extension was made while the power was
still in force, and did not offend against any statutory
prohibition. The objections that the Oireachtas had no power
to amend Article 50, that Amendment No. 17 was made after
the period of eight years originally fixed by Article 50 had
expired, and that it was not submitted to a Referendum of
the people as provided by Article 50, therefore fail.
The next objection is founded upon the provisions of
Amendment No. 17 itself.
It has been admitted, as I have already stated, that many of
these provisions are directly opposed to the express
enactments contained in many Articles of the Constitution,
for instance, in Articles 43, 64, 65, 68, 69, 70 and 72, all of
which have been abrogated in whole or in part. The most
emphatic of these ale probably Article 43:"The oireachtas
shall have no power to declare acts to be infringements of
the law which were not so at the date of their commission,"
and Article 72:"No person shall be tried on any criminal
charge without a jury save in the case of charges in respect
of minor offences triable by law before a Court of Summary
Jurisdiction and in the case of charges for offences against

military law triable by Court Martial or other Military
Tribunal."
I see no ground for holding that either of these Articles
could not have been amended by the Oireachtas subject to a
Referendum of the people after the period of eight years,
and, if so, it follows that the same amendment, e.g.,the
deletion of the word "no" in Article 43, could be made "by
way of ordinary legislation" within that period, or within
sixteen years, after eight had been altered to sixteen.
The same reasoning which applies to the power of the
Oireachtas to amend Article 50 applies with at least equal
force to amendments of any other Article. Outside the area
covered by the provisions of the Scheduled Treaty,
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FitzGibbon J.
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Supreme Court.
no limit was imposed by the Constituent Assembly upon the
power of the Oireachtas to amend the Constitution.
In many other Constitutions there are Articles, laws or
provisions, which are specifically described as
"Fundamental,"e.g., Sweden, or "Constitutional," e.g.,
Austria, Czechoslovakia and France, in respect of which the
Constitution expressly restricts the power of amendment,
but in the Constitution of the Saorstt there is no such
segregation, and the power of amendment which applies to
any Article appears to me to be equally applicable to all
others, subject, of course, to the restriction in respect of the
Scheduled Treaty. In Article 6 it is declared that "the liberty of
the person is inviolable," but that is not a law of universal
application, for the Article proceeds: "and no person shall be
deprived of his liberty except in accordance with law." The
law may, therefore, make provisions in accordance with
which a person may be deprived of his liberty. It is for the
Legislature to prescribe those provisions, and for the Courts
to enforce them, and even if, under Amendment No. 17, a

person has been deprived of his liberty by the mere caprice
of an Executive Minister (sect. 24, sub-sect. 2, and Appendix,
clause 7), or the unfounded suspicion,"incapable of being
rebutted or questioned by cross-examination, rebutting
evidence, or otherwise," "of any member of the Grda Sochna" (sects. 13 and 29), "or of the Defence Forces of
Saorstt ireann" (sect. 13), such a deprivation would be
"in accordance with law,"and the prisoner would have no
redress.
The particular method of amendment adopted, by enacting
that every Article of the Constitution subsequent to Article 2
shall be subject to the provisions of Amendment 17, and that
the provisions of that Amendment shall prevail whenever
there is any inconsistency between them and any
subsequent Article of the Constitution, is unquestionably
very inconvenient, and throws almost insuperable obstacles
in the way of any citizen or Judge whose duty it is to
ascertain the actual law of the Constitution, but an Act of the
Legislature is not ultra vires or invalid because it is difficult
to construe, and amendments of the Constitution which
might be made clearly and one at a time are not invalidated
because they have been enacted en masse in a manner
calculated to create the utmost uncertainty and
inconvenience. It is our duty to ascertain and declare the law
to the best of our ability, and we are not concerned with
either the wisdom or the propriety of the acts of the
Legislature.
Since the argument I have come across a passage in
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Supreme Court.
an opinion of Chief Justice John Marshall, who was for thirtyfour years Chief Justice of the Supreme Court of the United
States during a period when that Court was engaged in
settling questions of fundamental importance which arose

upon the interpretation of the recently adopted Constitution,
which seems to me to have a bearing upon more than one
aspect of the present case, Providence Bankv. Billings et al.
(1): "The proposition is that a power which is in itself capable
of being exerted to the total destruction of the grant is
inconsistent with the grant; and is therefore impliedly
relinquished by the grantor, though the language of the
instrument contains no allusion to the subject. If this be an
abstract truth, it may, be supposed universal. But it is not
universal, and therefore its truth cannot be admitted, in
these broad terms, in any case. We must look for the
exemption in the language of the instrument, and if we do
not find it there, it would be going very far to insert it by
construction. The power of legislation, and consequently of
taxation, operates on all the persons and property belonging
to the body politic. This is an original principle which has its
foundation in society itself. It is granted by all for the benefit
of all. . . . This vital power may be abused, but the
Constitution of the United States was not intended to furnish
the correction for every abuse of power which may be
committed by the State Governments. The interest, wisdom,
and justice of the representative body, and its relations with
its constituents, furnish the only security, where there is no
express contract, against unjust and excessive taxation,as
well as against unwise legislation generally."
In my opinion the repeals, alterations, and modifications of
the Constitution enacted by Amendment No. 17, so far as
they have been discussed before us upon this appeal, do not
exceed the powers of amendment conferred upon the
Oireachtas by Article 50, as amended in 1928 and 1929;
and, as it has not been suggested that they are in any
respect repugnant to the Scheduled Treaty, I hold that they
are valid amendments of the Constitution.
There is, however, a broader ground upon which Mr. Costello
and Mr. overend have endeavoured to found an argument.
They assert that there are certain rights, inherent in every
individual, which are so sacred that no Legislature has
authority to deprive him of them. It is useless to speculate
upon the origin of a doctrine which may be found in the

writings of Rousseau, Thomas Paine, William Godwin, and
other philosophical writers, but we
[1935]
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Supreme Court.
have not to decide between their theories as those of
Delolme and Burke, not to mention Bentham and Locke,
upon what Leslie Stephen describes as "a problem which has
not yet been solved, nor are even the appropriate methods
definitively agreed upon," as we are concerned, not with the
principles which might or ought to have been adopted by the
framers of our Constitution, but with the powers which have
actually been entrusted by it to the Legislature and
Executive which it set up.
"The Declaration of the Rights of Man and of Citizens"by the
National Assembly of France on October 5th, 1789, that
"liberty, property, security, and resistance of oppression are
the natural and imprescriptible rights of man," cannot be
invoked to overrule the provisions of a statute enacted in
accordance with the provisions of a written Constitution.
When a written Constitution declares that "the liberty of the
person is inviolable," but goes on to provide that"no person
shall be deprived of his liberty except in accordance with
law," then, if a law is passed that a citizen may be
imprisoned indefinitely upon a lettre de cachetsigned by a
Minister or, as we have seen, even by a Minister's clerk: The
State (Quinlan and Others) v. Kavanagh and Others , post p.
249, the citizen may be deprived of his"inviolable" liberty,
but, as the deprivation will have been "in accordance with
law," he will be as devoid of redress as he would have been
under the regime of a French or Neapolitan Bourbon.
Nations and Constituent Assemblies are not agreed as to the
rights and privileges which have been variously described in
different Constitutions as "inalienable,"
"inviolable,""fundamental," "constitutional," or
"guaranteed."For instance, among the "repeated injuries and
usurpations, all having in direct object the establishment of
an absolute Tyranny over these States," which the
signatories of the American Declaration of Independence
published as "Facts submitted to a candid world," in
justification of their rebellion, were the following acts of
George III (Declaration of Independence, July 4th, 1776):"He
has dissolved Representative Houses for opposing with
manly firmness his invasions on the rights of the people,"
"He has made Judges dependent on his Will alone, for the
tenure of their offices, and the amount and payment of their
salaries." "He has erected a multitude of New Offices, and
sent hither swarms of Officers to harass our people and eat
out their substance." "He has affected to render the Military
independent of and superior to the Civil Power." "He has
combined with others to subject
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Supreme Court.
us to a jurisdiction foreign to our Constitution and
unacknowledged by our laws, giving his Assent to their Acts
of pretended Legislation: For quartering large bodies of
armed troops among us; For protecting them by a mock Trial
from punishment for any Murders which they should commit
on the inhabitants of these States; For cutting off our trade
with all parts of the World; For depriving us in many cases of
the benefits of Trial by Jury; For taking away our Charters,
abolishing our most valuable Laws and altering
fundamentally the forms of our Governments . . . A Prince
whose character is thus marked by every act which may
define a Tyrant, is unfit to be the ruler of a free people."
These rights, of which "the People of these Colonies" had
been deprived, were claimed by them, not as inalienable
rights of all mankind, but by virtue of their former status as
British Colonists, but when the American Colonists set to

work to frame a Democratic and Republican Constitution for
themselves they realised the danger of merely substituting
the will of a majority for that of a single individual, probably
because many of the framers of the Constitution of the
United States had suffered from the tyranny of a political or
religious majority. The States of Connecticut, Rhode Island,
and New Hampshire were founded by refugees driven out
from Massachusetts; that of Delaware by refugees from New
York; and that of Pennsylvania by Quakers in search of
freedom; and they were resolved to impose constitutional
restraints upon the power of the majority in the new
Legislature of the Confederation. In their Constitution,
accordingly, they embodied the English, or Anglo-Saxon,
principles of trial by jury, an independent judiciary, habeas
corpus, and other safeguards of liberty derived from Magna
Charta, the English Bill of Rights and the Act of Settlement,
and they imposed severe restrictions upon the power of the
Legislature, and placed almost insuperable obstacles in the
path of amendments to the Constitution. They sought to bind
within the limitations of the Constitution, as framed by them,
not only the Executive but the Legislature itself."An elective
Despotism," said Jefferson, "was not the government for
which we fought." "A group of tyrants would be less
manageable than one." "In questions of power, then, let no
more be heard of confidence in man, but bind him down
from mischief by the chains of the Constitution." To the same
effect is the opinion of the Supreme Court of the United
States, delivered a century later in a case in which the
Legislature of a State had attempted to appropriate private
property under the guise
[1935]
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FitzGibbon J.
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Supreme Court.
of the imposition of a tax: Loan Association v. Topeka
(1):"It must be conceded that there are private rights in

every free government beyond the control of the State. A
Government which recognised no such rights, which held the
lives, the liberty, and the property of its citizens subject at all
times to the absolute disposition and unlimited control of
even the most democratic depository of power, is after all
but a despotism. It is true it is a despotism of the many, of
the majority, if you choose to call it so, but it is none the less
a despotism. It may well be doubted if a man is to hold all
that he is accustomed to call his own, all in which he has
placed his happiness, and the security of which is essential
to that happiness, under the unlimited dominion of others,
whether it is not wiser that this power should be exercised
by one man than by many. The theory of our Governments,
State and National, is opposed to the deposit of unlimited
poweranywhere."
But that is only the Anglo-Saxon, or American, conception of
constitutional liberty. Another view was taken by Rousseau,
who declared that:"Each of us puts his person and all his
power in common under the supreme direction of the
General Will," that is, of the majority, and this appears to
have been adopted by the French Constitution makers. I call
find no justification for the inference which the counsel for
the appellants ask us to draw from the provisions of the
American Declaration of Independence and the Constitution
founded thereon, or from the fact that some of these
provisions have been embodied in other Constitutions,
including our own, that the rights thereby secured are
universal and inalienable rights of all citizens in all countries
or even in the Saorstt, which, we have been assured, was,
or is, or ought to be, Gaelic and Catholic, attributes to either
of which few other States can assert a title, while there is no
other which can even suggest a claim to both. There is no
ground for surprise, therefore, that this State should, as the
Chief Justice has said, "point new ways" in its "pioneer
Constitution draftsmanship," or that it should prefer to
secure liberty and justice to its citizens by the simple
processes of Amendment No. 17 in preference to the
complicated British and American machinery of an
independent judiciary, trial by jury, and habeas corpus.

I cannot presume, either, that rights and privileges which
the inhabitants of England have always enjoyed, either by
virtue of their common law (which was only introduced
[1935]
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into Ireland bit by bit between the last years of the twelfth
century and the beginning of the seventeenth), or under the
provisions of special statutes, are also indigenous to the
citizens of this Gaelic and Catholic State, in the sense in
which the American Colonists claimed them as their
birthright by virtue of their status as British subjectsa
status which I understand to be repudiated by our
legislatorsor that our national conceptions of liberty and
justice must necessarily coincide with those of the citizens of
any other State.
Two extracts from Fathers of American Independence will
suffice to show, if there be any doubt, the source from which
the principles embodied in their Constitution were derived.
"What is the subject of our controversy with the mother
country? It is this: Whether we shall preserve that security in
our lives and properties which the law of nature, the genius
of the British Constitution, and our charters afford us; or
whether we shall resign them into the hands of the British
House of Commons, which is no more privileged to dispose
of them than the Great Mogul?"(Works of Alexander
Hamilton, vol. 2, p. 4.) "No constitution of government has
appeared in the world so admirably adapted to these great
purposes" (liberty and knowledge, civil and religious) "as
that of Great Britain. Every British subject in America is, of
common right, entitled to all the essential privileges of
Britons." (James Otis. Hutchinson's History of Massachusetts
, vol. 3, pp. 101-2.)
Unless, therefore, these rights appear plainly from the
express provisions of our Constitution to be inalienable, and

incapable of being modified or taken away by any legislative
act, I cannot accede to the argument that the Oireachtas
cannot alter, modify, or repeal them. The framers of our
Constitution may have intended "to bind man down from
mischief by the chains of the Constitution," but if they did,
they defeated their object by handing him the key of the
padlock in Article 50.
Other Constitutions, e.g., that of the Kingdom of Serbs,
Croats and Slovenes, and those of the Republics of Austria,
Poland, Esthonia and Czechoslovakia, have esteemed all or
some of these rights and privileges so highly as to declare
them to be "fundamental," or "constitutional,"or
"guaranteed," and the Republic of Mexico has provided in its
Constitution a unique and very remarkable judicial safeguard
for affording immediate redress by the decree of an
Independent Federal Tribunal when any of the fundamental
rights of man secured by its Constitution have been infringed
by any authority whatsoever, and for excusing
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FitzGibbon J.
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Supreme Court.
the obedience of a law or decree which is ultra vires of the
enacting Legislature or Judiciary. The "personal
guarantees"so protected include ten relating to criminal
trials; no arrest except upon a previous charge founded upon
evidence, or in cases flagranti delicto; no search of private
houses except on a warrant issued by a Judge specifying the
place to be searched, the persons to be arrested and the
objects sought; and an express proviso that "No one shall be
tried according to private laws or by special tribunals.
Military Tribunals shall in no case and for no reason extend
their jurisdiction over persons not belonging to the army."
But the fact that the Constitutions of other countries prohibit
such invasions of the rights of liberty and property, and such
extraordinary innovations in the methods of administering

justice in criminal cases as have been introduced into our
Constitution by Amendment No. 17, affords no ground for
condemning as unconstitutional inthis country, or as
contrary to any inalienable rights of an Irish citizen, an
enactment which appears to have received the almost
unanimous support of the Oireachtas, for we have been told
that those of our legislators by whom it was opposed most
vehemently as unconstitutional and oppressive, when it was
first introduced, have since completely changed their
opinions, and now accord it their unqualified approval. It is
true that even a unanimous vote of the Legislature does not
decide the validity of a law, but it is some evidence that
none of those whose duty it is to make the laws see anything
in it which they regard as exceptionally iniquitous, or as
derogating from the standard of civilisation which they deem
adequate for Saorstt ireann . Indeed, it is possible that
our Constituent Assembly may have followed too slavishly
the constitutional models of other nationalities, and that, just
as the constitutional safeguards of Freedom of Speech, Trial
by Jury, Security of Person and Property, with others, were
only introduced into the Constitution of the United States by
way of amendment a year after the original Constitution had
been adopted, so the amendments of our Constitution which
have been enacted during recent years, whereby these and
similar safeguards have been minimised or abrogated, more
truly represent our national ideals. If this be so, we find the
Briton's conceptions of liberty and justice set forth in his
Magna Charta and his Bill of Rights; those of the American in
his Declaration of Independence and his Constitution; while
those of the Gael are enshrined in Amendment No. 17 (which
is to prevail,
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FitzGibbon J.
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Supreme Court.
in case of inconsistency, over everything in the Constitution

except Articles 1 and 2), and subsequent amendments.
However this may be, I can find no justification for a
declaration that there was some "spirit" embodied in our
original Constitution which is so sacrosanct and immutable
that nothing antagonistic to it may be enacted by the
Oireachtas. This Court has no jurisdiction to express an
opinion upon any questions other than the constitutionality
of the amendments before us, and their correct
interpretation, once the Legislature has thought fit to enact
them. Perhaps I may be permitted again to refer to a couple
of American decisions upon similar questions."Courts cannot
nullify an Act of the State Legislature on the vague ground
that they think it opposed to a general latent spirit supposed
to pervade or underlie the Constitution where neither the
terms nor the implications of the instrument disclose any
such restriction": Walker v.Cincinnati (1). "Such a power is
denied to the Courts, because to concede it would be to
make the Courts sovereign over both the Constitution and
the people, and convert the government into a judicial
despotism": Goldenv. Prince (2).
The last contention of Mr. Overend, that every person who
accepted citizenship of the Irish Free State when it was first
established, or at any subsequent date, did so upon the faith
of an undertaking, express or implied, on the part of the
State, embodied in the Constitution, that no alteration of the
Constitution to his detriment would thereafter be made, is so
manifestly untenable upon any ground of law or principle,
that I mention it only to show that it has not been
overlooked.
Equally unfounded is the suggestion that the power of
amendment introduced in Article 50 should be treated by
analogy to a proviso in small print at the end of a fraudulent
prospectus, or to a condition on the back of a railway ticket
handed to an illiterate traveller. Such arguments show the
desperate straits to which the appellants have been reduced.
Article 50 seems to me to occupy its appropriate place, at
the end of the group of clauses which deal with the creation,
composition, and powers of the Legislature, and every
person who became a citizen must be presumed to have

been aware of the existence of Article 50, and to have
accepted citizenship upon the terms therein set forth.
Fortunately it can never again be suggested that the
Saorstt has obtained citizens by false pretences, now that
[1935]
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FitzGibbon J.
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Supreme Court.
the Oireachtas has promulgated urbi et orbi, to the
Czechoslovak and the Mexican, to our kinsmen in the United
States of America and throughout the British Commonwealth
of Nations, and, above all, to our fellow-countrymen in
Northern Ireland, whose co-operation we profess to desire,
as well as to all those who seek, or acquire, or have thrust
upon them, rights under our new Irish Nationality and
Citizenship Act, Amendment No. 17 as an integral part of our
Constitution, setting forth in the clearest language, in the
forefront of that document, the conditions under which
liberty is enjoyed and justice may be administered in "this
other Eden demi-Paradise, this precious stone, set in the
silver sea, this blessed plot, this earth, this realm, this" Saor
Stt.
Murnaghan J. :
The appellants before the Court on this appeal contend that
they are held in unlawful custody, and state that they are
about to be brought to trial before a tribunal which has no
legal authority to try them.
On these grounds they seek to obtain orders of
habeascorpus and of prohibition.
There is no dispute about the facts, and the legal issues in
controversy have, by the arguments, been limited to two
matters, which, however, raise considerations of very grave
moment.
The appellants are held in custody under the provisions of
an Act of the Oireachtas styled "the Constitution

(Amendment No. 17) Act" (No. 37 of 1931), and it is not
disputed in this case that, if this Act has been validly passed
into law, the detention of the appellants is in accordance
with law.
The appellants take their stand on the position that the
Oireachtas, when it passed this Act in 1931, exceeded the
powers given to it by the Constitution, and that it had no
power to make the amendment of the Constitution which it
purported by that Act to make. This Court has neither the
power nor the responsibility of saying whether the
circumstances of the time justified the Oireachtas in
adopting the provisions of the Act in question, but it is the
function and the duty of the Court to determine whether the
Oireachtas in passing this Act had power under the
Constitution to pass the Act which it did pass.
The extreme rigour of the Act in question is such that its
provisions pass far beyond anything having the semblance of
legal procedure, and the judicial mind is staggered at the
very complete departure from legal methods in use
[1935]
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Murnaghan J.
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Supreme Court.
in these Courts. The Oireachtas, which passed this Act in
November, 1931, recognised that the provisions of the Act
contravened many of the Articles of the Constitution, and the
Act itself is professedly declared to be an amendment of the
Constitution. Sect. 2 of the Schedule to this Act, setting up
the Special Powers Tribunal, enacts as follows:"Article 3
and every subsequent Article of this Constitution shall be
read and construed subject to the provisions of this Article,
and in the case of any inconsistency between this Article and
the said Article 3 or any subsequent Article, this Article shall
prevail." As a matter merely of drafting I do not consider
such a method of amending the Constitution an elegant one;
and it is highly inconvenient to be obliged to determine what

the Constitution really is from the study of conflicting
documents. The drafting of the Act in this form was evidently
motived by a desire to secure at all cost that none of the
provisions should be held to be contrary to the Constitution,
but the meaning and intention is quite clear. The Article set
forth in the Schedule to the Act of 1931 is declared to be an
Article of the Constitution, and Article 3 and all subsequent
Articles of the Constitution are declared to be amended in so
far as any provisions of the Constitution are inconsistent with
those of the said Article set out in the Schedule to the Act of
1931.
When the Constitution of Saorstt ireann was adopted
in 1922 it was a question of great importance to what extent
and in what manner this Constitution might be altered. I
think that it is not necessary here to recapitulate the steps
that led to the adoption of the Constitution. It is sufficient to
quote Article 83 of the Constitution itself, which reads:
"The passing and adoption of this Constitution by the
Constituent Assembly and the British Parliament shall be
announced as soon as may be, and not later than the sixth
day of December, Nineteen hundred and twenty-two, by
Proclamation of His Majesty, and this Constitution shall come
into operation on the issue of such Proclamation."
It must, therefore, have been foreseen that difficulty in the
future would be avoided by a clear statement as to how and
to what extent the Constitution might be amended. At all
events we find in the Constitution a special
Article50which deals with the power of amendment,
and which finds its place naturally amongst the powers of
the Oireachtas. Article 50 is as follows:
[1935]
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Murnaghan J.
239
Supreme Court.
"Amendments of this Constitution within the terms of the

Scheduled Treaty may be made by the Oireachtas, but no
such amendment, passed by both Houses of the Oireachtas,
after the expiration of a period of eight years from the date
of the coming into operation of this Constitution, shall
become law, unless the same shall, after it has been passed
or deemed to have been passed by the said two Houses of
the Oireachtas, have been submitted to a Referendum of the
people, and unless a majority of the voters on the register
shall have recorded their votes on such Referendum, and
either the votes of a majority of the voters on the register, or
two-thirds of the votes recorded, shall have been cast in
favour of such amendment. Any such amendment may be
made within the said period of eight years by way of
ordinary legislation and as such shall be subject to the
provisions of Article 47 hereof."
This Article may be summarised as providing that, during
the eight years after the coming into operation of the
Constitution, amendments of the Constitution under the
Article might be made by way of ordinary legislation which
were valid without a Referendum unless specially demanded
by the persons, and in the manner, specified in Article 47,
but that amendments made after that period had in every
case to be approved by a Referendum of the people with the
prescribed majority.
As I have already stated the amendment of the Constitution
with which we are concerned in this case was not made
within the period of eight years from 6th December, 1922,
the date of coming into operation of the Constitution, but
was made in November, 1931, under an amendment of the
Constitution made in July, 1929, inside the eight year period,
which, if valid, amended Article 50 by substituting a period
of sixteen years for the period of eight years mentioned in
the original Article 50. Owing to this amendment so made
the Act of 1931 (Amendment No. 17) was not submitted to a
Referendum.
The appellants on this appeal have put forward two lines of
argument against the validity of the Act setting up the
Special Powers Tribunal. In one line of argument it is said
that the alterations made in the Constitution by the Act of

1931 are outside the scope of the amendments authorised
by Article 50 of the Constitution. In this argument it is sought
to be established that many Articles of the Constitution are
so fundamental as to be incapable of alteration, and that the
true meaning of the word
[1935]
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Murnaghan J.
240
Supreme Court.
"amendment" in Article 50 of the Constitution does not
authorise any change in these fundamental Articles or
doctrines. It has to be admitted that the Constitution itself
does not segregate as fundamental specified Articles or
doctrines, nor does it in terms make any distinction between
the different classes of Articles. At most, certain Articles such
as Article 8, by which freedom of conscience is guaranteed,
and Article 9, by which the right of public meeting is
guaranteed subject to certain safeguards, may be said to
seek to secure what may, in the sphere of ethics and politics,
be regarded as fundamental rights. These Articles are not,
however, those which have been said to have been
weakened; and, in reference to other Articles which are
alleged to be fundamental, the only criteria which the
appellants can suggest is that the Court should undertake
the responsibility of deciding in any set of circumstances
which Articles should be held to be fundamental. Before the
Court should seek to assume such a power it is, in my
opinion, necessary that the Court should find a very stable
foundation for such an exercise of jurisdiction. If we regard
closely the substance of the matter it is plain that, after the
eight years period, proposed amendments of the
Constitution were to be submitted to the people for approval,
and were to become law only if they had been accepted by
the requisite majority of the voters entitled to vote. This
direct consultation of the people's will does indicate that all
matters, however fundamental, might be the subject of

amendment. On the other hand the view contended for by
the appellants must go to this extreme point, viz., that
certain Articles or doctrines of the Constitution are utterly
incapable of alteration at any time, even if demanded by an
absolute majority of the voters.
Much has been said in the argument concerning the nature
and special sanctity of the Constituent Act. A Constituent Act
is an Act which sets up a new Constitution, and, as such,
must be a document of the first importance. But there is no
necessary reason why the members of the Constituent
Assembly should seek to set bounds to the march of the
nation in the future. As a matter of construction of Article 50
I do not see any ground for limiting the meaning of the word
"amendment" as used in that Article in the manner
suggested by the appellants. They seek to construe this
word as being limited to alteration or improvement of details
as distinct from principles. This construction would draw a
line which must necessarily be a very indefinite one and
would lead to difficulties even greater than is caused in some
Continental
[1935]
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Murnaghan J.
241
Supreme Court.
systems by a distinction between partial and general
revision of the Constitution. But in truth lawyers are familiar
with the use of the word "amendment" as applied to the
Legislature. As so used, amendment frequently includes the
repeal of sections or groups of sections of an Act as well as
modification of the underlying principle of the Act itself.
Although the complete abolition of the Constitution without
any substituted provision might not properly be called in law
an "amendment," in my opinion the word "amendment" is
wide enough to allow of the repeal of a number of Articles,
however important in substance they may be. The only
limitation specified in the text of Article 50 itself is that the

amendment of the Constitution must be within the terms of
the Scheduled Treaty. This limitation is emphasized by the
Constituent Act itself, which provides that if any amendment
of the Constitution is in any respect repugnant to any of the
provisions of the Scheduled Treaty it shall to the extent only
of such repugnancy be absolutely void and inoperative. This
conception of the power of amendment as entertained by
the framers of the Constitution does not at all accord with
the limitation now attempted to be put forward. As a matter
of construction I am satisfied that the power of amendment
extends to any limits other than those specified in the Article
and in the Constituent Act, and it is not argued that the Act
of 1931 is in any way inconsistent with the Scheduled Treaty.
I think it right to add that the view which I have expressed is
that stated by O'Connor M.R. in passages relied upon taken
from the unreported cases of R. (Cooney)v. Clinton and R.
(O'Connell) v. Military Governor of Hare Park Camp (1). The
passages in these cases, read by the Attorney-General, state
the opinion of the late Master of the Rolls that any part of the
Constitution might be altered so long as the alteration
should not be contrary to the terms of the Scheduled Treaty. I
can find nothing in Article 50, and I know of no rule of
construction outside this Article, which would justify this
Court in annulling any amendment within the terms of the
Scheduled Treaty passed by the Oireachtas and approved of
by a Referendum supported by an absolute majority of the
voters on the register.
Article V of the Constitution of the United States allows
amendments to that Constitution to be made and although
the same word "amendment" is used in that Article it has not
been shown to have received the limited meaning which the
appellants contend for.
[1935]
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Murnaghan J.
242
Supreme Court.
During the argument a number of cases decided in the
Courts in England have been referred to. I have considered
these cases and while some of them are valuable as
illustrations of general principles of construction yet they do
not require examination as authorities upon the questions
involved in this appeal. I shall refer to the case of AttorneyGeneral for New South Wales v. Trethowan (1)only for the
purpose of remarking that the decision in that case turned
upon the provisions of the Colonial Laws Validity Act, which
have no application to the facts of the case before us.
The Constitution has entrusted to the Court the power and
duty of seeing that the Legislature shall not exceed its
legislative power by passing enactments which are contrary
to the Constitution. But the Constitution has also given a
power to the Legislature, subject in some cases to a
Referendum of the people, to amend the Constitution itself.
In cases where the Legislature professes to amend the
Constitution itself, the only function of the Court is to see
that the proposed amendment is within the scope of the
power granted by the Constitution and that the requisite
forms insisted upon by the Constitution shall have been duly
observed. It has not been disputed that within the period of
eight years mentioned the Oireachtas could have made by
way of ordinary legislation any amendment which might
after the period of eight years be made by the Oireachtas
with the approval of the people consulted directly in a
Referendum. For the reasons which I have stated in detail I
am of opinion that the Amendment No. 17, if made by the
Oireachtas within the specified period of eight years, would
have been within the power of amendment contained in
The second question which has been the subject of
argument is whether the amendment made in 1929,
substituting a period of sixteen years for that of eight years
mentioned in Article 50 during which amendments of the
Constitution might be made by way of ordinary legislation, is
in itself a valid amendment. If the Oireachtas had allowed

the period of eight years to expire without seeking to alter
Article 50 in this respect, amendments of the Constitution
would in every case require approval by a Referendum. In
the Electoral Act of 1923 provision was made for the holding
of a Referendum, and the machinery was available, but the
oireachtas appears to have been disinclined to allow this
method of consulting the people to be put into practical
operation. On 12th July, 1928, the Constitution (Amendment
No. 10) Act was passed,
[1935]
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Murnaghan J.
243
Supreme Court.
deleting from the Constitution Article 47, which provided for
a Referendum on certain conditions in respect of ordinary
legislation, and Article 50 was amended by the deletion of
the words "and as such shall be subject to the provisions of
Article 47 hereof." The result of the Constitution
(Amendment No. 10) Act was that ordinary legislation was no
longer subject to the conditional Referendum nor was any
constitutional amendment, made within the eight years
period, subject to the conditional Referendum either. As
matters thus stood there would, however, have been a
compulsory Referendum in the case of every amendment of
the Constitution made after the expiration of the eight years
period. But, by the Constitution (Amendment No. 16) Act
passed on 14th May, 1929, the Oireachtas, by way of
ordinary legislation within the eight year period, made an
amendment of Article 50 as already mentioned, and
extended the power of amendment by way of ordinary
legislation to a period of sixteen years.
Whether this Constitution (Amendment No. 16) Act was
validly made is the second question which has been argued,
and the question is purely one of juristic construction of
Article 50 of the Constitution. Where the result aimed at by
the framers of Article 50 appears to be that constitutional

amendments made after the eight years period should be
confirmed by a Referendum of the people, it may seem a
strange result that the power to make amendments by way
of ordinary legislation during the specified period should be
capable of being utilised to extend the period itself during
which such amendments might be made by way of ordinary
legislation. It has been forcibly argued that a construction of
Article 50 which enables this to be done would put it in the
power of the Legislature to extend its own power of
constitutional amendment from time to time and thus do
away in practice with the control sought to be achieved
through a Referendum. But the meaning of Article 50 must
be ascertained from the actual words used in the Article. The
words are "Amendments of this Constitution within the terms
of the Scheduled Treaty may be made . . ." which identical
subject-matter is again referred to as "such amendments."
By the Constituent Act the Constitution is defined to be the
Constitution set forth in the First Schedule thereto. This First
Schedule contains 83 Articles, of which Article 50 is one, and
accordingly the words of Article 50 in their natural and
ordinary meaning must allow of the amendment of each and
every Article of the Constitution provided that the
amendment is within the terms of the
[1935]
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Murnaghan J.
244
Supreme Court.
Scheduled Treaty. It must, therefore, be asked upon what
principle of construction the power of amendment so given
should not extend to Article 50 itself? It has been sought on
behalf of the appellants to limit the power of the Oireachtas
during the eight year period by introducing analogies
derived from the law of principal and agent. Reference is
made to the rule of law by which an agent cannot himself
extend the scope of the authority given to him by the
principal and it is said that the Oireachtas is in the position

of an agent towards the people. I agree that if the analogy
could be substantiated it would follow, on similar lines of
reasoning, that a limited agency in the Oireachtas to amend
the Constitution could not be resorted to in order to extend
the limits of the agency. But in legal language the terms of
principal and agent have definite legal meanings, and it is
not in the sense of this meaning that we can speak of the
Oireachtas as the agent of the people. Perhaps a more close
analogy might be suggested in the donee of a power of
revocation and new appointment. In such a case, if the
power is wide enough, the entire settlement can be revoked
and new provisions can be substituted even to the extent of
a new mode of revocation. But in truth neither of these
analogies can safely be applied to the matter before the
Court and the case must depend upon the construction of
The consequences of a decision in favour of the extension of
the period during which amendments of the Constitution
may be made by way of ordinary legislation alone are grave
and far reaching hut it is the duty of the Court upon a point
of construction to arrive at a conclusion irrespective of the
consequences of the decision. I am ready to conjecture that
when Article 50 was framed it was not considered probable
that any such use of the power would be made as has been
made, but the terms in which Article 50 is framed does
authorise the amendment made and there is not in the
Article any express limitation which excludes Article 50 itself
from the power of amendment. I cannot, therefore, find any
ground upon which the suggested limitation can be properly
based. It must also be remembered that in this country the
Referendum was an untried political experiment and it
cannot be assumed that the Referendum should be
incapable of alteration or removal. I feel bound by the words
of Article 50, which allows amendment of the Constitution as
a whole, of which Article 50 is declared to be a part.
[1935]
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Murnaghan J.
245
Supreme Court.
I am, therefore, of opinion that power was given to amend
Article 50 and that consequently the period during which the
Constitution may be amended by way of ordinary legislation
has been validly extended to a period of sixteen years from
the date of coming into operation of the Constitution.
In my opinion the appeal should be dismissed.
I have already made some observations upon the manner in
which the Constitution has been amended by the
Constitution (Amendment No. 17) Act, 1931. The power of
amendment is not a power of temporary suspension and as
the Act of 1931 has been put into operation the Constitution
must, I should imagine, be considered as amended so as not
to be inconsistent with the provisions of the Act of 1931. To
discover what the provisions of the amended Constitution
now are is a matter of no small difficulty; and if the Act of
1931 should in the future cease to remain in force I fear that
grave doubts will arise as to what the Constitution really is. It
is, therefore, highly desirable that amendments of the
Constitution should be made either by way of repeal of
specific Articles or by the substitution of amended Articles
instead of those which it is desired to alter.
Solicitors for the appellants: James F. D'Arcy & Co.
Solicitor for the respondents: Chief State Solicitor.
k. d.
[Note.The following are the judgments delivered by the
Court of Appeal on 23rd May, 1924, in the cases of R.
(Cooney) v. Clinton ; R. (Corcoran) v.Clinton , and R.
(O'Connell) v. Military Governor of Hare Park Camp ,referred
to above. The judgment of the King's Bench Division in the
last mentioned case is reported at [1924] 2 I. R.
104.Rep.]
Cooney's Case
O'Connor M.R. :
This is an appeal from the judgment of the King's Bench
Division refusing the application for a writ of habeas corpus
directed to Captain John Clinton, Military Governor of the
Military Hospital, Curragh Camp, to have before the Court
the body of Sean F. Cooney, who is in his custody.
This prisoner was arrested on the 12th December, 1922,
and when arrested was in possession without authority of a
Lee Enfield rifle and 50 rounds of ammunition. He was
charged with this offence on the 6th April, 1923, before a
Committee of officers of the Irish Free State Army and
[1935]
1 I.R.
Murnaghan J.
246
Supreme Court.
on the 9th of April, 1923, they forwarded a report of their
investigation to the Army Council. That report was received
by the Council on the 9th of April, 1923, and on
consideration thereof the Council sentenced the prisoner to
10 years' penal servitude.
These events happened during a period when a state of war
was in existence.
It is common case that the state of war had come to an end
on the 1st August, 1923, and it was not contended that the
sentence passed by the military authority would have any
binding force after the restoration of peace unless there was
some valid statutory enactment validating what had been
done.
The Irish Free State authority says that there was such an
enactment and relies upon the Indemnity Act, 1923 (No. 31
of 1923).
By sect. 3, sub-sect. 1, of that Act:"Every military court
or committee or tribunal (in this section called a military
tribunal) established since the 27th day of June, 1922, and
before the passing of this Act by the Military Authorities of
the Provisional Government or the Government of Saorstt
ireann for enquiry into the cases of or for the trial of

persons taken prisoner as military captives by the military
forces of the Provisional Government or persons charged
with offences shall be deemed to be and always to have
been a validly established tribunal, and every sentence
passed, judgment given, or order made before the passing of
this Act by any such military tribunal shall be deemed to be
and always to have been valid and to be and always to have
been within the lawful jurisdiction of the tribunal."
This enactment, if valid, affords a complete answer to the
application for the writ, but it was contended by the
applicant (and indeed this was the only argument addressed
to us) that the enactment is invalid on the ground that it is a
violation of the Constitution of the Irish Free State.
Reliance was placed on Articles 6, 70 and 72 of the
Constitution. These Articles declare the inviolability of the
subject except in accordance with law; provide that no one
shall be tried save in due course of law and that
extraordinary courts shall not be established; and that
military courts shall not have jurisdiction over the civil
population save in time of war.
This may raise a grave constitutional question, but I am far
from saying that under the Constitution as it stood at the
date of the passing of the Indemnity Act there was not power
in the Oireachtas to pass such an Act without
[1935]
1 I.R.
Murnaghan J.
247
Supreme Court.
any amendment of the Constitution. It is, however, quite
unnecessary to consider any such question, having regard to
the power conferred on the Oireachtas by Article 50 to
amend the Constitution. This Article says that amendments
of the Constitution within the terms of the Scheduled Treaty
may be made by the Oireachtas. It then says that no such
amendment shall be made after the expiration of eight years
unless it is submitted to a Referendum of the people as

therein provided, and it goes on to say that"any such
amendment may be made within the said period of eight
years by way of ordinary legislation." It is difficult to see
how, during the period of eight years, any Act passed by the
Oireachtas can be impeached as ultra viresso long as it is
within the terms of the Scheduled Treaty.
It was urged that any Act of Parliament purporting to amend
the Constitution should declare that it was so intended, but I
cannot accede to that argument in view of the express
provision that any amendment made within the period may
be made by ordinary legislation.
Neither can I find anything in the Indemnity Act which is
opposed to the terms of the Treaty, which seems to me to
impose no limitation on domestic legislation save that which
is contained in Article 16, which prohibits the endowment of
any religion or the restriction of the free exercise thereof.
For these reasons I am of opinion that the appeal fails. In
coming to this conclusion I am glad to observe that if the
prisoner has any just cause of complaint on account of the
sentence passed on him by the military tribunal he has a
right to appeal to the Board of Commissioners provided for
by sub-sects. 2 and 3 of sect. 3 of the Indemnity Act, which
gives power to the Commissioners to review the sentence
imposed.
Ronan L.J. : I entirely agree.
O'Connor L.J. : I also concur.
O'Connor M.R. : The same reasons apply to the other two
cases, R. (Corcoran) v. Clinton and R. (O'Connell) v.Military
Governor of Hare Park Camp .
O'Connell's Case
O'Connor M.R. :
This is an appeal from the order of the King's Bench Division
(1) refusing an application for a writ of habeas
[1935]
1 I.R.
Murnaghan J.
248
Supreme Court.
corpus directed to the Military Governor of Hare Park
Internment Camp to have before the Court the body of John
Daniel O'Connell who is in his custody.
The prisoner was arrested on the 26th February, 1923, by
military troops of the Irish Free State during a state of war.
He has not been tried or sentenced by any tribunal, but he is
still a prisoner under the order of the Executive Government.
The state of war has determined and undoubtedly there is
no right to detain him in custody under the ordinary law. But
the Executive Government relies upon the right conferred by
the Public Safety (Powers of Arrest and Detention) Temporary
Act, 1924, by the fourth section of which:"Every person
who is now detained in military custody or held as a military
prisoner or captive and has not before the passing of this Act
been sentenced to a term of imprisonment or penal
servitude by any tribunal established by the military
authorities, may be detained in custody under this Act under
an order of an Executive Minister if such Minister if of opinion
that the public safety would be endangered by such person
being set at liberty."
This is no doubt drastic legislation but its meaning is quite
clear and must be observed if it came within the powers of
the Oireachtas.
As in Cooney's Case , the validity of the Act has been
challenged but, for the same reasons as were given in the
judgments just pronounced, we must hold that the Act is
intra vires and binding in this Court.
The only remedy open to the prisoner is that given to him
by sect. 5 which gives him the right to demand an enquiry
by the Appeal Council therein mentioned.
This appeal must be refused.
[1935] I.R. 170
[1966]
1 I.R.
567
THE STATE (at the Prosecution of LEONTIS NICOLAOU) v. , In
the Matter of the Constitution, And in the Matter of the
Courts (Supplemental Provisions) Act,1961, And in the Matter
of the Adoption Act,1952, And in the Matter of an Adoption
Order dated the 13th day of September, 1961, made by An
Bord Uchtla in Respect of Mary Carmel Donnelly an infant
High Court.
17. July 1964
Supreme Court.
24. July 1964
High Court.
15,16, 17 Dec. 1964
25. Jan. 1965
24,30, 31 Mar. 1965
1,2 April 1965
31. May 1965
Supreme Court.
17,18, 22, 23, 24, 25, 29, 30 Nov. 1965
1,2, 6 Dec. 1965
22. July 1966
Constitution - Adoption - Illegitimate child - Natural father
opposed to adoption- Mother arranging adoption - Adoption
order made without natural fatherbeing heard - Validity of
order - Certiorari - Whether Adoption Act, 1952,repugnant to
provisions of the Constitution - Constitution of
Ireland,Articles 40, 41 and 42 - Adoption Act, 1952 (No. 25 of
1952), ss. 14,15 and 16.
The provisions of the Adoption Act, 1952, providing for the
making of an adoption order by the Adoption Board in
relation to an illegitimate child without the natural father
being heard are not contrary or repugnant to the
Constitution.
So held by the Supreme Court ( Dlaigh C.J., Davitt P.,

Lavery, Haugh and Walsh JJ.).
Held further by the Supreme Court that the natural father of
an illegitimate child is not, as such, entitled to be heard prior
to the making of an adoption order by the Adoption Board
under the provisions of the Adoption Act, 1952, and a
provision to that effect is not repugnant to the Constitution.
Certiorari.
The applicant, Leontis Nicolaou, was the natural father of
the child born in London to a woman of Irish parents who
was a citizen of Ireland. The applicant wished to marry the
mother of the child but for various reasons out of his control
and not of his desire he was unable to do so. Most of these
reasons flowed from the mother's unwillingness to marry the
applicant for various reasons. The mother, with the
applicant's consent, took the child to her parents' home in
Ireland and then commenced making arrangements to have
the child adopted. The applicant was at first unaware of this
but when he became aware of it he indicated very strongly
that he was not agreeable to having the child adopted and
that he wished to provide for the child himself. He wished to
have the child with him and was ready and willing to give the
mother a home with himself or else to marry her, whichever
she wished. Notwithstanding the applicant's views on the
matter the mother arranged for the child to be adopted and
an adoption order was made, unknown to the applicant, who,
after some considerable difficulty, obtained information as to
the adoption order. He thereupon applied to the High Court
for a conditional order of certiorari to have the order brought
up and quashed, and his application was heard by
Murnaghan J. on the 15th July, 1964.
[1966]
1 I.R.
The State (Nicolaou) v. An Bord Uchtla
Murnaghan J.
568
High Court
K. M. Kenny, S.C. , D. M. Barrington and J. B. Cassidy for the

applicant.
Cur. adv. vult.
Murnaghan J. :
17 July
This is an application by Leontis Nicolaou for a conditional
order of certiorari to have an alleged order of An Bord
Uchtla brought up for the purpose of being quashed.
One, Kathleen Sheila Donnelly, gave birth to a female infant
on the 23rd February, 1960, at the North Middlesex Hospital,
Edmonton, England. The applicant deposed that he is the
natural father of that infant. The birth of the said infant was
duly registered on the 4th March, 1960, under the names,
Mary Carmel. After the confinement the mother and child
went to the home of the applicant at 19 Durham Road,
Finsbury Park, and later at 97 Rodding Road, Clapton, where
they were cared for and maintained by the applicant until
the 16th June, 1960, on which date the mother and child
came to Ireland. There was apparently talk of marriage
between the applicant and the mother, but the latter, who is
a Catholic, was not prepared to marry the applicant unless
and until he became a practising member of the Catholic
Church. No marriage has as yet taken place. There was also
apparently, prior to June, 1960, a suggestion that the baby
might be adopted, and the question of adoption would
appear to have been discussed between the applicant and
the mother. In his affidavit the applicant deposed, inter alia,
as follows:"Before she left for Ireland I told her that I
considered the child mine and that I proposed to rear it and
that if any suggestion or proposal was made for its adoption
it should be referred immediately to me."
The circumstances leading up to the mother's departure for
Ireland are referred to by her in an affidavit, the material
parts of which are as follows:"I was worried and upset

about the child being illegitimate and I was not satisfied to
continue the position as it was then. I told Mr. Nicolaou that I
wished to go to a Catholic Home and live there and work for
my maintenance and that I wished to take the baby with me.
I told him I was going to such a home in Dublin."
Dealing with this aspect of the matter, the applicant in his
affidavit deposed that "Some months after the birth of the
child, Miss Donnelly proposed that she would go away for a
while . . . I thought at the time that she intended to reside
with the infant in an institution in Ireland."
I find it somewhat difficult to assess this evidence, but I
think it is clear that the mother was not prepared to continue
living with the child in the applicant's house unless as his
wife. I think it is equally clear that her decision to remove
[1966]
1 I.R.
Murnaghan J.
569
High Court
herself and the baby therefrom was for an indefinite period.
Having arrived in Ireland the mother went straight to the
office of the Catholic Protection and Rescue Society of
Ireland, at 30 South Anne Street, Dublin, and was admitted
with the baby to St. Patrick's Home, owned by the said
Society. When residing in the said home the mother
requested the secretary of the Society to try and find a home
for the baby, and on the 23rd September, 1960, she brought
the baby to the Society's offices where she handed her into
the custody of the officers of the Society. The mother then
left St. Patrick's and went to her parents' home in Galway.
The applicant deposed that towards the end of September,
1960, he visited the home of the mother's parents in Ireland.
He does not say that he saw the mother but he deposed that
"as a result of that visit I became apprehensive that
arrangements were being made to have my child adopted."
This is in the circumstances a somewhat laconic statement
and might well have been extended. As a result of his

apprehensions the applicant consulted a solicitor who wrote
on his behalf, on the 7th October, 1960, to the Catholic
Protection and Rescue Society of Ireland and to the secretary
of the Adoption Board, giving notice of intention to take
proceedings to prevent the adoption of the baby taking
place. No such proceedings were taken, and the applicant
somewhat ingenuously deposed in his affidavit that "I heard
no more about the proposed adoption and assumed it had
not taken place."
The mother deposed that "some time early in the year,
1961, I got a communication from the Society with the
necessary adoption papers. The communication offered to
get me a solicitor, but my mother sent me to her solicitor. I
subsequently attended on this solicitor for the purpose of
completing the adoption papers and formalities in relation to
the child and I did so. This was some time in the year 1961."
The mother returned to London in August, 1963, and took
up employment with the applicant in October, 1963. The
applicant deposed that "she then told me and I learned for
the first time that she had signed adoption papers in respect
of our child. I took immediate steps to consult my
solicitor . . . and in November, 1963, I came to Dublin for
consultation with counsel."
The applicant later applied for a conditional order of habeas
corpus which was refused by Mr. Justice Henchy.
Assuming, but not deciding, that this Court can quash an
order of An Bord Uchtla on certiorari, it is clear that the
present application poses a number of questions of farreaching importance.
[1966]
1 I.R.
Murnaghan J.
570
High Court
The procedure of adoption under the Adoption Act, 1952, is
based on secrecy. It is obvious that once an adoption order is

made, the terms of the order should not be communicated to
any person other than the adopting parent, or parents,
except in the most exceptional circumstances, and then only
for grave reason. An Bord Uchtla has declined to give the
applicant any information or to disclose whether an adoption
order has been made in relation to the child. Before I could
grant the conditional order of certiorari sought by the
applicant I would have to be satisfied that an adoption order
was in fact made by An Bord Uchtla in respect of the child,
Mary Carmel. The applicant, in addition to the facts to which
I have already alluded, relies on the fact that in Iris Oifigiuil
for the year 1961, notice is given of the making of adoption
orders in respect of three persons, each bearing the names,
Mary Carmel, but only one of whom was stated to have been
born on the 23rd February, 1960, in England, and in respect
of whom the adoption order was made on the 13th
September, 1961. The applicant has apparently assumed
that the child is now known as Mary Carmel Murphy as he
has entitled these proceedings in that name. There is not
sufficient evidence at the moment before me to allow me to
come to the same conclusion. I will, however, in the
circumstances permit these proceedings to be deemed to
have been made in the name, Mary Carmel Donnelly, if the
applicant so applies. On the evidence before me it is a
reasonable inference that an adoption order was made in
relation to the child in question, probably in the year 1961,
and for the moment I proceed on that basis.
On the assumption that such an order was made, the next
question I have to consider is whether the applicant is
entitled to the order he seeks. This depends on 1, whether
the applicant is the natural father of the child. On the
evidence before me, for the moment and for present
purposes, I am prepared to accept this as having been
established as a reasonable probability. It also depends on 2,
whether it was a necessary preliminary to the jurisdiction of
An Bord Uchtla to make the adoption order, that the
applicant, as father of the child, should be heard on the
application for the adoption order, and, further, should
consent to the making of that order.

The persons who are entitled to be heard on an application
for an adoption order are enumerated in s. 16, sub-s. 1, of
the Adoption Act, 1952 (hereinafter referred to as "the Act"),
as follows:
"(a) the applicants,
(b) the mother of the child,
[1966]
1 I.R.
Murnaghan J.
571
High Court
(c) the guardian of the child,
(d) a person having charge of or control over the child,
(e) a relative of the child,
(f) a representative of a registered adoption society which is
or has been at any time concerned with the child,
(g) a priest or minister of a religion recognised by the
Constitution (or, in the case of any such religion which has
no ministry, an authorised representative of the religion)
where the child or a parent (whether alive or dead) is
claimed to be or to have been of that religion,
(h) an officer of the Board,
(i) any other person whom the Board, in its discretion,
decides to hear."
Unless the applicant was either 1, the applicant for an
adoption order, 2, the guardian of the child, 3, a person
having charge of or control over the child, or 4, a person
whom the Board in its discretion decided to hear, he was not
entitled to be heard. The father is not by definition (see s. 3
of the Act) a relative of an illegitimate child. In this case the
applicant was not the applicant for the adoption order; it is
not suggested that he was the guardian of the child; and the
Board obviously did not decide to hear him. Therefore,
unless he was at the relevant time "a person having charge
of or control over the child" the applicant was not by virtue
of the provisions of s. 16 of the Act entitled to be heard on

the application for the adoption order in this case.
Sect. 14, sub-s. 1, of the Act provides:
"An adoption order shall not be made without the consent of
every person being the child's mother or guardian or having
charge of or control over the child, unless the Board
dispenses with any such consent in accordance with this
section."
It is perhaps worth noting that in ss. 14 and 16 of the Act
respectively the expression "care and control", which is often
used in contradistinction to "custody" in cases relating to
children, has been departed from in favour of "charge of or
control over."
The consent of the applicant to the making of an adoption
order in this case would only be necessary under s. 14 of the
Act if the applicant was at the relevant time "a person
having charge of or control over the child."
It was submitted on behalf of the applicant that it was a
necessary pre-requisite to the jurisdiction of An Bord
Uchtla to make the adoption order, in this case, that on the
application for the adoption order the applicant, as "a person
having
[1966]
1 I.R.
Murnaghan J.
572
High Court
charge of or control over the child", should have been
heard, and in the like capacity that he should have given his
consent before the adoption order was made; and that as
the applicant had not been heard and had not given his
consent the adoption order was made without jurisdiction.
The question therefore is, was the applicant "a person
having charge of or control over the child"? Mr. Kenny
submitted that the applicant had charge of and control over
the child during the period when she was in his house prior
to the 16th June, 1960, and that the departure of the mother
and child to Ireland "on a temporary basis" (I quote Mr.

Kenny's words) should not be deemed to have taken the
child out of the applicant's "care and control" (I again quote
Mr. Kenny). I have difficulty in accepting that the departure
of the mother and child to Ireland was necessarily on a
temporary basis. I have further difficulty in accepting that
while in Ireland the child was in the applicant's "charge."I am
not satisfied that the child was in the control of the applicant
while with the mother in St. Patrick's and it would seem that
the child certainly passed out of the applicant's control when
handed over by the mother on the 23rd September, 1960.
For the foregoing reasons, the applicant has failed to satisfy
me that he was "a person having charge of or control over"
the child, Mary Carmel, within the meaning of either s. 14 or
s. 16 of the Act and consequently he has failed in his
submission that the adoption order was made without
jurisdiction.
Mr. Kenny took as a subsidiary point the submission that if
the applicant was not a person (within the provisions of ss.
14 and 16 of the Act) who had to be heard on an application
for an adoption order and who had to consent to the making
of such order, then the Actand in particular ss. 14 and 16
thereofwas ultra vires the Constitution in so far as no
provision was made that the father of an illegitimate child,
who as such, as he submitted, has rights and obligations in
relation to the child equal to the mother, should be heard on
the application for an adoption order and should consent to
the making thereof. I stopped Mr. Kenny before he developed
this submission because this is a constitutional question
which could be more conveniently decided in a substantive
action, on notice to the necessary parties, including the
Attorney General, and I indicated to Mr. Kenny that I would
not in the circumstances, in the exercise of my discretion,
grant a conditional order of certiorari on this point.
Delay in itself may be a bar to certiorari, depending on the
particular circumstances; see the judgment of Mr. Justice
Murnaghan in The State (Kelly) v. District Justice for Bandon
[1966]
1 I.R.
Murnaghan J.
573
Supreme Court
and Another (1). In this case the child was born on the 23rd
February, 1960, and has not been seen by the applicant
since the 16th June, 1960. The child is now over four years
old and one must assume that she has by now become
attached to her adopted parents and they to her. This is a
situation which the applicant has allowed to develop. It is, I
think, probable that at this point of time the applicant would
not recognise the child if he saw her. He has not in my
opinion satisfactorily explained in the circumstances why he
did not carry out his avowed intention (in the letters of the
7th October, 1960) to move the Court to prevent adoption of
the child taking place, or why he did not move for
certioraribefore now and at any time after the 13th
September, 1961 (the date of the adoption order which he
apparently believes relates to the child), or at least after he
said he learned that the mother had signed adoption papers.
This is the type of case in which in my opinion delay can
disentitle a person to relief by way of certiorari. In this case,
in my opinion there has been undue delay and on the ground
of delay alone, I would refuse this application.
Before making the present application the applicant's legal
advisers had taken steps to have the Registrar of An Bord
Uchtla in Court, on subpoena duces tecum, to produce the
relevant adoption order. Mr. Eoin Ryan, who appeared on
behalf of An Bord Uchtla, stated that the Board did not
wish to state whether an adoption order had been made. He
further stated that it is common to change the name of a
child on adoption and as a consequence the name of a child
appearing in the Adopted Children Register is not necessarily
the name under which the birth of the child was originally
registered.
In view of the opinion I have earlier expressed it is
unnecessary for me to say much on this aspect of the case. I
think I should say that once a case for obtaining a

conditional order of certiorari has been made out, it then
becomes necessary that the Court should be informed by An
Bord Uchtla whether or not an adoption order has in fact
been made. I would think that in most cases it would be
unnecessary to know the terms of the adoption order at that
stage and that it would be unnecessary to produce the order
itself until the final order on certiorari had been made, and
then only if the adoption order is to be quashed.
From the above judgment the applicant appealed to the
Supreme Court (2) and the application was heard on 24th
[1966]
1 I.R.
Dlaigh C.J.
574
Supreme Court
July, 1964, when the judgment of the Supreme Court was
delivered by Dlaigh C.J.
D. M. Barrington and J. B. Cassidy for the appellant.
Dlaigh C.J. :
The Court is of opinion that a prima facie case is made out
for the issue of a conditional order of certiorari to bring up
for the purpose of being quashed the adoption order made
by An Bord Uchtla in respect of Mary Carmel Donnelly, a
natural daughter of the applicant, upon the following
grounds:
(i) that An Bord Uchtla failed to comply with the provisions
of s. 16, sub-s. 1, (d) and (i), of the Adoption Act, 1952;
(ii) that the Adoption Act, 1952, is repugnant to the
Constitution in so far as it purports to deprive the applicant
of the custody, charge and control of his said natural
daughter without notice or at all in violation of the provisions
of Articles 40, 41 and 42.
The Court will direct service of this order on An Bord
Uchtla, and will further direct notice of the applicant's
contention with regard to the unconstitutionality of the
Adoption Act, 1952, to be served on the Attorney General

(through the Chief State Solicitor) pursuant to Order 60 of
the Rules of the Superior Courts.
In the opinion of the Court it is not appropriate at this stage
that notice should be served on the adopting parents of Mary
Carmel Donnelly.
On the 31st July, 1964, the applicant duly served on the
Attorney General a notice pursuant to Order 60 of the Rules
of the Superior Courts, stating how the Adoption Act, 1952,
was alleged to be unconstitutional.
On the 7th September, 1964, the applicant served on the
Chief State Solicitor and on the Registrar of An Bord Uchtla
a notice of motion to make absolute the conditional order of
certiorari granted by the Supreme Court.
On the 1st September, 1964, notice of motion was served
on behalf of the Attorney General and the Registrar of the
Adoption Board, showing cause against the conditional order
upon the following grounds:
"1 The said Leontis Nicolaou is not a person who comes
within the category of persons referred to in s. 14 or in s. 16
of the Adoption Act, 1952;
2 The said Leontis Nicolaou has no legal interest in the child
who is the subject-matter of the said Adoption Order, dated
13th September, 1961, and is not entitled to contest the
validity of the said order or to maintain these proceedings;
[1966]
1 I.R.
Murnaghan J.
575
High Court
3 That an Bord Uchtla acted in accordance with the
powers given to it by the provisions of the Adoption Act,
1952;
4 An Bord Uchtla complied with the requirements of ss. 14
and 16 of the said Act in making the order of which
complaint is made;
5 That the said order of the 13th day of September, 1961,

was one made by An Bord Uchtla under and by virtue of
the statutory powers conferred on it by the said Adoption
Act, 1952, and is a good and valid order;
6 The Adoption Act, 1952, was passed by the Oireachtas
and is in accordance with Articles 40, 41 and 42 of the
Constitution;
7 The provisions of the said Adoption Act, 1952, are not
repugnant to Articles 40, 41 and 42 of the Constitution."
The case was listed for hearing in the High Court (1) on the
15th December, 1964.
D. M. Barrington and J. B. Cassidy for the prosecutor.
Eoin Ryan, S.C. , Sen Butler S.C. and M. A. Feehan for the
Attorney General and the Registrar of the Adoption Board.
The arguments were similar to those in the Supreme Court,
reported post.
Cur. adv. vult.
Murnaghan J. :
31 May
This is an application to have a conditional order
ofcertiorari, granted by the Supreme Court on the 24th July,
1964, made absolute notwithstanding cause shown by the
Attorney General, and by the Registrar of An Bord Uchtla
(hereinafter referred to as "the Board").
It is necessary that I should state in some detail the history
of this matter. The application for a conditional order
originally came before me. It was grounded first on the
submission that the Board, in making an adoption order in
relation to Mary Carmel Donnelly (hereinafter referred to
as"the child") had failed to have regard to the provisions of
the Adoption Act, 1952 (hereinafter referred to as "the Act"),
and in particular to the provisions of ss. 14 and 16 thereof,
and secondly, and in the alternative, on the submission that
the Act was repugnant to the Constitution. In a reserved
judgment, delivered on the 17th July, 1964, I was of the

opinion that the Constitutional question could be more
conveniently resolved in a substantive action, on notice to
the necessary parties, including the Attorney General, and as
I
[1966]
1 I.R.
Murnaghan J.
576
High Court
believed I had a discretion I declined in the exercise of such
discretion to grant a conditional order of certiorari on the
ground of alleged repugnancy to the Constitution; I refused
the application on the remaining grounds because I was not
satisfied on the evidence, and on the inferences that I
considered could fairly be drawn therefrom, that the
prosecutor was entitled to the order, and because in any
event in my judgment he had disentitled himself to the relief
he claimed by delay in bringing his proceedings.
The Supreme Court subsequently granted a conditional
order of certiorari upon the following grounds which were
stated in the judgment of Dlaigh C.J. in delivering the
judgment of that Court:
"(i) that An Bord Uchtla failed to comply with the
provisions of s. 16, sub-s. 1, (d) and (i), of the Adoption Act,
1952;
(ii) that the Adoption Act, 1952, is repugnant to the
of the custody, charge and control of his said natural
daughter without notice or at all in violation of the provisions
of Articles 40, 41 and 42."
The Supreme Court directed service of the conditional order
on the Board, and directed notice, pursuant to Order 60 of
the Rules of the Superior Courts, to be served on the
Attorney General. The Chief Justice in his judgment stated
that, in the opinion of the Supreme Court, it was not
appropriate at that stage that notice should be served on the
adopting parents of the child.

The application for the conditional order was grounded on
the affidavit of the prosecutor, sworn on the 17th April, 1964,
on the affidavit of Kathleen Sheila Donnelly (hereinafter
referred to as "the mother"), sworn on the same day, and on
the affidavit of John P. Redmond, solicitor, sworn on the 6th
May, 1964. Cause was shown by notice, dated the 1st
September, 1964, setting out seven grounds to be relied
upon. By leave of this Court, granted on the 16th December,
1964, two further grounds, set out iu a letter, dated the 8th
December, 1964, to the prosecutor's solicitor, were allowed
to be added to those mentioned in the notice of the 1st
September, 1964.
The hearing of the application proceeded before this Court
on the 15th, 16th and 17th days of December, 1964, when it
was adjourned until the 25th January, 1965. On the latter
date I called Mr. Cassidy's attention to the terms of a letter,
dated the 7th October, 1960, from the prosecutor's solicitor
to the Catholic Protection and Rescue Society of Ireland
[1966]
1 I.R.
Murnaghan J.
577
High Court
(hereinafter referred to as "the Society"), exhibited in the
prosecutor's affidavit, and in particular to the second
paragraph thereof which is in the following terms:
"I understand from a letter which I have received from Miss
Donnelly that this child has been left with your Home with a
view to your arranging for adoption".
I then addressed Mr. Cassidy as follows:
"The Court considers that this letter (the letter from Miss
Donnelly) should be disclosed on affidavit at this stage. As
the application for a conditional order is uberrimae fideithe
Court also considers that any other letters relating to these
proceedings passing between the prosecutor and Miss
Donnelly or between Miss Donnelly and the prosecutor's
solicitor should also be disclosed.

The Court will not proceed with the hearing to-day so as to
give the prosecutor an opportunity of complying with these
indications of the Court's views".
The Court resumed the hearing of the application on the
24th March, 1965, on which occasion Mr. Cassidy, referring
to what had been stated on the 25th January, 1965, said that
the prosecutor had decided to rest his case on the affidavits
already filed. The hearing proceeded on the 30th and 31st
March and on the 1st and 2nd April on that basis.
Mr. Cassidy opened the application to this Court by stating
that it was a step to achieve the object of a natural father, to
wit, the prosecutor, to get the custody of his natural child
who had been given in adoption by the child's natural
mother. Counsel for the Board stated, at the opening, that
the Board admitted that an adoption order had been made in
respect of the child. He did not inform this Court when that
order was made, nor is this Court aware of the terms of the
order.
Mr. Cassidy submitted that the prosecutor was a person who
had charge of and control over the child. As I understood his
argument he did not contend that such charge and control
existed after the 23rd September, 1960, which was the date
on which the child was handed by the mother into the
custody of the Society. He submitted that the prosecutor's
charge of and control over the child existed in the period
from the birth of the child to the 16th June, 1960, during
which period the child was in the prosecutor's home in
England. He also submitted that such charge of and control
over the child continued in the period from the 16th June,
1960, to the 23rd September, 1960, when the child was with
the mother in Ireland, because of the facts, as he contended,
that during this latter period the mother had de facto
possession of the child as the prosecutor's agent and with
his consent,
[1966]
1 I.R.
Murnaghan J.
578
High Court
"sought and obtained on certain conditions" in breach of
which, as Mr. Cassidy alleged, she abandoned the child. Mr.
Cassidy did not specify the alleged conditions.
Mr. Cassidy contended that the prosecutor was a person
entitled to be heard on the application for the adoption order
either under sub-para. (d) or sub-para. (i) of s. 16, sub-s. 1,
of the Act, and that as the Board proceeded to make the
adoption order without hearing the prosecutor the said order
was made without jurisdiction.
He submitted that, by reason of the fact that the prosecutor
had given the Board notice of his interest, (in a letter from
his solicitor, dated the 7th October, 1960), the failure of the
Board to hear the prosecutor on the application for the
adoption order was an improper exercise of the Board's
discretion, and in the circumstances could not have been
bona fide.
At this stage it will be convenient if I set out the text of s.
16, sub-s. 1, of the Act:
"16.(1) The following persons and no other persons shall
be entitled to be heard on an application for an adoption
order
(a) the applicants,
(i) any other person whom the Board, in its discretion,
decides to hear."
The submission that the prosecutor was a person who had

charge of or control over the child, and consequently was a
person entitled to be heard by virtue of sub-para. (d),
depends on the facts. On this application the onus of
establishing the fact that the prosecutor was "a person
having charge of or control over the child" lies on the
prosecutor.
I dealt in some detail in my judgment of the 17th July, 1964,
with the facts as they then appeared to me, and with
[1966]
1 I.R.
Murnaghan J.
579
High Court
the inferences which it seemed to me could fairly be drawn
therefrom. For the sake of brevity and to save me repeating
what I said in that judgment I wish it to be read as part of
this judgment. I pointed out to Mr. Cassidy several times
during the hearing of the present application that though he
was aware of the views I had expressed in the said judgment
of the 17th July, 1964, no application was made to this Court
for leave to file further affidavits stating further facts which
might amplify the facts already on affidavit, and which might
lead me in particular to alter the opinion I had already
expressed. Mr. Cassidy took the point that, as cause had
been shown by notice, it was not open to him to apply to this
Court to file additional affidavits under Order 84, rule 53. I
would have been prepared to entertain such an application if
it had been made in the circumstances of this case, and I so
informed Mr. Cassidy.
Mr. Cassidy submitted that the Supreme Court must be
taken to have decided that the facts deposed to in the
affidavits of the prosecutor, the mother, and the prosecutor's
solicitor, were sufficient to entitle the prosecutor to the relief
claimed, unless the party showing cause could satisfy this
Court that the facts were false, and that as the party
showing cause had not filed any affidavit those facts must be
taken by this Court as having been established. Mr.

Barrington submitted that the Supreme Court must be taken
to have found that all the facts necessary to establish the
prosecutor's case had been proved.
These submissions present a difficulty. It can fairly be said
that, if the Supreme Court accepted the view of the facts
which I had expressed in my earlier judgment, it is difficult to
conceive that the view of that Court was that the prosecutor
was a person who prima facie had charge of or control over
the child. Mr. Cassidy therefore argued that it must be
inferred that the Supreme Court had rejected my view of the
facts, and had come to the conclusion that it had been
established that the prosecutor was a person who in fact had
charge of or control over the child. This argument is in a
sense logical, but I would be very slow to think that, if the
Supreme Court purported to hold that a finding by a judge of
the High Court, particularly when expressed in a considered
judgment, was erroneous, the Supreme Court would leave its
decision to that effect to be inferred. My judgment is not
referred to, nor is any mention made of the facts, in the
judgment of the Supreme Court, delivered by the Chief
Justice, who said:"The Court is of opinion that a prima
facie case is made out for the issue of a conditional order".In
the circumstances I interpret the judgment of the Supreme
[1966]
1 I.R.
Murnaghan J.
580
High Court
Court as intending to go no further than to say that
assuming the facts disclosed on affidavit were accurate, and
further, that the inferences which Mr. Cassidy submitted
should be drawn from those facts were the proper inferences
to draw, this was a proper case in which to grant a
conditional order of certiorari. While I concede that there is
weight in Mr. Cassidy's argument, in the unusual
circumstances of this case, I propose to proceed on the basis
that on this application it is not only open to, but that it is

the function of, this Court to find the facts.
Before turning to a consideration of the facts it is important
first to consider the terms of s. 16, sub-s. 1, with particular
reference to sub-para. (d) thereof. At first sight there is no
difficulty in construction, but on closer examination the
question arises as to the period of time which has to be
considered during which the person concerned is to be
regarded as "having charge of or control over the
child".Obviously a period of time is involved, of at least
sufficient duration, in the circumstances of each case, to
demonstrate either the fact of "charge of" or "control over"
the particular child. Giving the words of the statute their
ordinary and natural meaning it would seem that only a
person who at the relevant time had either "charge of" or
"control over" the child is entitled to be heard. A person who
formerly had either "charge of" or "control over" the child
and who had relinquished such charge or control before the
relevant time would not in my opinion come within the subsection.
Proceedings for an adoption order are commenced by an
application under s. 9 of the Act. By rules made under the
Act (S.I., No. 104 of 1953) the application has to be made on
a prescribed form by the person desiring to adopt a child.
The Board on receipt of an application, has then to satisfy
itself that the child is a child who may be adopted (s. 10);
that the applicant or applicants is or are a person or persons
who may apply for the order (s. 11); that the conditions laid
down in s. 12 as regards religion exist; that the applicant is a
suitable person (s. 13); that the necessary consents have
been obtained or dispensed with (s. 14); and has to set a
date for the hearing of the application, of which under the
Rules, notice has only to be given to "every applicant".The
several persons described in sub-paras. (b), (c) and (d) of s.
16, sub-s. 1, of the Act must consent to the adoption order
being made unless their consent is dispensed with by the
Board under s. 14, sub-s. 2, of the Act. This consent can be
given at any time up to the making of the adoption order,
but not earlier than three months before the application for
[1966]
1 I.R.
Murnaghan J.
581
High Court
adoption, and not before the child has attained the age of
six months, in this case the 23rd August, 1960 (sect. 15, subsect. 1). Clearly the "charge of or control over" the child
must exist at the time of giving consent, otherwise such
consent would be unnecessary; equally it should exist at the
time of the application for adoption to entitle the person
having such "charge of or control over the child" to be heard.
On this basis the prosecutor has to establish that when the
application was made to the Board for an adoption order in
respect of the child he had either "charge of" or "control
over" the child. There is no evidence as to when the
application was actually made in this case. It certainly was
not made before the 16th June, 1960, and the probabilities
are that it was not made for some months thereafter at
least.
The mother deposed:
"While I was in St. Patrick's Home aforesaid I worked for my
keep and I looked after my child. After some months I told
Miss Cassidy that if she could not get a home for the child
soon I would be reluctant to part with the baby because I
was attached to it."
As I interpret the mother's affidavit, she was told about the
23rd September, 1960, that a person willing to adopt the
child had been obtained and that she was to bring the child
to the offices of the Society. She further deposes that some
time early in the year 1961 she "got a communication from
the Society with the necessary adoption papers."This to me
is an obvious reference to the form of consent to adoption
(Form 4) and indicates that by that time the application had
been made to the Board.
The prosecutor deposed that when the mother left his house
with the child he knew they were going to, as he described
it, "an institution in Ireland". The mother deposed that she

told the prosecutor that she "wished to go to a Catholic
home" in Dublin. I am satisfied that at that time the
prosecutor must have known there was at least the
possibility that the mother would, while there, try and have
the child adopted. The mother told the prosecutor that she
proposed to work in the home for her maintenance. As far as
the evidence goes, the prosecutor did nothing to care for, or
to maintain, the child after the 16th June, 1960.
The state of the prosecutor's mind, particularly during the
period from the 16th June, 1960, until the 7th October, 1960,
as to the intentions and actions of the mother in relation to
adoption is a most relevant fact in these proceedings. Any
communication from the mother to the prosecutor, or to his
solicitor, during this period would be important, as bearing
[1966]
1 I.R.
Murnaghan J.
582
High Court
on that fact, and should have been disclosed, if in existence,
on this application. I confess that on the application to me
for the conditional order I overlooked the reference to the
letter which the prosecutor's solicitor, in the letter which he
wrote to the Society on the 7th October, 1960, stated that he
had received from the mother. Mr. Cassidy, in declining to
exhibit this particular letter and the other letters referred to
by this Court on the 25th January, 1965, did not take the
point that there were no such letters in existence; rather did
he leave me under the impression that such letters did exist.
The failure cf the prosecutor to exhibit the letters referred to
by his solicitor in the letter of the 7th October, 1960, and any
other letters and his refusal to disclose their contents, on the
request of this Court, can only be taken as an indication that
the prosecutor had knowledge during the period now under
consideration which would be unfavourable to his application
to this Court.
On the evidence, such as it is, the reasonable probabilities

are, as it seems to me, that the application for an adoption
order was made after the 23rd September, 1960, and when
the child was in the custody of the Society. Mr. Cassidy did
not attempt to suggest that after the 23rd September, 1960,
the prosecutor had either "charge of" or "control over"the
child, but he did submit that, if the prosecutor's "charge of"
and "control" over the child continued during the period
when the child was in Ireland and up to the date when it was
handed over to the Society, the prosecutor was "a person
having charge of or control over the child" at the relevant
period. I do not propose to reiterate what I said in my earlier
judgment, but, for the reasons therein and herein set out,
the prosecutor has failed to satisfy me that he was entitled
to be heard on the application for the adoption order as "a
person having charge of or control over the child".
I now turn to consider Mr. Cassidy's submission that, as the
Board had been given notice of the prosecutor's interest in a
letter from his solicitor, dated the 7th October, 1960, the
prosecutor thereafter was a person whom the Board should
in its discretion have decided to hear on the application for
the adoption order under s. 16, sub-s. 1 (i), of the Act. The
fact that the prosecutor was not heard was relied upon by
Mr. Cassidy as evidence that, in the circumstances, the
decision not to hear the prosecutor was an improper exercise
cf the Board's discretion and could not have been bona
fide.The Board, counsel submitted, must have had the child's
birth certificate before it, from which it would appear that
the prosecutor was named as the father, and that he was
[1966]
1 I.R.
Murnaghan J.
583
High Court
recorded as having signed (along with the mother) as the
informant of the birth. The Board undoubtedly had the letter
of the 7th October, 1960, which stated that the prosecutor
was the father of the child and that he had instructed his
solicitor (the writer) to commence proceedings in the High
Court to prevent any adoption of the child taking place. I
digress here to record that Mr. Cassidy told this Court that
the statement in the letter dated the 8th January, 1964, from
the prosecutor's solicitor to Mr. John C. O'Donnell, Solicitor,
exhibited in the prosecutor's solicitor's affidavit,"We act on
behalf of the above-named parents of the said child Mary
Carmel and we have now been instructed by them to
institute proceedings for recovery of possession of the child",
must have been a slip. He stated that the mother's attitude
was that she was prepared to depose to the facts, but no
more.
The only positive act done by the prosecutor, of which there
is evidence, to stop the child from being adopted took the
form of the two letters written by his solicitor on the 7th
October, 1960, to the secretary of the Board and to the
Society respectively. In both letters there is a reference to s.
16 of the Act and also a statement that proceedings are
about to be commenced to prevent any adoption of the child
taking place (in both letters referred to as "pending
proceedings"). The prosecutor in his affidavit deposed that
"towards the end of September, 1960, I visited the home of
Miss Donnelly's parents in Ireland. As a result of that visit I
became apprehensive that arrangements were being made
to have my child adopted. On the 28th September, 1960, I
consulted a solicitor . . ." Whether the mother was at her
parent's home on the occasion of this visit is not clear. In her
affidavit the mother deposed that ". . . on the 23rd
September, 1960, I brought the child to the Society's offices
at 30 South Anne Street, Dublin, aforesaid and I there
handed her into the custody of the officers of the said
Society . . . When I left St. Patrick's Home I went to my
parents' home and some time early in the year 1961 I got a
communication from the Society with the necessary adoption
papers".
If the mother was not at her parents' home on the occasion
of the prosecutor's visit it is difficult to understand why the
prosecutor deposed that it was "as a result of that visit"that
he became apprehensive. This statement is also difficult to

reconcile with the fact that, as stated in his solicitor's letter
of the 7th October, 1960, to the Society, the solicitor knew,
about this time, that the child had been in fact left with the
Society with a view to the Society arranging for the adoption.
There is a lacuna in the evidence surrounding this very
important time.
[1966]
1 I.R.
Murnaghan J.
584
High Court
If the two letters of the 7th October, 1960, are to be taken
at their face value the prosecutor felt very strongly on the
subject of adoption, but if he did, his subsequent inaction is
difficult to understand because no proceedings were issued
and, in fact, in so far as the evidence goes, no other action
was taken by the prosecutor during the ensuing two years.
By way of purported explanation of this otherwise
inexplicable situation the prosecutor deposed as follows:
"12. Following the said correspondence I knew that Miss
Donnelly continued to be in a depressed and nervous state
and that she was receiving treatment and was admitted to
hospital. I felt very deeply for her and did not wish to upset
her while she was in this condition. I heard no more about
the proposed adoption and assumed it had not taken place
and I was prepared to wait until Miss Donnelly recovered and
came back to me in her own time".
This paragraph of the prosecutor's affidavit would appear to
suggest that in October, 1960, the mother was in a
depressed and nervous state and that this state continued
hospital. The prosecutor does not say how he knew or
became aware of the facts to which he deposes. It is
nowhere stated when the mother first commenced to receive
treatment or when she was in hospital. On the other hand,
the mother deposed that she went to her parents' home

when she left St. Patrick's Home. She does not state when
she left St. Patrick's Home or how long she remained at her
parents' home. It is, however, I think a fair inference that she
was probably living at her parents' home early in 1961 when
she signed the adoption papers.
I am unable to accept the averment that the
prosecutor"assumed it (the adoption) had not taken place".
Where did he think the child was? What did he think was
being done in relation to the child in the twelve months
following his becoming aware that she had ceased to be in
her mother's custody? Or for that matter in the ensuing two
years? There are no answers to these questions.
The prosecutor must be taken to have known in June, 1960,
that the mother was considering having the child adopted
and that she left for Ireland with this in her mind and that it
was at least possible that she would there take steps to that
end. As far as the evidence goes the prosecutor did nothing
until the following September. He does not disclose whether
he was in touch with the mother or not during this interval.
He must further be taken to have known, at least on the 7th
October, 1960, that the child had been left with the Society
with a view to its adoption being arranged. Apart
[1966]
1 I.R.
Murnaghan J.
585
High Court
from having the two letters of the 7th October, 1960,
written by his solicitor he did nothing further until November,
1963.
Strong reliance is placed by Mr. Cassidy on the reply, dated
the 17th October, 1960 from the Registrar of the Board
acknowledging the said letter of the 7th October, 1960, and
continuing:"I am to say that the matter has been
noted".It was submitted that this letter should be read as
saying that the Board would not take any steps without
notice to the prosecutor. This submission in my view fails to

have regard to the fact that the prosecutor's solicitor in the
letter of the 7th October, 1960, having stated that
proceedings were pending, continued in the following
terms:"In the event of your being requested to make
arrangements for the registration of the adoption of this
child I must ask you to take no further steps in the matter
pending the outcome of the said Court proceedings".
Mr. Barrington submitted that the letter of the 7th October,
1960, had invited the Board to check the accuracy of the
particulars stated in the birth certificate of the child. This
submission is indicative of the lengths to which the
prosecutor's counsel were prepared to go to endeavour to
persuade this Court that this letter and the reply thereto
were to be construed as conveying more than is obvious on
the face of each.
It was further submitted by Mr. Cassidy that the reply of the
17th October, 1960, was the reason that proceedings were
not taken. This submission I find it difficult to accept in view
of the fact that the prosecutor does not in his affidavit
depose either that he understood the letter of the 17th
October, 1960, in the sense submitted by his counsel or that
the said letter was what caused him not to take proceedings.
At this stage it is proper to reconsider s. 16, sub-s. 1, of the
Act and, in particular, sub-para. (i) thereof. Is this subsection
to be construed as meaning that, if one of the
persons"entitled to be heard on an application for an
adoption order" is not heard or is not given the opportunity
of being heard, an adoption order made in such
circumstances is bad and can be quashed on certiorari? The
first thing to be noticed is that it would be difficult, if not
impracticable, for the Board to be aware of the identity of all
persons who might qualify under one or other of the
headings set out in sub-paras. (a) to (i) of the sub-section.
For instance the Board would not know, unless the
information was supplied by the mother, who the relatives of
the child were, nor would the Board know of a priest or
minister who might wish to be heard (sub-para. (g)) unless
such priest or minister, if he
[1966]
1 I.R.
Murnaghan J.
586
High Court
happened to know of the proposed adoption, notified the
Board.
I consider that the primary purpose of this sub-section is to
bring within a fairly narrow compass the persons to be heard
by the Board on an application for an adoption order, but at
the same time to give the Board a discretion to hear any
person not specifically described in sub-paras. (a) to (h),
inclusive, whom the Board might decide to hear. I do not
interpret the sub-section as laying it down that, before the
Board can make an adoption order, it must notify every
person who might "be entitled to be heard" in a given case,
and give such persons an opportunity of being heard.
Counsel for the prosecutor did not contend for this
construction.
The prosecutor was not a person entitled to be heard unless
the Board, having considered the matter, should, acting
reasonably and bona fide, have decided as an exercise of its
discretion, that he was a person to hear.
The Court is asked to infer from the facts disclosed that the
Board in its discretion decided not to hear the prosecutor
but, if it did, there is nothing to indicate when that decision
was made. This Court does not in fact know whether the
Board ever considered whether it would hear the prosecutor
or not. It is an equally consistent view of the facts before this
Court that the Board considered that, as the prosecutor did
not ask to be heard, no decision on the Board's part was
necessary.
In this case the prosecutor cannot be heard to say that, on
the 7th October, 1960, he was unaware that steps were
being taken with a view to having the child adopted. His
solicitor was aware of the provisions of s. 16 of the Act and
the prosecutor could easily have given the Board notice that
he wished to be heard on any application for an adoption

order. This he did not do. On the contrary, I regard the letter
of the 7th October, 1960, to the Board, so strongly relied
upon by Mr. Cassidy, as the antithesis of a request to be
heard on the application for the adoption order. In the
circumstances can the prosecutor now complain that he was
not heard? His solicitor purported to put the Board on notice
of "pending proceedings", obviously having in mind the
provisions of s. 16, sub-s. 4, of the Act. The solicitor,
however, described those proceedings as being "to prevent
any adoption of the child taking place" whereas under the
said sub-section only proceedings in regard to the custody of
the child could have the effect of holding up the making of
an adoption order. In any event no proceedings of any sort
were brought and, in the circumstances, I have come to the
conclusion that no blame can be laid at the door of the
Board,
[1966]
1 I.R.
Murnaghan J.
587
High Court
who may well have come to the conclusion that the
prosecutor had changed his mind and was not opposing the
adoption and had in fact withdrawn from the scene. On the
assumption that the adoption order was not made until
September, 1961, it would appear that the Board waited for
nearly twelve months before making an order. I agree that,
with hindsight and with knowledge of the facts that are
before this Court, it could now be considered that the Board
would have been prudent in the circumstances to have
intimated to the prosecutor that he would be heard on the
application for the adoption order if he wished to be heard.
What would have happened if this course had been taken I
can only conjecture, but this can be said, that at this late
date, and with the advice which he must have had, the
prosecutor himself does not in his affidavit depose that he
wished to be heard on the application for the adoption order.

Notwithstanding the terms of the Supreme Court order this
Court allowed Mr. Cassidy to argue that the adoption order
was made without jurisdiction on the ground that the
prosecutor had not consented thereto. This submission
depends on s. 14 of the Act. Under this section the consent
of the prosecutor was unnecessary unless he was a "person .
. . having charge of or control over the child". I have already
indicated that the prosecutor has failed to satisfy me that he
was a person having charge of or control over the child,
particularly on and after the 23rd August, 1960 (when the
child attained the age of six months), and consequently Mr.
Cassidy fails on this branch of his argument.
Mr. Butler submitted that the prosecutor had disentitled
himself to relief by way of certiorari by reason of his delay up
to the month of November, 1963. He pointed to the facts 1,
that, with the consent and active co-operation of the mother,
the child was handed over to the Society on the 23rd
September, 1960, so that it could be adopted; 2, that, very
shortly thereafter, the prosecutor's solicitor was made aware
of this fact by the mother and this knowledge must be
attributed at that time to the prosecutor; 3, that, in the
period between the 16th June, 1960, and the 23rd
September, 1960, the prosecutor must be taken in all the
circumstances to have known that it was at least possible
that the mother would try to have the child adopted; 4, that,
apart from consulting a solicitor who wrote the two letters,
dated the 7th October, 1960, the proceedings therein
referred to were not commenced or any other steps taken by
the prosecutor; and 5, that in the interval the child has
acquired legal rights, has been legitimised, and has
presumably become an integrated member of her adopted
family.
[1966]
1 I.R.
Murnaghan J.
588
High Court
Mr. Barrington, by way of reply to this submission, submitted
that in view of the Board's letter, dated the 17th October,
1960, to the prosecutor's solicitor it is not now open to the
Board to rely on the fact of the prosecutor's delay. This
submission I reject. He next submitted that as I had dealt in
great detail with the question of delay in my earlier
judgment, the Supreme Court by granting the conditional
order of certiorari must be taken to have reversed my
decision on that ground and consequently that it was not
now open to the parties showing cause to rely on the
question of delay in this Court. It can hardly be said that I
dealt in "great detail" with the question of delay, but at the
same time, having indicated the grounds for so deciding, I
arrived at the conclusion that on the ground of delay alone I
should refuse the application for the conditional order.
Nothing that has been urged on this Court has caused me to
alter that conclusion; rather am I more convinced of its
accuracy and, unless I am precluded by the decision of the
Supreme Court, I will adhere to the opinion I originally
expressed.
Like the earlier proposition, based on the Supreme Court
order, that this Court must accept the facts as established,
the present submission is logical and has weight. I would
fully accept it as conclusive if I were satisfied that the
question of delay was fully considered and passed upon by
the Supreme Court. I cannot conceive that this occurred in
view of the fact that the question of delay, which is one that
could not in the circumstances be brushed lightly aside, is
not mentioned in the judgment of the Chief Justice. In the
circumstances, I interpret the judgment of the Supreme
Court as a decision that a conditional order of certiorari
should have been granted in this case by the High Court on
the grounds set out in the judgment of the Chief Justice and
that the question of delay did not arise for consideration on
the application for the conditional order. I therefore feel free
to ahhere to my original view and to hold that, in so far as
the part of this application with which I have dealt up to the
present is concerned, the prosecutor has by reason of his

delay, in all the circumstances, disentitled himself to obtain
relief by way of certiorari. From early in the month of
October, 1960, the prosecutor under the Act had two courses
open to him, namely, to take proceedings to obtain the
custody of the child, in which event, if the Board had notice
of such proceedings, no adoption order could have been
made until such proceedings were disposed of; or, secondly,
to give notice to the Board that he wished to be heard on
any application which might be made for an adoption order.
He did neither and, in effect, stood by and allowed the
adoption order to
[1966]
1 I.R.
Murnaghan J.
589
High Court
be made. It is a circumstance of some importance that when
the prosecutor in his affidavit attempted to explain why he
did nothing for over three years the only reference is to the
mother's state of health; the welfare of the child is not
mentioned. The latter is the first and paramount
consideration by virtue of s. 3 of the Guardianship of Infants
Act, 1964, in proceedings in which the custody of an infant is
in question.
I turn now to consider the submission that the Act is
unconstitutional. Mr. Butler conceded that if the Court
considered that the Act was unconstitutional, he could not in
that event ask this Court to have regard to the question of
delay.
I have had the advantage of reading the judgments about to
be delivered by my brothers, Teevan and Henchy, and as a
result I have been able to deal with this aspect of this
application without going into such detail as I might
otherwise have considered necessary.
This branch of the argument, which was put forward in the
alternative, was conducted on behalf of the prosecutor by
Mr. Barrington. At the outset Mr. Butler intervened to submit

on behalf of the Attorney General that he should not have to
wait until he heard the argument to know on what grounds it
was submitted that the Act was unconstitutional. He stated
that the Attorney General was anxious that a practice should
be established that in a case, such as the present, where
there are no pleadings, a party contending that a statute
was repugnant to the Constitution should furnish to the
Attorney General a written statement of the grounds relied
upon. Mr. Barrington conceded that the request was
reasonable and undertook to furnish such a statement. This
was done in due course by notice, dated the 7th December,
1964. The propositions therein set out were:
"1, The Adoption Act, 1952, violates Article 40 by
discriminating unfairly against the natural father on the
grounds of his sex or paternity;
2, The Adoption Act, 1952, violates Article 40 by treating
illegitimate children unfairly and in a manner different from
legitimate children in that it allows them to be deprived of
the society and support of a willing parent;
3, There is evidence in this case that the Adoption Act,
1952, was administered unequally contrary to the provisions
of Article 40;
4, The Adoption Act, 1952, violates the provisions of Article
42 in that it denies to a natural father his status as a parent
or deprives him of some of his constitutional rights;
[1966]
1 I.R.
Murnaghan J.
590
High Court
5, The Adoption Act, 1952, violates Article 42 in that it
purports to allow the natural mother to surrender a right
which the Constitution declares to be inalienable;
6, The Adoption Act, 1952, takes away one of the
imprescriptible rights of an illegitimate child in that it allows
him or her to be deprived of the society and support of a

willing parent;
7, The Adoption Act, 1952, violates the rights guaranteed to
the family under Article 41 of the Constitution;
8, The Adoption Act, 1952, violates personal rights
guaranteed to (a) the father of the illegitimate child and/or
(b) the said child, by Article 40, sub-article 3, of the
Constitution in that it fails to protect the said rights as best it
may from unjust attack and to vindicate them in the case of
injustice done".
In the course of the argument the Court ruled that Mr.
Barrington was not entitled to advance an argument outside
the terms of the Supreme Court order, and in particular that
he was not entitled to argue that, if the Act itself was not
repugnant to the Constitution, it was administered so
unequally as to violate the prosecutor's rights under Article
40 (proposition number 3).
I do not propose to deal in any great detail with the
argument propounded that the Act was repugnant to Articles
41 and 42 of the Constitution. Mr. Barrington, having stated
that this was not the strongest part of his case, none the less
propounded an elaboratebut, to me, an
unconvincingargument on propositions 4, 5, 6 and 7. This
argument was based on the submission that the prosecutor,
the mother and the child together constituted a family, as
that entity is to be understood in Articles 41 and 42. It is
unnecessary for me to consider all the submissions erected
by way of superstructure on this foundation, which is
fundamentally unsound because the Constitution recognises
only "the family"founded on the institution of marriage. It
guarantees no rights to the prosecutor as a putative father. I
agree with the judgment to be delivered by Mr. Justice
Henchy in so far as it deals with propositions 4, 5, 6 and 7.
Propositions numbered 1, 2 and 8 remain to be considered.
Numbers 2 and 8 give rise to the question whether the
prosecutor is entitled in these proceedings to argue that the
Act or certain provisions thereof are unconstitutional
because, as alleged, they interfere with rights of the child
recognised or guaranteed by Article 40 of the Constitution.
The prosecutor does not represent the child in these

proceedings; in fact it is more than probable that his
interests and those of the child
[1966]
1 I.R.
Murnaghan J.
591
High Court
conflict. I can conceive that the best interests of the child
would demand that it should be argued on her behalf before
this Court that the Act was not repugnant to the Constitution.
On this ground alone I am not prepared in the absence of the
child to entertain the argument advanced by counsel for the
prosecutor that the Act is repugnant to the Constitution
based on an alleged violation of a right of the child. Mr.
Butler submitted that the prosecutor could not be heard to
speak on behalf of the child, first, because, as he submitted,
the order of the Supreme Court only permitted an argument
based on the allegation that the Act "purports to deprive the
applicant of the custody charge and control of his said
natural daughter", and secondly because only the child could
be heard to submit that the Act was unconstitutional on the
ground that it violated her rights. On more than one
occasion, without avail, I called the attention of counsel for
the prosecutor to the fact that the child was not represented
before this Court and to the difficulty that I experienced in
listening to the argument put forward on behalf of the
prosecutor on propositions 2 and 8 as a result. The order of
the Supreme Court would seem to preclude the argument
which Mr. Barrington did, notwithstanding the intimation of
this Court's view, advance on propositions 2 and 8. This
being so, it is unnecessary for me to express a concluded
opinion on Mr. Butler's second point, but I will say that as at
present advised I am not satisfied that it is open to the
prosecutor to attack the Act as being repugnant to the
Constitution on grounds other than on an alleged violation of
his own personal rights.
I therefore pass to a consideration of the argument based

on Article 40, sub-articles 1 and 3. Mr. Barrington at an early
stage in his argument, while submitting that the prosecutor
was a citizen for the purposes of the Articles of the
Constitution dealing with fundamental rights, conceded that
he would have had difficulty in so submitting in relation to
the remaining Articles of the Constitution. He originally
submitted that the word "citizen" was used in a different
sense in the Articles dealing with fundamental rights to that
in which it was used elsewhere in the Constitution. He later
amended this submission by excluding therefrom Article 40,
2, 2. Mr. Barrington advanced no valid reason why the
description "citizen" should be regarded in Article 40and
in particular in sub-articles 1 and 3 thereofas meaning
somebody different from the person so described elsewhere
in the Constitution, and notably in Article 9.
No contra argument to this submission of Mr. Barrington was
afforded to this Court, by reason of the fact that Mr.
[1966]
1 I.R.
Murnaghan J.
592
High Court
Butler, while stating that he did not consider that the
prosecutor was a citizen, said that his instructions were that
he was not to submit to this Court "that the rights of the
prosecutor were any less than the rights of a citizen properly
so called, whatever that may mean", and that such
instructions were given as a matter of policy. He further
stated that he had no instructions to make any submissions
as to the true meaning of the word "citizen" in Article 40. I
make no comment on whether this was a proper attitude for
counsel for the Attorney General to adopt or not. If
represented on this application the child, the mother or the
adopting parents might have wished to controvert Mr.
Barrington's submissions and to present an argument to this
Court. During the argument I called the attention of counsel
for the prosecutor to this fact without avail.

This Court is being asked to declare a statute, or part
thereof, unconstitutional as being repugnant to Article 40 of
the Constitution. One of the matters to be considered by this
Court before it could so declare is whether the prosecutor is
a person entitled to ask this Court so to do; in other words,
what the Court would have to consider is, whether a person
who is not a citizen within the meaning of that word in subarticles 1 and 3 of Article 40, if that be the fact, is entitled in
these proceedings to ask this Court to say that the Act or
parts thereofis repugnant to the Constitution as violating
the said Article. A decision favourable to the prosecutor on
whether the prosecutor is a citizen as submitted by Mr.
Barrington, and if not, whether he has sufficient locus
standi,could well affect the interests of the child, the mother
and the adopting parents. I would not be prepared to express
an opinion on this question adverse to persons who might be
affected by such opinion until each of the persons who might
be so affected had an opportunity of being heard. The
prosecutor has in effect denied them this opportunity. I
appreciate that there were difficulties, arising out of the
necessary secrecy that surrounds an adoption, about giving
notice of these proceedings to the child and the adopting
parents, but no steps whatever were taken by the prosecutor
to endeavour to surmount these difficulties in the light of my
intimation that these persons would prima facie appear to
have an interest and might wish to be heard. I would
therefore on this branch of the prosecutor's case dismiss this
application under Order 84, rule 57, of the Rules of the
Superior Courts. On the remaining grounds, for the reasons I
have given, the prosecutor has failed to satisfy me that he is
entitled to an absolute order of certiorari. I would on those
grounds allow the cause shown and discharge the
conditional order.
[1966]
1 I.R.
Teevan J.
593
High Court
Teevan J. :
I do not propose to examine all the facts and submissions in
this case (that is categorically done by the other members of
the Court) but rather to refer to such as I find necessary and
appropriate to my opinion on some aspects of the case.
The grounds on which the prosecutor has based his case for
an absolute order fall into two main groups. In the order of
their presentation the first of these concerns the adoption
Board's regard, or disregard, for the provisions of the
Adoption Act, 1952, and the principles of justice in relation to
the adoption of the child, Mary Carmel, which is the subject
of the proceedings. The second group, on which more stress
was laid by the prosecutor's counsel and which they rightly
treated as the more serious, questions the constitutionality
of the Adoption Act.
This order of presentation may at first sight appear strange,
for if the Act is unconstitutional it would be pointless to enter
on an enquiry as to whether, in their proceedings, the Board
acted unfairly and unjustly towards the prosecutor, or
contrary to the provisions of the statute. No doubt this order
of presentation derived in the first instance from counsels'
desire, later expressed, to avoid, if possible, the destruction
of the statutory scheme of permanent and binding adoption,
which would be the inevitable result of sustaining their case
against the constitutionality of the Act, desiring, as they
professed, if they could succeed on their other grounds, to
preserve the Act and leave undisturbed all previous
adoptions already made. It was rightly recognised by them
that previous adoptions would become seriously disturbed
should the Act be condemned as unconstitutional to the
extent contended for.
I can deal shortly with the first of these two main groups,
that is to say, the case presented by Mr. Cassidy. It has been
fully dealt with by Mr. Justice Murnaghanand will also be
developed, at greater length than I intend to devote to it, by
Mr. Justice Henchy.

I reject the case that the Board acted in disregard of the
statute in such a manner or to such an extent as to vitiate
their order.
If the prosecutor had charge of or control over the child,
then whether or not he was her natural father, the Board
were empowered to hear him and he was entitled to be
heard, by virtue of sect. 16 sub-s. 1 (d). I am not going to
repeat at length the facts relating to the question whether or
not the prosecutor had, or should in law be deemed to have
had, at any material time charge of or control over the child.
That matter has been fully reasoned by the other members
[1966]
1 I.R.
Teevan J.
594
High Court
of the Court. I will here confine myself to matters which I
think deserve emphasis, even the emphasis of repetition.
The two matters that I desire to emphasise relate to the
position before the mother left London and with her child
entered the Home in Dublin maintained by the Catholic
Rescue and Protection Society (which I will, for brevity, refer
to simply as "the Society") and the attitude of the prosecutor
in regard to charge and control in relation to the child then
and subsequently.
I deduce from the facts given to the Court that even during
the period after the birth when the mother and child resided
in the prosecutor's house, that is, between the time when
she went there with her child and when she departed with
her child for Dublin, the real charge and control rested in and
was exercised by the mother. Legally she was at that time
the only person entitled to custody and at all times, in my
judgment, she had that custody until she handed her child to
the Society for adoption. Her affidavit leaves me in no doubt
that the thing she was most firm about was that unless and
until the prosecutor joined the Roman Catholic Church (and
became her husband) he should have no control of the child.

She was more concerned about the child's welfare and in
particular the religious atmosphere in which she wished the
child to be rearedthan she was about her own future: she
was prepared even to abandon matrimony with the
prosecutor to that end. In her affidavit she says:"I did not
feel happy about leaving the baby in his care fearing she
would not be brought up in the Catholic faith". It is true she
adds, later on, that the prosecutor "agreed to let the child
accompany me". But unless the submission be correct that
he had a right in relation to the child not subordinate to the
mother's right, he had no right to prevent her taking the
child on her own decision. This mere assent to her chosen
course does not of its own force establish control in him.
Even on his counsel's submission he could not obtain
custody from and against the mother. If in law he could not
obtain custody or decide, or have a say in the choice of,
custody I do not see how he could be said to have charge of
the infant. The prosecutor can rest a case for charge of and
control over the infant during the time she was in his house
only by establishing a legally recognised right at least in
common with, if not superior to, that which undoubtedly and
admittedly reposed in the mother. That will be examined
later, but assuming for the moment that such a proposition
is not well founded, in my opinion the prosecutor cannot be
said to have had charge of or control over the infant even
during the period I speak of.
[1966]
1 I.R.
Teevan J.
595
High Court
As from the arrival in Dublin of mother and child it is
unnecessary to elaborate on the facts to show that
thenceforward at all events the mother was in sole charge
and control of the child; it is unnecessary, for it was not
contended that the father thenceforward had factual charge

of the child. What was suggested was that the mother's
charge was that of agent for the prosecutorthe first time,
I venture to think, that any such proposition was ever
advanced in regard to the mother's charge of her illegitimate
child.
I now turn to the other matter, the attitude of the prosecutor
himself in so far as it bears on the question whether he had
in fact any charge or control of the child. At least on the 7th
October, 1960, he knew that proceedings for adoption had
been initiated, or were about to be initiated, as is evidenced
by the letters of that date of his solicitor to the Board and to
the Society. His letter to the Board reads:
I confirm my telephone conversation to-day with your Mr.
Wolfe when I informed him that I acted for Mr. Leon Nicolaou
of 37 Rodding Road Clapton, London E.5, the father of a child
born to Miss Kathleen Donnelly in London on the 23rd
February of this year.
My instructions are to formulate and bring before the High
Court the necessary proceedings herein to prevent any
adoption of the child taking place. In accordance with sect.
16 of the Adoption Act, 1952, I wish to put you on notice of
such pending proceedings. In the event of your being
requested to make arrangements for the registration of the
adoption of this child I must ask you to take no further steps
in the matter pending the outcome of the said Court
proceedings.
I understand from my client that this child was baptised in
London and its birth registered under the name of Mary
Carmel Nicolaou. It is quite possible of course that the child
may have been registered under the name of Donnelly".
A somewhat similar letter was addressed to the Society, in
whose custody, as the prosecutor then well knew, the child
was.
Now, what I think noteworthy is that the prosecutor's
solicitor at that time had his mind actively directed to s. 16;
that he does not assert that his client had charge of or
control over the child; that he makes no claim that his client
should be heard on that, or any other ground; nor does he
show any grounds why in exercise of the Board's discretion

he should be heard in virtue of para. (i) of the section. I
would reject the submission that a person claiming to be the
natural father of an illegitimate child should ipso facto be
heard in virtue of para. (i)or otherwise. The latter
[1966]
1 I.R.
Teevan J.
596
High Court
point, while presently relevant, comes more into Mr.
Barrington's branch of the case and I will have to refer to it
again.
The attitude of the solicitor in his letters is understandable,
for it is similar to that of counsel before us and would be
precisely so, save that they contended that, if not in fact,
then in law the prosecutor should be treated as having had
charge of or control over the child at the material time.
The Act does not either accord or acknowledge rights in
natural fathers of illegitimate children as such. That is clear
and, indeed, contrary to contesting it, counsel for the
Attorney General and the Board asserted it to be so and
made it the basis of his answer showing cause, propounding
it as the legislative intention. Whether in that respect the
statute is repugnant to the Constitution is another matter
falling for decision under the second group of grounds, but
for present purposes two things are clear: firstly that the Act
does not accord or acknowledge any rights deriving from
parenthood in natural fathers of illegitimate children;
secondly, that the prosecutor never approached the Board to
be heard, never submitted any ground on which he might be
heard and never evinced any desire to be heard.
The prosecutor made no further communication with the
Board. He took no step and exhibited not the slightest
activity in the assertion of his supposed rights until the
application for an order of habeas corpus in January, 1964,
which unsuccessfully preceded the application for certiorari
in the present case.

The reference to s. 16 in the solicitor's letter of the 7th
October, 1960, would indicate that the Court proceedings in
mind was, or would be, a claim for custody of the child, for it
would seem the writer had sub-s. 4 in mind. Perhaps the
nature of the proceeding is not of importance but, in any
case, what is important is that the prosecutor then knew that
at that time the custody was in the Society; yet no move was
made to claim custody from the Society. It seems to me that
the prosecutor was, for some reason, which may be
surmised but cannot be ascertained, more concerned with
staying adoption than with obtaining custody.
His attitude at that time and later appears to have been
devoted to the assertion of authority with a coincidental
absence of concern for the immediate condition or welfare of
the child, hardly consistent with feelings of parental
affection. It is a feature of the case which while of more
importance to the submissions under Articles 41 and 42 of
the Constitution, is also of significance in the present
context. It is in conflict, or certainly inconsistent, with the
case made to
[1966]
1 I.R.
Teevan J.
597
High Court
us that the prosecutor should be looked on as having had
charge of or control over the child.
It has not been proved that he was not heard by the Board
because he was the putative father. It is more likely that he
was not heard because he had not the charge of or control
over the child, and it follows from what I have said that the
Board would have been quite correct in so concluding (if they
did so) and quite incorrect to take the prosecutor as having
such charge or control.
I also agree with Mr. Justice Murnaghan that even if the facts
were such as would have supported a case for certiorari,had
it been timely advanced, the prosecutor has disentitled

himself, by his long delay, to an order at this stage. Needless
to say, lapse of time would not be a bar on the constitutional
side of the case, to which I now turn.
The Act was attacked on a much wider front than that
envisaged in the conditional order of the Supreme Court. For
the purpose of dealing with this branch of the case it is
unnecessary to have regard to all the facts, or rather to all
such as the prosecutor and his legal advisers, have seen fit
to present to the Court, for they have been markedly
selective in this respect and have refused to disclose a fact
which the Court considered relevant and material to the
other aspect of the case.
All that is material to this branch of the case is that the
child, whose fate is very much involved in this proceeding,
was born to Kathleen Sheila Donnelly, an unmarried woman,
in London on the 23rd February, 1960: that the prosecutor
acknowledges himself as the father of the child and that she
was handed over by her mother to the Society in Dublin for
the express purpose of giving her in adoption in virtue of the
Adoption Act: that an adoption order was later made by the
Board, constituted under the Act (it may be presumed that
the child has, since adoption, lived with her adoptive parents
and has become accustomed to their family life). There is
one other fact that should be referred to, as will later appear,
but for the moment the foregoing summary will suffice.
Other of the facts disclosed were material to the issue
whether the Board, in their proceedings, observed or
neglected the relevant statutory requirements to jurisdiction
and the principles of natural justice which should inform their
proceedings, but to my mind, having regard to the nature of
Mr. Barrington's submissions, it is unnecessary to be mindful
of any but the foregoing; save perhaps, under one of the
heads of argument resting on the distinction made by
counsel
[1966]
1 I.R.
Teevan J.
598
High Court
between what he termed "willing" parents and those
indifferent to their offspring.
That the Board had knowledge of the prosecutor's claim to
paternity; that the prosecutor was not notified by the Board
of the application for adoption; that he was not heard by the
Board; that he was not invited to state his attitude to
adoption, are facts which, while they might be of
consequence in the other branch of the case, are in no way
essential to the constitutional issue. If Mr. Barrington's
submissions are sound his case would lie even if the Board
had been kept, and had acted in, complete ignorance of the
identity or interest of the child's father.
Mr. Barrington submitted a number of grounds (not all of
which were open to him) which he tabulated to the following
effect:
1, The Adoption Act, 1952, violates Articles 40, 41 and 42 of
the Constitution by discriminating unfairly against the
natural father on the grounds of his sex, or paternity. (As the
argument developed Mr. Barrington was inclined, I think, to
drop the qualification, "on the ground of his sex");
2, The Act violates Article 40 by treating illegitimate children
unfairly and in a manner different from legitimate children in
that it allows them to be deprived of the society and support
of a willing parent;
3, The Act was, in this case, administered unequally,
contrary to the provisions of Article 40;
4, The Act violates the provisions of Article 42 in that it
denies to a natural father his status as a parent, or deprives
him of some of his constitutional rights;
5, The Act violates Article 42 in that it purports to allow the
natural mother to surrender a right which the Constitution
declares to be inalienable;
6, The Act takes away one of the imprescriptible rights of an
illegitimate child in that it allows him, or her, to be deprived
of the society and support of a willing parent;
7, The Act violates the rights guaranteed to the family under
Article 41 of the Constitution;

8, The Act violates personal rights guaranteed to (a) the
father of an illegitimate child, and/or (b) the said child, by
Article 40, 3, in that its fails to protect the said rights as best
it may from unjust attack and to vindicate them in the case
of injustice done.
Of the above grounds, number 3 does not really touch the
issue and may be passed over on this branch of the case. It
was, however, submitted, though not, I think, very
[1966]
1 I.R.
Teevan J.
599
High Court
strenuously contended, that an order of the Board could be
condemned as unconstitutional even if the statute should be
upheld as constitutional.
Before proceeding further with any of these grounds, I wish
to refer to a matter which arose in the course of the hearing,
touching the right of the prosecutor, not being an Irish
citizen, to question the constitutionality of the statute. The
mother of the child is a citizen and in virtue of the mother's
citizenship, or, in any case of her adoption in Ireland, so also
is the child, but the prosecutor is admittedly not a citizen.
The question then arose whether a non-citizen could be
heard to invoke the fundamental rights provision of the
Constitution (other than, of course, Article 40, 4, 2, which
does not arise in this case), particularly against a statute.
The Attorney General did not take the point and his counsel
stated that, in the present case, he would raise no
distinction. For my own part, I would be prepared to proceed
without reference to the matter of non-citizenship when it
has been allowed to pass by the Attorney General.
The Constitution enjoins legal recognition of the
fundamental rights it defines and acknowledges. Those
rights do not owe their existence to the Constitution. While
the Constitution, governing the rights and duties of citizen to
citizen, citizen to State and State to citizen, can guarantee

the preservation, maintenance and enforcement of those
rights and duties only to citizens, I do not think it follows that
we are obliged to deny the constitutional protection of those
natural rights enshrined in the Constitution to every
noncitizen merely on the ground of his non-citizenship, even
to a person who not only lacks citizenship but is also not
resident here (for we have resident non-citizens to whom the
point would be of more practical importance).
There must, of course, be many cases wherein the noncitizen must submit to a position of un-equality with the
citizen, where the law will deny to the non-citizen privileges
and legal remedies enjoyed by the citizen. Where, however,
there is no conflict between the common good and the right
sought to be asserted by a non-citizen, I do not think the
Court should feel obliged willy-nilly to refuse to hear the noncitizen's plaint; that is to say where, if his case be well
founded otherwise, his own personal rights are involved. If
he be not personally aggrieved, then, the matter of
citizenship apart, for the reason to be explained by Mr.
Justice Henchy, such a complainant will be out of Court. For
the like reason this Court refuses to entertain certain of the
grounds specified above, for they concern the rights of
persons other than the prosecutor, that is to say, illegitimate
children and their
[1966]
1 I.R.
Teevan J.
600
High Court
mothers: the prosecutor is not in a position to present any
case even on behalf of the infant.
In my view it is one for discernment according to the
particular circumstance. Circumstances may exist by reason
of which it would be no more than impertinent for a noncitizen to attack the constitutionality of one of our statutes,
or by reason of which it would otherwise be necessary or
prudent to take the point. In the present case the Attorney

General did not consider it necessary, or politic, to do so and
with respect to the opposite opinion I think this should be
accepted and that the issues might be determined without
reference to the prosecutor's non-citizenship.
The case has been presented on the footing that the
prosecutor has suffered within the State a personal injustice
at the hands of a national body. Let the matter be looked at
in the way of a general proposition, leaving out of account
any special controversy peculiar to the facts of this particular
case. A father's natural right (not waived or forfeited by
abandonment or otherwise) to his child is no less, because of
its birth out of wedlock than to a child born in wedlock, and
his duty to the one no less sacred than to the other. Thus
approached it will be seen that if, by the operations of the
Board, or by anyone else within the State, in furtherance of a
correctly interpreted statutory power and complying with
statutory dictates, a man has been permanently deprived of
his child, albeit illegitimate, whom he has taken to him and
cherishes as his child, such a man will indeed have suffered
a cruel injustice. It may be that the injustice, not being of a
kind cognisable by the law, will be irremediable in law but
that will be a substantive issue in any proceedings the victim
may take. Whether he has in fact suffered the injustice
complained of is quite another question.
In the special circumstances of the present case and in view
of the attitude of the Attorney General, representing the
People, I would feel myself free to consider and determine
the issues before the Court even at the suit of a non-citizen,
particularly having in mind the constant and frequent
commutation between Ireland and Great Britain.
This does not mean that I would accept the contention that
the prosecutor is a citizen within the meaning of the
Constitution and I agree with Mr. Justice Murnaghan that
such an interpretation of the Constitution should not be
pronounced in the absence of argument contra by the
Attorney General or of other parties vitally concerned.
It does not directly arise and it is unnecessary for me to
state my own opinion but I think I should say that while I
agree with the opinion to be expressed by Mr. Justice

[1966]
1 I.R.
Teevan J.
601
High Court.
Henchy that the constitutional guarantees extend only to
citizens, I respectfully disagree with his interpretation of subarticle 2 of Article 40 and with the reasoning he derives
therefrom. Sub-article 1 of Article 40, in my opinion, is
complete in itself and does not require the aid of sub-article
2. Of its own force it ensures that the law will be
administered without respect of titles.
Mr. Barrington's numerous and varied submissions may be
reduced to two main alternative theses. The first is that a
right in the natural father deriving purely from parenthood
had already found its place in the law before the enactment
of the Constitution and, not being repugnant thereto, must
therefore be within the safeguard of the Constitution. The
second is that if no such right had received legal
acknowledgment it was a natural right (at least noticed as
such in the later pre-Constitution cases) and as such
comprehended in the fundamental rights provisions of the
Constitution.
As to the first of these theses, the law on the subject has
been collated by Gavan Duffy P. in In re M. an Infant
(1).There it will be found that originally the position was that
neither parent had any legal rights to the person of their
illegitimate child. The subsequent relaxation of the
harshness of the law towards the child is shown to have
been an equitable, as distinct from a legal process."Equity
now prevails, but equity followed the law in regarding the
infant born out of wedlock as nobody's child; thus the
Statute of Uses did not avail a bastard; the defective
execution of a power of appointment was not aided in his
favour; a money legacy to him carried no interest; if a father
put money into his name, the tie of nature did not repel the
resulting trust, unless the parent placed himself in loco

parentis; and in the construction of deeds and wills the
bastard was not generally a child."
When the learned President speaks of rights which the
natural mother had waived in that case, he clearly means
right to custody which in equity was recognised for the
welfare of the child. "Here we have to determine" (he says,
at p. 345) "whether or not in equity we should give any
effect at all to the transfer of the child: a mother cannot
discard her liability to maintain a child born out of wedlock
nor the responsibility for its upbringing; in the eyes of the
law, her rights over the child are given to her, as Stirling L. J.
said in Humphrys v. Polak (2), not for her own gratification or
benefit, but in order to enable her to discharge her duties to
the infant and for its benefit." The final words of the passage
("and an adoption might turn out very badly") cannot
[1966]
1 I.R.
Teevan J.
602
High Court.
be intended to apply to any controlled system of statutory
adoption in view of the introductory words of the same
paragraph. (Having regard to the history of the child's care
and custody in the present case I fear it must be said that
the prosecutor seeks to establish rights for his "own
gratification or benefit").
It may be noted in passing, for its bearing on another
argument, that although treating the child in In re M. an
Infant(1) as having the same "natural and imprescriptible
rights" under Article 42 of the Constitution as a child born in
wedlock, the learned President did not think that the
constitutional guarantee for the family in Article 41 avails
the mother of an illegitimate child.
In re M. an Infant(1) was a custody case and the decisive
factor, while having regard to the natural tie of the mother,
was the welfare of the child. The case before us is not a
claim of custody even though it has been stated as a

preparatory step for the laying of such a claim (which may it
be again remarked could have been made before any
adoption and while the child was in the custody of a
stranger, the Society). We are concerned here with a
question of legal rights.
It seems to me that the law is put at its highest for Mr.
Barrington by O'Connor L.J. in In re Connor(2) and he did not
differ from the majority of the Court in subjecting whatever
right might then have existed in the putative father to that of
the mother of an illegitimate child during the mother's
lifetime. Lord Justice O'Connor examines and explains the
origin and nature of the parental right as recognised by law
and shows that it springs from the natural right of the
parent. He then goes on to show that the parental right in
case of illegitimate children derives also from relationship of
parent to child. The very use of the term
"illegitimate"connotes, to some extent, denial of recognition
by the law, but, as Lord Justice O'Connor says (at p.
412):"It will not do, as I think, to say that the law does
not recognise that relationship, for that is only partially true.
The law does recognise the relationship where relationship is
of the essence of the thing to be considered." Other cases
were cited by Mr. Barrington to show recognition by the
Courts of the natural tie of illegitimate child to parent. I
think, however, that the judgment of O'Connor L.J. and the
cases referred to by him put the point at its highest for Mr.
Barrington's propositions, particularly when he says (at p.
413):"A Court of Common Law applying strict doctrine on
an application for habeas corpus might find some difficulty in
recognising the mother's right" (i.e., the mother of an
illegitimate child).
[1966]
1 I.R.
Teevan J.
603
High Court.
"The head-note to R. v. Hopkins (1) is as follows:'The

Court will grant a habeas corpus to bring up the body of the
bastard child within the age of nurture for the purpose of
restoring it to the custody of the mother, from whose quiet
possession it was taken, at one time by fraud and afterwards
by force; and this without prejudice to the question of
guardianship, which belongs to the Lord Chancellor,
representing the King in Chancery.' But the distinction
between a Court of common law and a Court of equity has,
so far as a living mother at any rate is concerned, ceased to
have any practical importance, and her right to the custody
of the child is now unquestioned'there is in such cases a
sort of blood relationship, which, though not legal, gives the
natural relations a right to the custody of the child' (Jessel
M.R. in R. v. Nash (2))."
Now, if the law in Ireland prior to the Constitution was as
stated by O'Connor L.J. (and it is certainly there put at its
highest for Mr. Barrington), how does he settle the priorities
of the respective rights of the putative father and the
mother? At page 415 he states it thus:". . . it is now
settled, after some fluctuation of opinion, that the mother of
an illegitimate child has a prima facie right to the custody of
the child up to the age of fourteen in preference either to the
reputed father or to any other person: Reg v. Nash (2). This
right is based on the relationship which exists between a
mother and her child, and on the absence of all superior
rights on the part of the reputed father or of anyone else".
Lord Justice Ronan, whose judgment is followed by Gavan
Duffy P. in In re M., an Infant (3) said, at p. 393:"The
applicant's case here is based on the proposition that the
mother of an illegitimate child is to be regarded in law as
having the same rights as the father of a legitimate child.
During the argument I asked if anyone had ever attempted
to argue such a proposition, or if there was any hint or
suggestion of the kind in any case or any text book. Counsel
replied in the negative. We are now asked to lay down this
startling proposition for the first time. I wholly decline to do
so. It is, in my opinion, entirely opposed to the whole history
of the law on the subject".
The authorities are overwhelmingly against the prosecutor's

case that any such right as is claimed was known to the law
prior to the Constitution.
It may be of interest to note that notwithstanding s. 3 of the
English Legitimacy Act, 1959, the Court of Appeal in England
rejected the submission in In re "O" (an Infant)(4)
[1966]
1 I.R.
Teevan J.
604
High Court.
that the natural father had rights in law in regard to his
illegitimate child akin to those of a legitimate father.
It seems to me, therefore, that had the statute purported to
accord to the natural father's rights on an equal plane with
those of the mother, and at some points in his argument Mr.
Barrington would demand rights superior to those of the
mother (for instance, that the father should have the right to
veto adoption, must, I think, follow from some of his
contentions), it would have gone further than the law as it
stood prior to the enactment of the Constitution.
Now if the statute had purported to withhold from any
person having the charge and control of an illegitimate child
the rights accorded to a person in that relationship to the
child in any case where such person was also the natural
father, then I think the statute might well be attacked on
constitutional grounds as enacting an unreasonable and
unfair discrimination. But it seems to me that the provision
contained in s. 16. sub-s. 1 (d), is ample to ensure the rights
of natural fathers in loco parentis.
As it was vital to the prosecutor's case to establish a right of
a much higher order than the equitable right to her child
allowed to the unmarried mother prior to the enactment of
the Constitution, he sought to show the right which he said
pre-existed in the natural father had been elevated by the
Constitution. He attempted by way of an ingenious analogy
to attract support from the decision in the Tilson Case (1).
The analogy was fallacious but as his case for legal rights in
the natural father existing prior to the Constitution falls to
the ground it is unnecessary further to consider this
argument.
As to the submissions claiming the protection of Articles 41
and 42, I agree with the judgment of Mr. Justice Henchy.
I would add this comment on the submissions under the
heading of "family rights": that, if I correctly understood it, it
would lead to some form of legally recognised concubinage.
It would seem to follow that had the mother inIn re M., an
Infant(2) succeeded and had the father, as some of the
evidence suggested had been the intention, set up a home
for her and the child and himself, the father would be the
recognised head of two families. Article 41 would have an
equivalent care and concern for him, his mistress and their
illegitimate offspring and for him, his wife and their
legitimate offspring in his other establishment. Indeed, Mr.
Barrington went so far as to contend that permanent
irrevocable adoption was possible (so far as these Articles
were concerned) only in virtue of sub-article 5 of Article 42
and
[1966]
1 I.R.
Teevan J.; Henchy J.
605
High Court.
that while the objections covered by his grounds 1, 2 and 3
could be overcome by amending legislation, his grounds 5, 6
and 7 could never be met by the Legislature: the
Constitution is an absolute bar.
It remains finally to deal with the submission that, if the
natural father was devoid of legal rights over his illegitimate
child prior to the enactment of the Constitution, he had
natural rights (which is quite true) which are included in
those natural personal rights accorded legal recognition in
the Constitution. This contention can be pronounced on very
shortly. If there was any such intention one would expect it
to be expressed, having regard to the unique nature of the

rights in question and the known attitude of society to the
problem. Were it open to inference it would not have
escaped the searching mind of Gavan Duffy P. in the case of
In re M. an Infant(1). The argument is untenable.
On all grounds I would allow the cause shown and discharge
the conditional order.
Henchy J. :
I am presuming, but only for the purposes of the reasoning
of this judgment, that the adoption order made on the 13th
September, 1961, in respect of an infant with the christian
names of Mary Carmel records the adoption of the infant,
Mary Carmel Donnelly, and that she is the natural child of
the prosecutor and Kathleen Sheila Donnelly.
The prosecutor's case is founded on the submission that the
adoption order made by An Bord Uchtla (which I shall call
"the Board") is a nullity as having been made without
jurisdiction, firstly, because the Board in making the order
failed to comply with certain provisions of the Adoption Act,
1952, and thereby deprived themselves of jurisdiction, and
secondly, because certain provisions of the Act which were
operated for the purposes of making the order are repugnant
to the Constitution.
The first provision of the Adoption Act, 1952, which it is said
was not complied with is s. 14, sub-s. 1. It reads as
follows:
"An adoption order shall not be made without the consent of
dispenses with any such consent in accordance with this
section."
In certain circumstances which do not arise in the present
case, the consent may be dispensed with. I am satisfied that
if the consents required by s. 14, sub-s. 1, were not obtained,
the Board had no jurisdiction to make the adoption order.
The prosecutor says that he was a person "having charge
[1966]
1 I.R.
Henchy J.
606
High Court.
of or control over the child" and that his consent was not
obtained. The Board's reply is that his consent was not
obtained for the reason that he was not a person "having
charge of or control over the child". The net question
therefore is: had the prosecutor "charge of or control over
the child" at the relevant time? The relevant time is
indicated by s. 15, sub-s. 1, which says that the consent shall
not be valid unless it is given after the child has attained the
age of six months and not earlier than three months before
the application for the adoption. The child attained the age
of six months on the 23rd August, 1960, but the Court has
not been told the date of the application for adoption. The
adoption order was made on the 13th September, 1961, so
the broadest range of time within which the obtaining of the
consent required by s. 14, sub-s. 1, could arise would be
between the 23rd August, 1960, and the 13th June, 1961.
Had the prosecutor "charge of or control over the
child"during that period?
Let us consider the facts. The child was with its parents in
London until the 16th June, 1960. On that date the mother
took the child to Dublin. They went to stay in a Home run by
the Catholic Protection and Rescue Society of Ireland. After
some months the mother requested the secretary of the
Society to get a home for the child. The Society found
someone who was willing to adopt the child, and on the 23rd
September, 1960, the mother handed over the child for
adoption. There is no evidence that she ever saw the child
again. She signed the necessary papers early in 1961 and
the adoption order was made on the 13th September, 1961.
From the 16th June, 1960, when the mother and child left
London, to this day the prosecutor does not seem to have
seen the child or to have had the slightest say in regard to it.
He was in another city in another country, and it is doubtful
if at any time during the relevant period he knew where the
child was. The affidavits and correspondence disclosed

merely that about the end of September, 1960, he was told
by the mother that the child had been left with the Catholic
Protection and Rescue Society of Ireland with a view to
adoption. There is no evidence that during the relevant
period he discovered or sought to discover the whereabouts
of the child.
In these circumstances can it be said that the prosecutor
had "charge of or control over the child"? The Court was
referred to many authorities for the purpose of showing that
once the mother handed over the child to be adopted the
prosecutor as the natural father became entitled to the
custody of the child. I do not find it necessary at this stage to
express
[1966]
1 I.R.
Henchy J.
607
High Court.
any opinion as to the correctness or otherwise of this
proposition, for the reason that in my judgment it would be
of no avail to the prosecutor to show that at the relevant
time he was entitled to the custody or to joint custody with
the mother. A person may be entitled to the legal custody of
the child without having charge of or control over it: see
Wakeham v. Wakeham (1). The expressions, "charge
of","control over", "care" and "custody", are used in
reference to children in different statutes. Examples of their
use in varying collocations are to be found in the Children
Act, 1908. They do not lend themselves to easy definition, as
the scope of their meaning depends on the context. Here,
the statute provides that consents to the adoption shall be
obtained from (a) the mother, who would normally be
entitled to the custody; (b) the guardian of the child, who is
defined in s. 3 as "a person appointed, according to law, to
be guardian of his person by deed or will or by order of a
Court of competent jurisdiction"; (c) every person "having
charge of or control over the child". The latter class must

therefore normally connote persons other than those entitled
to the custody. See, by contrast, the references to "custody"
in s. 16, sub-s. 4, and s. 17, and to "care" in s. 19, sub-s. 1.
It would be inadvisable, and perhaps impossible, to define
the class of persons who would come within the category of
persons "having charge of or control over the child". It is
sufficient to say that, in my judgment, before a person can
be held to come within that class it must be shown that a de
facto relationship existed between him and the child so that
it might be said, in the sense in which the words are used in
their ordinary meaning, that he had "charge of or control
over the child".
In the present case, there is no evidence that the prosecutor
exercised any function in respect of the child during the
relevant period. The infant was in another country under the
charge or control of others. In my judgment, it could not be
said that he was a person who had "charge of or control over
the child".
I pass to the second ground on which it is alleged that the
Adoption Act, 1952, was violated so as to deprive the Board
of jurisdiction to make the adoption order. The allegation is
that s. 16, sub-s. 1 (d), and s. 16, sub-s. 1 (i), were not
complied with. Sect. 16, sub-s. 1, reads as follows:
"(1) The following persons and no other persons shall be
entitled to be heard on an application for an adoption
order"
"(a) the applicants,
[1966]
1 I.R.
Henchy J.
608
High Court.

(i) any other persons whom the Board, in its discretion,
decides to hear."
As I have already come to the conclusion that the
prosecutor was not "a person having charge of or control
over the child",it follows that in my judgment he was not
deprived of any rights under s. 16, sub-s. 1 (d). He was not
entitled to be heard as "a person having charge of or control
over the child".
The contention in respect of s. 16, sub-s. 1 (i), is that the
Board wrongfully exercised its discretion in not deciding to
hear him. The sole information the Court has on the matter
is that the prosecutor through his solicitor notified the Board
on the 7th October, 1960, that he objected to any adoption
of the child, but that an adoption order was made on the
13th September, 1961, without his being given an
opportunity of being heard.
I fail to see how the prosecutor could have any rights under
s. 16, sub-s. 1 (i), unless the Board, in the exercise of its
discretion, decided to hear him. The only right he could get
would be a right to be heard. It is agreed that the Board did
not grant him that right. It is suggested that the Board
wrongfully exercised its discretion in not granting him that
right when they knew that he, the father of the child, was
objecting to any adoption. While it might be said that it was
impolitic of the Board not to decide to hear him, I do not
think that s. 16, sub-s. 1 (i), can be read as imposing on the
Board a duty to hear anyone unless and until they decide to
hear him. As I have said, it merely enables the Board to
grant a right of audience to any person, other than the
persons enumerated in s. 16, sub-s. 1, paras. (a) to (h). The

Board simply did not grant that right to the prosecutor, and
was not asked to grant it to him, although he had grounds
for believing that an application for adoption was before the
[1966]
1 I.R.
Henchy J.
609
High Court.
Board. Whether the Board's failure to hear the prosecutor
was due to a deliberate decision to this effect or to the fact
that they may have never considered the question of hearing
him, we do not know. I am satisfied that in the circumstances
he has no legal grounds to complain of the Board's failure to
hear him.
It is conceded by counsel for the Attorney General and the
Board that, if the adoption order in this case was made
pursuant to provisions of the Adoption Act which are
repugnant to the Constitution, the Court would have no
option but to make absolute the conditional order of
certiorari. But it was relied on as a ground for showing cause
that, if the Board deprived itself of jurisdiction by failing to
comply with ss. 14 and 16 of the Act, the Court should not in
its discretion make absolute the conditional order, because
of the length of time which has passed since the making of
the adoption order, and because of delay on the part of the
prosecutor. In case I am wrong in deciding that the Board did
not act without jurisdiction through failure to comply with the
Act, I think it right that I should express my conclusion on
this point.
The child was born on 23rd February, 1960. The prosecutor
has not seen her since the 16th June, 1960. She was adopted
on the 13th September, 1961. She is now a little girl of five
years, presumably growing up in the home of her adoptive
parents, with all the legal and social advantages of a legally
adopted child. The prosecutor, to whom she must now be a
stranger except in blood, seeks to have her adoption
quashed and thereby to have her reduced to the status of

illegitimacy. Before certiorari should issue from this Court to
quash the adoption order it is not sufficient for him merely to
show that the Board acted without jurisdiction in making the
adoption order. The granting or withholding of certiorari in a
case such as this is discretionary. I consider that in the
present case the prosecutor, in order to invoke successfully
the discretion of this Court, should, as well as showing that
the adoption order was made without jurisdiction, also
establish to the satisfaction of the Court (1) that he has
made a full disclosure of all material facts at his disposal, (2)
that he has not been guilty of unreasonable delay in bringing
these proceedings, (3) that he has not by his conduct
acquiesced in the state of affairs brought about by the
adoption order, and (4) that, in all the circumstances of the
case, justice requires that the Court's discretion be exercised
in his favour.
There is ample authority for the proposition that a person
seeking certiorari should bring all material facts to the notice
of the Court. In R. (Bryson) v. Guardians of Lisnaskea
[1966]
1 I.R.
Henchy J.
610
High Court.
Union (1), at p. 276, Sir James Campbell, C.J., speaks of"that
most salutary principle which disentitles an applicant [for
certiorari] to relief if he has been responsible for the
suppression of any material facts which were within his
knowledge, and which it was his clear duty to bring before
the Court". When the prosecutor in the present case swore
an affidavit on the 17th April, 1964, to ground this
application, he must have known that he was carrying the
heavy onus of satisfying a judge of the High Court that the
adoption of his child, whom he had last seen nearly four
years earlier, ought to be quashed. He and his legal advisers
must have realised that it was likely that the case would be
made that he had delayed in bringing the present case and
had acquiesced in the adoption. It was therefore his duty to
set out accurately in his affidavit every fact within his
knowledge which was material to both issues and to any
other issues which might reasonably be expected to be
raised. I turn to his affidavit to see if he has done so.
The affidavit makes clear that before the mother left London
for Ireland with the infant on the 16th June, 1960, the
question of the adoption of the child in Ireland had arisen in
conversation, and he had said to the mother that if any
suggestion or proposal was made for the adoption of the
child, it should be referred immediately to him. The mother's
affidavit shows that when she crossed to Dublin on the 16th
June, 1960, she went with the child to a Home run by the
Catholic Protection and Rescue Society of Ireland. On the
23rd September, 1960, she handed the child over to officers
of the Society for adoption, and then apparently went to her
parents' home in Galway. The story is taken up by the
prosecutor in para. 11 of his affidavit:
"Towards the end of September, 1960, I visited the home of
Miss Donnelly's parents in Ireland. As a result of that visit I
became apprehensive that arrangements were being made
to have my child adopted. On the 28th September, 1960, I
consulted a solicitor who wrote to the Adoption Board and to
the Catholic Protection and Rescue Society of Ireland."
I find these statements evasive, tendentious and
misleading. The prosecutor deliberately avoids saying whom
he met when he visited the home of Miss Donnelly's parents.
He also avoids saying why he visited their home at that
particular time, which was a matter of days after she had
surrendered the child for adoption. One is left with the
suspicion that his visit may have been prompted by a letter
from her saying what she had done or was going to do with
the child. Since
[1966]
1 I.R.
Henchy J.
611
High Court.
it seems likely that Miss Donnelly went to her parents' home
after she surrendered the child for adoption on the 23rd
September, 1960, I suspect that the prosecutor saw her at
her parents' home, and that he has withheld that fact from
the Court. I think it likely that on that visit she told him that
she had given the child away for adoption. I consider that
the prosecutor is deliberately understating the position when
he says:"As a result of that visit I became apprehensive
that arrangements were being made to have my child
adopted". I believe it was not a question of his being
apprehensive that arrangements were being made to have
the child adopted. I believe he knew that such arrangements
were being made. He consulted a Dublin solicitor on the 28th
September, 1960. The solicitor apparently wrote a letter to
Miss Donnelly. The prosecutor has deliberately refrained from
apprising the Court of its contents. Miss Donnelly wrote to
the solicitor in reply. This letter has also been deliberately
withheld from the Court. All we know of it is contained in the
following sentence in a letter written by the prosecutor's
solicitor to the Catholic Protection and Rescue Society of
Ireland on the 7th October, 1960:
"I understand from a letter which I have received from Miss
Donnelly that this child has been left with your Home, with a
view to your arranging for adoption."
At various stages of the hearing of this case the Court
indicated the desirability of making the contents of this letter
available, but counsel for the prosecutor flatly refused to do
so. One can only conclude that the contents of the letter are
damaging to the prosecutor's case. One is tempted to
speculate as to what attitude was adopted or what matters
were disclosed by Miss Donnelly in that letter which the
prosecutor considers to be so harmful to his case that he is
prepared to flout the wish of the Court to see a copy of the
letter. But I refrain from speculating as to the facts in a case
in which I am entitled to every relevant fact within the
knowledge of the prosecutor. I confine myself to pointing out
that, whatever Miss Donnelly may have said in that letter,

the affidavit she has sworn in this case is notable for the
absence from it of any complaint about the adoption, any
desire to see it undone, any present intention to marry the
prosecutor, or any inclination on her part to recover custody
of her child.
On the 7th October, 1960, the prosecutor's solicitor wrote a
letter to the Secretary of the Board in which he said:"My
instructions are to formulate and bring before the High Court
the necessary proceedings herein to prevent any adoption of
the child taking place. In accordance with s. 16 of the
Adoption Act, 1952, I wish to put you on notice of such
[1966]
1 I.R.
Henchy J.
612
High Court.
pending proceedings. In the event of your being requested
to make arrangements for the registration of the adoption of
this child I must ask you to take no further steps in the
matter pending the outcome of the said Court proceedings".
The notice given by that letter was apparently for the
purpose of bringing into effect s. 16, sub-s. 4, of the
Adoption Act, 1952, which says:
"(4). Where the Board has notice of proceedings pending in
any court of justice in regard to the custody of a child in
respect of whom an application is before the Board, the
Board shall make no order in the matter until the
proceedings have been disposed of."
This letter sought to convey to the Board that proceedings
in the High Court on behalf of the prosecutor in regard to the
custody of the child were imminent to the point of being
pending, so that the Board by having notice of such
proceedings would be estopped from making an adoption
order in respect of the child. In fact, such proceedings were
not instituted until the 17th January, 1964over three
years laterand the false impression created, or capable of
being created, by the letter was never corrected.

The reply to the letter was a simple acknowledgment of its
receipt and a statement that the matter had been noted.
Why were the proceedings for the custody of the child which
the prosecutor's solicitor is said to have had on the 7th
October, 1960, not instituted for over three years? The
prosecutor's affidavit gives no satisfactory answer. It merely
says, at para. 12:
"Following the said correspondence I knew that Miss
Donnelly continued to be in a depressed and nervous state
hospital. I felt very deeply for her and did not wish to upset
her while she was in this condition. I heard no more about
the proposed adoption and assumed it had not taken place,
and I was prepared to wait until Miss Donnelly recovered and
came back to me in her own time."
If the reason for not issuing proceedings was because he did
not wish to upset Miss Donnelly, he might have instructed
his solicitor to write to the Board to say so, and to ascertain
if the Board would postpone the question of making an
adoption order until he could issue proceedings.
The affidavit says that he heard no more about the
proposed adoption order and assumed it had not taken
place. In my view, that was an unwarranted assumption.
When the letter was written he knew that his child had been
left for adoption by Miss Donnelly with the Catholic
Protection and Rescue Society of Ireland, as appears from a
letter written on the
[1966]
1 I.R.
Henchy J.
613
High Court.
same day to that Society. The threatened proceedings for
the custody of the childpresumably habeas corpus
proceedings would have to be served on the Rescue
Society. He should have known, legally advised by a solicitor
as he was, that if the Board made the appropriate inquiries

in the Central Office of the High Court or with the Rescue
Society, the "pending proceedings" referred to in his letter of
the 7th October, 1960, to the Board would be shown to be
non-existent, and that there would then be no bar under s.
16, sub-s. 4, to the making of an adoption order.
The affidavit further states that he was prepared to wait
until Miss Donnelly recovered and came back to him in her
own time. I find this an extraordinary attitude to have
adopted towards the child whose custody he is now so
anxious to recover. He knew the child had been abandoned
to a rescue society for adoption. If, as he states, he thought
an adoption order would not take place, he must have
believed that the child was in a home run by the Rescue
Society or in some such place. Yet he was prepared
indefinitely to ignore the childits health, its education, its
religious upbringing, its welfareuntil the mother should
choose in her own time to return to him. Three years elapsed
before she returned to him. During that time the prosecutor
does not seem to have shown any interest in the child, which
is all the more surprising when he now relies on the mother's
nervous ill-health during that time. Had he shown the
slightest paternal interest, even to the extent of trying to
find out where the child was, this Court would not now be
confronted with an application to quash the adoption of the
child whom he last saw over five years ago. Even if the
Board acted without jurisdiction, I would hold that the
prosecutor by his conduct in this respect has disentitled
himself to the relief of certiorari.
There is a further reason why I think the conditional order
should not be made absolute, even if the Board acted
without jurisdiction in making the adoption order. It was
stated by counsel for the prosecutor that the present
proceedings are the first step towards the recovery by the
prosecutor of the custody of the child. I gather that if the
prosecutor did not think that the quashing of the adoption
order would lead to his obtaining custody of the child, he
would never have instituted these proceedings. I accordingly
consider it to be a central point in deciding whether I should
exercise my discretion in his favour that I should see if the

quashing of the adoption order would be reasonably likely to
lead to that result.
After the child was born on the 23rd February, 1960, Miss
[1966]
1 I.R.
Henchy J.
614
High Court.
Donnelly went to live with the prosecutor in London until she
took the child to Dublin on the 16th June, 1960. In para. 3 of
her affidavit she says:"Mr. Nicolaou is a member of the
Greek Orthodox Church and I was not prepared to marry him
unless and until he became a practising member of the
Roman Catholic Church".
She returned to his employment in October, 1963, the child
having been adopted on the 13th September, 1961. She
agreed to marry him in a Registry Office in London in
October, 1963, but did not go through with the ceremony, as
she says that she had an emotional upset. The position
seems to be that since before the baby was born she has not
been prepared to marry the prosecutor unless he became a
practising member of the Roman Catholic Church. He has
had over five years to meet that condition, and has not done
so. In his affidavit, sworn on the 17th April, 1964, he says, at
para. 16:"As stated I am prepared to marry Miss Donnelly
at any time and I am satisfied that our marriage will take
place in the near future. I have been and still am taking
instructions in the Roman Catholic Faith and expect to be
received into the Church upon completion of my instruction."
It is accordingly over a year since he commenced taking
instructions in the Roman Catholic Faith. When he swore the
affidavit in April, 1964, he said he expected that the
marriage would take place "in the near future". A year has
elapsed, and it does not appear that he has been received
into the Roman Catholic Church or that the marriage has
taken place.
I have grave doubts as to whether this marriage will ever

take place. If there was a real likelihood of its taking place, I
would expect Miss Donnelly to state in her affidavit as a
factand we are told that her affidavit was made solely for
the purpose of stating the factsthat she has a present
intention, conditional or otherwise, of marrying the
prosecutor. As I have already stated, her affidavit is
noteworthy for the absence of such a statement, or of any
expression of a wish or intention that the custody of the child
should pass to the prosecutor and herself as husband and
wife. In all the circumstances, I am not satisfied that there is
a reasonable likelihood that the marriage will take place.
If the marriage does not take place, what will the position be
if the adoption order is quashed? The prosecutor would have
to bring proceedings to obtain the custody of the child as
against the persons who are now the adoptive parents. I am
not to be taken as saying anything that would attempt to
pre-judge such proceedings, if they ever take place, as they
would have to be decided on the facts presented to the
Court
[1966]
1 I.R.
Henchy J.
615
High Court.
dealing with the matter. But as things now stand, and
having regard to the provisions of the Guardianship of
Infants Act, 1964, I am not satisfied that the prosecutor
would be awarded custody of the child. If, therefore, the
adoption order were quashed by this Court, the child might
be made the centre of pointless, damaging and expensive
litigation.
Having regard to all the circumstances, I am of opinion that,
even if I were satisfied that the Board, by non-compliance
with the provisions of the Adoption Act, 1952, had deprived
itself of jurisdiction to make the adoption order, the
prosecutor has not discharged the onus of satisfying me that
I should exercise my discretion in his favour by making the

conditional order absolute.
I turn to the portion of the prosecutor's case in which he
contends that the adoption order should be quashed on the
ground that it was made in pursuance of certain provisions
of the Adoption Act, 1952, which he maintains are
unconstitutional.
Mr. Barrington, who argued this part of the prosecutor's
case, prefaced his argument by making clear that it was no
part of his case to suggest that a system of legal adoption is
inherently unconstitutional. He began by limiting his
argument to saying that the particular method of adoption
provided for by the Adoption Act, 1952, in certain respects
trenched upon certain constitutional rights which, he alleges,
his client is entitled to the protection of. These rights are
contained in Articles 40, 41, and 42 of the Constitution. He
firstly relies on Article 40, 1, and Article 40, 3, 1. The text is
as follows:
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."
personal rights of the citizen."
It will be observed that these constitutional rights and
guarantees are given to citizens. But it is agreed that the
prosecutor is not an Irish citizen; he is a British subject.
Faced with this apparent impediment to the prosecutor's
claim to the benefit of rights and guarantees given only to
citizens, his counsel seeks to circumvent this seeming
exclusion from the ambit of the constitutional provisions I
have quoted by relying on two submissions. First, he says
that the word"citizen" or "citizens" in these provisions should
be read
[1966]
1 I.R.

Henchy J.
616
High Court.
as being equivalent to "person" or "persons", thereby
including the prosecutor. Second, he says that the impugned
provisions of the Adoption Act, 1952, are an unconstitutional
violation of the rights and guarantees vested in citizens by
these parts of Article 40, and that the prosecutor, although
not a citizen, is entitled to rely on such unconstitutionality.
As for the first of these submissions, it is important to
remember that Articles 40, 41, 42, 43 and 44 are
headed,"Fundamental Rights". Article 40 is sub-headed,
"Personal Rights", Article 41, "The Family", Article 42,
"Education",Article 43, "Private Property", and Article 44,
"Religion".When one reads through these five Articles one
sees that certain of the fundamental rights laid down are
stated in terms of the citizen and others in terms which are
not restricted by the test of citizenship. This is
understandable, and, in some cases, necessary, when one
considers the nature and scope of the rights protected by
these Articles.
It is not, therefore, possible to say that the words
"citizens"or "citizen" are equivalent to "persons" or
"person"throughout these Articles. Indeed, I do not
understand counsel for the prosecutor so to argue. In fact,
he admits that it is not possible to equate "citizen" with
"person" even throughout Article 40 itself; for example,
Article 40, 2, is in the following terms:
"1. Titles of nobility shall not be conferred by the State.
2. No title of nobility or of honour may be accepted by any
citizen except with the prior approval of the Government."
The bar on accepting titles of nobility or of honour except
with the prior approval of the Government can of its very
nature be applicable only to Irish citizens as defined by
Article 9 of the Constitution. This was conceded by the
prosecutor in the course of the argument. One further
notices that Article 40, 4, 1, says:"No citizen shall be
deprived of his personal liberty save in accordance with law,"
while Article 40, 4, 2, 3, 4, and 5, which deal with habeas

corpus,refer to the unlawful detention of "a person." The
prosecutor's argument is therefore reduced to saying that
while the words "citizens" and "citizen" in other parts of
Article 40 may have the meaning given to them by Article 9,
they should be read as being identical with "person"
and"persons" in Article 40, 1 and 3. I find nothing to support
this argument.
Article 5 of the Constitution says that Ireland is a sovereign,
independent, democratic state. Article 40, 1, states the
equalitarian standing of its citizens by saying that as human
[1966]
1 I.R.
Henchy J.
617
High Court.
beings they shall be held equal before the law. Article 40, 2,
seeks to provide that there shall be no obtrusion on this
equality of citizenship by the conferring of titles of nobility by
the State, or by any citizen accepting a title of nobility or of
honour except with the prior approval of the Government. In
my view, the citizens referred to in Article 40, 1, are the
same as those in Article 40, 2, namely, citizens as defined by
Article 9.
Article 9, 2, says:"Fidelity to the nation and loyalty to the
State are fundamental political duties of all citizens".In so far
as personal rights are concerned, the State is concerned
primarily only with its citizens, who owe it this loyalty. The
preamble to the Constitution, by the words, "We, the people
of Eire, . . . Do hereby adopt, enact, and give to ourselves
this Constitution", shows that this is basically a constitution
of the Irish people for the Irish people.
The purpose of Article 40, 3, of the Constitutionand of
other provisions with which I need not concern myselfis
to state a constitutional right which attaches to citizenship
and falls as a duty on the State. It is only a citizen who can
claim that right, and he is entitled to it as a constitutional
incident of his citizenship. The prosecutor, being an alien,

has no claim to it.
The second way in which the prosecutor seeks to
circumvent the fact that he is not a citizen is by saying that
certain provisions of the Adoption Act, 1952,
unconstitutionally violate the rights of fathers of illegitimate
children who are citizens and that he is entitled to rely on
such unconstitutionality. This startling proposition has not
been supported by any authority. If acceded to, it would
mean that this Court would in effect be giving judgment in
the notional case of a suppositional litigant asserting a
hypothetical claim. If the validity of Acts of the Oireachtas
were allowed to be attacked in the Courts on this basis, it
could lead to the most undesirable results. In my view, a
person is not entitled to base a claim that an Act is
unconstitutional on the ground that it violates another's
constitutional rights, unless that other is a party or he would
be entitled by the Rules of Court to represent that other if it
were a substantive action. I am fortified in that view by the
decision of the American Supreme Court in Tileston v.
Ullman (1). The headnote of that case reads:"A physician
is without standing to challenge, as a deprivation of life
without due process in violation of the Fourteenth
Amendment, a state statute permitting the use of drugs or
instruments to prevent conception, and the giving of
assistance or counsel in their use, where the lives alleged
[1966]
1 I.R.
Henchy J.
618
High Court.
to be endangered are those of patients who are not parties
to the suit."
In dismissing the appeal the Court said (at p. 46):"We
are of the opinion that proceedings in the state courts
present no constitutional question which appellant has
standing to assert. The sole constitutional attack upon the
statutes under the Fourteenth Amendment is confined to

their deprivation of lifeobviously not appellant's but his
patients'. There is no allegation or proof that appellant's life
is in danger. His patients are not parties to this proceeding
and there is no basis on which we can say that he has
standing to secure an adjudication of his patients'
constitutional right to life, which they do not assert in their
own behalf".
The proceedings in that case came before the courts in the
form of a declaratory action. If the decision of the American
Supreme Court represents law that should be applied in this
country, as I believe it does, it should also govern certiorari
proceedings. Since I consider it to be the law that, for
example, a foreign anti-fluoridation group could not pursue
the type of claim made in Ryan v. The Attorney General (1),
or a mere member of the public seek to vindicate the
constitutional rights of the aggrieved solicitors in In re
Solicitors Act, 1954 (2) by means of a declaratory action, I
equally think that it is not competent for such a person to
acquire a locus standi to seek to have a statute of the
Oireachtas struck down as unconstitutional by framing the
claim as an application for certiorari. If that were the law, it
would leave open undesirable avenues of litigation to
undesirable litigants.
The Court has been referred to authorities such as Reg.
v.Justices of Surrey (3), where it has been held that the Court
may in its discretion grant certiorari when the prosecutor is
merely a member of the public and not personally aggrieved.
However, none of these cases dealt with certiorari sought on
the ground of the unconstitutionality of a statute. I know of
no caseI exclude cases under Article 26under either
the Constitution of 1922 or that of 1937 where a statutory
provision was held to be repugnant to the Constitution at the
suit of a person other than a person aggrieved.
It follows from my decision on this point that it is not
competent for the prosecutor to attack in these proceedings
the Adoption Act, 1952, on the ground that it violates the
constitutional rights of other fathers of illegitimate children,
that he is equally debarred from founding his case on the
alleged violation of the constitutional rights of the mother

[1966]
1 I.R.
Henchy J.
619
High Court.
of the child or of the child itself, since they are not parties to
the proceedings and he does not represent them. In my
view, it would be wrong for this Court to rule on the
constitutional rights of the mother or the child on the basis
of arguments put forward by the prosecutor, when in fact, if
they were represented, differing or even contrary arguments
might be advanced on their behalf. But the matter is put
beyond doubt in the present case, as the order of the
Supreme Court limits the prosecutor to arguing that the
Adoption Act, 1952, violates the Constitution in so far as it
purports to deprive the prosecutor of his rights.
I hold that neither Article 40, 1, nor Article 40, 3, confers on
the prosecutor any constitutional rights, and that accordingly
it is not open to him to show that the Act or any part of it is
repugnant to Article 40, 1, or Article 40, 3.
My conclusion that the prosecutor is not a citizen for the
purposes of Article 40, 1, or Article 40, 3, has been reached
without benefit of any submissions on the point by counsel
for the Attorney General and the Board. The Court was
informed that the Attorney General, as a matter of policy in
this case, does not wish to submit that the rights of the
prosecutor are any less than those of a "citizen" under
Article 40, 1, and Article 40, 3. Be that as it may, executive
policy can play no part in the judicial interpretation of the
words of the Constitution. This Court has to decide the point
as a matter of law. But I think it right to point out that my
decision on the matter amounts to a rejection of an ex
parteargument.
In case, contrary to my conclusion, the prosecutor is to be
deemed a citizen or to be entitled to the constitutional rights
of a citizen for the purposes of Article 40, 1, and Article 40,
3, I proceed to consider whether the Adoption Act, 1952, in

the way in which it permits the making of an adoption order,
violates the rights of citizens under those sub-articles.
I take Article 40, 1, first. The argument runs that a citizen
who is the father of an illegitimate child is as such given no
rights when the question of the adoption of the child arises:
his consent is not required and he need not be heard. This is
undoubtedly true; the mother by contrast must consent, and
she is entitled to be heard. It is accordingly said that this is
legislation which discriminates against the fathers of
illegitimate children on the grounds of sex or paternity: on
the grounds of sex because rights are allowed to the female
parent which are withheld from a male parent, and on the
grounds of paternity because rights are given by ss. 14 and
16 to persons who may be strangers which are denied to
fathers. The argument goes on to say that such
[1966]
1 I.R.
Henchy J.
620
High Court.
discrimination denies to citizens the equality before the law
which Article 40, 1, guarantees to them, and that it cannot
be justified under the second part of Article 40, 1, on the
ground of differences of capacity, physical or moral, or of
social function.
The first matter to be noticed under s. 14, sub-s. 1, and s.
16, sub-s. 1, is that the exclusion extends to every person
except those given the rights specified in the sub-sections.
The natural father may or may not be excluded, depending
on whether or not he comes within one of the categories of
persons who are given rights. There is, therefore, no
exclusion of, or discrimination against, the natural father as
such. If he is excluded, it is because, in common with other
blood relations and strangers, he happens not to fall within
one of the categories of persons who are given rights. The
question, therefore, is: was it a compliance with Article 40, 1,
to give those rights to the persons specified while

withholding them from the persons not specified?
The persons whose consent to the making of an adoption
order is required by s. 14, sub-s. 1, are every person being
(a) the mother of the child, (b) the guardian (as defined by s.
3), and (c) a person having charge of or control over the
child. The persons who are entitled to be heard on an
application for an adoption order are (a) the applicants, (b)
the mother of the child, (c) the guardian of the child (as
defined by s. 3), (d) a person having charge of or control
over the child, (e)a relative of the child (as defined by s. 3),
or has been at any time concerned with the child, (g) a priest
or minister of a religion recognised by the Constitution (or, in
the case of any such religion which has no ministry, an
authorised representative of the religion) where the child or
a parent (whether alive or dead) is claimed to be or to have
been of that religion, (h) an officer of the Board, and (i) any
other person whom the Board, in its discretion, decides to
hear. A consideration of the persons or categories of persons
who are recognised as having rights under the sub-section
shows each of such persons as having, or capable of having,
in regard to the adoption of a child, a capacity, physical or
moral, or a social function which the Legislature could fairly
say differentiates them from the persons who are not
accorded those rights. The practical working of a fair and
reasonably confidential system of adoption requires that only
a limited number of people be required to consent to the
adoption order, or be entitled to be heard on the application
for the order. The Legislature has sought in s. 14, sub-s. 1,
and s. 16, sub-s. 2, to fix the appropriate limitations. The
onus
[1966]
1 I.R.
Henchy J.
621
High Court.
is on the prosecutor to show that in doing so Article 40, 1,

was clearly transgressed. In my judgment, he has failed to
do so. It happens that in the present case the prosecutor was
excluded from the rights recognised by the section. Possibly
a more nearly ideal differentiation between those entitled to
the rights of refusing consent and of being heard and those
excluded from those rights might have been devised. But the
prosecutor has not satisfied me that the differentiation made
does not have due regard to differences of capacity, physical
and moral, or of social function.
The argument that the Adoption Act, 1952, infringed Article
40, 3, 1, of the Constitution in the making of the adoption
order which it is sought to quash rests on the proposition
that in excluding the prosecutor from the benefit of s. 14,
sub-s. 1, and s. 16, sub-s. 1, it failed to defend and vindicate,
as far as practicable, the personal rights of the prosecutor as
a citizen. The particular right which it is said was violated
was the right of a father to the society of his child, that is, of
his illegitimate child. I do not think that our law recognises
any such absolute right. It is true that Courts exercising an
equitable jurisdiction have on occasion recognised the right
of the putative father to custody of the child (see In Re Kerr
(1)); but such a decision is reached, not in deference to any
inherent right vested in the putative father, but on the basis
of what is in the best interests of the child as between
parties contending for the custody. The prosecutor in this
case has not asserted that he would have been entitled to
the custody as against the mother. Nor has he shown that,
had he asserted a claim to custody of the child against a
third party after the mother had surrendered it for adoption,
a Court would, in deference to the best interests of the child,
have awarded him the custody. Consequently, he has failed
to show that he had any right to the custody or society of the
child. But even if he had shown that he had such a right, I do
not think the context of Article 40, 3, 1, or the tenor of the
Constitution as a whole would permit of its being considered
to be a personal right which was entitled to the protection of
Article 40, 3, 1.
Passing to Article 41, the prosecutor contends that the
Adoption Act, 1952, violates the rights guaranteed by Article

41, 1, to the family. Article 41, 1, is as follows:
"1 The State recognises the Family as the natural primary
and fundamental unit group of Society, and as a moral
[1966]
1 I.R.
Henchy J.
622
High Court.
and the State."
Counsel for the prosecutor founded his argument on two
propositions. First, he says that the adoption of his natural
child violates the protection guaranteed by the sub-article to
the family which, he says, existed when he, the child, and
the mother lived together in London. Second, he says that
there was a violation of the rights of the family which, he
says, was comprised of the mother and child at the date of
the adoption order.
Article 41 is headed, "The Family." The Article does not
define the family, but sub-article 3, 1, of the Article says:
"The State pledges itself to guard with special care the
to protect it against attack."
Article 41 deals with only one kind of family, namely, a
family founded on the institution of marriage. Article 41, 1, 1,
accords the recognition of the State to such 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"; and Article 41, 1, 2, gives the guarantee of the State to
protect it in its constitutional authority, as the necessary

the nation and of the State. I am satisfied that no union or
grouping of people is entitled to be designated a family for
the purposes of the Article if it is founded on any relationship
other than that of marriage. If the solemn guarantees and
rights which the Article gives to the family were held to be
extended to units of people founded on extra-marital unions,
such interpretation would be quite inconsistent with the
letter and the spirit of the Article. It would be tantamount to
recognition of such units "as the necessary basis of social
order and as indispensable to the welfare of the Nation and
the State" (Article 41, 1, 2). For the State to award equal
constitutional protection to the family founded on marriage
and the "family" founded on an extra-marital union would in
effect be a disregard of the pledge which the State gives in
Article 41, 3, 1, to guard with special care the institution of
marriage.
I find that the prosecutor has failed to show that the
operation of the Adoption Act, 1952, in this case for the
purpose of making the adoption order violated any rights
vested under Article 41 in the prosecutor; and, as I have
[1966]
1 I.R.
Henchy J.
623
Supreme Court.
already held, it is not open to the prosecutor to assert in
these proceedings alleged constitutional rights of the child or
its mother.
The final constitutional provision relied on by the prosecutor
is Article 42, 1. It is in the following terms:
"The State acknowledges that the primary and natural
Counsel for the prosecutor maintains that the adoption

order has infringed the inalienable right and duty of the
prosecutor and the mother to provide, according to their
means, for the religious and moral, intellectual, physical and
social education of the child. This contention leads him to
submit that legal adoption is not permitted by the
Constitution except in the case of orphans, or of children
whose parents, for physical or moral reasons, have failed in
their duty towards their children, and then only to the extent
permitted by Article 42, 5. I cannot accept this submission.
It seems to me unthinkable that the Constitution should
guarantee to the putative father of an illegitimate child the
rights over the child referred to in Article 42, 1, even in cases
where the sole nexus between the father and the child may
have been the rape of the mother. That such an
interpretation is outside the intendment of the Constitution is
shown by the opening words of Article 42, 1:"The State
acknowledges that the primary and natural educator of the
child is the Family." It is clear that the rights guaranteed to
parents by Article 42, 1, arise only in cases where the
parents and the child are members of the same family; and
the only family recognised by the Constitution is the family
which Article 41, 3, 1, recognises as being founded on
marriage. In my opinion the prosecutor is given no rights
over his illegitimate child by Article 42, 1.
I would allow the cause shown and discharge the conditional
order.
From the above judgment the prosecutor appealed to the
Supreme Court (1). The grounds of his appeal were that the
Divisional Court was wrong in law in allowing the cause
shown and in particular 1, in holding that the prosecutor was
not a person having charge of or control over the said infant
at the material time and that his consent to the making of
the said order was not therefore required under s. 14, sub-s.
1, of the Adoption Act, 1952;
[1966]
1 I.R.

Henchy J.
624
Supreme Court.
2, In holding that the prosecutor was not a person having
charge of or control over the said infant at the material time
and that he was not therefore entitled to be heard by the
adoption Board under s. 16 of the Adoption Act, 1952, before
the making of the said order;
3, In holding that the Adoption Board did not violate the
principles of natural justice in deciding not to hear the
prosecutor before purporting to give the said infant in
adoption;
4, In holding that the Adoption Board was entitled to give
the said infant in adoption without notice to the prosecutor;
5, In holding that the Adoption Board did not exercise its
discretion under s. 16, sub-s. 1 (i), of the Adoption Act, 1952,
to hear or not to hear the prosecutor;
6, In holding that the Adoption Board, if it did decide not to
hear the prosecutor before giving the said infant in adoption,
did not violate the principles of natural justice in doing so;
7, In holding that the fact that the prosecutor had notified
the Adoption Board of his opposition to the proposed
adoption was a just or adequate reason for the Adoption
Board to decide not to hear the prosecutor before giving his
child in adoption;
8, In holding that the fact that the prosecutor had not
instituted proceedings to prevent an adoption of the said
infant after the Adoption Board had noted his opposition to
adoption was a just or adequate reason for the Adoption
Board not to notify the prosecutor of the adoption
arrangements and for it to give his child in adoption without
hearing him and without notice to him;
9, In holding that the Adoption Board was entitled to give
the said infant in adoption contrary to the express wish of
the prosecutor;
10, In purporting to investigate, adjudicate upon and
determine matters of fact which were not in issue before the
Court or between the parties to the proceedings;

11, In finding facts and drawing inferences as to the
prosecutor's conduct without any or any sufficient evidence
to support the same;
12, In holding that, in the events which had happened, the
Adoption Board was entitled to rely on laches, delay or lapse
of time as cause shown against the conditional order;
13, In holding that the prosecutor had disentitled himself to
relief by reason of laches;
[1966]
1 I.R.
Henchy J.
625
Supreme Court.
14, In holding that the prosecutor, as natural father, had no
rights in law in respect of the said infant;
15, In refusing to permit the prosecutor to assert the rights
of the said infant before the said Court;
16, In refusing to permit the prosecutor to argue that the
said adoption order was unconstitutional and void in that the
Adoption Board in the proceedings leading up to the said
order and in the making of same discriminated unfairly
against (a) the prosecutor and (b) the said infant and
thereby infringed Article 40, 1, of the Constitution;
17, In holding that the prosecutor was not a citizen within
the meaning of Article 40, sub-sections 1 and 3, of the
Constitution;
18, In holding that the prosecutor, not being a citizen within
the meaning of Article 9 of the Constitution, was not entitled
to the protection of Article 40 of the Constitution;
19, In holding that the Adoption Act, 1952, is not repugnant
to Article 40, sub-section 1, of the Constitution and that it
does not discriminate unfairly against natural fathers of
illegitimate children as human persons;
20, In holding that the Adoption Act, 1952, in excluding a
natural father from all rights to prevent his natural child from
being given in adoption and in permitting his child to be

given in adoption against his will, does not discriminate
unfairly against him and does not violate Article 40, subsection 1, of the Constitution;
21, In holding that the Adoption Act does not violate the
personal rights of the citizen guaranteed by Article 40, subsection 3, of the Constitution;
22, In holding that the personal rights guaranteed by Article
40, sub-section 3, of the Constitution do not include the right
of the father of an illegitimate child to the society of his
child;
23, In holding that the Adoption Act, 1952, is not repugnant
to Article 41 of the Constitution;
24, In holding that the prosecutor had no rights as a parent
under Article 42 of the Constitution;
25, In holding that the prosecutor had no rights and duties
in respect of the said infant under Article 42 of the
Constitution;
26, In holding that the guarantees contained in Article 42 of
the Constitution applied to married parents and legitimate
children only;
27, In failing to hold that the prosecutor, being a person
[1966]
1 I.R.
Henchy J.
626
Supreme Court.
whose child was given in adoption by the Adoption Board
against his express will, and without notice to him, was a
person aggrieved;
28, In failing to hold that the prosecutor, as a person
aggrieved, was entitled to an order of certiorari ex debito
justitiae;
29, In holding that the prosecutor, being a person aggrieved
by the said adoption order, was not entitled to submit that
the said Act and order were void or to establish the invalidity
of the said Act and order on any ground which showed their
invalidity and in particular on the following grounds:

(a) That the said Act and order were repugnant to the
Constitution as they and each of them violate rights,
guaranteed to the said infant under each of the following
Articles of the Constitution, that is to say:
(i) Article 40, sub-section 1;
(ii) Article 40, sub-section 3;
(iii) Article 42;
(b) That the said Act and order and each of them were
repugnant to the Constitution in that they and each of them
purported to allow the mother of the said infant to alienate
rights and duties in respect of the said child which Article 42
of the Constitution declares to be inalienable;
(c) That the said Act and order and each of them were
repugnant to the Constitution in that they and each of them
violate rights guaranteed to natural fathers of illegitimate
children under:
(i) Article 40, sub-section 1;
(ii) Article 40 sub-section 3 and
(iii) Article 42 of the Constitution.
D. E. Bell S.C. and D. M. Barrington (with them J. B.Cassidy )
for the appellant:
The appellant being the natural father has rights in respect
of his illegitimate child which are only second to those of the
natural mother: Ord v. Blacket (1); Reg. v. Nash (2); Re
Crowe (3); In re Kerr(4).
Article 40 of the Constitution provides that all citizens shall
as human persons be held equal before the law. In using the
word "citizen" the Constitution uses it in the sense of
"person" and that construction is accepted by the Attorney
General and by the Adoption Board.
[1966]
1 I.R.
Henchy J.
627
Supreme Court.
The Adoption Act deprives an illegitimate child of the society

and support of its natural father who has accepted his
responsibility and duty. The child is a citizen and a legitimate
child cannot be so deprived. Accordingly, the appellant is
asserting not only his own rights but also the rights of the
child: Buchanan v. Warley (1); Truax v. Raich (2); Article 42,
5, of the Constitution.
The Adoption Act discriminates against the natural father of
the child and this discrimination is not based on any
difference of capacity or social function as provided for in
Article 40 of the Constitution. He is discriminated against in
favour of the mother on the grounds of his sex or paternity.
He is also discriminated against on the grounds of his
religion in that he is excluded from having the right to adopt
his child.
The Act, it is submitted, interferes with the family and
accordingly infringes the provisions of Article 41 of the
Constitution. The family therein referred to and protected is
a community of parents and children. The word "parents"in
Article 42 must be construed as including natural parents.
Article 42 of the Constitution guarantees the rights of all
parents. Even in medieval property law an illegitimate child
had certain limited rights of succession because of the
natural relationship. [They cited In re Connor(3); In re
Carroll(4); In re Cullinane(5); In re O'Brien, an Infant(6);In re
Tamburrini(7); In re M., an Infant(8); In re Tilson, Infants(9)].
Article 42 recognises the joint moral and natural rights and
duties of the parents, and the mother cannot alienate her
right or duty. It is therefore clear that she certainly cannot
alienate the father's rights and duties and in so far as the
Adoption Act permits or sanctions this it is unconstitutional.
This Article also gives the child natural and imprescriptible
rights which must arise from birth and not from marriage
and these rights must exist vis- -vis parents:In re M., an
Infant(8).
The Adoption Act purports to empower the Board to destroy
the above rights so far as they relate to the relationship with
the father; the father is accordingly aggrieved by the Board's
destruction of the child's rights because such destruction

also affects him. The Constitution protects the right of a child
to know and have the society of its father; this applies
whether the child is legitimate or illegitimate.
[1966]
1 I.R.
Henchy J.
628
Supreme Court.
The order of the Board is invalid, having been made without
the consent of the applicant under s. 14, sub-s. 1, of the Act.
It is clear that the father had become "in loco parentis"to the
child. He retained his charge and control of the child as on
the 16th June, 1960, he only parted with the care of the
child. As to the distinction between "custody" and"charge,
care and control," see Wakeham v. Wakeham (1); Johnston v.
Commonwealth (2); Bank of New South Walesv.
Commonwealth (3); Thompson v. Grey (4); Gibbs v.South
Western Railway Co. (5) and Adoption Act, 1952, s. 19, sub-s.
1, and sects. 14 and 16. The applicant was entitled to be
heard under s. 16 of the Act before the adoption order was
made. Sect. 16, sub-s. 1 (i), gives the Board a discretion to
hear persons other than those set out in the earlier subparagraphs of the section which do not include specifically
the natural father. Although the Act gives the father no right
to be heard if he does not come within the provisions of s.
16, sub-s. 1 (d), of the Act, the discretion vested in the Board
must be exercised in accordance with the principles of
natural justice when the appropriate occasion arises. The
Board were given notice of the fact that the appellant was
the father, that he acknowledged paternity, that he had
given the child his name, that he was opposed to adoption
and that he intended to recover custody of the child. The
Board, being aware of that position, violated the principles of
natural justice in not hearing the appellant. [They also cited
The State (Crowley) v. Irish Land Commission (6); Foley v.

Irish Land Commission (7); Estate of Roscrea Meat Co. Ltd.
(8); McDonald v. Bord na gCon (9); the Adoption Act, sects.
14, 15 and 16.]
Eoin Ryan S.C. and Sen Butler S.C. (with them M.
A.Feehan ) for the Adoption Board and the Attorney
General:
The Adoption Act is for the benefit of children who might not
otherwise have the advantage of a safe and secure home.
Sect. 14, sub-s. 1, means that where the mother is alive and
can be found only her consent is necessary. If, however, she
is dead or cannot be found, then, if there is a legal guardian,
his consent only is necessary. If the mother cannot be found
and there is no legal guardian, then the consent of a person
having charge of or control over the child is to be sought.
Article 40, 1, of the Constitution does not mean that all
citizens must be treated by the law as equal for all purposes.
[1966]
1 I.R.
Henchy J.
629
Supreme Court.
It is an acknowledgement of the human equality of all
citizens and that such equality will be recognised by the laws
of the State. Circumstances, however, will arise where
citizens cannot be treated always and in all circumstances as
equal.
There is nothing contrary to the Constitution either in s. 14
or s. 16 of the Adoption Act, 1952. Certain persons are by
those sections given rights to the exclusion of all others.
There is no discrimination against the natural father as such.
If he comes within the class of persons given rights, then he
has those rights; if he does not come within that class then
he has not got those rights. He is not, however, excluded
because he is the natural father. Each person given rights by
the Act has a moral capacity or a social function in relation
to the child. It is clear that at the time the adoption order
was made the appellant had not got the care or control or
charge of the child. Therefore in those circumstances the
Board was not bound to hearnor would it have been
desirable that it should hearthe appellant on the question
of the making of the adoption order.
The appellant in any event, by reason of the delay in
bringing these proceedings, is estopped from obtaining relief
even if such relief were available to him at law.
The Adoption Act does not confer a right of adoption on any
child nor does it permit any child to be the moving party in
respect of its own adoption. The restriction as to the class of
children who may be the subject of adoption orders is a
restriction imposed upon the Adoption Board by the Act and
it is clear that this restriction in no way infringes the
provisions of Article 40 of the Constitution.
There is no infringement of the provisions of Article 41 of
the Constitution by the Adoption Act. It is clear that the
family protected by Article 41 is a family which is founded on
the institution of marriage and that means in the context of
the Article a marriage which is valid under the law of the
State. The same considerations apply to the provisions of
Article 42, which recognises that the family is the primary
and natural educator of the child and recognises the
inalienable right and duty of parents to provide according to
their means for the religious, moral, intellectual physical and
social education of their children. The family there also
means a family founded upon the institution of marriage in
accordance with the laws of the State.
D. M. Barrington in reply.
Cur. adv. vult.
[1966]
1 I.R.
Dlaigh C.J.; Walsh J.
630
Supreme Court.
Dlaigh C.J. :
22 July
The judgment of the Court will be read by Mr. Justice Walsh.
Walsh J. :
The appellant in this case is a Cypriot who at all material
times resided and carried on business as a caf proprietor
in London. He is a member of the Greek Orthodox Church. He
is not a citizen of Ireland. Kathleen Donnelly is a citizen of
Ireland whose parents and family at all material times
resided in Co. Galway. In 1959 she was employed by the
appellant as a waitress and they were living together as man
and wife. She is a member of the Roman Catholic Church. In
July, 1959, her brother, Denis Donnelly, came to London and
took her back to her family in Galway. Her return to Ireland
was followed by a correspondence of an amicable and
sociable character between the appellant on the one hand
and Miss Donnelly and her parents on the other. About this
time Miss Donnelly found that she was pregnant. The
appellant asked her to marry him and she and her parents
were willing that the marriage should take place provided
that he became a Roman Catholic. He was willing to do so,
and it was apparently on this understanding that she
returned to him in London. The marriage was, however,
delayed pending receipt of the necessary documentary
evidence that he was free to marry. On the 23rd February,
1960, a daughter was born to Miss Donnelly, at the North
Middlesex Hospital, Edmonton. The birth of the child was
registered on the 4th March and the certified extract from
the register shows that it was registered on the information
and signatures of the appellant and Miss Donnelly, that the
child's name was given as Mary Carmel, that the name of the
father was given as Leontis Nicolaou and that the name of
the mother was given as Kathleen Sheila Donnelly. The
address of both father and mother was given as 19, Durham
Road, London. The child was baptised in the Catholic Church
of St. Mellitus, London, on the 6th March. Mother and child
returned to live with the appellant at 19 Durham Road,

where they remained until the 16th June. During this period
the mother was depressed and emotionally upset. The
necessary documentary evidence that both were free had
become available but it appears that she was unable to
make up her mind what do do. The appellant says in his
second affidavit that his attitude at this time was that he was
anxious to marry her in a Catholic Church but that he was
prepared to live with her outside marriage. He also said he
was willing if she wished that she should depart and leave
[1966]
1 I.R.
Walsh J.
631
Supreme Court.
the child with him and that he was also reluctantly willing
that she should depart and take the child with her, hoping
that she would return when she felt better. Her mother was
urging her either to marry or else leave the appellant and
have the child adopted. Both these alternatives were
frequently discussed between the appellant and Miss
Donnelly. The appellant made it quite clear that he would not
agree to have the child adopted. Miss Donnelly says in her
affidavit that during this period she was worried about the
child being illegitimate; that she was not satisfied to
continue living with the appellant; that she was not prepared
to marry him unless and until he became a Catholic; and that
she was not prepared to depart and leave the child with him
for fear that it would not be brought up as a Catholic. She
wished to go to a Catholic home where she could work to
keep herself and the child and with that end in view she had
been in touch with the Crusade of Rescue, an English
Adoption Society, which had put her in touch with the
Catholic Protection and Rescue Society of 30, South Anne
Street, Dublin. She eventually decided to take that step.
On the 16th June she left the appellant, taking the child with
her. She told him she was going to a home, such as that
already mentioned, in Dublin. He agreed to let the child go

with her. He said in his first affidavit that he understood she
intended to reside in an institution in Ireland and that he
considered it essential that the child should be with its
mother. He believed that the child could not be adopted
without his consent and he told Miss Donnelly that if any
proposals were made for adoption they should be referred to
him. In his second affidavit he says that he agreed to let her
take the child with her only on the understanding that any
proposal for adoption should be referred immediately to him.
She travelled to Dublin and on arrival went to 30 South Anne
Street, where she met certain officers of the Catholic
Protection and Rescue Society. She was then admitted with
the child to St. Patrick's, Navan Road, a home owned by the
Society, where she remained some months, working for her
own and the child's maintenance. She had requested Miss
Cassidy, the secretary of the Society, to try and find a home
for the child. She was eventually told that the Society had
secured a parent to adopt the child, and following
instructions, brought it on the 23rd September, 1960, to 30
South Anne Street, where she left it in the custody of officers
of the Society.
Not having heard from Miss Donnelly, and being unaware of
her and the child's whereabouts, the appellant wrote to Mrs.
Donnelly on the 20th July, 1960, making inquiries.
[1966]
1 I.R.
Walsh J.
632
Supreme Court.
Mrs. Donnelly replied on the 26th July, saying that Kathleen
had come from London to Dublin; that she, Mrs. Donnelly,
would let him know how Kathleen and the child were getting
on when she heard from her. Early in August the appellant
got a letter from Miss Donnelly. In this she said that she
thought she had made it clear to him when leaving him that
all was over between them, so why not forget about her and
the child and start a new life for himself; that she quite
agreed that he was the child's father and was interested in
her, but that she could not leave the child with him fearing it
might not be reared a Roman Catholic; and if he had any
plans with regard to the child's future she would be very
grateful if he would let her know before she got the child
adopted, as that would mean that it would not be his any
more. This letter was addressed from Miss Donnelly's home
in Galway. The appellant did not reply to her letter; but
towards the end of September he travelled to Galway and
saw her personally. He asked her where the child was, and
she told him that she had left it in Dublin; that she had given
it away. He returned to Dublin where he instructed Messrs.
John P. Redmond & Co., Solicitors, to write to Miss Donnelly.
They wrote on the 30th September, stating,inter alia, that
they had been instructed that she had indicated that she had
disposed of the child by placing it in an institution, or with
persons prepared to adopt it; and that unless she replied
within seven days that she was willing to return the child to
the appellant they would institute proceedings in the High
Court to compel her to do so. She replied on the 5th October,
referring, inter alia, to her letter of the previous August to
the appellant, to which she had received no reply. She said
that the Crusade of Rescue Society in Dublin had got a good
home for the child; and that adoption became legal within
six months. On the 7th October Messrs. Redmond & Co.
wrote to the secretary of An Bord Uchtla (hereinafter called
"the Board"), confirming a previous telephone conversation;
and stating that they acted for the prosecutor, who was
father of a child born to Miss Kathleen Donnelly in London on
the 23rd February, 1960, and registered under the name of
Mary Carmel Nicolaou. The letter went on to say that they
had been instructed to institute proceedings in the High
Court to prevent any adoption of the child; that in
accordance with the provisions of s. 16 of the Adoption Act,
1952, they were putting the Board on notice that such
proceedings were pending; and that in the event of the
Board being requested to make arrangements for the
registration of the child's adoption they must ask them to
take no further steps in the matter pending the outcome of

the Court proceedings. On the 17th October the Registrar of
the Board
[1966]
1 I.R.
Walsh J.
633
Supreme Court.
replied acknowledging receipt of the letter and saying that
the matter had been noted. Messrs. Redmond & Co. had
written a similar letter to the secretary of the Catholic
Protection and Rescue Society, and on the 12th October had
received a merely formal acknowledgment. No proceedings
were at this time instituted in the High Court on account, as
stated by the appellant, of the state of Miss Donnelly's
health.
Miss Donnelly continued to be much upset as a result of the
circumstances in which she found herself, a condition which
was apparently worsened by the receipt of Messrs.
Redmond's letter and the threat of legal proceedings. She
suffered something in the nature of a nervous breakdown
and at the end of 1960 and beginning of 1961 spent some
ten or eleven weeks under treatment in Ballinasloe Mental
Hospital. During early 1961 the appellant had some
correspondence with her family; but correspondence with
her personally was not resumed until October.
Some time in August or September, 1961, while she was
staying with her parents, she received certain papers in
connection with the adoption of the child. She called to the
office of Mr. John C. O'Donnell, Solicitor, Galway, and
explained her position. He took her to the office of the
County Registrar, who is also a commissioner for oaths,
where the necessary papers were signed and an affidavit of
some kind sworn. On the 13th September, 1961, the Board
made an order for the adoption of the child by a married
couple.
On the 26th October Miss Donnelly wrote to the appellant,
stating that she was not working and asking for a few
pounds. She did not tell him that the child had been
adopted. Correspondence continued during 1961, 1962 and
1963, in the course of which she asked for, and was given,
money from time to time. In the spring of 1963, and again in
the summer, she had spells of treatment in Ballinasloe
Mental Hospital. Her letters about this time are written in
affectionate terms and it appears from them that she was
contemplating a return to London and marriage with the
appellant. She did return to his employment in August, 1963;
and arrangements were made for the marriage. She appears
to have suffered another emotional upset, and refused to go
on with it. It was at this time that the appellant first learned
definitely from her that the child had been adopted. He was
not aware where the child was, and made various
unsuccessful attempts to find out. He had consultations with
his legal advisers in Dublin, and on the 17th January, 1964,
an application was made to Mr. Justice Henchy for a
conditional order of
[1966]
1 I.R.
Walsh J.
634
Supreme Court.
habeas corpus directed to the registrar of the Board and the
secretary of the Catholic Rescue and Protection Society. This
was described by the appellant's counsel as being in the
nature of a "fishing" application. When refusing it Mr. Justice
Henchy suggested that an examination of the Register of
Adopted Children might possibly yield results.
On the 12th February the appellant's solicitors obtained a
certified extract from the Adopted Children's Register,
showing that an order had been made on the 13th
September, 1961, for the adoption of a female child, bearing
the names, Mary Carmel, who had been born on the 23rd
February, 1960. On the 14th April they wrote to the Board
asking to be furnished with a copy of this order; and on the
21st April the registrar replied, stating that as a matter of

principle their request could not be granted. Counsel on
behalf of the appellant then applied to the High Court for a
conditional order of certiorari seeking to quash the adoption
order, and this application was refused by Mr. Justice
Murnaghan on the 17th July. On appeal this Court granted a
conditional order on the following grounds:(1) that the
Board in making the adoption order failed to comply with the
requirements of s. 16, sub-s. 1, (d) and (i), of the Adoption
Act, 1952; and (2) that the said Act is repugnant to the
of his rights as a natural father to have the custody of his
natural child, Mary Carmel Donnelly, without notice to him,
or at all. The order was directed to the registrar of the Board
and, in accordance with Order 60 of the Rules of the Superior
Courts, it directed that the Attorney General should have
notice thereof. These parties having shown cause counsel on
behalf of the appellant moved the High Court to have the
conditional order made absolute notwithstanding the cause
shown. The hearing of the application by three judges of the
High Court occupied several days, spread over a period of
some months; and eventually, on the 31st May last, the
application was refused and the conditional order was
discharged. From that decision the appellant now appeals.
The appellant would not be furnished with a copy of the
adoption order and the original was not produced during the
hearing in the High Court. There was, accordingly, some
doubt as to whether the order made on the 13th September,
1961, was in fact made in respect of the child in question.
The registrar of the Board, however, attended before this
Court and produced the original order. There is no doubt
whatever that it was made in respect of the child in question.
Counsel's first submission in support of the application to
make the conditional order absolute was based upon
[1966]
1 I.R.
Walsh J.
635
Supreme Court.
s. 14, sub-s. 1, of the Adoption Act, 1952. This provides that
an adoption order shall not be made without the consent of
dispenses with any such consent in accordance with the
section. Sub-sect. 2 provides that the Board may dispense
with the consent of any person if satisfied that that person is
incapable by reason of mental infirmity of giving consent, or
cannot be found. Counsel submitted that the appellant was a
person having charge of or control over the child; that,
accordingly, under the provisions of the section his consent
was essential to the making of a valid adoption order; that
he had never consented; and that the adoption order was
therefore invalid as being made without jurisdiction. The first
observation to be made in regard to this submission is that
the ground on which it is based is not one of the grounds on
which this Court made the conditional order. Counsel was,
however, as in the High Court, allowed to develop it and did
so at some length.
Circumstances could arise in which an illegitimate child
could be taken into wardship and a person other than the
mother appointed guardian, who could entrust the child to
the care of foster-parents. Counsel for the appellant
submitted that in such circumstances consents would be
required from the mother, from the guardian, and from the
foster-parents, before an adoption order could be validly
made. It was submitted that the appellant was at the
material time a person having charge of or control over the
child and that his consent was necessary as well as that of
the mother. Sect. 15, sub-s. 1, provides that a consent shall
not be valid unless given after the child has attained the age
of six months, and not earlier than three months before the
application for adoption. The widest range in time during
which a valid consent could have been given was between
23rd August, 1960 (when the child was six months old), and
the 13th June, 1961 (three months before the adoption order
was made). It is quite clear that the appellant did not have
actual charge of or control over the child at any time during

that period, during the whole of which it was in another
country and in the actual charge and control of others.
Counsel, however, submitted that while Miss Donnelly and
the child were living with the appellant in London they were
part of his household; and that he, as head of the household,
had actual charge and control over the child; that before she
departed with the child she made a binding agreement with
him that any proposals for adoption would be immediately
referred to him; that while away from
[1966]
1 I.R.
Walsh J.
636
Supreme Court.
him she had charge and control of the child merely as his
agent; and that she could not, by breaking her agreement
and exceeding her authority as agent, deprive him of his
charge of, and control over, the child. In the opinion of the
Court this submission is not well founded either in fact or in
law.
It is an essential part of the appellant's case as presented
that the mother of an illegitimate child has a natural right to
its custody and control superior to any right which the father
can claim, so long as she is alive and has not abdicated her
right. If, then, while Miss Donnelly and the child were living
with the appellant, he had charge of and control over the
child it was at most a charge and control shared jointly with
her and he had it by her permission and not otherwise; it
was a permission which she could at any time have
withdrawn. The evidence does not support the submission as
to a binding agreement or as to the creation of any
relationship of principal and agent, or indeed that he had
any actual charge and control over the child, though he
certainly provided and cared for it. When Miss Donnelly took
the child with her to this country she did so in exercise of her
natural right and not as agent for the appellant. He had not,
therefore, at any material time charge of, or control over, the

child. In the opinion of the Court counsel's first submission in
support of the first ground on which the conditional order
was granted is not well founded.
Counsel, however, made a further submission based upon
this matter of consent. It is clear that from the 23rd
September, 1960, when the child was left by Miss Donnelly
with the officers of the Catholic Protection and Rescue
Society at 30 South Anne Street, Dublin, until it was adopted
on the 13th September, 1961, the child was not in her actual
physical charge or control; but with the mother's consent
was in the actual charge and control of the Society, or of
some other person or persons unknown to the appellant, and
whose identity does not appear from the evidence. Counsel
submitted that if the appellant's consent was not essential to
the validity of the adoption order, the consent of such
unknown person or persons was; and that it was reasonably
clear that no such consent had been obtained by the Board
before the adoption order was made. This submission makes
it necessary to consider the construction of s. 14, sub-s. 1, of
the Adoption Act, 1952.
Counsel for the Attorney General submitted that the subsection meant that where the mother was alive and could be
found her consent alone was necessary; that if she were
dead or could not be found, and there was a legal guardian,
[1966]
1 I.R.
Walsh J.
637
Supreme Court.
his consent alone was necessary; and that it was only where
the mother was not to be found, and there was no legal
guardian, that the consent of the person or persons having
charge of, or control over, the child became necessary. The
Court is unable wholly to accept this submission. As already
indicated, circumstances could exist in which the mother of
an illegitimate child, its legal guardian, and foster-parents
having actual physical charge and control over the child

could be all persons concerned at the same time in greater
or less degree in the question of its adoption. In such
circumstances it would seem only reasonable and proper
that the consent of the guardian as well as that of the
mother should be essential and in the opinion of the Court
the sub-section so provides. If, however, the sub-section is to
be given a merely literal construction, a consent would be
required also from the foster-parents. Given a merely literal
construction some strange results would follow. In the
present case, for instance, it is probable that before the
adoption order was made the Rescue Society had found a
home for the child with the couple who eventually obtained
the order; and that at the time it was made the child was in
the actual physical charge and control either of the Society
or of the adopting couple. The adopting couple were seeking
to adopt the child; and the Society, one of whose main
objects is doubtlessly to provide for the adoption of such
children, was, it may be assumed, doing its best to facilitate
them. To require in such circumstances, from either the
Society or the couple, a written consent to the adoption of
the child would appear to be a singularly unnecessary and
senseless procedure; and it is difficult to accept as correct an
interpretation of the sub-section which could occasion such a
result. It would moreover seem quite unnecessary to require
a written consent to adoption from a person who has actual
physical charge of, or control over, a child merely by
permission of the child's mother or legal guardian; since
such a permission could be withdrawn at any moment. If
such a person's consent were necessary, and were to be
refused, his right to the charge of the control over the child
could at once be terminated by the mother or guardian, and
with it the necessity for his consent. That is not the kind of
charge or control referred to in the sub-section. It is to be
noted that at no time was the appellant's charge of or
control (if any) over the child in this case other than with the
consent of the mother. In the opinion of the Court counsels'
first submissions cannot be accepted.
The first ground upon which the conditional order was
granted was that in making the adoption order the Board

[1966]
1 I.R.
Walsh J.
638
Supreme Court.
failed to comply with the requirements of s. 16, sub-s. 1,
(d)and (i), of the Adoption Act, 1952. The sub-section
provides that certain specified persons and no others shall
be entitled to be heard on an application for an adoption
order; and the persons so specified at sub-paras. (d) and (i)
are, respectively, a person having charge of or control over
the child; and any other person whom the Board, in its
discretion, decides to hear. Counsel's first submission in
support of this ground was that the appellant as a person
having charge of or control over the child was entitled to be
heard by the Board before a valid adoption order could be
made. For the reasons already stated this submission cannot
be accepted.
Counsel's next submission was that the Board had deprived
itself of jurisdiction to make a valid adoption order by not
hearing the appellant on the application for the order. It was
pointed out that at all material times the Board must have
been, and was in fact, aware that the appellant had
acknowledged the child as his; that he was opposed to any
adoption; and that he had through his solicitors announced
his intention of instituting proceedings in the High Court to
prevent an adoption order being made. His interest in the
matter had been made manifest; and it was submitted that
in these circumstances natural justice required that he
should be heard upon the application for adoption; and that
the failure of the Board to allow him the opportunity of being
heard amounted to non-compliance with the provisions of s.
16, sub-s. 1 (i), of the Act and deprived it of jurisdiction to
make a valid order.
It is clear that the persons specified in sub-paras. (a) to (h)
of the sub-section inclusive have a right to be heard on an
application for an adoption order in the sense that, if one of

them applies to the Board to be heard, he cannot properly be
refused. It does not, however, follow that before it can make
a valid adoption order the Board must seek out all such
persons and inquire of each whether he wishes to be heard.
There could also be several persons not coming within any of
the categories covered by sub-paras. (a) to (h) whose views
as to the adoption of a particular child might be of assistance
to the Board; and sub-para. (i) enables the Board to hear
them. However, no such person can be said to have a right
to be heard unless and until the Board has decided to hear
him. In this respect the drafting of the sub-section and subparagraph may be somewhat peculiar, but the purpose is
plain enough. It would be a strange result if by failing to hear
some person who could have been of assistance, and who
did not ask to be heard, the Board could deprive itself of all
[1966]
1 I.R.
Walsh J.
639
Supreme Court.
jurisdiction to make a valid order. It might well be thought
that in the particular circumstances of this case it was
impolitic of the Board not to have afforded the appellant the
opportunity to be heard but it had a discretion after proper
consideration not to do so. The proper exercise of that
discretion not to allow the appellant such opportunity left
him without any right to be heard. The position would of
course be different if the refusal was based on a general
policy not to hear the fathers of illegitimate children in such
cases and in such an event certiorari would go. There is,
however, no evidence that such was the position in this case.
These submissions made on behalf of the appellant in
seeking an order of certiorari cannot be accepted.
So far as the question of the delay on the appellant's part in
bringing his proceedings is concerned it is but fair to state
that in the opinion of this Court, on the facts before it, he
acted throughout with solicitude for the position of the

child's mother and the Court is satisfied that the delay was in
a very large measure due to his concern to do nothing to
aggravate the mother's condition of ill-health.
It is now necessary to consider the submissions advanced in
support of the second ground on which the conditional order
was granted to the appellant. The first of these was based
upon Article 40, 1, of the Constitution which provides as
follows:"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."
In the opinion of the Court section 1 of Article 40 is not to be
read as a guarantee or undertaking that all citizens shall be
treated by the law as equal for all purposes, but rather as an
acknowledgment of the human equality of all citizens and
that such equality will be recognised in the laws of the State.
The section itself in its provision, "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," is a recognition that inequality may or must
result from some special abilities or from some deficiency or
from some special need and it is clear that the Article does
not either envisage or guarantee equal measure in all things
to all citizens. To do so regardless of the factors mentioned
would be inequality.
The argument for the appellant was as follows:At the
time the Constitution of Saorstt ireann came into
force, and subsequently on the coming into operation of the
present Constitution, the law of this country recognised as
[1966]
1 I.R.
Walsh J.
640
Supreme Court.
a personal legal right the right of the father of an
illegitimate child to its custody, inferior only to that of the

mother, while alive, and after her death superior to that of
any other persons, such as the mother's relatives, and that
this legal right was founded upon a judicial recognition of a
preexisting natural right: that the Adoption Act, 1952, in its
provisions as to those whose consent is necessary before an
adoption order can be made, and as to those who are
entitled to be heard on an application for an adoption order,
has no regard to this legal right of the natural father: that
this amounts to unfair discrimination and is therefore
repugnant to the Article in question: that while the Article by
its terms refers only to citizens it recognises the personal
right to equality before the law of citizens by virtue of the
fact that they are human persons and that as non-citizens
share with citizens a common humanity they therefore share
their constitutional rights.
Legal rights, unless guaranteed by the Constitution, may be
adversely affected or completely taken away by legislation.
It was, nevertheless, submitted that such legislation, if it
discriminates unfairly against a particular class of citizens,
would be invalid having regard to the provisions of the
Article in question.
In support of the first branch of this submission counsel for
the appellant relied on Reg. v. Nash (1); In re Crowe(2);In re
Kerr(3); In re Hyndman(4); and In re Connor(5),and
submitted that these cases established that a natural father
had the personal legal right for which they contended. The
Court is not satisfied that these cases do establish that the
natural father has any such legal right; and in so far as
counsel's submission is based upon this proposition it is not,
in the opinion of the Court, well founded.
Over and above this the appellant argues as follows: that
under the provisions of s. 14, sub-s. 1, of the Act, when there
is question of a child's adoption no consent is required from
its natural father; that under the provisions of s. 16, sub-s. 1,
he is not as such natural father entitled to be heard on the
application for an adoption order; that in contrast, consent to
adoption is required from the mother, the guardian, and any
person having charge of or control over the child and that
the several persons mentioned in s. 16, sub-s. 1, are entitled

to be heard on the application for adoption: that these
provisions discriminate against natural fathers on the ground
of sex because rights are given to the
[1966]
1 I.R.
Walsh J.
641
Supreme Court.
mother which are denied to the father and on the ground of
paternity because rights are given to persons, who may be
more distant relations of the child or even strangers in blood,
which are denied to natural fathers.
Under the provisions of these sections of the Act certain
persons are given rights and all other persons are excluded.
Whether or not the natural father is excluded depends upon
the circumstance whether or not he comes within the
description of a person who is given a right, and he may or
may not come within some such description. If he is in fact
excluded it is because in common with other blood relations
and strangers he happens not to come within any such
description. There is no discrimination against the natural
father as such. The question remains whether there is any
unfair discrimination in giving the rights in question to the
persons described and denying them to others.
In the opinion of the Court each of the persons described as
having rights under s. 14, sub-s. 1, and s. 16, sub-s. 1, can
be regarded as having, or capable of having, in relation to
the adoption of a child a moral capacity or social function
which differentiates him from persons who are not given
such rights. When it is considered that an illegitimate child
may be begotten by an act of rape, by a callous seduction or
by an act of casual commerce by a man with a woman, as
well as by the association of a man with a woman in making
a common home without marriage in circumstances
approximating to those of married life, and that, except in
the latter instance, it is rare for a natural father to take any
interest in his offspring, it is not difficult to appreciate the

difference in moral capacity and social function between the
natural father and the several persons described in the subsections in question. In presenting their argument under this
head counsel for the appellant have undertaken the onus of
showing that in denying to the natural father certain rights
conferred upon others s. 14, sub-s. 1, and s. 16, sub-s. 1, of
the Act are invalid having regard to Article 40 of the
Constitution. In the opinion of the Court they have failed to
discharge that onus.
In so far as this Article has been invoked to show that the
Act purports to permit an unconstitutional discrimination
between children in relation to adoption it is to be noted that
the Act does not confer a right of adoption on any child, nor
does it permit any child to be the moving party in respect of
its own adoption. The restriction as to the class of children
who may be the subject of adoption orders is a restriction
imposed upon the Adoption Board and this restriction in no
way impinges upon the provision of Article 40, section 1.
[1966]
1 I.R.
Walsh J.
642
Supreme Court.
The fact that under the Adoption Act, 1952, an illegitimate
child or an orphan may be the subject of an adoption cannot
be construed as a discrimination against such child. Article
42, section 5, of the Constitution, while dealing with the case
of failure in duty on the part of parents towards the children,
speaks of "the natural and imprescriptible rights of the
child." Those "natural and imprescriptible rights" cannot be
said to be acknowledged by the Constitution as residing only
in legitimate children any more than it can be said that the
guarantee in section 4 of the Article as to the provision of
free primary education excludes illegitimate children. While
it is not necessary to explore the full extent of "the natural
and imprescriptible rights of the child" they include the right

to "religious and moral, intellectual, physical and social
education." An illegitimate child has the same natural rights
as a legitimate child though not necessarily the same legal
rights. Legal rights as distinct from natural rights are
determined by the law for the time being in force in the
State. While the law cannot under the Constitution seek to
deprive the illegitimate child of those natural rights
guaranteed by the Constitution it can, as in the Adoption Act,
1952, secure for the illegitimate child legal rights similar to
those possessed by legitimate children. It provides
opportunities for illegitimate children and orphans to secure
the advantages of family life. The Act does not infringe any
natural right of an illegitimate child. On the contrary, its
purpose and effect is to redress the inequalities imposed by
circumstances on orphans and illegitimate children.
It was also submitted on behalf of the appellant that the
provisions of the Adoption Act, 1952, violate the guarantees
contained in Article 40, section 3, 1, of the Constitution. That
section reads:"The State guarantees in its laws to
respect, and, so far as practicable, by its laws to defend and
vindicate the personal rights of the citizen." The Constitution
does not set out in whole what are the rights of the citizen
which are encompassed in this guarantee and, while some of
them are indicated in sub-section 2 of section 3, it was
pointed out in the judgment of this Court in Ryan v.The
Attorney General (1) that the personal rights guaranteed are
not exhausted by those enumerated in sub-section 2. It is,
however, abundantly clear that the rights referred to in
section 3 of Article 40 are those which may be called the
natural personal rights and the very words of sub-section 1,
by the reference therein to "laws," exclude such rights as are
dependent only upon law. Sub-section 3 cannot therefore in
any sense be read as a constitutional guarantee of
[1966]
1 I.R.
Walsh J.
643
Supreme Court.
personal rights which were simply the creation of the law
and in existence on the date of coming into operation of the
Constitution. For the reasons already indicated earlier in this
judgment, in so far as a father has rights in respect of his
natural child which were the creation of law, judge-made or
legislative, they were of their nature susceptible to
legislative change and if the Adoption Act, 1952, has
effected such change it does not infringe the guarantee
contained in section 3 of Article 40. It has not been shown to
the satisfaction of this Court that the father of an illegitimate
child has any natural right, as distinct from legal rights, to
either the custody or society of that child and the Court has
not been satisfied that any such right has ever been
recognised as part of the natural law. If an illegitimate child
has a natural right to look to his father for support that
would impose a duty on the father but it would not of itself
confer any right upon the father. The appellant has therefore
failed to establish that any personal right he may have
guaranteed to him by Article 40, section 3, of the
Constitution has been in any way violated by the Adoption
Act of 1952.
The provisions of the Adoption Act, 1952, do not purport to
deal with the legal position of the father and mother of an
illegitimate child and their respective claims where questions
of custody are concerned apart from legal adoption and the
Court does not find it necessary to consider the position in
such a case.
The appellant next claimed relief under the provisions of
Article 41 of the Constitution. It was submitted on his behalf
that the Adoption Act, 1952, was invalid having regard to the
provisions of this Article in that it violates the constitutional
authority and purports to render alienable what are referred
to in the Constitution as "the inalienable and imprescriptible
rights" of the family, rights which in the words of Article 41,
section 1, are "antecedent and superior to all positive law." It
is quite clear from the provisions of Article 41, and in
particular section 3 thereof, that the family referred to in this

Article is the family which is founded on the institution of
marriage and, in the context of the Article, marriage means
valid marriage under the law for the time being in force in
the State. While it is quite true that unmarried persons
cohabiting together and the children of their union may often
be referred to as a family and have many, if not all, of the
outward appearances of a family, and may indeed for the
purposes of a particular law be regarded as such,
nevertheless so far as Article 41 is concerned the
[1966]
1 I.R.
Walsh J.
644
Supreme Court.
guarantees therein contained are confined to families based
upon marriage. This, in the opinion of the Court, is of itself
sufficient to render the appellant's submissions in respect of
this Article of the Constitution unsustainable and the Article
avails him nothing.
For the same reason the mother of an illegitimate child does
not come within the ambit of Articles 41 and 42 of the
Constitution. Her natural right to the custody and care of her
child, and such other natural personal rights as she may
have (and this Court does not in this case find it necessary to
pronounce upon the extent of such rights), fall to be
protected under Article 40, section 3, and are not affected by
Article 41 or Article 42 of the Constitution. There is no
provision in Article 40 which prohibits or restricts the
surrender, abdication, or transfer of any of the rights
guaranteed in that Article by the person entitled to them.
The Court therefore rejects the submission that the Adoption
Act, 1952, is invalid in as much as it permits the mother of
an illegitimate child to consent to the legal adoption of her
child, and lose, under the provision of s. 24 (b) of the Act, all
parental rights and be freed from all parental duties in
respect of the child.
Lastly, the appellant sought to invoke Article 42, section 1,

of the Constitution. Article 42 is the Article which deals with
education. Section 1 is in the following terms:"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." The appellant submits
that the Adoption Act, 1952, has infringed his inalienable
right as a parent to provide in these respects for his child the
subject-matter of these proceedings. It is the opinion of this
Court that the parent referred to in Article 42, section 1, is a
parent of a family founded upon marriage and this of itself
disqualifies the appellant as a parent within the meaning of
that term in Article 42, section 1. The appellant's case
therefore can find no support in this section. It follows that it
is unnecessary to consider what might be the effect of the
provisions of section 5 of Article 42 upon the circumstances
of the appellant's case so far as the appellant is himself
concerned.
It was also suggested that the Adoption Act, 1952, by
permitting the adoption of a child by the parents of an
existing family and by enacting that the child shall be
considered as one born to them in lawful wedlock, with the
property rights and the other legal rights of such a child,
[1966]
1 I.R.
Walsh J.
645
Supreme Court.
in some way infringes the provisions of Article 41 of the
Constitution by encroaching upon the guaranteed rights of
that family and its members. The Court rejects that
submission. The adoption of a child by the parents of a
family in no way diminishes for the other members of that
family the rights guaranteed by the Constitution. Rights of
succession, rights to compensation for the death of a parent
and such matters may properly be the subject of legislation

and the extension of such legal rights by legislation to
benefit an adopted child does not encroach upon any of the
inalienable and imprescriptible rights guaranteed by the
Constitution to the family or its members or upon the natural
and imprescriptible rights of children referred to in section 5
of Article 42.
The High Court judgments rested in part upon the fact that
the appellant is not a citizen of Ireland. This Court expressly
reserves for another and more appropriate case
consideration of the effect of non-citizenship upon the
interpretation of the Articles in question and also the right of
a non-citizen to challenge the validity of an Act of the
Oireachtas having regard to the provisions of the
Constitution. The opinion which the Court has pronounced
upon these Articles is not dependent upon or affected by the
fact that the appellant is not a citizen of Ireland or by the
fact that the Attorney General through his counsel informed
this Court that he did not wish to submit in this case that the
rights, if any, of the appellant under the Articles in question
were any the less by reason of the fact that he was not a
citizen of Ireland.
For the reasons stated the Court is of opinion that the
appellant's appeal should be dismissed.
Solicitors for the appellant: John P. Redmond & Co.
Solicitor for An Bord Uchtla and the Attorney General:The
Chief State Solicitor.
L. J. W.
[1966] I.R. 567
[1971]
1 I.R.
217
In the Matter of the Committee of Public Accounts of Dil
ireann (Privilege and Procedure) Act, 1970, and in the
Matter of the Courts (Supplemental Provisions) Act, 1961,
and in the Matter of Pdraic (otherwise Praic) Haughey
[1971. No. 58 SS.]
High Court
10-12 31 March 1971

11-14,19 17 20 May 1971
24 June 1971
Constitution of Ireland - Statute - Validity - Inquiry by
committee of Dilireann ireann - Refusal by witness
to answer questions - Statute authorising thecommittee to
"certify the offence" and empowering the High Court
afterinquiry to punish the offender as if he had committed
contempt of the HighCourt - Whether a minor offence - Right
to trial by jury - High Court -Jurisdiction - Whether a court of
summary jurisdiction - Standing ordersof Dil ireann
ireann - Criminal offence - Particulars - Oireachtas
WitnessesOaths Act, 1924 (No. 53), s. 1 - Constitution
(Consequential Provisions)Act, 1937 (No. 40), s. 4, sub-s. 1 Committee of Public Accounts (Privilegeand Procedure) Act,
1970 (No. 22), s. 3, sub-s. 4 - Constitution of Ireland,1937,
Articles 37, 38, 40.
On the 1st December, 1970, the Committee of Public
Accounts was ordered by Dil ireann to examine
specially the expenditure of a certain grant-in-aid for
Northern Ireland relief and any moneys transferred by the
Irish Red Cross Society to a bank account into which moneys
from the grant-in-aid were or might have been lodged, and
to furnish a separate report upon the expenditure. On the
23rd December the Oireachtas passed the Committee of
Public Accounts of Dil ireann (Privilege and Procedure)
Act, 1970, which provided by sub-s. 4 of s. 3 that, if any
person being a witness before the Committee should refuse
to answer any question to which the Committee might
legally require an answer, the Committee might "certify the
offence of that person under the hand of the chairman of the
committee to the High Court" and that the High Court might
"after such inquiry as it thinks proper to make, punish or take
steps for the punishment of that person in like manner as if
he had been guilty of contempt of the High Court."
Hearsay evidence, containing serious accusations against
H., was received by the Committee and H. then attended
before it as a witness but, having made a statement, he
refused to answer any questions of the Committee. The

Committee then certified to the High Court that "an offence
under the said Act has been committed by the said H." by
reason of his refusal to answer questions. The High Court
ordered H. to show cause why he should not be punished in
accordance with the terms of the Act of 1970 and at the
hearing of the motion before three judges of the High Court
the evidence was furnished on affidavit. H. did not ask for a
trial by jury. In sentencing H. to six months imprisonment it
was
Held by the High Court (O'Keeffe P., Murnaghan and Henchy
JJ.), 1, that the sub-section did not empower the Committee
to conduct a criminal trial in violation of Article 38 of the
Constitution but merely authorised the Committee to
complete a step preliminary to a criminal trial in the High
Court, and that a conviction did not take place until the High
Court had recorded a conviction after the completion of a
proper inquiry.
2. If the functions and powers of the Committee were of a
judicial nature, they were limited functions and powers which
were authorised by Article 37 of the Constitution.
3. The sub-section did not infringe the provisions of Article
38, s. 5, of the Constitution relating to a right to trial by jury
since, if a right to trial by jury existed because the offence
created by the sub-section was not a minor offence, the
terms of the sub-section did not preclude a trial in that form.
[1971]
1 I.R.
In re Haughey
218
High Court
Attorney General v. O'Kelly [1928] I.R. 308 and Attorney
General v. Connolly [1947] I.R. 213 considered.
4. Standing Order 127 of Dil ireann had been duly
made in accordance with the provisions of Article 15, s. 10,
of the Constitution.
5. That the certificate of the Committee contained a

sufficient statement of the offence with which H. had been
charged, although the statement did not specify the
questions which he had refused to answer: and that a
majority decision by the Committee to certify the offence
was sufficient.
On appeal by H. it was
Held by the Supreme Court, in allowing the appeal, 1, that
the offence created by the sub-section was not the offence
of contempt of court but was an ordinary criminal offence
which, by reason of the unlimited nature of the penalty
authorised upon conviction, was not a minor offence within
the meaning of s. 2 of Article 38 of the Constitution.
Conroy v. Attorney General [1965] I.R. 411 and The State
(Sheerin) v.Kennedy [1966] I.R. 379 applied.
2. That, accordingly, a person charged with that offence was
entitled to a trial by jury under the provisions of s. 5 of
3. That the presumption in favour of the validity of an Act of
the Oireachtas, having regard to the provisions of the
Constitution, was sufficient to support a construction of the
sub-section which required the trial of the person accused of
the offence to be held in the High Court, but the presumption
was not sufficient to support a construction which would
authorise a trial by jury.
McDonald v. Bord na gCon [1965] I.R. 217 and East
Donegal Co-Operativev. Attorney General [1970] I.R. 317
applied.
4. That, as the sub-section purported to authorise a
summary trial in the High Court in relation to an offence
which was not a minor offence, the sub-section infringed the
provisions of Article 38, s. 5, of the Constitution and was
invalid.
5. That, if the offence created by the sub-section had been a
minor offence and therefore triable in a summary manner by
a court of summary jurisdiction pursuant to s. 2 of Article 38,
then (a) the High Court would not have jurisdiction to try the
person accused of the offence as that court was not a court
of summary jurisdiction and (b) the sub-section would violate
the provisions of Article 38 by allowing a penalty appropriate

to a non-minor offence to be imposed upon conviction for a
minor offence.
Held further by the Supreme Court ( Dlaigh C.J., Walsh,
Budd, FitzGerald and McLoughlin JJ.) as follows:
6. (Per Dlaigh C.J., Walsh, Budd and FitzGerald JJ.). The
facts that the evidence against H. in the High Court had been
given on affidavit instead of orally as required in a criminal
trial and that H. had been denied an opportunity to crossexamine the witnesses who gave evidence against him
furnished an additional ground for setting aside his
conviction and sentence.
7. (Per Dlaigh C.J., Walsh and Budd JJ.). As the
certificate of the Committee was the only document which
described the charge made againstH., it should have
contained particulars of the relevant questions and an
assertion by the Committee that they could require answers
to those questions.
8. (Per eosdem) The role of H. before the Committee was
not that of a witness but was that of a party accused of
serious offences, whose conduct had become the subject
matter of the Committee's inquiry and, accordingly, in those
circumstances the enforcement of any rule of procedure
which would deprive H. of his right to cross-examine, by
counsel, his accusers and to address, by counsel, the
Committee in his defence would violate the rights
guaranteed by Article 40, s. 3, of the Constitution.
9. (Per Dlaigh C.J., Walsh, Budd and McLoughlin JJ.) Any
examination by the Committee of the expenditure of moneys
of the Irish Red Cross Society lodged in the same bank
account as moneys from the grant-in-aid would be
[1971]
1 I.R.
In re Haughey
219
High Court
outside the functions of the Committee, except for the
purpose of segregating the two funds.

9. (Per Dlaigh C.J., Walsh, Budd, FitzGerald and
McLoughlin JJ.) That the standing orders of Dil ireann
had been duly made pursuant to Article 15, s. 10, of the
Constitution; and that the Committee had power to
administer oaths.
10. (Per Dlaigh C.J., Walsh, Budd, and FitzGerald JJ.)
That a majority decision of the Committee to certify an
offence under the sub-section was sufficient.
Motion on Notice.
On the 19th February, 1971, the High Court (O'Keeffe P.) on
the application ex parte of the Attorney General made an
order giving him liberty to serve on Mr. Pdraic Haughey a
notice requiring him to attend before the High Court on the
24th February, 1971, to show cause why he should not be
punished in like manner as if he had been guilty of contempt
of the High Court; the order also directed that a copy of the
order and a copy of a certificate dated the 18th February,
1971, of the Committee of Public Accounts of Dil
ireann should be served with the said notice.
On the 22nd February Mr. Pdraic Haughey issued a
plenary summons (1971. No. 701 P.) in the High Court
naming the Attorney General as defendant and seeking a
declaration that the Committee of Public Accounts of Dil
ireann (Privilege and Procedure) Act, 1970, was
repugnant to the Constitution.
When Mr. Pdraic Haughey attended, as respondent, before
the President of the High Court on the 24th February he
undertook to file in the Central Office on or before the 8th
March a statement of the grounds upon which he relied in
claiming that the Act of 1970 was repugnant to the
Constitution and invalid; and on the 24th February the
President ordered the applicant to file in the Central Office
on or before the 1st March an affidavit stating the facts
which were alleged to constitute an offence under the Act of
1970; and the President further ordered the respondent to
file in the Central Office on or before the 8th March a notice
or affidavit showing cause (other than the alleged grounds
for the invalidity of the Act of 1970 under the Constitution)

why he should not be punished in like manner as if he had
been guilty of contempt of court; and the 10th March was
fixed as the date for the hearing of the questions arising on
the documents to be filed. The respondent did not ask for a
trial by jury. An affidavit of Patrick Hogan was filed on behalf
of the applicant on the 26th February and two notices were
filed on behalf of the respondent on the 8th March.
The applicant's motion was heard in the High Court
(O'Keeffe P., Murnaghan and Henchy JJ.) on the 10th, 11th
and 12th March
[1971]
1 I.R.
In re Haughey
O'Keeffe P.
220
High Court
and on the last day the High Court made an order in the
following terms:". . . And the Court having on the 10th
day of March 1971 refused an application on the part of
counsel for the said Pdraic Haughey for leave to crossexamine Patrick Hogan on his affidavit filed herein on the
26th day of February 1971 and the Court being satisfied that
the said Pdraic Haughey has been guilty of the offence
certified by the Committee of Public Accounts of Dil
ireann under the hand of its Chairman in writing dated
18th February 1971 namely that the said Pdraic Haughey
on the 17th day of February 1971 being in attendance as a
witness before the said Committee engaged in the
performance of the functions assigned to it by order of Dil
ireann made on the 1st day of December 1970 did
contrary to the provisions of Section 3 (4) (b)of the above
mentioned Act refuse to answer questions to which the said
Committee might legally require answers DOTH ORDER AND
ADJUDGE that the said Pdraic Haughey do undergo a term
of six calendar months imprisonment dating from this 12th
day of March 1971 in the custody of the Governor of
Mountjoy Prison in punishment of the said offence and IT IS
ORDERED that the Attorney General be at liberty to issue an

Order of Committal accordingly1 and the Court doth refuse
an application on the part of counsel for the said Pdraic
Haughey for bail or a stay pending an appeal to the Supreme
Court."
S. F. Egan S.C. , D. P. Sheridan S.C. and K. J. Haugh for the
applicant.
T. J. Conolly S.C. , A. J. Hederman S.C. and P. J. Connolly for
the respondent.
No judgment containing the reasons for the decision of the
High Court was delivered on the date of its order of the 12th
March, but such reasons were stated on the 31st March,
1971, as follows:
O'Keeffe P. :
31 March
I have had an opportunity of reading the judgment which Mr.
Justice Henchy is about to deliver and I agree with it for the
reasons stated therein.
[1971]
1 I.R.
In re Haughey
Murnaghan J.; Henchy J.
221
High Court
Murnaghan J. :
I accept that there are cogent reasons why the members of
the Court should give at the earliest convenient time their
reasons for the decision which the Court made on the 12th
March, 1971. As I have been on Circuit, I have not had the
necessary opportunity of formulating my reasons in writing.
However, I have been fortunate in having been afforded the

opportunity of reading a copy of the opinion about to be
delivered by Mr. Justice Henchy. In the circumstances, and in
the interest of expedition, I content myself with saying that I
agree generally with the reasons therein contained as the
basis of the decision which this Court has already
announced.
Henchy J. :
It was resolved by Dil ireann on the 1st December,
1970, that a committee of the House, the Committee of
Public Accounts, should make a special examination of the
expenditure of certain moneys. The precise wording of this
resolution, as passed in its amended form, was as
follows:"That the Committee of Public Accounts shall
examine specially the expenditure of the Grant-in-Aid for
Northern Ireland Relief issued from Subhead J., Vote 16
(Miscellaneous Expenses) for 1969/70 and any moneys
transferred by the Irish Red Cross Society to a bank account
into which moneys from this Vote were or may have been
lodged and shall furnish a separate report on this
expenditure as soon as possible." To make provision for
privilege, immunity and procedure in the performance by the
Committee of Public Accounts (hereinafter called "the
Committee") of its functions under that resolution, a special
Act entitled the Committee of Public Accounts of Dil
ireann (Privilege and Procedure) Act, 1970, was passed.
Sub-section 4 of s. 3 of this Act2 provides that, if a person
who appears before the Committee as a witness refuses to
answer any question to which the Committee may legally
require an answer, "the committee may certify the offence of
that person under the hand of the chairman of the
committee to the High Court and the High Court may, after
such inquiry as it thinks proper to make, punish or take steps
for the punishment of that person in like manner as if he had
been guilty of contempt of the High Court."
Amongst those summoned to appear before the Committee
was Mr. Praic Haughey. When he appeared before the
Committee on the 17th February, 1971, and was sworn as a
witness, he was told by the chairman of the Committee that

it was proposed to ask him
[1971]
1 I.R.
In re Haughey
Henchy J.
222
High Court
certain questions. Thereupon, asserting that he was entitled
as of right to make a sworn statement, he read out a written
statement3in which, having deposed to certain matters of
fact, he stated that he was not prepared to be examined by
the Committee. After an interval, during which the
Committee sat in private, the Committee reassembled in
public and the chairman put a series of questions to Mr.
Haughey. It was clear from the replies he gave to these
questions that he was not prepared to give any information
to the Committee other than what was in his written
statement. When asked if he claimed the right to refuse to
answer any question whatsoever that the Committee might
put to him, Mr. Haughey replied:"I am further advisedI
will read the last sentence [of the written statement]not
to answer any questions, for the reasons already given."
Faced with that impasse, the chairman ceased to examine
Mr. Haughey further.
In exercise of the powers vested in them by s. 3, sub-s. 4, of
the Act, the Committee then certified to the High Court on
the 18th February, 1971, under the hand of the chairman
that, by reason of his refusal to answer questions to which
the Committee legally required answers, Mr. Haughey had
committed an offence under the Act. Thereupon the High
Court, on motion of the Attorney General, gave liberty to the
Attorney General to serve a notice on Mr. Haughey calling on
him to attend before the High Court on the 24th February,
1971, to show cause why he should not be punished in like
manner as if he had been guilty of contempt of the High
Court. When the matter came before the High Court on that
date, it transpired that Mr. Haughey had issued a plenary
summons against the Attorney General seeking to have the

Act declared invalid as being repugnant to the Constitution.
On Mr. Haughey by his counsel undertaking to file in the High
Court and to serve on the Chief State Solicitor a statement of
the grounds on which he claimed the Act to be repugnant to
the Constitution and invalid, he was ordered to file in the
High Court a notice or affidavit showing cause (other than
the grounds for challenging the constitutional validity of the
Act) why he should not be punished in like manner as if he
had been guilty of contempt of the High Court. The matter
then came before this Court to determine if he should be so
punished under the Act and, if so, whether the Act should be
held invalid as being repugnant to the Constitution. At the
conclusion of the hearing the Court ruled against Mr.
Haughey on both of these issues but postponed giving its
reasons for so deciding. To-day the Court sits to give its
reasons.
[1971]
1 I.R.
In re Haughey
Henchy J.
223
High Court
I propose to deal first with the grounds (other than those
challenging the constitutional validity of the Act) relied on as
showing cause why Mr. Haughey should not be punished as if
he had been guilty of contempt of the High Court.
It is submitted that the powers and functions conferred on
the Committee by the resolution of Dil ireann
entrusting this inquiry to the Committee are ultra vires
Standing Order 127 of the standing orders of Dil ireann
. Standing Order 127 says that the function of the
Committee is "to examine and report to the Dil upon the
accounts showing the appropriation of the sums granted by
the Dil to meet the public expenditure, and to suggest
alterations and improvements in the form of the Estimates
submitted to the Dil."It is the contention of counsel for Mr.

Haughey that, when Dil ireann by its resolution of the
1st December, 1970, entrusted to the Committee an
examination of any moneys transferred by the Irish Red
Cross Society to a bank account into which moneys voted by
Dil ireann were or may have been lodged, Dil
ireann was seeking to endow the Committee with
functions beyond the ambit of those vested in it by Standing
Order 127. The moneys of the Irish Red Cross Society, it is
said, derive from sources such as public subscriptions and
Standing Order 127 gives no power to the Committee to
examine the expenditure of such moneys. Even if this
argument is correct, and I refrain from so holding, it would
avail Mr. Haughey only to the extent of making the resolution
of the Dil invalid in so far as it purported to delegate to the
Committee an examination of the expenditure of moneys
paid into a bank account by the Irish Red Cross Society; it
would not call into question the delegation to the Committee
of an examination of the expenditure of the Grant-in-Aid for
Northern Ireland. Consequently this argument, even if well
founded, would help Mr. Haughey only if his refusal had been
limited to questions dealing with the Red Cross moneys. It
was not so limited. For example, he specifically refused to
answer either affirmatively or negatively when he was asked
if he claimed a right to refuse to answer any question
whatsoever that the Committee might put to him. I hold that
this argument is irrelevant to the circumstances of this case.
It was next contended by counsel for Mr. Haughey that
Standing Order 127 (incorporating by internal reference
Standing Orders 67 and 70) has not been made by the Dil
as required by Article 15, s. 10, of the Constitution of Ireland.
The latter section states that each House of the Oireachtas
"shall make its own rules and standing orders." While
standing orders of Dil ireann , including one
[1971]
1 I.R.
In re Haughey
Henchy J.
224
High Court
corresponding to that now numbered 127, existed at the
date of the coming into operation of the Constitution on the
29th December, 1937, the complaint is that before any
standing order could have validity after that date it should
have been made by the Dil on or after that date. It
appears, however, that on the 12th January, 1938, the Dil
made a series of amendments in the standing orders as they
existed on the 29th December, 1937. Further amendments
were made on other dates and, in particular, the standing
order which is now numbered 127 was amended by the Dil
on the 29th October, 1963. The Constitution lays down no
procedure for the making of standing orders by the Dil. I
am satisfied that when the Dil formally amended an
existing standing order (or what was considered to be an
existing standing order) it may be said to have thereby made
such amended version a standing order for the purposes of
Article 15, s. 10, of the Constitution. Since the Dil did so in
regard to Standing Order 127, I consider that this challenge
to the validity of Standing Order 127 fails.
It is contended that, if these arguments against the
jurisdiction of the Committee in this case fail, Mr. Haughey is
not in default of s. 3, sub-s. 4, of the Act of 1970 in that the
questions he refused to answer were not questions to which
the Committee could have legally required him to answer
under oath. The basis of this submission is, first, that the
Committee had no power to administer an oath to him
because the Oireachtas Witnesses Oaths Act, 1924, did not
apply; and, secondly, that even if it did there was no
compliance with s. 3 of that Act. That this submission is
unmeritorious is shown by the fact that Mr. Haughey
appeared before the Committee armed with a written
statement which he read out under oath and in which he
claimed to be entitled as of right to make the statement
under oath. As a matter of law this submission has no
greater validity. The contention that the Act of 1924 does not
apply rests on the argument that it has application only to
the Houses of the Oireachtas of Saorstt ireann; but
the Constitution (Consequential Provisions) Act, 1937, adapts

its application to the present Houses of the Oireachtas and
any committee of either of these Houses. Section 3 of the
Act of 1924 provides that any oath under that Act may be
administered by a person appointed for that purpose by the
Ceann Comhairle. It has been proved in this Court that John
R. Tobin, clerk to the Committee, was duly authorised by the
Ceann Comhairle on the 23rd December, 1970, to administer
oaths for the purposes of s. 3 of the Act of 1924 and that it
was he who administered the oath to Mr. Haughey. So this
ground fails.
The point is taken, quite rightly, that sub-s. 4 of s. 3 of the
Act of 1970, being a penal provision, should be construed
strictly. For
[1971]
1 I.R.
In re Haughey
Henchy J.
225
High Court
that reason it is said that the certificate of the offence,
given under the hand of the chairman of the Committee, is
insufficient in that it does not specify what were the
questions which Mr. Haughey was legally required to answer
and which he refused to answer. It is argued that the charge
against Mr. Haughey should be given in the certificate with
the particularity of an indictment. If that be so, I would be
prepared to hold that the certificate complied with that
requirement. Section 4, sub-s. 1, of the Criminal Justice
(Administration) Act, 1924, provides that:"Every
indictment shall contain, and shall be sufficient if it contains,
a statement of the specific offence or offences with which
the accused person is charged, together with such
particulars as may be necessary for giving reasonable
information as to the nature of the charge." In the present
case the certificate4 could have left Mr. Haughey in no doubt
as to what offence he was being charged with and,
considering that he had failed to yield the information sought
by every question that was put to him, he cannot be heard

to say that the certificate withheld from him reasonable
information as to the nature of the charge. His counsel has
not, and could not, suggest that Mr. Haughey is prejudiced in
the present proceedings in any way by any want of
particularity in the certificate. The point is taken as a purely
technical one. In my view it is unsustainable.
The further point has been taken by counsel for Mr. Haughey
that the certificate does not show and it has not been
otherwise proved that the Committee decided unanimously
to give this certificate. Without citing any authority, counsel
submits that the Committee, being an unincorporated body,
could reach its decisions only by an unanimous vote.
However, I consider it to be well-settled law that a
parliamentary committee of this kind, charged as it is with
carrying out a duty of a public nature, is entitled to act by
majority decision: see the authorities cited by Professor
Hand in his article5 entitled "The Development of the
Common Law Principle of Majority Rule in the Arbitration of
Matters of Public Concern." Neither in his written notice
showing cause nor through his counsel in this Court has Mr.
Haughey questioned the making by the Committee of the
certificate filed in this Court. I have already rejected the
objection taken as to its lack of particularity. To that I add a
rejection of the submission that it should have been shown
that it was made by the unanimous decision of the
Committee.
When this matter was before the President of the High Court
on the 24th February, 1971, he gave liberty to Mr. Haughey
to show
[1971]
1 I.R.
In re Haughey
Henchy J.
226
High Court
cause by filing either an affidavit or a notice showing cause.
Mr. Haughey chose to file a statement of cause. He has led
no evidence at this hearing in support of the cause shown,

but he has applied for liberty to cross-examine the chairman
of the Committee. The reason given to the Court for that
application was that it was intended by such crossexamination to establish (a) the conduct of the Committee at
previous hearings, (b) that one or two other witnesses had
been allowed to give evidence before the Committee which
was based on hearsay and which was incriminatory of Mr.
Haughey, (c) that the Committee had gone outside the scope
of the Dil resolution committing this special examination to
the Committee, and (d) that the Committee had so
interpreted that resolution as to investigate the commission
of crimes by persons including Mr. Haughey. The application
for liberty to cross-examine has been refused on the ground
that none of the matters sought to be established by crossexamination could be said to be relevant to the issue as to
whether Mr. Haughey refused to answer questions to which
the Committee might legally require answers; and that was
the only issue on which it was sought to adduce this
evidence. Even if Mr. Haughey were justifiably aggrieved by
the conduct of the Committee in regard to other witnesses,
that could not justify him in refusing to submit to any
examination whatsoever by the Committee. The conduct of
the Committee in regard to other witnesses and the extent
to which they were keeping within their terms of reference
could conceivably be factors to be reckoned in deciding
whether they could legally require particular questions to be
answered but, since Mr. Haughey's attitude was one of total
refusal to divulge any information in response to any
question the Committee might put to him, the stage had not
been reached when such factors could be taken into
account. It follows that the matters sought to be brought out
in cross-examination in this Court were inadmissible on the
issue of Mr. Haughey's guilt. In my view Mr. Haughey fails in
all the grounds relied on by his counsel as showing cause.
There remains the claim that the Act of 1970 is invalid as
being repugnant to the Constitution. The first and principal
ground in support of this claim is that the mode of trial and
punishment laid down by s. 3, sub-s. 4, of the Act of 1970 for
the criminal offence created by that sub-section is such that,

if his offence be other than a minor one, Mr. Haughey is
denied his constitutional right to a trial with a jury. For my
part, I am prepared to hold that the offence created by s. 3,
sub-s. 4, is a criminal offence and that a conviction for it
does not take place until the Committee, under
[1971]
1 I.R.
In re Haughey
Henchy J.
227
High Court
the hand of the chairman, have certified the offence and the
High Court has recorded a conviction "after such inquiry as it
thinks proper to make." Therefore, applying the tests laid
down by the Supreme Court in Conroy v. Attorney General ,6
if it turns out that the offence is not a minor one for the
purposes of the provisions7of Article 38, s. 2, of the
Constitution, the person certified by the Committee is prima
facie entitled to trial by jury under s. 5 of that Article. But in
Attorney General v. O'Kelly 8 Sullivan P. (with Meredith and
Hanna JJ. concurring) held that the then High Court had
jurisdiction to try summarily a charge of contempt of court
notwithstanding Article 72 of the Constitution of 1922 which
stated that:"No person shall be tried on any criminal
charge without a jury save in the case of minor offences
triable by law before a Court of summary jurisdiction and in
the case of charges for offences against military law triable
by Court Martial or other Military Tribunal." In Attorney
General v. Connolly 9 Gavan Duffy P. (with whom Maguire
and Davitt JJ. concurred) followed the judgment of Sullivan P.
in Attorney General v. O'Kelly 8 and held that the High Court
continued to have jurisdiction to try summarily a charge of
contempt of court notwithstanding the provisions of Article
38 of the present Constitution. If the law laid down in these
cases is applicable to the present case, it disposes of the
argument that s. 3, sub-s. 4, of the Act of 1970 dispenses
unconstitutionally with trial by jury.
If the law laid down in these cases were to be held not to

govern the present case, I would hold that a person
appearing before the High Court after the Committee has
certified his offence under s. 3, sub-s. 4, is not debarred from
trial by jury if the offence is not a minor one. The sub-section
makes clear that there shall be no punishment and,
therefore, no conviction in the High Court until"after such
inquiry as it thinks proper to make." If trial by jury is a
constitutional right in cases under the sub-section which are
too serious to be classified as minor, the problem is whether
such mode of trial is comprehended by the words "after such
inquiry as it thinks proper to make." It is a well-established
rule of interpretation that statutes which have been enacted
after the coming into operation of the Constitution enjoy a
presumption of constitutionality, and "one practical effect of
this presumption is that if in respect of any provision or
provisions of the Act two or more constructions are
reasonably open, one of which is constitutional and the other
or others are unconstitutional, it must be presumed
[1971]
1 I.R.
In re Haughey
Henchy J.
228
High Court
that the Oireachtas intended only the constitutional
construction and a Court called upon to adjudicate upon the
constitutionality of the statutory provision should uphold the
constitutional construction. It is only when there is no
construction reasonably open which is not repugnant to the
Constitution that the provision should be held to be
repugnant": see McDonald v. Bord na gCon .10Furthermore,
"an Act of the Oireachtas, or any provision thereof, will not
be declared 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 the Act should be given in cases of

doubt": see East Donegal Co-Operativev. Attorney General .
11
The provision in s. 3, sub-s. 4, of the Act of 1970 that the
High Court shall not punish or take steps for the punishment
of a person certified until "after such inquiry as it thinks
proper to make"involves no repugnancy to the Constitution
under this ground of complaint unless it can be shown that
the Oireachtas clearly intended the sub-section to empower
the High Court to convict and punish summarily in violation
of a constitutional right to trial by jury. Far from showing such
an intention, the sub-section in my view clearly permits trial
by jury if the judge or judges of the High Court consider that
mode of trial to be the proper form of inquiry, or part of the
proper form of inquiry, to be made before punishment is
inflicted. Trial by jury of a criminal offence is a form of inquiry
for, in effect, it involves a question being put to the jury by
the judge asking if they are unanimously satisfied beyond
reasonable doubt that the offence charged has been
committed by the accused. If trial by jury is a constitutional
necessity for the trial of certain types of offence under the
sub-sectionand I stress that I am not so decidingI see
nothing in the sub-section to prevent that mode of trial. On
the contrary, in stipulating that punishment is not to be
inflicted in the High Court until "after such inquiry as it thinks
proper to make," the sub-section should be read as making
trial by jury mandatory if the person certified by the
Committee is entitled under the Constitution to trial by jury.
Counsel for Mr. Haughey has argued that a contrary
conclusion is indicated if one looks at s. 17 of the Criminal
Procedure Act, 1967, which deals with the restriction of
publication of information as to the preliminary investigation
of indictable offences, because such restriction is
incompatible with the procedure involved under the Act
[1971]
1 I.R.
In re Haughey
Henchy J.
229
High Court
in question here. There might be force in that argument if s.
17 of the Act of 1967 were applicable to the present case,
but Part II of the Act of 1967 (comprising ss. 5-20) is headed
"Preliminary Examination of Indictable Offences in the
District Court" and has reference only to cases of indictable
offences originating in a preliminary examination in the
District Court. Since that is not the case here, it follows that
s. 17 of the Act of 1967 does not apply.
I would reject this challenge to the constitutional validity of
the Act of 1970 because a person charged under the subsection is either not entitled under the Constitution to trial by
jury or, if he is so entitled, the sub-section does not deprive
him of that right.
Counsel for Mr. Haughey proceeded to impugn the
constitutionality of the Act of 1970 by alleging that the
powers conferred on the Committee by the Act of 1970 and
by the Dil resolution of the 1st December, 1970 (and the
manner of the exercise of these powers) are contrary to
Article 34 of the Constitution in that they amount to an
administration of justice and an exercise of the judicial power
reserved by Article 34 for the Courts established under that
Article. Since the Dil resolution of the 1st December, 1970,
merely resolved that the Committee should make a special
examination of the expenditure of certain moneys and report
as soon as possible on that expenditure, and since it is silent
as to how that examination is to be carried out, I fail to see
how the provisions of the Constitution which are relied on
can be invoked against that resolution. Such examination is
not in any sense an exercise of judicial powers, since the
examination and the report following on it do not affect
rights or impose liabilities. As to the Act itself, even if there
be validity in the submission that the Act of 1970 empowers
the Committee to exercise functions and powers of a judicial
nature, since such functions and powers are limited and are
not exercisable in a criminal matter they are validated by
Article 37 of the Constitution. The power to certify an
offence, given to the Committee by s. 3, sub-s. 4, of the Act
of 1970, is not a power exercisable in a criminal matter; it is

merely a power exercisable for the purpose of bringing into
existence a criminal matter. If judicial powers are given to
the Committee by the Act, I would be prepared to hold that
these powers are properly exercisable under Article 37 of the
Constitution; since Article 37 provides that nothing in the
Constitution shall operate to invalidate the exercise of the
functions and powers permitted by that Article, Mr. Haughey
is thereby precluded from invoking against the Act, as he
seeks to do, Articles 6, 15, 28 and 34 of the Constitution.
The next point taken against the constitutional validity of
the Act of 1970 is that it confers on the Committee, contrary
to Article
[1971]
1 I.R.
In re Haughey
Henchy J.
230
High Court
38 of the Constitution, the power to try persons for criminal
offences. The only provision in the Act that has reference to
a criminal offence is s. 3, sub-s. 4, which empowers12 the
Committee to certify an offence but, as I have already
pointed out, that is not the trial of a criminal offence; it is
merely a step preliminary to the commencement of the trial
of a criminal offence in the High Court. I would hold that
nothing in the Act of 1970 is repugnant to Article 38 of the
Constitution.
As to the further complaint that the Committee have
interpreted the powers conferred on them by the Act in such
a manner that they have sought to try people for criminal
offences and otherwise have adopted procedures that violate
(or threaten to violate) the constitutionally guaranteed rights
of Mr. Haughey and others, there is no evidence before this
Court that the Committee have done so and an application
to receive such evidence was refused on the ground that it
would be irrelevant to the issue of guilt in this case.
However, even if such evidence were before the Court, I
would point out that the mere fact that an Act has been
operated in violation of constitutionally guaranteed rights is
not in itself sufficient to make the Act unconstitutional; the
provisions of the Act must have clearly stamped on them the
intention of the legislature that the Act may be operated
unconstitutionally. As was stated by the Supreme Court in
East Donegal Co-Operative v.Attorney General ,13 "the
presumption of constitutionality carries with it not only the
presumption that the constitutional interpretation or
construction is the one intended by the Oireachtas but also
that the Oireachtas intended that proceedings, procedures,
discretions and adjudications which are permitted, provided
for, or prescribed by an Act of the Oireachtas are to be
conducted in accordance with the principles of constitutional
justice. In such a case any departure from those principles
would be restrained and corrected by the Courts." If he
considers that any constitutionally guaranteed right of his
has been violated or is threatened with violation by the
Committee, Mr. Haughey is entitled to institute the
appropriate proceedings in the Courts but he is not entitled
to seek to redress any grievance he may have by adopting a
course of conduct which is forbidden by the Act and which is
calculated to frustrate the constitutional operation of the Act.
It was also submitted that the Act of 1970 violates Article
40, s. 3, of the Constitution14 in that the Committee is given
power to summon and examine witnesses in public without
such witnesses
[1971]
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Henchy J.
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being accorded any of the rights or protections accorded to
the ordinary citizen in the Courts established under the
Constitution. In particular it is complained that the ruling of
the Committee that witnesses will be allowed legal
representation only for the purpose of consultation amounts
to a denial of constitutional justice. As I have already pointed

out, even if that were the effect of the Committee's ruling it
would not render the Act of 1970 unconstitutional; but I find
nothing in the Act, or in the procedures laid down by the
Committee in its interim report, that could be said to be a
deprivation or diminution of the constitutional or legal rights
that a witness would be entitled to in a court established
under the Constitution.
Finally, it is argued that s. 3, sub-s. 4, of the Act of 1970 is
repugnant to the Constitution (in particular Article 38) in
failing to provide a punishment for the offence created by
the sub-section. Since the offence created is a constructive
contempt of the High Court and there is attached to it the
punishment which it would attract if it were a contempt of
the High Court, I cannot find any validity in this argument, as
the punishment is clearly defined by reference. In this, as in
other respects, there is nothing novel or unique about the
section; it merely reproduces provisions that are to be found
in a wide range of statutory provisions such as s. 1 of the
Tribunals of Inquiry (Evidence) Act, 1921, and the First
Schedule (para. 6) of the Restrictive Trade Practices Act,
1953, and s. 15 of the Solicitors (Amendment) Act, 1960, and
s. 60 of the Trade Marks Act, 1963.
For the aforesaid reasons I would disallow the cause shown.
Mr. Haughey has not asked for trial by jury and this Court,
having considered the law and the facts, does not consider a
trial by jury to be called for. Having regard to all the
circumstances, the sentence of six calendar months
imprisonment seems to me to be appropriate.
The respondent, Mr. Pdraic Haughey, appealed to the
Supreme Court from the order and judgment of the High
Court.
T. J. Conolly S.C. and A. J. Hederman S.C. (with them P.
J.Connolly ) for the respondent:
Section 3, sub-s. 4, of the Act of 1970 does not merely
create an offence of constructive contempt of court; it
creates a new substantive criminal offence which is
punishable in like manner as if the offender had been guilty
of contempt of the High Court. It is

[1971]
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Henchy J.
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punishable only after the taking of an essential step of a
judicial nature which is not authorised by the Constitution,
namely, the certifying to the High Court of the offence by the
Committee. The High Court is not given jurisdiction to try an
issue as to whether an offence has been committed; its
function is merely to determine the punishment of a person
who has been found by the Committee to be an offender.
Even on the assumption that the Committee's certificate is a
mere administrative stepanalogous to an
indictmentwhich is preliminary to a judicial inquiry by the
High Court, the sub-section is still unconstitutional as no
express provision is made for trial by jury, although the
offence created is not a minor one.
There are two alternative methods by which an
administrative tribunal can properly call the Courts in aid to
punish a default in appearing, or in giving evidence, before
it. First, the statute which sets up the tribunal may provide
that such default shall be a minor offence, punishable
summarily, as in s. 86 of the Local Government Act, 1941,
and in ss. 82 and 83 of the Local Government (Planning and
Development) Act, 1963; see also s. 76 of the Housing Act,
1966, and s. 75 of the Health Act, 1970. Secondly, the
tribunal may be empowered to certify to the High Court that,
in its view, a person has made such default, but the statute
reserves to the High Court the power to inquire fully into
such alleged default and to hear the defence of the person
charged and any evidence offered on his behalf and then,
having held such inquiry, the Court is empowered to punish
or take steps for the punishment of the person charged"in
like manner as if he had been guilty of contempt of the
court"as in the Special Commission Act, 1888, and s. 1, sub-
s. 2, of the Tribunals of Inquiry (Evidence) Act, 1921, and s.

19, sub-s. 2, of the Solicitors Act, 1954, and s. 15, sub-s. 2, of
the Solicitors (Amendment) Act, 1960.
Section 3, sub-s. 4, of the Act of 1970 empowers the High
Court to determine merely the quantum of the penalty which
it shall impose on a person who has already been found by
another tribunal to be in default, and the form of that
enactment is similar to s. 17, sub-s. 2, of the Control of
Prices Act, 1937, and s. 35, sub-s. 2, of the Minerals
Development Act, 1940, and para. 6 (4) of the First Schedule
to the Restrictive Trade Practices Act, 1953, and para. 12 (4)
of the Second Schedule to the Prices Act, 1958, and s. 8,
sub-s. 4, of the Land Act, 1965. It is possible that those
statutory provisions, unlike the enactment which is in issue
in this case, are justified on the basis that the tribunals
created by the relevant statutes are exercising"limited
functions and powers of a judicial nature, in matters
[1971]
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Henchy J.
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other than criminal matters" as authorised by Article 37 of
the Constitution. The matters into which the Committee of
Public Accounts has been inquiring have included criminal
matters, and this has brought the Committee into conflict
with Articles 34 and 38 of the Constitution.
A witness before a tribunal can be in contempt only if the
tribunal is acting within jurisdiction. In this case the
Committee had no jurisdiction to proceed with the inquiry
and the respondent was not a compellable witness before it;
the Committee had no jurisdiction either to compel Chief
Superintendent Fleming to give evidence before it, or to give
him privilege in respect of the evidence which he might elect
to give.
The Act of 1970 contravenes Article 40, s. 1, of the
Constitution in as much as witnesses who give evidence
before the Committee are deprived of the rights and

protections that are accorded to ordinary citizens in the
Courts established under the Constitution. The Act also
contravenes s. 3, sub-s. 2, of Article 40 in as much as a
citizen, whose good name has been attacked by evidence
which would not have been admitted in a court established
under the Constitution, is deprived of an opportunity to test
by cross-examination the allegations contained in such
evidence.
The effect of the evidence of Chief Superintendent Fleming
is to make the respondent a person who has been accused of
committing an offence and, therefore, his position resembles
that of a defendant who is being prosecuted rather than that
of a mere witness in an action.
It does not appear from the certificate of the Committee
whether its decision was made unanimously or by a majority.
If the Committee's decision was a majority one, it was made
ultra vires in the absence of a specific provision in the Act
that the Committee might certify the commission of an
offence on a majority verdict: Brainv. Minister of Pensions
15; Minister of Pensions v. Horsey .16 [They also referred to
Grindley v. Barker 17 and to Picea Holdings Ltd. v.London
Rent Assessment Panel .18]
The resolution by which the Committee was authorised to
embark on these enquiries was intra vires Dil ireann
to the extent only that it authorised the ascertainment of the
initial destination of the public funds which are the subject
matter of the inquiry. Thereafter, any transfers of the
moneys are private financial transactions into which the
legislature can have no jurisdiction to inquire. The Courts are
empowered to interfere to restrain the
[1971]
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In re Haughey
Henchy J.
234
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legislature from such an undue exercise of power:
Stockdale v.Hansard .19 Money paid to the Irish Red Cross

Society, though paid to a body set up pursuant to an Act of
the Oireachtas, is money paid into a private account.
Paragraph 14 of the Irish Red Cross Order, 1939, which
establishes the Irish Red Cross Society in accordance with
the Red Cross Act, 1938, provides that the accounts of the
Society "shall be audited by a duly qualified auditor
appointed by the Central Council" of the Society; but neither
in the Red Cross Act, 1938, nor in the amending Acts of 1944
and 1954 is there any provision empowering the
investigation of the Society's accounts by the Auditor and
Comptroller General.
[They also referred to Attorney General v. O'Kelly 20; The
State (Browne) v. Feran 21; Ex parte Grossman 22; The
State (Gettins) v.Fawsitt 23; Attorney General v. Casey 24;
Attorney General v.Connolly 25; Attorney General v. O'Ryan
and Boyd 26; John v. Rees 27; Kilbourn v. Thompson 28 and
Watkins v. U.S. 29]
S. F. Egan S.C. and D. P. Sheridan S.C. (with them K. J.
Haugh )for the Attorney General:
The previous admission by the Committee of hearsay
evidence is irrelevant to a consideration of the consequences
of the respondent's admitted refusal to answer questions put
to him by the Committee. A witness in the High Court who
refused to answer questions would not cease to be in
contempt, merely because hearsay evidence had been
admitted previously. Similarly, a witness in the High Court
does not enjoy any protection from allegations made against
him by another witness in the case.
An Act of the Oireachtas which has been passed since the
coming into force of the Constitution of Ireland, 1937, ought
not to be declared to be invalid where it is possible to
construe its provisions so that they accord with the
Constitution: East Donegal Co-Operativev. Attorney General
30; McDonald v. Bord na gCon .31 Section 3, sub-s. 4, of the
Act of 1970 is open to the construction that the Committee's
function is merely to refer a complaint to the High Court for
inquiry.
This inquiry may be a summary one if the High Court
decides that the offence that it is investigating is a minor

oneotherwise
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Henchy J.
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it must be by jury: Conroy v. Attorney General .32 The test
of whether an offence is a minor one is the penalty which is
actually imposed rather than that which the Court could
have imposed: Frank v.U.S. 33 By that test, the High Court
clearly found the respondent's offence to be a minor one
which was analogous to contempt of court, and one with
which (as with contempt of court) a superior court is
constitutionally empowered to deal without a jury: Attorney
General v. Connolly 34; Attorney General v. O'Kelly 35; In re
Earle 36;and The State (Quinn) v. Ryan .37 To that limited
extent, the High Court can properly be regarded as a court of
summary jurisdiction with the meaning of Article 38, s. 5, of
the Constitution.
The Committee of Public Accounts, which is created by
Standing Order 127 of the standing orders of Dil ireann
, is empowered by Standing Order 72 to arrive at a decision
by a simple majority. It is not a court; it is merely a factfinding tribunal and, as such, it may use hearsay evidence.
The witnesses' rights are protected adequately by s. 3, subs. 2, of the Act of 1970.
The Act of 1970 was passed in reliance on the Constitution
of 1937; it is more attenuated than the Tribunals of Inquiry
(Evidence) Act, 1921, because the protections of that Act are
embedded in the Constitution.
[They also referred to O'Connor's Justice of the Peace, Vol. I,
p. 130; and The State (Sheerin) v. Kennedy .38]
T. J. Conolly S.C. in reply:
The departure in the Act of 1970 from the formula
prescribed in the Tribunals of Inquiry (Evidence) Act, 1921,
cannot be explained by an assumed reliance on the
Constitution of Ireland, 1937, since that Constitution was in

force when the Solicitors Acts, 1954 and 1960, were passed
and the formula of the Act of 1921 was employed in those
Acts.
In Attorney General v. Connolly 34 and in Attorney General
v.O'Kelly 35 the Court held that a superior court of record
had an inherent power to commit for contempt of court and
did not consider the effect of the Constitution. [He also
referred to Attorney General v. Kissane .39]
If the Act of 1970 is to be held to confer an analogous power
to commit for contempt of the tribunal, such contempt,
being in the nature of a criminal contempt, should be
punishable by a fixed
[1971]
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In re Haughey
Dlaigh C.J.
236
Supreme Court
term of imprisonment and not by a term which depends on
the exercise of a discretion of the tribunal or the High Court:
Attorney General v. James .40 [He also referred to Gompers
v. Bucks Stove & Range Co. 41]
The effect of Article 72 of the Constitution of 1922and in
this respect the position has not been altered by the
Constitution of 1937is to preclude the High Court from
acting to any extent as a court of summary jurisdiction.
Where the subject of the inquiry is in essence a criminal
charge as in this case, there is no answer to the respondent's
claim of a right to be represented, and to cross-examine
witnesses, at the hearing of the charge. The clear words, or
necessary implication, which would be required to exclude
the principles of natural justice are not present in the Act of
1970. [He referred to McDonald v. Bord na gCon .42]
Cur. adv. vult.
The judgment delivered by Dlaigh C.J. was divided
into two parts. The first part was the judgment of the
Supreme Court on the issue of the constitutionality of the
Committee of Public Accounts of Dil ireann (Privilege

and Procedure) Act, 1970. On this issue only one judgment
was pronounced as Article 34, s. 4, sub-s. 5, of the
Constitution of Ireland, 1937, provides that the decision of
the Supreme Court on the validity of a law having regard to
the provisions of the Constitution shall be pronounced by
such one of the judges of the Court as the Court shall direct,
and that no other opinion on such question, whether
assenting or dissenting, shall be pronounced. The second
part, and the judgments of the other judges of the Supreme
Court, dealt with the several other grounds of appeal.
Dlaigh C.J. , delivering the judgment of the Court:
24 June
This appeal is taken by Mr. Pdraic Haughey against an
order of a divisional court of the High Court which is dated
the 12th March, 1971. The High Court, by its order, having
recited that"the Court being satisfied that the said Pdraic
Haughey has been guilty of the offence certified by the
Committee of Public Accounts of Dil ireann under the
hand of its Chairman in writing dated
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In re Haughey
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237
Supreme Court
18th February 1971 namely that the said Pdraic Haughey
on the 17th day of February 1971 being in attendance as a
witness before the said Committee engaged in the
performance of the functions assigned to it by order of Dil
ireann made on the 1st day of December 1970 did
contrary to the provisions43 of Section 3(4) (b) of the abovementioned Act refuse to answer questions to which the said
Committee might legally require answers" ordered and

adjudged as follows:"that the said Pdraic Haughey do
undergo a term of six calendar months imprisonment dating
from this 12th day of March 1971 in the custody of the
Governor of Mountjoy Prison in punishment of the said
offence." The order added that"the Attorney General be at
liberty to issue an Order of Committal accordingly." Counsel
for both parties have stated that this addendum formed no
part of the Court's spoken order and that they accept no
responsibility for it. By notice of appeal, also dated the 12th
March, Mr. Haughey appealed to this Court against the order
of the High Court; and on that day, on the application of Mr.
Haughey, this Court granted him an interim stay of
execution, and on the 16th March, 1971, the Court granted a
further stay of execution until the disposal of this appeal.
On the 1st December, 1970, it was ordered by Dil
ireann as follows:"That the Committee of Public
Accounts shall examine specially the expenditure of the
Grant-in-Aid for Northern Ireland Relief issued from Subhead
J, Vote 16 (Miscellaneous Expenses) for 1969/70 and any
moneys transferred by the Irish Red Cross Society to a bank
account into which moneys from this Vote were or may have
been lodged and shall furnish a separate report on this
expenditure as soon as possible." The Court was informed
that Vote 16 was voted on the 18th March, 1970.
The Committee of Public Accounts is a select committee of
Dil ireann which, pursuant to Standing Order 127 of
the standing orders of Dil ireann relative to public
business, is appointed as soon as may be after the beginning
of the financial year "to examine and report to the Dil upon
the accounts showing the appropriation of the sums granted
by the Dil to meet public expenditure and to suggest
alterations and improvements in the forms of the estimates
submitted to the Dil." On the 17th November, 1970, it was
ordered by Dil ireann in pursuance of Standing Order
127 that the Committee of Public Accounts be appointed. On
the 3rd December, 1970, the Committee of Selection
reported that it had nominated twelve named members of
Dil ireann to serve on the Committee of Public
Accounts on the appropriation accounts for

[1971]
1 I.R.
In re Haughey
Dlaigh C.J.
238
Supreme Court
the year ended 31st March, 1970, and the Dil thereupon
ordered that the report be laid before the Dil. The
Committee of Selection is authorised by Standing Order 73
to nominate the members to serve on select and special
committees. On the 10th December, 1970, the Committee of
Public Accounts met and Deputy Hogan was elected
chairman.
On the 15th December, 1970, the Committee presented an
interim report to the House in which it reported that in
considering the adoption of procedures to govern its
proceedings it had encountered a difficulty of a fundamental
nature, viz., the extent of the application of the provisions of
ss. 12 and 13 of Article 15 of the Constitution. Section 12
confers privilege on all official reports and publications of the
Oireachtas, or of either House thereof, and utterances made
in either House wherever published; and s. 13 provides, inter
alia, that the members of each House of the Oireachtas shall
not be amenable to any court, or any authority other than
the House itself, in respect of any utterance in either House.
The report stated that the difficulty for the Committee was
whether these sections, which it regarded as essential to the
effective discharge by members of the Houses of their
duties, were applicable to (a) the utterances in the
Committee of the members, advisers, officials and agents of
the Committee; (b) the utterances in the Committee of any
persons sent for by the Committee to give evidence; (c) the
documents of the Committee and of its members prior to an
order of the Dil that they be laid before it; and (d) any
papers or records sent to the Committee at its request or of
his own volition by any person prior to an order of the Dil
that such papers or records be laid before it. The report then
stated that it seemed to the Committee that, if the sections

of the Article did not apply, the effective conduct of the
business referred to it by the Dil might prove to be
impossible, having regard to the nature of the examination
which it must conduct.
Having exhibited an extract from the report of the Attorney
General's committee on legal points referred to the Attorney
General by the all-party Committee on the Constitution and
also the opinion of counsel whom the Committee consulted,
the Committee observed in its report that it would be seen
from these documents that, although the Committee had
been advised that it enjoyed absolute privilege, the
constitutional provisions might bear differing interpretations
as to whether privilege attaches to the documents of the
Committee before presentation to the House and to any
papers or records sent to the Committee by any person at its
request or of his own volition prior to an order of the Dil
[1971]
1 I.R.
In re Haughey
Dlaigh C.J.
239
Supreme Court
for presentation and to utterances made in the Committee.
The Committee further observed that in the circumstances,
and since it could not adjudicate authoritatively on the
issues, it had come to the conclusion that it would not be
proper for it to proceed with the examination of the matter
referred to it pending a resolution of the difficulty. The report
then added that "consideration of the legal opinions
suggests that the matter can be resolved by legislation" and
the Committee recommended the earliest adoption of this
course for the favourable consideration of the Dil. The
report also pointed out that the question as to whether the
Committee had power to compel the attendance of
witnesses was adverted to during the Dil debate on the
motion referring the examination of the expenditure of the
Grant-in-Aid to the Committee, and the Committee
suggested that the opportunity should be taken to resolve

this last matter also if the House should decide to take
legislative action, as suggested by the Committee.
Finally, the Committee reported that, in order to be in a
position to proceed as soon as possible when the difficulties
brought to its attention had been resolved, the Committee
had adopted a number of procedures to govern its
examination and these it sets forth in an appendix. It will
suffice, for present purposes, to refer to clauses (i), (iii) and
(viii) of the procedures. By clause (i) the Committee will sit in
public during the taking of evidence by it, but the chairman
is empowered to exclude persons at his discretion during the
taking of certain evidence. By clause (iii) the Committee will
allow witnesses to be accompanied, solely for the purpose of
consultation, by counsel, solicitors or advisers as may be
determined by the Committee in each relevant case.
However, such counsel, solicitors or advisers will not be
permitted to examine any witness nor to address the
Committee. By clause (viii) witnesses will be invited to
furnish preliminary statements.
On the 23rd December, 1970, the Committee of Public
Accounts of Dil ireann (Privilege and Procedure) Act,
1970, was passed by the Oireachtas. The term "committee"
is defined by s. 1 of the Act of 1970 as meaning the
Committee of Public Accounts of Dil ireann while
engaged in the performance of the functions assigned to it
by the order44 of Dil ireann made on the 1st
December, 1970. By s. 2, sub-s. 1, of the Act, the members
of the Committee shall not be amenable to any court, or any
authority other than Dil ireann , in respect of any
utterance in the Committee. By s. 2, sub-s. 2, of the Act (a)
the documents of the Committee and documents of its
members connected with its
[1971]
1 I.R.
In re Haughey
Dlaigh C.J.
240
Supreme Court
functions, (b) all official reports and publications of the
Committee and (c) the utterances in the Committee of the
members, advisers, officials and agents of the Committee,
wherever published, shall be privileged. By s. 3, sub-s. 1, of
the Act, the Committee may for the purposes of its functions
do all or any of the following things(a) summon
witnesses, by letters delivered to them personally or by
registered post, to attend before it; (b)examine the
witnesses attending before it; and (c) require any such
witness to produce to the Committee (or require any person,
by letter delivered to him personally or by registered post, to
send to the Committee) any document in his power or
control. By s. 3, sub-s. 2, of the Act a witness before the
Committee, and a person sending a document to the
Committee, shall be entitled to the same immunities and
privileges as if he were a witness before the High Court. By s.
3, sub-s. 3, of the Act a witness summons shall be signed by
at least one member of the Committee.
Section 3, sub-s. 4, of the Act of 1970 (under which Mr.
Haughey was dealt with) is in the following terms:
"(4) If any person
(a) on being duly summoned as a witness before the
committee makes default in attending, or
(b) being in attendance as a witness before the committee
refuses to take an oath or to make an affirmation when
legally required by the committee to do so, or to produce
any document in his power or control legally required by the
committee to be produced by him or to answer any question
to which the committee may legally require an answer, or
(c) fails or refuses to send to the committee any document
in his power or control legally required by the committee to
be sent to it by the person, or
(d) does anything which would, if the committee were a
court of justice having power to commit for contempt of
court, be contempt of such court,
the committee may certify the offence of that person under
the hand of the chairman of the committee to the High Court
and the High Court may, after such inquiry as it thinks
proper to make, punish or take steps for the punishment of

that person in like manner as if he had been guilty of
contempt of the High Court."
On the 17th February, 1971, when the Committee was
purportedly engaged in the performance of the functions
assigned to it by the order of Dil ireann made on the
1st December, 1970, Mr. Pdraic Haughey appeared before
the Committee as a witness, having been duly summoned to
appear. After Mr. Haughey had
[1971]
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In re Haughey
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241
Supreme Court
been sworn, the chairman of the Committee, addressing Mr.
Haughey, said:"Mr. Haughey, as you know, we are
investigating the question of the expenditure of a Grant-inAid of 100,000, and, owing to statements that have been
made about the alleged importation of arms, I want to ask
you a few questions in general in which you may be able to
help us?"
In reply, Mr. Haughey read out a written statement which he
handed later to the chairman. Mr. Haughey's statement, the
full text of which is annexed45 to this judgment, may be
summarised as follows. He said that he wished to make a
statement on oath. On the 29th January, 1971, he had
received a registered letter which was a notice to produce to
the Committee all documents in his possession touching on
the matters which the Committee was inquiring into. On the
6th February, 1971, he received by registered post a witness
summons signed by a member of the Committee. He was
there in answer to that summons. He had not then, nor had
he ever, any documents or copy documents which would or
could in any way relate to the matters being investigated by
the Committee. He never, directly or indirectly, got in touch
or sought to get in touch with Mr. C. J. Haughey in order that
he would authorise customs clearance of any guns,
ammunition or materials of any nature or description, nor did

he (Mr. C. J. Haughey) ever indicate to him what his attitude
would be if such requests were made to him, as the matter
never arose between them. Referring to reports which he
had read of "alleged evidence" given before the Committee,
he definitely never received or gave money, or received or
gave any cheque or any valuable security in the name of
George Dixon; nor did he ever use the name George Dixon in
any connection with any financial or banking dealings. No
moneys from the Grant-in-Aid for Northern Ireland Relief
were ever paid to him, nor did he ever have any control over
any of these moneys, nor had he ever any say in the
disbursement of this money. His brother, Charles Haughey,
never discussed with him the moneys voted for Northern
Ireland reliefuntil after he had received a subpoena to
appear before the Committee.
Mr. Pdraic Haughey then said he wished to state the
reasons why he was not prepared to be examined by the
Committee. He was advised by his lawyers that the
and Procedure) Act, 1970, did not give any privilege or
immunity to any newspaper, periodical, radio, or television
which published any evidence allegedly given before the
Committee. His legal advisers were then considering his
position in civil law, as a result of reports of alleged evidence
already given
[1971]
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In re Haughey
Dlaigh C.J.
242
Supreme Court
by witnesses before the Committee, in so far as that alleged
evidence referred to him personally and he was advised that,
by giving evidence before the Committee, he might be liable
in civil law and under the laws of the land for any answer he
might make. While he appreciated that the laws of evidence
might well be stretched by a non-legal body, such as the
Committee, nevertheless he was not prepared to submit to

examination arising out of so-called principles of justice. He
was advised that because of the publicity already given to
allegations not based on best evidence or admissions made
against him he was entitled as of right to make a sworn
statement, and he was further advised not to answer any
questions for the reason already given. Mr. Haughey then
handed in copies of his statement, and the chairman, having
ascertained from Mr. Haughey that he was following the
advice he had been given, announced that the Committee
would go into private session.
After an interval of three-quarters of an hour, the
Committee resumed public session and the chairman then
asked Mr. Haughey a number of questions. The chairman's
first questions were an inquiry as to whether Mr. Haughey
accepted the authority of the Committee (i) to conduct the
investigation, (ii) to summon witnesses, and (iii) to examine
witnesses appearing before it. Mr. Haughey's answer in
relation to item (ii) was that he was subpoenaed to come
there; as to the other matters, his answer was to refer to his
sworn statement. The chairman then asked:"Do you then
claim the right to refuse to answer any question whatsoever
that this Committee of Dil ireann may put to you?" Mr.
Haughey replied:"I am further advisedI will read the
last sentence not to answer any questions, for the reasons
already given." The chairman then read s. 3, sub-s. 2, of the
Act of 1970 to Mr. Haughey. Mr. Haughey repeated that he
was advised not to answer any question for the reasons
already given. Then the chairman said:"I just want to ask
you one other question: did you travel by plane to England
with Mr. [name given] and others?" Mr. Haughey replied as
before. The chairman next read to Mr. Haughey the terms46
of s. 3, sub-s. 4, of the Act of 1970. He added:"I thinks it
is only fair to warn you that the Committee may be obliged
to act on that if you continue to refuse to answer questions
or give evidence." Continuing, the chairman referred to a
Government decision at a meeting on the 16th August, 1969,
that a sum of moneythe amount and the channel of
disbursement of which would be determined by the Minister
for Financewould be made available from the Exchequer

to provide aid for victims
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of the current unrest in the Six Counties, and he asked Mr.
Haughey if he was aware that the Government had so
decided. Mr. Haughey replied:"I have made a sworn
statement, Mr. Chairman, and everything in it is relevant to
your inquiry, as far as in relation to me personally." The
chairman then referred to an announcement made by the
Government Information Bureau on the same date stating
that the Minister for Finance would make funds available for
the relief of victims of the disturbances in the Six Counties
and that he would have early consultation with the chairman
of the Irish Red Cross, and he asked Mr. Haughey if he was
aware that the Government Information Bureau had so
announced. Mr. Haughey repeated that he was advised not
to answer any questions. The chairman then said:"You
are refusing to answer that questionwould you say 'yes'
or 'no'?" Mr. Haughey replied:"I am further advised not to
answer any questions." The chairman concluded by
saying:"We will take that as a 'no'. Thank you very
much." Mr. Haughey then thanked the chairman and
Committee and, having first inquired if he was free to go, he
withdrew.
On the application of counsel for Mr. Haughey, this Court
admitted the printed transcript of the minutes of the
evidence given before the Committee by Chief
Superintendent John P. Fleming on Tuesday, the 9th
February, 1971, which was a week before Mr. Haughey
appeared before the Committee. The chairman began the
session by saying to the Chief Superintendent:"You know,
of course, that we are investigating this question of the
expenditure of public money." He then asked:"Have you
any information in respect of the passage of money to any

persons or organisations which might be of help to us?" The
Chief Superintendent replied "Yes, I have" and he then asked
for, and received, permission to refer to a note for dates and
amounts. He then added that, at the outset, he wished to
point out that all his information had come from confidential
sources and that he was not at liberty to reveal the sources.
In the course of his evidence Chief Superintendent Fleming
then made several references to Mr. Pdraic Haughey, as
follows:
(i) In or about the third week of August, 1969, Mr. Haughey
paid over 1,500 in London to Cathal Goulding, Chief of
Staff of the I.R.A.
(ii) In August or September Mr------- [name given] had a
meeting with a certain leading I.R.A. leader in Dublin and
promised him about 50,000 for funds for the I.R.A., for the
North; he was not sure about future meetings but he knew
Mr. Haughey was deeply involved.
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(iii) One consignment of arms at least came in through
Dublin Airport some time early in Octoberthere could
have been a second or thirdand Mr. Haughey made all
arrangements at the airport to take in this consignment. He
handed them over at the airport to two leading I.R.A. men.
As far as he was aware the arms were taken away in a truck.
When asked by the chairman "Have you any knowledge of
the source of the moneys which paid for the arms?," the the
Chief Superintendent replied:"I imagine it came from the
grant-in-aid fund."
(iv) Mr. Haughey went to London on the 16-17th November,
1969. and from confidential information the witness knew
that he went for the purpose of purchasing arms, and that he
travelled with a person referred to as "J" on the Committee's

code list.
(v) There could well have been other arms shipments in
which Mr. Haughey or Captain----- [name given] may have
been involved, but the witness had no evidence, no direct
evidence: it was speculation or rumour.
(vi) Deputy Keating referred to a copy letter of the 17th
November. 1969, addressed to the Manager of the National
Provincial Bank Ltd., Piccadilly, London, confirming the
contents of a telephone conversation to the effect that a Mr.
George Dixon would call to cash cheques to a total of
11,450 on the 18th November, giving the number of the
cheque book, and requesting that he be assisted. The Chief
Superintendent said he believed that Mr. George Dixon was
Mr. Haughey, and he said the 11,450 was to be used for
the purchase of arms in England. He had no information of
an importation of arms which would correspond to this.
(Deputy Keating added that they knew the facility was not
used.)
On the 18th February, 1971 (which was the day following
the sitting of the Committee at which Mr. Haughey appeared)
a certificate pursuant to s. 3, sub-s. 4, of the Act of 1970 was
forwarded by the secretary of the Committee to "The
Registrar, High Court . . . for the consideration of the High
Court." The certificate was in the following form.
"In the matter of:Committee of Public Accounts of Dil
ireann (Privilege and Procedure) Act, 1970.
I, Patrick Hogan of John Street, Cashel, County Tipperary,
Surgeon and Dil Deputy, hereby certify as follows:
1. I am and was at all material times Chairman of the
Committee of Public Accounts of Dil ireann .
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2. The said Committee was on the 17th day of February

1971 engaged in the performance of the functions assigned
to it by Order of Dil ireann made on the 1st day of
December, 1970.
3. One Pdraig Haughey of 25 Foxfield Avenue, Raheny,
Dublin 3, having been summoned to attend before the said
Committee duly attended as a witness before the said
Committee on the 17th day of February 1971 when the said
Committee was lawfully engaged in the performance of its
said assigned functions.
4. The said Pdraig Haughey on the said occasion, contrary
to the provisions of Section 3 (4) (b) of the Committee of
Act, 1970, refused to answer questions to which the said
Committee legally required answers.
5. The said Committee, therefore, in accordance with the
provisions of Section 3 (4) of the said Act, hereby certifies to
the High Court that an offence under the said Act has been
committed by the said Pdraig Haughey by reason of his
refusal to answer the said questions.
Given under my hand as Chairman of the said Committee.
P. Hogan
Chairman of the Committee of
Public Accounts of Dil ireann .
18th February, 1971."
On the 19th February, 1971, the President of the High Court,
on motion of counsel for the Attorney General, made an
order which, having recited the reading of the certificate,
ordered "that the Attorney General be at liberty to serve on
the said Pdraic Haughey a notice requiring him to attend
before the High Court in the President's Court at 11 a.m. on
Wednesday the 24th February 1971 to show cause why he
should not be punished in like manner as if he had been
guilty of contempt of the High Court . . ." On the 22nd
February, 1971, Mr. Haughey issued a plenary summons in
the High Court against the Attorney General claiming a
declaration that the Committee of Public Accounts of Dil
ireann (Privilege and Procedure) Act, 1970, was repugnant
to the Constitution. When Mr. Haughey attended before the
President on the 24th February, it was ordered that the

Attorney General should file before the 1st March an affidavit
stating the facts upon which it was alleged Mr. Haughey had
committed an offence under the Act of 1970 and that Mr.
Haughey should, on or before the 8th March, file a motion or
an affidavit showing cause, and that the hearing should be
fixed for the 10th March, 1971. The matter came on for
hearing on that date before a divisional court consisting
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of the President, and Mr. Justice Murnaghan and Mr. Justice
Henchy. It was agreed that Mr. Haughey, in addition to the
grounds relied upon to show cause, should be free to rely on
the grounds upon which, in the action he had brought, he
sought a declaration that the Act was unconstitutional. The
order of the divisional court was made on the 12th March
and the reasons of the members of that court were stated on
the 31st March, 1971. The President agreed with the reasons
stated in the judgment of Mr. Justice Henchy. Mr. Justice
Murnaghan, who in the interval had been on circuit and had
not the necessary opportunity of formulating his reasons in
writing, stated that in the interest of expedition he would
content himself by saying he agreed generally with the
reasons stated in Mr. Justice Henchy's judgment as the basis
of the decision which the High Court had announced on the
12th March, 1971.
The major question raised by this appeal is the validity of s.
3, sub-s. 4, of the Act of 1970, having regard to the
provisions of Article 38 of the Constitution. The terms47 of
the impugned subsection have already been set out and
need not be re-stated.
Article 38 of the Constitution is entitled "trial of offences"
and is as follows:
"1. No person shall be tried on any criminal charge save in
due course of law.

2. Minor offences may be tried by courts of summary
jurisdiction.
3. 1 Special courts may be established by law for the trial of
offences in cases where it may be determined in accordance
with such law that the ordinary courts are inadequate to
secure the effective administration of justice, and the
preservation of public peace and order.
2 The constitution, powers, jurisdiction and procedure of
such special courts shall be prescribed by law.
4. 1 Military tribunals may be established for the trial of
offences against military law alleged to have been
committed by persons while subject to military law and also
to deal with a state of war or armed rebellion.
2 A member of the Defence Forces not on active service
shall not be tried by any courtmartial or other military
tribunal for an offence cognisable by the civil courts unless
such offence is within the jurisdiction of any courtmartial or
other military tribunal under any law for the enforcement of
military discipline.
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5. Save in the case of the trial of offences under section 2,
section 3 or section 4 of this Article no person shall be tried
on any criminal charge without a jury.
6. The provisions of Articles 34 and 35 of this Constitution
shall not apply to any court or tribunal set up under section 3
or section 4 of this Article."
In the circumstances of this case, the trial of offences by
special courts (section 3) or by military courts (section 4)
may be ignored; what remains of relevance in Article 38 are
ss. 2 and 5 which, read together, provide that no person
shall be tried on any criminal charge without a jury, save for

minor offences tried by courts of summary jurisdiction.
Article 38 recognises two categories of offence, namely,
minor offences and offences which are not minor offences
and which, for brevity, may be called non-minor offences.
How is it to be determined into which category an offence
falls? Of the relevant criteria, the most important is the
severity of the penalty which is authorised to be imposed for
commission of the offence. This test was laid down by this
Court in Conroy v. Attorney General, 48 which has been
followed in The State (Sheerin) v. Kennedy .49 The decision
in Conroy's Case 48 followed the judgment of the former
Supreme Court in Melling v. O Mathghamhna. 50 Turning
back to s. 3, sub-s. 4, of the Act of 1970, the penalty
authorised for the offence which is in question in this ease is
such penalty as can be imposed for contempt of the High
Court. Contempt of court is a common-law misdemeanour
and, as such, is punishable by both imprisonment and fine at
discretion, i.e., without statutory limit. Some English
authorities suggest that limits are nevertheless to be
imposed that imprisonment must not be inordinately
heavy and the fine not excessive or unreasonablebut the
position remains that a common-law misdemeanour can be
punished by a penalty entirely outside the range of penalty
permissible for a minor offence: see Archbold's Practice in
Criminal Cases, 36th ed., paras. 659 and 662. On the
authority of the decisions of this Court, referred to above,
the offence in question here is not a minor offence. Counsel
for the Attorney General submitted that the Court should
follow the decision of the United States Supreme Court in
Frank v. United States 51 and apply as a test, not the
severity of the penalty authorised,but of the penalty actually
imposed. Here the sentence imposed by the High Court was
six months imprisonment, and
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this would be within the range of penalty appropriate in the
case of a minor offence. This Court sees no reason for
departing from the test it laid down in Conroy's Case 52
Frank's Case 53 was a case of contempt of court; the present
case is not a case of contempt of court but an ordinary
criminal prosecution. Moreover, it should be noted that
Marshall J., who delivered the opinion of the majority of the
court in Frank's Case, 53 expressly excluded the test of the
penalty actually imposed in ordinary criminal prosecutions.
At p. 149 of the report his words are:"In ordinary criminal
prosecutions, the severity of the penalty authorized, not the
penalty actually imposed, is the relevant criterion." To apply
the test of the penalty actually imposed would, in effect, be
to deny to an accused the substance of the right to trial by
jury guaranteed by Article 38, s. 5, of the Constitution.
Therefore, the offence which s. 3. sub-s. 4, of the Act of 1970
has created is a non-minor offence.
Three possible constructions of the impugned sub-section
have been put forward during the course of the
argument:
(i) that the sub-section purports to authorise the Committee
to try and convict, and thereupon to send the offender
forward to the High Court for punishment;
(ii) in the alternative, that the sub-section merely authorises
the Committee to complain to the High Court and,
thereupon, that it is for that court to try summarily and, if it
should convict, to punish the offender;
(iii) in the further alternative, that the sub-sectionas in
(ii) merely authorises the Committee to complain to the
High Court and, thereupon, that it is for the court either
summarily, or upon indictment (i.e., by jury), to try and, if it
should convict, to punish the offender.
It has been strongly urged on behalf of Mr. Haughey that the
first construction is the correct construction. That argument
has been based upon contrasting the formula to be found in
the impugned sub-section with the formula of sub-s. 2 of s. 1
of the Tribunals of Inquiry (Evidence) Act, 1921.54 The latter
sub-section is in these terms:

"(2) If any person
(a) on being duly summoned as a witness before a tribunal
makes default in attending; or
(b) being in attendance as a witness refuses to take an oath
legally required by the tribunal to be taken, or to produce
any document in his power or control legally required by the
tribunal to be produced by
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him, or to answer any question to which the tribunal may
legally require an answer; or
(c) does any other thing which would, if the tribunal had
been a court of law having power to commit for contempt,
have been contempt of that court;
the chairman of the tribunal may certify the offence of that
person under his hand to the High Court, or in Scotland the
Court of Session, and the court may thereupon inquire into
thealleged offence and after hearing any witnesses who may
be produced against or on behalf of the person charged with
the offence, and after hearing any statement that may be
offered in defence, punish or take steps for the punishment
of that person in like manner as if he had been guilty of
contempt of the court."
If one compares the formula of the Act of 1970 with that of
the Act of 1921, the provenance of the former Act is
apparent. But there are significant differences. It will be
noted that the Act of 1921 refers to an inquiry into "the
alleged offence" and speaks of hearing any witness
produced against or on behalf of "the person charged with
the offence," and there are further references to the rights of
the defendant which are spelt out with care. Mr. Haughey's
counsel has called attention to the absence of these very
features from the Act of 1970. That Act states baldly that
"the committee may certify the offence of that person . . . to

the High Court and the High Court may, after such
inquiry . . . punish . . ." It has been urged on behalf of Mr.
Haughey that the Act of 1970 intended to authorise the
Committee to try and to convict and, thereupon, to send the
offender forward to the High Court for punishment. It may be
noted that the Committee itself appears to have thought
that this was the correct construction. The curial clause of
the Committee's certificate55 reads:"The said
Committee, therefore, in accordance with the provisions of
Section 3(4) of the said Act, hereby certifies to the High
Court that an offence under the said Act has been committed
by the said Pdraig Haughey by reason of his refusal to
answer the said questions." The Committee departed from
the strict wording of the section, which states that it
may"certify the offence," and certified that an offence had
beencommitted by the witness.
If one examines the impugned sub-section in the light of the
ordinary canons of construction, the Committee's
viewwhich is also the view contended for on behalf of Mr.
Haugheyhas much to support it. The sub-section seems
to say precisely what the Committee interpreted it as saying.
If that view is the correct view, then the sub-section has
authorised the Committee to try and to
[1971]
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convict a witness of a criminal offence. But the trial of a
criminal offence is an exercise of judicial power and is a
function of the Courts, not of a committee of the Legislature.
Article 34 of the Constitution provides that justice shall be
administered in courts established by law by judges
appointed in the manner prescribed by the Constitution. The
Committee of Public Accounts is not a court and its members
are not judges. The Constitution of Ireland is founded on the
doctrine of the tripartite division of the powers of

governmentlegislative, executive and judicialas
appears from an examination of Articles 6, 15, 28 and 34;
and a statute that conferred on a committee of the
Legislature a power to try a criminal offence would be
repugnant to the Constitution and invalid, and a conviction
by such committee, and any sentence pursuant thereto,
could not stand. Moreover, under the Constitution the Courts
cannot be used as appendages or auxiliaries to enforce the
purported convictions of other tribunals. The Constitution
vests the judicial power of government solely in the Courts
and reserves exclusively to the Courts the power to try
persons on criminal charges. Trial, conviction and sentence
are indivisible parts of the exercise of this power: see
Deaton v. Attorney General .56
The formula of the Act of 1921 has been copied verbatim in
at least a couple of instances in our legislation and
significantly, perhaps, in s. 19, sub-s. 2. of the Solicitors Act,
1954, and in s. 15, sub-s. 2, of the Solicitors (Amendment)
Act, 1960. The truncated version which is found in the Act of
1970 first appeared, so far as counsel's researches have
gone, in s. 17, sub-s. 2, of the Control of Prices Act, 1937,
and was repeated in s. 35 of the Mineral Development Act,
1940, and para. 6(4) of the First Schedule to the Restrictive
Trade Practices Act, 1953. Mr. Haughey's counsel has called
attention, by way of contrast, to the wholly unobjectionable
formula employed in s. 86 of the Local Government Act,
1941, and in s. 82, sub-s. 7 (b) (iv) of the Local Government
(Planning and Development) Act, 1963. The formula in the
latter Act reads as follows:
"every person to whom a notice has been given who refuses
or wilfully neglects to attend in accordance with the notice or
who wilfully alters, suppresses, conceals or destroys any
document to which the notice relates or who, having so
attended, refuses to give evidence or refuses or wilfully fails
to produce any document to which the notice relates shall be
guilty of an offence and shall be liable on summary
conviction to a fine not exceeding twenty pounds."
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When one compares the formula of the Act of 1921 with its
truncated successor, it will be noted that the Act of 1921 put
it beyond question that the tribunal was not being vested
with a power of trial; although a provision to such effect
under the British Constitution (the cardinal principle of which
is the supremacy of parliament) would be wholly
unexceptionable, however unusual.
If the Court is to apply the ordinary canons of construction
of statute law, the Court would affirm the construction of the
subsection first contended for on behalf of Mr. Haughey and
in such case, as has already been stated, the sub-section
thus construed would offend against the Constitution and the
order of the High Court would be set aside in consequence.
But, in this instance, the ordinary canons of construction are
not applicable. Here the constitutionality of an Act of the
Oireachtas established by the Constitution is questioned; in
such case the Court must apply different canons of
construction.
The Courts, in construing a statute of the Oireachtas, act on
the presumption of constitutionality. This presumption was
enunciated in National Union of Railwaymen v. Sullivan 57
and it has been elaborated in two recent decisions of this
Court: McDonald v.Bord na gCon 58 and East Donegal CoOperative v. Attorney General .59In delivering the judgment
of the Court in McDonald's Case ,58 Walsh J. said at p. 239
of the report:". . . an Act of the Oireachtas, is presumed
to be constitutional until the contrary is clearly established.
One practical effect of this presumption is that if in respect
of any provision or provisions of the Act two or more
constructions are reasonably open, . . . it must be presumed
that the Oireachtas intended only the constitutional
construction and a Court called upon to adjudicate upon the

constitutionality of the statutory provision should uphold the
constitutional construction. It is only when there is no
construction reasonably open which is not repugnant to the
Constitution that the provision should be held to be
repugnant." In delivering the judgment of the Court in East
Donegal Co-Operative v. Attorney General ,59 Walsh J. said
at p. 341 of the report:"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
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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. At the same time, however, the presumption of
constitutionality carries with it not only the presumption that
the constitutional interpretation or construction is the one
intended by the Oireachtas but also that the Oireachtas
intended that proceedings, procedures, discretions and
adjudications which are permitted, provided for, or
prescribed by an Act of the Oireachtas are to be conducted
in accordance with the principles of constitutional justice. In
such a case any departure from those principles would be
restrained and corrected by the Courts." Applying this
doctrine in the present case, the Court is of opinion that it is
its duty to reject the construction which the ordinary canons
of construction recommend and to treat the Committee's
certificate, not as a certificate of conviction, but as"merely a
step preliminary to the commencement of the trial of a
criminal offence in the High Court" as Mr. Justice Henchy

expressed it in his judgment in the High Court. This
construction saves the sub-section from the constitutional
infirmity from which, in the first instance, Mr. Haughey's
counsel has urged the sub-section suffers.
The second of the three possible constructions60 is that the
subsection authorises the High Court to try and to convict
and punish, and to do so by way of summary trial. This in
fact is what the High Court did. Mr. Haughey's argument, on
the basis of this second construction, has been briefly and
simply this. The offence in question here is not a minor
offence and all non-minor offences must be tried with a jury;
but Mr. Haughey's trial in the High Court was a summary
trial, without a jury, and therefore it was in violation of
Article 38 of the Constitution61 and his conviction must, in
consequence, be set aside. The wording of Article 38, be it
noted, is "no person shall be tried on any [for brevity I
insertnon-minor] criminal charge without a jury," or in the
Irish text"n cead duine do thriail [i gcis neamhmhionchionta] ach i lthair choiste thiomanta." Trial by jury
of non-minor offences is mandatory, it is not simply a right to
be adopted or waived at the option of the accused. It follows
that the sub-section, on the basis of the second construction
which would authorise summary trial in the High Court,
would offend against the Constitution no less than it does on
the basis of the first construction: the first construction
infringes Article 34 and the second infringes Article 38.
Counsel for the Attorney General has argued against this
conclusion by submitting that the sub-section can,
constitutionally,
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allow of summary trial of the charge in question here as a
case of contempt of court. Under the Constitution of the Irish
Free State in Attorney General v. O'Kelly 62 and under the

Constitution of Ireland in Attorney General v. Connolly ,63
the High Court tried charges of contempt of court without a
jury, i.e., summarily. Neither case was a case of ex facie
contempt, or so close thereto as to amount to an
interference with a pending or current trial. This Court is not
now called upon to consider whether O'Kelly's Case 62and
Connolly's Case 63 were correctly decided; for the purpose
of the Attorney General's submission the Court accepts that
they were. It is enough for this Court now to say that these
two cases cannot assist the Attorney General's submission.
The High Court in the present case was not dealing with a
charge of contempt of court. The impugned sub-section does
not purport to make the offence here in question "contempt
of court"; it does no more than direct that the offence, which
is an ordinary criminal offence, shall be punished in like
manner as if the offender had been guilty of contempt of
court, that is to say, it defines the punishment for the
offence by reference to the punishment for contempt of the
High Court. Moreover, it would not be competent for the
Oireachtas to declare contempt of a committee of the
Oireachtas to be contempt of the High Court. This is an
equation that could not be made under the doctrine of the
tripartite separation of the powers of government. The
reasoning in O'Kelly's Case 62 and in Connolly's Case 63
does not support the Attorney General's submission but, on
the contrary, it is inimical to it. The exception which the High
Court (under Article 72 of the Constitution of the Irish Free
State) in O'Kelly's Case 62 and (under Article 38 of the
Constitution of Ireland) in Connolly's Case 63 engrafted on
the injunction for trial by jury is based upon the inherent
jurisdiction of the High Court to ensure the administration of
justice without obstruction. That is to say, the exception
finds its source and justification in another article of the
Constitution: Article 64 in the Constitution of the Irish Free
State and Article 34 in the Constitution of Ireland. Neither
O'Kelly's Case 62 nor Connolly's Case 63 makes any
exception in respect of the trial of ordinary criminal offences
which are not minor offences.
There is, moreover, yet another barrier to the trial in the

High Court without a jury of the offence alleged to have been
committed in this case. By the provisions of Article 38, s. 2,
of the Constitution the trial of minor offences without a jury
is restricted to courts of summary jurisdiction. It is true that
the High Court possesses a
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universal jurisdiction in matters, civil and criminal, but that
does not make it a court of summary jurisdiction within the
provisions of s. 2 of Article 38. A court of summary
jurisdiction within the meaning of that section is one whose
criminal jurisdiction to try and to convict is restricted to the
trial of minor offences. The term "court of summary
jurisdiction" was well known prior to the enactment of the
Constitution; the expression appeared in almost identical
words in the Constitution of Saorstt ireann and, prior
to that, in s. 13 of the Interpretation Act, 1889. Under our
law that jurisdiction is exercised only by the District Court. In
accordance with the provisions of s. 5 of Article 38, the
jurisdiction of the High Court to try criminal offences is a
jurisdiction to try them only with a jury.
This does not conclude the matter. The High Court took the
view that the formula to be found in the impugned subsection"after such inquiry as it [the High Court] thinks
proper to make" was wide enough to contemplate trial by
jury as well as summary disposal: that is to say, that the subsection has provided that the alleged offender may be tried
either summarily or upon indictment (i.e., by jury) and that,
upon conviction, he may be sentenced in like manner as if
he had been guilty of contempt of the High Court. This is the
third of the three possible constructions64 of the impugned
sub-section. For the Attorney General it was urged that the
principle of presumption of constitutionality warranted such
a construction. In the opinion of this Court the formula "after

such inquiry as it [the High Court] thinks proper to make"
can be stretched, by presumption of constitutionality, to
contemplate a trial in the High Court by a High Court judge
or judges but, as has been pointed out, the presumption of
constitutionality is not to be applied where it would do
violence to the plain meaning of the words. It is, in the
opinion of this Court, beyond the reach of the presumption of
constitutionality to read into the simple inquiry formula of
the sub-section an intention to authorise trial by jury. The
statute in this case created an offence which was not
prohibited by the common law. It indicated a particular
manner of proceeding against the alleged offender by
express reference to contempt of court in terms which
clearly indicated a summary manner of disposal of the trial
and of the offender, if convicted; and the procedure thus
indicated clearly excludes that of indictment. This
interpretation is reinforced by the express provision that the
charge is laid by the certificate of the chairman of the
Committee.
If, however, the sub-section were to be construed as
contended for by the Attorney General, in the opinion of the
Court the subsection
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would not thereby shed its constitutional infirmity. The subsection, in the supposed meaning, would then authorise trial
either summarily or on indictment. But for the sub-section to
authorise summary trial (i.e., a mode of trial suitable for a
minor offence) and upon conviction to authorise punishment
by a penalty only appropriate to a non-minor offence would
offend grossly against the substance of the guarantee
contained in Article 38. So much then of the sub-section as
authorised summary trial would be struck down, and
authority to try by jury is all of the sub-section that would

remain in force. But Mr. Haughey was tried summarily.
None of the three possible constructions of the impugned
subsection is free from constitutional infirmity and, however
one views the sub-section, Mr. Haughey's conviction cannot
stand. In the opinion of the Court sub-s. 4 of s. 3 of the
and Procedure) Act, 1970, violates Article 38 of the
Constitution and, therefore, is invalid and of no effect. The
order of the Court will so declare; and, in consequence, this
appeal will be allowed, the conviction and sentence of the
High Court will be set aside and Mr. Haughey will be
discharged. This concludes the judgment of the Court.
APPENDIX
Statement of Pdraig Haughey
"With respect, Mr. Chairman, my name is Pdraig Haughey.
I reside at 25 Foxfield Avenue, Raheny, Dublin 3. I am aged
38, marriedwith one child. I wish to make a statement on
oath. On the 29th January, 1971, I received a letter, a
registered letter, which was notice to produce to the
Committee of Public Accounts all documents in my
possession touching on the matters into which the
Committee was inquiring. These alleged documents were to
be produced before the 22nd January, 1971, and, on the
following Monday, I received a letter from the Clerk of the
Committee extending the time to produce these alleged
documents to the 8th February, 1971, and apologising for
the mistake to the date for final production of documents in
the original letter. On the 6th February, 1971, I received, by
registered post, a witness summons signed by Garret
FitzGerald, member of the Committee. I am here in answer
to this summons. I have not now, nor had I ever, any
documents or copy documents which would or could in any
way relate to the matters presently being investigated by
this Committee. I wish to state that I never, directly or
indirectly, got in touch or sought to get in touch with Mr. C. J.
Haughey in order that he would authorise customs clearance
of any guns, ammunition or materials of any nature or
description, nor did he ever indicate
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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
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."
Dlaigh C.J. :
24 June
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 Dil ireann of the 1st
December, 1970, contemplate an examination not only into
the expenditure of the grant-in-aid for
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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 Dil upon
the accounts showing the appropriation of the sums granted
by the Dil to meet thepublic expenditure and to suggest
alterations and improvements in the form of the estimate
submitted to the Dil." The examination of the expenditure
of moneys belonging to the Irish Red Cross Society, not
being moneys granted by the Dil 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-inaid 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 Dil
ireann , established under the Constitution of Ireland, but
are the standing orders of the former Dil ireann , i.e.,
the chamber of deputies, called Dil ireann , established
under the Constitution of Saorstt ireann . It is
surprising that the new Dil ireann 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 Dil should make its own rules
and standing orders. The section reads:"Each House shall
make its own rules and standing orders . . ." or "Danfaidh

gach Tigh ar leith a rialacha agus a bhuan-orduithe
fin . . ." Instead, it appears that the new House has
continued to operate under the standing orders of the
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old Dil ireann , 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 ireann , 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 Dil on the 12th
January, 1938. This, in my opinion, was a tacit adoption by
the new Dil ireann 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 Dil
ireann 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
Saorstt ireann 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 Saorstt
ireann . The term
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"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
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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 subs. 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:
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"1 The State guarantees in its laws to respect, and, as far as
rights of the citizen.
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 crossexamine.
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 crossexamine.
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."
[1971]
1 I.R.
In re Haughey
Dlaigh C.J.
262
Supreme Court
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-inaid 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
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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 Dil ireann 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 mhid gur fidir ) will by its laws
safeguard and vindicate the citizen's good
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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
madra 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 nonparticipation 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
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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.
FitzGerald J. :
On the secondary issues raised on behalf of Mr. Haughey,
which are independent of the constitutionality of the Act, I
wish to refer to the various points raised on his behalf in the
same order as they are dealt with in the opinion of the Chief
Justice.
First, in relation to Mr. Haughey's objection to the inclusion
in the terms of reference of power to examine the account of
the Irish Red Cross Society, I am of the opinion that the

objection is not well founded. It appears to me that the order
of Dil ireann of the 1st December, 1970, was
competent to authorise the Committee to examine any bank
accounts which appear to have been credited with any
moneys which were shown to have come from the grant-inaid. The fact that the Irish Red Cross Society's account was
named in the order appears consequently to be irrelevant
and this specific reference to the Red Cross Society's
account was superfluous.
Secondly, I agree with the judgment of the Chief Justice, for
the reasons stated by him, that Standing Order 127 must be
deemed to have been adopted under the Constitution of
1937 by the
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adoption on the 12th January, 1938, of the amendments to
the existing Standing Order 127.
Thirdly, I also agree with the Chief Justice that Mr. Haughey's
objection that the Committee had no power to administer
oaths is not well founded.
Fourthly, in my opinion Mr. Haughey's declaration that he
would not answer any question disposed of any necessity for
the Committee to put specific questions to him. His conduct
would have justified the chairman in certifying that he had
offended against both paragraphs (b) and (d) of sub-s. 4 of s.
3 of the Act of 1970. In my opinion, the certificate amounts
to no more than a statement of facts. It is neither a
conviction, as the Committee seem to have thought, nor an
indictment and, in my opinion, it should not be analysed as if
it were. Mr. Haughey required no information as to his own
actions or behaviour in relation to the Committee's inquiry;
he was quite familiar with all the relevant facts.
Fifthly, I agree with the opinion of the Chief Justice, for the
reasons stated by him, that the Committee's decision did not

necessitate unanimity and that a majority decision was
sufficient.
Sixthly, in my opinion the procedure adopted by the
Committee was ill-advised. They failed to have regard to the
fact that Mr. Haughey had the character of an accused
person, rather than that of a mere witness as to fact. I do not
consider that any constitutional right was thereby infringed
but I do consider that the limitations imposed upon him as to
the conduct of his case, as a person in effect accused, were
contrary to natural justice. On his appearance in the High
Court he was deprived of the opportunity of cross-examining
the deponent whose certificate purported to establish facts
which brought him before the court. There can be no doubt
that in the High Court Mr. Haughey had the status of an
accused person and was denied the opportunity of
presenting his defence in the normal accepted way. I regard
his trial before the High Court, if such it can be described, as
unsatisfactory; and so the judgment of that court should
consequently be set aside.
McLoughlin J. :
In this judgment I wish to deal shortly with the submissions
made on behalf of Mr. Haughey on matters independent of
the constitutionality of the Act and will set them out in
numbered paragraphs.
1. As to the terms of reference in regard to expenditure of
moneys of the Irish Red Cross Society in a bank account into
which moneys voted by the Dil were or may have been
lodged.
[1971]
1 I.R.
In re Haughey
McLoughlin J.
267
Supreme Court
2. Objection as to the validity of Standing Orders of Dil
ireann .
3. Submissions that the Committee has no power to
administer an oath.
On these matters I agree with what has been said by the
Chief Justice in his judgment.
4. Submissions that the certificate of the Committee to the
High Court did not set out the offence with sufficient
particularity and should have been made by the unanimous
decision of the members of the Committee and not the
chairman alone.
5. Submissions as to alleged irregularities of the
proceedings in the High Court.
Having regard to the decision of the Court that sub-s. 4 of s.
3 of the Act of 1970 is unconstitutional, the objections as to
the form of the certificate to the High Court and the alleged
irregularities of its proceedings do not, in my opinion, require
to be decided.
6. The complaint by Mr. Haughey that the Committee failed
to protect his rights under Article 40 of the Constitution in as
much as it adopted a procedure denying to a witness the
right to have legal advisers to examine witnesses and to
address the Committee. This contention, in my view, is
based on a misconception as to the nature of the
proceedings of the Committee. The direction of the Dil to
the Committee was in these terms:"That the Committee
of Public Accounts shall examine specially the expenditure of
the Grant-in-Aid for Northern Ireland Relief issued from
Subhead J, Vote 16 (Miscellaneous Expenses) for 1969-70
and any moneys transferred by the Irish Red Cross Society to
a bank account into which moneys from this Vote were or
may have been lodged . . ."In making this examination the
Committee might obtain information which might indicate
that moneys from the Vote had come into the hands of
persons who had expended them otherwise than for the
proper purpose or had illegally misappropriated such
moneys. If information of this kind were obtained by the
Committee, it was its function to report such information to
the Dil; it was not its function to indict or charge any such
person, much less to try and convict.
I do not need to set out in full the special circumstances

under which Mr. Haughey appeared before the Committee.
They have been fully set out in the judgment of the Chief
Justice; in short they were that, one week before his
appearance, a witness, Chief Superintendent Fleming, had
given evidence implicating Mr. Haughey with the purchase of
arms with moneys from the Vote. It is clear that this
"evidence" was not first-hand evidence but
[1971]
1 I.R.
In re Haughey
McLoughlin J.
268
Supreme Court
hearsay, or even hearsay upon hearsay, or as the witness
said as to part of it "speculation or rumour." In my opinion
the Committee was entitled to receive information in this
way, not by way of proof, but as a line of inquiry to be
investigated, although I think it should have been obtained
in private or by way of preliminary statement and not at a
public sitting; I also think that the witness was bound to
divulge the sources of his information unless he could claim
and legally sustain a claim of State privilege.
It is the fact that the Committee adopted rules of procedure
which provided (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."
It is objected that this procedure disregards the
constitutional right of Mr. Haughey to have his good name
vindicated. If one witness before the Committee maligns
another, the latter's good name is not protected if this
procedure is resolutely maintained but the Committee,
having adopted the procedure, is quite entitled to relax the
rule and I am not prepared to assume that the Committee
would not have done so in this case if a reasoned application
had been made to it so to do. No such application was made;

it could still be made and, were it so made, should, in my
opinion, be granted. Therefore, I do not sustain this ground
of objection.
Solicitor for the applicant: The Chief State Solicitor.
Solicitors for the respondent: Kennedy & McGonagle.
E. P. de B.
[1971] I.R. 217
[1990]
1 I.R.
110
Christopher McGimpsey and Michael McGimpsey Plaintiffs v.
Ireland, An Taoiseach and Others Defendants
[S.C. No. 314 of 1988]
Supreme Court
1st March 1990
Constitution - Executive - International relations - Agreement
between governments of Ireland and UnitedKingdom in
relation to Northern Ireland - Affirmation by both
governments that change in status ofNorthern Ireland would
only come about by consent of majority of population of
Northern Ireland- Establishment of inter governmental
conference to deal with political, security and legal matters
andto promote cross border co-operation - Whether
agreement constituted an unconstitutional fetteringof
executive power to deal with international relations Whether agreement inconsistent withconstitutional claim to
whole island of Ireland as national territory - Constitution of
Ireland, 1937,Articles 2, 3, 29, 40.Constitution - Challenge to
constitutional validity of international treaty - Locus standi Plaintiffs bornand resident in Northern Ireland - Whether
plaintiffs citizens of Ireland - Whether plaintiffs had
locusstandi to challenge treaty - Whether courts should
entertain a constitutional challenge to the validityof an act
the sole purpose of which was to achieve an objective
directly contrary to the purpose of theconstitutional provision
invoked.Constitution - Equality - Agreement between
governments of Ireland and United Kingdom in relation

toNorthern Ireland - Establishment of intergovernmental
conference - Provision for Irish governmentto put forward
views and proposals in relation to legislation, policy and
devolution in so far as theyrelated to the interests of the
minority community - Whether government there by
abandoned concernfor majority - Whether invidious
discrimination against majority - Whether agreement a
"law"within the meaning of Article 40, s. 1 - Constitution of
Ireland 1937, Article 40, s. 1.
On the 15th November, 1985, an agreement, known as the
Anglo-Irish Agreement, was reached between the
governments of Ireland and the United Kingdom. This
agreement contained, inter alia provisions affirming the
existing status of Northern Ireland and recognising that this
status would only be changed with the consent of the
majority of the population of Northern Ireland; provisions
establishing an intergovernmental conference and a
secretariat to deal with matters covered by the agreement
and provisions allowing the Irish Government to put forward
its views on devolution and major legislative and policy
proposals within Northern Ireland in relation to the interests
of the minority community in Northern Ireland. Other
provisions related to security and legal matters, cross border
co-operation and economic development.
The plaintiffs, who were born in and resident in Northern
Ireland, sought a declaration that the Anglo-Irish Agreement
was contrary to the provisions of the Constitution of Ireland,
1937. In particular, they argued that, in recognising the
legitimacy of the present status of Northern Ireland, the
Agreement violated Articles 2 and 3 of the Constitution and
that the intergovernmental conference and secretariat
established by the Agreement restricted the Government of
Ireland in the exercise of the external relations power of the
State.
The defendants argued, inter alia, that the plaintiffs did not
have the locus standi necessary to challenge the agreement.
In the High Court, Barrington J. rejected the defendants' plea
of lack of locus standibut dismissed the plaintiffs'
constitutional challenge to the Anglo-Irish Agreement (see

[1988] I.R. 567) .
On appeal by the plaintiffs it was
Held by the Supreme Court (Finlay C.J., Walsh, Griffin,
Hederman and McCarthy JJ.), in dismissing the appeal, 1,
that, while the plaintiffs had neither alleged nor proved that
they were citizens
[1990]
1 I.R.
111
S.C.
of Ireland, having regard to the finding of the trial judge against which no appeal had been taken - that the plaintiffs
having been born in Ireland were, in contemplation of Irish
law, citizens of Ireland, the Court would entertain the appeal
on its merits.
Quaere: Whether any citizen has locus standi to challenge
the constitutional validity of an act for the specific purpose
of achieving an objective directly contrary to the
constitutional provision invoked.
Per McCarthy J., that, as non-citizens of Ireland the plaintiffs
did not have locus standito challenge the constitutional
validity of a treaty made by the Government exercising the
external relations power of the State under Article 29 of the
Constitution.
The State (Nicolaou) v. An Bord Uchtla [1966] I.R. 567
considered.
2. That the claim to the national territory of the whole island
of Ireland, its islands and the territorial seas contained in
Article 2 of the Constitution was a claim of legal right.
129 not followed. Boland v. An Taoiseach [1974] I.R. 338
and The People v. Ruttledge [1978] I.R. 376 considered.
3. That the re-integration of the national territory was a
constitutional imperative.
Russell v. Fanning [1988] I.R. 505 followed.
4. That the prohibition contained in Article 3 of the

Constitution on the enactment of legislation applicable in
Northern Ireland pending re-integration did not derogate
from the territorial claim of legal right contained in Article 2
and did not create an estoppel against the State asserting
the said claim.
5. That the recognition by the Anglo Irish Agreement of the
de facto situation in Northern Ireland whilst expressly
disclaiming any abandonment of the claim to the reintegration of the national territory was not inconsistent with
Articles 2 and 3 of the Constitution and there was no
question of Ireland being estopped in international law from
asserting that claim.
6. That article 4, para. (c) and article 5, para. (c) of the
Agreement, which allowed the Irish Government to put
forward views on devolution and major legislation and policy
issues were consistent with Ireland's devotion to
international peace and co-operation pursuant to Article 29,
s. 1 of the Constitution.
7. That the Irish Government, in carrying out its agreed
functions within the framework of the Anglo-Irish Agreement,
remained free to do so in the manner which it thought
appropriate and, accordingly, the Government's power to
conduct external relations on behalf of the State was not
fettered in breach of Article 29 of the Constitution.
Crotty v. An Taoiseach [1987] I.R. 713 distinguished.
8. That the Anglo-Irish Agreement did not constitute a "law"
within the meaning of Article 40 of the Constitution.
9. That the fact that the Irish Government could put forward
views in relation to the position of the minority community in
Northern Ireland pursuant to article 4, para. (c) and article 5,
para. (c) of the Agreement did not constitute a failure to
protect or to vindicate the rights of the majority population
in Northern Ireland pursuant to Article 40, s. 3, sub-s. 1 of
the Constitution.
10. That in so far as the Anglo-Irish Agreement provided a
means whereby the re-integration of the national territory
might be achieved by a process of consultation and
discussion, it would never be inconsistent with the
Constitution which is expressly devoted to peace and cooperation in international relations.

13.
Buckley and Others (Sinn Fin) v. The Attorney General
[1950] I.R. 67.
Eastern Greenland (1933) P.C.I.J. 22.
Golder (1975) 1 E.H.R.R. 524.
[1990]
1 I.R.
112
S.C.
129; (1976) 110 I.L.T.R. 69.
Kostan v. Ireland [1978] I.L.R.M. 12.
McGimpsey v. Ireland [1988] I.R. 567; [1989] I.L.R.M. 209
(H.C.).
Russell v. Fanning [1988] I.R. 505; [1986] I.L.R.M. 401.
Re U.S. Nationals in Morocco, France v. U.S.A. (1952) 19
I.L.R. 255; [1952] I.C.J. Rep. 176.
Temple of Preah Vihear [1962] I.C.J. Rep. 6.
The People v. Ruttledge [1978] I.R. 376.
The State (Nicolaou) v. An Bord Uchtla [1966] I.R. 567.
Appeal from the High Court.
The facts have been summarised in the headnote and set
out in the judgment of Finlay C.J., infra.
The plaintiffs issued a plenary summons on the 9th May,
1987, seeking a declaration that the Anglo-Irish Agreement
of 1985 was contrary to the Constitution of Ireland, 1937.
This declaration was refused by the High Court (Barrington J.)
on the 29th July, 1988. (See [1988] I.R. 567).
By notice of appeal dated the 16th August, 1988, the

plaintiffs appealed against the decision of the High Court.
The appeal was heard by the Supreme Court (Finlay C.J.,
Walsh, Griffin, Hederman and McCarthy JJ.) on the 31st
January, 1990 and the 1st February, 1990.
The relevant provisions of the Constitution and of the AngloIrish Agreement are set out in the judgment of Finlay C.J.,
infra.
Hugh O'Flaherty S.C. and Frank Clarke S.C. (with them
Gerard Hogan ) for the plaintiffs referred to Crotty v. An
Taoiseach ; Russell v. Fanning ; Boland v. An Taoiseach ;
Buckley and Others (Sinn Fin) v. The Attorney General ;
In Re The Criminal Law (Jurisdiction) Bill, 1975 ; Temple of
Preah Vihear; Eastern Greenland ;Irish Nationality and
Citizenship Act, 1956, ss. 2, 6 and 7; Maritime Jurisdiction
Act, 1959, s. 4, sub-s. 2; Northern Ireland Constitution Act,
1973 (U.K.).
Eoghan Fitzsimons S.C. (with him Esmond Smyth ) for the
defendants referred to Crotty v. An Taoiseach ; Re U.S.
Nationals in Morocco, France v. U.S.A. ; Golder ; Vienna
Convention on the Law of Treaties, 1969, Article 31; The
Single European Act.
Frank Clarke S.C. in reply referred to Vienna Convention on
the Law of Treaties, 1969, Article 31.
Cur. adv. vult.
[1990]
1 I.R.
Finlay C.J.
113
S.C.
Finlay C.J.
1st March 1990
This is an appeal by the plaintiffs against the dismissal on
the 25th July, 1988, by order of the High Court made by

Barrington J. of their claim for a declaration that the
"Agreement between the Government of Ireland and the
Government of the United Kingdom" made on the 15th
November, 1985 (the Anglo-Irish Agreement) is contrary to
the provisions of the Constitution.
The parties
The plaintiffs are two brothers, each of whom was born in
Northern Ireland, and each of whom now resides in Northern
Ireland.
In the course of his judgment Barrington J. described the
political ambitions and activities of both the plaintiffs in the
following words:
"Both plaintiffs are members of the Official Unionist party of
Northern Ireland. Both are deeply concerned about the
present state of Northern Ireland and of all Ireland. Both
reject any form of sectarianism and both have been involved
in peace movements working to accommodate people of
various traditions who live on the island of Ireland. Both gave
evidence before the New Ireland Forum and, in oral and
written submissions, attempted to explain to the Forum how
the problem appeared to men fully committed to unionism
but interested in finding a peaceful solution to the problem
of Northern Ireland and of Ireland.
Both believe that the Anglo-Irish Agreement has aggravated
the problem and instead of solving the problem, has become
part of it."
The learned trial judge, having heard the plaintiffs in
evidence, was satisfied that in the expression of these
opinions and in their attitude to the problems with which the
case is concerned, they were both sincere. Against these
findings by the learned trial judge there is no form of appeal,
nor is there any suggestion that they are otherwise than
justified by the evidence which he heard.
The plaintiffs' claim
The plaintiffs' claim for a declaration that the provisions of
the Anglo-Irish Agreement are contrary to the provisions of
the Constitution was directed in particular to Articles 1, 2, 4
and 5 of the Agreement, and the inconsistency alleged was
with Articles 2, 3, 29 and 40 of the Constitution.

The defence
The defendants in their defence, apart from joining issue on
the claims of the plaintiffs, raised a special defence denying
the locus standi of the plaintiffs in the following terms:
[1990]
1 I.R.
Finlay C.J.
114
S.C.
"The plaintiffs do not have the locus standi necessary to
seek the reliefs sought in the statement of claim on the
grounds that neither of them has any interest or right which
has or will suffer any injury or prejudice by reason of any of
the matters alleged in the statement of claim or by reason of
the coming into force of the said Agreement or at all, nor has
either a common interest with any other person who could
claim to be or to be likely to be adversely affected thereby."
Amongst the submissions made on behalf of the defendants
in the court below on foot of this plea of an absence of locus
standi was that the plaintiffs should not be permitted to
invoke Article 2 of the Constitution because they themselves
do not believe that "the national territory consists of the
whole island of Ireland" and are only invoking the Article in a
tactical manoeuvre.
In his judgment the learned trial judge stated:
"Both plaintiffs were born in Ireland and are therefore, in
contemplation of Irish law, citizens of Ireland."
The statement of claim contains no claim that either plaintiff
is a citizen of Ireland, although it is stated that the first
plaintiff is the holder of an Irish passport. No evidence was
given by either plaintiff that either he or either of his parents
had made the prescribed declaration pursuant to s. 7, sub-s.
1, of the Irish Nationality and Citizenship Act, 1956, or of any
facts which would indicate that he was "otherwise an Irish
citizen".
It may well be that the plaintiffs are Irish citizens under s. 6,

sub-s. 1 of the Act of 1956 because either or both of their
parents were Irish citizens at the respective dates of their
births, though this was not proved.
Since the defendants made no submissions to this Court on
this issue and have not sought to vary the finding of the
learned trial judge to which I have referred, I will assume
without deciding that each of the plaintiffs is an Irish citizen.
The learned trial judge decided this issue of locus standi in
favour of the plaintiffs in the following passage contained in
his judgment:
"The present case is, to say the least, unusual and there is
no exact precedent governing it. But it appears to me that
the plaintiffs are patently sincere and serious people who
have raised an important constitutional issue which affects
them and thousands of others on both sides of the border.
Having regard to these factors and having regard to the
wording of the preamble to the Constitution and of Articles 2
and 3, it appears to me that it would be inappropriate for this
court to refuse to listen to their complaints."
Against this finding the defendants did not enter any crossappeal or notice to vary. This Court, as it would be bound to
do, raised the query as to the locus standi of the plaintiffs
and the consequent jurisdiction of this Court to determine
the issues raised on the appeal. Counsel for the defendants,
upon that being raised, did not seek by any special
submission or argument to vary the decision which had been
reached by the learned trial judge.
As a general proposition it would appear to me that one
would have to entertain considerable doubt as to whether
any citizen would have the locus standi to challenge the
constitutional validity of an act of the executive or of a
[1990]
1 I.R.
Finlay C.J.
115
S.C.
statute of the Oireachtas for the specific and sole purpose of

achieving an objective directly contrary to the purpose of the
constitutional provision invoked. However, having regard to
the evidence in this case, to the findings of fact made by the
learned trial judge, and to the absence of any cross-appeal
brought on behalf of the defendants, I am satisfied that the
plaintiffs' claim in this case and their appeal against the
dismissal of it by the High Court should be entertained on its
merits.
The relevant constitutional provisions
The relevant constitutional provisions are as follows:
Article 2
"The national territory consists of the whole island of
Ireland, its islands and the territorial seas."
Article 3
"Pending the re-integration of the national territory, and
without prejudice to the right of the Parliament and
Government established by this Constitution to exercise
jurisdiction over the whole of that territory, the laws enacted
by that Parliament shall have the like area and extent of
application as the laws of Saorstt ireann and the like
extra-territorial effect."
Article 29
settlement of international disputes by international
arbitration or judicial determination.
other States.
Government."
Article 40
1. All citizens shall, as human persons, be held equal before
the law . . .
Article 40
[1990]
1 I.R.
Finlay C.J.
116
S.C.
The Anglo-Irish Agreement
ARTICLE 1
The two Governments
(a) affirm that any change in the status of Northern Ireland
would only come about with the consent of a majority of the
people of Northern Ireland;
(b) recognise that the present wish of a majority of the
people of Northern Ireland is for no change in the status of
Northern Ireland;
(c) declare that, if in the future a majority of the people of
Northern Ireland clearly wish for and formally consent to the
establishment of a united Ireland, they will introduce and
support in the respective Parliaments legislation to give
effect to that wish.
ARTICLE 2
(a) There is hereby established within the framework of the
Anglo-Irish Intergovernmental Council set up after the
meeting between the two Heads of Government on the 6
November 1981, an Intergovernmental Conference
(hereinafter referred to as "the Conference"), concerned with
Northern Ireland and with relations between the two parts of
the island of Ireland, to deal, as set out in this Agreement, on
a regular basis with
(i) political matters;
(ii) security and related matters;
(iii) legal matters, including the administration of justice;
(iv) the promotion of cross-border co-operation.
(b) The United Kingdom Government accepts that the Irish

Government will put forward views and proposals on matters
relating to Northern Ireland within the field of activity of the
Conference in so far as those matters are not the
responsibility of a devolved administration in Northern
Ireland. In the interests of promoting peace and stability,
determined efforts shall be made through the Conference to
resolve any differences. The Conference will be mainly
concerned with Northern Ireland, but some of the matters
under consideration will involve co-operative action in both
parts of the island of Ireland, and possibly also in Great
Britain. Some of the proposals considered in respect of
Northern Ireland may also be found to have application by
the Irish Government. There is no derogation from the
sovereignty of either the Irish Government or the United
Kingdom Government, and each retains responsibility for the
decisions and administration of government within its own
jurisdiction.
[1990]
1 I.R.
Finlay C.J.
117
S.C.
ARTICLE 4
(a) In relation to matters coming within its field of activity,
the Conference shall be a framework within which the Irish
Government and the United Kingdom Government work
together
(i) for the accommodation of the rights and identities of the
two traditions which exist in Northern Ireland; and
(ii) for peace, stability and prosperity throughout the island
of Ireland by promoting reconciliation, respect for human
rights, co-operation against terrorism and the development
of economic, social and cultural co-operation.
(b) It is the declared policy of the United Kingdom
Government that responsibility in respect of certain matters
within the powers of the Secretary of State for Northern

Ireland should be devolved within Northern Ireland on a basis
which would secure widespread acceptance throughout the
community. The Irish Government support that policy.
(c) Both Governments recognise that devolution can be
achieved only with the co-operation of constitutional
representatives within Northern Ireland of both traditions
there. The Conference shall be a framework within which the
Irish Government may put forward views and proposals on
the modalities of bringing about devolution in Northern
Ireland, in so far as they relate to the interests of the
minority community.
ARTICLE 5
(a) The Conference shall concern itself with measures to
recognise and accommodate the rights and identities of the
two traditions in Northern Ireland, to protect human rights
and to prevent discrimination. Matters to be considered in
this area include measures to foster the cultural heritage of
both traditions, changes in electoral arrangements, the use
of flags and emblems, the avoidance of economic and social
discrimination and the advantages and disadvantages of a
Bill of Rights in some form in Northern Ireland.
(b) The discussion of these matters shall be mainly
concerned with Northern Ireland, but the possible application
of any measures pursuant to this Article by the Irish
Government in their jurisdiction shall not be excluded.
(c) If it should prove impossible to achieve and sustain
devolution on a basis which secures widespread acceptance
in Northern Ireland, the Conference shall be a framework
within which the Irish Government may, where the interests
of the minority community are significantly or especially
affected, put forward views on proposals for major legislation
and on major policy issues, which are within the purview
[1990]
1 I.R.
Finlay C.J.
118
S.C.
of the Northern Ireland Departments and which remain the
responsibility of the Secretary of State for Northern Ireland.
Interpretation of Articles 2 and 3 of the Constitution
Barrington J. in the course of his judgment identified from
previous decisions what appeared to him to be two
conflicting interpretations of Articles 2 and 3 of the
Constitution. He concluded that the impugned provisions of
the Agreement were not contrary to either of these
interpretations, and that accordingly it was not necessary for
him to decide between them.
The first interpretation mentioned by the learned trial judge
was derived by him from the decision of this Court on the
reference of the Criminal Law (Jurisdiction) Bill, 1975 [1977]
I.R. 129, and he quotes from that decision the following
paragraph at p. 584:
"One of the theories held in 1937 by a substantial number of
citizens was that a nation, as distinct from a State, had
rights: that the Irish people living in what is now called the
Republic of Ireland and in Northern Ireland together form the
Irish nation: that a nation has a right to unity of territory in
some form be it as a unitary or federal state; and that the
Government of Ireland Act, 1920, though legally binding was
a violation of that national right to unity which was superior
to positive law.
This national claim to unity exists not in the legal but in the
political order and is one of the rights which are envisaged in
Article 2; it is expressly saved by Article 3 which states that
the area to which the laws enacted by the parliament
established by the Constitution apply."
From that decision he concluded that the interpretation of
the Articles was as follows: Article 2 contained a claim to the
national territory of the whole of the island of Ireland, its
islands and the territorial seas as a claim in the political
order and not as a claim of legal right. Article 3 provided
that, pending the re-integration of the national territory, the
Parliament established by the Constitution could only enact
laws with a like area and extent of application as the laws of
Saorstt ireann and the like extraterritorial effect, and
therefore could not enact laws with an area of application in

the counties of Northern Ireland.
Counsel for both parties submitted in the High Court, and
repeated those submissions in this Court, that Article 2
constituted a claim of a legal right, but that, pursuant to
Article 3, the Parliament established by the Constitution was
entitled at any time it wished to enact laws applicable in the
counties of Northern Ireland, though pending the reintegration of the national territory, laws enacted which did
not otherwise provide are deemed to have the restricted
area and extent mentioned in the article.
In support of this submission they relied on the dictum of
O'Keeffe P. in Boland v. An Taoiseach [1974] I.R. 338, and on
the decision of O'Byrne J. in The People v. Ruttledge
decided in 1947 but reported at [1978] I.R. 376.
[1990]
1 I.R.
Finlay C.J.
119
S.C.
I am not satisfied that the statement that "this national
claim to unity exists not in the legal but the political order
and is one of the rights which are envisaged in Article 2",
necessarily means that the claim to the entire national
territory is not a claim of legal right.
The phrase occurs in a decision tracing the historical,
political and social background to the Constitution, and
seems more appropriately understood as a reference to the
origin of the claim than to its nature. If, however, it is so
construed, I would after careful consideration feel obliged to
decline to follow it. I do not accept the contention that Article
3 is to be construed as permitting, during the period pending
the re-integration of the national territory, the enactment of
laws applicable in the counties of Northern Ireland.
With Articles 2 and 3 of the Constitution should be read the
preamble, and I am satisfied that the true interpretation of
these constitutional provisions is as follows:

1. The re-integration of the national territory is a
constitutional imperative (cf. Hederman J. in Russell v.
Fanning [1988] I.R. 505).
2. Article 2 of the Constitution consists of a declaration of
the extent of the national territory as a claim of legal right.
3. Article 3 of the Constitution prohibits, pending the reintegration of the national territory, the enactment of laws
with any greater area or extent of application or extraterritorial effect than the laws of Saorstt ireann and
this prohibits the enactment of laws applicable in the
counties of Northern Ireland.
4. The restriction imposed by Article 3 pending the reintegration of the national territory in no way derogates from
the claim as a legal right to the entire national territory.
The provision in Article 3 of the Constitution contained in
the words "and without prejudice to the right of the
Parliament and Government established by this Constitution
to exercise jurisdiction over the whole of that territory" is an
express denial and disclaimer made to the community of
nations of acquiescence to any claim that, pending the reintegration of the national territory, the frontier at present
existing between the State and Northern Ireland is or can be
accepted as conclusive of the matter or that there can be
any prescriptive title thereby created and an assertion that
there can be no estoppel created by the restriction in Article
3 on the application of the laws of the State in Northern
Ireland. This is of course quite distinct from the extraterritorial effect of the laws of the State in respect of matters
occurring outside the State for which persons are made
answerable in the courts of the State.
The grounds of the plaintiffs' claim
Barrington J. has correctly identified the three main
submissions on which the plaintiffs' claim rested in the High
Court and they remain the same on the appeal to this Court.
[1990]
1 I.R.
Finlay C.J.
120
S.C.
"1. That the Agreement recognising the legitimacy of the
present constitutional arrangements in respect of Northern
Ireland, violates Articles 2 and 3 of the Constitution;
2. that, in as much as the Agreement establishes an
intergovernmental conference and secretariat, it fetters the
power of the Government to conduct the external affairs and
powers of the state under Articles 28 and 29 of the
Constitution.
3. that the State may not enter into a treaty whereby it
commits itself to have regard to one section of the Irish
nation (i.e. the "minority" population of Northern Ireland) and
to disregard the interests of a section of the Irish people,
namely, the "majority" community in Northern Ireland."
In regard to the first of these grounds the plaintiffs relied, in
addition to the terms of the Agreement and of the
Constitution, upon submissions that the terms of the
Agreement could in international law constitute an estoppel
preventing a subsequent assertion of right to the reintegration of the national territory and also on a submission
that the fact that the Agreement did not contain a fixed time
for its duration added to the alleged constitutional
inconsistency.
The decision
With regard to these three main grounds of appeal I have
come to the following conclusions.
1. Inconsistency of the Agreement with Articles 2 and 3 of
the Constitution
The main source of this submission was article 1 of the
Anglo-Irish Agreement. In the course of his judgment
Barrington J., after considering the details of that and other
provisions of the Agreement, reached the following
conclusion:
"It appears to me that in article 1 of the agreement the two
Governments merely recognise the situation on the ground
in Northern Ireland, (paragraph (b)), form a political
judgment about the likely course of future events,

(paragraph (a)), and state what their policy will be should
events evolve in a particular way (paragraph (c))."
I find myself in agreement with this economical but precise
analysis of the provisions of article 1. The learned trial judge
then concluded that on any interpretation of the provisions
of Articles 2 and 3 of the Constitution, these provisions of the
Anglo-Irish Agreement were not in any way inconsistent with
either of those two Articles. With that conclusion I am in
complete agreement. There can be no doubt but that the
only reasonable interpretation of article 1, taken in
conjunction with the denial of derogation from sovereignty
contained in article 2, para. (b), of the Anglo-Irish Agreement
is that it constitutes a recognition of the de facto situation in
Northern Ireland but does so expressly without
[1990]
1 I.R.
Finlay C.J.
121
S.C.
abandoning the claim to the re-integration of the national
territory. These are essential ingredients of the constitutional
provisions in Articles 2 and 3.
This interpretation is not affected by the provisions of article
4, para. (c) or article 5, para. (c) nor are either of these two
articles capable of any separate inconsistent interpretation.
In so far as they accept the concept of change in thede facto
status of Northern Ireland as being something that would
require the consent of the majority of the people of Northern
Ireland these articles of the Agreement seem to me to be
compatible with the obligations undertaken by the State in
Article 29, ss. 1 and 2 of the Constitution, whereby Ireland
affirms its devotion to the ideal of peace and friendly cooperation and its adherence to the principles of the pacific
settlement of international disputes.
The conclusion that these articles of the Anglo-Irish
Agreement do not constitute any form of abandonment of
the claim of right to the re-integration of the national

territory but constitute instead a realistic recognition of the
de factosituation in Northern Ireland leads to the
consequential conclusion that the Anglo-Irish Agreement
cannot be impugned on the basis of any supposed estoppel
arising to defeat the constitutional claim to re-integration,
nor on the basis of any indefinite duration in the Agreement.
2. Fettering of the power of Government to conduct external
relations in breach of Article 29 of the Constitution
The submission made on this issue was that the terms of
the Anglo-Irish Agreement were of similar character to the
terms of the Single European Act which the decision of this
Court in Crotty v. An Taoiseach [1987] I.R. 713 held to be
inconsistent with the provisions of Article 29 of the
Constitution.
I am satisfied that this analogy is quite false. The Anglo-Irish
Agreement is an agreement reached between two
governments, both of whom have an acknowledged concern
in relation to the affairs of Northern Ireland. It acknowledges
that the Government of Ireland may make representations,
put forward proposals, and try to influence the evolution of
peace and order in Northern Ireland.
The frameworks contained in the Agreement and structures
created by it provide methods of carrying out these
activities, it can be argued, in the manner most likely to
make them effective and acceptable, namely, constant
mutual discussion. The Government of Ireland at any time
carrying out the functions which have been agreed under the
Anglo-Irish Agreement is entirely free to do so in the manner
in which it, and it alone, thinks most conducive to the
achieving of the aims to which it is committed. A procedure
which is likely to lead to peaceable and friendly co-operation
at any given time must surely be consistent with the
constitutional position of a state that affirms its devotion not
only to the ideal of peace and friendly co-operation but to
that ideal founded on international justice and morality.
[1990]
1 I.R.
Finlay C.J.
122
S.C.
The basis of the decision of this Court in Crotty v. An
Taoiseach [1987] I.R. 713 was that the terms of the Single
European Act could oblige the Government in carrying out
the foreign policy of the State to make the national interests
of the State, to a greater or lesser extent, subservient to the
national interests of other member states. I have no doubt
that there is a vast and determining difference between the
provisions of this Agreement and the provisions of the Single
European Act as interpreted by this Court in Crotty v. An
Taoiseach [1987] I.R. 713.
3. Disregard of the interests of the "majority" community in
Northern Ireland
The submission made on the appeal in regard to this matter
was that the provisions of the Anglo-Irish Agreement
contained in article 4, para. (c) and article 5, para. (c) which
expressly recognised the conference as a framework within
which the Irish Government might put forward views and
proposals on bringing about devolution in Northern Ireland,
in so far as they relate to the interests of the minority
community, constituted a breach of Article 40, s. 1 of the
Constitution. The Anglo-Irish Agreement is not "a law" within
the meaning of that term contained in Article 40, s. 1 of the
Constitution. A provision for the capacity of the Irish
Government in regard to possible devolution in Northern
Ireland to put forward views and proposals as to the
modalities of bringing that about could not be the holding of
any person equal or unequal before the "law".
In the alternative, the submission was made that the
provisions of this subclause of the Agreement were
inconsistent with Article 40, s. 3, sub-s. 1 of the Constitution.
I am satisfied that they are not. The mere fact that there is
an express acknowledgment in the event of discussions
leading or intended to lead to devolution in Northern Ireland
of the right of the Irish Government to bring forward views
and proposals in so far as they relate to the interests of the

minority community in Northern Ireland is in no way an
abandonment of concern by the Irish Government for the
majority community in Northern Ireland.
It does not seem to me that there are any grounds for
suggesting that there has been an invidious or any
discrimination between the two communities in Northern
Ireland by virtue of the terms of the Anglo-Irish Agreement.
I am satisfied, therefore, that all the grounds of the appeal
brought by the plaintiffs must fail. I come to that conclusion
from an analysis of each of the submissions that have been
made, both in the High Court and in this Court. I would also
point out, however, that there is, looking at the Anglo-Irish
Agreement in its totality and looking at the entire scheme
and thrust of the Constitution of Ireland a high improbability
that a clear attempt to resolve the position with regard to
the re-integration of the national territory and the position of
Northern Ireland by a process of consultation, discussion and
reasoned argument structured by constant communication
between servants of each of the two states concerned could
ever be inconsistent with a Constitution devoted to the
ideals of ordered, peaceful international relations. I would
dismiss this appeal.
[1990]
1 I.R.
Walsh J.; Griffin J.; Hederman J.; McCarthy J.
123
S.C.
Walsh J.
I agree.
Griffin J.
I agree.
Hederman J.
I agree.
McCarthy J.
Locus standi
The trial judge concluded that each of the plaintiffs was a
citizen of Ireland. As citizens they are bound by the
provisions of Article 9, s. 2 of the Constitution which
prescribes that fidelity to the nation and loyalty to the State
are fundamental political duties of all citizens. Such fidelity
and loyalty do not prohibit or restrict disagreement with the
content of the Constitution nor with the actions of
government. There are few citizens who have made a public
declaration to uphold the Constitution which contains the
constitutional imperative in its preamble that the unity of our
country be restored and Article 2 which defines the national
territory as the whole island of Ireland, its islands and the
territorial seas. The plaintiffs uphold the union of Northern
Ireland with Britain, they reject Article 2 but claim that the
Anglo-Irish Agreement is in conflict with it, is therefore
invalid having regard to the provisions of the Constitution
and thereby call it in aid to achieve their objective which is
the maintenance of partition and of the union with Britain.
They approbate and reprobate.
There is a distinction between an objective and the means
of achieving it. One does not look to the objective of a
particular legal submission; one looks to the submission
itself. One does not determine locus standi by motive but
rather by objective assessment of rights and the means of
protecting them. In Cahill v. Sutton [1980] I.R. 269 the
plaintiff who invoked constitutional protection was denied
the right to do so because the type of protection invoked
would not, on the facts, have done her any good. It would
have done her a great deal of good if the result was to
condemn the section of the statute which defeated her
claim, but the argument of constitutional injustice did not
apply to her situation. Here the argument advanced by the
plaintiffs does apply to the facts of their case, as Irish and as
British citizens living in Northern Ireland, and in such case,
their motive is irrelevant. It is commonplace for litigants to
invoke the law for the worst of motives; many pleas of

statutory defence may have a most venal purpose but that
does not affect the validity of any such defence. The
plaintiffs appear to be contending that, being made Irish
citizens by this State, disapproving of the constitutional
claim in Article 2, being concerned as to the effect of the
Anglo-Irish Agreement on them as residents of Northern
Ireland, they are entitled to demand
[1990]
1 I.R.
McCarthy J.
124
S.C.
of this State that, as the People make the rules, they must
abide by them, whatever be the plaintiffs' motive or
objective.
Does this right, however, extend to a challenge to the
making of a treaty by the Government pursuant to Article
29? In Kostan v. Ireland [1978] I.L.R.M. 12 a foreign captain
of a fishery vessel successfully challenged the
constitutionality of certain provisions of the Fisheries
(Consolidation) Act, 1959, under which he was prosecuted
for unlawful fishing. In Crotty v. An Taoiseach [1987] I.R.
713 a successful challenge was made by an undoubted
citizen against the ratification of part of the Single European
Act. It seems unlikely that a non-citizen would have been
allowed to maintain such proceedings. The citizens of the
United Kingdom in Britain have a very real interest in the
Anglo-Irish Agreement; is each one of them to be heard to
challenge its validity as being repugnant to the Constitution
of Ireland? I think not. Might such a claim be sustained at the
suit of a person living in Northern Ireland but born outside of
Ireland? I think not. The plaintiffs' right to sue, if right there
be, must depend upon citizenship. In The State (Nicolaou) v.
An Bord Uchtla [1966] I.R. 567 Teevan J., said at p.
600:
"Circumstances may exist by reason of which it would be no
more than impertinent for a non-citizen to attack the

constitutionality of one of our statutes, or by reason of which
it would otherwise be necessary or prudent to take the
point."
In the Supreme Court, Walsh J., at p. 645 said:
"This Court expressly reserves for another and more
appropriate case consideration of the effect of noncitizenship upon the interpretation of the Articles in question
and also the right of a non-citizen to challenge the validity of
an Act of the Oireachtas having regard to the provisions of
the Constitution."
In a case such as the present, in my judgment, a non-citizen
does not have thelocus standi to maintain a challenge of the
kind propounded here against the constitutional validity of
the Anglo-Irish Agreement. The issue of locus standi was
raised in the defence and contested at the trial. The
statement of claim does not allege that either plaintiff is a
citizen of Ireland and neither plaintiff testified as to being a
citizen or having made the prescribed declaration pursuant
to s. 7, sub-s. 1 of the Irish Nationality and Citizenship Act,
1956. In my view, the plaintiffs were not shown to be Irish
citizens although Barrington J., in his judgment, stated that
both plaintiffs were born in Ireland and "are therefore in
contemplation of Irish law citizens of Ireland." No appeal or
notice to vary was brought in respect of this finding. Because
of this and the importance of the issue raised, whilst I am not
satisfied that the plaintiffs have locus standi to maintain this
action, I think it right to determine the main issue in the
case.
The constitutional issue
I have read the judgment delivered by the Chief Justice and I
wholly agree with the conclusion that the plaintiffs have
failed in their challenge to the Anglo-Irish
[1990]
1 I.R.
McCarthy J.
125
S.C.
Agreement. I would wish to state my firm opinion that,
whatever the political background to the wording of Article 2
of the Constitution, it is an unequivocal claim as of legal right
that the national territory consists of the whole island of
Ireland, its islands and the territorial seas (see O'Keeffe P. in
Boland v. An Taoiseach [1974] I.R. 338 at p. 363).
I would dismiss the appeal.
Solicitors for the plaintiffs: Brendan Walsh & Partners.
Nuala Butler, B.L.
[1990] 1 I.R. 110
The People (at the suit of the Director of Public Prosecutions)

v. Mark Kenny
[C.C.A. No. 44 of 1987: S.C. No. 409 of 1989]
Court of Criminal Appeal
15th June 1989
Court of Criminal Appeal
30th November 1989
Supreme Court
20th March 1990
Criminal law - Evidence - Search warrant - Validity - Suspicion
- Swearing of information by gardabefore peace
commissioner - Requirement that peace commissioner be
satisfied by information onoath of reasonable grounds for
suspecting that an offence had been committed Information groundingsuspicion not specified - Whether
search warrant validly issued - Misuse of Drugs Act, 1977
(No.12), s. 26.Constitution - Inviolability of dwelling Domiciliary search on foot of invalid search warrant Standardprocedure followed for obtaining warrant - Whether
deliberate and conscious violation of accused'sconstitutional
rights - Whether "deliberate and conscious" refers to act
complained of - Exclusion ofevidence obtained by invasion of
constitutional rights - Whether evidence must be excluded
whereactor had no knowledge that constitutional rights were
being invaded - Constitution of Ireland, 1937,Article 40, s. 5.
Section 26, sub-s. 1 of the Misuse of Drugs Act, 1977, as
amended by s. 13 of the Misuse of Drugs Act, 1984, provides
inter alia:
"(1) If a Justice of the District Court or a Peace
Commissioner is satisfied by information on oath of a
member of the Garda Sochna that there is reasonable
ground for suspecting that "
(a) a person is in possession in contravention of this Act on
any premises of a controlled drug, . . . and that such drug . . .
is on a particular premises, . . .
such Justice or Commissioner may issue a search warrant
mentioned in subsection (2) of this section."
The appellant's flat was searched by Garda C. pursuant to a
search warrant issued under s. 26 of the Act of 1977 and
samples of heroin were found. In his application for a search
warrant Garda C. swore an information before a peace
commissioner and deposed that:
". . . I suspect, on the basis of information within my
possession, that (a) a person is in possession on the
premises . . . of a controlled drug, namely Diamorphine or

Cannabis resin . . . I hereby apply for a warrant to search for
and seize the articles named above."
The warrant to search states inter alia:
"Whereas I, the undersigned Peace Commissioner, being
satisfied on the information on oath of Garda C. . . ."
There was no evidence that any inquiry was made by the
peace commissioner as to the basis of the garda's suspicion.
The admissibility of Garda C.'s evidence concerning the
search turned on the validity of the search warrant. The trial
judge held that the warrant had been validly issued by the
peace commissioner and admitted the evidence as to the
search. That ruling of the trial judge was the sole issue in the
appeal. It was argued on behalf of the applicant that the
search warrant was invalid and inadmissible in evidence
because it did no more than state that Garda C. held a
suspicion; it did not state the information that formed the
basis of that suspicion and that no evidence was led at the
trial as to any further information, if any, that Garda C. put
before the peace commissioner.
[1990]
2 I.R.
The People (Director of Public Prosecutions) v. Kenny
111
C.C.A.
Held by the Court of Criminal Appeal (McCarthy, O'Hanlon
and Lardner JJ.) that the warrant was invalid because there
was no evidence that the peace commissioner had inquired
into the basis of the garda's suspicion. Accordingly he had
failed to exercise his judicial discretion and had failed to
carry out his function under the Act.
Byrne v. Grey [1988] I.R. 31 applied.
The Court granted leave to appeal and required further
argument as to whether or not the deliberate and conscious
act forcing admission into the appellant's home was a
violation of his constitutional rights with the result that the
fruits of the search were inadmissible in evidence.

Held by the Court in declaring the evidence admissible, 1,
that while the procedure for obtaining a search warrant was
found to be invalid, and the consequent entry of the
premises unlawful, there was no deliberate and conscious
violation of the appellant's constitutional rights; Garda C.
had taken all steps believed to have been necessary for
obtaining a search warrant and it was issued by the peace
commissioner on the basis that there was compliance with
the requirements of the Act of 1977.
The People (Attorney General) v. O'Brien [1965] I.R. 142 ;
The People v. Madden [1977] I.R. 336 ; The People v. Farrell
[1978] I.R. 13 ; The People v. O'Loughlin [1979] I.R. 85 ;
The People v. Walsh [1980] I.R. 294 ; The State (Quinn) v.
Ryan [1965] I.R. 70 and U.S. v. Leon 468 U.S. 897
considered.
2. That the admissibility of the evidence obtained on foot of
the invalid search warrant was a matter for the discretion of
the court of trial. In the circumstances the correct decision
for a trial judge would have been to admit the evidence.
While the evidence was admitted by the trial judge on an
incorrect basis, no miscarriage of justice occurred.
Per curiam: The concept of "extraordinary excusing
circumstances" had only to be considered when the court
was of the view that a deliberate and conscious violation of
constitutional rights had taken place, otherwise the
admissibility of the evidence was a matter for the court's
discretion.
Dicta of Walsh J. in The People v. Walsh [1980] I.R. 294 at
p. 317 and The People v. Shaw [1982] I.R. 1 at p. 32 not
followed.
On the application of counsel for the appellant the Court
certified that its decision involved a point of law of
exceptional public importance and that it was desirable in
the public interest that an appeal be taken to the Supreme
Court. The Court granted a certificate pursuant to s. 29 of
the Courts of Justice Act, 1924, and the point of law so
certified was whether the forcible entry of the appellant's
home by members of an Garda Sochna on foot of an
invalid search warrant constituted a deliberate and

conscious violation of the appellant's constitutional rights
such as to render any evidence obtained by the said
members in the course of the ensuing search inadmisslbe at
the appellants trial. At the hearing of the appeal, pursuant to
the said certificate, it was
Held by the Supreme Court (Finlay C.J., Walsh and Hederman
JJ.; Griffin and Lynch JJ. dissenting), in allowing the appeal, 1,
that evidence obtained as a result of a deliberate and
conscious violation of constitutional rights of a citizen must
be excluded unless the court in its discretion was satisfied
that there were extraordinary excusing circumstances which
justified the admission of the evidence or that the act
constituting the breach of constitutional rights was
committed unintentionally or accidentally.
2. (Griffin and Lynch JJ. dissenting). That in deciding whether
the violation of constitutional rights was carried out
consciously and deliberately the test was whether the act
complained of was conscious or deliberate and it was
immaterial whether or not the actor knew that what he was
doing was in breach of the constitutional rights of the
accused.
The People (Attorney General) v. O'Brien [1965] I.R. 142 ;
The People v. Walsh [1980] I.R. 294 ; The People (D. P. P.) v.
Healy [1990] 2 I.R. 73 followed. The People v. Shaw [1982]
I.R. 1 not followed, dicta of Walsh J. approved.
3. That the detection of crime and conviction of the guilty
could not outweigh the constitutional obligation of the courts
as far as practicable to defend and vindicate the personal
rights of the citizen. The application of the absolute
protection rule of exclusion incorporated a positive
encouragement to those in authority over crime detection to
consider in detail the personal rights of citizens as set out in
the Constitution.
[1990]
2 I.R.
112
C.C.A.
4. That in the instant case the evidence had been obtained
in violation of Article 40, s. 5, of the Constitution and while
accepting that the garda had no knowledge that they were
invading the constitutional rights of the accused and that
they had obtained and executed the search warrant in a
manner that was customary over a long period, there were
no extraordinary excusing circumstances which would justify
the admission of the evidence and the evidence thus
obtained should not have been admitted.
Per Griffin and Lynch JJ. dissenting: The procedure for
obtaining the search warrant had been in universal use for
many years and the act of breaking into the appellant's flat
in reliance on the search warrant and in circumstances
where an attempt could have been made by the appellant to
destroy the drugs did not constitute a deliberate and
conscious violation of the constitutional rights of the
appellant and the evidence of the finding of the drugs had
been correctly admitted at the trial.
The People v. Shaw [1982] I.R. 1 followed.
Per Lynch J. dissenting: Deliberate disregard by the gardai of
constitutional rights of citizens must result in evidence
obtained thereby being rejected unless there are adequate
excusing circumstances. The forcible entry of the appellant's
dwelling was deliberate but the violation of his constitutional
rights under Article 40, s. 5 was neither conscious nor
deliberate. In order to bring the exclusionary rule into
operation there must be some element of blame or
culpability or unfairness otherwise the evidence should be
admitted.
Berkeley v. Edwards [1988] I.R. 217.
Byrne v. Grey [1988] I.R. 31.
Director of Public Prosecutions v. McMahon [1986] I.R. 393;
[1987] I.L.R.M. 87.
The People (Attorney General) v. O'Brien [1965] I.R. 142.
The People (D.P.P.) v. Conroy [1986] I.R. 460; [1988] I.L.R.M.
4.
The People v. Farrell [1978] I.R. 13.
D.P.P. v. Gaffney [1987] I.R. 173; [1986] I.L.R.M. 657.
The People (Director of Public Prosecutions) v. Healy [1990]
2 I.R. 73.
The People v. Lynch [1982] I.R. 64; [1981] I.L.R.M. 389.
The People v. Madden [1977] I.R. 336; (1976) 111 I.L.T.R.
117.
The People v. O'Loughlin [1979] I.R. 85; (1978) 113 I.L.T.R.
109.
The People (D.P.P.) v. Quilligan [1986] I.R. 495; [1987]
I.L.R.M. 606.
The People v. Shaw [1982] I.R. 1.
The People v. Walsh [1980] I.R. 294.
Reg. v. I.R.C., Ex p. Rossminister [1980] A.C. 952; [1980] 2
W.L.R. 1; [1979] 3 All E.R. 385; [1980] 1 All E.R. 80; (1980) 70
Cr. App. R. 157.
105.
Terry v. Ohio 392 U.S. 1.
United States v. Leon (1983) 468 U.S. 897.
Criminal Appeal.
The applicant sought leave to appeal against two
convictions before the Dublin Circuit (Criminal) Court on
charges of possession of a controlled drug contrary to s. 3 of
the Misuse of Drugs Act, 1977, as amended, and possession
of a controlled drug for the purpose of supplying same to
another contrary to s. 15 of the same Act.
[1990]
2 I.R.
McCarthy J.
113
C.C.A.
The application was heard by the Court of Criminal Appeal
on the 8th May, 1989, and judgment was reserved. The
Court delivered judgment on the 15th June, 1989, and

granted leave to appeal but required further argument on
the issue as to whether or not the deliberate and conscious
act of forcing admission into the appellant's home was a
violation of his constitutional rights with the result that the
fruits of the search consequent on such breach were
inadmissible in evidence.
Paul McDermott for the applicant referred to Byrne v. Grey ;
Reg. v. I.R.C., Ex p. Rossminister ; The People v. Walsh ; The
People v. Shaw ; The People v. Lynch ; The People v.
Madden .
Niall Durnin for the respondent referred to The People
(Attorney General) v. O'Brien ; Byrne v. Grey .
Cur. adv. vult.
In accordance with the provisions of s. 28 of the Courts of
Justice Act, 1924, the judgment of the Court of Criminal
Appeal was delivered by one of the members of the Court.
McCarthy J.
15th June 1989
The applicant was convicted of two offences under the
Misuse of Drugs Act, 1977/84, the offences being alleged to
have taken place on the 2nd October, 1984. On that date,
Garda Conway, armed with a search warrant dated 29th
September, 1984, forced an entry of Flat 1, Ground Floor, 1
Belgrave Place, Rathmines, Dublin, where the applicant
resided and he found samples of heroin and various
incriminating material. According to the garda, the applicant
stated that the flat was his and that he took responsibility for
anything that might be found there. Whilst there was other
evidence germane to the issue of guilt, it is common case
that the admissibility of Garda Conway's evidence
concerning what was found and said in the flat turned on the
validity of the search warrant.
Section 26, sub-s. 1 of the Act of 1977, as amended,
provides:
"If a Justice of the District Court or a Peace Commissioner is
satisfied by information on oath of a member of the Garda
Sochna that there is reasonable ground for suspecting
that:"
any premises or other land of a controlled drug, a forged
prescription or a duly issued prescription which has been
wrongfully altered and that such drug or prescription is on a
particular premises or other land . . .
"Such Justice or Commissioner may issue a search warrant
[1990]
2 I.R.
McCarthy J.
114
C.C.A.
The information sworn by Garda Conway states:
"I am a member of An Garda Sochna and I suspect, on
the basis of information within my possession, that
(a) A person is in possession on the premises or other land
of Flat 1, Ground Floor, 1 Belgrave Place in contravention of
the Misuse of Drugs Act, 1977 and 1984 of a controlled drug,
namely Diamorphine or Cannabis resin and that
(b) Such drug is on a particular premises or other land of
Flat 1, Ground Floor, 1 Belgrave Place, Rathmines.
I hereby apply for a warrant to search for and seize the
articles named above."
The warrant to search stated:
satisfied on the information on oath of Garda Matthew
Conway of An Garda Sochna that there is reasonable
grounds (sic) for suspecting that a controlled drug to which
the Misuse of Drugs Act, 1977 and 1984, apply namely
Diamorphine and Cannabis Resin etc., is in contravention of
the said Act or Regulation cited hereunder in the possession
or under the control of any person etc."

The trial judge, after evidence from Garda Conway and legal
argument, admitted the evidence as to the search, holding
that the warrant had been validly issued by the peace
commissioner. That ruling is the sole issue on this
application. The argument for the applicant is that the
information sworn by Garda Conway albeit in an established
printed form, does not comply with the requirements of the
section in that it does no more than state the suspicion held
by Garda Conway on the basis of the information within his
possession; it does not state what that information is or its
nature, no evidence having been led at the trial as to any
further information that Garda Conway may or may not have
given to the peace commissioner.
A like warrant and information came for consideration by
Hamilton P., in Byrne v. Grey [1988] I.R. 31 in proceedings
by way of judicial review. There the information on oath
stated (at p. 39 of the report):
"I am a member of the Garda Sochna and I have
reasonable grounds for suspecting that a plant of the genus
cannabis is being cultivated contrary to s. 17 of the Misuse
of Drugs Act, 1977 and 1984, on or in the premises or other
land at 50 Whitebrook Park, Tallaght, Dublin 24."
Hamilton P., having cited observations made in Reg. v.
I.R.C., Ex p. Rossminister [1980] A.C. 952 held that a
member of the Garda Sochna seeking the issue of a
warrant
"must be in a position to and so satisfy either the District
Justice or the peace commissioner of the relevant facts so
that the District Justice or the peace commissioner can
satisfy himself in accordance with the requirements of the
section. He is not entitled to rely on the suspicion of a
member of the Garda Sochna applying for the warrant.
As it is quite clear from the terms of the warrant, the first
respondent in this case relied on the information on oath of
the member of the Garda
[1990]
2 I.R.

McCarthy J.
115
C.C.A.
Sochna which merely stated that he, the member of the
Garda Sochna, had reasonable grounds for suspicion. I
am satisfied that the first respondent acted without
jurisdiction in issuing the said warrant because he personally
had no information before him that would enable him to be
satisfied that there was reasonable grounds for suspicion."
The statutory provision being construed in Reg v. I.R.C., Ex
p. Rossminister [1980] A.C. 952 was the Taxes Management
Act, 1970, s. 20C, which reads:
"(1) If the appropriate judicial authority is satisfied on
information on oath given by an officer of the board that
(a) there is a reasonable ground for suspecting that an
offence involving any form of fraud in connection with, or in
relation to, tax has been committed and that evidence of it is
to be found on premises specified in the information; . . . the
authority may issue a warrant in writing authorising an
officer . . . to enter the premises, if necessary by force, at
any time within 14 days from the time of issue of the
warrant, and search them . . ."
In his opinion, Lord Wilberforce said at p. 998:
"(2) No warrant to enter can be issued except by a circuit
judge, not, as is usually the case, by a magistrate. There has
to be laid before him information on oath, and on this he
must be satisfied that there is reasonable ground for
suspecting the commission of a "tax fraud" and that
evidence of it is to be found in the premises sought to be
searched. If the judge does his duty (and we must assume
that the learned Common Serjeant did in the present case)
he must carefully consider for himself the grounds put
forward by the revenue officer and judicially satisfy himself,
in relation to each of the premises concerned, that these
amount to reasonable grounds for suspecting, etc. It would
be quite wrong to suppose that he acts simply as a rubber
stamp on the revenue's application."
Viscount Dilhorne said at p. 1004:

"It cannot in my view be emphasised too strongly that the
section requires that the appropriate judicial authority should
himself be satisfied of these matters and that it does not
suffice for the person laying the information to say that he
is."
Lord Diplock said at p. 1009:
"That subsection makes it a condition precedent to the issue
of the warrant that the circuit judge should himself be
satisfied by information upon oath that facts exist which
constitute reasonable ground for suspecting that an offence
involving some form of fraud in connection with or in relation
to tax has been committed, and also for suspecting that
evidence of the offence is to be found on the premises in
respect of which the warrant to search is sought. It is not, in
my view, open to your Lordships to approach the instant
case on the assumption that the Common Serjeant did not
satisfy himself on both these matters, or to imagine
circumstances which might have led him to commit so grave
a dereliction of his judicial duties. The presumption is that he
acted lawfully and properly; and it is only fair to him to say
that, in my view, there is nothing in
[1990]
2 I.R.
McCarthy J.
116
C.C.A.
the evidence before your Lordships to suggest the contrary;
nor, indeed, have the respondents themselves so
contended."
Lord Salmon said at p. 1018:
"The section is, in my view, so drafted that if an officer of
the Inland Revenue who had made a long and careful
investigation of the respondents' affairs, informed the judge
on oath that there was reasonable ground for suspecting
that an offence or offences involving fraud in relation to tax
had been committed etc., the judge might well make the
mistake of misconstruing section 20C as meaning that the

information given on oath was sufficient to satisfy him that
there was reasonable ground for suspicion and to empower
him to issue the warrants."
and, later at p. 1019:
"In my view, it provides only one real safeguard against an
abuse of power. That safeguard is not that the Inland
Revenue is satisfied that there is reasonable ground for
suspecting that an offence involving fraud in relation to tax
has been committed, but that the judge who issues the
search warrant is so satisfied after he has been told on oath
by the Inland Revenue full details of the facts which it has
discovered . . . I am, however, convinced that search
warrants like the present are invalid because they recite as
the reason for their issue only that an officer of the Inland
Revenue has stated on oath that there is reasonable ground
for suspecting that an offence involving fraud in relation to
tax has been committed. If the judge gives that as his reason
for issuing a warrant, it seems to me to follow that his reason
for issuing it cannot be that he is so satisfied by the
information given to him on oath by an officer of the Inland
Revenue of the detailed facts which the officer has
ascertained; but that the judge's reason for issuing the
warrant was because the officer had stated on oath that
there is reasonable ground to suspect etc."
Lord Scarman said at pp. 1022-3:
"The judge must himself be satisfied. It is not enough that
the officer should state on oath that he is satisfied, which is
all that the warrants say in the present case. The issue of the
warrant is a judicial act, and must be preceded by a judicial
inquiry which satisfies the judge that the requirements for its
issue have been met . . .
It is, therefore, necessary to approach the case upon the
basis that the judge did satisfy himself upon the matters
which he was required to be satisfied before issuing the
warrants."
The majority of the House of Lords held on the evidence that
there was no reason to think that the appropriate judicial
authority had not considered the relevant facts but, far from
disowning the principle upon which Lord Salmon relied,

expressly upheld it. It comes back to the simple proposition
here that the peace commissioner, in deciding to issue a
warrant, is acting judicially, must make up his own mind on
the facts as presented and must not act merely as a rubber
stamp. In the instant case, the learned trial judge stated his
reasons for rejecting the applicant's submission as
follows:
[1990]
2 I.R.
McCarthy J.
117
C.C.A.
"It appears to me that the section contemplates that a
suspicion is communicated by a Garda Sochna
whereupon its basis can be enquired into by the District
Justice or peace commissioner and presumably this would be
more likely to be done in certain types of cases than in
others. Thereupon it will be, it appears to me, for the District
Justice or peace commissioner to exercise his jurisdiction in
issuing or declining to issue the search warrant sought. It
appears to me that it was open to the deceased peace
commissioner to issue the warrant on foot of the information
that was laid before him in the case presently before the
court and it appears to me that no such "jump" was made by
the peace commissioner in compliance with the section as
should impugn the warrant actually granted by him. It seems
to me that the use of the word"reasonable" necessarily
connotes an objective assessment by another person, in this
instance the District Justice or peace commissioner, and that
the absence of an unexplained and undetailed designation
such as the word"reasonable" ought not to be fatal to the
prosecution case and is not so in this instance."
There was no evidence that the peace commissioner
inquired into the basis of the garda's suspicion. On the
contrary, on the evidence adduced at the trial the only
conclusion is that the peace commissioner, deceased at the

time of trial, acted purely on the say-so of Garda Conway as
contained in the information. In doing so, he failed to
exercise any judicial discretion; he failed to carry out his
function under the section and, accordingly, the warrant was
invalid.
In these circumstances, the Court is of opinion that the
search warrant was invalid and that, accordingly, the
evidence as to the search and the statement of the applicant
at the time was admitted on an incorrect basis. That does
not conclude the matter. Garda Conway believed the warrant
to be valid. He had every reason to do so. His good faith was
not in question, but having regard to the run of the case the
question did not arise as to whether or not the deliberate
and conscious act of forcing admission into the appellant's
home was a violation of his constitutional rights with the
result that the fruits of search consequent on such breach
were inadmissible in evidence. The Court requires further
argument on this issue and, accordingly, will grant leave to
appeal, which appeal will be heard without delay.
The appeal on the issue of whether or not the evidence
obtained on foot of the invalid search warrant was
admissible was heard on the 17th July, 1989, and judgment
was reserved.
Niall Durnin for the respondent referred to Byrne v. Grey ;
Berkeley v. Edwards ; The People v. O'Brien and United
States v. Leon .
[1990]
2 I.R.
O'Hanlon J.
118
C.C.A.
Paul McDermott for the appellant referred to The People v.
Conroy ; The People v. Quilligan ; The People v. O'Brien ;
Byrne v. Grey ; The People v. Madden ; The People v.
Walsh ; The People v. Shaw ; The State (Quinn) v. Ryan ;

Terry v. Ohio ; The People v. Lynch and United States v.
Leon .
Cur. adv. vult.
O'Hanlon J.
30th November 1989
The Court has already ruled in its judgment delivered on the
15th June, 1989, that the learned trial judge erred in law in
concluding that the search warrant issued by the peace
commissioner to Garda Conway was a valid warrant. It
follows that the forcible entry by the garda of the flat at
Belgrave Place, Rathmines, Dublin, where the appellant
resided was unlawful. The Court left over for further
consideration the question whether these factors rendered
inadmissible the evidence obtained as a result of that
unlawful entry, and has had the benefit of further legal
argument by counsel on this issue.
The determination of the question involves a consideration
of the decision of the Supreme Court in The People (Attorney
General) v. O'Brien [1965] I.R. 142, and a number of later
decisions of the Supreme Court and the Court of Criminal
Appeal.
In The People (Attorney General) v. O'Brien [1965] I.R. 142
the Supreme Court concluded that evidence obtained by
means of an invalid search warrant should not be excluded
in the circumstances of that particular case. Through
inadvertence, a search warrant referring to an incorrect
address had been issued and it was not clear whether the
garda sergeant noticed the mistake before searching the
premises.
The following passages appear in the judgment of Kingsmill
Moore J. (with whose judgment Lavery and Budd JJ. agreed)
at pp. 161-2:
"The mistake was a pure oversight and it has not been
shown that the oversight was noticed by anyone before the

premises were searched. I can find no evidence of deliberate
treachery, imposition, deceit or illegality; no policy to
disregard the provisions of the Constitution or to conduct
searches without a warrant; nothing except the existence of
an unintentional and accidental illegality to set against the
public interest of having crime detected and punished. . . .
Mr. Justice Walsh, in the judgment which he is about to
deliver, is of opinion that where evidence has been obtained
by the State or its agents as a result of a deliberate and
conscious violation of the constitutional (as opposed to the
common law) rights of an accused person it should be
excluded save where there are 'extraordinary excusing
circumstances', and mentions as such circumstances the
need to prevent an imminent destruction of vital evidence or
rescue of a person in peril, and the seizure of evidence
obtained in the course
[1990]
2 I.R.
O'Hanlon J.
119
C.C.A.
of and incidental to a lawful arrest even though the
premises on which the arrest is made have been entered
without a search warrant. I agree that where there has been
such a deliberate and conscious violation of constitutional
rights by the State or its agents, evidence obtained by such
violation should in general be excluded, and I agree that
there may be certain 'extraordinary excusing circumstances'
which may warrant its admission . . . The facts of individual
cases vary so widely that any hard and fast rules of a
general nature seem to me dangerous and I would again
leave the exclusion or non-exclusion to the discretion of the
trial judge . . . This case is not one of deliberate and
conscious violation, but of a purely accidental and
unintentional infringement of the Constitution. In such cases,
as Mr. Justice Walsh indicates, the evidence normally should
not be excluded."
Since judgment was given in O'Brien's case, the courts
have had to consider on a number of occasions what type of
conduct may be regarded as deliberate and conscious
violation of the constitutional rights of an accused person,
and what type of conduct may fairly be regarded as falling
outside that category.
It is clear from the decisions in The People v. Madden
[1977] I.R. 336, The People v. Farrell [1978] I.R. 13, The
People v. O'Loughlin [1979] I.R. 85 and The People v. Walsh
[1980] I.R. 294, that knowledge of the common law and
statute law, and of the constitutional guarantees,
mustgenerally speakingbe imputed to the law
enforcement agencies, and that if they are breached in a
manner which infringes the constitutional rights of an
accused person, it may be regarded as a deliberate and
conscious violation without regard to the actual state of
knowledge or bona fides of the garda officer or other person
committing such violation.
The cases referred to were clear-cut. In The People v.
Madden [1977] I.R. 336, the Offences Against the State Acts
permitted the detention of a person under s. 30 of the Act of
1939 for a maximum period of 48 hours, whereas Madden
was detained beyond that period while a statement which
was being taken from him was being completed. No attempt
was made in the course of the trial to justify this course, and
the gardai who gave evidence were aware of the 48-hour
time limit. In The People v. Farrell [1978] I.R. 13, no
evidence was given at the trial of the giving of the necessary
authority to extend the applicant's detention up to 48 hours
under the same statutory provisions and therefore the
prosecution failed to establish that there had been no
deliberate and conscious violation of the applicant's
constitutional rights. In The People v. Walsh [1980] I.R. 294
the Supreme Court held that the failure to bring the
appellant before a court at the first reasonable opportunity
after his arrest (as then required by the express provisions of
s. 15 of the Criminal Justice Act, 1951, and as now required
by the provisions of the new section substituted for s. 15 by
s. 26 of the Criminal Justice Act, 1984) resulted in his

continued detention being unlawful and in breach of his
constitutional rights, but in that case the impugned
fingerprint evidence was declared admissible because it had
been obtained at a time when his detention had not yet
become unlawful. A similar decision was given by the Court
of Criminal Appeal in The People v. O'Loughlin [1979] I.R.
85.
[1990]
2 I.R.
O'Hanlon J.
120
C.C.A.
These were all cases where the law was clearly established
and no justification was put forward in evidence by the
prosecution witnesses for their failure to observe the rule of
law in their dealings with the accused person.
Different considerations may arise where the law has been
generally interpreted and applied in a particular way, without
challenge, over a substantial period of time and then, by
reason of judicial interpretation, what was formerly regarded
as being in accordance with law is found to have been based
on an incorrect interpretation of the law and, accordingly,
tainted with illegality.
The present case may be taken as an example of that
situation. It is common case that the procedure adopted by
the garda officer for obtaining a search warrant was in
accordance with standard procedure followed in availing of
the provisions of s. 26 of the Misuse of Drugs Act, 1977. The
gardai in applying for search warrants under that section,
and District Justices and peace commissioners in granting
them, had proceeded on the basis that it was a sufficient
compliance with the requirements of the section if the
application was based on information on oath of a member
of the Garda Sochna, deposing that he or she had
reasonable ground for suspecting the existence of the
matters referred to in the section. Ultimately, however, this

procedure, and a similar procedure followed in England in
relation to analogous legislative provisions in force in that
jurisdiction, were challenged in the courts and found to be
invalid.
The relevant decision in relation to the English legislation is
Reg v. I.R.C., Ex p. Rossminister [1980] A.C. 952, which was
followed by the President of the High Court in considering
the provisions of the Misuse of Drugs Act, 1977, as amended
by s. 13 of the Misuse of Drugs Act, 1984, in Byrne v. Grey
[1988] I.R. 31. These decisions have already been
considered and applied by this Court in the judgment already
given in the present case in relation to the issue of the
legality of the search warrant relied on by Garda Conway in
entering the premises of the appellant.
The date of entry was the 2nd October, 1984. Can it be said
that Garda Conway was guilty of deliberate and conscious
violation of the constitutional rights of the appellant, by
reason of his failure to anticipate the decision of the High
Court in Byrne v. Grey delivered on the 9th October, 1987,
and of this Court delivered on the 15th June, 1989? And if so,
can the peace commissioner who issued the search warrant,
in common with the other District Justices and peace
commissioners who have acted on the faith of similar
informations on oath since the enactment of the Act of 1977,
also be regarded as having been parties to deliberate and
conscious violation of the constitutional rights of the persons
whose homes were entered in reliance upon warrants which
must now be regarded as invalid?
Kingsmill Moore J. in a judgment which had the support of
the majority of the Supreme Court, expressed himself as
follows in relation to a domiciliary search, unauthorised by a
valid search warrant, and which clearly involved an invasion
of the constitutional rights of the accused person, at pp. 160161 of the report:
"It appears to me that in every case a determination has to
be made by the trial judge as to whether the public interest
is best served by the admission or
[1990]
2 I.R.
O'Hanlon J.
121
C.C.A.
by the exclusion of the evidence of facts ascertained as a
result of, and by means of, illegal actions, and that the
answer to the question depends on a consideration of all the
circumstances.
On the one hand, the nature and extent of the illegality
have to be taken into account. Was the illegal action
intentional or unintentional, and, if intentional, was it the
result of an ad hoc decision or does it represent a settled or
deliberate policy? Was the illegality one of a trivial and
technical nature or was it a serious invasion of important
rights, the recurrence of which would involve a real danger
to necessary freedoms? . . .
We can do no more than decide the case now before us, and
to lay down that, in future cases, the presiding judge has a
discretion to exclude evidence of facts ascertained by illegal
means where it appears to him that public policy, based on a
balancing of public interests, requires such exclusion . . .
This case is not one of deliberate and conscious violation,
but of a purely accidental and unintentional infringement of
the Constitution. In such cases, as Mr. Justice Walsh
indicates, the evidence normally should not be excluded . . ."
The same approach appears to have been adopted in later
cases. In The People v. O'Loughlin [1979] I.R. 85, O'Higgins
C.J. said at p. 91:
"In this case the Garda chose not to charge the applicant
when they ought to have done so. Instead, in effect, they
held him further for questioning for many hours. This could
not have been due to either inadvertence or oversight. It
was done by experienced Garda officers who must have had
a special knowledge of citizens' rights in such circumstances.
It would only have been the result of a deliberate decision by
these officers who were aware of the applicant's rights.
These rights were disregarded and swept aside because of

the concern to continue the investigation into cattle-stealing.
This was not such a special circumstance . . . as could
excuse the violation of constitutional rights which took
place."
If the mere fact of detention beyond the period allowed by
law were sufficient of itself to constitute a deliberate and
conscious breach of the constitutional rights of the accused,
it would have been unnecessary for the Chief Justice to
examine the other circumstances referred to in this part of
his judgment.
In The State (Quinn) v. Ryan [1965] I.R. 70, upon which
reliance was placed by the appellant, the Supreme Court
found that the long-standing practice of removal of persons
from this jurisdiction in reliance on British warrants, backed
in Ireland in accordance with the provisions of the Petty
Sessions (Ireland) Act, 1851, was invalid as s. 29 of that Act
was inconsistent with the provisions of the Constitution.
However, in considering the question of the culpability of the
action of the police officers, and the consequences which
flowed from the unlawful removal of the prisoner from the
jurisdiction, the judgment of Dalaigh C.J. (at p. 134) laid
stress on the fact that no instance had been called to the
Court's attention where the Act had been operated as it was
in the case then before the Court, and that the action of both
police groups manifested a determination to avoid any
further "court delays" by presenting the courts with a fait
accompli. In
[1990]
2 I.R.
O'Hanlon J.
122
C.C.A.
other words, the Court embarked upon an investigation as
to whether the conduct amounted to deliberate and
accused, as had Chief Justice O'Higgins in The People v.
O'Loughlin [1979] I.R. 85.

A different approach to the manner in which the phrase
"deliberate and conscious breach of constitutional rights"
should be construed is evident in judgments of Mr. Justice
Walsh in The People v. Walsh [1980] I.R. 294 and in The
People v. Shaw [1982] I.R. 1. The report of his judgment in
The People v. Walsh contains the following passage at p.
317:
"The onus is upon the prosecution to establish that there are
such extraordinary excusing circumstances where it has
been established that there has been a breach of
constitutional right. If a man is consciously and deliberately
kept in custody in a garda station or anywhere else without a
charge being preferred against him and without being
brought before a court as soon as reasonably possible, he is
in unlawful custody and there has been a deliberate and
conscious violation of his constitutional right to be at liberty.
That this was the position in the present case is abundantly
clear from the evidence given by the police officer at the
trial. The fact that the officer or officers concerned may not
have been conscious that what they were doing was illegal
or that, even if they did know it was illegal, they did not
think it was a breach of the Constitution does not affect the
matter. They were conscious of the actual circumstances
which existed."
The other members of the Supreme Court, O'Higgins C.J.
and Kenny J., did not, however, express concurrence with
that judgment of Mr. Justice Walsh. Again, in The People v.
Shaw [1982] I.R. 1, the following passage appears in the
judgment of Mr. Justice Walsh at p. 32:
"13. When the act complained of was undertaken or carried
out consciously and deliberately, it is immaterial whether the
person carrying out the act may or may not have been
conscious that what he was doing was illegal or, even if he
knew it was illegal, that it amounted to a breach of the
constitutional rights of the accused. It is the doing of the act
which is the essential matter, not the actor's appreciation of
the legal consequences or incidents of it: The People v.
Madden ."
However the other members of the Court concurred in the

judgment delivered by Mr. Justice Griffin in the course of
which he expressed disagreement with the opinion on this
topic which had been expressed by Mr. Justice Walsh in The
People v. Walsh [1980] I.R. 294 and again in The People v.
Shaw [1982] I.R. 1, the case then before the Supreme Court.
He said at pp. 55 and 56 of the report:
"Nor do I find myself able to support the opinion that a
person's statement is to be ruled out as evidence obtained in
deliberate and conscious violation of his constitutional rights,
even though the taker of the statement may not have known
that what he was doing was either illegal or unconstitutional.
I consider the authorities to be to the contrary effect. For
example, in The People (Attorney General) v. O'Brien
Kingsmill Moore J. (who gave the majority judgment), having
held that evidence obtained in deliberate and conscious
violation of constitutional rights should be excluded except in
"extraordinary
[1990]
2 I.R.
O'Hanlon J.
123
C.C.A.
excusing circumstances" (which he preferred to leave
unspecified), excused as"a purely accidental and
unintentional infringement of the Constitution" the violation
complained of in that case: see p. 162 of the report. See also
The People v. Madden at p. 346 where a "factor such as
inadvertence" was recognised as being capable of being one
of the "extraordinary excusing circumstances" envisaged in
O'Brien's case. In my opinion, it is the violation of the
person's constitutional rights, and not the particular act
complained of, that has to be deliberate and conscious for
the purpose of ruling out a statement."
See also what was said by Mr. Justice Henchy in the course
of his judgment in The People (D.P.P.) v. Quilligan [1986] I.R.
495 as follows at p. 513:
"The only other ground upon which the statements could be

rejected is if it could be held that they were the fruit of an
arrest which was a conscious and deliberate violation of the
prisoners' constitutional right to personal liberty. However,
that conclusion was not open, for even if it could be said that
the arrest was an unconstitutional act, it was not consciously
or deliberately so. In arresting the accused under s. 30 of the
Offences Against the State Act, 1939, for a scheduled
offence, the arresting garda were acting in good faith,
because they were merely following a system of arrest which
had been followedand given at least tacit approval in the
courtsever since prosecutions were first brought in
respect of scheduled offences under that Act. It would follow,
therefore, that, regardless of any unconstitutionality in the
arrest, the statements were admissible in evidence."
Some confusion appears to have arisen since The People
(Attorney General) v. O'Brien [1965] I.R. 142 was decided
about the application of the concept of "extraordinary
excluding circumstances" and it is important to note that the
impact of that concept has only to be considered where the
court is of the view that a deliberate and conscious violation
of constitutional rights has taken place, but has to go on to
consider whether there are, nevertheless, "extraordinary
excusing circumstances" which would permit the admission
of evidence which could be regarded as tainted by this
element of unconstitutionality. Where, however, what has
taken place should not be regarded as a deliberate and
accused, then the question of the admissibility of the
evidence can be considered as a matter of the court's
discretion without having to consider whether "extraordinary
excusing circumstances"existed.
Finally, it is of interest to note that a case which provides a
close parallel to the present case came before the US
Supreme Court in 1984 United States v. Leon (1983) 468
U.S. 897. It involved a consideration of the Fourth
Amendment of the US Constitution which provides that "the
right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and
seizures, shall not be violated, and no warrants shall issue,

but upon probable cause, supported by oath or affirmation,
and particularly describing the place to be searched, and the
persons or things to be seized."
[1990]
2 I.R.
O'Hanlon J.
124
C.C.A.
The Court held that the Fourth Amendment's exclusionary
rule should not be applied so as to bar the use in the
prosecution's case in chief of evidence obtained by officers
acting in reasonable reliance on a search warrant issued by a
detached and neutral magistrate but ultimately found to be
invalid.
The rationale lying behind the exclusion of evidence
obtained in circumstances involving a breach of these
constitutional guarantees was examined by Justice White,
who delivered the opinion of the Court. He said at p. 906:
"The Fourth Amendment contains no provision expressly
precluding the use of evidence obtained in violation of its
commands, and an examination of its origin and purposes
makes clear that the use of fruits of a past unlawful search
or seizure "works no new Fourth Amendment wrong". ( U.S.
v. Calandra 414 U.S. 338/354) . . . The rule thus operates as
a "judicially created remedy designed to safeguard Fourth
Amendment rights generally through its deterrent effect,
rather than a personal constitutional right of the party
aggrieved." ( United States v. Calandra, supra , at 348).
Whether the exclusionary sanction is appropriately imposed
in a particular case, our decisions make clear, is "an issue
separate from the question whether the Fourth Amendment
rights of the party seeking to invoke the rule were violated
by police conduct." ( Illinois v. Gates, supra , at 223). Only
the former question is currently before us, and it must be
resolved by weighing the costs and benefits of preventing
the use in the prosecution's case in chief of inherently

trustworthy tangible evidence obtained in reliance on a
search warrant issued by a detached and neutral magistrate
that ultimately is found to be defective.
The substantial social costs exacted by the exclusionary rule
for the vindication of Fourth Amendment rights have long
been a source of concern."Our cases have consistently
recognised that unbending application of the exclusionary
sanction to enforce ideals of governmental rectitude would
impede unacceptably the truth-finding functions of judge
and jury." United States v. Payner 447 U.S. 727, 734 (1980).
An objectionable collateral consequence of this interference
with the criminal justice system's truth-finding function is
that some guilty defendants may go free or receive reduced
sentences as a result of favourable plea bargains.
Particularly when law enforcement officers have acted in
objective good faith or their transgressions have been minor,
the magnitude of the benefit conferred on such guilty
defendants offends basic concepts of the criminal justice
system. Stone v. Powell 428 U.S. at 490. Indiscriminate
application of the exclusionary rule, therefore, may well
"generate disrespect for the law and administration of
justice."Id., at 491. Accordingly, "as with any remedial
device, the application of the rule has been restricted to
those areas where its remedial objectives are thought most
efficaciously served. . . .
First, the exclusionary rule is designed to deter police
misconduct rather than to punish the errors of judges and
magistrates. Second, there exists no evidence suggesting
that judges and magistrates are inclined to subvert the
Fourth Amendment or that lawlessness among these actors
requires
[1990]
2 I.R.
O'Hanlon J.
125
C.C.A.
application of the extreme sanction of exclusion. Third, and

most important, we discern no basis, and are offered none,
for believing that exclusion of evidence seized pursuant to a
warrant will have a significant deterrent effect on the issuing
judge or magistrate . . ."
We conclude that the marginal or non existent benefits
produced by suppressing evidence obtained in objectively
reasonable reliance on a subsequently invalidated search
warrant cannot justify the substantial costs of exclusion."
In many ways it appears to this Court that what was said in
United States v. Leon (1983) 468 U.S. 897, echoes what was
said already by Kingsmill Moore J., in The People (Attorney
General) v. O'Brien [1965] I.R. 142, as to the manner in
which the exclusionary rule should be applied within our own
jurisdiction.
In the opinion of the Court, the evidence in the present
case, which shows that Garda Conway took all steps believed
to be necessary and appropriate for obtaining a valid search
warrant, and armed himself with a warrant issued by a peace
commissioner in purported exercise of his functions under
the relevant Act, is a clear indication that there was no
deliberate or conscious violation of the constitutional rights
of the appellant.
In these circumstances the correct decision for the trial
judge to make in the circumstances of the present case,
would have been to admit the evidence obtained as a result
of the use made of the search warrant in question. He took
this course, but in the mistaken belief that the warrant had
been regularly obtained and was a valid warrant. The
challenge to the validity of the warrant has been determined
in the appellant's favour, but the Court considers that in the
circumstances already outlined in this judgment, no
miscarriage of justice occurred, and proposes to dismiss the
appeal, in exercise of the jurisdiction conferred on it by the
provisions of s. 5, sub-s. 1 (a) of the Courts of Justice Act,
1928.
On the application of counsel for the appellant, the Court
certified that its decision involved a point of law of
exceptional public importance and that it was desirable that

an appeal be taken to the Suipreme Court. The point of law
certified is set out in the headnote ante and the judgments
post.
The appeal was heard by the Supreme Court on the 7th
March, 1990.
Paul Carney S.C. and Paul McDermott for the appellant
referred to The People (Attorney General) v. O'Brien ; The
People v. Lynch ; Terry v. Ohio ; The People v. Walsh ; The
State (Quinn) v. Ryan ; The People v. Shaw and The People
v. O'Loughlin .
[1990]
2 I.R.
Finlay C.J.
126
S.C.
Kevin Haugh S.C. (with him Niall Durnin ) for the respondent
referred to The People v. Madden ; The People v.
O'Loughlin ; The People v. Walsh and The People (Director
of Public Prosecutions) v. Healy .
Paul Carney S.C. in reply referred to The People v. Farrell .
Cur. adv. vult.
Finlay C.J.
20th March 1990
This is an appeal by the accused against a decision of the
Court of Criminal Appeal rejecting his appeal against a
conviction for offences contrary to the Misuse of Drugs Act,
1977, as amended.
It is brought pursuant to a certificate issued by that Court
under s. 29 of the Courts of Justice Act, 1924.
The point of law concerned in the appeal as identified by
that certificate is as follows:

"Whether the forcible entry of the appellant's home by
members of An Garda Sochna on foot of an invalid search
warrant constituted a deliberate and conscious violation of
the appellant's constitutional rights, such as to render any
evidence obtained by the said members in the course of the
ensuing search inadmissible at the appellant's trial."
No other ground of appeal, other than this point of law was
submitted to this Court, and a consideration of the transcript
of the trial confirms that no other ground of appeal exists.
The facts
On the 2nd October, 1984, two members of the Garda Sochna were in hiding, carrying out a surveillance of a
premises at 1, Belgrave Place, Rathmines, in the City of
Dublin, in which the accused was then residing.
They observed activity outside the house and in and around
flat no. 1 in it, on the ground floor, which included activity by
the accused and which appeared to them as constituting
some form of trafficking in drugs.
By wireless telephone, one of the garda requested a
colleague to bring to him a search warrant which had been
obtained from a peace commissioner pursuant to s. 26, subs. 1 of the Act of 1977, in respect of the premises Flat No. 1
on the ground floor of 1, Belgrave Place. The search warrant
was brought to the garda concerned and he, having sought
entry by demand, made forcible entry through a window,
found the accused on the premises, and found a quantity of
controlled drugs on the premises for which, on his evidence,
the accused took responsibility.
[1990]
2 I.R.
Finlay C.J.
127
S.C.
That was the only evidence associating the accused with the
controlled drugs. No issue arose in this case by reason of the
fact that the search warrant was issued by a peace
commissioner.
Statutory provisions and contents of documents
Section 26, sub-s. 1 of the Act as amended provides:
"(1) If a Justice of the District Court or a Peace
Commissioner is satisfied by information on oath of a
ground for suspecting that
any premises or other land, of a controlled drug, a forged
prescription or a duly issued prescription which has been
wrongfully altered, and that such drug or prescription is on a
particular premises or other land . . .
such Justice or Commissioner may issue a search warrant
The information sworn by Garda Conway, the garda who
sought the warrant, was in the following terms:
"I am a member of An Garda Sochna and I suspect on
the basis of information within my possession, that
(a) a person is in possession on the premises or other land
of Flat 1, ground floor, 1 Belgrave Place, in contravention of
the Misuse of Drugs Act, 1977 and 1984 of a controlled drug,
namely, diamorphine, or cannabis resin, and that
(b) such drug is on a particular premises or other land, Flat
1, ground floor, 1 Belgrave Place, Rathmines.
I hereby apply for a warrant to search for and seize the
articles named above."
The warrant was issued by the peace commissioner (who
died before the trial of the accused) in the following form:
satisfied on the information on oath of Garda Matthew
Conway of An Garda Sochna, that there is reasonable
grounds (sic) for suspecting that a controlled drug to which
the Misuse of Drugs Act, 1977 and 1984 apply, namely,
diamorphine and cannabis resin etc. is in contravention of
the said Act or regulation cited hereunder in the possession
of or under the control of any person etc."
No evidence was tendered of any information supplied to
the peace commissioner prior to his issue of the warrant,
other than the contents of the sworn, written information.
The Court of Criminal Appeal in its judgment of the 15th

June, 1989, delivered by McCarthy J., found that the warrant
issued in this case was invalid by reason of the fact that
there was no evidence that the peace commissioner was
himself satisfied that there were reasonable grounds for
suspecting the existence of
[1990]
2 I.R.
Finlay C.J.
128
S.C.
controlled drugs on the premises, but rather that the only
evidence was to the effect that he relied in its entirety on the
information in writing submitted to him by the Garda Sochna, in other words, that he relied on the fact that the
garda had grounds for so suspecting.
Counsel for the respondent accepts that this portion of the
judgment of the Court of Criminal Appeal was correct. Quite
independently of that concession, I am satisfied that it was.
It is, however, necessary for the purpose of determining the
issues which do arise on this appeal shortly to consider the
principles underlying that decision.
The Court of Criminal Appeal followed the decision of
Hamilton P. in Byrne v. Grey [1988] I.R. 31, which dealt with
a warrant which purported to have been issued pursuant to
s. 26 of the Act of 1977 upon an information which was in
similar form, though not identical in factual content to the
information in this case.
In the course of his judgment in that case, Hamilton P.,
having set out the provisions of s. 26 of the Act of 1977, as
amended, at p. 38 of the report, stated as follows:
"These powers encroach on the liberty of the citizen and the
inviolability of his dwelling as guaranteed by the Constitution
and the courts should construe a statute which authorises
such encroachment so that it encroaches on such rights no
more than the statute allows, expressly or by necessary
implication.
The statute authorising such encroachment provides at s.

26 thereof that a justice of the District Court or a peace
commissioner must be satisfied by information on oath of a
ground for the suspicion before he is entitled to issue the
search warrant mentioned in the Act as amended.
In construing this section the court ought, in the words of
Lord Diplock in the course of his judgment in Reg. v. I.R.C.,
Ex p. Rossminister Ltd. [1980] A.C. 952, at p. 1008:
'. . . to remind itself, if reminder should be necessary, that
entering a man's house or office, searching it and seizing his
goods against his will are tortious acts against which he is
entitled to the protection of the court unless the acts can be
justified either at common law or under some statutory
authority. So if the statutory words relied on as authorising
the acts are ambiguous or obscure, a construction should be
placed upon them that is least restrictive of individual rights
which would otherwise enjoy the protection of the common
law. But judges in performing their constitutional function of
expounding what words used by Parliament in legislation
mean, must not be over-zealous to search for ambiguities or
obscurities in words which on the face of them are plain,
simply because the members of the court are out of
sympathy with the policy to which the Act appears to give
effect.'
In this country the individual rights referred to as enjoying
the protection of the common law also enjoy the protection
of the Constitution."
[1990]
2 I.R.
Finlay C.J.
129
S.C.
The invalidity of the warrant in this case accordingly arises,
as was found by the Court of Criminal Appeal, in effect from
a failure, upon the evidence adduced, adequately to protect
the right vested in the accused by Article 40, s. 5 of the

Constitution of the inviolability of his dwelling by the
intervention of an independent decision that a search
warrant was justified made by the peace commissioner over
and above the decision made by the garda that he
suspected the existence of controlled drugs.
It is against the background of that reason for the invalidity
of the warrant that the issues that arise on this appeal must
be considered.
The issues on this appeal
The appellant contends that once the garda who forced
entry into the premises did so knowing what he was doing
and the garda who obtained the search warrant did so
knowing the limitations of the information he put forward to
the peace commissioner in order to obtain it, that,
irrespective of whether either of these two officers was
aware that he was invading the constitutional rights of the
accused and irrespective of whether either of them could be
described as being culpable or blameworthy, having regard
to the previous practice of members of the Garda Sochna
in connection with search warrants, that the obligation of the
court is to protect the constitutional right involved, namely,
the inviolability of the dwelling and that in order to do so it
must declare inadmissible the evidence obtained by the
unconstitutional forcible entry. It is, of course, a corollary of
this submission that the phrase "conscious and deliberate
violation of constitutional rights" used in the decision of this
Court in The People (Attorney General) v. O'Brien [1965] I.R.
142 and recurring in other decisions, relates to the
knowledge and intention associated with the actual act or
acts complained of and does not rest on the knowledge,
actual or imputed, of the person committing those acts with
regard to the nature of the constitutional rights of the person
involved, nor as to the consequences of those acts upon any
such constitutional rights.
On behalf of the respondents, on the other hand, it was
contended that the underlying principle relating to the
exclusion of evidence obtained by a conscious and deliberate
violation of a person's constitutional rights was not the
protection of the right itself but rather the deterrent effect of

such a consequence upon the conduct of the persons who
had breached the constitutional rights concerned. Such a
person must not, it is said, if the Constitution is to be
respected, be allowed to reap the fruits of unconstitutional
behaviour. On that principle, it was contended that a
necessary ingredient of a conscious and deliberate invasion
of constitutional rights, which has the consequence of the
exclusion of evidence which would be otherwise admissible,
is that it is established or, at least, not disproved that the
person committing such acts was aware of and intended to
invade the constitutional rights concerned or that, on the
knowledge which would reasonably be imputed to him he so
intended.
[1990]
2 I.R.
Finlay C.J.
130
S.C.
The decision of the Court of Criminal Appeal
The Court of Criminal Appeal in its judgment of the 30th
November, 1989, delivered by O'Hanlon J. having concluded
that the warrant was invalid, held that reliance upon it was
not in deliberate or conscious violation of the constitutional
rights of the accused. That conclusion was expressed in the
following paragraph:
"In the opinion of the Court, the evidence in the present
case, which shows that Garda Conway took all steps believed
to be necessary and appropriate for obtaining a valid search
warrant, and armed himself with a warrant issued by a peace
commissioner in purported exercise of his functions under
the relevant Act, is a clear indication that there was no
deliberate or conscious violation of the constitutional rights
of the appellant."
In reaching that conclusion the Court of Criminal Appeal
relied upon the decision of the Supreme Court of the United
States in United States v. Leon (1983) 468 U.S. 897, and

expressed the view that it was an echo of the views
expressed by Kingsmill Moore J. in The People (Attorney
General) v. O'Brien [1965] I.R. 142.
The decision in this appeal
The decision in United States v. Leon (1983) 468 U.S. 897
is clearly and expressly based upon the principle of
deterrence rather than the principle of absolute protection of
the constitutional right concerned, in applying the exclusion
of evidence rule to the obtaining of evidence by
unconstitutional means.
In the course of the judgment of White J. delivering the
opinion of the Court, it is stated as follows at p. 906:
"The rule thus operates as a judicially created remedy
designed to safeguard Fourth Amendment rights generally
through its deterrent effect, rather than a personal
constitutional right of the party aggrieved."
I do not find this to constitute an echo of the judgment of
Kingsmill Moore J. in The People (Attorney General) v.
O'Brien [1965] I.R. 142. The greater part of that judgment
deals with evidence obtained by illegal, as distinct from
unconstitutional, means and constitutes a review of the
English and Scottish authorities in which, of course, no
question of any differentiation between illegality and
unconstitutionality arises. Reference to evidence obtained by
unconstitutional means which was, of course, what occurred
in this case, occurs only at the conclusion of the judgment at
p. 162, in the following paragraph:
"Mr. Justice Walsh, in the judgment which he is about to
deliver, is of opinion that where evidence has been obtained
by the State or its agents as a result of a deliberate and
conscious violation of the constitutional (as opposed to the
common law) rights of an accused person, it should be
excluded
[1990]
2 I.R.
Finlay C.J.
131
S.C.
save where there are 'extraordinary excusing
circumstances' and mentions as such circumstances the
need to prevent an imminent destruction of vital evidence or
rescue of a person in peril, and the seizure of evidence
obtained in the course of and incidental to a lawful arrest,
even though the premises on which the arrest is made have
been entered without a search warrant. I agree that where
there has been such a deliberate and conscious violation of
constitutional rights by the State or its agents evidence
obtained by such violation should in general be excluded and
I agree that there may be certain"extraordinary excusing
circumstances" which may warrant its admission. I would
prefer, however, not to attempt to enumerate such
circumstances by anticipation. The facts of individual cases
vary so widely that any hard and fast rules of a general
nature seem to me dangerous, and I would again leave the
exclusion or non-exclusion to the discretion of the trial
judge."
This expression of opinion which formed the majority view of
the Court in The People (Attorney General) v. O'Brien [1965]
I.R. 142 clearly leaves unresolved in relation to the
admissibility of unconstitutionally obtained evidence the
choice raised by the arguments in this case between the
deterrent and absolute protection principles.
In The People v. Walsh [1980] I.R. 294, Walsh J. in the
course of his judgment, at p. 317, stated as follows:
"If a man is consciously and deliberately kept in custody in a
garda station or anywhere else without a charge being
preferred against him and without being brought before a
court as soon as reasonably possible, he is in unlawful
custody and there has been a deliberate and conscious
violation of his constitutional right to be at liberty. That this
was the position in the present case is abundantly clear from
the evidence given by the police officer at the trial. The fact
that the officer or officers concerned may not have been
conscious that what they were doing was illegal or that, even
if they did know it was illegal, they did not think it was a
breach of the Constitution does not affect the matter. They

were conscious of the actual circumstances which
existed"[emphasis added].
This judgment of Walsh J. in that case was a dissenting
judgment, but not by reason of the principles of law
enunciated in it, but rather by reason of the view taken as to
whether on the facts of the case the detention of the
applicant was or was not unlawful.
Delivering the majority judgment of the Court in The People
v. Walsh [1980] I.R. 294 with which Kenny J. agreed,
O'Higgins C.J., at p. 299, having recited the submission made
on behalf of the appellant that evidence of fingerprints taken
whilst the accused was in unlawful custody was inadmissible,
stated as follows:
"I wish to say at once that this submission should succeed if
the imprisonment or detention in Store Street cannot be
justified in law. I have had the benefit of reading the
judgment of Mr. Justice Walsh in which he reviews the
authorities on this important aspect of constitutional law. I
am in complete agreement with the manner in which he
states the law. However, in my view, this is not the crucial
question. In my view, the crucial questionindeed the
[1990]
2 I.R.
Finlay C.J.
132
S.C.
only questionis whether the arrest of the appellant and
his detention immediately thereafter on the night of the 23rd
January was, or was not, lawful."
This issue again came before the Court in The People v.
Shaw [1982] I.R. 1.
In that case Walsh J. summarised his views on this issue in a
most clear and comprehensive manner in a series of
numbered paragraphs, the most important of which are as
follows, at p. 31:
"8. Subject to paragraphs 9 and 10, evidence obtained as a
result of deliberate and conscious violation of the

constitutional rights of an accused person may not be
admitted at the trial of that person: The People (Attorney
General) v. O'Brien ; The People v. Walsh ; The People v.
Madden .
9. There can be extraordinary circumstances (such as the
imminent destruction of vital evidence or the need to rescue
a victim in peril, or other extraordinary excusing
circumstances) surrounding the conscious and deliberate
violation of the constitutional rights of an accused which, in
the opinion of the trial judge, may justify the admission of
the evidence so obtained: The People (Attorney General) v.
O'Brien ; The People v. Walsh .
10. If the act which amounts to a breach of the
constitutional rights of the accused person was committed
unintentionally or accidentally, the evidence may be
admitted at the discretion of the trial judge if it is otherwise
admissible: The People (Attorney General) v. O'Brien ; The
People v. Walsh .
12. Where it appears that there has been a breach of the
constitutional rights of the accused, the onus of establishing
the existence of 'extraordinary excusing circumstances' or of
mistake, or lack of intention or accident is upon the party
seeking to adduce the evidence: The People v. Madden ; The
People v. Walsh .
13. When the act complained of was undertaken or carried
out consciously and deliberately, it is immaterial whether the
conscious that what he was doing was illegal or, even if he
Madden ."
Griffin J. delivered the majority judgment of the Court in that
case, with which Henchy, Kenny and Parke JJ. agreed. It
contained a very clear disagreement with the views
expressed by Walsh J. At page 55 of the report, Griffin J.
states as follows:

I consider the authorities to be to the contrary effect. For
example, in The People (Attorney General) v. O'Brien ,
Kingsmill Moore J. (who gave the majority judgment), having
held that evidence obtained in deliberate and
[1990]
2 I.R.
Finlay C.J.
133
S.C.
conscious violation of constitutional rights should be
excluded except in"extraordinary excusing circumstances"
(which he preferred to leave unspecified), excused as "a
purely accidental and unintentional infringement of the
Constitution" the violation complained of in that case: see p.
162 of the report. See also The People v. Madden at p. 346,
where a "factor such as an inadvertence" was recognised as
capable of being one of the "extraordinary excusing
circumstances" envisaged in O'Brien's case. In my opinion,
it is the violation of the person's constitutional rights, and
not the particular act complained of, that has to be
deliberate and conscious for the purpose of ruling out a
statement."
The opinion expressed in that judgment was that the
principles laid down in O'Brien's case did not apply to the
making of an incriminating statement where the real test
was whether the statement was obtained in compliance with
basic or fundamental fairness.
O'Higgins C.J. in The People v. Lynch [1982] I.R. 64 has
expressly dissented from this view.
In The People (Director of Public Prosecutions) v. Healy
[1990] 2 I.R. 73 in my judgment and McCarthy J. in his,
adopted what I have described as the absolute protection
test for evidence obtained by reason of a breach of a

detained person's constitutional right of access to a lawyer.
The constitutional rights with which all these cases are
concerned are personal rights, being either the right to
liberty: Walsh's case; Madden's case; Shaw's case, or the
inviolability of the dwelling: O'Brien's case and the instant
case.
The duty of the Court pursuant to Article 40, s. 3, sub-s. 1 of
the Constitution is as far as practicable to defend and
vindicate such rights.
As between two alternative rules or principles governing the
exclusion of evidence obtained as a result of the invasion of
the personal rights of a citizen, the Court has, it seems to
me, an obligation to choose the principle which is likely to
provide a stronger and more effective defence and
vindication of the right concerned.
To exclude only evidence obtained by a person who knows
or ought reasonably to know that he is invading a
constitutional right is to impose a negative deterrent. It is
clearly effective to dissuade a policeman from acting in a
manner which he knows is unconstitutional or from acting in
a manner reckless as to whether his conduct is or is not
unconstitutional.
To apply, on the other hand, the absolute protection rule of
exclusion whilst providing also that negative deterrent,
incorporates as well a positive encouragement to those in
authority over the crime prevention and detection services
of the State to consider in detail the personal rights of the
citizens as set out in the Constitution, and the effect of their
powers of arrest, detention, search and questioning in
relation to such rights.
It seems to me to be an inescapable conclusion that a
principle of exclusion which contains both negative and
positive force is likely to protect constitutional rights in more
instances than is a principle with negative consequences
only.
[1990]
2 I.R.

Finlay C.J.; Walsh J.; Griffin J.
134
S.C.
The exclusion of evidence on the basis that it results from
unconstitutional conduct, like every other exclusionary rule,
suffers from the marked disadvantage that it constitutes a
potential limitation of the capacity of the courts to arrive at
the truth and so most effectively to administer justice.
I appreciate the anomalies which may occur by reason of
the application of the absolute protection rule to criminal
cases.
The detection of crime and the conviction of guilty persons,
no matter how important they may be in relation to the
ordering of society, cannot, however, in my view, outweigh
the unambiguously expressed constitutional obligation "as
far as practicable to defend and vindicate the personal rights
of the citizen."
After very careful consideration I conclude that I must differ
from the view of the majority of this Court expressed in the
judgment of Griffin J. in The People v. Shaw [1982] I.R. 1. I
am satisfied that the correct principle is that evidence
obtained by invasion of the constitutional personal rights of a
citizen must be excluded unless a court is satisfied that
either the act constituting the breach of constitutional rights
was committed unintentionally or accidentally, or is satisfied
that there are extraordinary excusing circumstances which
justify the admission of the evidence in its (the court's)
discretion.
In the instant case there cannot be any question but that
the acts of the gardai which obtained the warrant by the
submission to the peace commissioner of the sworn written
information in the form in which I have recited it, and which
then forcibly entered the dwellinghouse were neither
unintentional nor accidental, and counsel for the respondent
agrees that there are no extraordinary excusing
circumstances in this case. Even though, then, I would
accept that neither of the two gardai concerned had any
knowledge that they were invading the constitutional rights

of the accused and would also accept that they were
carrying out the process of obtaining and executing a search
warrant in a manner which has been customary over a long
period with the gardai, I am satisfied that the evidence
obtained as a result of the forcible entry into the house
should not have been admitted at the trial of the accused
and that, accordingly, the conviction of the accused should
not have occurred.
I would, therefore, allow this appeal and I would quash the
conviction entered against the accused.
Walsh J.
I agree with the judgment of the Chief Justice.
Griffin J.
The facts and the applicable statutory provisions are set out
in the judgment of the Chief Justice and it is not necessary to
repeat them.
It appears to me that although the certified question is a
single question, it essentially breaks down into two parts:
[1990]
2 I.R.
Griffin J.
135
S.C.
1. In the circumstances of this case did the forcible entry of
the home of Mark Kenny ("the appellant") constitute a
and,
2. if so, was the evidence obtained by the garda in the
course of the search of his home inadmissible at his trial.
Counsel for the appellant submitted that the forcible entry
by Garda Conway on foot of an invalid search warrant,
although he had every reason to believe it was a valid
warrant, did constitute such a violation of the appellant's
constitutional rights; that his knowledge or belief was

irrelevant; and that evidence of what was discovered in the
flat in the course of the subsequent search should have been
excluded under the exclusionary rule. In support of this
submission, they relied on The People (Attorney General) v.
O'Brien [1965] I.R. 142; The People v. Madden [1977] I.R.
336; The People v. O'Loughlin [1979] I.R. 85; The People v.
Shaw [1982] I.R. 1 and The People (Director of Public
Prosecutions) v. Healy [1990] 2 I.R. 73.
Counsel for the Director of Public Prosecutions submitted
that, although the act of breaking the window of the
appellant's flat and of gaining access to the flat was a
deliberate and conscious act, there was no evidence to
support the submission of the appellant's counsel that it was
a deliberate and conscious violation of the appellant's
constitutional rights. It was not, it was submitted, a
deliberate and conscious violation of those rights unless the
garda knew or ought reasonably to have known that he was
infringing a constitutional right of the appellant. He further
submitted that, in all the cases on which the appellant's
counsel relied, the circumstances were such that the gardai
knew what they were doing and that they were infringing the
rights of the persons detained. He also relied on The People
(Attorney General) v. O'Brien [1965] I.R. 142 and The
People v. Shaw [1982] I.R. 1 at pp. 55-66. I did not
understand him to argue that the underlying principle
applicable to this case was the deterrent effect upon the
conduct of those who had breached constitutional rights.
Article 40, s. 5 of the Constitution provides that:
"The dwelling of every citizen is inviolable and shall not be
forcibly entered save in accordance with law."
That Article was considered by this Court in The People
(Attorney General) v. O'Brien [1965] I.R. 142 in pursuance of
a certificate granted by the Court of Criminal Appeal under s.
29 of the Courts of Justice Act, 1924, and is the leading
authority on the topic. In that case, Detective Sergeant
Healy swore an information that he had reason to suspect
that certain articles which had been stolen were to be found
at 118 Captain's Road, Crumlin, and on such an information
a search warrant was issued and duly signed by District

Justice Farrell. In error, the premises were described as 118
Cashel Road. The warrant was executed at 118 Captain's
Road and certain stolen articles were found there. The two
accused brothers were charged with house-breaking and
with receiving the stolen articles. At their trial objection was
taken to the admissibility of the evidence of the finding of
the articles because of the defective warrant. That objection
was disallowed, both accused were convicted, and they
applied
[1990]
2 I.R.
Griffin J.
136
S.C.
unsuccessfully to the Court of Criminal Appeal for leave to
appeal, the same objection having been taken there. The
Court of Criminal Appeal granted a certificate for leave to
appeal to this Court. In condensed form Kingsmill Moore J. at
p. 50 framed the certified questions as follows:
"Is evidence procured by the Guards in the course of, and as
a result of, a domicilary search, unauthorised by a search
warrant, admissible in subsequent criminal proceedings?"
The Court unanimously held that such evidence was
admissible. In their judgments, Kingsmill Moore J. (with
whom Lavery J. and Budd J. agreed) and Walsh J. (with whom
Dalaigh C.J. agreed) reviewed the law applicable to the
certified question. As the Chief Justice has pointed out in his
judgment, almost the entire of the majority judgment of
Kingsmill Moore J. consists of a consideration of the
admissibility in evidence of facts ascertained by illegal
means. At the end of that part of his judgment, in discussing
the facts in the case before the Court, he said at p. 161:
"The mistake was a pure oversight and it has not been
shown that the oversight was noticed by anyone before the
premises were searched. I can find no evidence of deliberate
treachery, imposition, deceit or illegality; no policy to
disregard the provisions of the Constitution, or to conduct

searches without a warrant; nothing except the existence of
an unintentional and accidental illegality to set against the
public interest of having a crime detected and punished."
It was only in the last passage of the judgment (at p. 162)
that he dealt with the question of evidence obtained by the
State or its agents as a result of "a deliberate and conscious
violation of the constitutional (as opposed to the common
law) rights of an accused person . . ." As the Chief Justice
has, in the judgment just delivered by him, set out that
passage in full, it is not necessary for me to do so.
In The People v. Shaw [1982] I.R. 1 the principles laid down
in The People (Attorney General) v. O'Brien [1965] I.R. 142
occupied a very large part of the argument in the court of
trial, in the Court of Criminal Appeal, and in this Court. In his
judgment Walsh J. discussed that case at pp. 31-34, and I did
likewise at pp. 56-60. In the course of his judgment, Walsh J.
said at p. 32:
"When the act complained of was undertaken or carried out
consciously and deliberately, it is immaterial whether the
conscious that what he was doing was illegal, or even if he
Madden ."
In my judgment, I stated at pp. 55-56:
I consider
[1990]
2 I.R.
Griffin J.
137
S.C.
the authorities to be to the contrary effect. For example, in
The People (Attorney General) v. O'Brien Kingsmill Moore J.
(who gave the majority judgment) having held that evidence
obtained in deliberate and conscious violation of
constitutional rights should be excluded except in
"extraordinary excusing circumstances" (which he preferred
to leave unspecified), excused as"a purely accidental and
unintentional infringement of the Constitution" the violation
complained of in that case: see p. 162 of the report. See also
The People v. Madden at p. 346 where a "factor such as
inadvertence"was recognised as being capable of being one
of the "extraordinary excusing circumstances" envisaged in
O'Brien's Case . In my opinion, it is the violation of the
person's constitutional rights, and not the particular act
complained of, that has to be deliberate and conscious for
the purpose of ruling out a statement."
In The People (D.P.P.) v. Quilligan [1986] I.R. 495, in which
the admissibility of inculpatory statements alleged to have
been made by the accused was in issue, in the course of his
judgment Henchy J. said at p. 513:
"The only other ground on which the statements could be
rejected is if it could be held that they were the fruit of an
arrest which was a conscious and deliberate violation of the
prisoners' constitutional right to personal liberty. However,
that conclusion was not open, for even if it could be said that
the arrest was an unconstitutional act, it was not consciously
or deliberately so. In arresting the accused under s. 30 of the
Offences Against the State Act, 1939, for a scheduled
offence, the arresting gardai were acting in good faith,
because they were merely following a system of arrest which
had been followedand given at least tacit approval in the
courtsever since prosecutions were first brought in
respect of scheduled offences under that Act. It would follow,
therefore, that, regardless of any unconstitutionality in the
arrest, the statements were admissible in evidence."
My judgment in The People v. Shaw [1982] I.R. 1 had the
support of Henchy J., Kenny J. and Parke J. Having carefully
considered all the arguments advanced in this case I can see

no reason why I should resile from what I said in that case. It
is therefore on the basis of the opinion stated in the passage
I have quoted from Shaw's case that, in my view, the
certified question in this case should be considered.
I agree with the submission of counsel for the Director of
Public Prosecutions that, in the cases on which the
appellant's counsel relied, other than The People (Attorney
General) v. O'Brien [1965] I.R. 142 and The People v. Shaw
[1982] I.R. 1, there was in each of those cases a deliberate
and conscious decision to detain the persons in custody in
breach of their rights. In The People v. Madden [1977] I.R.
336, the Superintendent knew full well that he had no power
to detain a suspect for longer than 48 hours, and that s. 30
of the Offences Against the State Act, 1939, required that,
unless the person detained was charged before the District
Court or a Special Criminal Court within the period of 48
hours, he must be released at the expiration of that time. He
was neither charged nor released within that time
[1990]
2 I.R.
Griffin J.
138
S.C.
and any statement thereafter made or completed by him
was therefore inadmissible.
In The People v. O'Loughlin [1979] I.R. 85, the Court of
Criminal Appeal held that the detention of the accused was
not due to either inadvertence or oversight. O'Higgins C.J.
stated at p. 91:
"It was done by experienced Garda officers who must have
had a special knowledge of citizens' rights in such
circumstances. It could only have been the result of a
deliberate decision of these officers who were aware of the
applicant's rights. These rights were disregarded and swept
aside . . ."
In The People (Director of Public Prosecutions) v. Healy
[1990] 2 I.R. 73 the Superintendent in charge of the

investigation deliberately delayed, in circumstances which
amounted to denying, the detained person's right of access
to his solicitor, because the former was in the process of
being interviewed and it"would be bad manners" to interrupt
it.
In the instant case, Garda Conway, for the purpose of
obtaining a search warrant, adopted a procedure which had
been in almost universal use throughout the country for very
many years, and from my own experience I would suspect at
least thirty to forty years, i.e. by means of a standard form,
suitably adapted for the particular case. This practice was
not confined to cases in which the misuse of drugs was
involved, but is in use in respect of obtaining search
warrants for many other purposes, such as, for example, s.
42 of the Larceny Act, 1916. Even if only one such warrant
was issued each day in the greater Dublin area (a highly
unlikely circumstance) that would amount to a total in
excess of 10,000 warrants in thirty years. It is likely that
there must have been upwards of 100,000 or more such
warrants issued in the same way in that period. In recent
years, a large number of similar warrants must have been
obtained pursuant to s. 26 of the Misuse of Drugs Act, 1977,
having regard to the enormous increase in the use of drugs,
by reason of the huge profits to be made by dealers in drugs,
and to the numbers of those who are now what is known as
"hooked" on drugs. The Oireachtas, in enacting s. 26 of the
Act of 1977, has provided that warrants should be issued
only after the detached intervention of a neutral District
Justice or peace commissioner, who for that purpose is
interposed between the gardai and the person in respect of
whose dwelling the search warrant is sought. In my view the
error which invalidated this search warrant was that of the
peace commissioner.
Garda Conway, having obtained what was an ostensibly
valid warrant, went to the applicant's flat. He knocked on the
door, and shouted 'Gardai, open up'. There was a lot of
movement inside the flat but the door was not opened.
Although he did not say so in evidence, as an experienced
member of the drugs squad, he must have been aware that

by reason of their nature, the drugs he was hoping to find
could be destroyed in a matter of seconds by flushing down
the toilet, or by throwing them in the fire, or by consuming
them. He went to the window of the room in which he had
heard the movement, stood on the window-sill and again
shouted 'Gardai, open up'. There were two people in that
room and he put his ID card against the window, and, as no
effort was made to open the door, he broke the window and
gained entrance to the flat. The drugs the subject of the
[1990]
2 I.R.
Griffin J.; Hederman J.; Lynch J.
139
S.C.
charge in this case were subsequently found in the course of
a search of the premises.
In my opinion, the act of Garda Conway in breaking into the
flat in the circumstances in which he did so, did not
constitute a deliberate and conscious violation of the
constitutional rights of the appellant. Like my colleague
Lynch J., a copy of whose judgment I have had the
advantage of reading in advance, I can see no distinction
between this case and The People (Attorney General) v.
O'Brien [1965] I.R. 142. The evidence of the finding of the
drugs in the appellant's flat was, in my opinion, correctly
admitted at his trial. The decision of the Court of Criminal
Appeal in dismissing the appellant's appeal was in my view
correct, and I would accordingly dismiss this appeal.
In dismissing the appeal the Court of Criminal Appeal
exercised the jurisdiction conferred on it by the provisions of
s. 5, sub-s. 1 (a) of the Courts of Justice Act, 1928. As that
Court had ruled that the learned trial judge was correct in
admitting the evidence in dispute it was in my view
unnecessary for the Court to rely on the proviso contained in
s. 5 of the Act of 1928.
Hederman J.
I agree with the judgment of the Chief Justice.
Lynch J.
This is an appeal to the Supreme Court from the Court of
Criminal Appeal pursuant to a certificate of that Court that
its decision involves a point of law of exceptional public
importance namely:
"Whether the forcible entry of the appellant's home by
members of An Garda Sochna on foot of an invalid search
warrant constituted a deliberate and conscious violation of
the appellant's constitutional rights such as to render any
evidence obtained by the said members in the course of the
ensuing search inadmissible at the appellant's trial."
The facts
The relevant facts are as follows.
The gardai obtained a search warrant pursuant to s. 26 of
the Misuse of Drugs Act, 1977, as amended. The warrant
purported to entitle them to enter the premises known as
Flat 1, Ground Floor, 1 Belgrave Place, Rathmines. The
warrant was issued by a peace commissioner on foot of an
information sworn by a garda which merely stated the belief
or suspicion of the garda that a controlled drug namely
heroin was in the unlawful possession of a person and was
on those premises.
The peace commissioner issued the warrant purporting to
authorise the gardai to enter those premises. The warrant
was invalid because the information
[1990]
2 I.R.
Lynch J.
140
S.C.
merely stated the suspicion of the garda but did not state
any facts from which the peace commissioner himself could
be satisfied that there were reasonable grounds for such
suspicion as to which he would have to be satisfied before
issuing the warrant. Furthermore the terms of the warrant

itself made it clear that the peace commissioner made no
enquiries beyond what was contained in the information to
enable him to satisfy himself that there were reasonable
grounds for such suspicion.
In purported pursuance of the warrant the gardai forcibly
entered the said premises and thereby obtained evidence
which led to the conviction of the appellant for unlawful
possession of heroin with intent to supply other persons and
to a sentence of five years' imprisonment.
The form of information used on the application for the issue
of the warrant was a standard form in use since the
enactment of the Misuse of Drugs Act, 1977. Moreover it was
analogous to other forms of information used for many years
past when seeking warrants for example under the Offences
Against the State Act, 1939, or the Larceny Act, 1916. The
information itself did not disclose any facts which could
satisfy a District Justice or a peace commissioner as required
by the section but there is nothing to prevent the District
Justice or the peace commissioner from enquiring there and
then on oath as to such facts so as to satisfy himself and
thus enable him validly to issue a warrant. The invalidity of
the warrant was therefore really due more to the error of the
peace commissioner than to the error of the applying garda.
Submissions
Article 40, s. 5 of the Constitution provides:
"The dwelling of every citizen is inviolable and shall not be
forcibly entered save in accordance with law."
Counsel for the appellant submitted that the forcible entry
was a deliberate and conscious violation of the appellant's
rights under Article 40, s. 5. Counsel distinguished The
People (Attorney General) v. O'Brien [1965] I.R. 142 on the
basis that there there was a mere slip in the name of the
street whereas in the present case the gardai had a longstanding shortcut procedure which they deliberately and
consciously adopted and which led to the deliberate and
conscious, forcible and unconstitutional entry into the
appellant's dwelling.
Counsel for the Director of Public Prosecutions submitted
that it was not sufficient that the physical act which

constitutes the breach of the constitutional right (in this case
forcible entry) was deliberate and conscious. He submitted
that there must be some element of blame or culpability
over and above the physical act constituting the breach from
which a deliberate and conscious intention to commit a
breach of the citizen's constitutional rights might either be
apparent or inferred before the evidence thereby obtained
might be rejected and he referred to The People v. Madden
[1977] I.R. 336, The People v. O'Loughlin [1979] I.R. 85,
[1990]
2 I.R.
Lynch J.
141
S.C.
The People v. Walsh [1980] I.R. 294, The People v. Farrell
[1978] I.R. 13 and The People (Director of Public
Prosecutions) v. Healy [1990] 2 I.R. 73 and submitted that in
all those cases where the evidence obtained in breach of a
citizen's constitutional rights was rejected such an element
of blame or culpability or unfairness was present.
Conclusions
The courts must be zealous to vindicate and uphold the
citizens' constitutional rights. Any hint of a deliberate
disregard by the gardai for such constitutional rights must
result in evidence obtained thereby being rejected unless
there are adequate excusing circumstances. I prefer the term
"adequate" to "extraordinary"in view of decisions which
suggest that inadvertence may be a sufficient excuse.
In the present case the forcible entry of the appellant's
dwelling was of course deliberate but the violation of the
appellant's constitutional rights in relation to his dwelling
under Article 40, s. 5 was neither conscious nor deliberate.
On the contrary the gardai showed respect for the
constitutional inviolability of the appellant's dwelling by
applying for the issue of the warrant to the appropriate civil
(as distinct from garda) authority on an information believed
for many years to be the correct form of information to lead

to the issue of such warrants under the Misuse of Drugs Act,
1977. The gardai further showed respect for the appellant's
constitutional rights in relation to his dwelling by bringing
the warrant with them and showing it to the appellant and I
can see nothing in the conduct of the gardai to support an
inference of a conscious and deliberate intention to violate
the appellant's constitutional rights in relation to his
dwelling.
Insofar as there was any fault leading to the invalidity of the
warrant that fault must rest rather with the peace
commissioner who is interposed between the garda
authorities and the citizen to see that the citizen's dwelling is
not entered without due cause and on whom s. 26 of the Act
of 1977 imposes the duty of satisfying himself by proper
evidence that there is due cause for such entry on the
citizen's dwelling. The peace commissioner is independent of
the gardai and if not satisfied by proper evidence he must
refuse the warrant unless and until he becomes so satisfied
by additional evidence.
Of course the gardai contributed to the error by adopting a
form of information which was in fact inadequate but which
had for many years been accepted by both District Justices
and peace commissioners as adequate. To suggest that the
gardai deliberately withheld evidence of facts in their
possession from the peace commissioner is to suggest that
they deliberately imperilled the strength of their own case
against the appellant without any reason whatever
especially as the evidence in the trial demonstrates that if
the peace commissioner had asked for evidence of facts
there would have been no difficulty in furnishing him with
such evidence so as to lead to the valid issue of the warrant
which was in fact invalidly issued.
[1990]
2 I.R.
Lynch J.
142
S.C.
The adoption of such an inadequate form of information by
the gardai is a far cry from a deliberate intention to violate
the appellant's constitutional rights in relation to his dwelling
and neither did it lead to any form of unfairness in the
investigation or the trial.
The inviolability of the citizen's dwelling must be upheld but
this does not mean that evidence obtained in breach of it
must always be rejected however relevant it may be to the
case at hearing. It must be rejected if there is any element of
blame or culpability or unfairness (including any such
element to be inferred by the reasonable application of the
doctrine "ignorantia juris haud excusat") in relation to the
breach of the right on the part of those who obtained the
evidence unless there are adequate excusing circumstances.
In all cases heretofore, where evidence has been rejected,
including the recent case of The People (Director of Public
Prosecutions) v. Healy [1990] 2 I.R. 73 there was manifest a
deliberate disregard of the accused's rights. Not only did the
gardai deliberately do the acts complained of, but they did
them knowing that they contravened the accused's legal, if
not his constitutional, rights. I take the view that if the gardai
deliberately do acts which they know or ought to know
contravene the accused's legal rights, but not his
constitutional rights, and if the rights are thereafter held to
be constitutional rights, the exclusionary rule should apply,
but there must be some such element of blame or culpability
or unfairness to bring the exclusionary rule into operation. If
there is no such element of blame or culpability or unfairness
in relation to the breach of the constitutional right on the
part of those who obtained the evidence then the evidence
should be admitted and no question of excusing
circumstances arises.
In my opinion The People (Attorney General) v. O'Brien
[1965] I.R. 142 is on all fours with this case and I follow it. I
also follow the majority judgment in The People v. Shaw
[1982] I.R. 1 which emphasises the importance of fairness or
unfairness in the admissibility or inadmissibility of the
evidence.
I would dismiss this appeal and in doing so I would add that
it is unnecessary to rely on the provisions of s. 5, sub-s. 1 (a)
of the Courts of Justice Act, 1928, as did the Court of
Criminal Appeal because no evidence was admitted which
ought not to have been admitted.
Solicitors for the appellant: Padraic Ferry & Co.
Solicitor for the respondent: Chief State Solicitor.
Eithne Casey, B.L.
[1990] 2 I.R. 110
The State (at the Prosecution of Robert Trimbole otherwise
known as Michael Hanbury) v. The Governor of Mountjoy
Prison
[1984 No. 659 SS]
High Court
5th February 1985
Supreme Court
26th March 1985
Constitution - Personal rights - Liberty - Deliberate violation Invasion by persons on behalf ofthe Executive - Planned
results of such invasion - Inherent jurisdiction - Abuse of
process -Scheme of courts within Constitution.Practice and
procedure - Appeal to Supreme Court - Stay on order of High
Court - Power ofappellate court - Constitution - Liberty - High
Court order releasing from detention -Exercise of appellate
powers in conflict with Constitution.Criminal law - Arrest Suspicion - Arrest without proper suspicion - Detention Illegal arrestand detention - Legality of subsequent
extradition proceedings - Extradition Act, 1965 (PartII) (No.
19) Order, 1984, (S.I. No. 271) - Extradition Act, 1965 (No.
17) - Constitution ofIreland, 1937, Article 40.
At 2.00 p.m. on October 25th, 1984, the prosecutor was
arrested in purported pursuance of s. 30 of the Offences
Against the State Act, 1939. Early next afternoon the
detention period was extended by another twenty-four
hours. At about the same time (1.15 p.m.) the Government

made an order applying Part II of the Extradition Act, 1965,
in relation to the Commonwealth of Australia as and from
that date. That same afternoon the prosecutor applied to the
High Court to have the legality of his detention ascertained,
which hearing was fixed for 7.00 p.m. that evening. At 6.00
p.m. a provisional warrant pursuant to s. 27 of the
Extradition
[1985]
1 I.R.
The State (Trimbole) v. The Governor of Mountjoy Prison
551
H.C.
Act, 1965, was issued by District Justice Ballagh. At the High
Court hearing Egan J. found that no genuine suspicion that
the prosecutor had committed a firearms offence could have
been formed by the arresting Garda; that the arrest and
detention were illegal and accordingly ordered the
prosecutor's release. A short while later, at approximately
10.00 p.m. outside the immediate precincts of the Four
Courts the prosecutor was arrested on foot of the provisional
warrant just issued by District Justice Ballagh. He was then
brought to the District Court and remanded in custody.
On November 2nd, 1984, a habeas corpus application
challenging the remand orders was refused by Egan J.
On November 8th the Minister for Justice addressed an order
to District Justice Kotsonouris pursuant to s. 26 of the
Extradition Act, 1965, signifying that he had received from
the Commonwealth of Australia a request for the extradition
of the prosecutor. Application was then made on November
17th to District Justice Kotsonouris for orders committing the
prosecutor to prison, there to await the order for his
extradition or until the High Court or Supreme Court should
order his release.
On November 4th the prosecutor applied to the High Court
pursuant to Article 40 of the Constitution for an inquiry as to
the legality of his detention, at the end of which hearing it
was
Held by Egan J., that the object of the arrest, pursuant to s.
30 of the Offences Against the State Act, 1939, of the
prosecutor was to ensure that he would be available for the
provisional warrant arrest; that such arrest amounted to a
deliberate and conscious violation of constitutional rights;
that there were no extraordinary excusing circumstances;
that his detention in subsequent proceedings was tainted by
the illegality of his original arrest and accordingly the
prosecutor was to be immediately released.
The respondent then applied to the Supreme Court for a
stay on the order of the High Court pending appeal.
Held by the Supreme Court (Finlay C.J., Walsh, Henchy,
Hederman and McCarthy JJ.) that whatever powers the court
may have to make its ordinary appellate jurisdiction
effective, such powers would not be exercised in a manner
inconsistent with the Constitution.
On appeal by the respondent from the order of the High
Court it was
Held by the Supreme Court (Finlay C.J., Henchy, Griffin,
Hederman and McCarthy JJ.) in dismissing the appeal and
affirming the judgment of Egan J., 1, the courts have not only
an inherent jurisdiction but a positive duty (a) to protect
persons against the invasion of their constitutional rights; (b)
if invasion has occurred, to restore as far as possible the
person so damaged to the position in which he would have
been if his rights had not been invaded; and (c) to ensure as
far as possible that persons acting on behalf of the executive
who consciously and deliberately violate the constitutional
rights of citizens do not for themselves or their superiors
obtain the planned results of that invasion.
Principles in The State (Quinn) v. Ryan [1965] I.R. 70 ; The
People (Attorney General) v.O'Brien [1965] I.R. 142 and
The People v. Lynch [1982] I.R. 64 affirmed.
2. The well recognised jurisdiction of the courts at common
law to prevent an abuse of their own process is amplified
and reinforced by the position of the courts within the
framework of the Constitution and a direct duty arises to
prevent such abuse of their process.
R. v. Bow Street Magistrates, ex p. Mackeson (1981) 75 Cr.

App. R. 24 considered.
In re Nielsen [1984] A.C. 606; [1984] 2 W.L.R. 737; [1984] 2
All E.R. 81.
The State (Furlong) v. Kelly [1971] I.R. 132.
Wyatt v. McLoughlin [1974] I.R. 378.
Wilson v. Sheehan [1979] I.R. 423.
R. v. Brailsford [1905] 2 K.B. 730.
The State (McFadden) v. Governor of Mountjoy Prison [1984]
I.L.R.M. 113.
[1985]
1 I.R.
552
H.C.
The People (A.G.) v. O'Brien [1965] I.R. 142.
The People v. Madden [1977] I.R. 336; (1976) 111 I.L.T.R.
117.
The People v. Lynch [1982] I.R. 64; [1981] I.L.R.M. 389.
D.P.P. v. Joyce [1985] I.L.R.M. 206.
105.
Application of Woods [1970] I.R. 154.
The State (Browne) v. Feran [1967] I.R. 147.
In re Singer (No. 2) (1964) 98 I.L.T.R. 112.
Egan v. Macready [1921] 1 I.R. 265; (1921) 55 I.L.T.R. 197.
The State (McDonagh) v. Frawley [1978] I.R. 131.
Application of Zwann [1981] I.R. 395; [1981] I.L.R.M. 379.
The State (Rogers) v. Galvin [1983] I.R. 249; [1983] I.L.R.M.
149.
In re Laighlis [1960] I.R. 93; (1957) 95 I.L.T.R. 92.
The People v. Kehoe [1985] I.R. 444.
R. v. Bow Street Magistrates, ex parte Mackeson (1981) 75
Cr. App. R. 24.
The People v. McCann, Pringle and O'Shea (1984) 2 Frewen

57.
R. v. Hartley [1978] 2 N.Z.L.R. 199.
Terry v. Ohio (1968) 392 U.S. 1.
Re Brian Francis (1963) 97 I.L.T.R. 160.
Robert Trimbole v. Commonwealth of Australia (1984) 155
C.L.R. 186.
Stone v. State of California (1964) 376 U.S. 483.
The People v. O'Loughlin [1979] I.R. 85; (1978) 113 I.L.T.R.
109.
The People v. Walsh [1980] I.R. 294.
The People v. Farrell [1978] I.R. 13.
The People v. Shaw [1982] I.R. 1.
Habeas Corpus Proceedings.
The facts are as appear in the judgments of Egan J. and
Finlay C.J.
Article 40, s. 4 of the Constitution of Ireland, 1937,
provides:
"1 No citizen shall be deprived of his personal liberty save in
accordance with law.
2 Upon complaint being made by or on behalf of any person
to the High Court or any judge thereof alleging that such
person is being unlawfully detained, the High Court and any
and every judge thereof to whom such complaint is made
shall forthwith enquire into the said complaint and may order
the person in whose custody such person is detained to
produce the body of such person before the High Court on a
named day and to certify in writing the grounds of his
detention, and the High
[1985]
1 I.R.
Egan J.
553
H.C.
Court shall, upon the body of such person being produced
before that Court and after giving the person in whose
custody he is detained an opportunity of justifying the

detention, order the release of such person from such
detention unless satisfied that he is being detained in
accordance with the law.
3 Where the body of a person alleged to be unlawfully
detained is produced before the High Court in pursuance of
an order in that behalf made under this section and that
Court is satisfied that such person is being detained in
accordance with a law but that such law is invalid having
regard to the provisions of this Constitution, the High Court
shall refer the question of the validity of such law to the
Supreme Court by way of case stated and may, at the time
of such reference or at any time thereafter, allow the said
person to be at liberty on such bail and subject to such
conditions as the High Court shall fix until the Supreme Court
has determined the question so referred to it.
4 The High Court before which the body of a person alleged
to be unlawfully detained is to be produced in pursuance of
an order in that behalf made under this section shall, if the
President of the High Court or, if he is not available, the
senior judge of that Court who is available so directs in
respect of any particular case, consist of three judges and
shall, in every other case, consist of one judge only."
The matter was heard by Egan J. on the 4th November and
8th December, 1984.
S. MacBride S.C. , P. MacEntee S.C. and Clive Nicholls Q.C.
of the Bar of England and Wales (with them J.G. Danaher )
for the prosecutor.
T.K. Liston S.C. , E.F. Comyn S.C. (with them Susan Denham )
for the respondent.
Cur. adv. vult.
Egan J.
5th February 1985
I consider the following sequence of events to be
relevant:
1. Some short time after 2 p.m. on the 25th October, 1984,
the prosecutor was arrested by Detetive Inspector Cormac
Gordon in purported
[1985]
1 I.R.
Egan J.
554
H.C.
pursuance of s. 30 of the Offences Against the State Act,
1939. In the early afternoon of the 26th October, 1984, he
was informed by Inspector Gordon that a Garda officer not
below the rank of Chief Superintendent had ordered his
further detention for an additional period of twenty-four
hours in purported exercise of powers under the said section.
2. At approximately 3 p.m. on the 26th October, 1984, an
application was made to me on behalf of the prosecutor in
the name of Michael Hanbury (under which name he had at
all relevant previous times been referred to) and I directed
that an enquiry should be held at 7 p.m. that same evening
as to the legality of his detention. This enquiry was duly held
and it concluded at approximately 10 p.m. During the course
of the enquiry evidence was given by Inspector Gordon that,
based on information which he had received from Inspector
McGroarty (who also gave evidence), he had formed a
suspicion prior to the arrest that the prosecutor had been in
possession of a firearm and ammunition at the Gresham
Hotel between 4-6 p.m. on the 24th October, 1984. I was
satisfied after hearing the evidence that no genuine
suspicion could have been formed by the Garda in relation
to possession by the prosecutor of any firearm or
ammunition and I found as a fact that the evidence as to the
genuineness of the suspicion was most unconvincing. I
accordingly found that the detention of the prosecutor was
illegal and I made an order for his release.
3. A short while later outside the immediate precincts of the
Four Courts, the prosecutor was arrested on foot of a
provisional warrant issued pursuant to the provisions of s. 27

of the Extradition Act, 1965, which described the prosecutor
as "Robert Trimbole alias Robert Trimboli and Michael Pius
Hanbury." This arrest took place shortly after 10 p.m. on the
26th October, 1984. The provisional warrant bore the same
date and had been issued by District Justice Ballagh at
approximately 6 p.m. on that date.
4. Whilst not in strict sequence, two further events took
place which were argued to be of significance in the present
matter:
(a) The Government on the 26th October, 1984, made an
order that Part II of the Extradition Act, 1965, would apply in
relation to the Commonwealth of Australia as and from the
said date. The court was informed that this order was signed
at 1.15 p.m. on the 26th October, 1984, and the time given
was not disputed. The validity of the order was challenged in
this matter and will be dealt with later. The order is entitled
"Extradition Act, 1965 (Part II) (No. 19) Order, 1984" and was
published in Iris Oifigiil on the 30th October, 1984.
(b) On the same date as the date of the making of the
Government order hereinbefore referred to i.e., on the 26th
October, 1984, the Governor General of Australia made
regulations entitled"Extradition (Republic of Ireland)
Regulations" which provided that
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"The Act applies to the Republic of Ireland subject to the
limitations, conditions, exceptions and qualifications
specified in regulation 4." The Act referred to is the
Extradition (Foreign States) Act, 1966.
5. Following on his arrest on foot of the provisional warrant
on the 26th October, 1984, the prosecutor was brought to
the District Court and was remanded in custody. Further
orders of remands in custody were made from time to time

in the District Court.
6. On the 2nd November, 1984, an application was made to
me on behalf of the prosecutor for an order of habeas corpus
ad subjiciendum on specific grounds, namely that the
remand orders were deficient in that they only amounted to
recitals and did not constitute actual orders. They were
compared to a deed without a habendum. I did not accept
the argument as being valid and refused to make an order
for the release of the applicant.
7. On the 8th November, 1984, the Minister for Justice after
reciting therein the Government order of the 26th October,
1984, and that a request had been received by him on the
said 8th November, 1984, from Australia, communicated by
its Ambassador, for the extradition of Robert Trimbole, made
an order in the following terms:
"Now I, Michael Noonan, Minister for Justice, by this Order
hereby signify to you, Mary Kotsonouris, a Justice of the
District Court, that the aforesaid request has been duly
made by the Commonwealth of Australia and received by me
in accordance with Part II of the Extradition Act 1965."
This order of "signification" was made under s. 26 of the Act
and was a vital step in procuring the ultimate surrender to
Australia of the prosecutor. He could not have been detained
on foot of the provisional warrant for a period longer than
eighteen days. The validity of this order is challenged.
8. Application was made on the 17th November, 1984, to
District Justice Mary Kotsonouris in the Dublin Metropolitan
District Court for orders committing the prosecutor to prison
there to wait the order of the Minister for his extradition. A
hearing took place but was adjourned to the 21st November,
1984, when it was resumed before the same District Justice,
this time sitting at Dundrum courthouse. On that date the
learned District Justice made orders committing the
prosecutor to be detained in Mountjoy Prison until the
Minister should otherwise order in accordance with Part II of
the Act of 1965 or until the High Court or Supreme Court
should order his release. These committal orders refer to
sixteen Australian warrants. Eighteen warrants in all were
before her but it appears to have been conceded by the

State that two of them did not disclose offences which, if
they had been committed in Ireland, would have constituted
crimes which would attract a maximum sentence of not less
than twelve months. The committal orders made are
exhibited by photostat copies thereof annexed to
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the certificate of the Governor of Mountjoy Prison dated the
18th December, 1984. They are numbered "A1" to "A15"
(inclusive) and "A18".("A1" is out of sequence and appears
at the end).
I shall attempt to deal with the arguments made in the case
under separate headings even though this may occasionally
result in an over-lap.
A. The order of the Government dated 26th October, 1984
It was suggested in the opening arguments that the
Government in being "satisfied" of the matters mentioned in
the order was exercising powers of a judicial nature which it
would not be entitled to do under the Constitution. This
argument was not pursued and, in my opinion, rightfully so.
The order was made under s. 8 of the Act of 1965 which
provides in sub-s. 1 that:
"Where by any international agreement or convention to
which the State is a party an arrangement (in this Act
referred to as an extradition agreement) is made with
another country for the surrender by each country to the
other of persons wanted for prosecution or punishment or
where the Government are satisfied that reciprocal facilities
to that effect will be afforded by another country, the
Government may by Order apply this Part in relation to that
country."
It is to be noted that the order does not refer to any
international agreement or convention and the expressed
specific ground is stated to be the Government's satisfaction

that reciprocal facilities would be afforded by the
Commonwealth of Australia. It was argued that the order
was ultra vires in that true reciprocity as required by the
section would not result.
Various dictionary meanings of the word "reciprocal" were
mentioned but, in my view, they did not supply an answer to
the problem. The main argument as to the absence of
reciprocity lies in the fact that Part II of the Act when thus
applied does not contain any requirement in this country
ofprima facie evidence such as would justify the trial of the
person sought to be extradited. The position under the
relevant Australian statute differs in this regard. Under s. 17,
sub-s. 6 (b) of the Extradition (Foreign States) Act, 1966,
there must inter alia be produced to the Magistrate "such
evidence as would, in the opinion of the Magistrate, justify
the trial of the person if the act or omission constituting that
crime had taken place in, or within the jurisdiction of, that
State or Territory."
It is argued that "reciprocal" must mean "identical" in scope
and substance but the Act does not say so. An evidence
requirement might well be considered desirable in all
extradition applications but this does not solve
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the problem. The respondent argues, in effect, that
"reciprocity" in its context means no more than "mutuality"
and that there is no requirement that procedures or
provisions should be completely identical.
I was asked to look at a telex report of a judgment of the
High Court in Australia in a case where the prosecutor Robert
Trimbole, sought an injunction to restrain the Australian
authorities from proceeding further with the request for his
extradition on many grounds which are not relevant to the
issues in this case. His application was dismissed. The

"requirement of evidence" distinction was raised but it was
pointed out that s. 10, sub-s. 4 of the Australian Act of 1966
did not require that the Governor General should be satisfied
that the law of the foreign State provides a reciprocity which
corresponds in every detail with the Australian law. It
recognised that the law of the foreign State might impose
limitations, conditions, exceptions or qualifications which are
not necessarily the same as those of Australian law.
It is now incumbent on me to decide the matter and I have
come to the conclusion that reciprocity does not require
identity. The constitutional validity of this order will be dealt
with under another heading.
B. The order of the Minister dated 8th November, 1984
This order was made under s. 26 of the Extradition Act,
1965, which provides in sub-s. 1 that:
"If the Minister receives a request made in accordance with
this Part for the extradition of any person he shall, subject to
the provisions of this section, by Order signify to a Justice of
the District Court that the request has been made and the
Justice shall issue a warrant for the arrest of that person."
It is perfectly clear that the Minister would not be entitled to
make such an order without having received a request for
extradition supported by the documents set forth in s. 25 of
the Act. The requirements of s. 25 will be dealt with later in
the course of this judgment. Hence the over-lap to which I
have referred earlier.
It has been argued that this order is a bland signification
which does not describe any offences and does not define
the scope or limits of any inquiry to be conducted by the
District Justice. It is correctly stated that there is no express
provision for the transmission to the District Justice of the
documents required by s. 25 to support a request for
extradition. But these arguments do not bring about a
fatality to the order. The offences must be described in the s.
25 documents and no final surrender could lawfully be
achieved unless the District Justice applied his or her mind
as to the adequacy of the s. 25 documents when dealing
with an application for committal under s. 29 of the Act. It is,
in any event, common case that the

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relevant documents (whether adequate or not) were in fact,
transmitted to District Justice Mary Kotsonouris and were
scrutinised by her.
It was also argued that the Minister was the person who
would have to be satisfied that the documents transmitted to
him with the request for extradition complied with the
requirements of s. 25 of the Act and also involved him in the
necessity of forming a judgment that the offences referred to
in the documents were "extraditable offences" within the
meaning of s. 10 of the Act. If this were the position it could
be said that he would be exercising judicial powers which are
not properly the function of the executive power of the State.
It is perfectly true that the section authorises and entitles
the Minister to look at the documents by virtue of s. 26, subs. 3 and form an opinion. He is also entitled under s. 26, subs. 4 to form an opinion that the case is one in which
extradition is prohibited. An analogy could perhaps be drawn
regarding the position of the Director of Public Prosecutions
with regard to crimes in general. He can and should consider
all information before him in arriving at a decision whether or
not to institute a prosecution.
The Act does not require the Minister to be "satisfied" and
this is in stark contrast to the specific requirement in s. 29 of
the Act that the District Justice must be satisfied of the
matters therein referred to before a committal order can be
made.
The arguments advanced on behalf of the prosecutor under
this heading are accordingly rejected by this court.
C. Dual Criminality
It might be thought that arguments challenging the validity
of certain provisions in Part II of the Act having regard to the
Constitution should be dealt with in priority to the matters

with which I now propose to deal. My reason for the
sequence adopted is that some of the matters to be dealt
with now are relevant to some of the arguments under the
Constitution.
Section 10, sub-s. 1 of the Extradition Act, 1965, provides as
follows:
"Subject to subsection (2), extradition shall be granted only
in respect of an offence which is punishable under the laws
of the requesting country and of the State by imprisonment
for a maximum period of at least one year or by a more
severe penalty and for which, if there has been a conviction
and a sentence in the requesting country, imprisonment for
a period of at least four months or a more severe penalty
has been imposed."
Sub-section 2 of the section might have authorised the
District Justice to make committal orders in respect of the
two warrants which she excluded but I do not consider it
necessary to deal with this matter. Section 10, sub-s. 3
provides that "In this section references to an offence
punishable under
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the laws of the State shall be construed as including
references to an act which, if it had been committed in the
State, would constitute such an offence."
It should be pointed out that the scheme of extradition
under Part II of the Act differs from the scheme under Part III
which applies to contiguous jurisdictions. Under Part III a
warrant issued by a judicial authority in the requesting
jurisdiction is endorsed by the Commissioner (or Deputy
Assistant Commissioner) of the Garda Sochna for
execution by any member of the Garda Sochna in any
part of the State. No actual proof of foreign law is required.
Under Part II, however, foreign law must be proved and in

the present case it was sought to be proved by the affidavit
of Peter John Welch, a Senior Legal Officer in Australia with
high qualifications. It was argued that Mr. Welch's affidavit
should not have been received in evidence in the District
Court as the State had failed to make him available for crossexamination. It was conceded, however, that the request on
behalf of the prosecutor that Mr. Welch should be available
for cross-examination was made at a time so close to the
hearing as to make it quite impracticable to procure his
attendance. His superior, Mr. Wolfring, was actually present
at the hearing and was cross-examined. I am satisfied that
there was no serious insistence on the request for the
availability of Mr. Welch and that there was no denial of legal
or natural justice in this regard.
Part II also differs from Part III in that there are different
punishment requirements in relation to the test of
extraditability but these differences need not be dealt with
here. There are also other differences not relevant to the
issues in this case but attention must be drawn to the
provision in Part III that the District Court shall not make a
delivery order under s. 47 of the Act if it appears to the court
that the offence specified in the warrant does not
"correspond" with any offence under the law of the State.
This is in contrast to s. 10 which provides that extradition
shall be granted only in respect of an offence which "is"
punishable under the laws of the requesting country and the
State. My own view is that the distinction is of little, if any,
significance.
The court was addressed at some length on the degree of
control vested in the Minister under Part II of the Act and
there is no doubt but that his powers are considerable. It is
his order under s. 26 which launches the proceedings before
the District Justice or he may simply decide to make no
order. He may cancel provisional warrants. Even when
committal orders are made by the District Justice under s. 29
there is no absolute duty on the Minister to direct that the
committed person be surrendered to the requesting country.
Other examples of his powers were illustrated. It must again
be emphasised, however, that the District Justice is not the

"rubber stamp" of the Minister. No ultimate surrender is ever
possible under Part II without there being a hearing under s.
29 as a result of which the District Justice is"satisfied" of the
matters referred to in the section.
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It was argued that the order of the Minister under s. 26 and
the order of the District Justice under s. 29 should specify the
precise offences of which the "wanted" person would have
been guilty if the foreign offence alleged to have been
committed by him had been committed in this country. The
authority cited in support of this proposition was a decision
of the House of Lords in In re Nielsen [1984] A.C. 606. The
relevant passage from the judgment of Lord Diplock is at p.
87 where he states:
"Under the principal treaty, the documents accompanying
the requisition for the surrender of a fugitive criminal in an
accusation case will state the 'acts' on account of which the
fugitive is demanded by the Danish Government. It is for the
Secretary of State to make up his mind what crimes those
acts would have amounted to according to the English law in
force at the time they were committed if they had been
committed in England. In the instant case, this meant
identifying the offences which those acts would have
amounted to under the relevant criminal statute in force in
England at the relevant date (viz. in the instant case the
Theft Act 1968) had they been done by Nielsen in England.
This was what the Secretary of State did in the Orders to
proceed, to which I have previously referred."
This was a decision under the Extradition Act, 1870, and
Lord Diplock was obviously influenced to some extent by the
forms authorised by the Act. At an earlier part of p. 87 he
states:
"Important too are the forms set out in Schedule 2 to the
1870 Act the use of which, or of forms as near thereto as
circumstances admit, is authorised by section 20 of the Act.
The form of Order to proceed issued by the Secretary of
State to the police magistrate pursuant to section 7 contains
a space in which the Secretary of State specifies the crime
(which, ex hypothesi, for the list so requires, must be
described in terms of a crime according to the laws of
England) as being the crime for which the magistrate is
required to issue his warrant for the apprehension of the
fugitive criminal under section 8." He proceeds to refer to
other relevant forms.
The Act of 1965 does not contain any schedule of
extraditable crimes nor does it contain any schedule of
forms. There are no specific provisions requiring that the
order of the Minister under s. 26 or the order of District
Justice under s. 29 should specify the precise offences of
which the person named would have been guilty if the
alleged acts had been committed in Ireland. It might perhaps
be desirable that there should be such provisions but I
cannot read them into the Act when they are not there.
I take the view, therefore, that it is sufficient if the alleged
acts, in fact, would constitute offences under the laws of
Ireland within the ambit of s. 10
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if they had been committed here. The parties seemed to
accept that the Statements of Offence as required by s. 25
(b) of the Act should describe the conduct of the fugitive
complained of in the requesting State. It is not sufficient that
the Statements of Offence should recite the offence as
defined by the law of the requesting State where the words
are used or capable of being used in a legal connotation in
that State. The court may not supplement or interpret words

used to define a crime in the foreign law by reference to the
legal provisions in that State. Foreign law cannot be proved
by putting the law or part of the law of that State before the
court without the statement of an expert witness to evaluate
or interpret it. I accept the argument that the Statements of
Offence should tell us what the fugitive did in ordinary
language so that one could say "If he did that here, it would
be punishable under the laws of this State."
I now come to deal with the Statements of Offence relied
upon in this case. They are contained in exhibit "C" of the
affidavit of Peter John Welch. His competence to speak on
matters of Australian law is not questioned and I am fully
satisfied that the relevant criminality of each alleged offence
had been proved. In this context I mean criminality under
the laws of Australia. In order, however, to establish the
relevant criminality under the laws of Ireland the Particulars
of Offence therein contained must be examined. It is
unfortunate that the pagination and enumeration of the
offences does not correspond with the warrants but I find no
difference of the slightest significance between the wording
in the Particulars of Offence and the wording of the warrants.
Furthermore, the orders of the District Justice refer to the
warrants and are marked with the same letters and
numbers. For convenience, therefore, I will refer to the
warrants when dealing with this aspect of the case.
I am satisfied that the decisions under Part III of the Act of
1965 are relevant to the task in hand. The State (Furlong) v.
Kelly [1971] I.R. 132 is a case where the English warrant
specified that the prosecutor did "steal" a machine contrary
to s. 9 of the Theft Act, 1968, (a statute which did not apply
in Ireland). Dlaigh C.J. embarked on an analysis of the
text of the English law and came to the conclusion that
"stealing" within the meaning of the Theft Act, 1968, would
not necessarily correspond with larceny in Ireland. Walsh J.
did not enter into any examination of the Theft Act in
England (and subsequent decisions of the Supreme Court
confirm that he was correct in not doing so). He found,
however, that the material set out in the warrant was
insufficient notwithstanding the presence of the word"steal".

He stated at p. 144 that "the word cannot be divorced from
the reference to section 9 of the English Act of 1968. If it
were sought to show that this corresponded, for example, to
simple larceny under our law, then either the Statement of
Offence in the warrant or the accompanying appropriate
evidence should inform the District Justice that the
prosecutor
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is accused of taking an object without the consent of the
owner fraudulently and without a claim of right made in good
faith and carrying away the object in question with the
intention of permanently depriving the owner of that object."
The majority of the Court held that the correspondence had
not been established.
Probably as a result of the words of Walsh J. there came into
vogue what became known as the "dressed-up warrant". The
words used in the warrant in Wyatt v. McLoughlin [1974]
I.R. 378 were clearly drafted to follow verbatim what the
learned judge had said in Furlong's Case [1971] I.R. 132
that it should contain. At p. 398 of Wyatt's Case Walsh J.
stated as follows:
". . . it is necessary that either the warrant or some other
document accompanying it should set out sufficient
information as to these acts to enable the courts of the State
to identify the corresponding offence, if any, in our law. It
cannot be sufficient simply to use the name by which the
crime is known, or alleged to be known, in the requesting
country even though that same name may be used in this
country as the name of a crime, because the acts
complained of, although having identical names, may
constitute quite different criminal offences in different
countries or, indeed, no offence at all in one of them. For
example, what constitutes embezzlement in one country

may be larceny in another, and acts which would constitute
the offence of abortion or unlawful homosexual behaviour in
one country may not constitute any offence in the other."
In Wilson v. Sheehan [1979] I.R. 423 the Supreme Court
held (in reference to Part III of the Act) that the requirement
for extradition is satisfied when correspondence is shown
between the specified offence andany offence which either is
an indictable offence or is punishable on summary conviction
with a maximum term of at least six months' imprisonment.
At p. 429 Henchy J. stated as follows:
"When it comes to the words in the warrant by which the
factual content of the specified offence is identified, the
correct rule is that those words should prima facie be given
their ordinary or popular meaning unless they are used in a
context which suggests that they have a special
signification."
The particular warrant alleged that the plaintiff "on the 14th
day of February, 1974, did rob Michael Barker of 281 in
cash and immediately before doing so used force, to wit,
personal violence, on the said Michael Barker." In a separate
entry in a separate part of the warrant, the offence was said
to be contrary to s. 8 of the Theft Act, 1968. The Court
considered that the words "rob" and "force" and "personal
violence" had ordinary or colloquial meanings.
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I consider Wilson v. Sheehan [1979] I.R. 432 to be sufficient
authority to have entitled the District Justice to be satisfied
that the particulars in warrants "A9" to "A15" (inclusive) and
"A18" were adequate. They allege that he "did murder" the
persons named or that he "did conspire to murder" the
persons named.
I consider the particulars in warrant "A1" to be hopelessly

inadequate. The conduct alleged is that "Robert Trimbole did
conspire with Morris John Caplan and divers other persons to
commit offences against a law of the Commonwealth namely
offences of forgery contrary to Section 67 of the Crimes Act
1914." Apart from other possible objections with which I
need not deal, the particulars do not tell us in ordinary
language (or indeed in any language) what he is supposed to
have done. So far from being a "dressed-up warrant" this one
is practically naked.
Warrant "A2" appears to me to be perfectly adequate and
not vitiated by the inclusion of the words "prohibited imports
to which Section 233B of the Customs Act 1901 applied." It is
a charge of conspiring to import into Australia narcotic goods
consisting of heroin. It has been conceded that the court in
this context is entitled to consider the criminality of
conspiring to import narcotics consisting of heroin into
Ireland. The importation of heroin is clearly an offence (s. 21,
sub-s. 2 of the Misuse of Drugs Act, 1977, and Misuse of
Drugs Regulations 1979, S.I. No. 32 of 1979 (article 4, para.
1 (c) and schedule 2). The fact that the charge is one of
conspiracy does not affect its relevant criminality.
Warrant "A6" is similarly (if not identically) adequate (article
4, para. 1 (b) of the 1979 Regulations). Warrants "A4" and
"A5" are more difficult to assess. The conduct alleged in each
is that Robert Trimbole was "knowingly concerned" in the
importation into Australia of narcotic goods consisting of a
quantity of heroin. Under s. 21, sub-s. 1 of the Misuse of
Drugs Act, 1977, a person who "aids, abets, counsels or
procures" the commission of an offence under the Act is
guilty of an offence. The text of the foreign law (see exhibit
"C" p. 18) is that any person who "aids, abets, counsels or
procures, or is in any way knowingly concerned in the
importation etc." shall be guilty of an offence. This means
that the words "knowingly concerned" provide an alternative
criminality in Australia not specifically specified in the Irish
Act. This leads me to the conclusion that people speaking
the same language as we speak in Ireland take the view that
the words "knowingly concerned"would not be understood to
be included in the meaning of aiding, abetting, counselling

or procuring. I agree with their view and as the only words
used in the particulars of offence are "knowingly concerned"
I must hold that warrants "A4" and "A5" are inadequate.
The remaining warrants are "A7" and "A8", which allege that
Robert Trimbole did conspire with others "to procure by the
making of false and misleading representations the issue of
certain Australian Passports." I am
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satisfied that this means a conspiracy to produce a public
mischief: R. v.Brailsford [1905] 2 K.B. 730; even though it
was argued that it is not an offence in Irish law to procure by
false representations the issue of an"Australian Passport". In
my view, it is an offence and the particulars are adequate.
In the end result, I hold that the learned District Justice was
correct in being satisfied that adequate particulars were
disclosed by warrants "A2","A6", "A7", "A8", "A9", "A10",
"A11", "A12", "A13", "A14", "A15"and "A18".
D. Constitutional challenge to the validity of Part II of the Act
I mean no disrespect to counsel who addressed the court on
this aspect of the case when I say that most of the
arguments consisted of criticisms of the Act and did not
disclose basic reasons for a finding of repugnancy. Most of
the arguments were unsupported by authority. I was strongly
tempted by Mr. Liston's suggestion that the arguments did
not require any answer and, this being a 1965 statute, the
presumption of constitutionality was sufficient answer to the
arguments advanced. I take the view, however, that I should
deal specifically with some of the arguments which were
more fully developed.
I have already held that the Government order dated 26th
October, 1984, was intra vires but its validity is also
challenged having regard to Article 29, s. 5, sub-s. 2 of the
Constitution which provides that "the State shall not be

bound by any international agreement involving a charge on
public funds unless the terms of the agreement have been
approved by Dil ireann ." I am not satisfied that there
was an "international agreement".Section 8, sub-s. 1 of the
Act provides that the Government may by order apply Part II
in relation to another country. The application may be
effected in either of two ways: (i) where an "international
agreement or convention"has been made or (ii) where the
Government are satisfied that "reciprocal facilities" will be
afforded by the other country. The order is clearly expressed
to have been made as a result of the Government's
satisfaction that "reciprocal facilities" would be afforded by
the Commonwealth of Australia and not on the basis of any
"international agreement or convention."Even if there was an
international agreement I am not satisfied that it involves a
"charge" on public funds. The mere fact that expense has
been or will be incurred does not necessarily constitute a
"charge".
It was also argued that the order was made specifically for
the purpose of leading to the extradition of the prosecutor
but, even if this be so, it is not proof of inequality or
discrimination as the application of Part II affects all persons
who are "wanted" in Australia for extraditable offences.
I will not deal specifically with any other challenges. Apart
from their
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inherent frailty many of them ought not to have been
advanced at all having regard to the decision of the Supreme
Court in Cahill v. Sutton [1980] I.R. 269. All arguments
under this heading are accordingly rejected.
E. The detention of the prosecutor
It need hardly be emphasised that in considering the
legality of the detention of the prosecutor his guilt or

innocence in respect of the charges against him is totally
irrelevant. The offences for which he is wanted in Australia
could hardly be more serious but the same legal principles
would be applicable to an Irish citizen who was wanted in
Australia for an offence of simple larceny. The fact that he
may be a citizen of Australia does not deprive the prosecutor
of his right to basic fairness of procedures: The State
(McFadden) v. Governor of Mountjoy Prison [1984] I.L.R.M.
113. In The People (A.G.) v. O'Brien [1965] I.R. 142 it was
held that where evidence has been obtained by the State as
a result of a deliberate and conscious violation of a
constitutional right it should be excluded save where there
are"extraordinary excusing circumstances" which may
warrant its admission. The same principle was also
emphasised by the Court of Criminal Appeal in The People v.
Madden [1977] I.R. 336. The same principle was again
repeated by the Supreme Court in The People v. Lynch
[1982] I.R. 64 wherein O'Higgins C.J. stated at p. 79 that
"once the Constitution had been violated for the purpose of
securing a confession, the fruits of that violation must be
excluded from evidence on that ground alone." In D.P.P. v.
Joyce [1985] I.L.R.M. 206 Hederman J. in delivering the
unanimous judgment of the Supreme Court stated that once
the evidence on which the Garda relied for the purpose of
arresting the accused was improperly obtained it "tainted
with illegality everything that the Garda did thereafter
including arresting the accused."
In my view the principle is not solely confined to the
admission of evidence in a criminal case. Courts have no
higher duty to perform than that involving the protection of
constitutional rights and if at any time the protection of
these rights should delay, or even defeat the ends of justice
in the particular case, it is better for the public good that this
should happen rather than that constitutional rights should
be nullified. In The State (Quinn) v. Ryan [1965] I.R. 70
Dlaigh C.J. stated at p. 122 that "it was not the intention
of the Constitution in guaranteeing the fundamental rights of
the citizen that those 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."
[1985]
1 I.R.
Egan J.
566
H.C.
I have already held that the original arrest of the prosecutor
on the 25th October, 1984, under s. 30 of the Offences
Against the State Act, 1939, was made without there being
any genuine suspicion that he had committed the alleged
scheduled offence. Part II of the Extradition Act, 1965, did
not apply to Australia until, at the earliest, 1.15 p.m. on the
26th October, 1984. The provisional warrant of arrest in
pursuance of s. 27 of the Act issued at approximately 6 p.m.
on the 26th October, 1984. It is exhibit "B" in the affidavit of
the prosecutor and it will be noted at the end that there is in
manuscript a direction by Superintendent Herlihy in the
following terms:"To Detective Inspector Cormac Gordon for
legal execution." At the subsequent hearing before me that
night Detective Inspector Gordon swore on oath that at no
time from the time of arresting the prosecutor on the 25th
October, 1984, under the name Michael Hanbury up to the
time of giving evidence before me between the hours of 7.00
p.m. - 10.00 p.m. on the 26th October, 1984, did he believe
the prosecutor to be any person other than Michael Hanbury.
I did not accept his evidence.
It might be possible to theorise in this matter but the only
rational explanation for the s. 30 arrest on the 25th October,
1984, was to ensure that the prosecutor would be available
for arrest and detention when Part II of the Act of 1965 would
apply to the Commonwealth of Australia. There was a gross

misuse of s. 30 which amounted to a conscious and
deliberate violation of constitutional rights. There were no
extraordinary excusing circumstances.
It was suggested that even if there was such a violation, no
"fruits" (to use the words of O'Higgins C.J. in The People v.
Lynch [1982] I.R. 64) resulted therefrom. Reliance in this
regard was placed on paragraph 5 of the affidavit of the
prosecutor, in which he stated that "On the 25th October
1984 I set off with my daughter and friend to drive in a hired
car to Westport in the County of Mayo where I intended to
stay." It was argued that he would, therefore, have been
available for arrest on the 26th October, 1984, or thereafter,
even if he had not been in unlawful detention from the 25th
October, 1984. It would be idle speculation for me to make
any such assumption.
It was further argued that in the application before me on
the 2nd November, 1984, I had declared his detention to be
lawful but the only arguments made to me on that date were
to the effect that certain remand orders were deficient in
that they only amounted to recitals. This problem was dealt
with, however, in Application of Woods [1970] I.R. 154
where Walsh J. stated at p. 167 as follows:
"In my view it was never contemplated by the Constitution
that the dismissal of such an application for habeas corpus
precluded for all time any further application being made in
respect of the same detention of the same person.
Information might subsequently
[1985]
1 I.R.
Finlay C.J.
567
S.C.
come to light which would be sufficient to satisfy any court
of the illegality of the detention. Even if it were the fact that
such information could have been obtained at the time of
the original application, in my opinion it would not alter the
situation. It would be quite impossible and unreal for any

court hearing such an application to extend the enquiries,
which it must make upon such an application, to every
conceivable matter which might possibly arise although not
then raised by any person or, indeed, occurring to any
person."
Persuasive English and other authorities were cited but I
need not refer to them save to say that they establish that
the relevant courts should exercise their discretion in favour
of a person who may have been adversely affected by a
gross abuse of legal process.
The present detention of the prosecutor is tainted by the
illegality of his original arrest. It is the ultimate result of a
conscious and deliberate violation of constitutional rights
and is, accordingly, unlawful. I must, therefore, order his
immediate release.
[Application for a stay on the order was refused by Egan J.
Upon immediate appeal from the refusal the Supreme Court
granted a stay until decision upon hearing next day. (The
prosecutor was at the time in intensive care at the Meath
Hospital, Dublin.)]
T.K. Liston S.C. (with him E.F. Comyn S.C. and Susan
Denham ) for the respondent appealing the refusal of the
High Court to stay its order.
P. MacEntee S.C. (with him S. MacBride S.C. and Clive
Nicholls Q.C. and J.G. Danaher ) for the prosecutor.
The Court then retired briefly to consider its judgment.
Finlay C.J.
6th February 1985
I am satisfied that the provisions of Article 40 which set out
the procedure for an inquiry of this kind and which provide
that unless the High Court is clearly satisfied that the
prosecutor is being legally detained, it must order his
immediate release, that this procedure was complied with by
Egan J. As a result Trimbole was in law released from custody.

Whilst it is persuasive to say that any ordinary appellate
jurisdiction includes any powers to make it effective, so to
constitute that power to order a stay in this case would be
inconsistent with the Constitution. I am satisfied from the
report of The State (Browne) v. Feran [1967] I.R. 147 that
the power of this Court to make an order for re-arrest clearly
must be confined to a time when this Court has decided that
the High Court decision is incorrect. There is no question of
this Court ordering rearrest to allow the Court to decide an
issue.
[1985]
1 I.R.
Walsh J.; Henchy J.; Hederman J.; McCarthy J.; Finlay C.J.
568
S.C.
Walsh J.
I agree.
Henchy J.
I agree.
Hederman J.
I agree.
McCarthy J.
I agree.
The respondent appealed on the merits. The appeal was
heard by the Supreme Court on the 15th February, 1985.
T.K. Liston S.C. and E.F. Comyn S.C. (with them Susan
Denham ) for the respondent referred to The State
(McFadden) v. Governor of Mountjoy Prison ; The People
(A.G.) v. O'Brien ; The People v. Madden ; The Peoplev.
Lynch ; D.P.P. v. Joyce ; Re Laighlis ; In re Singer (No.
2) ; R. v. Bow Street Magistrates, ex parte Mackeson ; and

The State (Quinn) v. Ryan .
S. MacBride S.C. and P. MacEntee S.C. (with them J.G.
Danaher ) for the prosecutor Trimbole referred to The People
v. McCann, Pringle and O'Shea ; D.P.P. v. Joyce ; The People
(A.G.) v. O'Brien ; The State (McFadden)v. Governor of
Mountjoy Prison ; The People v. Madden and R. v.Hartley .
Cur. adv. vult.
Finlay C.J.
26th March 1985
This is an appeal brought by the respondent, the Governor
of Mountjoy Prison, against an order made by Egan J. in the
High Court on the 5th February, 1985, pursuant to an
enquiry held by him under Article 40, s. 4, sub-s. 2 of the
Constitution, directing that the prosecutor, Robert Trimbole,
should be forthwith released from detention.
The Facts
The material facts which are not in dispute may thus be
summarised.
1. The prosecutor, who is not a citizen, and has not got a
permanent place of residence in Ireland, was at
approximately 2 p.m. on the 25th
[1985]
1 I.R.
Finlay C.J.
569
S.C.
October, 1984, arrested on the outskirts of Dublin by
Detective Inspector Cormac Gordon in purported pursuance
of s. 30 of the Offences Against the State Act, 1939, and
brought into detention in the Bridewell Garda Station, Dublin.
He was there detained and shortly after noon on the 26th
October, 1984, was served with an order made by a Chief

Superintendent of the Garda Sochna extending the
period of his detention for a further twenty-four hours.
2. At approximately 3 p.m. on the 26th October an
application was made on behalf of the prosecutor to Egan J.
for an enquiry as to the legality of his detention and the
prosecutor was brought before Egan J. at 7 p.m. on the same
date and an enquiry then was had as to the legality of his
detention.
The judge having heard evidence and submissions rejected
the evidence of Inspector Gordon which was to the effect
that he had formed a suspicion prior to the arrest that the
prosecutor had been in possession of a firearm and
ammunition on the 24th October, 1984, and held that no
genuine suspicion could have been formed by the Garda in
relation to the possession by the prosecutor of any firearm or
ammunition. He accordingly decided that the detention of
the prosecutor was illegal and made an order for his
immediate release. The prosecutor was then released from
custody in the Four Courts.
3. At approximately 1.15 p.m. on the 26th October the
Government made an order, pursuant to Part II of the
Extradition Act, 1965, applying that part of the Act to the
Commonwealth of Australia as and from the date of the
making of that order. Prior to the making of that order no
extradition treaty existed between the Commonwealth of
Australia and the State nor was Part II of the Act of 1965
applicable to the Commonwealth of Australia.
4. At 6 p.m. on the 26th October, 1984, District Justice
Ballagh issued a provisional warrant, pursuant to s. 27 of the
Act of 1965, authorising the arrest and detention of the
prosecutor on a number of charges relating to offences
alleged to have been committed in the Commonwealth of
Australia. Such a warrant can not, of course, be issued
unless and until Part II of the Act of 1965 applies to the
country requesting the surrender of the person named
therein.
The prosecutor was arrested by Detective Inspector Gordon
pursuant to that warrant immediately after his discharge and
release by Egan J. outside the precincts of the Four Courts.

Subsequent to that arrest he was brought before the District
Court and remanded in custody from time to time.
5. On the 2nd November, 1984, application was made for an
enquiry as to the legality of his detention before Egan J., the
grounds of illegality asserted being deficiency in the form of
orders of remand in custody which had been made from time
to time between the 26th October and the 2nd
[1985]
1 I.R.
Finlay C.J.
570
S.C.
November by the District Court pursuant to the provisional
warrant. After enquiry Egan J. rejected the submissions of
illegality on these grounds.
6. On the 4th November, 1984, this application was made to
Egan J. pursuant to Article 40 of the Constitution for an
enquiry as to the legality of the detention of the prosecutor
and an order was then made in accordance with the Article
directing the respondent, the Governor of Mountjoy Prison, to
produce the body of the prosecutor before the High Court on
Tuesday, 11th December, 1984, or on a later date to be
agreed between the parties and to certify in writing the
grounds of his detention.
7. On the 8th November, 1984, the Minister for Justice made
an order of signification to the District Court, pursuant to the
provisions of s. 26 of the Act of 1965, of the request duly
made by the Commonwealth of Australia and received by
him in accordance with Part II of the Act of 1965.
8. Application was made on the 17th November, 1984, to
the District Court for orders committing the prosecutor to
prison, there to await the order of the Minister for his
extradition. After a number of adjournments and hearings
orders were made by the District Court on the 21st
November, 1984, committing the prosecutor to be detained
in Mountjoy Prison until the Minister should otherwise order,
in accordance with Part II of the 1965 Act, or until the High

Court or Supreme Court should order his release. These
orders referred to sixteen Australian warrants.
9. The return to the order by the High Court on the 4th
November, 1984, was in fact made on the 18th December,
1984, and this application was then at hearing for a
considerable number of days before Egan J. He reserved
judgment and gave judgment in the case on the 5th
February, 1985, directing the release of the prosecutor.
10. For reasons associated with his physical health the
prosecutor was not in court at the time of the making of the
order by Egan J. and was not, therefore, immediately
released. Application was then made on behalf of the
respondent for a stay on the order of release but this Court
ruled that having regard to the express obligation imposed
by Article 40, s. 4, sub-s. 2 upon the High Court, unless
satisfied as to the legality of the detention of a person
seeking an enquiry under that Article to order his release,
that it would be inconsistent with the Constitution for this
Court to exercise any right to stay such an order and,
therefore, refused the application and the prosecutor was
then released from custody.
The issues on this appeal
The respondent did not appeal against the order made by
Egan J. on the 26th October, 1984, nor against his conclusion
on the hearing of that enquiry that there was no genuine
suspicion which would justify the purported arrest of the
prosecutor under s. 30 of the Offences Against the
[1985]
1 I.R.
Finlay C.J.
571
S.C.
State Act, 1939. In the course of the hearing of this
application before the High Court the prosecutor advanced a
number of grounds arising from the provisions of the Act of
1965 challenging the validity of the warrants issued and the
orders made by the District Court under that Act. All these
submissions were rejected by the learned trial judge and
against that rejection no cross-appeal has been entered to
this Court by the prosecutor. The grounds on which the
learned trial judge ordered the release of the prosecutor
were that the illegality of the original arrest of the prosecutor
which purported to be under s. 30 of the Offences Against
the State Act, 1939, had tainted the entire of the subsequent
proceedings before the District Court and he must, therefore,
in his discretion release the prosecutor. It is against that
finding and that decision that this appeal has been brought.
Apart from legal submissions as to the consequences of the
illegality of the original arrest the respondent relies in
particular on paragraph 5 of the affidavit of the prosecutor in
which it is stated:
"On the 25th October 1984 I set off with my daughter and
friend to drive in a hired car to Westport in the County of
Mayo where I intended to stay. On the outskirts of Dublin all
three of us were arrested by Inspector Cormac Gordon of An
Garda Sochna in purported exercise of his powers under
section 30 of the Offences Against the State Act 1939. We
were conveyed by Garda car to the Bridewell Garda Station."
The law
In the course of his judgment on this application the learned
trial judge held that the purported arrest of the prosecutor
on the 25th October, 1984, was a conscious and deliberate
violation of his constitutional rights and there has been no
appeal against that finding. The consequence of and the
attitude of the courts to a conscious and deliberate violation
of constitutional rights has been laid down in a number of
cases. In The State (Quinn) v. Ryan [1965] I.R. 70, which was
concerned with the detention and deportation of a person in
such a manner as to prevent him having access to the court
for the purpose of initiating an enquiry as to the legality of
his detention under Article 40 of the Constitution,
Dlaigh C.J. in a judgment with which the other members of
this Court agreed, at p. 122, stated as follows:
"It was not the intention of the Constitution in guaranteeing

necessary corollary it follows that no one can with impunity
set these rights at nought or
[1985]
1 I.R.
Finlay C.J.
572
S.C.
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."
this Court was dealing with a case in which, through
inadvertence, though not, on the findings, through any
conscious or deliberate act, an unlawful search of the
defendant's dwellinghouse was made. In the course of his
judgment, at p. 170, Walsh J. stated as follows:
"The vindication and the protection of constitutional rights is
a fundamental matter for all Courts established under the
Constitution. That duty cannot yield place to any other
competing interest. In Article 40 of the Constitution the State
has undertaken to defend and vindicate the inviolability of
the dwelling of every citizen. The defence and vindication of
the constitutional rights of the citizen is a duty superior to
that of trying such citizen for a criminal offence. The Courts
in exercising the judicial powers of government of the State
must recognise the paramount position of constitutional
rights and must uphold the objection of an accused person
to the admissibility at his trial of evidence obtained or
procured by the State or its servants or agents as a result of
a deliberate and conscious violation of the constitutional
rights of the accused person where no extraordinary
excusing circumstances exist, such as the imminent
destruction of vital evidence or the need to rescue a victim
in peril."
The violation of constitutional rights and its consequence
arose again in The People v. Madden [1977] I.R. 336 where
the facts were that the accused Madden was in the course of
making what the court of trial held to be a voluntary
statement when the maximum period of his detention, which
had commenced lawfully as an arrested person under s. 30
of the Act of 1939, expired, but he was not then released but
rather permitted to conclude the statement. Delivering the
judgment of the Court of Criminal Appeal, O'Higgins C.J. at p.
347 stated as follows:
"The court of trial appears to have sought an element of
wilfulness or mala fides in the conduct of the Garda officer
and not finding such to have concluded that the deprivation
of constitutional rights was not deliberate and conscious. In
the view of the Court, to adopt that approach is to
misunderstand the decision in O'Brien's Case and,
accordingly, to err in law. What was done or permitted by
Inspector Butler and his colleagues may have been done or
permitted for the best of motives and in the interests of the
due investigation of the crime. However, it was done or
permitted without regard to the right to liberty guaranteed to
this defendant
[1985]
1 I.R.
Finlay C.J.
573
S.C.
by Article 40 of the Constitution and to the State's obligation
under that Article to defend and vindicate that right. This
lack of regard for and failure to vindicate the defendant's
constitutional right to liberty may not have induced or
brought about the making of this statement but it was the
dominating circumstance surrounding its making. In the view
of this Court this fact cannot be ignored."
The decision of the Court of Criminal Appeal then was that
the statement must be excluded and by reason of its
exclusion the conviction of the accused, Madden, was set

aside. In The People v. Lynch [1982] I.R. 64 this question
arose again in this Court in respect of the admission of an
incriminating statement made by the accused. In the course
of his judgment O'Higgins C.J. quoted with approval the
statement of Warren C.J. in the case of Terry v. Ohio (1968)
392 U.S. 1 where, at p. 13 of the report he said:
'Courts which sit under our Constitution cannot and will not
be made party to lawless invasions of the constitutional
rights of citizens by permitting unhindered governmental use
of the fruits of such invasions."
I am satisfied that from these decisions certain general
principles can be deduced. They are:
The Courts have not only an inherent jurisdiction but a
positive duty: (i) to protect persons against the invasion of
their constitutional rights; (ii) if invasion has occurred, to
restore as far as possible the person so damaged to the
position in which he would be if his rights had not been
invaded; and (iii) to ensure as far as possible that persons
acting on behalf of the Executive who consciously and
deliberately violate the constitutional right of citizens do not
for themselves or their superiors obtain the planned results
of that invasion.
Notwithstanding the fact, therefore, that of the four cases to
which I have referred, three are concerned with the
admissibility of evidence in criminal trials and the fourth was
concerned with the punishment of persons acting in breach
of the Constitution where neither protection nor reparation to
the party injured was practical, I am satisfied that this
principle of our law is of wider application than merely to
either the question of the admissibility of evidence or to the
question of the punishment of persons for contempt of court
by unconstitutional action.
This jurisdiction and direct duty arising from the Constitution
and the position of the courts created by it is in some ways
similar to, though more ample and dominant than, what I am
satisfied was an inherent jurisdiction recognised by the
common law in courts to prevent an abuse of their own
processes.
In the case of R. v. Bow Street Magistrates, ex parte

Mackeson (1981) 75
[1985]
1 I.R.
Finlay C.J.
574
S.C.
Cr. App. R. 24, the question of this inherent jurisdiction
arose on an application for an order of prohibition to prevent
the trial of the applicant on certain charges in the Bow Street
Magistrates' Court. The facts of that case shortly
summarised were that the applicant, who was a British
citizen, was in the year 1979 wanted by the Metropolitan
Police in respect of certain charges of fraud. He was at that
time resident in Rhodesia which in the eyes of the law of
England was then in rebellion and, accordingly, previously
existing statutory arrangements for extradition were no
longer effective between the two countries. It was found as a
fact that the English police upon that occurring entered into
arrangements whereby the Rhodesian authorities would
deport the applicant to England, not for the purposes for
which the deportation laws of Rhodesia provided, namely,
that he was an undesirable resident, but really for the
purpose of securing an illegal form of extradition so as to
make him amenable to the courts of England. The process
thus initiated in fact was not completed until after the
restoration, in the eyes of English law, of the Rhodesian state
and after pre-existing statutory arrangements for extradition
had again become effective. Upon arrival in England in the
custody of Rhodesian police officers he was immediately
arrested on the three charges of fraud on which he was
originally wanted and brought before a magistrates' court.
These charges were eventually dropped but sixteen further
charges of fraud were preferred against him and it was the
trial of those charges which the applicant sought to prohibit.
The decision of the Court of Appeal, consisting of Lord Lane
C.J. and Davies J. was that whilst undoubtedly the
magistrates' court had jurisdiction to hear and determine the

charges which had properly been laid against the applicant,
the court had an inherent jurisdiction to prevent an abuse of
its own process and that since the applicant had only been
present in England and capable of being charged before the
magistrates by reason of an illegal action in which the
English police had co-operated, the court should exercise its
discretion and prohibit the trial of the applicant on the
charges notwithstanding the fact that they were charges
properly brought before the magistrates' court which had
jurisdiction to hear them.
In the course of his judgment Lord Lane C.J. quoted with
approval from the decision of the New Zealand Court of
Appeal in R. v. Hartley [1978] 2 N.Z.L.R. 199. In this case a
man wanted for murder and associated crimes in New
Zealand had before being arrested left for Australia. He was
after a short time arrested by the Australian police with the
connivance and at the request of the New Zealand police
and transferred by plane to New Zealand where he was on
arrival immediately arrested and charged with the murder.
There existed a straightforward extradition arrangement
between Australia and New Zealand which was ignored and
not availed of. It was there decided that on the authorities
the court of trial which tried the accused and found him
guilty had clear jurisdiction to do so but the Court of
[1985]
1 I.R.
Finlay C.J.
575
S.C.
Appeal held that there was an inherent jurisdiction in the
courts to exercise a discretion by reason of the illegality of
the method of his being made available in New Zealand for
arrest and charge, to direct the discharge of the accused. In
particular Lord Lane quoted from the decision of Woodhouse
J. where he states at p. 217:
"We have said that if the issue in the present case is to be
considered merely in terms of jurisdiction then Bennett,

being in New Zealand, could certainly be brought to trial and
dealt with by the courts of this country. But we are equally
satisfied that the means which were adopted to make that
trial possible are so much at variance with the statute, and
so much in conflict with one of the most important principles
of the rule of law, that if application had been made at the
trial on this ground, after the facts had been established by
the evidence on the voir dire, the Judge would probably have
been justified in exercising his discretion under section 347
(3) or under the inherent jurisdiction to direct that the
accused be discharged."
The Court of Appeal in fact set aside the conviction of the
accused on the grounds of the inadmissibility of statements
taken from him by oppressive methods after his return to
New Zealand, but as is commented by Lord Lane C.J., it is
plain what would have happened if the issue of discretion
had been the only issue before the Court.
Having regard to the discretion thus arising at common law
and the duty of the court to intervene in appropriate cases
under our Constitution it is necessary to look at the position
of the prosecutor in this case. On the evidence in the High
Court he is not a person who is suspected of or wanted for
any offence against the law of this country. The section
under which his original purported arrest took place is part of
a code intended to protect the State against its enemies and
those seeking to overthrow it by unlawful means. Not only
did the prosecutor not come within that category of persons
but the only right which the State would have had to
interfere with his liberty would be under the Extradition Act,
1965, at the request of another country with which the State
had reciprocal extradition arrangements. His purported
arrest under s. 30 at the time at which it took place when no
such arrangements existed was therefore not only a
conscious and deliberate violation of his constitutional rights
but a flagrant misuse of s. 30 of the Offences Against the
State Act, 1939.
It is clear that not every unlawful arrest, even though it may
be classified as conscious and deliberate, gives to a person
so arrested, after his necessary release from illegal

detention, any immunity from the proper enforcement of due
processes of law or makes him unamenable to answer to
criminal offences in our courts.
It is equally clear that a person wanted for extradition in this
country as
[1985]
1 I.R.
Finlay C.J.
576
S.C.
the result of a valid request for extradition under lawful
treaty or reciprocal arrangements could not by reason only
of the fact that he was subjected in the first instance to an
unlawful arrest gain any long-term or permanent immunity
from extradition.
The finding of the learned trial judge in this case, however,
is of quite a different situation and is, in effect, a finding, that
the unlawful arrest was part and parcel of a planned
operation prompted by delay in bringing into operation the
reciprocal extradition agreements, and therefore the
application of the Act of 1965 as between Australia and
Ireland. Dealing with this matter Egan J. stated as follows:
"It might be possible to theorise in this matter but the only
deliberate violation of his constitutional rights. There were
no extraordinary excusing circumstances.
'fruits' (to use the words of O'Higgins C.J. in The People v.
prosecutor, in which he stated that 'on the 25th October

stay.' It was argued that he would, therefore, have been
available for arrest on the 26th October, 1984, or thereafter,
any such assumption."
The findings of fact here made by the learned trial judge
and the inferences he drew from them are, in my view, well
established. On the evidence before him he was entitled to
find that the unlawful s. 30 arrest was a precaution
purposely put in operation so as to try and avoid the
possibility that the prosecutor would leave the jurisdiction or
otherwise become unavailable for arrest before the
application of Part II of the Act of 1965 to Australia and the
issue of a provisional warrant under section 27. Looked at
simply and directly, it was a plan which exactly achieved its
purpose. At the time when the provisional warrant under s.
27 did issue, namely, at 6 p.m. on the 26th October, 1984,
the prosecutor was still in detention and those charged with
the duty of executing the warrant knew that either he would
still be in such detention at the end of that day by reason of
the refusal of his application under Article 40 of the
Constitution or that he would be discharged from detention
in the Four Courts as a result of a successful
[1985]
1 I.R.
Finlay C.J.
577
S.C.
application under Article 40 and would be immediately
available for the execution of the warrant in an identifiable
and predictable place in the centre of the city of Dublin.
I would reject the submission that the averment contained
in the affidavit of the prosecutor, that it was his intention at
2 p.m. on the previous day to travel to and remain in the
West of Ireland, is inconsistent with the link found by the
learned trial judge between the unlawful arrest and the facile
execution of the warrant under s. 27 of the Act of 1965. One

must infer from the evidence and from the findings of the
learned trial judge that the Garda authorities were
apprehensive that between lunchtime on the 25th October
and the time when a warrant would be available on the
following day, whether by reason of hearing of the moves
which were being made in Australia to try to secure the
extradition of the prosecutor to that country, or for any other
reason, the prosecutor would change what he stated to be
his intention and would depart out of the jurisdiction or
become unavailable for arrest. Notwithstanding his
statement of his intention at that time it seems to me that
that possibility still existed and the onus being on the
respondent Governor of the Prison to justify the legality of
the detention of the prosecutor, the learned trial judge was
correct in his findings of fact and in the inferences which he
drew from them and that this is a case in which the planned
result of the conscious and deliberate violation of the
prosecutor's constitutional rights was his arrest under the
warrant issued under s. 27 of the Act of 1965 from which
flowed all further lawful orders of detention.
In reaching this conclusion I have considered and rejected
the submission made on behalf of the respondent that the
illegality of the arrest made under s. 30 on the 25th October,
1984, was merged in or superseded by a series of valid and
legal orders for the detention of the prosecutor, made by the
District Court when he was brought before them having been
arrested on what itself was a valid and legal warrant issued
under s. 27 of the Act of 1965.
If the challenge to the legality of the prosecutor's detention
had been based on a want of jurisdiction in the District
Court, or if the successful challenge to the original arrest had
been one of form creating an illegality but not constituting
either a conscious and deliberate violation of his
constitutional rights or the abuse of a process of the court,
then in those instances, undoubtedly, on the authority of the
decisions in Re Brian Francis (1963) 97 I.L.T.R. 160 and in
Re Singer (No. 2) (1964) 98 I.L.T.R. 112 the orders of the
District Court, having been made within jurisdiction, would
justify the detention of the prosecutor irrespective of the

method by which he had been brought before that court. I
have no doubt, however, that different considerations apply
to a challenge arising from the discretion at common law to
prevent abuse of the processes of the court and the duty
[1985]
1 I.R.
Finlay C.J.; Henchy J.; Griffin J.; Hederman J.; McCarthy J.
578
S.C.
under the Constitution to vindicate the constitutional rights
of the prosecutor.
I, therefore, agree with the decision of Egan J. and the
reasoning by which he reached it and I would dismiss this
appeal.
Henchy J.
I agree.
Griffin J.
I agree.
Hederman J.
I agree.
McCarthy J.
The Governor of Mountjoy Prison appeals against an order of
the High Court (Egan J.) made on the 5th day of February,
1985, following on an enquiry held under Article 40, s. 4,
sub-s. 2 of the Constitution, directing the immediate release
of the prosecutor.
On the 25th October, 1984, the prosecutor, an Australian
citizen, was travelling by motor car to the West of Ireland
accompanied by his daughter and a lady friend, when all
three were arrested in purported exercise of the powers of
arrest given by s. 30 of the Offences Against the State Act,
1939. The period of detention pursuant to this arrest was
subsequently extended from the initial twenty-four hours to

one of forty-eight hours by the exercise of further powers
granted by the section to a member of an Garda Sochna
not below the rank of Chief Superintendent. The arrest took
place in the early afternoon of the 25th at which time there
was no extradition arrangement existing between Ireland
and Australia. By 1.15 p.m., however, on the 26th October,
such an arrangement had been brought into existence
through the action of the Australian Government and the
Irish Government, following on which provisional warrants for
the arrest of the prosecutor were issued pursuant to the
Extradition Act, 1965. On the evening of the 26th October
Egan J. held an enquiry under Article 40, s. 4, sub-s. 2 of the
Constitution and ordered the immediate release of the
prosecutor. I quote from the judgment of the learned trial
judge:
"At the subsequent hearing before me that night Detective
Inspector Gordon swore on oath that at no time from the
time of arresting the prosecutor on the 25th October, 1984,
under the name Michael Hanbury up to the time of giving
evidence before me between the hours of 7.00 p.m. - 10.00
p.m. on the 26th October, 1984, did he believe the
prosecutor to be any person other than Michael Hanbury. I
did not accept his evidence.
[1985]
1 I.R.
McCarthy J.
579
S.C.
It might be possible to theorise in this matter but the only
deliberate violation of his constitutional rights. There were
no extraordinary excusing circumstances.

'fruits' (to use the words of O'Higgins C.J. in The People v.
prosecutor in which he stated that "On the 25th October
stay." It was argued that he would, therefore, have been
available for arrest on the 26th October, 1984 or thereafter,
any such assumption."
I pause in this citation to refer to the submissions made to
this Court by Mr. MacEntee on behalf of the prosecutor,
which I summarise as follows: (a) The liberty of the
individual includes his entitlement to change his mind. (b)
The arrest under s. 30 was disposing of the risk that he (the
prosecutor) would not be available - that he would change
his mind; it took this area of uncertainty out of the case. (c)
At the time of the arrest there was no possibility of holding
the prosecutor lawfully - it was therefore a form of
kidnapping to make him available to face the process that
would result from the Government making the order that
was made on the 26th October. (d) In short, that an order of
release under Article 40, s. 4, sub-s. 2 means to set at liberty
in a meaningful sense.
To revert to the words of the learned trial judge:
"Persuasive English and other authorities were cited but I
need not refer to them save to say that they establish that
the relevant courts should exercise their discretion in favour
of a person who may have been adversely affected by a
gross abuse of legal process.
The present detention of the prosecutor is tainted by the
illegality of his original arrest. It is the ultimate result of a
conscious and deliberate violation of constitutional rights
and is accordingly unlawful. I must, therefore, order his
immediate release."
Earlier in his judgment, Egan J. had cited an extract from the
judgment of Dalaigh C.J. in The State (Quinn) v. Ryan

[1965] I.R. 70 at 122:
[1985]
1 I.R.
McCarthy J.
580
S.C.
"It was not the intention of the Constitution in guaranteeing
the fundamental rights of the citizen that those rights should
be set at nought or circumvented. The intention was that the
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
It is in point to cite the concluding sentence of that
paragraph of Dalaigh C.J.'s judgment: "anyone who sets
himself such a course is guilty of contempt of the Courts and
is punishable accordingly." Quinn's Case [1965] I.R. 70 was
one where the purpose of the police plan was to eliminate
the courts and to defeat the rule of law as a factor in
government ( Dalaigh C.J. at p. 118). No such purpose is
ascribed in the instant appeal where the purpose of the
police plan - as, clearly, there was a plan - was to detain the
prosecutor until the necessary extradition framework had
been constructed. It seems to me to follow, inexorably, that
the "plan" or scheme must have involved individuals in other
departments of the Executive and not just the Garda officers
immediately concerned in the arrest. As far back as 1972 the
Irish Government commenced negotiations with
representatives of the Government of the Commonwealth of
Australia to negotiate the text of an Extradition Treaty
between the two countries and according to the affidavit of
the Legal Adviser to the Department of Foreign Affairs these
negotiations"were not and have not been either abandoned
or discontinued and are continuing." The relevant regulations

in Australia were "signed by the Governor General between
10.45 and 11.15 a.m. on the 26th October. That was
sometime during the night of 25th October or the early
morning of 26th October in Ireland." (see the judgment of
High Court of Australia in Robert Trimbole v. Commonwealth
of Australia (1984) C.L.R. 186). At 1.15 p.m. on the 26th
October the Government made the Extradition Act, 1965,
(Part II) (No. 19) Order, 1984, which order came into
operation on the same date and applied Part II of the Act of
1965 to the Commonwealth of Australia. There was, of
course, no issue as to any of these events; the validity of the
warrants for the arrest of the prosecutor that resulted from
the making of the orders has been tested and upheld in the
High Court and is not the subject of appeal. It is said,
however, that, as it were, the pedigree of these warrants is
defective because of what the learned trial judge termed,
and in my view, correctly termed, "a gross misuse of s. 30
which amounted to a conscious and deliberate violation of
his constitutional rights." The learned judge further said:
"It need hardly be emphasised that in considering the
legality of the detention of the prosecutor his guilt or
innocence in respect of the charges against him is totally
irrelevant. The offences for
[1985]
1 I.R.
McCarthy J.
581
S.C.
which he is wanted in Australia could hardly be more serious
but the same legal principles would be applicable to an Irish
citizen who was wanted in Australia for an offence of simple
larceny. The fact that he may be a citizen of Australia does
not deprive the prosecutor of his right to basic fairness of
procedures . . ."
For myself, I think it is right to emphasise that guilt or
innocence is irrelevant; that the fact that the charges are
very grave and very numerous is equally irrelevant; what is

most relevant is that the courts should defend the
Constitution and the constitutional rights of every person
within the jurisdiction of the courts. I refer again to Quinn's
Case [1965] I.R. 70 and to the judgment of Davitt P. in the
High Court where, at pp. 88-89, he says in reference to
Article 40, s. 4, sub-s. 2 of the Constitution:
"If these provisions had to be considered alone and isolated
from the other provisions of the Article it might reasonably
be argued that they did no more than re-state some of the
provisions of the common law in regard to habeas corpus.
They occur, however, in an article dealing with personal
rights which, in turn, is contained in a section of the
Constitution which deals with fundamental rights. Paragraph
3 provides, in sub-para. 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 citizens." In subpara. 2 it provides: "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." These guarantees are given
on behalf of the State and apply to all its organs. They apply
not merely to the Legislature, but also to the Executive and
the Judiciary. Not merely are the appropriate laws as enacted
to comply with the requirements of these guarantees, but
they are, so far as their nature permits, to be interpreted by
the Courts and administered and enforced by the Executive
with a similar regard to the requirements of the
Constitutional guarantees."
If, then, the Executive itself abuses the process of law as in
this case by the wrongful use of s. 30 of the Offences Against
the State Act, 1939, and, for what it is worth, persists in that
abuse by giving false evidence in the course of the
constitutional enquiry, are the courts to turn aside and, apart
from administering severe strictures to those concerned,
appear to sanction the procedure that has been adopted to
secure the extradition of an individual to the requesting
State? It is not easy for anyone, particularly those outside
the courts, to disassociate legal principles from the facts of
any given case; it is important, therefore, to emphasise that

the application of such legal principles must be the same for
an Australian citizen on a temporary visit to Ireland as they
would be for an Irish citizen, permanently
[1985]
1 I.R.
McCarthy J.
582
S.C.
resident in Ireland, when either of them is sought by a
requesting State with which State Ireland has an extradition
treaty or arrangement.
Counsel for the respondent, the Governor of Mountjoy
Prison, who detained the prosecutor until his release, whilst
acknowledging the impropriety of the arrest under s. 30,
seek to uphold the detention, essentially, on the basis that
the arrest and order for extradition made on foot of the
extradition framework were not "fruits" of the wrongful arrest
- that, according to his own affidavit, the prosecutor was not
intending to leave Ireland and that the case is, therefore,
different from the authorities cited bearing upon the
admission in evidence of the "fruits" of improper or
unconstitutional conduct by the Executive through the work
of the Garda. It is true to say that the cases cited are,
largely, concerned with "fruits" in that sense but, in my view,
the argument overlooks the philosophy that underlies these
decisions and, indeed, the many decisions of the Federal
Supreme Court of the United States cited so often in such
cases as The People (Attorney General) v. O'Brien [1965]
I.R. 142 and subsequent cases. In O'Brien's Case Walsh J.
said at p. 168:
"In the United States of America the exclusionary rule, as it
is called, does not appear to have been based upon a
principle of"fairness" to the prisoner but for the express
purpose of enforcing compliance on the part of the police
with the constitutional rights of the accused person. This is
clear from the many decisions of the Supreme Court of the
United States and the latest expression of it is in the

judgment of that Court in Stone v. State of California (1964)
376 U.S. 483. It would also appear that at least in cases of
illegal search and seizure upon premises, the rule seems to
be confined to cases where the violation has been that of the
constitutional rights of the defendant . . .
In my judgment the law in this country has been that the
evidence in this particular case is not rendered inadmissible
so that there is no discretion to rule it out by reason only of
the fact that it was obtained by means of an illegal as
distinct from an unconstitutional seizure. Members of the
police make illegal searches and seizures at their peril and
render themselves liable to the law of tort and in many
instances also to the criminal law. In my view, it would
properly be within the province of a court which learns in the
course of a trial that evidence proffered has been obtained
as a result of an illegal search and seizure, whether on the
property of the accused or any other person, knowingly and
deliberately carried out by the police, to publicly draw
attention to that fact and in that, though perhaps remote,
way effectually to control the actions of the police. But to
render the evidence inadmissible on that account only and
for the purpose of controlling the police
[1985]
1 I.R.
McCarthy J.
583
S.C.
would be to prefer the latter purpose to the competing but
primary one of conducting a fair trial. If a stage should be
reached where this Court was compelled to come to the
conclusion that the ordinary law and police disciplinary
measures have failed to secure compliance by the police
with the law, then it would be preferable that a rule of
absolute exclusion should be formulated rather than that
every trial judge, when the occasion arises, should also be
asked to adjudicate upon the question of whether the public
good requires the accused should go free without full trial

rather than that the police should be permitted the fruits of
the success of their lawless ventures. Apart from the
anomalies which might be produced by the many varying
ways in which that discretion could be exercised by
individual judges, the lamentable state of affairs which would
call for such a change in the existing law of evidence would
certainly justify absolute exclusion rather than a rule which
might appear to lend itself to expediency rather than to
principle."
Clearly a principle underlying the exclusion of such evidence
is the deliberate violation of constitutional rights and not, as
in the United States, in part at least a weapon by the courts
to deter police illegalities (paceWalsh J. at p. 167 in The
People (Attorney General) v. O'Brien [1965] I.R. 142). The
exclusionary rule expressed in O'Brien was examined in
detail in The People v. Madden [1977] I.R. 336; the People v.
O'Loughlin [1979] I.R. 85; the People v. Walsh [1980] I.R.
294; the People v. Farrell [1978] I.R. 13 and the People v.
Lynch [1982] I.R. 64, where O'Higgins C.J. said "Once the
Constitution has been violated for the purpose of securing a
confession, the fruits of that violation must be excluded from
evidence on that ground alone." All these cases, however,
are, as I have said, instances of the exclusion of evidence,
they do not, of themselves, necessarily involve the release of
the person detained. In the instant appeal, a person
detained was ordered to be released and was released (in
order to avoid publicity at the time, at the request of his
counsel, the prosecutor was brought by the Garda to the
Bridewell Station, accompanied by his junior counsel, and
the arrest under the provisional warrant was effected there).
Not merely was he released but, before the release was
made, indeed before judgment was given by Egan J., counsel
for the Governor had publicly stated the intention of the
police authorities to arrest him under the provisional
warrants.
Therefore, it is said, that the arrest and intended extradition
were not fruits of the unlawful arrest under s. 30; if they
were, they do not touch upon the real issue viz., whether or
not the prosecutor should be returned to Australia to face

the charges detailed in the warrants. As in the case of
evidence obtained in breach of constitutional rights, is there
a discretion to be exercised in the light of the breach of the
prosecutor's constitutional right to liberty where the chain
between the deprivation of liberty and the arrest
[1985]
1 I.R.
McCarthy J.
584
S.C.
under the provisional warrant cannot be demonstrated to
have been cleanly broken? Or, assuming no such break,
where the impropriety is, so to speak, spent by the
appearance of the prosecutor in the District Court on a
number of occasions on remand by order of the District
Justice and no question can be raised as to the validity of the
extradition procedure and proceedings themselves, is there
a duty or a discretion in the court to nullify these
proceedings by ordering his release, and if there is a
discretion, how should it be exercised? In any sense, is there
a question of degree or proportionality appropriate to the
issue? This I have found to be the real question to resolve in
this appeal.
The balance
1. If a breach of constitutional rights may be excused by
extraordinary circumstances ( pace The People (Attorney
General) v. O'Brien [1965] I.R. 142) a parallel argument
would apply here.
2. In The People v. Shaw [1982] I.R. 1 the excuse, the hope
of finding the girl alive, was held an adequate excuse for the
violation of a constitutional right, although, in fact, the hope
was groundless.
3. The majority judgment (that of Griffin J.) in Shaw [1982]
I.R. 1 stated at p. 61:
"The crucial test is whether it was obtained in compliance
with basic or fundamental fairness, and the trial judge will
have a discretion to exclude it "where it appears to him that

public policy, based on a balancing of public interests,
requires such exclusion" - per Kingsmill Moore J. at p. 161 of
the report of O'Brien's Case .This is a fairer and more
workable test than a consideration of whether the
questioned statement complies with specific constitutional
provisions, because most of the criminal trials in this State
are held in courts (the District Court, the Circuit Court and
the Special Criminal Court) which, in terms of their judicial
personnel, judicial experience and vested jurisdiction, are
not designed for constitutional interpretation or for the
balancing of constitutional rights, or for the preferment of
one invoked constitutional provision over another."
4. It is clearly in the interests of justice, and, indeed, in the
interests of concord with other nations (the Preamble) and
international justice and morality (s. 1, sub-s. 1, of Article 29
of the Constitution) and the generally recognised principles
of international law (s. 3) that where a friendly state seeks
the extradition of a person alleged to have committed a
serious crime within that State then this State should cooperate in effecting that extradition. It is self-evident that if
such a person refuses or is unwilling to return to the
requesting State, then
[1985]
1 I.R.
McCarthy J.
585
S.C.
he is seeking to evade a trial - he is seeking to evade
justice; to aid him in so doing is, on its face, contrary to
public policy.
5. Other than the President, no holder of an office under the
Constitution save the members of the Judiciary is required to
make a declaration to uphold the Constitution and the laws.
There are analogous provisions in the Police Forces
Amalgamation Act, 1925, and the Defence Act, 1954. In
particular, no member of either House of the Oireachtas or of

the Executive at any level is required by the Constitution
itself to make such a declaration. This circumstance
emphasises, if emphasis were needed, the high
responsibility that lies upon the Judiciary to ensure that
constitutional rights are not flouted with impunity. The
release upon what may appear to have been a technical
ground of an individual "wanted" on serious charges may
seem, at first sight, undesirable and, indeed, contrary to
public policy; it may seem highly contrary to public policy
that elaborate arrangements for extradition should be set at
nought by what may be termed an excess of zeal. In my
judgment, however, a far greater principle is at stake: that
part of the Executive represented by the Garda authorities
and those others responsible for what I have termed the plan
to extradite the prosecutor must not be permitted to think
that conduct of this kind will at worst result in a judicial
rebuke, however severe. It will result in the immediate
enforcement, without qualification, of the constitutional
rights of the individual concerned whatever the
consequences may be. If the consequences are such as to
enable a fugitive to escape justice then such consequences
are not of the courts' creation; they stem from the police
illegality.
During the course of argument, the question was canvassed
as to whether or not the prosecutor could be validly arrested
and extradited upon a fresh warrant or set of warrants from
Australia. Mr. MacBride, as his counsel, expressly conceded
that such an arrest and extradition would be valid. That is
not to say that such arrest and extradition might not be
challenged; for myself, however, I would like to make it clear
that the views that I have expressed are not to be taken as
any indication that the prosecutor is now seven weeks after
his release free from extradition from this country.
I would dismiss this appeal.
Solicitors for the prosecutor: Con O'Leary & Co.
Solicitor for the respondent: The Chief State Solicitor.
anna Mulloy, B.L.
[1985] I.R. 550
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Important Judgments - Supreme Court

Article 48, 40, 50 and a couple of other articles of Our

cases which have been finally decided and determined on

The State (Byrne) v. Frawley [1978] I.R. 326 ; Murphy v. The

otherwise, then the final decision in the case must be

in wholly exceptional circumstances, the interests of justice

of a declaration of unconstitutionality it must be done in a

[1999] 2 S.C.R. 203.

applicant was charged was a one count indictment.

post-1937 statute, the Income Tax Act 1967. Nonetheless, I

The next question I have to consider is what are the

That passage was quoted recently by the Supreme Court in

there is "such a default of fundamental requirements that

a court were to quash the conviction in appropriate judicial

and Geoghegan JJ.) on the 2nd June, 2006.

The Preamble to the Constitution speaks of liberty, equality

tangentially, for example in King v. Attorney General where

December, 1975 would have been found to be

Until something is done it is there and it is submitted that

between both applicants. Both suffered an unconstitutional

standing to mount a challenge, would be allowed to obtain

What happened in effect in that case was that a temporal

of the constitutional procedure is to ensure the fundamental

offence or detained solely on s. 1(1) grounds. The necessity

criminal context as it would be in a civil one. It has been

There are two schools of thought. McSorley v. Governor of

as invalid the court is not asked to perpetuate the

is not possible to renew the applicant's detention on a lawful

In Laffoy J.'s judgment at the trial of this action it was

A. v. Governor of Arbour Hill PrisonMurray C.J.

precluding a defence being raised by a person charged with

As counsel for the applicant said, his argument in this

incompatible with a due and ordered administration of

unconstitutionality without regard to the applicant's

this application I wish to make some reference to the

The common law has never conceived as consistent

constitutional context, where a judicial decision is overruled

argument, that the common law rule that judicial decisions

retrospective effect of a declaration that a measure is void

In some cases, it is specified that the finding of invalidity has

grant or restrict the relief in a manner most appropriate to

justice notwithstanding that its Constitution expressly

difficult of those which have engaged the attention of courts,

314) Thus, for collateral review in federal Courts of state

finding of invalidity on constitutional grounds (e.g. Germany,

terms of the Constitution.

decided on foot of an Act found to be unconstitutional is

directed or permitted by such a law would be deprived of all

which the court has to address having regard to the

de Burca v. Attorney General [1976] I.R. 38, O'Higgins C.J.

only on the basis of the facts as it finds them when a case is

the overriding interests of the common good in an ordered

such issue in that form has arisen reflects the professional

General . In McMahon's case the Courts were not asked to

General [1976] I.R. 38 but more generally, such as in a case

therefore consequently, there was no such law in being at

obiter, of the position in Irish law. I have no doubt it is a

directly counter to any notion of complete or absolute

happened and cannot, or should not, be undone. The

He answered this question at p. 321 by stating, "In this

action, which this was. However, he pointed out at p. 320:

decision on other matters done and cases finally decided

gratuity entitlements. His claim was dismissed in the High

unravelling of judicial decisions over many decades when a