New Law Journal View whole of Issue 7275, June Articles Conflicting rights ...

... 157 NLJ 753 1 June 2007 Conflicting rights This Week Comment Julian Samiloff is a barrister at Wight Chambers Reed Elsevier (UK) Ltd 2007 Julian Samiloff considers whether Irish abortion law breaches human rights Miss D, aged 17, was pregnant and in the care of Ireland's social services, Health Service Executive (HSE). Following a routine hospital scan she discovered that the foetus was suffering from a fatal abnormality and she decided that she wanted an abortion. Although abortion is lawful in Ireland, it is legal only on the basis that in the absence of a termination the life of the mother will be put in jeopardy, and though a provision exists in the Irish constitution to allow for legislation on this issue none has thus far been enacted. The HSE, anticipating that D would leave Eire and go to the UK to get an abortion, asked the police to arrest D if she tried to leave the country and also asked the Irish passport office not to issue a passport. D challenged this action by judicial review. The HSE argued at first that it could not get involved in D's plan to terminate her pregnancy and also that by Ireland's constitution, Art 40.3.3, an unborn child has a right to life equal to that of the mother and the state undertakes to uphold and vindicate this right. Real And Substantial Risk Previously, in AG v X [1992] IESC 1, the Irish state obtained a court injunction preventing a 14year-old girl from leaving Eire and travelling to the UK to get an abortion. X had become pregnant as the result of rape. The Supreme Court ruled that the proper test to be applied in such cases was that it had to be established as a matter of probability that there would be a real and substantial risk to the life of the mother and not merely her health, and that such risk could only be avoided by a termination (see Art 40, s 3, sub-s 3 of the Eire constitution). Because X was at risk of suicide, her right to life took precedence over that of the foetus, and therefore she could lawfully terminate her pregnancy in Ireland. However, the court further held that women could be prevented from leaving Eire to seek terminations if their lives were not at risk. The court said that, despite the fundamental nature of the right to travel in a free society, when there was a serious conflict between the right of a mother of a foetus to travel and the right to life of the foetus, the right to life would take precedence. The court further stated that the state was obliged to do all that was reasonably possible having regard to the importance of preserving life, including being obligated to positively intervene to prevent the imminent destruction of life. This included obtaining an injunction directed to any person who would be seen to threaten the destruction of life. Therefore, a mother could be restrained from travelling abroad if she was threatening the destruction of the foetus. Grounds For Termination Following the case the constitution was amended and travelling abroad in such contexts became lawful. However, in A & B v C [1998] 1 IR 464 the court held that the constitutional amendment was intended to prevent injunctions against travel or having an abortion abroad, but a court of law, in considering the welfare of an Irish child in Ireland and considering whether on health grounds a termination of pregnancy was necessary, must confine itself to considering the

grounds for termination which would be lawful under the Irish constitution and could not make a direction permitting travel to other jurisdictions for termination not lawful in Eire. Fatal Abnormalities In an appeal to the European Court of Human Rights, D v Ireland (Application No 26499/02), a pregnant applicant argued that she was entitled to a lawful termination of pregnancy after her foetus was diagnosed with a lethal chromosomal anomaly. The Irish state argued that the applicant ought to have exhausted all domestic remedies first by applying to the Irish courts arguing: first, that the constitution did not apply to a foetus with a lethal anomaly; and second, that any court would not apply Art 40.3.3 of the Eire constitution given the particular rare and tragic conditions of the case. The Strasbourg court agreed with the argument and held that the applicant had not exhausted all domestic remedies. On this basis one is forced to question why D did not argue that the Eire constitution did not apply in her case because it does not apply to foetuses suffering fatal anomalies. If this argument were to be accepted the argument would inevitably lead to termination becoming lawful in Eire in cases where the foetus had fatal abnormalities. Travelling abroad would then become irrelevant. Taking a pragmatic approach and after some discussion and legal argument the HSE agreed that it would be in D's best interests to have an abortion if her mother agreed, D had counselling, D's decision was fully considered, and that the district courtthe court that granted the care order decided that permitting D to travel abroad was lawful. The district court, however, refused permission because it decided that there existed still an obligation to protect the life of the foetus, which therefore prevented the making of such an order. The High Court disagreed, holding that it
court to decide that Irish abortion law, including those parts of its constitution relating to abortion, is in breach of the European Convention on Human Rights.was not unlawful for D to travel abroad.

Though travelling abroad now seems an uncloseable door, the remaining issue is whether the amended constitution does or does not apply to foetuses with fatal abnormalities, and whether it is time for the Strasbourg

Journal of Criminal Law View whole of April Articles Of Shipwrecked Sailors... JoCL 70 2 (147) 1 April 2006 Of Shipwrecked Sailors, Unborn Children, Conjoined Twins and Hijacked AirplanesTaking Human Life and the Defence of NecessityTaking Human Life and the Defence of Necessity Michael Bohlander Professor of Law, Durham University; e-mail michael.bohlander@durham.ac.uk. Vathek Publishing 2006 Abstract Necessity is not a defence to murder. This principle has been repeated ever since R v Dudley and Stephens. Behind the arguments put forward in the debate lie the sanctity of life, the idea that one could not weigh one life against another, the question as to who should be the one to make that decision and that life as such was the highest good. But is that really true? Has English law not subscribed already to the idea that it may be permissible to take a human life in situations that are commonly classified as duress, duress of circumstances or necessity? This article traces the development of areas of law where necessity arguments and balancing exercises play a role in the decision about the taking of human life, but which are not usually looked at in depth when arguments about necessity are exchanged. Introduction Necessity is not a defence to murder. This principle has been repeated like a mantra ever since the times of R v Dudley and Stephens,1 the famous case of the shipwrecked sailors who cannibalised a young cabin boy because

they would allegedly all have died if they had not eaten one of their number. The same, according to R v Howe,2 applied to the defence of duress, which in its more modern guise of 'duress of circumstances' tends to be confused and mingled with the concept of necessity. Behind all the arguments that had raged in academic circles3 and sometimes in the courts, lay the sanctity of life, the idea that one could not weigh one life against another, the question as to who should be the one to make that decision and that life as such was the highest good. But is that really true? Has English law not subscribed already to the idea that it may be permissible to take a human life in situations that are commonly classified as duress, duress of circumstances, or necessity? This article traces the development particularly of areas of law where necessity arguments and balancing exercises play a role in the decision about the taking of human life, but which are not usually looked at in depth when arguments about necessity are exchanged. Owing to the intricacies of the problems involved, this article cannot but scratch the surface, and none of the underlying philosophical issues are new. What this article will do is take a wider look at legal decisions the English legislature and/or courts have already taken, novel situations arising out of recent history, and the consequences that may flow from them for the object of our study. Due to the complexity of the topic, it is not intended here to propose a solution, but merely add a voice to the concert of those who demand a rapid solution from the Government. We must begin by establishing some common ground so that the discourse in the following exposition will not suffer from conceptual misunderstandings. 1. Taking human life When we talk about weighing life against other values, we will leave the technical area of criminal black-letter law where there is a difference between unborn and born human beings. This distinction is based on historical reasons of offence classification and is artificial; it cannot hide the fundamental moral truth that in all these cases we talk about a human life that is at stake. Necessity arguments and balancing exercises are based on moral value judgments just as much as on legal grounds, as becomes clear in cases like Re A4 that will be looked at below.5 We will not get drawn, either, into the side issue of how we decide when life begins,6 because we will assume situations where life is unmistakably present. Otherwise there would be no weighing exercise because there would be nothing to weigh. If we reach a certain conclusion for allowing the taking of born or unborn life, then it stands to reason that normally this conclusion should be transferable to the other 'category' of human life. In other words, if we are allowed to kill an unborn human being for certain reasons, then we should be allowed to kill an independent human being for the same reasons. If an unborn child can be killed in an abortion because it will have serious defects at birth, it is only logical that a doctor or mother should also be able to take such a decision 10 minutes after the child has been born and the serious defects can undoubtedly be ascertained. In the first case there may be no offence at all, if all the other requirements of the abortion law have been followed, the second case would be murder with no possibility of escaping criminal liability and a mandatory life sentence under the current state of English law. The instinctive abhorrence we feel at this comparison is exactly thata matter of instinct. It is not a logical conclusion. Not to equate unborn life to independent life is one of the great fallacies which has created so many problems in the criminal law. If we must not kill a grown man who is seriously mentally handicapped and a burden to society, why should we be allowed to kill an unborn child for the same reasons? I hasten to add that this study is not meant to address the pros and cons of abortion and euthanasia, but it is necessary to point out this discrepancy in approach to human life at the beginning.

2. Prognostic uncertainty We will not investigate the factual issue of prognostic difficulty, i.e. the question of how a decision-maker will be able to know with sufficient certainty the factual foundation based on which a weighing exercise may become necessary. We are dealing with a problem of substantive law and thus must assume that the decision-maker and the court called upon to adjudge his7 decision have full insight into all the relevant facts. Otherwise there would merely be a preliminary debate about issues of prognostic probability and we would have to agree on a certain degree of certainty, which again would not impact in the end on the substantive question to be answered. 3. Prosecutorial discretion This article will not examine theoften too easily adoptedevasive argument about prosecutorial discretion. As is sometimes put forward in connection with the Zeebrugge ferry disaster or the mountaineers' cases, no right-minded prosecutor would ever open an investigation for murder against any of the people involved, be it the one who pushed the frightened man off the ladder so that the others could get out of the sinking ship, or the mountaineer who cut his partner off the rope. It may be that no prosecutor would charge anybody in these scenarios, but that again is not the question the answer to which we are after. What needs to be answered here is: could a prosecutor at all bring charges, or would he run the risk of flogging a dead horse because the judge might direct the jury to acquit on a submission of no case to answer under the Galbraith8 test? Finally, what would be the guidelines against which a

prosecutor is to exercise his discretion? Would these guidelines not themselves have to mirror the very questions that are so vexing in the substantive law? 4. The democracy problem The democracy problem under its headings of representative democracy and separation of powers vis--vis the danger of citizens disobeying the command of the law based on their individual moral choices, as well as judicial law-making in creating a defence of necessity, is in the final analysis not really relevant for the issues discussed here. It is a constitutional quandary the solution of which is of no help to the person who has to make a decision, before a court, government or parliament can reflect upon the matter. It is conceded that it is always preferable to have a clear and considered piece of legislation than to rely on judicial inventions that can by the very nature of the judicial process only occur on a case-by-case basis. It is also in principle undesirable that individuals are left to decide whether the law should apply to their actions or not.9 Yet the situations we are investigating often have the common feature that the written law may impose upon the citizen two opposing duties, without giving him sufficient guidance as to which one he should follow. There will also always be situations where people will face the dilemma to which Radbruch's10 formula tries to give an answer: when statutory law becomes incompatible with the requirements of natural justice 'to an intolerable degree', or where statutory law was obviously designed to negate 'the equality that is the core of all justice', then the statutory law must be disregarded in favour of the demands of natural justice. This formula was developed by Radbruch as an answer to the pre-World War II school of positivism in German legal theory, which for many scholars of Germany's legal history was a major influence in allowing Hitler to attain power by apparently 'legal' means. Even if the law is clear, its strict application in all cases regardless of the circumstances of the individual case may lead to intolerable results. 5. Necessity and duress of circumstances Necessity must be clearly distinguished from duress of circumstances.11 The latter is based on circumstantial pressure on the person who has to make a decision and the pressure must be so as to impel him into a certain act. Necessity is based on the problem of choice between values, protected interests, etc., where one of the defining features is that the prospective defendant is free to choose which course to take, whether to obey the letter of the law and do nothing and risk damage to all interests involved in the weighing exercise, or damage one and thus protect the other.12 Likewise, there may be conflicting duties and one cannot be followed without violating the otheras was the case in Re A.13 While many of these situations will occur in a state of emergency, emergency is not the defining factor, as becomes clear in the case of Re A. In connection with the democracy problem, courts and legislators will be more prepared to accept necessity-based disobedience to the letter of the law if the decision must be taken quickly. Imminent threat or pressure of any kind is therefore not a definitional element to necessity, but a restrictive criterion based on public policy.14 Necessity and duress of circumstances can overlap in emergency situations, but only factually, not conceptually. In the example of abortion because of a serious risk for the health of the mother, as will be discussed below, a doctor may have the necessary knowledge of the facts many weeks before the actual danger for the woman materialises. In a merely necessity-based model, he could take the decision to terminate the pregnancy as soon as he has sufficient certainty of the facts justifying that step, long before any imminent danger will have arisen. The development of necessity as a defence to taking life Dudley and Stephens outright. Lord Coleridge stated15 in his judgment: It is admitted boy was clearly murder that the deliberate killing As set out above, in Dudley and Stephens the court rejected the idea of a defence of necessity against a charge of murder of this, unless the killing can be justified by some well-recognised excuse admitted by the law. It is further admitted that there was in this case no such excuse, unless the killing was justified by what has been called necessity. But the temptation to the act which existed here was not what the law has ever called necessity. Nor is this to be regretted. Though law and morality are not the same, and though many things may be immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal consequence, and such divorce would follow if the temptation to murder in this case were to be held by law an absolute defence of it. It is not so. To preserve one's life is generally speaking, a duty, but it may be the plainest and the highest duty to sacrifice it. War is full of instances in which it is a man's duty not to live, but to die. It is not correct, therefore, to say that there is any absolute and unqualified necessity to preserve one's life. It is not needful to point out the awful danger of admitting the principle which has been contended for. Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? Is it to be strength, or intellect, or what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another's life to save his own. In this case the weakest, the youngest, the most unresisting was chosen. Was it more necessary to kill him than one of the grown men? The answer must be, No.

It is not suggested that in this particular case the 'deeds' were 'devilish'; but it is quite plain that such a principle, once admitted, might be made the legal cloke for unbridled passion and atrocious crime. There is no path safe for judges to tread but to ascertain the law to the best of their ability, and to declare it according to their judgment, and if in any case the law appears to be too severe on individuals, to leave it to the Sovereign to exercise that prerogative of mercy which the Constitution has entrusted to the hands fittest to dispense it. It must not be supposed that, in refusing to admit temptation to be an excuse for crime, it is forgotten how terrible the temptation was, how awful the suffering, how hard in such trials to keep the judgment straight and the conduct pure. We are often compelled to set up standards we cannot reach ourselves, and to lay down rules which we could not ourselves satisfy. But a man has no right to declare temptation to be an excuse, though he might himself have yielded to it, nor allow compassion for the criminal to change or weaken in any manner the legal definition of the crime. It is, therefore, our duty to declare that the prisoners' act in this case was wilful murder; that the facts as stated in the verdict are no legal justification of the homicide; and to say that, in our unanimous opinion, they are, upon this special verdict, guilty of murder. In so many words, there are the problems of the sanctity of life, of weighing identical values and the issue of the democracy problem, in the_shape of the reference to the 'legal definition of the crime' and the possibility of a royal pardonwhich was, in the end, given to the accused whose death sentences were commuted to six months' imprisonment. The ruling in Dudley and Stephens was affirmed in principle in 1987 in R v Howe,16 although that case strictly dealt with the defence of duress. Infant Life (Preservation) Act 1929 However, things were not to remain as simple as they may have looked in 1884. In 1929, the Infant Life (Preservation) Act was passed. Section 1 reads as follows: 1. Punishment for child destruction (1) Subject as hereinafter in this subsection provided, any person who, with intent to destroy the life of a child capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother, shall be guilty of felony, to wit, of child destruction, and shall be liable on conviction thereof on indictment to penal servitude for life: Provided that no person shall be found guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother. (2) For the purposes of this Act, evidence that a woman had at any material time been pregnant for a period of twenty-eight weeks or more shall be prima facie proof that she was at that time pregnant of a child capable of being born alive. This law authorises the taking of the life of a child up to the birth, when it will have an existence independent of the mother, if until that time the killing is done in good faith with the intention of saving the life of the mother. A necessity argument if ever there was one, and what is more the law itself gives more weight to one life than to another. Even if the child is capable of being born alive, i.e. has reached the necessary age in utero and does not suffer from clearly lethal defects, then killing it will not incur criminal liability if that is done to for the purpose of saving the mother's life. The law thus fully includes perfectly healthy children as long as they are in their mother's womb. In fact, on the face of it, the Act only requires the defendant to act in good faith 'for the purpose' of saving the life of the mother, i.e. even if the life was not actually in danger, a situation which would appear to fall in the category of honest mistake of fact. To repeat it, the argument that unborn children are not regarded as fully developed human beings within the meaning of the law of murder and that accordingly these laws cannot be brought into the equation, is a mere technical diversion and does not detract from the underlying fact that we are talking about taking a human life in order to save another; the act even speaks of 'destroying the life of a child'. Especially under the 1929 Act, the equivalence becomes clear, in that the punishment for child destruction is mandatory life imprisonment, the same as for murder. Abortion Act 1967 Yet the law did not stop there. In 1967, Parliament passed the Abortion Act, which in its present form states in ss 1 and 5: 1. Medical termination of pregnancy

(1) Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith (a) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or (b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or (c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or (d) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped. (2) In determining whether the continuance of a pregnancy would involve such risk of injury to health as is mentioned in paragraph (a) or (b) of subsection (1) of this section, account may be taken of the pregnant woman's actual or reasonably foreseeable environment. (4) Subsection (3) of this section, and so much of subsection (1) as relates to the opinion of two registered medical practitioners, shall not apply to the termination of a pregnancy by a registered medical practitioner in a case where he is of the opinion, formed in good faith, that the termination is immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman. 5. Supplementary provisions (1) No offence under the Infant Life (Preservation) Act 1929 shall be committed by a registered medical practitioner who terminates a pregnancy in accordance with the provisions of this Act. (2) For the purposes of the law relating to abortion, anything done with intent to procure a woman's miscarriage (or, in the case of a woman carrying more than one foetus, her miscarriage of any foetus) is unlawfully done unless authorised by section 1 of this Act and, in the case of a woman carrying more than one foetus, anything done with intent to procure her miscarriage of any foetus is authorised by that section if (a) the ground for termination of the pregnancy specified in subsection (1)(d) of that section applies in relation to any foetus and the thing is done for the purpose of procuring the miscarriage of that foetus, or (b) any of the other grounds for termination of the pregnancy specified in that section applies. The impact of this provision on the debate of the scope of the defence of necessity against a charge of murder cannot be overestimated. The law clearly allows killing an unborn child who is free of defects of any kind and capable of being born alive17 if the killing takes place before the end of the 24th week of the pregnancy for subs. (a) of s. 1 or up to the point of birth for s. 1(b)(d). But most importantly the killing is allowed for reasons that would normally not stand up to the value of a human life, namely the mere risk, albeit severe, of an impact on the physical or mental health of the woman or other children of her family,18 if that risk is greater on continuation of the pregnancy, or if the child were to be born with a serious handicap. In all these cases, killing is allowed for the protection of values that clearly rank below that of the value about to be destroyed. Re A19 But the imagination of lawyers with respect to whether unborn life ranks on the same level as that of born human beings need not be employed, because real life provides for harder cases, where the above-mentioned argument that an unborn child is not a human being within the meaning of the law of murder will not wash any more: Along came cases like Re A, the case of the conjoined twins Mary and Jodie, where the Court of Appeal allowed the killing of the one twin who was not capable of surviving on her own but whose organism would eventually kill both twins, so that her sister could survive. The court based its decision on a narrow application of necessity in medical cases, while one of the judges tried to raiseunconvincinglyan argument for a 'quasi-self-defence' justification. Brooke LJ held at the end of his speech:

I have considered very carefully the policy reasons for the decision in R v Dudley and Stephens, supported as it was by the House of Lords in R v Howe. These are, in short, that there were two insuperable objections to the proposition that necessity might be available as a defence for the Mignonette sailors. The first objection was evident in the court's questions: who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? The second objection was that to permit such a defence would mark an absolute divorce of law from morality. In my judgment, neither of these objections are dispositive of the present case. Mary is, sadly, self-designated for a very early death. Nobody can extend her life beyond a very short span. It is true that there are those who believe most sincerely that it would be an immoral act to save Jodie, if by saving Jodie one must end Mary's life before its brief allotted span is complete. For those who share this philosophy, the law, recently approved by Parliament, which permits abortion at any time up to the time of birth if the conditions set out in s 1(1)(d) of the Abortion Act 1967 are satisfied, is equally repugnant. But there are also those who believe with equal sincerity that it would be immoral not to assist Jodie if there is a good prospect that she might live a happy and fulfilled life if this operation is performed. The court is not equipped to choose between these competing philosophies. All that a court can say is that it is not at all obvious that this is the sort of clear-cut case, marking an absolute divorce from law and morality, which was of such concern to Lord Coleridge and his fellow judges. There are sound reasons for holding that the existence of an emergency in the normal sense of the word is not an essential prerequisite for the application of the doctrine of necessity. The principle is one of necessity, not emergency There are also sound reasons for holding that the threat which constitutes the harm to be avoided does not have to be equated with 'unjust aggression' None of the formulations of the doctrine of necessity which I have noted in this judgment make any such requirement: in this respect it is different from the doctrine of private defence. If a sacrificial separation operation on conjoined twins were to be permitted in circumstances like these, there need be no room for the concern felt by Sir James Stephen that people would be too ready to avail themselves of exceptions to the law which they might suppose to apply to their cases (at the risk of other people's lives). Such an operation is, and is always likely to be, an exceptionally rare event, and because the medical literature shows that it is an operation to be avoided at all costs in the neonatal stage, there will be in practically every case the opportunity for the doctors to place the relevant facts before a court for approval (or otherwise) before the operation is attempted. According to Sir James Stephen, there are three necessary requirements for the application of the doctrine of necessity: (i) the act is needed to avoid inevitable and irreparable evil; (ii) no more should be done than is reasonably necessary for the purpose to be achieved; and (iii) the evil inflicted must not be disproportionate to the evil avoided. Given that the principles of modern family law point irresistibly to the conclusion that the interests of Jodie must be preferred to the conflicting interests of Mary, I consider that all three of these requirements are satisfied in this case.20 Brooke LJ placed great emphasis on the fact that Mary was 'self-designated' for death. This is, of course, not true as she did not designate herself for death at all, but was born with a condition that would not allow her to live long. If at all, she had been designated by her creator or the genetic qualities of her parents to bear this burden, but to follow that up would carry the debate into deep theological, biological and philosophical waters. Although the court was at pains not to enter into a weighing exercise and studiously avoided the definition of which of the two lives was less or more worth living, there is no hiding the stark fact that for all the words to the contrary that is what they had to do and did. In the end, Mary was going to die anyway, and therefore on balance her claim to a short and unhappy life as a conjoined twin was outweighed by the chance of Jodie to a long and happy life as a separated twin. Mary's life was thus less worth protecting than Jodie's chance of a healthy life. The general rule on the law of murder remains, however, that even shortening a life that is going to end soon will be sufficiently causal for a charge of murder. But the court also recognised explicitly that necessity and emergency are two different things, and that while a case of necessity may arise in a situation of emergency, it need not be the case. Thus the court espoused the clear distinction between necessity as a choice based on well-reasoned arguments to support a balancing exercise, and duress of circumstances as an exclusion of the chance for well-reasoned decisions. What I hope this short foray into just a few historical developments has shown is that necessity may after all be a full defence to taking a human life under English law. Whether we call it murder or child destruction or abortion is more of a terminological than of a substantive nature. But modern history has presented us with even more difficult

scenarios, to which a satisfactory answer is still outstandingthose of terrorism-related responses involving the killing of human beings. New threats: 9/11 scenarios and problems of state intervention Almost to the day a year after Re A, the Twin Towers in New York City were destroyed by terrorists using two hijacked airplanes as flying bombs, apart from two others aimed at the Pentagon and possibly the Capitol or the White House. The US Air Force never got a chance to shoot any of the four planes down; indeed the fighters which had been scrambled over Washington were instructed that they had no clearance to shoot down an aircraft over the capital.21 This introduces a new facet to the problem, namely the parameters of state intervention in killing out of circumstances of necessity. Any order to shoot would have had to come, under normal wartime procedures, from the National Command Authority, i.e. the President and the Secretary of Defence.22 There appears to be no specific provision in the UK authorising such an act of internal defence against what is strictly speaking a criminal act23 of terrorism, not a military attack. There are likely to be standing orders, for example, to the Royal Air Force now, but these are not published. As far as the terrorists are concerned, had this taken place over English soil, shooting down the plane24 and thereby killing the terrorists would be a case of s. 3 of the Criminal Justice Act 1967, under the heading of the use of reasonable force for the prevention of crime. Given that s. 3 is a full defence to murder, killing the terrorists may in certain circumstances be reasonable. Not so for the passengers. They are not attacking or threatening anyone and are not breaking the law, so the only way their deaths could be 'justified' or 'excused' would be through a defence of necessity. Yet no one would seriously doubt that shooting down a plane with 50 passengers would be the right thing to do, if the plane was aimed at a busy shopping mall where thousands of people were going about their business, or indeed an office block with tens of thousands of employees, and if there was no chance of getting those people out in time or even warning them. However, the spirit of Dudley and Stephens comes back to haunt us: does it make a difference if the plane with 50 passengers was aimed at a hotel where 50 heads of state are holding a conference on globalisation? 25? 8?25 Who is to make that decision? Whose lives are worth more? One might even argue that no matter what happens on the ground, the lives of the passengers are already lost, because they will die in any event. They are, to borrow from Brooke LJ, 'self-designated' for death. They do no longer enter into the equation, there is nothing to weigh. Strictly speaking, there would not even be a case of necessity, although under the prevailing opinion shooting them down 10 minutes before the plane crashes would be a causal contribution to their death and could thus in theory be murder. Yet there is no end to complicating matters: what if the plane was already over densely inhabited territory, so that shooting it down would cause the death of the 50 passengers and necessarily the death of an unknown, but presumably much higher, number of other people on the ground? Let us assume, for argument's sake, that the number of victims at the target destination and at the place of shooting down the plane would be identical. Suddenly the lives of the passengers, if one did not want to take them out of the equation anyway, are not the only factor to be considered. But we can also construct examples, where the passengers remain in the equation: suppose the terrorists have kidnapped a plane from which they intend to drop a biological bomb on a big city, then fly away and land on an airport in a friendly country, where they will let the passengers go. They merely intend to use them as shields to prevent their plane from being attacked, and they tell the authorities precisely that. Here shooting down the plane would be the only cause of death for the passengers and a clear necessity judgment would have to be made. Or assume that terrorists are holding a high-ranking politician or other public figure hostage and demand the release from prison of a number of accomplices, or they will kill the hostage. Is the state under a duty to release the prisoners in order to save the life of the hostage, or is it justified to risk the life of the hostage because there are overriding interests to be considered? This question was, for example, answered in the second sense by the German Federal Constitutional Court in the famous Schleyer case in 1977.26 The court, which had been seised of an application for the equivalent of an interim mandatory order to the German Government to release the imprisoned terrorists, argued that although there was a constitutional duty of the state to protect life, it regarded human life as only one of an array of supreme values, not the supreme value as such. The court held that the Government also had a duty to the other citizens to protect them from harm, and that releasing hardened terrorists entailed the risk of them re-offending, as had happened before in the case of the Lorenz affair,27 and would make the behaviour of the Government predictable. After that affair, the German Government adopted a tough line in abduction cases, and its action in the Schleyer case and the hijacking of the Landshut plane to Mogadishu at the same time showed that new resolve, where the lives of the hostages were deliberately risked. The court accorded the Government a wide margin

of appreciation, while at the same time maintaining that there might be cases, where that margin would be reduced to zero. All these scenarios become even more vexing when we insert private individuals in the equation. What if it is not the Government who is acting to avert a catastrophe? Imagine the soldier who is on a training exercise in the field with live Stinger anti-aircraft missiles, but has no orders to shoot or maybe, much as the fighter pilots over Washington, has strict orders not to shoot, but sees the plane in question flying overhead within the reach of his missile. He is not threatened and may even be violating direct ordersmay he shoot nevertheless on his own decision? Examples like these show that there are limits to what the criminal law, and more to the point, the courts can do to help in setting up guidelines for human behaviour. What is necessary is a line that is as bright as possible in order to allow the citizen and the state to prepare for such ethical emergencies and guide their actions without the risk of becoming criminally liable. Leaving this to the courts can be equivalent to an abdication of responsibility28 and damage the public's trust in the clarity of the law. In this context, it may be helpful to look at other jurisdictions. Germany, for example, has tried to find an answer to such scenarios. On 15 January 2005 the German Luftsicherheitsgesetz, the Air Traffic Security Act, came into force as a response to situations that might require using the army or air force to shoot down attacking airliners.29 The German Home Secretary, Otto Schily, apparently was of the opinion that shooting down an airplane was only allowed if it was absolutely clear the passengers would die in any event, which means he had taken them out of the equation.30 The reason for the Minister's statement was that the German Federal President had signed his assent to the Act but advised the delegates of the Bundestag to seek a ruling from the Constitutional Court in Karlsruhe because he thought that the law allowed the Government to weigh life against life. The wording of the law itself in s._14(3) is unclear on the issue and would allow the Home Secretary to order the shooting down of a plane in both cases:31 (3) The direct use of weapons is only allowed if under the circumstances it must be assumed that the airplane will be used against the lives of human beings and that such use is the only means of averting that present danger.32 The law has been challenged before the Constitutional Court, the decision is outstanding at the time of writing; however, there is a wealth of literature on the topic.33 Conclusion What I hope this brief article has shown is that the general maxim that necessity is not a defence to murder can no longer be regarded as sacrosanct. It jars with common conceptions of balancing the lives of persons in distinct scenarios, as described above. Indeed, reduced to the underlying moral problem of necessity and the taking of human life, the law has already accepted that human life may have to yield to other, even lower-ranking interests and values. The dangers of modern terrorism and the use of innocent bystanders as shields or hostages, or the utter disregard for human life displayed by those who hijack passenger planes for suicide runs, make it imperative that the Government give directions to the police, the armed forces or the individual citizens as to what are the boundaries within which reactions to such threats may take place. In the course of such a policy review, it would be useful to revisit the law of murder and the defence of necessity under a broader remit. 1 2 (1884) 14 QBD 273. [1987] 1 AC 417.

3 See, e.g., only the following: K. Keywood, 'Detaining Mentally Disordered Patients Lacking Capacity: the Arbitrariness of Informal Detention and the Common Law Doctrine of Necessity' (2005) 13 Med Law Rev 108; I. Kugler, 'Necessity as a Justification in Re A (Children)' (2004) 68 JCL 440; E. Wicks, 'The Greater Good? Issues of Proportionality and Democracy in the Doctrine of Necessity as Applied in Re A' (2003) Common Law World Review 15; D. Burnet, Case Commentary: 'Conjoined Twins, Sanctity and Quality of Life, and Invention the Mother of Necessity, Re A (Conjoined Twins: Medical Treatment)' [2001] CFLQ 91; C. Elliott, 'Murder and Necessity following the Siamese Twins Litigation' (2001) 65 JCL 66, A. Brudner, 'A Theory of Necessity' [1987] 7 OJLS 338; S. Gardner, 'Necessity's Newest Inventions' (1991) 11 OJLS 125; S. Uniacke, 'Was Mary's Death Murder?' (2001) 9 Med Law Rev 9; R. Huxtable, 'Separation of the Conjoined Twins: Where Next for English Law?' [2002] Crim LR 459; S. Michalowski, 'Sanctity of Life: Are Some Lives More Sacred than Others?' (2002) 22 LS 377. 4 [2001] 2 WLR 480.

5 See, however, Wicks, above n. 3. The author states at IV. (ii): 'Although the law can ever be entirely separated from morality, moral acceptability is only a permissible consideration if it informs the law, not if it is serving to overrule it'. I find that a surprising statement to be made in the year 2003, with the Nazi regime and the dissolution

of the GDR behind us. Morality certainly would require each person to overrule the law if the law said that Jews must be killed because they are Jews, or if it required you to shoot at people trying to flee to West Germany. 6 The European Court of Human Rights has stated on this issue that there is no European consensus anyway, see Vo v France [2004] 2 FCR 577, 79 BMLR 71. 7 For the reason of crispness of expression, only the male pronoun has been used throughout and is meant, where appropriate, to include the female counterpart, too. 8 [1981] 1 WLR 1039.

9 Conceptually speaking it is not even certain, whether in a legal system that constitutionally allows the very existence of a common law as a stopgap where there is no legislation, there can be any violation of the principles of democracyunless one was prepared to argue that democracy as it is understood today excludes by definition any common law. Moreover, even if there are exact provisionsand none of them are ever so exact as not to allow for interpretationthe democracy problem comes back when courts must interpret them, e.g. in accordance with higher-ranking law. In fact, the UK Parliament itself recently imported that virus by passing the Human Rights Act 1998, which in my view is bound to acquire, in the long run, quasi-constitutional rank, and all other legislation, sovereignty of Parliament or not, will be measured against it; in cases of a declaration of incompatibility by the judiciary, the Government and Parliament will de facto be forced to do something about the incompatible provision. 10 Gustav Radbruch was a German law professor, who was born in 1878 and died in 1949.

11 See the seminal case of R v Pommell [1995] 2 Cr App Rep 607, where the Court of Appeal nonetheless used the two concepts interchangeably. 12 See on this also A. Simester and R. Sullivan, Criminal Law, Theory and Doctrine, 2nd edn (Hart Publishing: Oxford, 2004) 631 et seq. 13 The highly interesting and complex question of whether the availability of a necessity defence for the doctors and the parents to have Mary killed in order to save Jodie did not in fact create a duty of the doctors and parents to agree to and perform the separation, as a duty to act vis--vis Jodie in the context of liability for omissions, appears to have been seen only by Ward LJ at section IV, 6. of his judgment. The issues came up in a different guise in the follow-up decision on the failure of the Official Solicitor as guardian ad litem to appeal the judgment, in Re A [2001] Fam Law 100. This is a topic for a separate study and would lead too far in this context. 14 It should be added that contrary to the wide jurisdictional powers English courts enjoy, in countries based on the civil law tradition there may not be a basis for obtaining a judge's ex ante advisory opinion, and thus decisions will have to be taken by the actors alone. 15 16 (1884) 14 QBD 273 at 2868. [1987] 1 AC 417.

17 The 28 weeks in s. 1 of the 1929 Act are only a rebuttable presumption for the criterion of being capable of being born alive. 18 Oddly enough not the health of her husband.

19 [2000] HRLR 721. See for a thorough discussion of Siamese twins cases under German law, R. Merkel, 'An den Grenzen von Medizin, Ethik und Strafrecht: Die chirurgische Trennung sogenannter siamesischer Zwillinge' in C. Roxin and U. Schroth (eds), Medizinstrafrecht, 2nd edn (2001) 145 et seq. 20 [2000] HRLR 721 at 81516.

21 For an explicit description of the sequence of events see the Report of the 9/11 Commission, 1 et seq. available at www.gpoaccess.gov/911/, accessed 13 January 2006. 22 See the Report of the 9/11 Commission, above n. 21 at 17 and 37.

23 It would have made no difference if on 11 September 2001 the 19 hijackers had not stolen four civilian planes but 19 military aircraft and executed a military style attack with them. They were criminals, not military or even

'unlawful' enemy combatants. As such, had they been caught, they would not have been subject to the Geneva Conventions, but to the human rights protections guaranteed to all defendants in criminal cases. See on this the persuasive account by Philippe Sands, Lawless World, America and the Making and Breaking of Global Rules (Penguin: 2005) chs 7 and 9. 24 The destruction of the plane would surely have been justified by necessity or even as a collateral issue to the use of reasonable force against an instrument of attack. 25 Yet, do we doubt even for a moment that even if there were only the heads of state of the G8 present the plane would be shot down? 26 See Amtliche Sammlung der Entscheidungen des Bundesverfassungsgerichts (BVerfGE) vol. 46, 160.

27 Peter Lorenz had been the conservative candidate for the office of the Mayor of Berlin in 1975; three days before the elections he was abducted by the so-called 'Movement of the 2nd of June', who wanted to achieve the release of the imprisoned terrorists Horst Mahler, Verena Becker, Gabriele Krcher-Tiedemann, Ingrid Siepmann, Rolf Heiler and Rolf Pohle. Apart from Horst Mahler, who refused to be released in that exchange, all other prisoners were flown to Aden in the Yemen on 2 March 1975, and Lorenz was subsequently released on 4 March. 28 As was the case in the Law Commission's Draft Criminal Code, Law Com No. 177, vol. 2 (1989) 234.

29 See on the history of the Act, http://suche.bundestag.de/bundestagSuche/suche.jsp?intStart=1&q=Luftsicherheitsgesetz&x=8&y=5, accessed 13 January 2006. 30 See the report at www.bundestag.de/dasparlament/2005/04/themaderwoche/001.html, accessed 13 January 2006. 31 The full German text reads:

14 Einsatzmanahmen, Anordnungsbefugnis (1) Zur Verhinderung des Eintritts eines besonders schweren Unglcksfalles drfen die Streitkrfte im Luftraum Luftfahrzeuge abdrngen, zur Landung zwingen, den Einsatz von Waffengewalt androhen oder Warnschsse abgeben. (2) Von mehreren mglichen Manahmen ist diejenige auszuwhlen, die den Einzelnen und die Allgemeinheit voraussichtlich am wenigsten beeintrchtigt. Die Manahme darf nur so lange und so weit durchgefhrt werden, wie ihr Zweck es erfordert. Sie darf nicht zu einem Nachteil fhren, der zu dem erstrebten Erfolg erkennbar auer Verhltnis steht. (3) Die unmittelbare Einwirkung mit Waffengewalt ist nur zulssig, wenn nach den Umstnden davon auszugehen ist, dass das Luftfahrzeug gegen das Leben von Menschen eingesetzt werden soll, und sie das einzige Mittel zur Abwehr dieser gegenwrtigen Gefahr ist. (4) Die Manahme nach Absatz 3 kann nur der Bundesminister der Verteidigung oder im Vertretungsfall das zu seiner Vertretung berechtigte Mitglied der Bundesregierung anordnen. Im brigen kann der Bundesminister der Verteidigung den Inspekteur der Luftwaffe generell ermchtigen, Manahmen nach Absatz 1 anzuordnen. 32 Translation by the author.

33 U. Sittard and M. Ulbrich, 'Fortgeschrittenenklausurffentliches Recht: Das Luftsicherheitsgesetz', JuS 2005, 4326; J. Kersten, 'Die Ttung von Unbeteiligten', NVwZ 2005, 6613; W. Mitsch, 'Luftsicherheitsgesetz Die Antwort des Rechts auf den 11 September 2001', JR 2005, 2749; D. Khner, 'DVWG Rechtsforum: Terrorabwehr im Transport-und VerkehrswesenTagungsbericht', EuZW 2004, 4302; G. Krings, 'Sicherer Himmel per Gesetz?', NWVBl 2004, 24953; A. Meyer, 'Wirksamer Schutz des Luftverkehrs durch ein Luftsicherheitsgesetz?', ZRP 2004, 2037; S. Kaiser, 'Die Grenzen der SicherheitZum Entwurf eines Luftsicherheitsgesetzes', TranspR 2004, 3536; C. M. Burkiczak, 'Der praktische FallDas Luftsicherheitsgesetz', VR 2004, 37987; A. Sinn, 'Ttung Unschuldiger auf Grund 14 III Luftsicherheitsgesetzrechtmig?', NStZ 2004, 58593; M. Pawlik, ' 14 Abs. 3 des Luftsicherheitsgesetzesein Tabubruch?', JZ 2004, 104555; M. Baldus, 'Streitkrfteeinsatz zur Gefahrenabwehr im Luftraum', NVwZ 2004, 127885; H. Sattler, 'Terrorabwehr durch die Streitkrfte nicht ohne Grundgesetznderung', NVwZ 2004, 128691.

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Child and Family Law Quarterly View whole of Issue 1, March Reviews Review: Honouring Chil... [2005] CFLQ 127 1 March 2005 Review: Honouring Children: The Human Rights of the Child in Christian Perspective Catherine Shelley Doctoral Student and Barrister, Young Street Chambers, Manchester Kathleen Marshall and Paul Parvis St Andrew Press 421 pp, 17.99, paperback ISBN 0 7152 8010 1 Honouring Children is published by the Centre for Theology and Public Issues at Edinburgh University, and written by Kathleen Marshall, former director of the Scottish Child Law Centre, and Paul Parvis, church historian and New Testament theologian. The book's aim is to defend the universality of human rights, particularly those of children, and 'the legitimacy and usefulness of the concept' of rights against 'lingering concerns' that rights are 'shaping an increasingly individualistic society' and that children's rights may 'undermine the family and the authority of parents'. The authors address their arguments to 'reflective Christians', seeking to persuade those with reservations about the appropriateness of rights in families that human and children's rights are compatible with Christianity. The book also

aims 'to show that the promotion of the rights of children, is an effective way of promoting the Christian agenda'. The authors apply theology from Aquinas and the early church fathers, along with analysis of Scripture, to the issue of children's rights, focusing on theology which welcomes children, recognising their value as full human beings, made in the image of God. Besides demonstrating the compatibility of children's rights with Christianity, this is a defence of Christianity against those who focus on teaching and practice that has been less than helpful to children in advocating physical chastisement and the 'taming' of original sin. Conversely, the book aims to interest a wider audience of 'activists, policy makers and academics', seeking to counteract the impression given by the 'Christian right' that Christians oppose children's human rights, in particular. The work of Christian theologians and organisations in the development of human rights is outlined, along with the role of philosophy in the development of the Universal Declaration of Human Rights 1948 by reviewing the 1947, 1986 and 1998 philosophical consultations on human rights. This undermines the 'Christian right' opposition to human rights as secular constructions. Based on this review, the authors argue that, although there is philosophical disagreement about the basis or justification for human rights, there is, nonetheless, near universal acceptance of both human and children's rights. Both authors argue for the universality of rights as bases for moral and legal relationships between individuals, children, families and states. The Convention is cited as a striking example of universal minimum standards because of its ratification by all but the US and Somalia.1 Concerns addressed include those raised by academics like Alasdair McIntyre in After Virtue: A Study of Moral Theory,2 whose ideal of 'society based on community, virtue and duty', rather than rights, is challenged by arguing that in the legal and political fields, virtues are not robust enough, 'as concepts that can do things', and are built 'on an idealistic moral high ground' which, if applied instead of rights, may 'erode or destroy protection for vulnerable individuals and classes of people'. There is also fear that writings such as Sceptical Essays on Human Rights,3 edited by Campbell, Ewing and Tomkins, undermine the validity of rights. The authors also assess the concerns expressed by Christian and other religious constituencies, such as Saudi Arabia, through the formal reservations they have made when ratifying the UN Convention on the Rights of the Child 1989 (hereafter the Convention) and through their official periodic reports to the UN Committee on the Rights of the Child (hereafter the Committee), which monitors the Convention's implementation. These concerns are also expressed by American Christian groups, whose political influence in the Senate has blocked American ratification of the Convention. The authors cite the Center for Reclaiming America as an example, with arguments based on the Fifth Commandment that: 'Scripture is clear on the rights and responsibilities of parents and children for that reason those who seek to elevate the rights of children at the expense of parents are at war with God's original design and therefore with God himself'.4 The political resistance of such groups to the Convention is based on 'hostility to the United Nations' because of their suspicions of its alleged secular nature, of its aim to promote abortion and to impinge on national as well as family sovereignty and independence. Another commentator is quoted as saying: 'The intention of people who want to change the world is to gain control of other people's children'.5 The political strength of Christian groups has been seen in the recent US elections. The Convention The authors do not assume prior knowledge of the Convention, so chapter 2 outlines its history, development, text and principles in some detail, using a tri-partite analysis of children's rights as being for protection, provision and participation. The historical development of the Convention is outlined, detailing the addition of socio-economic and civil rights to protective rights, leading to a Convention in which the rights guaranteed, at least in principle, go beyond the civil and political rights of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. The authors' strong support for children's rights is borne out by their descriptive, rather than critical, approach. In reviewing the rights accorded to the child, the ideals of family life, respect for parental duties and responsibilities6 and the state's duty to support the family7 are emphasised, although the need for intervention by the State is mentioned 'where the child's rights are not met within the family'.8 The authors also emphasise that children are individuals, not just part of the family. Entitlement to health care9 and education10 are considered, along with civic rights such as identity, privacy and freedoms of expression, religion, association and access to information.11 These freedoms are identified by the authors as 'fundamental human rights'. Basic principles underlying substantive rights are reviewed, namely nondiscrimination (Article 2), the primary consideration of the child's best interests (Article 3) and the rights to life, survival and development (Article 6).

Article 12, the child's right to participate in matters affecting him and his right to be party to court or administrative proceedings, is also characterised as an underlying principle, not a substantive right. However, the authors emphasise that this is a right to be heard and 'contribute appropriately to the decision-making process', rather than make the decision. The decision-making process is portrayed as a consideration of the child's subjective views, along with 'an objective assessment of the child's interests'. The 'objective' view is presumably that of the parent or other adults. Reservations and reports Concerns of religiously motivated States are explored through analyses, which the authors refer to as case studies, based on reservations entered to the Convention and on dialogue with the Committee about their monitoring reports. Saudi Arabia is chosen as an example of an Islamic State and Roman Catholic positions are examined via responses to the Convention by the Holy See (a religious 'superpower', with no children within its borders) and Poland. The authors note Saudi Arabia's 'in principle' reservation to the Convention, in respect of Articles that are in conflict with Islamic law, and the Committee's response that the reservation fails to specify which Articles involve such conflict. Issues identified in the dialogue are the reservation concerning freedom of thought, conscience and religion (Article 14) and the issue of gender equality raised by the Committee in the light of the differential treatment of women in Saudi society, of Saudi girls in education and the failure to tackle domestic violence. The Holy See and Poland's reservations express concerns about the 'inalienable rights' of parents (Article 5) and the need to preserve parental authority over children's rights under Articles 1216.12 The authors also quote the Committee's challenge to gender inequality in the Holy See's reference to education as 'suitable to the particular destiny of the individuals, adapted to their ability, sex and national cultural traditions' and Poland's earlier school leaving age for girls than boys. Whereas the authors consider in detail13 the issue of parental guidance and control over children's freedoms of religion, thought, information and participation, rights which the authors describe as 'fundamental human rights', they do not explore the issues of gender equality raised by the Committee. Nor do the authors comment on the conflict within the Holy See's reference to education between Article 2 (principles of equality) and Article 30, which requires States to take account of the cultural traditions of children from ethnic minority communities. This lack of comment avoids drawing attention to gender issues,14 which could underline the fears of traditionalist States and the Christian Right about the way the Convention appears to challenge family values by allegedly adopting a feminist, liberal agenda. The final case studied is US Christian Right arguments, as seen in quotes from the Centre for Reclaiming America. Their opposition is characterised as stemming from political hostility towards the UN's alleged agenda to 'establish a world government based on secular or pagan values' and religious fears that children's rights threaten God-given parental rights, particularly around the politicised issues of abortion, sexuality and education.15 The authors challenge the argument that the Convention is a secular document by reference to the extensive support from religious organisations and States. They contrast the religious right's position with the explicit support for the Convention by a range of Protestant organisations and churches, including the World Council of Churches and both international and US Church governing bodies, supporting their arguments for both Christian approval of the Convention and its universality. The authors concede that some 'libertarian' approaches to children's rights16 may undermine parental authority, but argue that the Convention does not reflect these approaches. They acknowledge that there is scope for ambiguity about the interpretation of children's best interests and the balance of parental authority and children's rights, with implications for 'the stability of family life', but they do not concede that such ambiguities undermine universal application of the Convention. This is explored further in chapters 6 and 7. Philosophy Before this further exploration, the authors provide an overview and defence of the development of universal human rights discourse and theory. This distinguishes universally recognised moral rights from legal rights enforceable in domestic law, and 'mixed rights' declared by the international community and (in theory) universally recognised, but not enacted into States' law, like the Convention in UK law. A section on the historical development and philosophy of human rights emphasises the role of philosophical and spiritual perspectives in the drafting of the UN Declaration on Human Rights 1948 and subsequent developments. The authors' method is to use material from UNESCO sources written during development of the UN documents as illustrations of the diversity of understandings of human rights. This reflects continued concerns about rights versus

duties, and the tensions between individual rights and community expectations and between differing political ideologies, for example, capitalism versus communism and 'developing' versus 'developed' world perspectives. These tensions have broadened understandings of rights to encompass social and economic, as well as civil, rights. The authors also report discussions of whether rights include spirituality or teleology, consistent with the ultimate destiny of humankind. Several theories are discussed as justifications for rights, like having an interest in their exercise, as proposed by MacCormick,17 or based on needs. Arguments that rights require corresponding l= responsibilities are also considered. The authors are clear that this analysis is only valid if the right is not linked to the responsibility of the person claiming the right, as this would preclude children unable to exercise the accompanying responsibility, from holding rights, for example the right to be nurtured does not depend on a corresponding duty to be obedient. Natural law In considering justifications for rights, the authors argue that a key difference of opinion is whether rights derive from natural or positive law. Differing understandings of natural law are discussed, as inherent to human nature and/or the product of rational thought from observation of human nature. Positive law is seen as a human creation, impliedly more prone to relativism than natural law. It is also suggested that without a spiritual basis or teleology for rights, there is a greater risk of materialist or secular ends justifying the means, thereby leading to disregard for rights. In an overview of churches' attitudes to human rights, the authors suggest that these differences of opinion for justifying rights are irrelevant. The fact that declarations and conventions have been agreed means that rights have substance. It is suggested that the ontological or 'natural' rights approach is not inconsistent with a positive law approach, as both require elements of development in response to historical and cultural changes. However, the authors suggest that natural law guarantees greater protection from human rights abuses on the basis that rights are inherent to each human being because of 'natural' principles of equality. Yet 'natural law' in religious understandings of the world has led to failures to recognise the equality of some groups of people; ethnic minorities, women and children amongst them. The authors fail to recognise that 'natural' law, as a product of human construction, is often used to preserve power structures, for example patriarchy. Having traced various themes in the historical development of rights, based on differing understandings of their validity or justification, the authors concede that understandings of both human and children's rights are culturally and historically contingent. They quote the French philosopher Maritain, who was involved in the Philosophical Consultation of 1947, as reporting: 'Yes we agree about the rights but on condition that no one asks us why'.18 Acceptance of contingency undermines the argument that rights are universal. The near-unanimous signing of the Convention is cited as evidence of universal acceptance of children's rights, but if agreement is undermined by differing interpretations of what causes or constitutes harm to a child, there is no guaranteed standard of protection, and the contention that the Convention sets out basic minimum standards is illusory. As indicated above, the authors report the Committee's criticism of failures to guarantee gender equality. Yet they fail to explore the reasons for these departures from the Convention principles of equality. The reasons may be found in Catholic and Islamic understandings that gender equality is based on natural law. Since 1988 the Vatican has issued two Papal Encyclicals about the place of women in the world.19 A third is due soon, emphasising women's maternal vocation and specifically challenging understandings of gender as socially constructed, rather than a function of biology.20 Interpretations of Islam also see nature and God's revelation as a basis for law, taking similar approaches to the Vatican when discussing gender. Essentialist understandings of gender and family, as fixed by nature, have major consequences for children and parenthood in faith communities.21 Officially, religious traditions do not disagree with gender equality but interpret it as 'equal before God but complementary'. 'Natural' differences in roles are used to justify restrictions and prohibitions on women's freedoms of dress, association, occupation, education and family roles and expectations. Whether based on divine or natural law, such interpretations of the Convention undermine equality of opportunity as understood in modern liberal ideology. Those who drafted the Convention tend to assume that children's choices will coincide with parental guidance. The authors of Honouring Children acknowledge that reservations to Article 14 entered by many states leaves some children's rights to freedom of thought, conscience and religion unprotected. What is not explored is the way in which parental religious choice and guidance may have major implications for the exercise of other Convention

rights. Nor is there any exploration of the potential conflict within the Convention between rights of freedom of religion and conscience (Article 14) and access to minority community culture (Article 30). Girls raised in conservative Muslim, Christian or Orthodox Jewish communities will be subject to cultural rules about female modesty restricting freedom of association (Article 15), privacy (Article 16), speech (Article 12), dress and expression (Article 13) and access to information (Article 17). Educational opportunities may be limited by the family or state because of expectations about marriage and childcare, thus breaching Articles 28 and 29. A young woman who rejects the limitations of her culture may be seen as rejecting the faith and classed as an apostate, punishable by law in some states. At best, rejection of cultural limitations may lead to exclusion from family and community. The authors' suggestion that the basis for rights is irrelevant22 is contradicted by this tension. Article 14 aims to protect what the authors designate a 'basic human right', protecting the freedom and dignity of the child against their parents or the state. Article 30 aims to protect communities against the power of the state. However, if a minority community does not recognise religious freedom and the state privileges access to culture over religious freedom, the child's Article 14 rights and others may be denied. The authors' descriptive approach to the Convention means that this clash of ideology is not fully explored. The chapters on philosophy and the history of human rights conclude with a suggestion that rights are preferable to other constructions of moral norms, as they 'sharpen and toughen up' arguments based on appeals to duty, they place the focus on the weaker party in a relationship and 'give the Christian community a way of becoming involved in a global conversation and enterprise to extend protection to the needy and oppressed'. However, whether rights are 'sharper' or 'tougher' than duties or virtues is a matter of perception and depends on how rights, as opposed to other constructions, are enforced. The argument that rights necessarily protect weaker against stronger parties is undermined by the fact, quoted by the authors, that some of the first rights protected were middle-class trade and property freedoms. The conclusion, however, reflects the main emphasis of the book, which is to persuade sceptical Christians of the value of human rights and consistency with Christian teachings. The description of children as 'needy and oppressed' is consistent with the authors' conservative interpretation of the Convention, tending to see children as objects of adult protection and guidance, rather than citizens exercising their rights. The human rights of the child and Christian theology This section considers what it means for children to have rights, how children's rights differ from adult rights, and the importance of rights in children's lives. It is suggested that because of their centrality to family life, attitudes to children and therefore their rights, are more culturally conditioned than relationships of individuals with the state, which are the focus of most human rights. Thus questions about the universality of children's rights have greater significance because of the impact of cultural understandings. Arguments that the Convention 'was geared more to the situation of children in affluent, industrialised countries' are considered, but discounted on the basis of its near universal ratification and the fact that the text allows for some 'inevitable ambiguity'.23 Yet this ambiguity undermines the assertion that the Convention's protection is universal, along with the fact that the world's major superpower is not a signatory. Justifications for human rights are further examined in relation to children, particularly as regards needs and best interests. The authors note that determining a child's needs depends on understandings of the child and to what end their development is aimed. They note that this 'exploit[s] the degree of ambiguity that allowed the Convention to achieve almost universal ratification'; the fact that ambiguity undermines universal application is ignored. The authors identify parents as those with the right to shape their child's development, subject to the qualification on 'inalienability' of such rights proposed by Maritain, ie 'a person may, by his own actions, divest himself of the possibility of demanding that right with justice'.24 What causes forfeiture of 'inalienable' parental rights raises problems of where to draw the line between family autonomy and state intervention. Helpful illustrations are given to demonstrate inter-relationships between child, family and state, but the authors do not attempt to suggest where the lines between parental and state power should be drawn. They argue that 'the Convention provides a common starting point and language for interpretation and application of its standards for the protection and welfare of children', but the assumption is undermined by the recognition that there is a significant degree of ambiguity in how the Convention will be interpreted. The authors consider objections to children's rights based on alleged challenges to parental authority, autonomy and family privacy by discussing the views of Goldstein, Freud and Solnit,25 who are paraphrased by the authors as arguing that 'it is not in the interests of children to have the decisions and wisdom of parents second-guessed by the

state', including medical decisions as to whether a child's life is worth living. The authors quote Dickens,26 who suggests that Goldstein et al set the threshold too high, leaving children at risk of suffering. The authors also cite Dickens as proposing that parental rights 'exist to prepare children for adulthood and emerging autonomy', rather than just to protect from harm. They also quote Freeman,27 who recognises that state intervention risks making things worse, whilst nonetheless arguing that Goldstein's threshold is too high. Objections to children's rights based on lack of respect for political, religious and cultural sensitivities are challenged by reference to the fact that the Convention contains Articles respecting the child's culture. However, the authors assert that 'the fundamental principles [of the Convention] must be respected even at the expense of custom', although overcoming harmful traditional practices may take some time. They suggest that religious sensitivities are 'important qualifiers' but that customs and practices should be analysed 'to identify those that are truly required by religious belief and those that have attracted a religious mask'. No parameters are given for what 'the fundamental principles' are, nor what constitutes 'true' religious belief or what happens if religious belief allows what many would consider to be harmful treatment. The arguments of child 'libertarians' Holt and Farson28 are discussed in a comparison of children's with adults' rights. Libertarian understandings of children's rights are identified as fuelling scepticism about children's rights. The authors emphasise that recent work has drawn back from 'extreme' positions, which suggested that children should have rights to vote, take paid employment and so on. Their review of more recent writing in this area covers the work of Andrew Bainham29 who 'proposed a balance between liberation and paternalism, acknowledging the actual capacities of children which had previously been under-rated'. The issue is explored further by considering freedom of thought, conscience, religion and education. The authors emphasise the importance attached to religious freedoms by setting out a range of statements since the Declaration of the Rights of the Child 1924. However, it is noted that choice of religious education is legally the parent's, and not the child's right. They quote Hodgkin and Newell30 as saying: 'The Committee has as yet made little comment on the effective implementation of Article 14'. The authors acknowledge the Holy See's reservation to Article 14, but argue it is not a total ban on religious freedom and emphasise the fact that raising children in the faith is a religious duty. They do not go so far as Jane Fortin31 in suggesting that the domestic law should be changed so as to give young people the right to choose whether to attend religious education classes in school, rather than their parents. There is no consideration of ages at which young people are considered mature enough to exercise participation rights. Many writers on children's rights use developmental psychology as the basis for assessing competence.32 Surprisingly, the authors do not consider faith communities' own age-related rites, such as capacity for their First Communion or teenage faith commitments involved in Confirmation, Bar/Bat Mitzvah or mishaq in Islam. These could bring new insights to discussions about young peoples' capacity and another argument in favour of participation rights aimed at changing the religious viewpoints of those sceptical of children's rights. The authors continue their consideration of children's freedoms with a review of Articles covering education (Articles 28 and 29), association (Article 15) and privacy (Article 16), and the controversial issue of physical punishment. These issues are chosen because of their implications for parental authority and autonomy in terms of controlling or protecting the child. A number of case histories are outlined as illustrations of how children's rights to participate may be exercised in a positive way. Although links between education and Article 14 are recognised, the fact that choice of religion also impacts on other rights, both to protection and participation, is not. Yet the impact of religious choice may influence children's ability to exercise other rights, and differing constructions of what constitutes the child's welfare. Restrictions on the exercise of rights that may be limited by 'natural law' understandings of gender, as discussed above, are a case in point. The authors do not consider recent case-law illustrating such dilemmas, as their approach focuses on implementation of the Convention at international level. However, they do quote seventeenth-century cases in which parental choice of religion was interfered with dramatically by the Privy Council removing children thought to be at risk from harmful religion.33 Modern cases, featuring applications for the judicial authorisation of blood transfusions for Jehovah's Witnesses and of circumcision, demonstrate the impact of religious choice on a wider range of welfare matters than those discussed by the authors.34 Such applications arise from parental disputes about the practice and expression of religion, demonstrating limits to parental religious choice. However, a recent decision by Baron J,35 formally about circumcision, but considering the wider impact of religious upbringing, effectively endorsed the child's right to choose their religion when old enough to do so. The decision was that a child of mixed Muslim and Jain parentage should not be circumcised until puberty, giving him the right to decide whether he wanted to participate more fully in the Muslim community. At the time of the decision the child, aged 10, was found not to be

able to make an informed choice. The judge commented (in the final para [83]) that the fact he had experience of both traditions gave him 'the best of both worlds' and a better position from which to choose when older. Theology The final chapters consider theologies of childhood, challenging objections by those who view children's rights as incompatible with Christianity. The focus is on the traditional theologies and scripture, considered by conservative Christians to be the most persuasive sources. The argument that children's rights are unbiblical is challenged by analysis of Biblical texts about children, emphasising Christ's concern for children as requiring protection and as revealers of God's truth. Historical teachings about parental authority and childhood obedience are also examined, emphasising that even extreme expectations of obedience qualified parental autonomy and if parental demands were immoral or contravened God's will.36 Another conservative objection to rights in family and community relationships is that they are confrontational and individualistic, contributing to family breakdown. The authors argue that whilst rights may lead to confrontation, they do not cause the breakdown. They consider these issues further through the work of Stanley Hauerwas.37 He argues that 'the child' can only be seen in the context of the 'presuppositions of some community'; parenting is to 'care for children in a manner appropriate to making them full participants in your community '. He argues that norms are shaped only in the context of particular communities and cannot be universal. The authors point out that Hauerwas' vision isolates communities from each other. This is true but overlooks the point that differences in implementation of the Convention arise because of different histories that shape understandings within different communities. Article 14 illustrates this ideological diversity. Modern societies frame religious belief and thought as matters of personal choice. Societies operating from theocratic understandings cannot conceive of religion as open to choice, as it shapes their life on earth and is a matter of eternal salvation. The authors also consider powerful metaphors for parenting in the theology of St John Chrysostom and St Irenaus of Lyon, shaping, chiselling and creating children, revealing the image of God in which the child is made. They ask whether children are 'merely passive recipients' of their parents' chiselling or active contributors 'to shaping their own destiny?' This pinpoints the ideological difference between those who raise children to conform to specific community expectations, and those who see children as developing their own identity in society. Different understandings of humanity, as illustrated by the discussions of gender, above, indicate disagreement about interpretation of the Convention in significant areas. Whilst there may be universal acceptance of the Convention's wording, different understandings of those words have implications for the protection of children's rights in practice. The authors' assertion that underlying differences do not matter is unsustainable when the consequences of differing interpretations are considered. This does not mean that the search for common normative rights, visions of social justice and children's welfare should be abandoned; it also needs to be pursued at domestic not just international level. The multi-cultural make-up of many societies shows that cultural and religious differences are not limited to states' boundaries. The diversity of understandings of children and their welfare calls for recognition and engagement. In the UK, not all parties in court proceedings accept western secular understandings of childhood; some may appeal to religious precepts instead. Protection of children's rights across cultural divides requires more sophisticated recognition of religious and legal conflicts in specific contexts, including gender versus culture and parents' versus children's choices. Religious and cultural diversity are important in a free society, but sensitive handling is needed to ensure that children are not deprived of protection because cultural identity is privileged over other needs. Honouring Children is an interesting dialogue between legal and religious perspectives on children's rights; it is the start of a longer conversation. 1 The recently recognised East Timor has also yet to sign.

2 (Duckworth, 1985). MacIntyre argues that there is no such essential moral quality or claim as a human right and that society would function better if human virtues rather than human rights were cultivated as a basis for moral discussion and organisation. 3 (Oxford University Press, 2001). Ewing et al also question the validity of rights, but on the basis that they do not go far enough to recognise wider social and economic rights, which have implications for sharing of community resources, as opposed to civil rights which can be limited without resources. 4 www.leaderu.com/issues/fabric/chap16.html.

5 H. Dykxhoorn, quoted in J. Woodward, 'UN quietly wages war on religion' Calgary Herald 11 August 2001. Other organisations referred to by the authors are Concerned Women for America in C. Hurlbert, 'UN Convention on the Rights of the Child: a treaty to undermine the family', September 2001; R. Karolis, 'The Convention on the Rights of the Child: the making of a deception', which can be found at www.biblebelievers.org.au/right1.htm October 2001 and H. Richman, 'UN Child Rights Treaty' on www.pahomeschoolers.com/untreaty.html. Traer, 'Fights over the rights of the child': www.geocities.com/Athens/Parthenon/7185/Ratification. 6 7 8 9 10 11 Articles 5 and 9. Article 18. Article 19. Article 24. Article 29. Articles 7, 8, 12, 16, 14, 15 and 13 respectively.

12 Mention of the child's duty of obedience to parents, as set out in the Polish Family and Guardianship Code, highlights the adult-centred approach of such reservations. 13 14 In Chapters 6 and 7. Considered further below.

15 See D. E. Buss, 'The Christian Right and the International Rights of the Child', chapter 14 of J. Bridgeman, Feminist Perspectives on Child Law (Cavendish Publishing, 2000) and op cit, nn 3 and 4. 16 For example R. Farson, Birthrights (Harmondsworth, 1978); J. Holt, Escape from Childhood (Penguin, 1975).

17 D. N. MacCormick, 'Rights in legislation' in E. Hacker and J. Raz, Law, Morality and Society: Essays in Honour of H. L. A. Hart (Clarendon Press, 1977). 18 19 20 J. Maritain, 'Introduction' in UNESCO, Human Rights (UNESCO, 1949), at pp 917. Mulieris Dignitatem (1988) and Ordinatio Sacerdotalis (1994). Guardian, 31 July 2004.

21 Esposito, Muslim Family Law (Pearl and Menski, 1998); Mulieris Dignitatem, op cit, n 20; D. Novak, Natural Law and Judaism (Cambridge University Press, 1998). 22 See above.

23 R. McKeon, 'The Philosophic bases and material circumstances of the rights of man' in Human Rights, op cit, n 18, at pp 3546. 24 J. Maritain, op cit, n 18, at p 15.

25 J. A. Goldstein, A. Freud, and A. J. Solnit, Before the Best Interests of the Child (Burnett Books, 1980); J. A. Goldstein, A. Freud and A. J. Solnit, The Best Interests of the Child: The Least Detrimental Alternative (Free Press, 1998). 26 27 28 29 B. M. Dickens, 'The Modern Function and Limits of Parental Rights' (1981) Law Quarterly Review 97. M. D. A. Freeman, The rights and wrongs of children (Pinter Press, 1983). R. Farson and J. Holt, op cit, n 17. Children, Parents and the State (Sweet and Maxwell, 1988).

30 R. Hodgkin and P. Newell, Implementation Handbook for the Convention on the Rights of the Child (UNICEF, 2002). 31 32 J. Fortin, Children's Rights and the Developing Law (Butterworths, 2004), at chapter 11. Ibid; B. Franklin, The New Handbook of Children's Rights (Routledge, 2002).

33 The children of Scott of Raeburn, as 'infected with the error of Quakerism' and the Marquis of Huntly, whose parents were 'popishly inclined'. They do not quote the case of Shelley v Westbrooke (1817) Jac 266, whose children were removed because of his atheism. 34 Re Carrol (An Infant) [1931] 1 KB 317; J v C [1970] AC 668 parental right to choose religion of fostered or adopted child; Re B and G (Minors) (Custody) [1985] FLR 134; Hewison v Hewison [1977] Fam 207; Re R (A Minor) (Residence: Religion) [1993] 2 FLR 163 Plymouth Brethren decisions making custody/residence orders against parents wanting to raise the child in religious sects; Re E (A Minor) (Wardship: Blood Transfusion) [1993] 1 FLR 386; Re L (Medical Treatment: Gillick Competency) [1998] 2 FLR 810; Re R (A Minor: Blood Transfusion) [1993] 2 FLR 757 all decisions about Jehovah's Witnesses and blood transfusion; Prince v Massachusetts 321 US 158 Jehovah's Witnesses delivering prosiletysing leaflets seen as breach of child labour law; Re A (Conjoined Twins: Medical Treatment) [2001] 1 FLR 1 a case of conjoined twins in which the Roman Catholic Archbishop of Westminster intervened with theology about preservation of human life; Re C (A Minor) (Wardship: Medical Treatment) [1990] Fam 26 Jewish parents asking the doctors to keep alive a very ill baby; Re J (Specific Issue Order: Muslim Upbringing and Circumcision) [1999] 2 FLR 678; Re S (Change of Names: Cultural Factors) [2001] 2 FLR 1005. The mother's Roman Catholic views in the case of Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security [1986] AC 112 were also significant, although not dealt with specifically in the judgment; and in education, R (Begum) v Headteacher and Governors of Denbigh High School [2004] EWHC 1389 (Admin), [2004] ELR 374 which dealt with exclusion for wearing the Jilbab; R v Department for Education and Skills ex parte Talmud Torah Machzikei Haddass School Trust (12 April 1985) The Times restricted religious curriculum; and R (Williamson) v Department for Education and Skills [2001] EWHC Admin 960, [2002] 1 FLR 493: 'Christian' 'right' to corporal punishment. 35 Re S (Specific Issue Order: Religion: Circumcision) [2004] EWHC 1282 (Fam), [2005] 1 FLR 236.

36 Based on research comparing views of a range of Christian writers in M. Bunge (ed), The Child in Christian Thought (Eerdmans, 2001). 37 A Community of Character, Toward a Constructive Christian Social Ethic (University of Notre Dame Press, 1981). The author's examples are drawn from Orthodox Judaism.

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International Journal of Constitutional Law View whole of October Articles The structure of funda... ICon 7 4 (619) 1 October 2009 The structure of fundamental rights and the European Court of Human Rights The structure of fundamental rights Janneke Gerards Professor of Constitutional and Administrative Law, University of Leiden. Email: j.h.gerards@law.leidenuniv.nl Hanneke Senden Ph.D. candidate, Faculty of Law, University of Leiden. Email: h.c.k.senden@law.leidenuniv.nl Oxford University Press 2009 An important aspect of the structure of fundamental rights is the bifurcation between the definition of scope and the review of justification. Although this bifurcation is of great importance both to the division of the burden of proof and to the use of such tools as the doctrine of the margin of appreciation, it appears that the European Court of Human Rights does not always take it seriously. The Court often fails to address issues of definition or merges the two elements into a single test. This paper highlights some of the problematic consequences of the Court's current approach; in the end, this approach may hamper the effectiveness of the European Convention on Human Rights and limit the protection offered to individual citizens. A more structured approach toward the scope and definition of Convention rights may help to solve or avoid these problems. CONSTITUTIONAL LAW 1. Introduction As a newly established, supranational court deciding on human rights in a highly diverse and ever-widening Council of Europe, the European Court of Human Rights (ECtHR) finds itself in a difficult position. Over the last sixty years, the Court has had to create a set of argumentation techniques and a judicial discourse that would be acceptable to all the Council's states parties and would be compatible with a variety of legal systems and legal traditions. It has had to navigate carefully between the aim of the European Convention on Human Rights (ECHR)the effective protection of fundamental rightsand the need to respect national traditions and sensitivities. It has had to thread its way, as well, between the need to protect individuals against fundamental rights violations and the need to provide sufficient clarity as to the general scope and meaning of the Convention. In general, the ECtHR has performed admirably in steering a middle course among these conflicting needs and obligations.1 Nonetheless, the Court's approach to argumentation reveals shortcomings that might be considered harmful both to the protection of fundamental rights in national legal systems and the Convention system itself. In particular, the Court's approach to the structure of fundamental rights is ambiguous and confusing. In many classic understandings of fundamental rights, a distinction is made between two different elements: the element of the definition of the scope of fundamental rights, on the one hand, and the element of justification or limitation, on the other. This seemingly theoretical distinction, which we further explain and elaborate on in section 2 of this paper, has several significant consequences. For example, if hate speech is defined as a form of expression that is protected by the freedom of expression, it clearly comes within the scope of article 10 of the European Convention. This means that restrictions of hate speech, such as imposing a penalty on someone for distributing racist flyers, must be justified by the government in accordance with the limitation clause of the second paragraph of article 10. As a consequence, the ECtHR is competent to examine the reasonableness of the national justification and to give a binding judgment on the matter. By contrast, if freedom of expression were defined more narrowly, cases of hate speech might fall outside the scope of article 10. That would mean that there would be no need, under article 10 2, to justify a penalty imposed because of hate speech and that an individual found guilty of hate speech would have no standing in Strasbourg.

The conceptual distinction between scope and justification is thus of great importance to the application of the European Convention on Human Rights. The definition of the scope of fundamental rights determines whether a justification must be advanced and whether the Court is competent to examine the reasonableness of the justification. Unsurprisingly, therefore, the bifurcation between definition and justification is clearly reflected in many Convention provisions. Many, if not most, Convention articles contain two or more different paragraphs, the first paragraph stating the right at issue and the second containing the possibilities for limitation or justification. Particularly well-known in this regard are articles 8 through 11 of the Convention; however, examples may also be found in article 2 (right to life) and article 4 of Protocol No. 2 (freedom of movement). It might be expected from this that the European Court would pay close attention to the distinction. Indeed, the Court usually seems to apply a bifurcated approach, often even using different headings to indicate the various stages of its review.2 Nonetheless, it appears that the Court does not take the bifurcation as seriously as it should. In many cases it either ignores the first, definitional stage (or confines itself merely to noting the applicability of the Convention)3 or merges the two stages of fundamental rights review into a single test.4 In this paper, we will highlight some of the problematic consequences of the ECtHR's approach to the structure of fundamental rights. It is important to do so, since the way the Court deals with the structure of fundamental rights strongly influences the interpretation and application of the Convention by national courts. Structural faults and deficits thus may be multiplied in national cases that never reach Strasbourg. In the end, this may hamper the effectiveness of the Convention system and limit the protection offered to individual citizens. To support this argument, we will first discuss a number of theoretical aspects of the distinction between definition and application (section 2). In section 3, we will provide an overview of the case law of the Court in which it either pays little or no attention to the scope of the right at stake or else merges the stages of definition and justification into a single test. In section 4, we will argue that this case law has a number of problematic consequences as regards the clarity of the Court's case law (4.2), the division of the burden of proof (4.3), and the use of the margin of appreciation doctrine (4.4). Finally, we will submit that a more structured approach toward the scope and definition of Convention rights may help to avoid or solve these problems (section 5). As a preliminary to this paper it is important to note that we will focus on Convention rights that are not absolute in character. Some of the rights contained in the Convention, such as article 3 (the prohibition of torture) or article 7 (nulla poene sine lege priori), are nonderogable or can be limited only in the rarest of circumstances. The need for the definition of the scope of protection of such provisions is of great importance, since no justification or balancing operation is possible once an interference with these rights has been established. The debate surrounding nonderogable rights and the hidden possibilities for limitation of these rights is very different from the debate regarding the structure of judicial review of interferences with nonabsolute rights. This renders the case law about nonderogable rights less material from the perspective chosen in this paper. For that reason, this case law will not be discussed. 2. The structure of fundamental rightsTheoretical issues 2.1. The need to distinguish different stages of review According to many legal scholars and judges, it is important, almost self-evident to distinguish between at least two elements or stages of review in cases focused on derogable fundamental rights.5 First, the body of facts presented by an individual applicant must establish that an interference with an expressly protected right has occurred.6 A prima facie case of infringement of a fundamental right is established thereby. Such a prima facie case of infringement usually does not suffice, by itself, to support the decision that the interference constitutes a breach or a violation of a fundamental right. This would be true only if fundamental rights were considered to be absolute in character, which means that they would provide full and unlimited protection against all government interference as soon as they apply. It is generally accepted, however, that limitations of fundamental rights can be justified by convincing and important general interests or by the need to protect a conflicting individual right.7 A definitive conclusion about the alleged violation can be reached only when the soundness of the justification adduced by the government has been scrutinized. Although this two-part structure of fundamental rights is widely recognized, its importance for judicial review is sometimes questioned. This is especially true with respect to the European Convention on Human Rights.8 In his important book about the Convention, Steven Greer has stated that the Court has the ultimate constitutional responsibility for determining what each right means. [W]hether this process is described as 'defining' vague rights more precisely, 'determining their scope', or 'balancing' one right against the other, matters less than the recognition that there is no scope for genuine domestic discretion concerning how the rights themselves should be understood.9 In a similar fashion, Franz Matscher and George Letsas generally have classified such diverse argumentative methods as teleological interpretation, margin of appreciation, and proportionality review as

methods of interpretation of the Convention.10 If this perspective is taken, the distinction between definition and application does not really matter, nor is there any need to distinguish between classic argumentation techniques concerning the definition of rights (such as textual and teleological interpretation) and techniques that are mainly used to examine the justification for an interference (such as proportionality review and the margin of appreciation doctrine). Interpretation of the Convention is thus regarded as a conglomerate of judicial decision making where only the final result counts.11 The doctrinal approach toward the European Convention taken by authors such as Steven Greer, George Letsas, and Franz Matscher may be contrasted with the classical constitutional rights doctrine that has developed in countries such as the Netherlands, Germany, and the United States. In the United States, for example, David Faigman has demonstrated that the distinction between the definition of the scope of rights and the possibilities for justification is deeply embedded in the constitutional system, even though it is not always respected by the Supreme Court.12 Similarly, the bifurcation is clearly visible in German constitutional doctrine, where German legal theorists such as Robert Alexy have argued that it is, structurally, an essential part of all fundamental constitutional rights.13 A number of reasons have been advanced for distinguishing between definition of scope and examination of justification. Faigman has put particular weight on the respective values guiding the courts in the stages of definition of scope and of justification. In his view, when defining fundamental rights, the guiding values should come from the constitution per se.14 The value of constitutional protection of fundamental rights is that these rights and liberties are placed beyond the reach of majority forces, such as the legislature. The constitution operates as a bulwark against majority tyranny.15 When defining the scope of a fundamental right the courts, therefore, should be guided only by the text and aims of the constitution, not by general interests as defined by the legislature.16 By contrast, when applying fundamental rights to individual cases and scrutinizing the justification advanced in defense of an interference, Faigman argues that the courts must be guided by values coming from the majoritarian forces.17 The reason for this is that the counter-majoritarian difficulty (that is, the constitutional problem created by a nonelected court being authorized to strike down or correct democratically legitimized measures) imparts a presumptive validity to state action.18 Whereas the courts must place the constitution in the forefront when defining individual rights, they have to step back when scrutinizing the limitation of these rights so as to respect the primacy of the legislature. Alexy has grounded his argument for distinguishing between definition and application in more structural considerations. In Alexy's view, fundamental rights provisions typically have a double aspect, since they couple rules and principles.19 The rule is the actual right as protected by the fundamental rights provisions, such as everyone has the right to freedom of expression. This formulation of the right would be a complete rule if it were limitless or nonderogable, because it would then be applicable without any need for the right to be balanced against any other norm or interest.20 Moreover, the right would then have a rule-like character since it would enable each case to be solved by a simple form of subsumption.21 However, Alexy proceeds to show that almost no limitless fundamental rights exist in practice, and that express or implicit limitation clauses call, usually, for a balance to be struck between the fundamental right at stake and one or more competing general interests. To that extent fundamental rights typically have the character of principles. In this argument, it is inadequate to conceive of constitutional rights norms purely as rules or purely as principles.22 Because of the difference in character of both aspects of fundamental rights, Alexy submits that it is necessary to distinguish carefully between the rule-like element and the principle-like element. We may add to this that the two distinct stages of review call for different judicial methods to be applied, precisely because of their difference in character. When examining whether a given set of facts comes within the scope of the freedom of expression, a court may apply the classic methods of interpretation of rules (such as textual and structural interpretation), while it must apply the typical methods of balancing in the context of scrutinizing the justification.23 For this reason, the distinction between scope and justification is of great importance. 2.2. The importance of the definitional stageWide or narrow definition of fundamental rights? Although the theoretical arguments discussed in section 2.1 seem to demonstrate that there is good reason to take the distinction between scope and justification seriously, something more may be said about the need for the definition of rights. Even if it is agreed that it is necessary to distinguish carefully between defining the terms of a fundamental right and examining the reasons advanced in justification of an interference with the right, an important question arises concerning how courts should proceed when defining the scope of certain notions central to fundamental rights, such as expression, religion, or private life. After all, such concepts can be defined either rather broadly (encompassing a range of individual interests that might vary from the right not to be subject to unannounced nighttime searches to the right to walk one's dog on a nearby field) or rather narrowly (limiting the scope of the right to what is considered its core).24

A variety of reasons have been adduced in support of a narrow definition of fundamental rights. It has been argued, for example, that a broad interpretation of fundamental rights would disable the legislature in favor of the courts, which would be empowered, in many cases, to strike down unfavorable legislation that might interfere with individual rights.25 In addition, the warning has been issued that a wide-ranging interpretation of fundamental rights could result in a flood of cases about fundamental rights and, thus, in an undesirable fundamental rights-alisation and constitutionalization of society.26 Such constitutionalization would not only be problematic from the perspective of judicial caseload but it could also have the effect of giving more importance and influence to the courts. Especially when a wide scope given to rights could be combined with a broad interpretation of the limits of the right, it would be up to the courts to decide on the reasonableness of practically any action taken by the state.27 The ensuing judicialization of the legal system might be considered a threat to classic balances of power. The call for a narrow definition of fundamental rights has taken on particular relevance in the context in which the ECtHR hands down its judgments. If the widest possible interpretation of fundamental rights were chosen by this Court, it would have to examine national justifications and limitations in nearly any case brought before it.28 This would not only be highly problematic because of the Court's enormous caseload but it would also put great pressure on the Court's already complex relationship with the national authorities. According to article 1 of the Convention, the latter have the primary responsibility to protect and respect fundamental rights.29 The Court is called on to intervene only when it is clear that the national authorities have failed to live up to their responsibilities and have shown an obvious lack of respect for fundamental rights. As a result of the specific supranational situation, the Court has a doubly complicated constitutional position.30 Just as national (constitutional) courts do, it must deal with the countermajoritarian difficulty, which means that it must respect the democratic legitimacy of national legislative measures. In addition, it owes respect to the sovereignty of nation-states31a respect more easily accorded if a narrow definition of fundamental rights is chosen. A narrow definition also means that national governments will not be asked to defend decisions and legislative acts that have only a tangential impact on the rights protected by the Convention. In this way, the Court need consider itself competent only to decide issues that truly concern fundamental rights and over which the exercise of supranational power would be appropriate. Although a narrow definition of fundamental rights seems desirable for these reasons, often it has been stressed, as well, that a broad definition would be preferable. Aside from the general argument that the desire for effective protection of fundamental rights warrants a generous definition of such rights,32 the argument has been made that a narrow definition could cause major problems with regard to the structural and conceptual distinction between scope and justification. A narrow definition of the scope of fundamental rights might too easily invite a balancing of interests and of the elements of application, all of which could be introduced in the first, definitional stage of review.33 This risk has been stressed, in particular, by Alexy, who has supported the argument by the example of an artist who wants to paint on a busy intersection.34 A broad reading of the right to freedom of artistic expression clearly suggests that the artist's right is protected by the relevant provision. It is hardly to be denied, after all, that painting (even if it is done on a busy intersection) is an artistic activity. By contrast, a narrow interpretation of the freedom of expression could mean that only those forms of artistic expression are covered that do not cause a threat to traffic. The definition of the right is then made conditional on the governmental interest that is served by limiting the right to freedom of expression (that is, in the interest of guaranteeing traffic safety), which means that the question of limitation or justification is made part of the determination of the scope of the right.35 Evidently, such an approach does not do justice to the important differences between definition and application or limitation that have been explained above.36 For that reason, Alexy has rejected the narrow approach in favor of giving the widest possible scope to fundamental rights.37 It must be stressed, however, that the need to distinguish between scope and justification does not demand the widest possible definitions of fundamental rights, nor does a narrow definition of fundamental rights necessitate the introduction of elements of justification at the stage of definition. It is possible to use the classic methods of constitutional interpretation (textual, historical, teleological or purposive, structural or systematic) to exclude certain claims from the scope of protection of fundamental rights without resorting to balancing or without referring to specific governmental interests.38 It can be reasoned, for example, on the basis of teleological arguments, that pure hate speech has nothing to do with the kind of rights protected by the ECHR and does not fit in with the general aims of the Convention. No actual balancing exercise is required if notions such as expression or private life are defined with reference to the text of the Convention or with reference to its underlying principles and guiding values. After all, no concrete juxtaposition of individual interests against public or general interests is apparent if it is stated that, in light of the underlying goals of the Convention, hate speech cannot be regarded as protected speech under the Convention.39 This is different from the example of the artist painting on a busy road junction, where such a juxtaposition is visible indeed, albeit rather covertly. The painter's activity is considered not to constitute a form of artistic expression because of the need to protect traffic safety, not because of limitations inherent in the text of the Convention, its drafting history, or its underlying aims. This means that a clear and concrete public interest is

covertly balanced against the freedom of expression; such balancing is a judicial activity that is only in its proper place in the second stage of the review. Judicial determination of scope as a matter of interpretation by means of classic canons of interpretation can thus be distinguished from application or examination of justification. This means that it is not necessary to resort to the widest possible interpretation of fundamental rights in order to safeguard structurally correct judicial review. 2.3. Conclusion We have explained, in this section, that it is desirable for theoretical reasons that the ECtHR make an effort to distinguish carefully between the definition of the scope of rights and the examination of the justification for an interference with those rights. However, this does not automatically mean that the widest definition of rights should be given. The stage of the definition of scope would become rather empty if all individual interests, however far removed from the core of the right in question, were covered by the Convention. Instead, the determination of the scope of fundamental rights must be taken seriously so as to avoid having the Court become overburdened with cases that have little to do with fundamental rights. The challenge for the Court is to pay sufficient attention to the definition of the rights contained in the Convention, without confusing elements of pure definition and elements of application (such as balancing of interests). In our view, the Court, thus far, has not truly met this challenge, as we will endeavor to show in the next section. 3. The structure of fundamental rights and the Strasbourg Court's case law 3.1. Introduction Now that the theoretical perspective has been outlined, it is important to see where the Court's approach presently falls short. There are different types of cases in which it can be seen that the Court does not take the bifurcation (between scope and justification) particularly seriously. The purpose of this section is to discuss some examples that represent the Court's various approaches. Three types of cases will be discussed. First, there is a range of cases in which the Court does not address or ignores the first, definitional stage. In the second sort of cases the Court does pay some attention to the stage of definition, though it does so in such a summary way that it can hardly be considered a proper discussion of the definition of the right in question. The final type of case is one where the Court confuses or merges the first and second stage, taking both stages together in a single test. 3.2. Cases in which the ECtHR does not address the issue of definition of rights In the first set of cases, the Court acknowledges that there is an issue in the definitional stage that should be addressed; however, the Court, in the end, fails or refuses to go into the matter. The case of Molka v. Poland40 provides an illustration of this approach. In this case, the Court paved the way for an answer to the question whether a positive obligation existed, though it explicitly refused to answer that question. The litigation concerned a man in a wheelchair who had been unable to vote, since the polling station was not accessible to the disabled. The question was whether the failure to provide appropriate access to the polling station constituted a breach of article 8 of the Convention. After reiterating some precedents the Court continued as follows: Having regard to the above considerations, the Court does not rule out the possibility that, in circumstances such as those in the present case, a sufficient link would exist to attract the protection of Article 8. However, the Court does not find it necessary finally to determine the applicability of the Article in the present case since, for the reasons which follow, the application is in any event inadmissible on other grounds.41 The Court thus recalled existing principles developed in previous cases, though it failed to apply them to the new situation presented by the applicant. The vague indication that the Court would not rule out the possibility that the applicant's situation falls within the scope of article 8 is not helpful in providing clarity. The individual case might be solved; nonetheless, the Court's decision leaves the reader, at least, with the rather unsatisfactory feeling that no clear answer has been given to the question whether the applicant had a right protected under article 8. A somewhat similar approach has been adopted by the Court in Maurice v. France.42 This case concerned a matter of wrongful birth. The applicants claimed that the state did not protect, sufficiently, the interests of the family; it failed, they asserted, to provide them with a remedy and compensation enabling them to cope with the special burden of a child's disability. After reiterating some very general considerations on the concept of positive obligations, the margin of appreciation, and the subsidiary position of the Court, the Court acknowledged that it had to address the applicability of article 8. Subsequently, however, the Court refused to answer that question and concluded: [T]he Court does not consider it necessary in the present case to determine that issue since, even supposing that Article 8 may be considered applicable, it considers that the situation complained of by the applicants did not constitute a breach of that provision.43 Without answering the question of applicability of article 8, the Court thus proceeded on an assumption of applicability. It is unclear how the Grand Chamber can decide, convincingly, whether the limitation of a certain Convention right was legitimate when the scope of the Convention right has not been determined at all. Merely

supposing or assuming that an article is applicable cannot take the place of paying proper attention to the definition stage; to proceed so is far too indefinite. The scope of a right provides an indication of the type of limitations that might be allowed. Moreover, it is necessary to determine the obligations for the respondent state before one can actually decide whether they have been violated. Thus, it would have been necessary to discuss the scope of a provision in order to provide, in this particular situation, a convincing and coherent answer to the problem posed by the case at hand. Within this first set of cases, in which the Court either does not address or ignores the first stage, a closely related range of cases can be distinguished, where a similar approach has been taken by the Court. In these cases, the Court tends to indicate that the applicability of a Convention right is not clear-cut; in other words, it is unclear whether the situation comes within the scope of the provision invoked. In these cases, the Court concludes, however, that the applicability has not been disputed, and, therefore, it is not necessary to discuss the scope of the right in question. An example of this type of case is presented by Elli Poluhas Ddsbo v. Sweden.44 The applicant in this case claimed that the refusal of the Swedish authorities to permit her to move the remains of her deceased husband to a family grave resulted in a breach of article 8. The Court stated that not every involvement with burials constituted an interference with article 8, yet it continued, surprisingly, with the following considerations: In the present case, the Government have not disputed that the refusal to allow the removal of the urn involved an interference with the applicant's private life. The Court does not consider it necessary to determine whether such a removal involves the notions family life or private life cited in Article 8 of the Convention, but will proceed on the assumption that there has been an interference, within the meaning of Article 8 1 of the Convention.45 It seems startling that the Court openly acknowledges that a case may raise questions on the scope of article 8, but, given the positions of the parties, refuses to answer that question. In this type of case, just as in the cases discussed above, the Court finally decides the case purely on the assumption that article 8 is applicable. In the case of Laskey, Jaggard and Brown v. United Kingdom,46 concerning the conviction of three men for consensual homosexual sadomasochistic activities, the Court even more explicitly expressed its doubts as to whether the situation was covered by the scope of article 8: The Court observes that not every sexual activity carried out behind closed doors necessarily falls within the scope of Article 8. [I]t may thus be open to question whether the sexual activities of the applicants fell entirely within the notion of private life in the particular circumstances of the case. However, since this point has not been disputed by those appearing before it, the Court sees no reason to examine it of its own motion in the present case. Assuming, therefore, that the prosecution and conviction of the applicants amounted to an interference with their private life, the question arises whether such an interference was necessary in a democratic society within the meaning of the second paragraph of Article 8.47 The Court thus openly doubted whether the activity complained of fell within the scope of article 8, yet it did not address this issue in any more detail because the government did not raise the matter. A particularly problematic aspect of this approach is related to the fact that the definition of a Convention article determines whether the Court has jurisdiction to decide the case.48 For that reason, this type of question should not be left solely to the position and arguments of the parties. Important procedural aspects should be addressed by the Court ex officio, which means that it should always address the question of whether article 8 is applicable to this type of situation in order to determine its own competence to deal with the case. This is even more relevant when the Court expressly doubts whether a certain case falls within the scope of one of the Convention rights. 3.3. Cases in which the ECtHR does not explain why the Convention is applicable The second set of cases is related to the type just described. In these cases, the Court does accept that the case falls within the scope of the Convention article, but it fails to explain why. The examples that will be discussed hereinafter all involve article 10, the freedom of expression. This is the main area where the Court has adopted this approach, probably due to the very broad scope of the term freedom of expression. Even if a term has a broad scope, the Court should still explain why a case falls within it. If the Court consistently fails to answer that question, a notion such as freedom of expression becomes void of any substance, and it makes it more difficult in cases of doubt to determine whether a certain situation is covered by this notion. The following examples illustrate the Court's approach and demonstrate that some substantial explanation and interpretation by the Court can be helpful in understanding the scope of article 10 of the Convention. In the case of Vajnai v. Hungary,49 the applicant had worn a red star on his jacket during a demonstration. He was convicted for wearing this button, and a relatively light criminal sanction was imposed. In its judgment, the Court immediately jumped to examine the necessity for the interference by the government, thereby implying that wearing

a certain button automatically engages protection under the freedom of expression. Precisely why wearing a button, or other forms of symbolic speech, constitute a protected form of expression, therefore, remains unclearthe Court did not address that question at all. A similar approach is seen in the case of Vereinigung Bildender Knstler v. Austria.50 At issue was the exhibition of an obscene painting in which, among others, a politician was visibly depicted. Without addressing the question whether all forms of artistic expression or satire come within the scope of article 10, the Court considered whether the interference was legitimate. According to the dissenting opinion of Judge Loukis Loucaides, it would have been at least appropriate for the Court to discuss this aspect of the case. While Judge Loucaides somewhat confused the first and second stage as well (he did not really make a distinction between defining the scope of article 10 and its application to the facts of the case), he clearly disputed the assumption by the Court that every painting constitutes a protected form of artistic expression. He revealed, thereby, the need for the Court to have dealt with this aspect of the case. It would have been enlightening if the ECtHR had used the opportunity to justify the implicit conclusion in both cases that the situations were covered by article 10. The case of Perrin v. United Kingdom51 dealt with the conviction of the applicant for obscene publications on a Web site. By referring to a single precedent, that is, the case of Mller v. Switzerland,52 the Court determined that the conviction constituted an interference with article 10. This case presents a proper example of the dangers of brief references to precedents without any further explanation. First of all, the reference was incorrect, since the case mentioned concerned a complaint under article 6 of the Convention. The Court clearly intended to refer to a different case with a similar name, namely, Mller et al. v. Switzerland.53 Furthermore, the situations differ in important aspects, most significantly, with regard to the type of expression. Mller et al. dealt with obscene paintings, that is, a form of artistic expression, while in Perrin the expression at issue consisted of obscene publications on a Web site without any claim to artistic elements.54 For the development of the interpretation of the right to freedom of expression, it would be informative if the Court indicated on the basis of which element it considered the precedent applicable. That way, the meaning of freedom of expression would become clearer by explaining what the decisive elements are for the Court in considering article 10 applicable in a certain case. The Court, however, hardly paid attention to the applicability phase and simply invoked Mller et al. to justify the applicability of article 10. It should be clear, by now, in this second type of case, that the Court fails to provide a sufficient explanation as to why the situation at hand falls within the scope of the right in question. In some cases, this determination occurs by simply omitting the definition stage; in others, it is effected by such cursory reasoning that, in effect, the stage of definition seems to have been ignored to nearly the same extent as in the first type of case. 3.4. Cases in which the ECtHR merges the first and second stages of fundamental rights review The third and final type of case is one in which the Court confuses or merges the first and second stages. These are mainly cases on positive obligations, such as Christine Goodwin v. United Kingdom55 and Hatton v. United Kingdom.56 The case of Christine Goodwin marked the end of a line of cases in which, for over a decade, transsexuals had tried to obtain the right to legal recognition of their change of gender.57 In all of these cases, the applicants claimed that the authorities failed to respect their private life by not allowing their gender change to be implemented in the register of births, which meant that, for legal purposes, they retained the gender they had had before the operation. The question in these cases, basically, was whether the time was ripe to impose a positive obligation on states to ensure legal recognition of gender change. In trying to answer that question, the Court in Christine Goodwin mixed the discussion of the meaning and essence of article 8elements typical of the first, definitional stagewith references to typical elements of the second stage, namely, the margin of appreciation and the fair balance test. The Grand Chamber concluded that there was no longer a fair balance between the individual interest in having the gender change legally recognized and the public interest in maintaining the current system. Therefore, the matter no longer fell within the margin of appreciation of the states. What the Court seems to have done in this case is to incorporate a balancing exercise into the definition of the scope of article 8 in relation to transsexuals. The Court defined the positive obligation under article 8 so as to ensure legal recognition of gender change by weighing the public hardship against the individual hardship. This weighing of interests is an exercise that is characteristic of the second phase, in which the Court tries to establish whether a certain interference is necessary in a democratic society.58 From a theoretical perspective, however, it is strange to conclude that the existence of a fundamental right depends on public interestssuch interests are only relevant within the context of the justification of a limitation of fundamental rights.59 This confusing approach was also adopted in Hatton v. United Kingdom.60 In this case, the applicants complained about sleep disturbance as a result of night flights at Heathrow Airport. In the applicants' view the national authorities were under a positive obligation to ensure that their rights under article 8 would not be violated. The

Grand Chamber acknowledged that there is no explicit right to a clean and quiet environment in article 8 but held that, in case of aircraft noise, an issue may arise under article 8.61 Without answering the question whether article 8 was applicable to the case at hand, the Court recalled its subsidiary position and claimed that the state enjoyed a wide margin of appreciation in these cases.62 It also emphasized that it had to assess the policy decisions by the government: The Court considers that in a case such as the present one, involving state decisions affecting environmental issues, there are two aspects to the inquiry which may be carried out by the Court. First, the Court may assess the substantive merits of the government's decision, to ensure that it is compatible with Article 8. Secondly, it may scrutinise the decision-making process to ensure that due weight has been accorded to the interests of the individual. In relation to the substantive aspect, the Court has held that the State must be allowed a wide margin of appreciation.63 As these considerations show, the Court in this case did not emphasize that it needed, first, to consider the applicability of article 8. Leaving that question unanswered, it only discussed whether article 8 had been violated and focused on achieving a fair balance between the governmental policy decisions and the individual interest. The conclusions are limited to this specific case, since the Court confined itself to the particular circumstances of the case and did not address the more abstract question of whether a right to a clean and quiet environment could be read into article 8. Thus the judgment does little to clarify the proper interpretation of article 8.64 3.5. Conclusion It has become clear, by now, that the Court in its adjudicative approach to fundamental rights cases does not always pay attention to the bifurcation between the definition of scope and the examination of justification. In the first and second type of cases, the problem is that the Court does not address the definition stage properly. In these cases it tries to answer the question whether a limitation to a Convention right is justified without adequately defining the right. In the third type of cases, the Court determines the scope of the Convention right by including public interests and other elements typical of the application stage. This case-based approach thus puts a strong emphasis on the socalled second stage and, thereby, on the specifics of individual cases. As examples from its case law have shown, the Court's approach differs from the theoretical approach discussed in section 2. Does this give rise to negative consequences or specific problems? The following section will address this question. 4. Problematic consequences of the Strasbourg Court's approach 4.1. Introduction The Strasbourg Court is a special court in many respects. In principle, and from a purely legal perspective, the Court must be regarded as a supranational court. The legal status of the Convention in each of the states parties depends on their respective constitutional systems and legislative choices.65 In addition, even though states parties have recognized the Court's power to give binding judgments on individual complaints or interstate applications, each judgment is legally binding only for the state named in the case.66 Although there is some legal debate regarding the erga omnes effect, the actual legal effect of Strasbourg case law is limited to the concrete circumstances of each case.67 In practice, however, the status of the Court's case law reaches far beyond the individual case decided. The Court has, by now, created an impressive body of case law, in which the rights contained in the Convention are interpreted and applied in an authoritative manner and which are regarded, generally, as authoritative.68 Several scholars have even argued that the Court may now be characterized as a constitutional or, at least, a semiconstitutional court.69 This classification is of great importance. The characterization of a supranational court as a constitutional court has an immediate, complicating effect on the dialogue with national constitutional courts.70 The new constitutional court may be regarded as a rival court, and the natural reaction of the national constitutional court may be to resist any disputable judgments the newcomer hands down.71 In addition, the Court is not organically embedded in national constitutional systems. Rather, it has been imposed upon states parties as an alien body that may be difficult to incorporate into existing legal structures and traditions. It is, therefore, not surprising when national legal systems have difficulties coping with judgments handed down by the Court. In this context, the Court may be able to maintain its important supervisory position only if the national courts continue to accept its judgments as authoritative explanations of the Convention.72 For that reason, the Court will have to hand down clear judgments that are understandable for the national authorities and provide convincing interpretations of the text of the Convention.73 This is true not only with regard to the application of fundamental rights in individual cases but also in connection with the development and use of argumentation strategies and procedural methods. If insufficient guidance is given in this respect, the states may be inclined to follow their own

paths.74 In the end this may harm the supervisory and constitutional position of the Court, and it may hamper the effective and uniform protection of the rights contained in the Convention. In our view, the approach taken by the Court with respect to the bifurcation between the definition of scope and the examination of the justification for an interference falls short of the dual need to provide guidance and to interpret the Convention in an authoritative manner. In this section, we will elaborate on this statement by discussing three problematic consequences of the Court's approach. First, we will argue that, on a substantive level, the case-based approach of the Court and the lack of attention it pays to the definition of fundamental rights is undesirable, because it allows the Court to hide behind the specific circumstances of the case and to avoid having to make structural decisions on the scope of a Convention right (section 4.2). Second, we submit that the confusion of the two stages of review creates uncertainty regarding the allocation of the burden of proof, both at the level of the Strasbourg Court and at the national level (section 4.3). Third, and finally, we find that the lack of attention to the bifurcation between scope and justification causes problems in connection with the margin of appreciation doctrine (section 4.4). 4.2. Consequences for the scope of fundamental rights As seen in section 3, the ECtHR places much emphasis on the second application-and-justification stage, much less on the definition stage. The heavy reliance on justification results in a case-based approach in which the bifurcation is not always properly respected.75 This can affect the soundness of the Court's reasoning, which has been shown by the examples discussed in section 3. This section will focus on the problematic consequences of this approach, not only for national courts and authorities but for Strasbourg itself. The Court's approach as it has been outlined in section 3 is strongly influenced by the special position of the ECtHR. In sections 1 and 4.1, we have already made reference to the Court's supranational character and to the need for it to earn and continue to hold its specific position in the European legal landscape. The Court must search, constantly, for a balance between, on the one hand, its subsidiary position vis--vis the member states and, on the other, its aim to interpret the Convention and provide effective protection to individuals. This is a difficult position, especially since the confidence of the member states in the Court matters a great deal to the effectiveness of the judgments of the Court.76 In this context, the Court's case-based approach is understandable indeed. The focus on the facts of the case placed before it allows the Court to take incremental steps in specific contexts rather than dramatic leaps in the dark.77 This does not mean that the Court has no interest at all in adopting general conclusions or interpretations in individual cases; however, it appears reluctant to reach conclusions that expressly go beyond the case at hand.78 The special position of the Court might also explain why the Court does not always respect the bifurcation between definition and justification. Its current approach allows the Court to focus on the specifics of each individual case and, as it were, to hide behind them.79 Paying proper attention to the definition stage might, in some cases, require the Court to make structural decisions, while these can be avoided or, at least, be left implicit by focusing on the individual case.80 The possibility of avoiding these choices allows the Court to take a modest position in the constitutional landscape and to maintain, carefully, the balance that has been described above. It enables the Court to take gradual steps and not to force itself upon all member states. The downside to this approach is that it affects the semi-constitutional or guiding function of the Court. National courts and authorities are frequently left in doubt about the precise scope and meaning of the Convention and often must give their own interpretation to the Convention provisions. After all, in current Court practice, frequently, the scope of rights is determined by taking into account elements that are highly case-specific, which makes it more difficult to deduce general or abstract conclusions from the precise elements of the case. The effect of this approach is not only that national authorities do not receive enough guidance; the approach of the Court also sets a bad example for judicial decision making on the level of the states. Unfortunately, inspiring the national authorities with its approach can also work against Strasbourg. Member states can use the same case-based approach to evade their Convention obligations. If the Court strongly focuses on the characteristics of the individual case, then national authorities can also focus on these characteristics to escape Convention obligations they do not want to abide by. This provides states with an excuse to say that the particular situations they are dealing with are to be distinguished from the case law of the Court and, in their view, do not fall within the scope of the Convention. Such a development might frustrate the implementation and effectiveness of the ECHR. In the end, and as a result, even more cases might find their way to Strasbourg, which would put still more pressure on the already overburdened Court. The national authorities can be provided with more guidance if the Court pays more attention to the bifurcation. The definition stage will then be separated from the justification stage, which ensures that application to the facts of the case will be concentrated in the second phase. Defining the scope of the right on its own merits will provide national authorities with more indications as to how to interpret the Convention. More transparency in the choices made by

Strasbourg could surely enhance the implementation of the Convention at national level. That would be beneficial both on an abstract level andin the endon the level of the individual applicant. If the understanding of the Convention is improved at national level this might have the result of fewer individuals finding their way to Strasbourg. Indeed, the current number of applications and, particularly, the fact that about 60 percent of these applications are repetitive may be considered an indication that the national states are in need of more guidance from Strasbourg.81 Would this change of approach upset the balance the Court is trying to maintain? Probably not, since the bifurcated approach would just divide the different roles of the Court between the different stages. In the definition stage, the Court can guide member states on the proper interpretation of the Convention, while national differences and the subsidiary position could play a more prominent role at the justification stage. The emphasis on the bifurcation would thus still enable the Court to maintain the balance. 4.3. Consequences for the burden of proof One of the most important arguments in favor of the bifurcation in fundamental rights cases is that it ensures a fair division of the burden of proof.82 In the first or definition stage, the applicant must demonstrate that the complaint concerns a fundamental right and that it actually comes within the scope of that right.83 The applicant must take this first step in order to overcome the presumption of the validity of state action.84 If the applicant succeeds, a prima facie case of an infringement of the Convention is established.85 As a consequence of this, the burden shifts to the government in the second or application stage; the state must then refute the assumption of a Convention violation by proving that the interference was justified.86 Before going into the question of whether the organization of the burden of proof before the Strasbourg Court corresponds to this view, it is necessary to explain some theoretical notions that may help to understand the case law approach of the European Court. In the literature, a distinction is made between two concepts of the burden of proof.87 The burden of proof is a term that is employed, generally, to refer to the burden of producing evidence.88 It means that the party bearing this burden first must produce evidence supporting its claim. The second element of the burden of proof is regularly referred to as the burden of persuasion.89 According to Tobias Thienel, this means that if the factual contentions of the party bearing the burden of proof are not in the end proved to the appropriate standard, that party will lose on the relevant point.90 In the view of Faigman this meaning of the burden of proof is used to describe the allocation of the responsibility of demonstrating issues of constitutional concern between the parties.91 Rdiger Wolfrum approaches both concepts differently and refers to two different stages in the burden of proof.92 First, he states that the production phase is concerned with who should produce evidence.93 The second phase is the assessment phase, in which the party bearing the burden of proof will lose if the court is not convinced that the assertions have been proven.94 Although the descriptions differ, the bottom line of all of these distinctions is the same; there is one element that deals with the burden of producing evidence, and another that deals with the consequences of failure to prove a certain claim. In proceedings before the ECtHR, the burden of proof or the burden of producing evidence does not play a significant role in the sense that it is not placed strictly on either party.95 An explanation for this may be found in the nature of the proceedings before the Court. The complaints in Strasbourg always concern state action or the lack thereof. As a result, certain kinds of evidence might be impossible for an individual to obtain, because they are exclusively in the hands of the government.96 If the Court were to rely strongly on the burden of producing evidence this would weaken the position of the individual applicant. The Court, therefore, examines all material, whether it originates from the Commission, the Parties or other sources, and, if necessary, obtains material proprio motu.97 The burden of persuasion, by contrast, does play an important role in Strasbourg proceedings.98 It is not an issue on which the Court has expressed itself explicitly,99 although it may be inferred from its case law that the responsibility for failing to show the applicability of the Convention or a failure to show that an interference has occurred clearly lies with the applicant.100 On the other hand, a failure to show that an interference is warranted by a pressing social need is the responsibility of the respondent government.101 It seems beyond doubt that the burden of persuasion lies with the applicant to show the applicability of the Convention. The burden of persuasion on the state seems to depend on the type of right concerned, or, in the words of Thienel, it depends on the logical relationship of the human right at issue and the limitations provided for it in the Convention.102 Within the range of cases pertaining to articles 8 through 11, the burden of persuasion is usually placed on the respondent state.103 It is in the context of the division of the burden of persuasionbetween applicant and respondent statethat the lack of respect for the bifurcation can have negative consequences. The burden of persuasion is closely connected to the division between the first and second stages discussed in this paper. The presumption of the legality of state action results in the burden of persuasion being placed on the applicant in the first stage, which means that the applicant must prove that the provision is applicable and that there

has been an interference.104 In the second stage, in line with the text of provisions 8 through 11 in the Convention, the state is obliged to prove the justification for the interference. In section 3, it has been shown that the Court often either ignores or insufficiently deals with the definition stage or that it mixes the two stages. Due to the connection between the structure of Convention rights and the burden of persuasion, these approaches affect the latter as well. Without properly addressing both stages, the allocation of the burden of persuasion is muddled, and it becomes unclear who should bear this burden. This state of affairs also constitutes a problem from the perspective of the guiding role of the Court. If the Court fails to respect the different adjudicative stages and, as a consequence, fails to provide guidance to the national courts on the allocation of the burden of persuasion, national courts are very much left on their own. The risk is that Strasbourg's nebulous approach will be copied by national courts in their application of the Convention, which might result in undesirable confusion regarding the burden of persuasion at national level. Another problematic consequence of an unclear burden of persuasion has been described by Faigman.105 The crux of the problem is that when the division of the burden of persuasion becomes unclear an unequal burden might be placed on the parties. According to Faigman, this is generally to the detriment of the individual applicant. Confusion of the two stages leads to confusion regarding the type of argument that plays a role in each phase. This could mean that governmental interests are taken into consideration when defining the scope of the right.106 Generally, the applicant is required to bear the burden of persuasion in showing the applicability of a fundamental right; however, this becomes an increasingly heavy, if not impossible, burden if governmental interests are incorporated in this stage. Instead of the government's having to show that its interests justify an interference, the applicant must refute the public interest as a relevant argument for determining the scope of the provision. In the case law of the European Court, this risk is mainly visible in cases concerning positive obligations, where it is unclear in which phase the meaning of the right is established. As a result, public interests in some cases play a role in defining the scope of the rights in question. Consequently, applicants in individual cases might be held responsible for failing to show that a certain public interest does not render the provision inapplicable. This can be detrimental for the effective protection of individuals. In cases concerning both negative and positive obligations, the preferable approach would be one in which, first, the definition of the right is spelled out and, subsequently, the justification for the interference in the case is considered. The burden of persuasion would then be clearly divided. Such an approach would enhance the consistency in fundamental rights adjudication at both the Strasbourg and the national level and avoid detrimental consequences to the effectiveness of fundamental rights protection. In section 5, this solution will be explored further. 4.4. Consequences for the margin of appreciation doctrine Like many national courts, the European Court of Human Rights usually shows a certain degree of deference toward the national authorities. It does so by leaving the national authorities a margin of appreciation, which may be quite narrow or rather wide depending on the circumstances of the case. The primary justification that the Court has given for its margin of appreciation doctrine is that the national authorities, usually, are better placed than the European Court to assess the necessity of certain limitations of fundamental rights.107 In addition, the doctrine enables the Court to pay respect to the primacy of the national authorities in protecting fundamental rights.108 Because of this rationale it is not surprising that the doctrine usually comes into play when the appropriateness and reasonableness of a justification are examined, or if the Court is asked to give an opinion about the proportionality of a certain national measure.109 These standards all require some opinion to be given about national policy decisions and about the necessity and appropriateness of certain measures to pursue important public interests. Given the Court's subsidiary position it is reasonable that the Court goes to some lengths in respecting the national authorities' opinions as regards the justifiability of limitations. It would be rather strange, nonetheless, if the doctrine were applied to the definitional stage of the Court's review.110 From the Convention provisions regarding the jurisdiction of the Court it may be concluded that the Strasbourg Court is entrusted with the final authority to interpret the Convention. According to article 32 of the Convention, the jurisdiction of the Court extends to all matters concerning the interpretation and application of the Convention. It is contested whether this jurisdiction means that the states have lost their power, fully, to define the scope and meaning of Convention rights to the European Court of Human Rights.111 The Court itself has never clearly expressed itself on this sensitive issue. Nonetheless, it is rather obvious that it assumes it holds the final authority to explain the terms of the Convention and to determine the scope of its application.112 This point is demonstrated, in particular, by the Court's autonomous interpretation of a variety of central Convention notions such as civil rights and obligations, property, or criminal charge. Although the Court has expressly adopted an autonomous interpretation only with respect to relatively clear, procedural notions, it has also provided uniform definitions of such sensitive and substantive notions as family life and private life.113 The Court has explained in a number of judgments that such autonomous and uniform definitions are necessary to avoid the

possibility that the protection offered by the Convention (along with the ability to have standing before the ECtHR) would come to depend on definitions given to these notions by the forty-six states of the Council of Europe.114 It would not be acceptable, for example, if social security claims were protected by the right to property in Sweden, and a Swedish victim could bring such a claim before the European Court, while the same kind of claims could be put completely outside the scope of the Convention and the Court's jurisdiction as a result of a different definition in Finland or Denmark.115 On a more principled and fundamental level, it could also be argued that the rights enjoyed by the citizens of whatever country in the Council of Europe must be the same.116 Of course, it is important to respect cultural diversity and variation, and it is not desirable to strive for complete uniformity in the protection of fundamental rights.117 However, in order to avoid cultural relativism and to guarantee fundamental rights at a proper level,118 it is advisable to take national differences in circumstances, tradition, and culture into account only when deciding about the justification of a concrete interference with a certain right.119 All this would seem to imply that the Court should allow no margin of appreciation to the member states concerning the definition of the terms of the Convention. It is unfortunate, therefore, that the European Court has applied, rather frequently, the doctrine at the definitional stage, although this occurs only rarely in cases concerning negative interferences.120 The foremost example of the recognition of a definitional margin of appreciation can be found in the notorious case of Vo v. France, in which the Court flatly refused to give an autonomous definition of the right to life.121 The Court considered that there are so many different opinions within the Council of Europe that it would not be possible for it to rule in an authoritative manner on when the right to life begins. Instead, the Court left an interpretative margin of appreciation to the states, which means that they can now decide for themselves how the scope of the right to life should be defined. The result is that the right to life of unborn children is protected in some states, and not in others.122 However, even though this case is of great importance for the applicability of the margin of appreciation doctrine to the stage of rights definition, it may be argued that it is a specific and probably unique decision.123 After all, the case concerned a right that is absolute in character, except for some highly specific exemptions. As a result, the Court was confronted with a dilemmaif it had ruled that the right to life starts at birth, it would have offended national sensibilities in quite a number of states, whereas it would have ruled out any possibility of allowing abortion if it had said the right to life starts at conception.124 Because of the specific nature of the right to life and the intense controversy surrounding the issue of abortion, this judgment may be considered an unrepresentative exception to the rule that no margin is given with respect to the definition of fundamental rights. Perhaps rather unexpectedly, however, the Court also frequently applies the margin of appreciation doctrine to the definition of the scope of nonabsolute fundamental rights. Examples of this are relatively rare where negative interferences with fundamental rights are concerned;125 however, they are abundant in cases concerned with positive obligations. In section 3, we have already discussed the case of Hatton v. United Kingdom, concerning sleep disturbance caused by night flights at Heathrow airport.126 According to the applicants, the national authorities had insufficiently investigated sleep disturbance by aircraft noise and had failed to set reasonable limits on nightly air traffic. It may be repeated, here, that the Court did not expressly find that article 8 was applicable to claims about sleep disturbance, restricting itself to stating that Article 8 may apply in environmental cases and that [r]egard must be had to the fair balance that has to be struck between the competing interests of the individual and the community as a whole.127 Interestingly, the Court subsequently left a margin of appreciation to the national authorities to define the positive obligations inherent to article 8: Whilst the State is required to give due consideration to the particular interests the respect for which it is obliged to secure by virtue of Article 8, it must in principle be left a choice between different ways and means of meeting this obligation, the Court's supervisory function being of a subsidiary nature and thus limited to reviewing whether or not the particular solution adopted can be regarded as striking a fair balance.128 In addition, the Court stated that the scope of the margin of appreciation could be determined only by reference to the context of the particular case.129 The Court then tested whether the national authorities had struck a reasonable balance between the individual and governmental interests concerned. In the end, it did not find that [i]n substance, the authorities overstepped their margin of appreciation by failing to strike a fair balance between the right of the individuals affected by those regulations to respect for their private life and home, and the conflicting interests of others and of the community as a whole.130 The quoted considerations show that the Court wanted to restrict itself to reviewing the fairness of the balance of interests struck by the national government. Although a large part of the judgment is devoted to determining the exact scope of the margin that should be given to the states, the Court did not reach a conclusive judgment on the issue. However, the general result of the Court's approach was that the national authorities were actually given much latitude in determining the scope and meaning of article 8.

Admittedly, it is fully reasonable that the national authorities should be left with a substantial margin of appreciation in determining the need for measures against sleep disturbance, especially since important economic interests were involved, and the case concerned difficult issues of social and planning policy. Indeed, the margin of appreciation doctrine is designed precisely to deal with this type of situation. It may be argued, however, that allowing a broad margin of appreciation is reasonable only at the stage of justification, not at the stage of defining the rights protected by the Convention.131 The ECtHR has never given any sound reason why it would consider the national authorities to be better placed than itself in defining the scope of fundamental rights, or why there is no need for autonomous definitions in the sphere of positive obligations. Furthermore, it is far from clear at what point the Court deems the national authorities competent to give an interpretation to the Convention by means of a balancing of interests (which will only be marginally reviewed by the Court) and when it will take over and establish its own autonomous and uniform interpretation. For national courts that have to apply Convention rights, the case law about the margin of appreciation and autonomous interpretation of the Convention may be incomprehensible indeed. Finally, and perhaps most importantly, the Court seems inclined to allow a considerable margin of appreciation in almost every case concerning positive obligations, regardless of the importance of the individual right at stake. In cases that deal with negative obligations, the Court first defines the individual right that has been interfered with (although, as demonstrated in section 3, it often pays little attention to the definition), and only then will it consider the justification. The intensity of the Court's scrutiny of the justification will be in line with the margin of appreciation that is left to the state. The margin of appreciation itself is determined by a number of factors, one of which is the nature of the affected individual right.132 This is clearly apparent in article 10 cases, in which the Court considers it relevant to the margin of appreciation that a core aspect of the right has been limited (such as freedom of the press).133 In such cases, stricter scrutiny will be applied than if only the periphery of the right has been affected (as in cases about commercial speech).134 This means that the definition of the right is, normally, considered to be of value to the scope of the margin of appreciation and the intensity of the Court's justification test. It is, therefore, rather curious that, in many cases about positive obligations, the individual right is not at all defined. The meaning of the Convention rights in these cases seems to depend on the reasonableness of the balance struck at the national level between the various interests, a balance that is itself scrutinized often rather marginally.135 Exactly how the margin of appreciation is determined in these cases is unclear;136 regardless, it will be quite difficult to take the importance of the individual right into account if no such right is defined in the first place. This is all the more problematic since the importance of the individual right concerned might invite the application of a stricter test, which means that the national balancing of interests will be examined more critically. It is not improbable that, at least in some cases, a different outcome would be reached if the individual right concerned were expressly recognized and defined as a first step.137 The Court's confusion between the first and second stage of fundamental rights review thus hampers a sound application of the margin of appreciation doctrine and, consequently, may result in judicial review that is not sufficiently strict. 5. Conclusion The foregoing sections have made clear that it is important to distinguish clearly between the definition of the scope of fundamental rights and the test of justification. Furthermore, it appears that, from this perspective, the approach followed by the European Court of Human Rights falls short. In many cases, the Court either skips the first stage or pays scarce attention to the definition of the right at issue. In other cases, the Court confuses or merges the first and second stages of review, thus blurring the line between definition and justification. It has been argued in this paper that this approach causes serious problems from the perspective of the clarity of the Court's case law, the division of the burden of proof in (national) fundamental rights cases, and the application of the margin of appreciation doctrine. Much would be gained if the Court took more seriously the bifurcated approach toward fundamental rights. The clarity and insightfulness of the Court's case law could be much improved iftaking a more structural approachit articulated its reasoning in two argumentative stages, paying closer attention to each. In the first stage, the Court could refer systematically to classic methods of interpretation in order to determine whether the Convention applies to the individual complaint at hand. In light of the Court's quasi-constitutional role, it is not sufficient merely to state that both parties agree that the Convention is applicable or to conclude that it evidently applies. Even in cases that do not raise any new definitional questions, the Court should refer to earlier cases in which the issue of scope was decided. In cases raising new definitional issues, the Court should reason in a convincing manner as to why the claim does (or does not) come within the scope of the Convention, for example, by seeking analogies to earlier cases, by referring to the text and aims of the Convention, or by using other classical methods of interpretation. In cases concerning positive obligations, additionally, the Court could take the definition of the scope of the right at hand more seriously.138 In the Hatton case discussed in sections 3 and 4.4, which concerned the state's alleged failure to protect the people living in the neighborhood of Heathrow against aircraft noise, it is possible, for example, to reason that the right to respect for one's private life also covers the right to peaceful and undisturbed sleep, having regard to the underlying values of the Convention and to earlier cases in which similar claims have

been considered. If the scope of the right has been defined in this manner, the next step is to examine if it was reasonable for the government to interfere with this right by deciding to maintain certain noise levels and to conduct only a limited amount of research into sleep disturbance patterns.139 Thus, the question to be answered at this stage is whether due respect for the established Convention right would have demanded a certain action from the authorities. In deciding this, the Court could allow a margin of appreciation to the national authorities in order to accommodate their particular needs and abilities in evaluating facts and making policy choices. Such a two-stage approach, which should also be applied by the national courts, would enhance the quality of both national and transnational or supranational argumentation in fundamental rights cases. It would provide clarity about the respective roles of national and supranational courts regarding both the way in which fundamental rights should be applied by the courts and the division of the burden of proof. In the complex world of human rights law that would be beneficial to all parties concerned. 1 See generally Janneke Gerards, Judicial Deliberations in the European Court of Human Rights, in The Legitimacy of Highest Courts' Rulings. Judicial Deliberations and Beyond 407 (Nick Huls, Maurice Adams & Jacco Bomhoff eds., 2009). 2 Since its very early decisions, the Court has recognized the importance of the division between definition of the scope of a right under the first paragraph of articles 8 through 11 and the examination of the justification under the second paragraph; see, e.g., National Union of Belgian Police v. Belgium, 19 Eur. Ct. H.R. (ser. A) 3742 (1975), in which it found that it did not have to examine a justification under the second paragraph as it did not find an interference with the right to trade union freedom in the case at hand; see also, expressly, the well-known Handyside case (Handyside v. United Kingdom 24 Eur. Ct. H.R. (ser. A) 43 (1976): The various measures challengedthe applicant's criminal conviction, the seizure and subsequent forfeiture and destruction of the matrix and of hundreds of copies of the Schoolbookwere without any doubt, and the Government did not deny it, 'interferences by public authority' in the exercise of his freedom of expression which is guaranteed by paragraph 1 of the text cited above. Such interferences entail a 'violation' of article 10 if they do not fall within one of the exceptions provided for in paragraph 2, which is accordingly of decisive importance in this case. In later cases, it has stressed the importance of the bifurcation by using headings; it did this for the first time in the case of Young, James, and Webster: 1. The existence of an interference with an article 11 right and 2. The existence of a justification for the interference found by the Court (Young, James and Webster v. United Kingdom, 44 Eur. Ct. H.R. (ser. A) (1981)). 3 This is already visible in the Handyside case, in which the Court restricted its argumentation at the first stage of the review to noting that the various measures challenged were, without any doubt, 'interferences by public authority' in the exercise of his [the applicant's] freedom of expression (see supra note 2). 4 See infra section 3.

5 See, e.g., David L. Faigman, Reconciling Individual Rights and Governmental Interests: Madisonian Principles versus Supreme Court Practice, 78 Va. L. Rev. 1521, 15221523; Gerard Van der Schyff, Limitation of Rights: A Study of the European Convention and the South African Bill of Rights 11 (2005); Stefan Sottiaux, Terrorism and the Limitation of Rights: The ECHR and the US Constitution 35 (2008). See also the dissenting opinion of Judge Fitzmaurice in Marckx v. Belgium, 31 Eur. Ct. H.R. (ser. A) 35 (1979) (stating that the two separate stages of review are elementary, standard propositions which should not need stating because they are such as everyone would assent to in principle). 6 In this respect, it may be maintained that the first stage of fundamental review actually consists of two separate elements, i.e., the definition of the scope of the right and the establishment of a concrete interference with that right in the case under scrutiny (see also Van der Schyff, supra note 5, at 41). The European Court also tends to make this distinction in its case law, examining the issue of whether there has been an interference with the Convention on its own. There are some problems of conceptual confusion in this case law too, as is visible in the case of Cha'are Shalom Ve Tsedek, in which the Court used elements of the application test (namely the question whether there was a sufficiently serious interference, which was decided on basis of the availability of alternatives to the applicants) in deciding whether the claim attracted the protection of article 9 of the Convention (Cha'are Shalom Ve Tsedek v. France, 2000-VII Eur. Ct. H.R. 7884). The question of interference with the Convention certainly requires attention but lies outside the scope of this paper, which has as its main focus the issue of the definition of the Convention's scope in relation to the application of Convention rights. 7 Some rights, such as the prohibition of torture and inhuman and degrading treatment (article 3 of the Convention) and the principle of nulla crimen sine lege priori (article 7 of the Convention), are considered to be

absolute. In those cases, no limitations are possible; as explained in section 1, however, these nonderogable rights will not be discussed in this paper. 8 Although, as has been mentioned above, the Court itself usually starts from the assumption that the bifurcation does matter. 9 Steven Greer, The European Convention on Human Rights: Achievements, Problems and Prospects 212 (2006).

10 See Franz Matscher, Les contraintes de l'interpretation juridictionnelleles mthodes d'interprtation de la Convention Europenne [Constraints on Judicial InterpretationMethods of Judicial Interpretation], in L'interpretation de la convention europenne des droits de l'homme [The Interpretation of the European Convention on Human Rights] 15, 18 and 37 (Frdric Sudre ed., 1998) and George Letsas, A Theory of Interpretation of the European Convention on Human Rights (2007); see also Aaron A. Ostrovsky, What's So Funny About Peace, Love, and Understanding? How the Margin of Appreciation Doctrine Preserves Core Human Rights within Cultural Diversity and Legitimises International Human Rights Tribunals, 1 Hanse L. Rev. 47, 57 (2005) (regarding the margin of appreciation doctrine as an interpretative tool that allows the Court to draw a line around core rights, thus not clearly distinguishing between defining and limiting fundamental rights). By contrast, Greer criticizes the Court for its unstructured approach and the indistinct way in which it uses a dozen or so interpretative principles (supra note 9, at 696). Although Greer does not (like Letsas and Matscher) make any clear distinction between principles and methods concerning the definition of scope and principles and methods relating to the test of justification, he does seem to accept that a distinction between the two stages must be made. 11 12 Matscher, supra note 11; Letsas, supra note 11. Faigman, supra note 5, at 1522ff.

13 Robert Alexy, A Theory of Constitutional Rights (Julian Rivers, trans., Oxford Univ. Press 2002), at 8486, 180, and 199. 14 15 16 17 18 19 20 21 22 Faigman, supra note 5, at 1529. Id. at 1528. Id. at 1529. Id. Id. at 1528.\\ Alexy, supra note 13, at 8485. Id. Id. Id. at 8586.

23 Alexy himself argues that a wide conception of constitutional norms should be chosen, in which everything which the relevant constitutional principle suggests should be protected falls within the scope of protection (Alexy, supra note 13, at 210). He leaves little room for definitional balancing or other ways to establish the scope and meaning of fundamental rights. 24 Cf. Mattias Kumm, Who's Afraid of the Total Constitution?, in Arguing Fundamental Rights 113, 117 (Agustn Jos Menndez & Erik Oddvar Eriksen eds., 2005); cf. also Alexy, supra note 13, at 201. 25 26 27 Cf. Van der Schyff, supra note 5, at 35 (with references); cf. also Alexy, supra note 13, at 211. Cf. Alexy, supra note 13, at 213. See Kumm, supra note 24, at 118.

28 It has been argued by Alexy that it does not make a difference to the caseload of a court to use a narrow or broad definition of fundamental rights since, in his view, a narrow definition also necessitates an examination of the justification (Alexy, supra note 13, at 213ff.). The only difference would be that the justification test is then applied at a different stage and would be somewhat obscured. This is not entirely true, however, if a different approach is taken toward the ways in which a narrow definition of fundamental rights can be given, as we propose to do. We will further explain this point below. 29 See, more specifically, infra sections 4.1 and 4.4 (with references).

30 Cf. James A. Sweeney, Margins of Appreciation: Cultural Relativity and the European Court of Human Rights in the Post-Cold War Era, 54 Int'l & Comp. L.Q. 459, 472 (2005). 31 See, for a strong normative underpinning of this argument, J. H. H. Weiler, the Constitution of Europe (1999), at 104107. 32 Van der Schyff supra note 5, at 32.

33 Van der Schyff, supra note 5, at 33. See, in particular, with respect to the doctrine of positive obligations as recognized by the European Court of Human Rights, also Pieter Van Dijk, 'Positive Obligations' Implied in the European Convention on Human Rights: Are the States Still the 'Masters' of the Convention? in The Role of the Nation-State in the 21st Century 17, 25 (Monique Castermans-Holleman, Fried van Hoof & Jacqueline Smith eds., 1998). 34 35 36 Alexy supra note 13, at 204. Id. at 205. Id. at 213.

37 Meaning that everything which the relevant constitutional principle suggests that should be protected falls within the scope of protection (Alexy, supra note 13, at 210). 38 Cf. Sottiaux, supra note 5, at 36; See also Aharon Barak, Constitutional Interpretation, in L'interpretation constitutionelle 91, 93ff. (Ferdinand Mlin-Soucramanien ed., 2005); cf. also, specifically in relation to the ECtHR, Franois Ost, The Original Canons of Interpretation of the European Court of Human Rights, in The European Convention for the Protection of Human Rights 283, 288ff. (Mireille Delmas-Marty ed. (1992). Ost also makes clear that the ECtHR, in practice, indeed makes use of such methods in determining the meaning of the terms contained in the Convention (id. at 293ff.). 39 Of course, it may be argued that even in this case some kind of balancing is visible, since each determination of scope requires a choice to be made, and each choice presupposes a balance to be struck between a variety of interests. In this argument, definition of fundamental rights is never possible without balancingeven an entirely text-based limitation of the scope of rights is then the result of a choice between different possible interpretations. Taken to its extreme, the argument that elements of balancing should not be introduced in the stage of defining the scope of a right is then untenable, since it would imply that fundamental rights cover an unlimited number of individual interestsafter all, any restriction of scope would imply a certain choice or limitation. The result would be that the stage of definition would become factually meaningless and the competence of the ECtHR to decide about fundamental rights would become virtually infinite (cf. the dissenting opinion of former Judge Fitzmaurice in the Marckx case, who stated that within certain limits almost anything can colourably be presented as connected with or related to some other given thing, or as belonging to the same sphere of ideas (Marckx v. Belgium, 31 Eur. Ct. H.R. (ser. A) 5 (1979)). 40 41 42 Mlka v. Poland (dec.), 11 April 2006, appl. no. 56550/00, http://www.echr.coe.int/eng. Id. Maurice v. France (Grand Chamber), 2005-IX Eur. Ct. H.R.

43 Id. 120. A similar approach has been adopted by the Court in Sentges v. Netherlands (dec.), 8 July 2003, app. no. 27677/02, http://www.echr.coe.int/eng; Draon v. France (Grand Chamber), 6 October 2005, app. no. 1513/03, http://www.echr.coe.int/eng; Wendenburg v. Germany (dec.), 2003-II Eur. Ct. H.R.; Iliya Stefanov v. Bulgaria, 22 May 2008, app. no. 65755/01, http://www.echr.coe.int/eng.

44 45 46 47 48 49 50 51 52 53

Elli Poluhas Ddsbo v. Sweden, 2006-I Eur. Ct. H.R. Id. 24. Laskey Jaggard and Brown v. United Kingdom, 1997-I Eur. Ct. H.R. Id. 36. See section 1. Vajnai v. Hungary, 8 July 2008, app. no. 33629/06, http://www.echr.coe.int/eng. Vereinigung Bildender Knstler v. Austria, 25 January 2007, app. no. 68354/01, http://www.echr.coe.int/eng. Perrin v. United Kingdom (dec.), 2005-XI Eur. Ct. H.R. Mller v. Switzerland, 5 November 2002, app. no. 41202/98, http://www.echr.coe.int/eng. Mller v. Switzerland, 133 Eur. Ct. H.R. (ser. A) (1988).

54 The Court intended to refer to a paragraph that does not deal with the type of expression, but only to a paragraph stating that the imposition of a fine can constitute interference with article 10 and that such has to be justified in accordance with article 10 2. Id. 28. 55 56 Christine Goodwin v. United Kingdom (Grand Chamber), 2002-VI Eur. Ct. H.R. Hatton v. United Kingdom (Grand Chamber), 2003-VIII Eur. Ct. H.R.

57 See Rees v. United Kingdom, 106 Eur. Ct. H.R. (ser. A) (1986); Cossey v. United Kingdom, 186 Eur. Ct. H.R. (ser. A) (1990); B v. France, 232-C Eur. Ct. H.R. (ser. A) (1992); Sheffield & Horsham v. United Kingdom, 1998-V Eur. Ct. H.R. 58 59 See, e.g., Dickson v. United Kingdom, 4 December 2007, appl. no. 44362/04, http://www.echr.coe.int/eng. See Faigman, supra note 5, at 1523.

60 Hatton v. United Kingdom (Grand Chamber), 2003-VIII Eur. Ct. H.R. Cf. also Giacomelli v. Italy, 2 November 2006, app. no. 59909/00, http://www.echr.coe.int/eng; Fadeyeva v. Russia, 2005-IV Eur. CT. H.R.; Moreno Gomez v. Spain, 2004-X Eur. Ct. H.R. 61 62 63 64 Hatton v. United Kingdom (Grand Chamber), 2003-VIII Eur. Ct. H.R. 96. Id. 97100. Id. 99100. Case comment by Heleen Janssen published in European Human Rights Cases 2003, no. 71.

65 Cf. Georg Ress, The Effect of Decisions and Judgments of the European Court of Human Rights in the Domestic Legal Order 40 Tex. Int'l L.J. 359, 374 (20042005). 66 See article 46 ECHR.

67 If a state refuses to accept a judgment or interpretation given in a case to which it was not a party, there are no means to force the state to accept it. The only way is for an individual citizen to lodge an application regarding the same matter, thus triggering the Court to hand down a judgment that is binding for the state in question. On the incorporation of interpretations of the ECtHR and the erga omnes effect of the Court's interpretations, see Saa Beljin, Bundesverfassungsgericht on the Status of the European Convention of Human Rights and ECHR Decisions in the German Legal Order; Decision of 14 October 2004, 1 Eur. Const. L. Rev. 553, 558559 (2005); see also Ress, supra note 65, p. 374.

68

Cf. Ost, supra note 38, at 284.

69 Cf. Luzius Wildhaber, A Constitutional Future for the European Court of Human Rights?, 23 Hum. Rts. L. J. 161 (2002); Greer, supra note 9, at 172173; Steven Greer, What's Wrong with the European Convention on Human Rights?, 30 Hum. Rts. Q. 680, 684685 (2008). 70 71 Monica Claes, The National Courts' Mandate in the European Constitution (2006), 401. Id.

72 Cf. Lawrence R. Helfer, Consensus, Coherence and the European Convention on Human Rights, 26 Cornell Int. L.J. 133, 137 (1993). 73 Cf. Greer, supra note 69, at 686.

74 This risk is not entirely theoretical, as is clear from a judgment rendered by the German Constitutional Court in 2004, in which it stressed that it considers the German Basic Law to be of higher order than the ECHR, which means that in situations of real conflict between a Strasbourg interpretation of the Convention and one of the rights guaranteed by the Basic Law, the Basic Law will prevail (Bundesverfassungsgericht [BVerfG] [German Constitutional Court], Oct 14, 2004, docket number 2 BvR 1481/04, available at http://www.bundesverfassungsgericht.de, in particular at para. 35). German scholars have commented that this judgment may not be as revolutionary as it seems. Schaffarzik has stressed, for example, that conflicts between the interpretation by the ECtHR and the national law will be rare, and that, moreover, article 53 of the Convention leaves sufficient scope for a higher level of protection of fundamental rights on the national level (B. Schaffarzik, Europische Menschenrechte unter der gide des Bundesverfassungsgerichts, Die ffentliche Verwaltung 860, 863 (2005)). Since the Constitutional Court decided that deviations from the ECtHR's case law would only be permissible if such would be necessary to protect constitutional rights in Germany, there would be no real conflict between the Convention and the national law (id., at 863). Drr has argued that the issue of a different national interpretation or application will, in fact, only occur if the facts of the case have changed (O. Drr, Rechtsprechungskonkurrenz zwischen nationalen und europischen Verfassungsgerichten, Deutsches Verwaltungsblatt 1088, 1097 (2006)). Furthermore, the president of the German Constitutional Court, Hans-Jrgen Papier, has stated that the judgment has resulted in a considerable increased effect of the Convention as compared with previous practice, rather than the opposite (Hans-Jrgen Papier, Execution and Effects of the Judgments of the European Court of Human Rights from the Perspective of German National Courts, 27 Human Rts. L.J. 1, 2 (2006); cf. also Drr, supra, at 1092). Such arguments notwithstanding, it may be remarked that the result of the judgment, still, is that real interpretive clashes between the German Constitutional Court and the ECtHR will not be solved in favor of the supranational court, but in favor of the (lower) national court. As Papier puts it: the Basic Law has theoretically the final say (Papier, supra at 2; see also Matthias Hartwig, Much Ado About Human Rights: The Federal Constitutional Court Confronts the European Court of Human Rights, 6 German L.J. 869, 875 (2005)). For this reason and to this extent, the judgment discloses potential rivalry between the two highest courts. This is important, since the German decision appears to have raised the question in other states whether the decisions of the Court should always be implemented. See 'Das tut mir weh', interview with the president of the ECtHR, Luzius Wildhaber, in Der Spiegel, 15 November 2004, at 52 (disclosing that Turkey and Poland have actually approached the ECtHR with this question). It is also important to note that the ECHR, different from EC law, does not have direct effect in the states parties. See also Ress, supra note 65, at 376 (mentioning that the Austrian Constitutional Court has stated that there is still a difference between the Convention as a part of the constitution and the Convention as an international treaty interpreted by the ECtHR. Within the domestic legal order, the Convention is only one element in the mosaic of different constitutional provisions and its interpretation in that context may differ considerably from an interpretation based on the Convention alone). The superior status of the judgments of the ECtHR is far from firmly established. 75 See, on the case-based approach of the Court: Gerards, supra note 1, at 9; Matscher, supra note 10; Paul Mahoney, Judicial Activism and Judicial Self-restraint in the European Court of Human Rights: Two Sides of the Same Coin, 11 Human Rts. L.J. 57, 77 (1990); Evert A. Alkema, The European Convention as a Constitution and its Court as a Constitutional Court, in Protecting Human Rights: The European Perspective 41, 59 (Paul Mahoney ed., 2000). 76 77 78 Mahoney, supra note 75, at 77 and section 4.1. Id. On the willingness to draw general conclusions, see Gerards, supra note 1, at 424425.

79

Id. at 420.

80 Mahoney, supra note 75, at 77 (explicitly confirming that the Court will avoid deciding some general issues if there is no need to decide them in the particular case). 81 Explanatory report to Protocol 14, CETS no. 194, 12 May 2004, 7. See also Alkema, supra note 75, at 60 (confirming that states are often in need of guidance from the Court). 82 83 See, e.g., Faigman, supra note 55, at 15231524. Id. at 1528.

84 Id. See also Tobias Thienel, The Burden and Standard of Proof in the European Court of Human Rights, 50 Germany Earbook of International Law 543, 55354 (2008) and see section 2 of this paper. 85 Ugur Erdal, The Burden and Standard of Proof in Proceedings under the European Convention, 3 Eur. L. Rev. 68, 81 (2001). 86 Faigman, supra note 5, at 15231524; Erdal, supra note 85, at 82; Thienel, supra note 84, at 553554.

87 Thienel, supra note 84, at 545; Juliane Kokott, The Burden of Proof in Comparative and International Human Rights Law: Civil and Common Law Approaches with Special Reference to the American and German Legal Systems 150 (1998). 88 89 90 91 Thienel, supra note 84, at 545; Kokott, supra note 87, at 150. Faigman, supra note 5, at 1523; Kokott, supra note 87, at 150; Thienel, supra note 84, at 548. Thienel, supra note 84, at 548. Faigman, supra note 5, at 1523.

92 Rdiger Wolfrum, The Taking and Assessment of Evidence by the European Court of Human Rights, in Human Rights, Democracy and the Rule of Law 915, 918 (Stephan Breitenmoser ed., 2007). 93 94 95 Id. Id. Id.; See also Thienel, supra note 84, at 546.

96 See, e.g., D.H. v. Czech Republic (Grand Chamber), 13 November 2007 179, appl. no. 57325/00, http://www.echr.coe.int/eng. 97 Ireland v. United Kingdom, 25 Eur. Ct. H.R. (ser. A.) 160 (1978) (referred to by Thienel, supra note 84, at 546547 and Erdal, supra note 85, at 81). 98 Wolfrum, supra note 92, at 918; Thienel, supra note 84, at 548; see also Makhmudov v. Russia, 26 July 2007 68, appl. no. 35082/04, http://www.echr.coe.int/eng. 99 The Court seems to pay more attention in its case law to the standard of proof in different types of cases, which is a related matter, but beyond the scope of this paper. The Court does, however, in certain types of cases address the issue of the burden of proof. For example in cases concerning articles 2, 3, and the exhaustion of local remedies. See, e.g., Pieter van Dijk et al., Theory and Practice of the European Convention On Human Rights 132, 355 (4th Ed. 2006). 100 See, e.g., Botta v. Italy, 1998-I Eur. Ct. H.R.; Kyrtatos v. Greece (dec.), 2003-VI Eur. Ct. H.R. Cf. Makhmudov v. Russia, 26 July 2007 68, appl. no. 35082/04, http://www.echr.coe.int/eng.

101 See, e.g., the recent case of Demir and Baykara v. Turkey (Grand Chamber), 12 November 2008, appl. no. 34503/97, http://www.echr.coe.int/eng. The approach by Strasbourg is also acknowledged in the literature. See, e.g., Thienel, supra note 84, at 551 and Erdal, supra note 85, at 8182. 102 103 104 105 106 Thienel, supra note 84, at 552. Id. Faigman, supra note 5, at 1528; Thienel, supra note 84, at 553; Kokott, supra note 87, at 40. Faigman, supra note 5. Id., at 1524.

107 See, already, Handyside v. United Kingdom, 24 Eur. Ct. H.R. (ser. A) 48 (1976); Ireland v. United Kingdom (IRA case), 25 Eur. Ct. H.R. (ser. A) 207 (1978). Cf. e.g. Johan Callewaert, Quelavenir pour la marge d'appreciation?, in Protecting Human Rights: The European PerspectiveStudies in Memory of Rolv Ryssdal, 147, 150 (Paul Mahoney ed., 2000). 108 See, already, the so-called Belgian Linguistics Case (Case Relating to certain aspects of the laws on the use of language in education in Belgium v. Belgium, 6 Eur. Ct. H.R. (ser. A) (1968); cf. Lord Mackay of Clashfern, The margin of appreciation and the need for balance, in Protecting Human Rights: The European Perspective 837, 840 (Paul Mahoney ed., 2000); Paul Mahoney, Marvellous Richness of Diversity or Invidious Cultural Relativism?, 19 Hum. Rts. L.J. 1, 2 (1998) and Sweeney, supra note 30, at 472. 109 Cf. Jeroen Schokkenbroek, The Basis, Nature and Application of the Margin-of-Appreciation Doctrine in the Case-Law of the European Court of Human Rights, 19 Hum. Rts. L.J. 30, 3132 (1998) and see R. St.J. Macdonald, The Margin of Appreciation, in The European System for the Protection of Human Rights 83, 123 (R. St.J. Macdonald, F. Matscher & H. Petzold eds., 1993) (the margin of appreciation is more a principle of justification than interpretation). Rather surprisingly, this element is hardly explored in legal scholarship about the margin of appreciation doctrine. Most legal commentators seem to start from the view that the doctrine applies to the justification or limitation stage of the Court's review, but this is seldom stated expressly. 110 Cf. Steven Greer, The Margin of Appreciation: Interpretation and discretion under the European Convention on Human Rights 22 (Human Rights Files No. 17, 2000), Greer, supra note 69, at 698 and Callewaert, supra note 107, at 163. 111 See, e.g., Ostrovsky, supra note 10, at 4849 (the doctrine of the margin of appreciation places the court as the secondary interpreter of these rights, after the Contracting State itself). 112 This position of the Court also finds support in the preamble to the Convention, which refers to the importance of a common understanding and observance of the rights protected by the Convention; see Callewaert supra note 107, at 154 and 163. See also Tanja Goldman, Vo v. France and Fetal Rights: The Decision Not To Decide, 18 Harv. Hum Rts. J. 277, 279 (2005). 113 See Franois Sudre, Lerecours aux 'notions autonomes', in L'interprtation de la Convention europenne des droits de l'homme 93, 116118 (Franois Sudre ed., 1998). Perhaps the best example of a uniform (albeit not autonomous) definition of a sensitive notion is the case of Pretty (Pretty v. United Kingdom (Grand Chamber), 2002-III Eur. Ct. H.R.), in which the Court explained that the notion of private life includes the right to personal autonomy and self-determination. Sudre has rightly stated that the Court would probably not classify this definition as autonomous itself; in his opinion, the Court reserves the notion for rule of lawrelated or procedural notions. However, the case of Stec illustrates that this is not entirely true, since the Court there expressly gave an autonomous definition of the notion of property in a case wholly unrelated to classic rule of law or procedural issues (Stec v. United Kingdom (dec., Grand Chamber), 2005-X Eur. Ct. H.R. at 49). The question as to when the Court expressly adopts an autonomous definition in some cases and in other cases a uniform but not autonomous definition, therefore, remains something of an enigma. 114 See, e.g., Chassagnou v. France, 1999-III Eur. Ct. H.R. 100 (If Contracting States were able, at their discretion, by classifying an association as 'public' or 'para-administrative,' to remove it from the scope of article 11, that would give them such latitude that it might lead to results incompatible with the object and purpose of the Convention, which is to protect rights that are not theoretical or illusory but practical and effective). See also Judge Martens in his dissenting opinion to the Cossey case (Cossey v. United Kingdom, 184 Eur. Ct. H.R. (ser. A) 3.6.3

(1990)); cf. R. Bernhardt, Thoughts on the interpretation of human rights treaties, in The European System for the Protection of Human Rights 65, 67 (R.St.J. Macdonald, F. Matscher & H. Petzold eds., 1993) and Sudre, supra note 113, p. 94. 115 See Stec v. United Kingdom (dec., Grand Chamber), 2005-X Eur. Ct. H.R. 4950 (It is important to adopt an interpretation of article 1 of Protocol No. 1 which avoids inequalities of treatment based on distinctions which, at the present day, appear illogical or unsustainable). 116 117 Cf. Sweeney, supra note 30, at 460ff. and Ost, supra note 38, at 305. Cf. Mahoney, supra note 109, at 3.

118 See, especially, Eyal Benvenisti, Margin of appreciation, consensus, and universal standards, 31 N.Y.U. J. Int'l L. & Pol. 843, 844 (19981999); see also Sweeney, supra note 30, at 460 (speaking of the tolerance trap in relation to the argument that local differences of opinion should be respected). 119 See Sweeney, supra note 30, at 469471 (explaining that the recognition of the universality of human rights should not be equated with uniformity: even whilst maintaining 'universal' human rights, there may be some defensible local qualification). His argument seems to support the statement that uniformity or universality may reasonably be found on the level of the definition of rights, since it is then stated in a rather general way that certain rights are to be protected throughout the Council of Europe. It is also relatively easy to find agreement and consensus on such a general, abstract level, which makes it easier to provide uniform and autonomous definitions. Such agreement is much more difficult to reach when the reasonableness of interferences is concerned, since opinions may reasonably differ on the acceptability of certain reasons to justify the limitation of fundamental rights. To that extent, it seems reasonable to take account of local differences and variations only when scrutinizing the justification for an interference. 120 Cf. Schokkenbroek, supra note 109, at 32, pointing out that the Court will leave a margin of appreciation when the Court must assess whether the term in question applies to the facts of the case or what requirements flow from it. As an example he mentions the term respect in article 8 1, which clearly pertains to the definition of the right under discussion. Noticeably, however, he admits that a margin of appreciation is usually left in cases concerning positive obligations, in which the two stages of review are generally confused anyhow. It is, therefore, questionable whether the Court will really leave a margin of appreciation as regards the definition of Convention terms outside this complex field of positive obligations. See also Sudre, supra note 113, at 108, who even states that the Court never resorts to a margin of appreciation in determining the applicability of the Convention. 121 Vo v. France (Grand Chamber), 2004-VIII E. Ct. H.R. See also the annotation by Jacco Bomhoff in European Human Rights Cases 2004, no. 86 (showing that the Court normally does not recognize a margin of appreciation in defining (interferences with negative) fundamental rights). Given the limitation of this paper to nonderogable rights (see the introduction), the case of Vo is really out of place in this section but, since it is the only example of the express use of the margin of appreciation doctrine, the case cannot be ignored. 122 It is clear from later cases decided by the Court that it is, indeed, unwilling to address any issues under article 2 that concern the right to life of unborn children; see, e.g., Evans v. United Kingdom (Grand Chamber), 10 April 2007, app. no. 6339/05, http://www.echr.coe.int/eng. 123 Although article 2 contains a number of possibilities for limitation, these possibilities have been defined very strictly. Apart from these very limited limitation clauses, the text of article 2 does not leave any room for justification. 124 However, it must be noted that various alternatives are feasible and have been advocated by both dissenting judges (e.g. Judges Ress, Rozakis and Costa) and legal commentators (see, e.g., Trees A. M. te Braake, Does a Fetus have a Right to Life? The Case of Vo. v. France, 11 Eur. J. Health L. 381, 387 (2004) and Goldman, supra note 112, at 281). 125 126 127 128 But see Schokkenbroek, supra note 109, at 32. Hatton v. United Kingdom (Grand Chamber), 2003-VIII E. Ct. H.R. 98, emphasis added. 123.

129 130 131

104. 129. Cf. (rather implicitly) Greer supra note 69, at 698.

132 Cf., e.g., Buckley v. United Kingdom, 1996-IV E. Ct. H.R. 75: The scope of this margin of appreciation is not identical in each case but will vary according to the context. Relevant factors include the nature of the Convention right in issue, its importance for the individual and the nature of the activities concerned. See also Janneke Gerards, Judicial Review in Equal Treatment Cases 187ff. (2005). Cf. Thomas A. O'Donnell, The Margin of Appreciation Doctrine: Standards in the Jurisprudence of the European Court of Human Rights, 4 Hum. Rts. Q. 474, 492493 (1982), Schokkenbroek, supra note 109, at 35 and Sren C. Prebensen, The Margin of Appreciation and Articles 9, 10 and 11 of the Convention, 19 Human Rts. L.J. 13, 17 (1998). 133 See, e.g., Autronic AG v. Switzerland, 178 E. Ct. H.R. (ser. A) 61 (1990): Where there has been an interference with the exercise of the rights and freedoms guaranteed in paragraph 1 of Article 10, the supervision must be strict, because of the importance of the rights in question. 134 See, e.g., Markt Intern Verlag v. Germany, 165 E. Ct. H.R. (ser. A) (1989) and Wabl v. Austria, 21 March 2000, app. no. 24773/94, http://www.echr.coe.int/eng. 135 See also Franois Sudre, Les obligations positives dans la jurisprudence europenne des droits de l'homme [Positive obligations in European human rights jurisprudence], in Protecting Human Rights: The European PerspectiveStudies in Memory of Rolv Ryssdal 1359, 1373 (Paul Mahoney ed., 2000) (stating that, in general, the test applied in cases about positive obligations is a general balancing test that is generally not very strict, that is somewhat rashly applied, and that is much more vague than the test applied to negative obligations). 136 In fact, it is often noticed that (generally) the margin of appreciation allowed in cases about positive obligations is rather broadsee, e.g., Sudre, supra note 135, at 1369 (although this is debated, see, e.g., Clare Ovey, The Margin of Appreciation and Article 8 of the Convention, 19 Hum. Rts. L.J. 10 (1998)). Interestingly, the example of Hatton makes clear that the Court is well aware of the problem; in this case, the Court did pay attention to the individual interests concerned in determining its margin of appreciation. Unfortunately, in the end it did not provide any clarity as regards the ambit of the margin of appreciation, since it considered that the margin was closely linked to the facts of the case at hand (Hatton, 103104). This is a general problem regarding the margin of appreciation doctrine; it occurs altogether too often that the Court leaves the question as to the scope of the margin undecided (cf. G ERARDS, supra note 132, at 196). We will leave this issue aside in our paper since the problem is not closely related to the Court's structural confusion. 137 Cf. the dissenting opinion of (former) Judge Martens in Cossey, in which he also makes clear that it may make a difference to the structure of the Court's review and to the application of the margin of appreciation doctrine whether the case is framed as a case concerning positive obligations or as a case concerning a negative interference (Cossey v. United Kingdom, 184 E. Ct. H.R. (ser. A) (1990). In most cases it is rather easy to define the case in both ways (cf. Sudre, supra note 35 at 1362). This means that the same claim might invite a stricter test if defined as a negative interference than if defined as a failure to respect positive obligations. It is clear that there is no logical or reasonable explanation to be given for such a difference in approach. See also the dissenting opinion of Judge Wildhaber in Stjerna v. Finland, 299-B E. Ct. H.R. (ser. A) (1994) and see, critically, Sudre, supra note 135, at 1374. 138 See also the dissenting opinion of Judge Wildhaber in Stjerna v. Finland, 299-B E. Ct. H.R. (ser. A) (1994). Cf. also Van Dijk, supra note 33, at 25, although he suggests a different solution in which there is less of a place for the concept of positive obligations as such. 139 Cf. Sudre, supra note 135, at 1374, who explains that it would be desirable to use the term interference not only in the negative sense (i.e., to describe an active interference with a right) but also in a positive sense (i.e., to describe inaction by the state that allegedly results in a lack of protection of a fundamental right). Sudre refers to normalisation mthodique ensuite: pour toute ingrence, qu'elle que soit active o passive, la Cour devrait rechercher si les conditions figurant dans la clause d'ordre public (base lgale, but lgitime, ncessit) sont remplies [standardization of methodology so that, for any interferencebe it active or passive, the Court should ascertain whether the conditions contained in the law and order clause (legal foundation, legitimate aim, necessity) have been met].

Search Terms [("abortion" and "foetus")](12) View search details Search Details You searched for: ("abortion" and "foetus")

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Vo v France (Application 53924/00) [2004] 2 FCR 577, 79 BMLR 71, 16 BHRC 1, [2004] ECHR 53924/00

Court: ECtHR Judgment Date: 08/07/2004

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HUMAN RIGHTS - LIFE DEPRIVATION FOETUS MEDICAL TREATMENT NECESSITATING ABORTION OF FOETUS APPLICANT INITIATING CRIMINAL PROCEEDINGS FOR UNINTENTIONAL HOMICIDE CRIMINAL COURTS DISMISSING ACTION WHEN RIGHT TO LIFE BEGINNING WHETHER APPLICANT AFFORDED EFFECTIVE REMEDY EUROPEAN CONVENTION ON HUMAN RIGHTS, ART 2

The applicant, who was 6 months pregnant, attended a hospital for an examination. Another woman, who had a similar name, attended on the same day in order to have a coil removed. The doctor confused the two patients, and in an attempt to remove the coil from the applicant, he pierced the amniotic sac and a quantity of amniotic fluid was lost. As a result, the pregnancy was terminated on health grounds. It was common ground that the applicant had intended to carry the pregnancy to full term and that the foetus had been in good health. The applicant and her partner lodged a criminal complaint in which they alleged, inter alia, unintentional homicide of the applicants child. The court acquitted the doctor of that offence on the basis that the foetus was not a human person for the purposes of the offence. That decision was reversed on appeal but subsequently upheld by the Court of Cassation. The applicant applied to the European Court of Human Rights complaining, inter alia, of the authorities refusal to classify the taking of her unborn childs life as unintentional homicide, and that the absence of criminal legislation to prevent and punish such an act breached art 2 of the Convention, which provided that Everyones right to life shall be protected by law . The French government contended, inter alia, that art 2 did not protect a foetus right to life as a person, and the word everyone in art 2 applied only postnatally. Furthermore, it was argued that the applicant had failed to exhaust an available domestic remedy, namely an action for compensation in the administrative courts. A number of third parties also made submissions. The matter was referred to the Grand Chamber. Held The issue of when the right to life began fell within the margin of appreciation enjoyed by contracting states since: (i) the issue of such protection had not been resolved within many contracting states; and (ii) there was no European consensus on the scientific and legal definition of the beginning of life. In those circumstances, it was neither desirable nor possible to answer in the abstract the question of whether an unborn child was a person for the purposes of art 2. In any event, where the infringement of the right to life was not caused intentionally, the positive obligation imposed by art 2 to set up an effective judicial remedy did not necessarily require the provision of a criminal law remedy in every situation. In the instant case, the applicant could have made a claim for redress in the administrative courts which would have had fair prospects of success. Such an action could be regarded as an effective remedy. It followed that, even assuming that art 2 was applicable in the instant case, there had been no violation of that article.

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5 June 1997 1 Times Law Reports Inner House of the Court of Session Kelly v. Kelly Before the Lord Justice-Clerk (Lord Cullen), Lord McCluskey and Lord Wylie (Judgment May 24 ) Scots law - abortion - foetus has no independent legal existence or rights Foetus has no independent legal existence or actionable rights To cause a foetus to be aborted was not a civil wrong that was actionable at the instance of the foetus. The Second Division of the Inner House of the Court of Session so held, refusing a reclaiming motion by Mr James Kelly against an interlocutor of the Lord Ordinary recalling an interim interdict granted against the estranged wife of the petitioner, Mrs Lynn Falconer or Kelly, from instructing, consenting or submitting to a termination of pregnancy. Mr Colin Sutherland, QC and Mr Daniel Kelly for the petitioner; Mrs Anne Smith, QC and Mr Brian Fitzpatrick for the respondent. THE LORD JUSTlCE-CLERK , delivering the opinion of the court, narrated the effect of the Abortion Act 1967 and went on to say that its provisions were not of themselves determinative of the question of whether carrying out an abortion might violate any person's legal rights. The main arguments which Mr Sutherland presented broke down into five points: 1 An action of damages lay at the instance of a child's guardian, including the father of a legitimate child, in respect of wrongful injury sustained by that child while in utero: see Elliot v Joicey (1935 SC (HL) 57); Hamilton v Fife Health Board (1993 SC 369) and compare B v

Islington Health Authority ([1991] 1 QB 638); De Martell v Merton and Sutton Health Authority ([1993] QB 204). 2 Such an injury was actionable at the instance of the child, acting through his or her guardian, and not at the instance of the mother as an individual: see section 2 of the Children (Scotland) Act 1995. 3 If such an injury created an actionable wrong, it had to be a wrong not merely sounding in damages after the event but also a wrong capable of prevention by interdict in advance of the wrong occurring: see Burn-Murdoch Interdict p1. 4 In that connection, the wrong which was capable of being interdicted could not be confined to one which was only capable of causing injury to, and not the death of the child. 5 In regard to what he described as a peripheral issue, there should be no fiction that injury to a child caused ante-natally only occurred in law at the child's birth. The reality was that harm occurred when the foetus suffered damage. It did not occur at birth. Their Lordships observed that the latter submission ran counter to what had been said by Lord McCluskey in Hamilton . Their Lordships had no difficulty in accepting the proposition that the remedy of interdict would be available at the instance of a person or his representative to prevent damage being deliberately caused to that person, being damage which, if it occurred, would sound in an award of damages in favour of that person. Second, if an abortion was an actionable wrong to the foetus as such, their Lordships agreed that the father would be entitled to take

5 June 1997 2 Times Law Reports Kelly v Kelly proceedings on behalf of the foetus. However, the critical question was whether the abortion was or could be an actionable wrong. Mrs Smith submitted that the fatal flaw in the pursuer's argument was that of treating the foetus as a person with rights. So long as there was an unborn foetus there was no legal persona which was separate from that of the mother and hence no wrong done to the foetus as such. The foetus was part of its mother's body, in the eyes of the law, in the same way as the placenta and umbilical cord. It was no doubt in recognition of that that in the criminal law abortion was a distinct crime and was not subsumed in the crime of murder. In Hamilton , Lord McCluskey had said: "An unborn person, a foetus, is not a person in the eyes of the law - at least in relation to the law of civil remedies". In Paton v British Pregnancy Advisory Service Trustees ([1979] 1 QB 276), Sir George Baker, President, had said: "The foetus cannot, in English law, in my view, have a right of its own at least until it is born and has a separate existence from its mother." In C v S ([1988] QB 135) the Court of Appeal affirmed a decision of Mrs Justice Heilbron who had said that a claim on behalf of a child "crystallises upon the birth, at which date, but not before, the child attains the status of a legal persona": see Re F (in Utero) ([1988] FCR 529). In Medhurst v Medhurst ((1984) 9 DLR (4th) 252), the Ontario High Court of Justice had quoted with approval the observation of Mr Justice Robins in Dehler v Ottawa Civil Hospital ((1979) 101 DLR (3d) 686) that "While there can be no doubt that the law has long recognised foetal life and has accorded the foetus various rights, those rights have always been held contingent upon a legal personality being acquired by the foetus upon its subsequent birth alive." In Borowski v Attorney-General for Canada ((1987) 39 DLR (4th) 731) the Saskatchewan Court of Appeal had referred to the majority opinion of the US Supreme Court in Roe v Wade ((1973) 410 US 113) and had also concluded that there were no cases in Anglo-Canadian law giving the foetus a status qua foetus: see Tremblay v Daigle ((1989) 62 DLR (4th) 634).

The question for the court was a question of law and not a question of policy. None of the decisions to which their Lordships had been referred appeared to provide support for the view that a foetus had a legal persona, or was otherwise recognised as capable of being vested in personal rights for the protection of which the remedy of interdict might be invoked. Mr Sutherland had submitted that none of the decisions in other jurisdictions had answered the question: "If it was legally wrong to damage the foetus, why was it not capable of being interdicted as a wrong?" However, that question itself begged a further question: namely, given that a claim could be made by or on behalf of a child who had

5 June 1997 3 Times Law Reports Kelly v Kelly been born in respect of an injury caused by what had been done before his or her birth, did it follow that injury to the foetus was actionable before the birth? In their Lordship's opinion it did not, and their answer to the question appeared to be supported by the general approach which had been followed in Scotland and in other jurisdictions. Whether it was an actionable wrong to the unborn foetus for an abortion to be undertaken depended essentially on whether Scots law conferred on the foetus a right to continue to exist in the mother's womb. Their conclusion was that Scots law recognised no such right on the foetus. It followed that no person could invoke the power of the court to vindicate such a right. Their Lordships made two further observations. In the report of the decision of the European Commission of Human Rights in Paton v United Kingdom ((1980) 3 EHRR 408) the Commission had rejected the proposition that article 2 of the European Convention on Human Rights recognised an absolute right to life of the foetus. Second, if the foetus had the right to its own protection which could be vindicated on its behalf by interdict there would be no reason why it should be confined to cases in abortion. If such a right existed it could be used as the basis for a father taking legal action with a view to restraining the mother from some form of activity which was claimed to be harmful to the foetus, such as smoking and certain sports and occupations. There was plainly room for conflicting views as to what would be adverse to the interests of the foetus. In the circumstances, their Lordships were of the opinion that the legal proposition on which the pursuer's case for interdict was based was without foundation. Accordingly, he had not set out a prima facie case. Little had been said about the balance of convenience, no doubt because it was recognised that it was not a concept that was apposite in the circumstances and their Lordships expressed no opinion on that matter. The reclaiming motion would be refused. Law agents: David Johnson & Co; Balfour & Manson. 05/06/1997 Times Law Reports

244 Decisions APPLICATION No 8416/79 X v. /the UNITED KINGDOM DECISION of 13 May 1980 on the admissibility of the application Article 2, paragraph 1 of the Convention 1. a. The word "everyone's" seems not to be applicable to an unborn child.

2. b. Assuming that the right to life is secured to a foetus from the beginning of pregnancy, this right is subject to an implied limitation allowing pregnancy to be terminated in order to protect the mothers life or health. Article 8, paragraph 1, of the Convention : Since the continuance or termination of pregnancy principally raises a question of a woman's right to respect for her private life, a prospective father's right to respect for his family life does not extend to a right to be consulted on, or to seize the authorities of, the question of a proposed termination of pregnancy by his wife. Article 8, paragraph 2, of the Convention : In so far as termination of a pregnancy on health grounds may constitute an interference with the prospective father's right to respect for his family life, it can be considered as being justified as necessary for the protection of the rights of others. Article 25 of the Convention : A prospective father who complains that his wife has been able legally to terminate her pregnancy without his consent may claim to be the victim of an alleged violation of the Convention. THE FACTS 1. The applicant is a citizen of the United Kingdom born in 1944. He is a steel worker by profession. The applicant is represented by MM. Berkson and Berkson, solicitors at Birkenhead, Merseyside. 2. From his statements and the documents submitted by the applicant it appears that he was married to Y. on 10 October 1974. On 12 May 1978 he was told by his wife that she was eight weeks pregnant and intended to have an abortion. On 17 May 1978 the applicant applied to the High Court of Justice for an injunction to prevent the abortion from being carried out. The original defendants to the application were Dr K., the manager of the M. Nursing Home at which two doctors had given certificates in accordance with Section 1 of the Abortion Act 1967 (hereinafter called the "1967 Act"), and the applicant's wife. 3. Section 1 (1) of the 1967 Act permits the termination of a pregnancy by a registered medical practitioner if two registered medical practitioners find : a. that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated ; or b. that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped. The certificate in the present case was issued under paragraph (a) (injury to the physical or mental health of the pregnant woman).1 4. The application was heard and decided by Sir B., the President of the Family Division of the High Court of Justice, sitting at L. on 24 May 1978. At the hearing leave was granted to amend the writ by deleting Dr K. and by adding as defendants the trustees and director of the British Pregnancy Advisory Service, by which the M. Nursing Home was owned and operated. 5. In his oral submissions counsel for the applicant conceded that the 1967 Act had been complied with. 6. As to the question whether, in English law, the unborn child has a right to life, which could be invoked by the father, reference was inter alia made, on the one hand, to Roman law, where abortion without the father's consent was a crime, and, on the other, to the United States Supreme Court's decision in Planned Parenthood of Central Missouri v. Danforth A.G. where the Court, by a majority, held that the State of Missouri "may not constitutionally require the consent of the spouse as a condition for an abortion" Counsel for the applicant observed : "I do not pretend to be, by size of shape or feat, a 'Foetal Advocate', but I have endeavoured, whilst I have been developing the submissions to your Lordship, to look at it in that context. If the foetus has some kind of right to have its life preserved it might be possible to spell out of that a derivative right in the father. Everything is against that particular notion. It comes to this : the Supreme Court's decision has got to be wrong,

admittedly although they are in a different jurisdiction in dealing with different principles. The fact a man has got a right to father children, in the face of the Abortion Act does not entitle him to cause a wife whose health may be at risk to bear that risk and produce a child. The fact he has got some interest in the child has been urged by some of the authorities both in the Commonwealth and in America, but in this country they are against any such notion." 7. The President dismissed the application. He stated that an injunction could be granted only to restrain the infringement of a legal right ; that in English law the foetus has not legal rights until it is born and has a separate
1

In an affidavit submitted to the High Court the applicant's wife stated inter alia : "My marriage was increasingly unhappy and has broken down irretrievably. I left the plaintiff on legal advice as I feared for any safety and we live apart and in future I will live as a single woman Because of the plaintiff's behaviour life with him became increasingly impossible and my health suffered and I am receiving treatment from my doctor I could not cope and I verily believe that for months I have been close to a nervous breakdown." existence from its mother ; and that the father of a foetus, whether or not he is married to the mother, has no legal right to prevent the mother from having an abortion or to be consulted or informed about a proposed abortion, if the provisions of the 1967 Act have been complied with. 8. The abortion was carried out within hours of the dismissal of the application. COMPLAINTS The applicant contends that the Law of England and Wales violates : 1. Articles 2 and/or 5 of the Convention in that it allows abortion at all, and/or that it denies the foetus any legal rights ; and/or 2. Articles 6 and/or 8 and/or 9 of the Convention in that, if the provisions of the 1967 Act are complied with, it denies the father of a foetus, whether or not he is married to the mother : 1. a. a right to object to a proposed abortion of the foetus ; and/or 2. b. a right to apply to the Courts for an order to prevent or postpone the proposed abortion ; and/or 3. c. a right to be consulted about the proposed abortion ; and/or 4. d. a right to be informed about the proposed abortion ; and/or 5. e. a right to demand, in a case where registered medical petitioners have given certificates under Section 1 of the 1967 Act, that the mother be examined by a different registered medical practitioner or practitioners appointed by the father or by and upon his application to a designated court, tribunal or other body ; and/or 6. f. a right to demand that the registered medical practitioners, who examine the mother to decide whether or not to give certificates under Section 1 of the 1967 Act, should be independent of the institution or organisation at or by which the abortion will be carried out should such certificates be given. The applicant states that it is the object of his petition "to obtain the opinion of the European Court and the Commission of Human Rights upon the (above) conventions" and "to secure such amendments of the law of England and Wales as may be necessary to remove such violations of the Convention that the Court and Commission may find presently exist." The applicant finally submits with regard to Article 26 of the Convention (exhaustion of domestic remedies) that his application to the High Court "was for an injunction. An abortion having been carried out on Mrs Y. within hours of the dismissal of the application, it was not legally possible to pursue the application further. An injunction is (not) an equitable remedy. It is a maxim of equity that equity does nothing in vain. Accordingly, the dismissal of the application on 24 May 1978 by the President of the Family Division of the High Court of Justice marked the exhaustion of the applicant's domestic remedies." THE LAW

1. The applicant complains of the refusal, by the High Court of Justice, of his application for an injunction to prevent the termination of his wife's pregnancy. He submits that the Abortion Act 1967, under which this abortion was authorised and eventually carried out, violates Articles 2 and/or 5, 6, 8 and 9 of the Convention. 2. The Commission accepts that the applicant, as potential father, was so closely affected by the termination of his wife's pregnancy that he may claim to be a "victim", within the meaning of Article 25 of the Convention, of the legislation complained of, as applied in the present case. The Commission here refers to its decision on the admissibility of Application No. 2758/66, X. v. Belgium, Collection of Decisions 30, 11 - Yearbook on the European Convention on Human Rights 12, 175. The applicant in that case, a widow, complained that her husband had been killed in violation of Article 2 of the Convention, and the Commission assumed by implication that, for the purpose of that complaint, she fulfilled the "victim" condition of Article 25. The Commission further recalls that, in Application No. 5961/72, Amekrane v. the United Kingdom, Collection 44, 101 - Yearbook 16, 356, it accepted, again by implication, that the widow and the children of Mohamed Commission first notes that the term "everyone" ("toute personne") is not defined in the Convention. Amekrane could claim to be "victims" not only under Article 8, but also under Articles 3 and 5 of the Convention of the measures taken against their late husband and father. 3. The Commission also accepts that the present applicant, by his unsuccessful application to the High Court for an injunction, has exhausted the only available "domestic remedy" in the sense of Article 26 of the Convention. 4. The Commission, therefore, has to examine whether this application discloses any appearance of a violation of the provisions of the Convention 'invoked by the applicant, in particular Articles 2 and 8. It here recalls that the abortion law of High Contracting Parties to the Convention has so far been the subject of several applications under Article 25. The applicants either alleged that the legislation concerned violated the (unborn child's) right to life (Article 2) or they claimed that it constituted an unjustified interference with the (parents') right to respect for private life (Article 8). Two applications invoking Article 2 were declared inadmissible by the Commission on the ground that the applicants in the absence of any measure of abortion affecting them by reason of a close link with the foetus could not claim to be "victims" of the abortion laws complained of (Application No. 867/60, X. v. Norway, Collection 6, Yearbook 4, 270, and Application No. 7045/75, X. v. Austria, Decisions and Reports 7, 87). One application (No. 6959/75 Brggemann and Scheuten v. the Federal Republic of Germany), invoking Article 8, was declared admissible by the Commission, insofar as it had been brought by two women. The Commission, and subsequently the Committee of Ministers, concluded that there was no breach of Article 8 (Decisions and Reports 10, 100-122). That conclusion was based on an interpretation of Article 8 which, inter alia , took into account the High Contracting Parties' law on abortion as applied at the time when the Convention entered into force (ibid. p. 117, para. 64 of the Commission's Report). 5. The question whether the unborn child is covered by Article 2 was expressly left open in Application No. 6959/75 (loc. cit. page 116, paragraph 60 of the Report) and has not yet been considered by the Commission in any other case. It has, however, been the subject of proceedings before the Constitutional Court of Austria, a High Contracting State in which the Convention has the rank of constitutional law. In those proceedings the Austrian Constitutional Court, noting the different views expressed on this question in legal writings, found that Article 2, paragraph 1, first sentence, interpreted in the context of Article 2, paragraphs 1 and 2, does not cover the unborn life (Decision of 11 October 1974, Erk. Slg, (Collection of Decisions) No. 7400, EuGRZ (Europische Grundrechtezeitschrift) 1975, p.74). 6. Article 2, paragraph 1, first sentence, provides "Everyone's right to life shall be protected by law" (in the French text "Le droit de toute personne la vie est protg par la loi"). The Commission, in its interpretation of this clause and, in particular, of the terms "everyone" and

"life", has examined the ordinary meaning of the provision in the context both of Article 2 and of the Convention as a whole, taking into account the object and purpose of the Convention. 7. The It appears in Article 1 and in Section I, apart from Article 2, paragraph 1, in Articles 5, 6, 8 to 11 and 13. In nearly all these instances the use of the word is such that it can apply only postnatality. None indicates clearly that it has any possible prenatal application, although such application in a rare case eg under Article 6, paragraph 1 cannot be entirely excluded. 8. As regards, more particularly, Article 2, it contains the following limitations of "everyone's" right to life enounced in the first sentence of paragraph 1 : 1. a clause permitting the death penalty in paragraph 1, second sentence : "No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law" ; and 2. the provision, in paragraph 2, that deprivation of life shall not be regarded as inflicted in contravention of Article 2 when it results from "the use of force which is more than absolutely necessary" in the following three cases : "in defence of any person from unlawful violence" : "in order to effect a lawful arrest or to prevent the escape of a person lawfully detained" ; "in action lawfully taken for the purpose of quelling a riot or insurrection". All the above limitations, by their nature, concern persons already born and cannot be applied to the foetus. 9. Thus both the general usage of the term "everyone" ("toute personne") in the Convention (paragraph 7 above) and the context in which this term is employed in Article 2 (paragraph 8 above) tend to support the view that it does not include the unborn. 10. The Commission has next examined, in the light of the above considerations, whether the term "life" in Article 2, paragraph 1, first sentence, is to be interpreted as covering only the life of persons already born or also the "unborn life" of the foetus. The Commission notes that the term "life", too, is not defined in the Convention. 11. It further observes that another, more recent international instrument for the protection of human rights, the American Convention on Human Rights of 1969, contains in Article 4, paragraph 1, first and second sentences, the following provisions expressly extending the right to life to the unborn : "Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception." The Commission notes that no such express extension is contained in Article 2 of the European Convention on Human Rights. 12. The Commission is aware of the wide divergence of thinking on the question of where life begins. While some believe that it starts already with conception others tend to focus upon the moment of nidation, upon the point that the foetus becomes "viable", or upon live birth. 13. The German Federal Constitutional Court, when interpreting the provision "Everyone has a right to life" in Article 2 (2) of the Basic Law, stated as follows (judgment of 25 February 1975, Appendix VI to the Commission's Report in the Brggemann and Scheuten Case, C I 1 b of the grounds) : "Life in the sense of the historical existence of a human individual exists according to established biological and physiological knowledge at least from the 14th day after conception (Nidation, Individuation) The process of development beginning from this point is a continuous one so that no sharp divisions or exact distinction between the various stages of development of human life can be made. It does not end at birth ; for example, the particular type of consciousness peculiar to the human personality only appears a considerable time after the birth. The protection conferred by Article 2.2 first sentence of the Basic Law can therefore be limited neither to the 'complete' person after birth not to the foetus capable of independent existence prior to birth. The right to life is

guaranteed to every one who 'lives' ; in this context no distinction can be made between the various stages of developing life before birth or between born and unborn children. 'Everyone' in the meaning of Article 2.2 of the Basic Law is 'every living human being', in other words : every human individual possessing life ; 'everyone' therefore includes unborn human beings." 14. The Commission also notes that, in a case arising under the Constitution of the United States (Roe v. Wade, 410 U.S. 113), the State of Texas argued before the Supreme Court that, in general, life begins at conception and is present throughout pregnancy. The Court, while not resolving the difficult question where life begins, found that, "with respect to the State's important and legitimate interest in potential life, the 'compelling' point is at viability". 15. The Commission finally recalls the decision of the Austrian Constitutional Court mentioned at paragraph 5 above which, while also given in the framework of constitutional litigation, had to apply, like the Commission in the present case, Article 2 of the European Convention on Human Rights. 16. The Commission considers with the Austrian Constitutional Court that, in interpreting the scope of the term "life" in Article 2.1, first sentence, of the Convention, particular regard must be had to the context of the Article as a whole. It also observes that the term "life" may be subject to different interpretations in different legal instruments, depending on the context in which it is used in the instrument concerned. 17. The Commission has already noted, when discussing the meaning of the term "everyone" in Article 2 (para. 8 above), that the limitations, in paragraphs 1 and 2 of the Article, of "everyone's" right to "life", by their nature, concern persons already born and cannot be applied to the foetus. The Commission must therefore examine whether Article 2, in the absence of any express limitation concerning the foetus, is to be interpreted : as not covering the foetus at all ; as recognising a "right to life" of the foetus with certain implied limitations ; or as recognising an absolute "right to life" of the foetus. 18. The Commission has first considered whether Article 2 is to be construed as recognising an absolute "right to life" of the foetus and has excluded such an interpretation on the following grounds. 19. The "life" of the foetus is intimately connected with, and it cannot be regarded in isolation of, the life of the pregnant woman. If Article 2 were held to cover the foetus and its protection under this Article were, in the absence of any express limitation, seen as absolute, an abortion would have to be considered as prohibited even where the continuance of the pregnancy would involve a serious risk to the life of the pregnant woman. This would mean that the "unborn life" of the foetus would be regarded as being of a higher value than the life of the pregnant woman. The "right to life" of a person already born would thus be considered as subject not only to the express limitations mentioned in paragraph 8 above but also to a further, implied limitation. 20. The Commission finds that such an interpretation would be contrary to the object and purpose of the Convention. It notes that, already at the time of the signature of the Convention (4 November 1950), all High Contracting Parties, with one possible exception, permitted abortion when necessary to save the life of the mother and that, in the meanwhile, the national law on termination of pregnancy has shown a tendency towards further liberalisation. 21. Having thus excluded, as being incompatible with the object and purpose of the Convention, one of the three different constructions of Article 2 mentioned in paragraph 17 above, the Commission has next considered which of the two remaining interpretations is to be regarded as the correct one ie whether Article 2 does not cover the foetus at all or whether it recognises a "right to life" of the foetus with certain implied limitations. 22. The Commission here notes that the abortion complained of was carried out at the initial stage of the pregnancy the applicant's wife was ten weeks pregnant under Section 1 (1) (a) of the Abortion Act 1967 in order to avert the risk of injury to the physical or mental health of

the pregnant woman. It follows that, as regards the second of the two remaining interpretations, the Commission is in the present case not concerned with the broad question whether Article 2 recognises a "right to life" of the foetus during the whole period of the pregnancy but only with the narrower issue whether such a right is to be assumed for the initial stage of the pregnancy. Moreover, as regards implied limitations of a "right to life" of the foetus at the initial stage, only the limitation protecting the life and health of the pregnant woman, the so-called "medical indication", is relevant for the determination of the present case and the question of other possible limitations (ethic indication, eugenic indication, social indication, time limitation) does not arise. 23. The Commission considers that it is not in these circumstances called upon to decide whether Article 2 does not cover the foetus at all or whether it recognises a "right to life" of the foetus with implied limitations. It finds that the authorisation, by the United Kingdom authorities, of the abortion complained of is compatible with Article 2 (1), first sentence because, if one assumes that this provision applies at the initial stage of the pregnancy, the abortion is covered by an implied limitation, protecting the life and health of the woman at that stage, of the "right to life" of the foetus. 24. The Commission concludes that the applicant's complaint under Article 2 is inadmissible as being manifestly ill-founded within the meaning of Article 27.2 25. In its examination of the applicant's complaints concerning the Abortion Act 1967 and its application in this case, the Commission has next had regard to Article 8 of the Convention which, in paragraph 1, guarantees to everyone the right to respect for his family life. The Commission here notes, apart from his principal complaint concerning the permission of the abortion, the applicant's ancillary submission that the 1967 Act denies the father of the foetus a right to be consulted, and to make applications, about the proposed abortion. The Commission also observes that the applicant, who under Article 2 claims to be the victim of a violation of the right to life of the foetus of which he was the potential father, under Article 8 invokes a right of his own. 26. As regards the principal complaint concerning the permission of the abortion, the Commission recalls that the pregnancy of the applicant's wife was terminated in accordance with her wish and in order to avert the risk of injury to her physical or mental health. The Commission therefore finds that this decision, insofar as it interfered in itself with the applicant's right to respect for his family life, was justified under paragraph 2 of Article 8 as being necessary for the protection of the rights of another person. It follows that this complaint is also manifestly illfounded within the meaning of Article 27.2. 27. The Commission has next considered the applicant's ancillary complaint that the Abortion Act 1967 denies the father of the foetus a right to be consulted, and to make applications, about the proposed abortion. It observes that any interpretation of the husband's and potential father's right, under Article 8 of the Convention, to respect for his private and family life, as regards an abortion which his wife intends to have performed on her, must first of all take into account the right of the pregnant woman, being the person primarily concerned in the pregnancy and its continuation or termination, to respect for her private life. The pregnant woman's right to respect for her private life, as affected by the developing foetus, has been examined by the Commission in its Report in the Brggernann and Scheuten Case (loc. cit. paras. 59 et seq.). In the present case the Commission, having regard to the right of the pregnant woman, does not find that the husband's and potential father's right to respect for his private and family life can be interpreted so widely as to embrace such procedural rights as claimed by the applicant, ie a right to be consulted, or a right to make applications, about an abortion which his wife intends to have performed on her. The Commission concludes that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27.2. 28. The Commission does not find that any of the other provisions invoked by the applicant (Articles 5, 6 and 9 of the Convention) are relevant for the examination of his complaints.

For these reasons, the Commission DECLARES THIS APPLICATION INADMISSIBLE. 19 D & R 244

[1988] 135 1 Q.B. [COURT OF APPEAL] C v. S. AND ANOTHER [1987 C. No. 1969] 1987 Feb. 17, 18, 20, 21;23 Heilbron J. 1987 Feb. 23, 24;25 Sir John Donaldson M.R. Stephen Brown and Russell L.JJ. Crime - Child destruction - "Child capable of being born alive" - Application by putative father for injunction restraining pregnant woman from aborting foetus - Whether foetus of between 18 and 21 weeks "child capable of being born alive" - Whether abortion of foetus constituting offence of child destruction - Whether jurisdiction to grant injunction to prevent abortion Whether putative father having locus standi on own behalf or on behalf of foetus en ventre sa mre -Infant Life (Preservation) Act 1929 (19 & 20 Geo. 5, c. 34), s. 1(1) Injunction - Jurisdiction to grant - Locus standi of applicant - Abortion, prevention of Application by putative father on behalf of himself and of foetus en ventre sa mre to restrain abortion by mother and health authority - Whether jurisdiction to grant injunction - Whether applicants having locus standi Court of Appeal (Civil Division) - Appeals - Finality - Urgent cases - Finality of Court of Appeal decision The putative father of a foetus of between 18 and 21 weeks en ventre sa mere applied on his own behalf and on behalf of the unborn child for an injunction to restrain the mother, and the health authority concerned, from performing an abortion even though all the relevant conditions of the Abortion Act 1967 1 had been fulfilled, on the ground that such a foetus was a "child capable of being born alive" within the meaning of section 1(1) of the Infant Life (Preservation) Act 1929 2 (as specifically preserved by section 5(1) of the Act of 1967). The judge accepted expert evidence as to the stage of development such a foetus would normally be expected to have reached, which suggested that its cardiac muscle would be contracting, that primitive blood circulation and physical movements would be demonstrated, but that, if delivered by hysterotomy, such a foetus would never be able to breathe either naturally or with artificial assistance. The judge held that the second plaintiff had no locus standi, and that since she was not satisfied that a potential offence under the Act of 1929 had been proved, the first plaintiff's application for an injunction should be dismissed. On appeal by the plaintiffs: Held, dismissing the appeal, that a foetus of between 18 and 21 weeks en ventre sa mere whose cardiac muscle was contracting and which showed signs of primitive movement and circulation but which if delivered by hysterotomy would never be capable of breathing either naturally or artificially was not a "child capable of being born alive" within the meaning of section 1(1) of the Act of 1929; that, therefore, the abortion of the foetus 1 Abortion Act 1967, s. 5(1): see post, p. 139D-E

2 Infant Life (Preservation) Act 1929, s. 1(1): see post, p. 139F-G.

[1988] 136 1 Q.B. C. v. S. would not constitute an offence of child destruction and that accordingly, regardless of any question of locus standi, the plaintiffs were not entitled to an injunction (post, pp. 151H - 152A ). Per curiam. In practical terms in the everyday life of this country the Court of Appeal is the final court of appeal and must always be so in circumstances of real urgency. In those circumstances no one could be blamed for acting on a judgment of the Court of Appeal (post, p. 152B-E ). Decision of Heilbron J. , post, p. 137F et seq. affirmed. The following case is referred to in the judgment of the Court of Appeal: Paton v. British Pregnancy Advisory Service Trustees ELR WLR [1979] Q.B. 276; [1978] 3 W.L.R. 687; [1978] 2 All E.R. 987 The following additional cases were cited in argument in the Court of Appeal: Reg. v. West (1848) 2 Car. & Kir. 784 Rex v. Brain (1834) 6 C. & P. 349 The following cases are referred to in the judgment of Heilbron J.: Dehler v. Ottawa Civic Hospital (1979) 25 O.R. (2d) 748; (1980) 29 O.R. (2d) 677 Gouriet v. Union of Post Office Workers ELR WLR [1978] A.C. 435; [1977] 3 W.L.R. 300; [1977] 3 All E.R. 70, H.L.(E.) Medhurst v. Medhurst (1984) 46 O.R. (2d) 263; 9 D.L.R. (4th) 252 Paton v. British Pregnancy Advisory Service Trustees ELR WLR [1979] Q.B. 276; [1978] 3 W.L.R. 687; [1978] 2 All E.R. 987 Pramatha Nath Mullick v. Pradyumna Kumar Mullick (1925) L.R. 52 I.A. 245, P.C. Reg. v. Handley (1874) 13 Cox C.C. 79 Reg. v. Wright (1841) 9 C. & P. 754 Rex v. Enoch (1833) 5 C. & P. 539 Rex v. Poulton (1832) 5 C. & P. 329 Roe v. Wade (1973) 93 S.Ct. 705 Thellusson v. Woodford (1799) 4 Ves. 227 The following additional cases were cited in argument before Heilbron J.: Caller v. Caller ELR WLR [1968] P. 39; [1966] 3 W.L.R. 437; [1967] 2 All E.R. 754, D.C. Carruthers and Whelton v. Langley [1984] 5 W.W.R. 538 Cayne v. Global Natural Resources Plc. [1984] 1 All E.R. 225, C.A. Elliot v. Lord Joicey [1935] A.C. 209, H.L.(E.) George and Richard, The (1871) L.R. 3 A. & E. 466 Gillick v. West Norfolk and Wisbech Area Health Authority ELR WLR

[1986] A.C. 112; [1985] 3 W.L.R. 830; [1985] 3 All E.R. 402, H.L.(E.) Island Records Ltd., Ex parte ELR WLR [1978] Ch. 122; [1978] 3 W.L.R. 23; [1978] 3 All E.R. 824, C.A. Jones v. Smith (1973) 278 So. 2d 339 Montreal Tramways v. Leveille [1933] 4 D.L.R. 337 Morris v. Redland Bricks Ltd. ELR WLR [1970] A.C. 652; [1969] 2 W.L.R. 1437; [1969] 2 All E.R. 576, H.L.(E.) N.W.L. Ltd. v. Woods WLR ICR [1979] 1 W.L.R. 1294; [1979] I.C.R. 867; [1979] 3 All E.R. 614, H.L.(E.) Pinchin v. Santam Insurance Co. Ltd. [1963(2)] S.A. 254

[1988] 137 1 Q.B. C. v. S. Reg. v. West (1848) 2 Car. & Kir. 784 Rex v. Brain (1834) 6 C. & P. 349 Rex v. Shephard [1919] 2 K.B. 125, C.C.A. Royal College of Nursing of the United Kingdom v. Department of Health and Social Security ELR WLR [1981] A.C. 800; [1981] 2 W.L.R. 279; [1981] 1 All E.R. 545, C.A. and H.L.(E.) Scatterwood v. Edge (1697) 1 Salk. 229 APPLICATION The first plaintiff, a single man and a post graduate student at Oxford University, sought on his own behalf and as the next friend and father of the second plaintiff, a child en ventre sa mre, an injunction to restrain the first defendant, a single woman, also a student at Oxford University, who was 18 weeks advanced in pregnancy, from terminating the pregnancy. The first defendant had been granted a certificate as required by the terms of the Abortion Regulations 1968 (S.I. 1968 No. 390). The plaintiffs also sought an injunction to restrain the Oxford Area Health Authority, the second defendant from causing or permitting either by itself or its servants or agents the performance of the abortion. On 13 February 1987 the matter came ex parte before Turner J. who dismissed the application. On 13 February 1987 the Court of Appeal directed that the matter be heard inter partes. Heilbron J., sitting in the Queen's Bench Division, heard the matter in chambers. Judgment was delivered in open court. The facts are stated in the judgment of Heilbron J. Gerard Wright Q.C. and Tonya Pinsent for the first and second plaintiffs. Peter Sheridan Q.C. and Caroline Harry Thomas for the first defendant. Allan Levy as amicus curiae. Cur. adv. vult. February 23. HEILBRON J. read the following judgment. The first defendant, Miss S., a single woman, 21 years of age and a university student, is approximately 18 weeks pregnant and wishes to have an abortion. She obtained a certificate signed by two doctors, as required by the terms of the Abortion Act 1967. The operation should have taken place on Monday, 23 February 1987,

that is to say, today, at the Radcliffe Hospital, Oxford, for which the Oxfordshire Area Health Authority is responsible. The first plaintiff, Mr. C., a single man and a postgraduate student, is the father of the second plaintiff, who is named as "a child en ventre sa mere" and sues by his father and next friend. Mr. C. applies on his own behalf, and on behalf of the second plaintiff, for orders restraining Miss S. from having an abortion and the oxford Area Health Authority, the second defendants, from causing or permitting (by itself or its servants or agents) the abortion to be performed. The second defendants have adopted a neutral position and have taken no part in the proceedings.

[1988] 138 1 Q.B. C. v. S. Heilbron J. This matter first came before Turner J. on an ex parte application by the plaintiffs for an injunction, which was refused, and on appeal the Court of Appeal directed that the matter be heard speedily. The hearing before this court began last Tuesday, 17 February 1987, as a matter of urgency, but, due to its anticipated length, the doctors agreed with some reluctance to a short postponement of the proposed termination (if it was to take place) until Thursday, 26 February 1987 at the latest. There were a number of affidavits put before the court, one from Mr. C., two from Miss S., one from her solicitor and several from three consultants, namely two from Mr. Norris, two from Professor Newton and one from Professor Rivers. None has been personally involved in the factual events or with the parties. The facts briefly are that Miss S. and Mr. C. met in or about October 1985. Sexual intercourse occurred for the first time and unexpectedly on 17 October 1986 when no precautions were taken and as was discovered much later, conception had occurred. Miss S. visited her college doctor on 20 October 1986 to seek his advice and help to try and avoid the possibility of pregnancy, and he prescribed a pill for her to take for this purpose. Subsequently bleeding occurred for two weeks, followed a month later by the onset of a normal period. Not long after, she began to suffer from depression and her doctor prescribed antidepressants and referred her to a psychiatrist. Intercourse had continued intermittently and casually for a few weeks and precautions were taken. This brief affair came to an end at the end of November. By that date, Miss S. was feeling very ill indeed with persistent depression, vomiting and nausea, she developed a chest infection, but she had no idea she was pregnant. She went to stay with her parents in December but continued to feel very ill and her local doctor sent her for chest X-rays. She was X-rayed twice, on one occasion unshielded. Miss S. went to see the college doctor again, after she missed a period in January, in order to have a check-up. The doctor arranged for her to have a scan on 27 January 1987, when her pregnancy was revealed for the first time. She has now been informed by the doctor that the unshielded X-rays could cause complications with her pregnancy, in that there might be some damage to the foetus. She saw the consultant the day following the discovery of her pregnancy and he discussed with her in detail all the circumstances of the pregnancy, the possible medical complications concerned with its continuation, and explained that it would be appropriate for her to have a termination if she wished and that she should return in a week. During that week she told Mr. C. of her condition and they discussed the situation. She denies telling him, as he asserts, that she was not contemplating an abortion; she told him that she was considering the options. When she next saw the college doctor on 6 February 1987, she told him that she wanted a termination, and on 9 February 1987 he signed the certificate of opinion, having seen her and

examined her on a number of occasions. This is the certificate required by the terms of the Abortion Regulations 1968 before an abortion can be performed. She

[1988] 139 1 Q.B. C. v. S. Heilbron J. saw a consultant at the Radcliffe Hospital two days later who also examined her as he was required to do and he signed the certificate. The ground was number 2 on the form, namely that the continuance of the pregnancy would involve risk of injury to her physical or mental health greater than if the pregnancy was terminated. Miss S. further stated in her affidavit that she believed her mental state was now precarious and that these proceedings have caused her more anxiety and distress, and no one has doubted that, except Mr. C., for he asserted in his affidavit that she was healthy and would suffer no risk to her health, either mental or physical. That was directly contrary to the views of two doctors. It is not suggested that Mr. C. is possessed of any medical qualifications or that he has any medical knowledge as to Miss S.'s condition which, on the evidence before me, indicates that her health has been adversely affected by a difficult and complicated pregnancy with all the attendant anxieties which she mentions. The Abortion Act 1967 provides: "1(1) a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two medical practitioners are of the opinion, formed in good faith - (a ) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family greater than if the pregnancy were terminated; "5(1) Nothing in this Act shall affect the provisions of the Infant Life (Preservation) Act 1929 (protecting the life of the viable foetus). (2) For the purposes of the law relating to abortion, anything done with intent to procure the miscarriage of a woman is unlawfully done unless authorised by section 1 of this Act." By section 1 of the Infant Life (Preservation) Act 1929, the offence of child destruction (for which the maximum penalty is imprisonment for life) occurs where: "(1) any person who, with intent to destroy the life of a child capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother (2) For the purposes of this Act, evidence that a woman had at any material time been pregnant for a period of 28 weeks or more shall be prima facie proof that she was at that time pregnant of a child capable of being born alive." The Abortion Regulations 1968 made under section 2 of the Abortion Act 1967 set out the conditions relating to the certificate of opinion to be provided by two medical practitioners prior to commencement of the treatment for the termination of the pregnancy. There is, in those regulations, a restriction on disclosure of information other than to certain limited and specified persons. Neither the husband nor a father is within that group. Furthermore, there is no provision requiring or referring to consultation with or obtaining the consent of a husband (if any) or father. Neither is given any power of veto.

[1988] 1 Q.B.

C. v. S.

140 Heilbron J.

The defendant contends that the termination which she wishes to be performed is a lawful one, that neither the first nor the second plaintiff has the locus standi to maintain this suit, and she seeks dismissal of the applications. Mr. Wright's case on behalf of the first plaintiff is that he has the locus standi to bring these proceedings, based on his personal interest, which he does not put as high as a legal right, and because the proposed termination encompasses, he submits, a threatened crime concerning the life of his child. If it were to be decided that there was no such threat, he concedes that he has no standing qua father, for he does not contend that as a father he has any special rights. He concedes too that a husband has no special rights qua husband, and he accepts the correctness of the decision in Paton v. British Pregnancy Advisory Service Trustees [1979] Q.B. 276 in that regard. As to the position of the second plaintiff and his claim that the unborn child has the locus standi to make this application, Mr. Wright produced a wealth of authorities from far and wide, some of which he cited. His research and that of his junior was extensive, but it would serve no useful purpose, nor do I propose, to refer to most of them, for they did appear to be somewhat remote from the issue as to whether or not the unborn child could be a party to this motion. Mr. Wright indeed referred me to a Privy Council case relating to the right of an Indian idol to participate in legal proceedings. The facts of that case, Pramatha Nath Mullick v. Pradyumna Kumar Mullick (1925) L.R. 52 I.A. 245 were so exceptional and so far removed from anything I have to decide as to be of little assistance. The authorities, it seems to me, show that a child, after it has been born, and only then, in certain circumstances, based on he or she having a legal right, may be a party to an action brought with regard to such matters as the right to take, on a will or intestacy, or for damages for injuries suffered before birth. In other words, the claim crystallises upon the birth, at which date, but not before, the child attains the status of a legal persona, and thereupon can then exercise that legal right. This also appears to be the law in a number of Commonwealth countries. In Medhurst v. Medhurst (1984) 46 O.R. (2d) 263 Reid J. held in the High Court of Ontario that an unborn child was not a person and that any rights accorded to the foetus are held contingent upon a legal personality being acquired by the foetus upon its subsequent birth alive. Nor could its father (the husband, in that case) act as the foetus's next friend. A similar decision was taken in Dehler v. Ottawa Civic Hospital (1979) 25 O.R. (2d) 748 (quoted with approval by Reid J.) and affirmed by the Court of Appeal of Canada (1980) 29 O.R. (2d) 677. In Paton v. British Pregnancy Advisory Service Trustees [1979] Q.B. 276 Sir George Baker P. in a case where a husband sought and was refused an injunction to prevent his wife obtaining an abortion, said, at p. 279: "there can be no doubt, in my view, that in England and Wales the foetus has no right of action, no right at all, until birth. The

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succession cases have been mentioned. There is no difference. From conception the child may have succession rights by what has been called a 'fictional construction' but the child must be subsequently born alive:" I agree entirely. In his reply, Mr. Wright's final position was summarised in this way: (1) he no longer relied on the numerous succession cases but he wished to retain some reliance on the position of the

unborn child in Thellusson v. Woodford (1799) 4 Ves. 227; (2) he did not claim that a child had either a right to be born nor a right to life in view of the terms of the Abortion Act 1967; but he maintained (3) the unborn child had a right to be a party because it was the subject of a threatened crime, that is to say, that of child destruction. If there was no such threat, then this claim too failed. In my judgment, there is no basis for the claim that the foetus can be a party, whether or not there is any foundation for the contention with regard to the alleged threatened crime, and I would dismiss the second plaintiff from this suit and the first plaintiff in his capacity as next friend. The question of the plaintiff's locus standi both as husband and father was also considered in Paton's case [1979] Q.B. 276 by Sir George Baker P., who decided that, since an unborn child has no rights of its own and since a father had no rights at common law over his illegitimate child, the plaintiff's right to apply for an injunction had to be made on the basis that he had the status of a husband and had rights of consultation and consent under the Abortion Act 1967. But the judge pointed out that the Abortion Act 1967 gives the husband no such rights and, in his view, therefore, the husband had no legal right, enforceable in law or equity (a necessary basis for issuing the injunction) to stop his wife having the abortion or to stop the doctors from carrying it out. Mr. Wright does not seek to argue the contrary; but he submits that the instant case is distinguishable, because no suggestion was made in Paton's case, as here, that there is a potential criminal abortion and that, if it is carried out, the doctor would be contravening the provisions of section 1 of the Infant Life (Preservation) Act 1929 and would be guilty, because he would be aborting a foetus of 18 weeks. Indeed, he further submitted that any doctor who had since 1967, or who proposed to, abort a foetus of that duration must be found guilty of the offence. Mr. Wright did not resile from the implications of that assertion, relying for it on the terms of the Infant Life (Preservation) Act 1929 and the statements of Mr. Norris in his affidavits, particularly in that which stated that "an unborn child of 18 weeks' gestation, were it to be delivered by hysterotomy, would be 'live born.'" The affidavits are important. They indicate very clearly the wide difference in thinking and interpretation between medical men, all of high reputation and great experience, in regard to the language used in the Act of 1929. I will now read the affidavits, so as to incorporate their explanation of certain phrases and terms into this judgment. I begin, because it was the first, with that of Mr. Norris, emeritus consultant gynaecologist at St. Peter's Hospital, Chertsey. He stated in his first

[1988] 142 1 Q.B. C. v. S. Heilbron J. affidavit that "an unborn child of 18 weeks' gestation, were it to be delivered by hysterotomy, would be 'live-born."' He then went on to refer to a definition of this expression or condition by the World Health Assembly under article 23 of the Constitution of the World Health Organisation in 1976 (subsequent to both the Acts in this matter) as being "the complete expulsion or extraction from its mother of a product of conception, irrespective of the duration of pregnancy, which after such separation or ," and I emphasise the "or" in his affidavit, "shows any other evidence of life such as beating of the heart, pulsation of the umbilical cord or definite movement of voluntary muscle, whether or not the umbilical cord has been cut or the placenta is attached." To that affidavit Professor John Richard Newton replied. He did so, in his first affirmation, on 16 February 1987. He said:

"I am the Layson Tait Professor of obstetrics and Gynaecology and Head of Department at the Birmingham University Medical School, Queen Elizabeth Hospital, Edgbaston, Birmingham. I have been a gynaecologist for twenty years and held my present position since 1979." He had been shown a copy of Mr. Norris's affidavit and asked to comment on it and in regard to paragraph 2 he said: " I believe it confusing in the circumstances to use the words 'live born' for a foetus of 18 weeks' gestation. As Mr. Norris says, the term has been defined by article 23 of the World Health Assembly in 1976. There is now produced and shown to me a copy of a report known as 'Report on Foetal Viability and Clinical Practice' which was prepared in August 1985 by a representative committee on behalf of the Royal College of Obstetricians and Gynaecologists, the British Paediatric Association, Royal College of General Practitioners, Royal College of Midwives, British Medical Association and the Department of Health and Social Security. I refer in particular to the twelfth page of that report in which reference is made to the recommendation of the World Health Organisation concerning perinatal statistics. The committee to which I have referred above was charged with the task of considering foetal viability and comparison is made between the World Health Organisation definition and the concept of foetal viability. As will be seen from the report, the purpose behind the World Health Organisation definition was to standardise the perinatal statistics for member countries of births. The purpose behind the definition was specifically not to define independent foetal viability and the committee go on to consider that concept and I believe that to be the important concept in these circumstances. Foetal viability means that the foetus is capable of independent human existence separate from the mother." He then refers to the contents of this report of the various prestigious colleges and associations of doctors and says:

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"It will be seen that in the survey of 29 neo-natal intensive care units in the United Kingdom, during 1982 no foetus of less than 23 weeks survived after delivery. It is my conclusion, therefore, that a foetus of anything below 23 weeks cannot survive independently of its mother and has therefore no viability." A few days later Mr. Norris swore a second affidavit, in order to amplify the first. He then suggested that the period of gestation was two, or possibly three, weeks more than the 18 weeks which had been mentioned. He went on to explain the expression "live born" which had been used in his first affidavit: "In case there is any ambiguity" - and I emphasise that phrase - "I wish to assert that in so stating I mean that in my opinion any foetus of 18 weeks or longer gestation is capable of being born alive and that by 'alive' I mean showing real and discernible signs of life within the meaning of the World Health Organisation definition set out in my original affidavit and of the Births and Deaths Registration Act 1926 current when the Infant Life (Preservation) Act 1929 was passed and also of the Births and Deaths Registration Act 1953 now current. Under the provisions of both these statutes such a child shall be registered as a live birth. A child of 18 or even 21 weeks' gestational age, although capable of being born alive and capable of surviving for some time outside the womb is not generally regarded by the medical profession as being viable because present paediatric skills are insufficient to assist it to remain alive for more than a limited time."

On the same day, 19 February 1987 Professor Newton, having read the second affidavit of Mr. Norris, stated in a further affidavit: "1. Although he uses the expression 'live born' in [his first] affidavit he does not mention, nor did I understand that he was specifically referring to the words actually appearing in an Act of Parliament namely the words 'born alive' in section 1, Infant Life (Preservation) Act 1929. This has now been drawn to my attention and I give my comments. 2. The expression 'born alive' used in the Infant Life (Preservation) Act 1929 raises difficulties before the expiration of 28 weeks of gestation. 3. Although it is difficult to generalise, for reasons which I will refer to in paragraph 4, after 8 weeks of gestation some foetuses will exhibit some primitive foetal movement, have a primitive heart tube which contracts and the circulation has started to develop, but these foetuses will be quite incapable of life separate from the mother. 4. Each individual foetus and each individual mother develops differently and at different rates." He then refers to the difficulty of the medical assessment of the gestational period in any particular case, which must be approximate and which may be complicated, as indeed in this case, by irregular menstruation. However, there are some firm generalisations on development which could be made: "In a foetus of 18 to 21 weeks' gestation the cardiac muscle is contracting and a primitive circulation is developing, but in my

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opinion lung development does not occur until after 24 weeks' gestation; before this time the major air passages have been formed and there is gradual development of the bronchioles, but these terminate in a blind sac, incapable of gas exchange, prior to 24 weeks." He says that a foetus of 18 to 21 weeks' gestation could be delivered by hysterotomy but that would not be routinely used on such a foetus, and he describes the type of operation: "Once placental separation occurs, whether the delivery has been by hysterotomy or vaginally, it will not be able to respirate. 7. What constitutes 'born alive' is controversial among the medical profession and often turns not only on medical knowledge but on the moral views of the person giving his opinion. I would mention that the development of each particular foetus and each particular mother is an individual process, the progress of which at any stage before 28 weeks can best be ascertained by an examination of the particular mother in question or, at the very least, detailed knowledge of that individual person." With that I must entirely agree, and Mr. Wright conceded that that must be so. It is an important aspect of this case, to which I will later refer. Professor Newton continued: "Whether or not a foetus up to 24 weeks of gestation is delivered by hysterotomy or vaginal delivery it will not be capable of surviving once the placental separation occurs. Up to 24 weeks, in my opinion, the lungs are incapable of sustaining life because they are not adequately developed. The development of other organs within the foetus is at an equally primitive stage, incapable of sustaining life. I do not consider the indicia referred to in paragraph 3 hereof to equate with being 'alive.' I equate 'alive' with being able to sustain a separate independent existence and, in my opinion, this, a foetus is clearly not capable of being able to do until after 24 weeks of gestation."

Finally, I draw attention to the affidavit of Professor Rivers F.R.C.P., a Reader in Paediatrics at St. Mary's Hospital Medical School since 1978 and having a special interest in new-born intensive care. He stated: "Although a foetus of 18 to 21 weeks' gestation displays some signs of life in the womb, in my opinion, such foetuses are unable to perform the function of lung respiration without which they cannot live separate from their mothers once the umbilical cord is clamped and/or the placenta is removed. Obviously therefore a foetus of such gestation cannot even be mechanically ventilated, since the lungs are not sufficiently developed for lung inflation and gas exchange to occur. 3. Whether such a foetus is 'born' before the umbilical cord is clamped and/or the placenta is removed or whether it is to be considered 'alive' after this has happened are matters which cause difficulty and controversy to such an extent that, for example, the medical profession prefer to use the words 'viable foetus' rather than the very difficult expression 'born alive.'"

[1988] 145 1 Q.B. C. v. S. Heilbron J. Mr. Wright submitted that "being born alive" is a much more restrictive concept than viability, for that embraces not only being born alive but surviving, for however short a time, thereafter; that the Act of 1929 is unconcerned with viability, but that there is no ambiguity in the words used and they cannot be extended to cover the other concept. Therefore, if a doctor aborts an 18-week foetus, Mr. Wright argued, he is inevitably doing so on one capable of being born alive, regardless of the fact, which he accepted, that not all foetuses are either identical or in the same condition, even though of the same period of gestation in different mothers. If Mr. Norris's view is correct, he continued, "all foetuses" must necessarily include the one in this case. Abortion itself is a very controversial subject. It has been; it still is. Many people feel genuinely and sincerely for and against its operation. It involves sociological, moral and profound religious aspects which arouse anxieties. Parliament itself has been much exercised over this subject for many years. None of these matters concern or affect my considerations or my ultimate decision. The court endeavours, to the best of its ability, to interpret the law and, as Sir George Baker P. said, "My task is to apply the law free of emotion or predilection:" see Paton v. British Pregnancy Advisory Service Trustees [1979] Q.B. 276, 278D. Since the enactment of the Infant Life (Preservation) Act 1929 there have undoubtedly been rapid, extensive and truly remarkable developments in medical science, not least in the field of obstetrics. (CONCLUSION??)Some matters have become much clearer, some have remained obscure and difficult to determine; so it is perhaps understandable that the question as to when life begins, as to when a foetus is capable of being born alive, as to when a child is actually alive, are all problems of complexity to even the greatest medical minds. The determination of when life ends is now also a matter of concern and dispute. Having said that, this case, I remind myself, concerns to some extent the meaning of the phrase "capable of being born alive." Unless Mr. Norris's unequivocal assertion that all foetuses of 18 weeks' gestation are capable of being born alive is taken at face value as credible, then in reality and in the hospital where the decisions are taken it is the doctor (one of a team and probably one not yet designated) who has to make his decision on that problem in respect of Miss S.'s unborn child. We do not know on what basis he will make his prognosis, for that is what is entailed, or indeed, if by now he has been nominated, whether he has made the decision and on what criteria. That the phrase is ambiguous would seem to follow from the differing points of view as disclosed in the affidavits and the exhibits.

In the 19th century, on charges of murder of a very young infant who died or was killed before or not long after separation from its mother at birth, I found some, perhaps a little, assistance, for the judge, after hearing medical evidence, sometimes in agreement but often in conflict, would direct the jury on the meaning of "born alive" (not, be it noted, "born alive and surviving") which was a necessary pre-condition for a conviction. Such directions, based on interpretation of that very phrase, prior to the Infant Life (Preservation) Act 1929, interpretations which one can presume would be known to the draftsmen of the Act

[1988] 146 1 Q.B. C. v. S. Heilbron J. and which might have been of some assistance were (except for one case that has been produced, though there may of course be more) based on interpretations culled from the doctors and bear a certain similarity to those in the affidavits of Professor Newton and Professor Rivers, rather than to those of Mr. Norris. In Reg. v. Handley (1874) 13 Cox C.C. 79, Brett J., a very distinguished High Court judge, directed the jury that a child was considered to have been "born alive" when it existed as a live child, that is to say, breathing and living by reason of its breathing through its own lungs alone, without deriving any of its living or power of living by or through any connection with its mother. In Rex v. Poulton (1832) 5 C. & P. 329, even the fact of the child having breathed was said not to be conclusive proof of it having been in a living state after birth. In that case, three medical men had given evidence and Littledale J. told the jury: "if there is all this uncertainty among these medical men, perhaps you would think it too much for you to say that you are satisfied that the child was born alive." (Emphasis added) In Rex v. Enoch (1833) 5 C. & P. 539, and similarly in Reg. v. Wright (1841) 9 C. & P. 754, Parke J. and Gurney B. respectively directed the jury that to be alive there must be (in addition to breathing) a circulation independent of the mother. The limited indicia of life which Mr. Norris said was sufficient, would not at any rate have accorded with those directions. Mr. Wright's case, that the plaintiff was entitled to an injunction because a crime was threatened, depended, it appears, partly, as Mr. Sheridan on behalf of Miss S. submitted, on the extraordinary and dogmatic assertion with regard to the ability to be born alive of every 18-week foetus, without any personal knowledge or examination of any of these countless unborn children; partly on his interpretation of "being born alive"; and partly on the view adumbrated by Mr. Wright that, if any doctor was intending to perform an abortion on an 18-week foetus, it would be perverse of him or her to assert other than that the foetus was capable of being born alive. Mr. Wright, though not Mr. Norris, submitted that no other interpretation of "live born" than that of Mr. Norris, is within the words of the Act of 1929. I disagree. Mr. Sheridan pointed out that Mr. Norris did not disagree with Professor Newton that an 18-week foetus cannot breathe and cannot even be mechanically ventilated. I would have thought that to say, as he has, that a child is live born or alive, even though it cannot breathe, would surprise not only doctors but many ordinary people. The word "viable" is, I believe from what I have heard in this case, sometimes used interchangeably and in a number of cases where others might use the words "born alive." In the United States of America, in the Supreme Court, Roe v. Wade (1973) 410 U.S. 113, it was said: "With respect to the State's important and legitimate interest in potential life, the 'compelling' point is at viability . This is so because the foetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of foetal life after viability thus has both logical and biological justifications."

[1988] 147 1 Q.B. C. v. S. Heilbron J. As far as the phrase in the Infant Life (Preservation) Act 1929 is concerned, Mr. Sheridan submits, it either contains an ambiguity or the phrase is a technical one. In my view, one or both of those submissions is or are correct. That expression, in my judgment, does not have a clear and plain meaning. It is ambiguous. It is a phrase which is capable of different interpretations; and probably for the reason that it is also a medical concept and, as with the example of earlier days, the expertise of doctors may well be required and gratefully received to assist the court. Even distinguished medical men have found considerable difficulties but have discovered that it is more helpful to equate that phrase with viability, possibly with the example from the parliamentary draftsman in mind. I cannot accept Mr. Wright's submission that this is not, at any rate in this court, even partly a matter of expert opinion as to the meaning of "alive," for I have to point out that the first expert who produced an affidavit on that very topic was introduced by him, namely Mr. Norris. Professor Newton replied later. Mr. Levy on behalf of the Official Solicitor, acting as amicus curiae, submitted that the alleged threatened criminality raised a difficult question of interpretation and pointed out that the phrase in the Abortion Act 1967 itself incorporates the word "viable" in the phrase which refers to "protecting the life of the viable foetus," a section to which I have already referred: see section 5(1). By that date, he argued, Parliament would no doubt be aware of the controversies over the law on abortion and it is possible that the use of that word is some indication that Parliament thought it necessary to use that particular qualifying word. I think that is possible too, though I would not attach too much weight to the parenthesis containing that word as an aid to construction. Perhaps it is more significant that, though the reference to a foetus of 28 weeks or more being "deemed capable of being born alive" is referable to the burden of proof, it is probably dealing with a foetus of an age that would be known or expected, to be viable in 1929. Mr. Norris, of course, does not limit his statement to a question of presumption. He goes much further and in effect makes his 18 weeks an irrebuttable presumption, thus, at a stroke, as it were, reducing the 28 weeks to 18. Mr. Levy submitted that the court should reject Mr. Norris's interpretation of "born alive" as the minimum indicia, without breathing, possibly without circulation and minus a number of indications referred to by Professor Newton. In considering this submission, I find Mr. Norris's statements as to the inevitability of every 18week foetus being born alive unacceptable. It is not necessary for me, nor would I want, to try to decide on affidavit evidence in a somewhat limited sphere, the answer, which baffles men and women with great scientific expertise, to a very profound question. I would, however, say that I am not greatly attracted to the very limited definition relied upon by Mr. Norris and I do not accept it as a realistic one.

[1988] 148 1 Q.B. C. v. S. Heilbron J. I now, finally, come to consider the alleged criminality and to decide, as I am asked to do, whether or not I should grant the injunction which is sought. I note, first of all, that this is a matter of the utmost urgency and importance. Mr. Wright no longer claims qua father, but it is not unimportant to point out, as Sir George Baker P. did, in Paton v. British Pregnancy Advisory Service Trustees [1979] Q.B. 276, 279-280, that, apart from a right to apply for custody of or access to an illegitimate child, the father has no

other rights whatsoever and the equality of parental rights provision in section 1(1) of the Guardianship of Minors Act 1973 expressly does not apply to an illegitimate child; parental rights are exclusively vested in the mother. An injunction of the nature sought is rare. Indeed, a case of this sort is rare. Paton's case was, I understand, the first to be heard in this country. Such an injunction should not issue, in any event, on evidence which is conflicting, or uncertain as here, and, in my opinion, for such an injunction to issue there must, most importantly, be strong evidence against the proposed defendant and virtual certainty that what is being complained of constitutes a defined criminal offence. Every case depends on its own facts and circumstances and none more so than this, for the graver the offence the more vital it is, before an injunction issues to interfere with the operative procedures being prepared because of the risk to the health of Miss S., that it is shown that an offence is virtually certain to be committed, if no injunction issues. Moreover, the statute whose terms have to be interpreted in order to found this alleged offence is a penal one and the offence which it is said will be committed is one which attracts a penalty, as I have indicated, of life imprisonment. Such statute must be strictly construed. I ask myself, first of all, how can an unknown, unascertained doctor, one who will be personally responsible for making the necessary clinical judgments, particularly pre-operatively, be said at this stage to be about to commit a criminal offence because another doctor, namely Mr. Norris, gives it as his opinion, unsupported by any other evidence or examination, that the hospital doctor will be, must be, committing this offence because, it is said, if he intends to do this operation, he must know that the foetus could be born alive ("alive" meaning what Mr. Norris says it means) and that if he nevertheless continues the termination he is not only perverse but guilty of the offence of child destruction. On the other hand, there is before me compelling evidence that Mr. Norris's opinion is not accepted by a wide body of eminent medical opinion and by many reputable doctors. I am not satisfied that a potential crime has been proved. If a doctor were to be charged, which is difficult to envisage, any such offence would have to be proved to the standard of certainty, the burden of proof, a heavy one, would be upon the prosecution to produce evidence to establish all the elements of their case, including proof of the accused's requisite mens rea (because such an offence would not be provable on an objective basis) and Mr. Norris's evidence as to the notional "perverse doctor" would not avail in any attempt to prove an offence under the Infant Life (Preservation) Act 1929.

[1988] 149 1 Q.B. C. v. S. Heilbron J. In my view, there is no sufficient basis for saying that there is threatened crime and, if a case were brought, the judge would in my judgment, be bound to stop the case, as I would. I have no hesitation in coming to the conclusion that Mr. Wright has not made out his case for an injunction. In view of my conclusion which disposes of the matter, I have not thought it necessary to add to this already long judgment by considering another hurdle that Mr. Wright might have encountered by reason of the decisions with regard to a private individual seeking to prevent the commission of an offence by way of an injunction, in line with the decision in Gouriet v. Union of Post Office Workers [1978] A.C. 435. Application dismissed with costs. Solicitors: Gamlens for Clifford Poole & Co., Salford; Edwin Coe & Calder Woods for Rigby, Loose & Mills, Birmingham; Official Solicitor. M. B. D. APPEAL from Heilbron J.

The applicant appealed on the grounds that the judge was wrong in law in that she (1) failed to appreciate that the interpretation of section 1(1) of the Infant Life (Preservation) Act 1929 was a matter of law and was therefore a judicial not a medical exercise and that after interpretation the application of the statute was a question of fact to be decided with assistance from, but not by, the medical profession; (2) failed to accord locus standi to the first plaintiff in his capacity as father of the unborn child; (3) failed to accept that English law recognised rights in the unborn child; (4) applied the criminal burden of proof to the application for a quia timet injunction. The facts are stated in the judgment of Sir John Donaldson M.R. Gerard Wright Q.C. and Tonya Pinsent for the first and second plaintiffs. The issues on this appeal are as follows. (i) What is the correct meaning and interpretation of the words "capable of being born alive" in section 1(1) of the Infant Life (Preservation) Act 1929? (ii) Is the evidence sufficient to show that this child is "capable of being born alive" as so defined? (iii) (a) Has the first plaintiff in his own right as illegitimate father or (b) has the child through the first plaintiff as next friend the locus standi to apply to the court for an injunction to restrain the threatened and allegedly criminal abortion? (iv) Is this a proper case for injunctive relief? On the first issue: the words are devoid of ambiguity. "Alive" is a simple concept and does not connote viability (an indefinite concept) or capability to survive. It should be construed in conformity with the common law, which does not demand viability in the victims of murder, and in conformity with the almost contemporary Births and Deaths Registration Act 1926, which makes the birth of a child which breathes or shows any other signs of life registrable as a live birth. [Reference

[1988] 150 1 Q.B. C. v. S. Heilbron J. was also made to the offences against the Person Act 1861, sections 6, 58 and 59.] The evidence on behalf of the plaintiffs makes plain that this child en ventre sa mere, being beyond 18 weeks gestation, is capable of being born alive in that if born now it will show recognisable signs of life. The evidence on behalf of the second defendant - that the child en ventre sa mere if born now would not be viable - simply does not meet the issue. Termination at the present stage of the first defendant's pregnancy would therefore constitute a criminal offence under section 1 of the Act of 1929. Indeed, any doctor who has since 1967 aborted, or who proposes to abort, a child of this gestational age must be found guilty of that offence. [Reference was made to Paton v. British Pregnancy Advisory Service Trustees [1979] Q.B. 276; Reg. v. West (1848) 2 Car. & Kir. 784 and Rex v. Brain (1834) 6 C. & P. 349.] [Argument on the remaining issues was first postponed in order to allow their Lordships to state their conclusion on this issue, and then abandoned in order to facilitate an immediate appeal against that conclusion to the House of Lords.] Peter Sheridan Q.C. and Caroline Harry Thomas , for the first defendant, were not called upon. Allan Levy , as amicus curiae, was also not called upon. The second defendant health authority did not appear and was not represented. SIR JOHN DONALDSON M.R. gave the following judgment of the court. In this appeal the court has been concerned with an application for an injunction to restrain the termination of pregnancy. The plaintiffs are the putative father, Mr. C., and, if this is permissible in English law, "a child en ventre sa mere" suing by its father. The defendants are Miss S., the mother, and the health authority under whose aegis any termination is likely to take place. An ex parte application for such an injunction was refused both by Turner J. and, on appeal, by this court. The application was renewed last week on an inter partes basis before Heilbron J. who refused it in a judgment given yesterday morning. In view of the possible danger to the health of the mother if this application remained unresolved for longer than was absolutely necessary, we

offered to hear the appeal within an hour of the judge having completed giving judgment and, with the consent of the parties, have begun to do so. The urgency precludes our giving full reasons for our conclusion that any injunction should be refused but the public interest also requires that, so far as possible, we indicate the basis of this conclusion. Expanded reasons dealing more fully with the arguments of Mr. Wright appearing for the appellants, on this first issue will be delivered at a later date. There is more than one way of measuring the duration of a pregnancy, but it is common ground that, however measured, this pregnancy has continued for between 18 and 21 weeks. Shortly after the time when conception must have taken place, the first defendant was prescribed and took medicine designed to prevent pregnancy developing. Later she was prescribed and took anti-depressant drugs. Later still, in

[1988] 151 1 Q.B. C. v. S. Heilbron J. ignorance that she was pregnant, she was twice subjected to X-ray examination for a chest infection. On one such occasion there was no shielding to prevent damage to the foetus whose presence was unknown. The pregnancy was revealed by a later body scan. All these treatments could damage a foetus and the first defendant wishes to terminate the pregnancy. It is common ground that all the steps required by the Abortion Act 1967 as a precondition to such a termination have been taken and, in particular, that in accordance with section 1(1) (a ) of that Act it has been certified by two doctors that in their opinion the continuance of the pregnancy would involve risk of injury to the physical or mental health of the first defendant greater than if the pregnancy were terminated. What is said by Mr. Wright is that termination of a pregnancy at this stage will necessarily involve the commission of a criminal offence under section 1(1) of the Infant Life (Preservation) Act 1929, the provisions of which are unaffected by the Abortion Act 1967. That subsection is in the following terms: "Subject as hereinafter in this subsection provided, any person who, with intent to destroy the life of a child capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother, shall be guilty of felony, to wit, of child destruction, and shall be liable on conviction thereof on indictment to penal servitude for life: Provided that no person shall be found guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother." The key words for present purposes are "destroy the life of a child capable of being born alive." We have received affidavit evidence from three doctors, none of whom has examined the first defendant. Their evidence is thus necessarily directed at the stage in the development of a foetus which can normally be expected to have been reached by the 18th to 21st week. On this, as one would expect, they are in substantial agreement. At that stage the cardiac muscle is contracting and a primitive circulation is developing. Thus the foetus could be said to demonstrate real and discernible signs of life. On the other hand, the foetus, even if then delivered by hysterotomy, would be incapable ever of breathing either naturally or with the aid of a ventilator. It is not a case of the foetus requiring a stimulus or assistance. It cannot and will never be able to breathe. Where the doctors disagree is as to whether a foetus, at this stage of development, can properly be described as "a child capable of being born alive" within the meaning of the Act of 1929. That essentially depends upon the interpretation of the statute and is a matter for the courts. We have no evidence of the state of the foetus being carried by the first defendant, but if it has reached the normal stage of development and so is incapable ever of breathing, it is not in our judgment "a child capable of being born alive" within the meaning of the Act and

[1988] 152 1 Q.B. C. v. S. Heilbron J. accordingly the termination of this pregnancy would not constitute an offence under the Infant Life (Preservation) Act 1929. I say no more at this stage because that disposes of the first issue, and Mr. Wright, with the agreement of Mr. Sheridan, wishes us to continue and deal with the other issues. [Mr. Sheridan, for the first defendant, said that since the second defendant health authority had indicated that it would not be prepared to carry out the abortion if there were any question of an appeal to the House of Lords, their Lordships might favour a two-stage approach to the issues under appeal and permit the first issue, on which they had already ruled, to proceed directly to the House of Lords if leave were given. Sir John Donaldson M.R. then continued:] Mr. Sheridan, I am bound to say that all three of us arc astonished at the attitude of the regional health authority. It is a fact that some thousand appeals are heard by this court every year, of which about fifty go to the House of Lords, either because the House of Lords does not consider them appropriate or because there may be other reasons, but it is a tiny proportion which go to the House of Lords. So in practical terms in the everyday life of this country this court is the final court of appeal and it must always be the final court of appeal in circumstances of real urgency. In those circumstances, no one could be blamed in any way - a fortiori, could they as a practical matter be prosecuted - for acting on a judgment of this court. If that be wrong - which it is not the life of the country in many respects would grind to a halt. The purpose of any supreme court, including the House of Lords, is to review historically and on a broad front; it is not to decide matters of great urgency which have to be decided once and for all. That said, since we cannot compel the authority to appreciate what the position is in the system of jurisprudence in this country, what we propose to do is to say that the appeal on the other issues will continue but that will not in any way prevent you from going to see the Appeal Committee or whoever you wish to see in the House of Lords with a view to seeing whether you can make an application to the committee or to the full House or whatever may be appropriate; and if it emerges at any stage of the argument that your presence or the presence of your junior or of the solicitors is required to attend before the House, we will immediately adjourn to enable you to do that. [There followed further discussion with counsel for both parties, in the course of which Mr. Wright, for the plaintiffs, indicated that as his client wished to appeal on the first issue he would, in view of the need for expedition, be prepared to consent to the remainder of the appeal being dismissed so as to enable his client to appeal at once to the House of Lords. After Mr. Sheridan had agreed to that course being taken, Sir John Donaldson M.R. continued:] Let me say what I would otherwise have said. Technically, and now in substance in the light of what Mr. Wright has said, the questions as to whether a putative father has any right to be heard on an application of this nature and whether a foetus is a legal person in law capable of suing do not arise, and of course we do not rule upon them. But I have also

[1988] 153 1 Q.B. C. v. S. Heilbron J. to say that if we had been in favour of Mr. C. on all other points, we should have had to have given very considerable thought to the words of Sir George Baker P. in Paton v. British Pregnancy Advisory Service Trustees [1979] Q.B. 276, 282, where he said: "not only would it be a brave and bold judge who would seek to interfere with the discretion of doctors acting under the Abortion Act 1967, but I think he would really be a

foolish judge who would try to do any such thing, unless, possibly, where there is clear bad faith and an obvious attempt to perpetrate a criminal offence. Even then, of course, the question is whether that is a matter which should be left to the Director of Public Prosecutions and the Attorney-General." So, with that addendum on behalf of the court, we dismiss the appeal. Appeal dismissed with costs. Leave to appeal refused. 24 February. The Appeal Committee of the House of Lords (Lord Bridge of Harwich, Lord Griffiths and Lord oliver of Aylmerton) dismissed the plaintiffs' petition for leave to appeal. 25 February. The Court of Appeal handed down the following announcement. SIR JOHN DONALDSON M.R. When delivering judgment yesterday, we said that considerations of urgency precluded the giving of full reasons, but that fuller reasons would be given later. The expanded reasons would have been concerned with technical arguments on the construction and inter-relation of the Births and Deaths Registration Acts 1836-1926, the Births and Deaths Registration Act 1953 and the Infant Life (Preservation) Act 1929. In view of the fact that the matter has since been considered by the House of Lords on the basis of the reasons already given, we now consider that it would be inappropriate to add to that judgment. STEPHEN BROWN L.J. I agree. RUSSELL L.J. I agree. Solicitors: Gamlens for Clifford Poole & Co., Salford; Edwin Coe & Calder Woods for Rigby, Loose & Mills, Birmingham; Official Solicitor. [Reported by PAUL MAGRATH, Barrister-at-Law] [1988] Q.B. 135

2005 128 1 Inquest LR Vo v. France Issue : Whether the absence of a criminal remedy to punish the unintentional destruction of a foetus constituted a failure on the part of the state to protect by law the right to life within the meaning of Art 2 ECHR. Court and Reference : ECtHR Grand Chamber; Appn 53924/00 Judges : L Wildhaber (President), C Rozakis, J-P Costa, G Ress, N Bratza, L Caflisch, V Strznick, P Lorenzen, K Jungwiert, M Fischbach, J Hedigan, W Thomassen, A Baka, K Traja, M Ugrekhelidze, A Mularoni, K Hajiyev. Date : 8 July 2004 Facts : In November 1991 the applicant, who was in the sixth month of pregnancy, attended hospital for a medical examination. On the same day another woman with a similar name attended the hospital to have a contraceptive coil removed. A doctor, mistaking the applicant for the other, similarly named woman, did not examine her but began the procedure for removal of a coil, during which he pierced the amniotic sac. As a result the pregnancy had to be terminated on health grounds a week later. The foetus was found to have been 20-21 weeks old. In December 1991 the applicant and her partner lodged a criminal complaint and applied to be joined as civil parties to the proceedings. The doctor was charged with causing unintentional injury to the applicant and unintentional homicide of her child and committed to stand trial but in June 1996 the Criminal Court determined that the offence of unintentionally causing injuries

was statute-barred. The doctor was subsequently convicted of the unintentional homicide of the foetus but on appeal it was determined that a 20 to 21 week-old foetus was not a 'human person' or 'another' within the meaning of the French Criminal Code so the offence of unintentional homicide or of unintentionally taking the life of the foetus was not made out. The conviction was overturned. The applicant complained that the absence of a criminal remedy within the French legal system to punish the unintentional destruction of a foetus constituted a failure on the part of the state to protect by law the right to life within the meaning of Art 2 ECHR. Decision The Application was admissible but dismissed on the merits. (1) Art 2 ECHR was silent as to the temporal limitations of the right to life and provided no

2005 129 1 Inquest LR Vo v France definition for "everyone" whose right to life was protected by the Convention. There was no European consensus as to the standards of protection to be afforded to the unborn nor as to the scientific and legal definition of the beginning of life. The issue of when the right to life began came within the margin of appreciation enjoyed by individual states. The court considered it was neither desirable, nor even possible as matters stood, to answer in the abstract the question whether the unborn child was a person for the purposes of Art 2 ECHR. (2) Even assuming the applicability of Art 2, there was no failure on the part of the state to comply with the requirements relating to the preservation of life in the public-health sphere. Art 2 required the state to make regulations compelling hospitals, whether public or private, to adopt appropriate measures for the protection of patients' lives. It also required an effective independent judicial system to be set up by which the cause of death of patients in the care of the medical profession, whether in the public or the private sector, could be determined and those responsible made accountable. If the infringement of the right to life or to personal integrity was not caused intentionally, the positive obligation imposed by Art 2 to set up an effective judicial system did not necessarily require the provision of a criminal law remedy in every case and could be satisfied if the legal system afforded the victims a remedy in the civil courts. An action for damages in the administrative courts was available to, but not used by the applicant, and would have provided an effective remedy. Apperances M Le Griel for V; R Abraham, Director of Legal Affairs at the Ministry of Foreign Affairs, for the French Government. Structure of the judgment 1. Procedure - paras 1-8 2. The facts - paras 9-41 I. The circumstances of the case - paras 9-22 1. II. Relevant Domestic Law and Practice - paras 23-34 1. A. Criminal Code - paras 23-26 2. B. The Public-Health Code - paras 27-28 3. C. The position taken by the Court of Cassation - paras 29-31 4. D. The Garraud amendment - paras 32-33 5. E. The Laws on Bioethics - para 34 III. European Law - paras 35-40 1. 1. The Oviedo Convention on Human Rights and Biomedicine - paras 35-36 2. 2. Additional Protocol to the Convention on Human Rights and Biomedicine, on the Prohibition of Cloning Human Beings (12 January 1998) - para 37

3. 3. Draft additional Protocol to the Convention on Human Rights and Biomedicine, on biomedical research - para 38 4. 4. The Working Party on the Protection of the Human Embryo and Foetus: protection of the human embryoin vitro (2003) - para 39 5. 5. The European Group on Ethics in Science and New Technologies at the European Commission - para 40 IV. Comparative Law - para 41 3. The Law - paras 42-95 I. Admissibility of the application - paras 42-45 1. II. Alleged violation of Art 2 - paras 46-96 1. A. The parties' submissions - paras 47-59 1. 1. The applicant - paras 47-50 2. 2. The government - paras 51-59 2. B. Third-party interventions - paras 60-73 1. 1. Center for Reproductive Rights - paras 60-66 2. 2. Family Planning Association - paras 67-73 3. C. The Court's assessment - paras 74-95 1. 1. Existing case-law - paras 75-80 2. 2. Approach in the instant case - paras 81-95 4. Holdings 5. Separate opinion of Judge Rozakis, joined by Judges Caflish, Fischbach, Lorenzen and Thomassen 6. Separate opinion of Judge Costa, joined by Judge Traja 7. Dissenting opinion of Judge Rees 8. Dissenting opinion of Judge Mularoni, joined by Judge Strznick Procedure 1-8. On 20 December 1999Mrs Thi-Nho Vo ("the applicant") a French national lodged an application against the French Republic. The applicant alleged,a violation of Art 2 of the Convention on the ground that the conduct of a doctor who was responsible for the death of her childin utero was not classified as unintentional homicide. On 22 May 2003 the Chamber relinquished jurisdiction in favour of the Grand Chamber. The Court decided to examine the issue of admissibility of the application with the merits. The applicant and the Government each filed written observations on the admissibility and merits of the case. In addition, observations were also received from the Center for Reproductive Rights and the Family Planning Association, which had been given leave by the President to intervene in the written procedure. A hearing on the admissibility and merits of the case took place in public on 10 December 2003. The Facts The Circumstances of the case 9. The applicant was born in 1967 and lives in Bourg-en-Bresse.

2005 130 1 Inquest LR Vo v France 10. On 27 November 1991 the applicant, Mrs Thi-Nho Vo, who is of Vietnamese origin, attended the Lyons General Hospital for a medical examination scheduled during the sixth month of pregnancy. 11. On the same day another woman, Mrs Thi Thanh Van Vo, was due to have a coil removed at the same hospital. When the doctor who was to remove the coil called out the name "Mrs Vo" in the waiting room, it was the applicant who answered. After a brief interview, the doctor noted that the applicant had difficulty in understanding French. Having consulted the medical file he sought to remove the coil without examining her beforehand. In so doing, he pierced the

amniotic sac causing the loss of a substantial amount of amniotic fluid. After finding on clinical examination that the uterus was enlarged, the doctor ordered a scan. He then discovered that one had just been performed and realised that there had been a mistake of identity. The applicant was immediately admitted to hospital. Dr G then attempted to remove the coil from Mrs Thi Thanh Van Vo, but was unsuccessful and so prescribed an operation under general anaesthetic for the following morning. A further error was then made when the applicant was taken to the operating theatre instead of Mrs Thi Thanh Van Vo, and only escaped the surgery intended for her namesake after she protested and was recognised by an anaesthetist. 12. The applicant left the hospital on 29 November 1991. She returned on 4 December 1991 for further tests. The doctors found that the amniotic fluid had not been replaced and that the pregnancy could not continue further. The pregnancy was terminated on health grounds on 5 December 1991. 1. On 11 December 1991 the applicant and her partner lodged a criminal complaint and applied to be joined as civil parties to the proceedings in which they alleged unintentional injury to the applicant entailing total unfitness for work for a period not exceeding three months and unintentional homicide of her child. Three expert reports were subsequently lodged. 2. The first, which was lodged on 16 January 1992, concluded that the foetus, a baby girl, was between 20 and 21 weeks old, weighed 375 grammes, was 28 centimetres long, had a cranial perimeter of 17 centimetres and had not breathed after delivery. The expert also concluded that there was no indication that the foetus had been subjected to violence or was malformed and no evidence that the death was attributable to a morphological cause or to damage to an organ. Further, the autopsy performed after the abortion and an anatomico-pathological examination of the body indicated that the foetal lung was 20 to 24 weeks old. 3. On 3 August 1992 a second report was lodged concerning the applicant's injuries: "(a) There is a period of temporary total unfitness for work from 27 November 1991 to 13 December 1991, when the patient was admitted to the Tonkin Clinic with an entirely unconnected pathology (appendectomy) (b) the date of stabilisation can be put at 13 December 1991 1. (c) there is no loss of amenity 1. (d) there is no aesthetic damage (e) there is no occupational damage (f) there is no partial permanent unfitness for work Damages for the pain and suffering resulting from this incident still have to be assessed. The assessment should be carried out with a doctor of Vietnamese extraction specialising in psychiatry or psychology." 16. The third report, which was issued on 29 September 1992, referred to the malfunctioning of the hospital department concerned and to negligence on the part of the doctor: "1. The manner in which appointments in the departments run by Professors T. and R. at Lyons General Hospital are organised is not beyond reproach, in particular in that namesakes are common among patients of foreign origin and create a risk of confusion, a risk that is undoubtedly increased by the patients' unfamiliarity with or limited understanding of our language. 2. The fact that patients were not given precise directions and the consulting rooms and names of the doctors holding surgeries in them were not marked sufficiently clearly increased the likelihood of confusion between patients with similar surnames and

explains why, after Dr G had acquainted himself with Mrs Thi Than Van Vo's medical file, it was [the applicant] who came forward in response to his call. 3. The doctor acted negligently, by omission, and relied solely on the paraclinical examinations. He did not examine his patient and by an unfortunate error ruptured the amniotic sac causing the pregnancy to terminate at five months. He is accountable for that error, although there are mitigating circumstances." 17. On 25 January 1993, following supplemental submissions by the prosecution on 26 April 1994, Dr G was charged with causing unintentional injury at Lyons on 27 November 1991 by: 1. (i) through his inadvertence, negligent act or inattention, perforating the amniotic sac in which the applicant's live and viable foetus was developing, thereby unintentionally causing the child's death (a criminal offence under Art 319 of the former Criminal Code which was applicable

2005 131 1 Inquest LR Vo v France at the material time - now Art 221-6 of the Criminal Code); 2. (ii) through his inadvertence, negligent act, inattention, negligent omission or breach of a statutory or regulatory duty of protection or care, causing the applicant bodily injury that resulted in her total unfitness for work for a period not exceeding three months (a criminal offence under Art R 40, subpara 4, of the former Criminal Code - which was applicable at the material time - now Arts R. 625-2 and R. 625-4 of the Criminal Code). 18. By an order of 31 August 1995, Dr G was committed to stand trial in Lyons Criminal Court on counts of unintentional homicide and unintentionally causing injuries. 19. By a judgment of 3 June 1996 the Criminal Court found that the accused was entitled as of right to an amnesty under the Amnesty Law of 3 August 1995 in respect of the offence of unintentionally causing injuries entailing temporary unfitness for work of less than three months. As to the offence of unintentional homicide of the foetus, it held: "The issue before the court is whether the offence of unintentional homicide or the unintentional taking of the foetus's life is made out when the life concerned is that of a foetus, if a 20 to 21 week old foetus is a human person ('another' within the meaning of Art 221-6 of the Criminal Code) The expert evidence must be accepted. The foetus was between 20 and 21 weeks old. At what stage of maturity can an embryo be considered a human person? The Law of 17 January 1975 on the Voluntary Termination of Pregnancy provides: 'The law guarantees respect of every human being from the beginning of life.' The Law of 29 July 1994 (Art 16 of the Civil Code) provides: 'The law secures the primacy of the person, prohibits any assault on human dignity and guarantees the respect of every human being from the beginning of its life'. The laws of 29 July 1994 expressly employed the terms 'embryo' and 'human embryo' for the first time. However, the term 'human embryo' is not defined in any of them. When doing the preparatory work for the legislation on bioethics, a number of parliamentarians (both members of the National Assembly and senators) sought to define 'embryo'. Charles de Courson proposed the following definition: 'Every human being shall be respected from the start of life; the human embryo is a human being'. Jean-

Franois Matti stated: 'The embryo is in any event merely the morphological expression of one and the same life that begins with impregnation and continues till death after passing through various stages. It is not yet known with precision when the zygote becomes an embryo and the embryo a foetus, the only indisputable fact being that the life process starts with impregnation'. It thus appears that there is no legal rule to determine the position of the foetus in law either when it is formed or during its development. In view of this lack of a legal definition it is necessary to return to the known scientific facts. It has been established that a foetus is viable at six months and on no account, on present knowledge, at 20 or 21 weeks. The court must have regard to that fact (viability at six months) and cannot create law on an issue which the legislators have not yet succeeded in defining. The court thus notes that a foetus becomes viable at the age of six months; a 20 to 21 week-old foetus is not viable and is not a 'human person' or 'another' within the meaning of former Art 319 and Art 221-6 of the Criminal Code. The offence of unintentional homicide or of unintentionally taking the life of a 20 to 21 week-old foetus has not been made out, since the foetus was not a 'human person' or 'another' Acquits Dr G of the charge without penalty or costs" 20. On 10 June 1996 the applicant appealed against that judgment. She argued that Dr G had been guilty of personal negligence severable from the functioning of the public service and sought the following amount: 1,000,000 French francs (FRF) in damages, comprising FRF 900,000 for the death of the child and FRF 100,000 for the injury she had sustained. The public prosecutor's office, as second appellant, submitted that the acquittal should be overturned. It observed: "By failing to carry out a clinical examination, the accused was guilty of negligence that caused the death of the foetus, which at the time of the offence was between 20 and 24 weeks old and following, normally and inexorably, the path of life on which it had embarked, there being no medical doubt over its future." 21. In a judgment of 13 March 1997, the Lyons Court of Appeal upheld the judgment in so far as it had declared the prosecution of the offence of unintentionally causing injuries statute-barred but overturned the remainder of the judgment and found the doctor guilty of unintentional homicide. It

2005 132 1 Inquest LR Vo v France imposed a 6-months suspended prison sentence and a fine of FRF 10,000, holding: " In the instant case Dr G's negligence is characterised in particular by the fact that the patient's knowledge of French was insufficient to enable her to explain her condition to him, to answer his questions or to give him the date of her last period, circumstances that should have further impressed upon on him the need for a thorough clinical examination. The assertion that he was entitled to rely on the medical records alone shows that, though an able scientist, this young doctor was nonetheless unaware of one of the essential skills of the practice of medicine: listening to, getting to know and examining the patient. Indeed, before this court Dr G said that the accident had impressed upon him how vital it was to take precautions before operating

There is a clear causal link between this negligent act and omission and the death of the child Mrs Vo was carrying. The accused has himself acknowledged, with commendable honesty, that a clinical examination would have alerted him to the fact that the patient was pregnant and had been mistaken for another patient. As regards the classification of the offence as unintentional homicide, it is first necessary to reiterate the legal principles governing this sphere. Various provisions of international treaties, such as Art 2 of theEuropean Convention on Human Rights and Fundamental Freedoms, Art 6 of the International Covenant on Civil and Political Rights and Art 6 of the Convention on the Rights of the Child signed in New York on 26 January 1990 recognise a right to life protected by law for everyone, and notably children. Under domestic law, section 1 of the Voluntary Termination, of Pregnancy Act of 17 January 1975 (Law no 75-17) specifies: 'The law guarantees respect of every human being from the beginning of life this principle may only be derogated from in the event of necessity and in accordance with the conditions set out in this statute'. Further, Law no 94-653 of 29 July 1994 on the Respect of the Human Body lays down in Art 16 of the Civil Code: 'The law secures the primacy of the person, prohibits any assault on human dignity and guarantees the respect of every human being from the beginning of its life'. These statutory provisions cannot be regarded as mere statements of intent, devoid of any legal effect, since Art 16-9 of the Civil Code indicates that the provisions of Art 16 are mandatory. For its part the Criminal Division of the Court of Cassation applied these rules of international and domestic law in two judgments it delivered on 27 November 1996, specifying that the Act of 17 January 1975 only permits derogation from the rule stated in section 1 thereof that every human being is entitled to respect from the beginning of life in cases of necessity and subject to the conditions and limitations set out in it. The Court of Cassation added that having regard to the conditions laid down by the legislature, the provisions of that statute and of the laws of 31 December 1979 on the Voluntary Termination of Pregnancy, taken as a whole, were not incompatible with the aforementioned treaty provisions. In a different case, moreover, the Court of Cassation pointed out that on signing the Convention on the Rights of the Child in New York on 26 January 1990, France made a declaration concerning interpretation in which it stated that the Convention could not be interpreted as constituting any obstacle to the implementation of the provisions of French legislation on the voluntary termination of pregnancy. That reservation shows, by converse implication, that that Convention could concern a foetus aged less than ten weeks, the statutory maximum foetal age in France for a voluntary termination of pregnancy. It follows that, subject to the provisions on the voluntary termination of pregnancies and therapeutic abortions, the right to respect for every human being from the beginning of life is guaranteed by law, without any requirement that the child be born as a viable human being, provided it was alive when the injury occurred.

Indeed, viability is a scientifically indefinite and uncertain concept, as the accused, who is currently studying in the United States, himself acknowledged, informing the court that foetuses born between 23 and 24 weeks after conception could now be kept alive, a situation that was inconceivable a few years ago. In the opinion prepared by Professor Thouvenin and adduced in evidence by Dr G, reference is made to a report by Professor Matti in which it is indicated that the embryo is merely the morphological expression of one and the same life that begins with impregnation and continues till death after passing through various stages. It is not yet known with precision when the zygote becomes an embryo and the embryo a foetus, the only indisputable fact being that the life process starts with impregnation. Thus the issue of viability at birth, a notion that is uncertain scientifically, is in addition devoid of all legal effect, as the law makes no distinction on that basis.

2005 1 Inquest LR

133 Vo v France

In the instant case it has been established that when the scan was performed on 27 November 1991 - before the amniotic fluid was lost later that day - the [applicant's] pregnancy had been proceeding normally and the child she was carrying was alive. When the therapeutic abortion was performed on 5 December 1991, it was noted that a comparison of the child's measurements with published tables suggested that the foetus was between 20 and 21 weeks old and possibly older, as it is not certain that the tables take into account the specific morphology of children of Vietnamese origin. Dr G, when questioned on this point at the hearing, was unable to provide any further information. The conclusion from the anatomo-pathological examination was that the foetal lung indicated an age of between 20 and 24 weeks, its measurements suggesting that an age at the lower end of that range was the most likely. In any event, as Dr G said in evidence, the age of the foetus was very close to that of certain foetuses that have managed to survive in the United States. The photographs at pD 32 of the trial bundle show a perfectly formed child whose life was cut short by the accused's negligence. As the Douai Court of Appeal observed in its judgment of 2 June 1987, had the assault on the child concerned inflicted a non-fatal wound, it would have been classified without any hesitation as an offence of unintentionally causing injuries.A fortiori , an assault leading to the child's death must be classified as unintentional homicide. Thus, the strict application of the legal principles, established scientific fact and elementary common sense all dictate that a negligent act or omission causing the death of a 20 to 24 week-old foetus in perfect health should be classified as unintentional homicide. Consequently, the impugned judgment must be overturned While the applicant's civil action is admissible, if only to corroborate the prosecution case, this court has no jurisdiction to hear the claim for reparation. This is because despite the serious nature of the negligent act and omission of Dr G, a doctor in a public hospital, they do not constitute personal misconduct of such exceptional gravity entailing a total disregard for the most elementary principles and duties inherent in his function as to make them severable from public service.

Nonetheless, it is appropriate to order Dr G to pay to this civil party compensation in the sum of 5,000 francs under Art 475-1 of the Code of Criminal Procedure on account of costs which she has incurred, but which have not been paid by the State" 22. On 30 June 1999, on an appeal on points of law by the doctor, the Court of Cassation reversed the judgment of the Lyons Court of Appeal and ruled that there was no reason to remit the case for retrial: "Having regard to Art 111-4 of the Criminal Code; Criminal-law provisions must be strictly construed In convicting [the doctor] of unintentional homicide, the appellate court noted that Art 2 of the European Convention on Human Rights and Fundamental Freedoms and Art 6 of the International Covenant on Civil and Political Rights recognise the existence for all persons of a right to life protected by law. The appellate court stated that the Voluntary Termination of Pregnancy Act of 17 January 1975 establishes the rule that the life of every human being must be respected from the beginning of life. That rule is now restated in Art 16 of the Civil Code as worded following the amendment made by the Law of 29 July 1994. The appellate court went on to state that by operating without performing a prior clinical examination, the doctor was guilty of a negligent act or omission that had a definite causal link with the death of the child the patient was carrying. However, by so holding, when the matters of which the defendant was accused did not come within the definition of the offences set out in former Art 319 and Art 221-6 of the Criminal Code, the Court of Appeal misinterpreted the aforementioned provisions." II. Relevant domestic law and practice A. Criminal code 23. The provision dealing with the unintentional taking of life at the material time and until 1 March 1994 was Art 319 of the Criminal Code, which read as follows: Art 319 "Anyone who through his or her inadvertence, negligent act, inattention, negligent omission or breach of regulation unintentionally commits homicide or unintentionally causes death, shall be liable to imprisonment of between three months and two years and a fine of between 1,000 and 30,000 francs." 24. Since 1 March 1994, the relevant provision has been Art 221-6 of the Criminal Code (as amended by Law no 2000-647 of 10 July 2000 and Order no. 2000-916 of 19 September 2000) which is to be found in Section II ("Unintentional taking of life") of Chapter I ("Offences against the human person") of Part II ("Serious crimes and other offences against the person"). Art 221-6 provides:

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"It shall be an offence of unintentional homicide punishable by three years' imprisonment and a fine of 45,000 euros to cause the death of another in the conditions and in accordance with the distinctions set out in Art 121-3 by inadvertence, negligent act, inattention, negligent omission or breach of a statutory or regulatory duty to ensure safety or of care.

In the event of a manifestly deliberate breach of a special statutory or regulatory duty to ensure safety or of care, the maximum sentences shall be increased to five years' imprisonment and a fine of 75,000 euros." 25. Art 223-10 of the Criminal Code, which concerns the voluntary termination of pregnancy by a third party without the mother's consent, is to be found in Section V under the heading "Unlawful termination of pregnancy" of Chapter III, entitled "Endangering the person" in Part II. It reads as follows: Art 223-10 "It shall be an offence punishable by five years' imprisonment and a fine of 500,000 francs to terminate a pregnancy without the mother's consent." 26. Section III entitled "Protection of the embryo" of Chapter I (Public-health offences) of Book V (Other serious crimes (crimes) and other major offences (delits)) prohibits various types of conduct on grounds of medical ethics (Art 511-15 to 511-25), including the conception of human embryosin vitro for research or experimental purposes (Art 511-18). B. The public-health code 27. At the material time the limitation period for an action in damages in the administrative courts was four years while the period in which a pregnancy could be voluntarily terminated lawfully was ten weeks following conception. 28. The provisions of the Public-Health Code as worded since the Patients' Rights and Quality of the Health-Service Act (Law no 2002-303) of 4 March 2002 came into force read as follows. Art L 1142-1 "Save when they incur liability as a result of a defect in a health product, the medical practitioners mentioned in the Fourth Part of this Code and all hospitals, clinics, departments and organisations in which preventive medicine, diagnosis or treatment is performed on individuals shall only be liable for damage caused by preventive medicine, diagnosis or treatment if they have been at fault. " Art L 1142-2 "Private medical practitioners, the hospitals, clinics, health services and organisations mentioned in Art L 1142-1 and any other legal entity other than the State that is engaged in preventive medicine, diagnosis or treatment and the producers and suppliers of and dealers in health products in the form of finished goods mentioned in Art L 5311-1 with the exception of subpara 5 thereof, subject to the provisions of Art L 1222-9 and subparas 11, 14 and 15, that are used in connection with such activities shall be under a duty to take out insurance in respect of any third-party or public-authority liability they may incur for damage sustained by third parties as a result of an assault against the person in the course of that activity taken as a whole. " Art L 1142-28 "The limitation period for actions against medical practitioners and public or private hospitals or clinics in respect of preventive medicine, diagnosis or treatment shall be ten years from the date the condition stabilises." Art L 2211-1 "As stated in Art 16 of the Civil Code as hereafter reproduced: 'The law secures the primacy of the person, prohibits any assault on human dignity and guarantees the respect of every human being from the beginning of its life'". Art L 2211-2 "The principle referred to in Art L. 2211-1 may only be derogated from in the event of necessity and in accordance with the conditions set out in this Part. It shall be the nation's

duty to educate society on this principle and its consequences, [to provide] information on life's problems and on national and international demography, to inculcate a sense of responsibility, to receive children into society and to uphold family life. The State, aided by the local and regional authorities, shall perform these obligations and support initiatives that assist it to do so." Art L 2212-1 "A pregnant woman whose condition causes her distress may ask a doctor to terminate her pregnancy. The pregnancy may only be terminated within the first twelve weeks." Art L 2213-1 "A pregnancy may be voluntarily terminated at any time if two doctors from a pluridisciplinary team certify, after the team has issued a consultative opinion, that either the woman's continued pregnancy puts her health at serious risk or that it is highly likely that the unborn child is suffering from a particularly serious affection which is recognised as incurable at the time of diagnosis. "

2005 135 1 Inquest LR Vo v France C. The position taken by the Court of Cassation 29. The Court of Cassation has followed its decision in the instant case (see para 22 above) on two occasions (in its judgments of 29 June 2001, Full Court,Bulletin no 165, and of 25 June 2002, Criminal Division,Bulletin no 144), despite submissions from the advocates-general concerned to the contrary. 1. 1. Judgment of the Full Court of 29 June 2001 "As regards the two grounds of appeal of the Public Prosecutor at the Metz Court of Appeal and of Mrs X which have been joined together: " On 29 July 1995 a vehicle being driven by Mr Z collided with a vehicle being driven by Mrs X , who was six months pregnant. She was injured and as a result of the impact lost the foetus she was carrying. In the impugned judgment (Metz Court of Appeal, 3 September 1998), Mr Z was convicted of unintentionally injuring Mrs X, aggravated by the fact that he was under the influence of drink. However, he was acquitted of the unintentional killing of the unborn child. The grounds of appeal against that decision are, firstly, that Art 221-6 of the Criminal Code, which makes it an offence to cause the death of another, does not exclude from its scope a viable unborn child and that, by holding that this provision applied only to a child whose heart was beating at birth and who was breathing, the Court of Appeal had added a condition that was not contained in the statute, and, secondly, unintentionally causing the death of an unborn child constituted the offence of unintentional homicide if the unborn child was viable at the material time, irrespective of whether or not it breathed when it was separated from the mother, with the result that there had been a violation of Arts 111-3, 111-4 and 221-6 of the Criminal Code and Art 593 of the Code of Criminal Procedure. The rule that offences and punishment must be defined by law, which requires that criminal statutes be construed strictly, pleads against extending the scope of Art 221-6 of the Criminal Code, which makes unintentional homicide an offence, to cover unborn children whose status in law is governed by special provisions concerning embryos and foetuses.... 1. 2. Judgment of the Criminal Division of 25 June 2002 " Having regard to former Art 319, Art 221-6 and Art 111-4 of the Criminal Code.

The rule that offences and punishment must be defined by law, which requires that criminal statutes be construed strictly, pleads against a charge of unintentional homicide lying in the case of a child that is not born alive. The impugned judgment established that Z, whose pregnancy under the supervision of X came to term on 10 November 1991, attended the clinic in order to give birth on 17 November. She was placed under observation at about 8.30pm and drew the attention of the midwife, Y, to an anomaly in the child's cardiac rhythm. Y refused to call the doctor. A further test carried out at 7 a.m. the following morning showed a like anomaly and subsequently that the heart had stopped beating altogether. At about 8am, X pronounced the baby dead. In the evening he proceeded to extract a stillborn child by caesarean section. According to the autopsy report, the child did not present any malformation but had suffered from anoxia. In finding Y guilty of unintentional homicide and X, who was acquitted by the criminal court, liable for the civil consequences of that offence, the Court of Appeal held that the child's death was a result of the negligent acts and omissions of both the doctor in failing to place the patient, who was beyond term, under closer observation and of the midwife in failing to notify an unequivocal anomaly noted when the child's cardiac rhythm was recorded. After noting that the stillborn child did not present any organic lesion capable of explaining its death, the Court of Appeal stated: 'This child had reached term several days previously and, but for the fault that has been found, would have been capable of independent survival, with a human existence separate from its mother's'. However, by so holding, the Court of Appeal misapplied the provisions referred to above and the aforementioned principles. It follows that this appeal on points of law is allowed. The case will not be remitted, as the facts are not capable of coming within the definition of any criminal offence. " 30. The Criminal Division of the Court of Cassation has held that a court of appeal gave valid reasons for finding a defendant guilty of the unintentional homicide of a child who died an hour after its birth on the day of a road-traffic accident in which its mother, who was eight months pregnant, was seriously injured, when it held that, by failing to control his vehicle, the driver had caused the child's death an hour after birth as a result of irreversible lesions to vital organs sustained at the moment of impact (Court of Cassation, Criminal Division, 2 December 2003). 5. An Art entitled "Unintentional violence on pregnant women and the offence of unintentional homicide" (Recueil Dalloz 2004, p449) notes that in twenty-eight out of a total of thirty-four articles commenting on the Criminal Division of the Court of

2005 136 1 Inquest LR Vo v France Cassation's judgment of 2 December 2003 (see para 30 above) the authors are critical of the Court of Cassation's case-law (see para 29 above). The criticism includes: the laconic reasoning of the Court of Cassation's judgments and incoherence of the protection afforded, as a person causing unintentional injury is liable to criminal prosecution while a person who unintentionally

causes the death of the foetus goes unpunished; the fact that a child who has lived for a few minutes is recognised as having standing as a victim, whereas a child that diesin utero is ignored by the law; and the fact that freedom to procreate is less well protected than freedom to have an abortion. D. The Garraud amendment 32. On 27 November 2003 the National Assembly adopted on its second reading a bill to adapt the criminal-justice system to changes in criminality The bill included the Garraud amendment, so named after the member of parliament who moved it, which created an offence of involuntary termination of pregnancy (ITP). 33. The adoption of this amendment gave rise to fierce controversy and, after a week of consultations, the Minister of Justice, Mr Perben, declared on 5 December 2003 that the member's proposal "caused more problems than it solved" and that he was in favour of abandoning it. On 23 January 2004 the Senate unanimously deleted the amendment. This was the second time the senators had rejected such a proposal, as they had already opposed it in April 2003 when examining the Reinforcement of Protection against Road Violence Act, passed on 12 June 2003. E. The laws on bioethics 34. On 11 December 2003 the National Assembly adopted on its second reading a bill on bioethics with a view to reforming the 1994 Laws on the Donation and Use of Parts and Products of the Human Body, Medically Assisted Procreation and Pre-Natal Diagnosis, as the legislature had envisaged at the time in order to take into account subsequent scientific and medical progress and new issues with which society was confronted. In view of the speed at which technical advances have been made, the bill reinforces the guarantees on the provision of information and on seeking and obtaining consents and prohibits certain practices that are technically feasible (reproductive cloning), while providing a framework for those with a proven medical interest (research on embryosin vitro ). It establishes a regulatory and supervisory body (The Procreation, Embryology and Human-Genetics Agency) whose functions also include acting as a watchdog and providing support and expert guidance in these spheres (http://www.assembl\'e9e-nat.fr/dossiers/ bioethiques. asp). III. European Law 1. The Oviedo Convention on Human Rights and Biomedicine 35. The Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, also known as the Convention on Human Rights and Biomedicine, which was opened for signature on 4 April 1997 in Oviedo, entered into force on 1 December 1999. In this Convention, the member States of the Council of Europe, the other States and the European Community signatories to it agreed as follows: "Resolving to take such measures as are necessary to safeguard human dignity and the fundamental rights and freedoms of the individual with regard to the application of biology and medicine, Have agreed as follows: Chapter I - General provisions Art 1 - Purpose and object Parties to this Convention shall protect the dignity and identity of all human beings and guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to the application of biology and medicine. Each Party shall take in its internal law the necessary measures to give effect to the provisions of this Convention.

Art 2 - Primacy of the human being The interests and welfare of the human being shall prevail over the sole interest of society or science Chapter V - Scientific research Art 18 - Research on embryosin vitro 1. 1. Where the law allows research on embryosin vitro , it shall ensure adequate protection of the embryo. 2. 2. The creation of human embryos for research purposes is prohibited Chapter XI - Interpretation and follow-up of the Convention Art 29 - Interpretation of the Convention The European Court of Human Rights may give, without direct reference to any specific proceedings pending in a court, advisory opinions

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on legal questions concerning the interpretation of the present Convention at the request of: 1. (i) the Government of a Party, after having informed the other Parties; 2. (ii) the Committee set up by Art 32, with membership restricted to the Representatives of the Parties to this Convention, by a decision adopted by a twothirds majority of votes cast" 36. The commentary on Art 1 (see paras 16 to 19 of the Explanatory Report on the Convention) states: Art 1 - Purpose and object 1. 16. This Art defines the Convention's scope and purpose. 2. 17. The aim of the Convention is to guarantee everyone's rights and fundamental freedoms and, in particular, their integrity and to secure the dignity and identity of human beings in this sphere. 3. 18. The Convention does not define the term 'everyone' (in French 'toutepersonne' ). These two terms are equivalent and found in the English and French versions of the European Convention on Human Rights , which however does not define them. In the absence of a unanimous agreement on the definition of these terms among member States of the Council of Europe, it was decided to allow domestic law to define them for the purposes of the application of the present Convention. 4. 19. The Convention also uses the expression 'human being' to state the necessity to protect the dignity and identity of all human beings. It was acknowledged that it was a generally accepted principle that human dignity and the identity of the human being had to be respected as soon as life began. " 2. Additional Protocol to the Convention on Human Rights and Biomedicine, on the Prohibition of Cloning Human Beings (12January 1998) 37. Article 1 of the Protocol provides:

Art 1 1. 1. Any intervention seeking to create a human being genetically identical to another human being, whether living or dead, is prohibited. 2. 2. For the purpose of this article, the term human being 'genetically identical' to another human being means a human being sharing with another the same nuclear gene set." 3. Draft additional Protocol to the Convention on Human Rights and Biomedicine, on biomedical research 38. This draft was approved by the Steering Committee on Bioethics on 20 June 2003. It was submitted for approval to the Committee of Ministers, which sought a consultative opinion from the Parliamentary Assembly. On 30 April 2004 the Assembly issued an opinion (no 252 (2004)) in which it declared itself in favour of the draft protocol and in consequence recommended that the Committee of Ministers open it for signature as soon as possible. Art 1 - Object and purpose "Parties to this Protocol shall protect the dignity and identity of all human beings and guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to any research involving interventions on human beings in the field of biomedicine." Art 2 - Scope "This Protocol covers the full range of research activities in the health field involving interventions on human beings. This Protocol does not apply to research on embryos in vitro. It does apply to research on foetuses and embryosin vivo" Art 3 - Primacy of the human being "The interests and welfare of the human being participating in research shall prevail over the sole interest of society or science." Art 18 - Research during pregnancy or breastfeeding "Research on a pregnant woman which does not have the potential to produce results of direct benefit to her health, or to that of her embryo, foetus or child after birth, may only be undertaken if the following additional conditions are met: 1. (i) the research has the aim of contributing to the ultimate attainment of results capable of conferring benefit to other women in relation to reproduction or to other embryos, foetuses or children; " The draft explanatory report repeats the terms of the explanatory report on the Convention. 4. The Working Party on the Protection of the Human Embryo and Foetus: protection of the human embryo in vitro (2003) 39. The Working Party on the Protection of the Human Embryo and Foetus set up by the Steering Committee on Bioethics reached the following conclusion in a report drawn up in 2003: "This report aimed at giving an overview of current positions found in Europe regarding the protection of the human embryo in vitro and the arguments supporting them. It shows a broad consensus on the need for the protection of the embryoin vitro . However, the definition of the status of the embryo remains an

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area where fundamental differences are encountered, based on strong arguments. These differences largely form the basis of most divergences around the other issues related to the protection of the embryoin vitro . Nevertheless, even if agreement cannot be reached on the status of the embryo, the possibility of reexamining certain issues in the light of the latest developments in the biomedical field and related potential therapeutic advances could be considered. In this context, while acknowledging and respecting the fundamental choices made by the different countries, it seems possible and desirable with regard to the need to protect the embryoin vitro on which all countries have agreed, that common approaches be identified to ensure proper conditions for the application of procedures involving the creation and use of embryosin vitro . The purpose of this report is to aid reflection towards that objective." 5. The European Group on Ethics in Science and New Technologies at the European Commission 40. The Group has issued, inter alia, the following opinion on the Ethical aspects of research involving the use of human embryo in the context of the 5th framework programme (23 November 1998): "LEGAL BACKGROUND Controversies on the concept of beginning of life and 'personhood' 1. 1.13 Existing legislation in the Member States differs considerably from one another regarding the question of when life begins and about the definition of 'personhood'. As a result, no consensual definition, neither scientifically nor legally, of when life begins exists. Two main views about the moral status of the embryo and thus regarding the legal protection afforded to them with respect to scientific research exist: 1. (i) human embryos are not considered as human beings and consequently have a relative worth of protection; 2. (ii) human embryos have the same moral status as human beings and consequently are equally worthy of protection. 1. 1.14 The discussion of common rules on embryo research is continuing. Recently many European countries, when discussing and signing the Council of Europe Convention on Human Rights and Biomedicine, failed to reach a consensus concerning the definition of the embryo, and, therefore, were unable to find common ground on which to place the admissibility of human embryo research within the Convention. Hence, it is up to the Member States to legislate in this area. Yet, nevertheless, Art 18.1 of the Convention stipulates 'where the law allows research on embryos in vitro, it shall ensure adequate protection of the embryo'. Different approaches regarding the definition of the human embryo 1. 1.17 In most Member States there is presently no legal definition of the human embryo (Belgium, Denmark, Finland, France, Greece, Ireland, Italy, Luxembourg, Netherlands, Portugal and Sweden). Among those Member States which define the embryo in their legislation, the existing definitions vary

considerably from one country to another (Austria, Germany, Spain and the UK). Different scope of national legislation 1. 1.19 Among the Member States with legal provisions on embryo research, there are many differences regarding the activities allowed and prohibited. There are countries where embryo research is allowed only for the benefit of the particular embryo (Austria, Germany). There are Member States where embryo research is exceptionally allowed (France, Sweden), or allowed under strict conditions (Denmark, Finland, Spain, UK). Diversity of views 1. 1.23 The diversity of views regarding the question whether or not research on human embryos in vitro is morally acceptable, depends on differences in ethical approaches, philosophical theories and national traditions, which are deeply rooted in European culture. Two contrasting approaches exist: a deontological approach, in which duties and principles control the ends and consequences of our actions; and utilitarian or consequentialist approaches in which human actions are evaluated in terms of means and ends or consequences. THE GROUP SUBMITS THE FOLLOWING OPINION 1. 2.1 In the preamble it appeared crucial to recall that the progress of knowledge of life sciences, which in itself has an ethical value, cannot, in any case, prevail over fundamental human rights and the respect which is due to all the members of the human family. 2. 2.2 The human embryo, whatever the moral or legal status conferred upon it in the different European cultures and ethical approaches, deserves legal protection. Even if taking into account the continuity of human life, this

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protection ought to be reinforced as the embryo and the fetus develop. 3. 2.3 The Treaty on European Union , which does not foresee legislative competence in the fields of research and medicine, implies that such protection falls within the competence of national legislation (as is the case for medically assisted procreation and voluntary interruption of pregnancy). However, Community authorities should be concerned with ethical questions resulting from medical practice or research dealing with early human development. 4. 2.4 However, when doing so, the said Community authorities have to address these ethical questions taking into account the moral and philosophical differences, reflected by the extreme diversity of legal rules applicable to human embryo research, in the 15 Member States. It is not only legally difficult to seek harmonisation of national laws at Community level, but because of lack of consensus, it would be inappropriate to impose one exclusive moral code.

5. 2.5 The respect for different philosophical, moral or legal approaches and for diverse national culture is essential to the building of Europe. From an ethical point of view, the multicultural character of European society requires mutual tolerance to be shown by the citizens and political figures of the European Nation States that have chosen uniquely to tie their destiny together, while at the same time ensuring mutual respect for different historical traditions which are exceedingly strong. From a legal point of view, this multiculturalism is based upon Art 6 of the Amsterdam Treaty (ex Art F of the Treaty on European Union )which recognises fundamental rights at Union level notably based on 'constitutional traditions common to the Member States'. It also declares that 'the Union shall respect the national identity of its Member States'. 1. 2.6 It results from the aforementioned principles, that, in the scope of European research programmes, the question of research on the human embryo has to be approached, not only with regard to the respect for fundamental ethical principles, common to all Member States, but equally taking into consideration diverse philosophical and ethical conceptions, expressed through the practices and the national regulations in force in this field. " IV. Comparative law 41. In the majority of the member States of the Council of Europe, the offence of unintentional homicide does not apply to the foetus. However, three countries have chosen to create specific offences. In Italy a person negligently causing a pregnancy to terminate is liable to a prison sentence of between three months and two years under section 17 of the Abortion Act of 22 May 1978. In Spain Art 157 of the Criminal Code makes it a criminal offence to cause damage to the foetus and Art 146 an offence to cause an abortion through gross negligence. In Turkey Art 456 of the Criminal Code lays down that a person who causes damage to another shall be liable to a prison sentence of between six months and one year; if the victim is a pregnant woman and the damage results in premature birth, the Criminal Code prescribes a sentence of between two and five years' imprisonment. 3. The law I. Admissibility of the application 42. The Government's main submission was that the application was incompatibleratione materiae with the provisions of the Convention in that Art 2 of the Convention did not apply to the unborn child. They further submitted that the applicant had had a legal remedy capable of redressing her complaint, namely an action for damages against the hospital in the administrative courts. Accordingly, she had not exhausted domestic remedies as required by Art 351 of the Convention. In the alternative, they considered that the application should be rejected as being manifestly ill-founded. 43. The applicant complained of the lack of protection of the unborn child under French criminal law and argued that the State had failed to discharge its obligations under Art 2 of the Convention by not allowing the offence of unintentional homicide to cover injury to an unborn child. She further submitted that the remedy available in the administrative courts was ineffective as it was incapable of securing judicial acknowledgment of the homicide of her child as such. Lastly, the applicant asserted that she had had a choice between instituting criminal and administrative proceedings and that, while her recourse to the criminal courts had, unforeseeably, proved unsuccessful, the possibility of applying to the administrative courts had in the meantime become statute-barred. 44. The Court observes that an examination of the application raises the issue whether Art 2 of the Convention is applicable to the involuntary termination of pregnancy and, if so, whether that provision required a criminal remedy to be available in the circumstances of the case or whether its requirements were satisfied by the possibility of an action for damages in the administrative

courts. Considered in those terms, the objections that the application is incompatiblerationemateriae with the provisions of the Convention and of a failure to

2005 140 1 Inquest LR Vo v France exhaust domestic remedies are very closely linked to the substance of the applicant's complaint under Art 2 of the Convention. Consequently, the Court considers it appropriate to join them to the merits (see, among other authorities, Airey v Ireland (1979) 2 EHRR 305 , 19). 45. The application cannot therefore be declared inadmissible either as being incompatibleratione materiae with the provisions of the Convention or for failure to exhaust domestic remedies within the meaning of Art 351 of the Convention. The Court further considers that the application raises issues of fact and law which require examination on the merits. It accordingly concludes that the application is not manifestly ill-founded. Having also established that no other obstacle to its admissibility exists, the Court declares it admissible. II. Alleged Violation of Art 2 of the Convention 46. The applicant complained of the authorities' refusal to classify the taking of her unborn child's life as unintentional homicide. She argued that the absence of criminal legislation to prevent and punish such an act breached Art 2 of the Convention, which provides: "1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Art when it results from the use of force which is no more than absolutely necessary: 1. (a) in defence of any person from unlawful violence; 2. (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; 3. (c) in action lawfully taken for the purpose of quelling a riot or insurrection." A. The parties' submissions 1. The applicant 47. The applicant asserted that the point at which life began had a universal meaning and definition. Even though that was in the nature of things, it was now scientifically proven that all life began at fertilisation. That was an experimental finding. A child that had been conceived but not yet born was neither a cluster of cells nor an object, but a person. Otherwise, it would have to be concluded that in the instant case she had not lost anything. Such an argument was unacceptable for a pregnant woman. Accordingly, the term "everyone" ("toute

personne ") in Art 2 of the Convention was to be taken to mean human beings rather than individuals with the attributes of legal personality.
Indeed, that had been the position taken by theConseil d'Etat and the Court of Cassation, which, having agreed to review the compatibility of the Termination of Pregnancy Act with Art 2, had been compelled to accept that, from the first moments of its life in the womb, the unborn child came within the scope of that provision (Conseil d'Etat , full court, 21 December 1990,Recueil Lebon , p368; Criminal Division of the Court of Cassation, 27 November 1996,Bulletin criminel no 431). 48. In the applicant's submission, French law guaranteed all human beings the right to life from conception, subject to certain exceptions provided for by law in the case of abortion. In that connection, she added that all forms of abortion, with the exception of therapeutic abortion, were

incompatible with Art 2 of the Convention on account of the interference with the right to life of the conceived child. Even if it were accepted that, subject to certain conditions, States could allow women to have an abortion if they requested one, the Contracting States were not at liberty to exclude the unborn child from the protection of Art 2. A distinction should be made between the rule and the exception. Section 1 of the Voluntary Termination of Pregnancy Act 1975 (reproduced in Art 16 of the Civil Code and Art L. 2211-1 of the Public-Health Code - see para 28 above) laid down the rule, that of respect for every human being from the beginning of its life, and subsequently provided for an exception in case of necessity and in accordance with conditions defined by law. The legislature had also implicitly accepted that life began at the moment of conception by laying down a number of rules protecting the embryoin vitro in the Bioethics Laws of 29 July 1994 (see para 34 above). Accordingly, although death could in exceptional cases prevail over life, life remained the fundamental value protected by the Convention. The exception should not rule out the possibility of punishing a third party who, through negligence, caused an unborn child to die. The mother's wishes could not be equated with negligence on the part of a third party. The Court could therefore validly hold that the Contracting Parties' legislation should ensure the protection of the conceived child by making unintentional homicide of it a criminal offence, even if their legislation also permitted abortion. 49. The applicant pointed out that, as the Court had held, States had "a primary duty to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions" (see Kili v Turkey, appn 22492/93, 62, and Mahmut Kaya v Turkey, appn 22535/93, 85). In her submission, the new line of caselaw adopted by the Court in Calvelli and Ciglio v Italy [GC] appn 32967/96, 51, to the effect that where the right to life had been infringed unintentionally, the judicial system did not necessarily require the provision of a criminal-law

2005 141 1 Inquest LR Vo v France remedy, could not be followed in the instant case, because a civil remedy did not "satisfy the requirement of expressing public disapproval of a serious offence, such as the taking of life" (partly dissenting opinion of Judge Rozakis joined by Judges Bonello and Strznick in Calvelli and Ciglio, cited above). That would amount to debasing the right to life protected by Art 2. The applicant therefore considered that creating the offence of involuntary termination of pregnancy would fill the vacuum created by the Court of Cassation and would compensate for the State's failure to fulfil its duty to protect the human being at the earliest stages of its development (see para 32 above). 50. The applicant argued that she had had the option of instituting criminal or administrative proceedings and had been able to choose between the two types of court. She explained that she had chosen to bring criminal proceedings because, firstly, they were the only remedy capable of securing judicial acknowledgment of the unintentional homicide of her child as such and, secondly, because a criminal investigation aided in the task of establishing responsibility. In her submission, there had been nothing to suggest that the criminal proceedings were bound to fail, as the position adopted by the Court of Cassation in her case in 1999 and subsequently confirmed in 2001 and 2002 had by no means been definitively established, in view of the resistance shown in decisions by courts of appeal and the virtually unanimous criticism by legal writers (see para 31 above). For example, in a judgment of 3 February 2000 (Reims Court of Appeal, Dalloz 2000, case-law, p873) the Court of Appeal had convicted a motorist of unintentional homicide for driving into another vehicle, seriously injuring the driver, who was eight months pregnant, and subsequently causing the death of the baby (see also Versailles Court of Appeal, 19 January 2000, unreported). The applicant submitted in conclusion that, on the face of it, she had had no

reason to apply to the administrative courts and contended that she could not have known whether to do so until Dr G had been acquitted by the Criminal Court. However, by that time an action against the administrative authorities had already become statute-barred. The remedy in the administrative courts could therefore not be regarded as effective within the meaning of Art 35 1 of the Convention. 2. The Government 51. After emphasising that neither metaphysics nor medicine had given a definitive answer to the question whether and from what moment a foetus was a human being, the Government asserted that from a legal standpoint, Art 2 of the Convention did not protect the foetus's right to life as a person. The use of the term "everyone" ("toute personne ") in Art 2 and in Arts 5, 6, 8 to 11 and 13 of the Convention was such that it could apply only postnatally (X v UK, Commission decision of 13 May 1980, DR 19, p244). The same observation applied to Art 2 taken separately, as the restrictions on "everyone's" right to life provided for in para 2 all concerned, by their very nature, persons who had already been born. 52. Nor could the "right to life" referred to in the same Art be construed as applying to the foetus; it concerned only the life of persons who had already been born alive, since it would be neither consistent nor justified to detach that right from the entity in which it was vested, namely the person. Whereas, by contrast, Art 41 of the 1969 American Convention on Human Rights provided: "Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception", the signatories to the Convention would not have envisaged such an extension of Art 2 of the Convention since by 1950 virtually all the Contracting Parties had already authorised abortion in certain circumstances. To acknowledge that the foetus had the right to life within the meaning of Art 2 would place the mother's life and that of the foetus on an equal footing. Furthermore, prioritising the protection of the foetus's life or restricting it solely in the event of a severe, immediate and insurmountable risk to the mother's life would constitute a step backwards historically and socially and would call into question the legislation in force in many States Parties to the Convention. 53. The Government pointed out that the Commission had considered whether it was appropriate to recognise the foetus as having the right to life subject to certain restrictions relating to the protection of the mother's life and health (see X v UK, cited above). They submitted that such a limitation would not allow recourse to abortion for therapeutic, moral or social reasons, which at the time when the text of the Convention was being negotiated had nonetheless already been authorised by the legislation of a number of countries. It would amount to penalising States that had opted for the right to abortion as an expression and application of a woman's autonomy over her own body and her right to control her maternity. The States Parties had not intended to confer on the expression "right to life" a meaning that extended to the foetus and was manifestly contrary to their domestic legislation. 54. Having regard to the foregoing, the Government considered that the Convention was not designed to cover the foetus and that if the European States wished to ensure effective protection of the foetus's right to life, a provision separate from Art 2 would have to be drawn up. To construe Art 2 as allowing implicit exceptions to the right to life would be at variance with both the letter and the spirit of that Article. Firstly, the permissible exceptions formed an exhaustive list, there being no other option where such a fundamental right was concerned; here, the Government referred to the Pretty case in which the

2005 142 1 Inquest LR Vo v France Court had stated: "[Art 2] sets out the limited circumstances when deprivation of life may be justified" (Pretty v UK, (2002) 35 EHRR 1 ,37). Secondly, the exceptions were to be understood and construed strictly (calan v Turkey, appn 46221/99, 201, 12 March 2003).

55. The Government observed that in the instant case the applicant had undergone a therapeutic abortion as a result of acts carried out by the doctor outside the statutory period within which abortion was permitted, which had been ten weeks at the time and was now twelve weeks (see paras 27-28 above). However, if the Court were to take the view that that factor rendered Art 2 applicable, and that the foetus should therefore be regarded as a person protected by that provision, they pointed out that in several European States the statutory period for abortion was more than twenty weeks, for example in the Netherlands or in England (where abortions could be carried out at up to twenty-four weeks). Unless domestic legislation and the national authorities' margin of appreciation in this sphere were to be called into question, Art 2 could consequently not apply to the unborn child. That also meant, in the Government's submission, that the issue of the viability of the foetus was irrelevant in the instant case. It would be paradoxical for States to have a margin of appreciation allowing them to exclude the foetus from protection under Art 2 where a pregnancy was terminated intentionally with the mother's consent - and sometimes on that condition alone - if they were not granted the same margin of appreciation in excluding the foetus from the scope of that provision where a pregnancy was interrupted on account of unintentional negligence. 56. In the alternative, the Government pointed out that in French law the foetus was protected indirectly through the pregnant woman's body, of which it was an extension. That was the case where abortion was carried out intentionally but not in one of the cases exhaustively listed in the relevant legislation (Art 223-10 of the Criminal Code - see para 25 above) or in the event of an accident. In the latter case, the ordinary remedies for establishing civil liability could be used, and the mother could be awarded compensation for personal, pecuniary and non-pecuniary damage, her pregnant state being necessarily taken into account. Furthermore, under the criminal law, anyone who through inadvertence caused a pregnancy to be terminated could be prosecuted for causing unintentional injury, the destruction of the foetus being regarded as damage to the woman's organs. 57. The Government argued that the applicant could have sought damages from the hospital for the doctor's negligence within the four-year limitation period for actions for damages in the administrative courts. They explained that victims of damage caused by public servants had two distinct remedies available. If the damage resulted from personal negligence on the part of the public servant, not intrinsically connected with the performance of his or her duties, the victim could obtain compensation by suing the person concerned in the ordinary courts, whereas if the damage resulted from negligence that disclosed failings on the part of the authority in question, the matter would be classified as official negligence within the jurisdiction of the administrative courts. The Government submitted that in the v judgment of 10 April 1992, theConseil d'Etat had abandoned its position that a hospital department could incur liability only in cases of gross negligence. Furthermore, an exception to the rule that the hospital was liable in the event of medical negligence occurred where negligence was deemed to be severable from the public service, either because it was purely personal and thus wholly unrelated to the performance of official duties - which had not been the case in this instance - or because it was intentional or exceptionally serious, amounting to inexcusable professional misconduct of such gravity that it ceased to be regarded as indissociable from the performance of the official duties in question. The Government explained that personal and official negligence were in fact usually interlinked, particularly in cases of unintentional injury or homicide. For that reason, theConseil d'Etat had accepted long ago that the personal liability of a public servant did not exclude of the liability of the authority to which he or she was attached (Lemonnier judgment, 1918). The Government therefore considered that the applicant had had the possibility of seeking redress in the administrative courts as soon as the damage had occurred, without having to wait for the criminal proceedings to end. Such an action would have been all the more likely to succeed as for the hospital to be held liable only ordinary negligence had to be made out, and the expert reports ordered by the courts had referred precisely to the hospital department's organisational problems.

The administrative courts could therefore legitimately have been expected to reach the same conclusion. 58. The Government asserted that that remedy had been effective and adequate in terms of the positive obligations under Art 2 of the Convention (see Calvelli and Ciglio, cited above) and that the applicant had, through her own inaction or negligence, deprived herself of a remedy which had nonetheless been available to her for four years from the time when the damage had occurred, and in respect of which she could have received advice from her lawyers. In the Calvelli and Ciglio case there had been no doubt that Art 2 of the Convention was applicable to a newborn child. In the instant case, in which the applicability of Art 2 was questionable, there were therefore additional reasons for considering that the possibility of using civil or administrative remedies to establish liability was sufficient. In the Government's submission, such an action for damages could have been based on the taking of the life of the child the applicant was

2005 143 1 Inquest LR Vo v France carrying, since the relevant case-law of the administrative courts did not appear thus far to preclude the possibility of affording embryos protection under Art 2 of the Convention (Conseil d'Etat , full court,Confdration nationale des associations familiales catholiques and Others , judgment of 21 December 1990 - see para 47 above). At the material time, in any event, the issue had not been clearly resolved by theConseil d'Etat . 59. In conclusion, the Government considered that, even supposing that Art 2 was applicable in the instant case, that provision did not require the life of the foetus to be protected by the criminal law in the event of unintentional negligence, as was the position in many European countries. B. Third-party interventions (1) Center for Reproductive Rights 60. The Center for Reproductive Rights (CRR) submitted that unborn foetuses could not be treated as persons under the law and hence covered by Art 2 of the Convention because there was no legal basis for such an approach (i) and because granting them that status would interfere with women's basic human rights (ii). Lastly, they argued that it would be inadvisable to extend rights to the foetus because the loss of a wanted foetus constituted an injury to the expectant mother (iii). 61. (i) The assertion that a foetus was a person ran counter to the case-law of the Convention institutions, the legislation of the member States of the Council of Europe, international standards and the case-law of courts throughout the world. Relying on the decisions of X v UK (Commission decision cited above), H v Norway (Commission decision of 19 May 1992, DR 73, p155) and, most recently, Boso v Italy (appn 50490/99), in which the Commission and the Court had held that granting a foetus the same rights as a person would place unreasonable limitations on the Art 2 rights of persons already born, the CRR saw no reason to depart from that conclusion unless the right to abortion in all Council of Europe member States were to be called into question. 62. The foetus was not recognised as a person in European domestic legislation or by the national courts in interpreting it. The CRR drew attention to the Court of Cassation's settled position (see para 29 above), which was consistent with the distinction made in French law between the concepts of "human being" and "person", the former being a biological concept and the latter a legal term attached to a legal category whose rights took effect and were perfected at birth, although in certain circumstances the rights acquired at birth were retroactive to conception. The national courts had also addressed the issue of the legal status of the person in the context of abortion. For example, the Austrian and Netherlands Constitutional Courts had held that Art 2

should not be interpreted as protecting the unborn child, and the French Constitutional Council had found no conflict between legislation on the voluntary termination of pregnancy and the constitutional protection of the child's right to health (decision no 74-54 of 15

January 1975). That reading was consistent with the relevant legislation throughout Europe: thirty-nine member States of the Council of Europe the exceptions being Andorra, Ireland, Liechtenstein, Malta, Poland and San Marino, which had maintained severe restrictions on abortion (with only very narrow therapeutic exceptions) - permitted a woman to terminate a pregnancy without restriction during the first trimester or on very broad therapeutic grounds.
63. With regard to international and regional standards, the CRR observed that the International Covenant on Civil and Political Rights provided no indication that the right to life applied to a foetus. It added that the Human Rights Committee had routinely emphasised the threat to women's lives posed by illegal abortions. The same was true of the Convention on the Rights of the Child and the interpretation by the Committee on the Rights of the Child of Art 6, which provided: "Every child has the inherent right to life". On several occasions the Committee had stated its concern about the difficulties of adolescent girls in having their pregnancies terminated in safe conditions and had expressed its fears as to the impact of punitive legislation on maternal mortality rates. The case-law of the Inter-American regional system, notwithstanding Art 4 of the American Convention on Human Rights (see para 52 above), did not provide absolute protection to a foetus before birth. The Inter-American Commission on Human Rights had held in the Baby Boy case (1981) that Art 4 did not preclude liberal national-level abortion legislation. Furthermore, the Organisation of African Unity had adopted the Protocol on the Rights of Women on 11 July 2003 to supplement the African Charter on Human and Peoples' Rights of 27 June 1981, broadening the protection of the right of women to terminate a pregnancy. 64. Lastly, with regard to non-European States, the CRR noted that the Supreme Courts of Canada and the United States had declined to treat unborn foetuses as persons under the law (in the cases of Winnipeg Child Family Services v G (1997) and Roe v Wade (1973)). The United States Supreme Court had reaffirmed that position in a recent case in 2000 (Stenberg v Carhart), in which it had declared unconstitutional a State law prohibiting certain methods of abortion and providing no protection for women's health. Similarly, in South Africa, ruling on a constitutional challenge to the recently enacted Choice on Termination of Pregnancy Act, which permitted abortion without restriction during the first trimester and on broad grounds at later stages of pregnancy, the High Court had considered that the

2005 144 1 Inquest LR Vo v France foetus was not a legal person (case of Christian Lawyers Association of South Africa and Others v Minister of Health and Others, 1998). 65. (ii) In the CRR's submission, recognition of the foetus's rights interfered, in particular, with women's fundamental right to a private life. In the case of Brggemann and Scheuten v the Federal Republic of Germany, Commission's report of 12 July 1977, DR 10, p100), the Commission had implicitly accepted that an absolute prohibition on abortion would be an impermissible interference with privacy rights under Art 8 of the Convention. Subsequently, while rejecting the suggestion that Art 2 protected the right to life of foetuses, the Convention institutions had further recognised that the right to respect for the private life of the pregnant woman, as the person primarily concerned by the pregnancy and its continuation or termination, prevailed over the father's rights (see para 61 above). In addition to respect for private life, the

preservation of the pregnant woman's life and health took precedence. In holding that restrictions on the exchange of information on abortion created a risk to the health of women whose pregnancies posed a threat to their lives, the Court had ruled that the injunction in question had been "disproportionate to the aims pursued" and that, consequently, a woman's health interest prevailed over a State's declared moral interest in protecting the rights of a foetus (see Open Door and Dublin Well Woman v Ireland (1992) 15 EHRR 244 ). 66. (iii) In the CRR's submission, declining to recognise the foetus as a person under Art 2 did not preclude a remedy for injuries such as the one that had given rise to the instant case. The loss of a wanted foetus was an injury suffered by the expectant mother. Consequently, the rights that were entitled to protection in the instant case were those of the applicant and not those of the foetus she had lost. It was within the power of the legislature of every Council of Europe member State to recognise both civil and criminal offences committed by individuals who injured a woman by causing the termination of a wanted pregnancy. (2) Family Planning Association 67. The Family Planning Association (FPA) set out primarily to argue that the right to life enshrined in Art 2 of the Convention should not be interpreted as extending to the unborn (i). In support of that argument, the FPA provided the Court with information on the current legal position on abortion in the member States of the Council of Europe (ii) and a summary of the legal status of the unborn in UK law (iii). 68. (i) The FPA pointed out that Art 2 was drafted in such a way as to allow only very limited exceptions to the prohibition it imposed on intentional deprivation of life. Voluntary termination of pregnancy was not one of those exceptions; nor could any of the exceptions be interpreted to include that practice. Recent evidence showed that voluntary termination of pregnancy on request in the first trimester was now widely accepted across Europe, as was termination on certain grounds in the second trimester. If Art 2 were interpreted as applying to the unborn from the moment of conception, as contended by the applicant, the Court would be calling into question the laws on abortion enacted in most Contracting States. Furthermore, that would render illegal the majority of methods of contraception currently in use throughout Europe, since they acted or could act after conception to prevent implantation. There would therefore be devastating implications in terms of both individual choices and lives and social policy. The English High Court had recently acknowledged that that would be the undesirable consequence if it were to accept the argument of the Society for the Protection of Unborn Children that emergency hormonal contraceptives were abortifacients because pregnancy began at conception (see Society for the Protection of Unborn Children v Secretary of State for Health [2002] EWHC 610 (Admin)). 69. The possibility that Art 2 applied to the foetus but with certain implied limitations, for example only after a critical point in time (viability or some other gestational stage) should likewise be rejected. Recent evidence showed that, beyond the broad consensus identified above, there was a complete lack of any generally accepted standard in relation to the gestational limit on the availability of abortion, the grounds on which termination was available after that point in time or the conditions that had to be satisfied. 70. (ii) Recent survey information was available ( Abortion Legislation in Europe ,

International Planned Parenthood Federation (IPPF) European Network, July 2002, and Abortion Policies: a Global Review , UN Population Division, June 2002) in relation to the legal position on abortion in the Council of Europe
member States with the exception of Serbia and Montenegro. The surveys showed that four States essentially prohibited abortion, except where the pregnant woman's life was endangered (Andorra, Liechtenstein, San Marino and Ireland), whereas the great majority of member States provided for much wider access to abortion services. Such evidence of the availability of abortion across Europe was in keeping with the general trend towards the liberalisation of

abortion laws. No general consensus emerged from the practice of the member States as to the period during which abortion was permitted after the first trimester or the conditions that had to be satisfied for abortion to be available in the later stages of pregnancy. Furthermore, the grounds on which abortion was permitted without a time-limit were many and varied. The FPA accordingly contended that if Art 2 were interpreted

2005 145 1 Inquest LR Vo v France as applying to the unborn from some particular point in time, that would call into question the legal position in a number of States where termination was available on certain grounds at a later stage than that determined by the Court. 71. (iii) It was now a settled general principle of the common law that in the UK legal personality crystallised upon birth. Up until that point, the unborn had no legal personality independent of the pregnant woman. However, despite that lack of legal personality, the interests of the unborn were often protected while they were in the womb, even though those interests could not be realised as enforceable rights until the attainment of legal personality on birth. 72. In the civil law, that specifically meant that prior to birth, the unborn had no standing to bring proceedings for compensation or other judicial remedies in relation to any harm done or injury sustained while in the womb, and that no claim could be made on their behalf (see Paton v British Pregnancy Advisory Service Trustees [1979] QB 276 ). Efforts had been made to persuade the courts dealing with such cases that according to the law of succession, the unborn could be deemed to be "born" or "persons in being" whenever their interests so demanded. However, the Burton case confirmed that that principle was also subject to the live birth of a child ([1993] QB 204 , 227). 73. In the criminal law, it was well established that the unborn were not treated as legal persons for the purpose of the common-law rules of murder or manslaughter. In Attorney-General's Reference (no 3 of 1994) [1998] AC 245 , the House of Lords had concluded that the injury of the unborn without a live birth could not lead to a conviction for murder, manslaughter or any other violent crime. The rights of the unborn were further protected by the criminal law on abortion. Sections 58 and 59 of the Offences against the Person Act 1861 had introduced the statutory offences of procuring abortion and procuring the means to cause abortion. Similarly, by s. 1 of the Infant Life (Preservation) Act 1929 the destruction of the unborn, where capable of live birth, was a serious offence. Those Acts were still in effect. Abortion and child destruction remained illegal, subject to the application of the Abortion Act 1967 . C. The Court's assessment 74. The applicant complained that she had been unable to secure the conviction of the doctor whose medical negligence had caused her to have to undergo a therapeutic abortion. It has not been disputed that she intended to carry her pregnancy to full term and that her child was in good health. Following the material events, the applicant and her partner lodged a criminal complaint, together with an application to join the proceedings as civil parties, alleging unintentional injury to the applicant and unintentional homicide of the child she was carrying. The courts held that the prosecution of the offence of unintentional injury to the applicant was statute-barred and, quashing the Court of Appeal's judgment on the second point, the Court of Cassation held that, regard being had to the principle that the criminal law was to be strictly construed, a foetus could not be the victim of unintentional homicide. The central question raised by the application is whether the absence of a criminal remedy within the French legal system to punish the unintentional destruction of a foetus constituted a failure on the part of the State to protect by law the right to life within the meaning of Art 2 of the Convention. 1. Existing case-law

75. Unlike Art 4 of the American Convention on Human Rights, which provides that the right to life must be protected "in general, from the moment of conception", Art 2 of the Convention is silent as to the temporal limitations of the right to life and, in particular, does not define "everyone" ("toute personne ") whose "life" is protected by the Convention. The Court has yet to determine the issue of the "beginning" of "everyone's right to life" within the meaning of this provision and whether the unborn child has such a right. To date it has been raised solely in connection with laws on abortion. Abortion does not constitute one of the exceptions expressly listed in para 2 of Art 2 but the Commission has expressed the opinion that it is compatible with the first sentence of Art 21 in the interests of protecting the mother's life and health because "if one assumes that this provision applies at the initial stage of the pregnancy, the abortion is covered by an implied limitation, protecting the life and health of the woman at that stage, of the 'right to life' of the foetus" (see X v UK, Commission decision cited above, at p253). 76. Having initially refused to examinein abstracto the compatibility of abortion laws with Art 2 of the Convention (see X v Norway, 867/60, Commission decision of 29 May 1961, Collection of Decisions 6, p34, and X v Austria, 7045/75, Commission decision of 10 December 1976, DR 7, p87), the Commission acknowledged in the case of Brggemann and Scheuten v the Federal Republic of Germany (cited above) that women complaining under Art 8 of the Convention about the Constitutional Court's decision restricting the availability of abortions had standing as victims. It stated on that occasion: " pregnancy cannot be said to pertain uniquely to the sphere of private life. Whenever a woman is pregnant her private life becomes closely connected with the developing foetus" (ibid, 59). However, the Commission did not find it "necessary to decide, in this context, whether the unborn child is to be considered as 'life' in the sense of Art 2 of the Convention, or whether it could be regarded as an entity which under Art 82 could justify an

2005 146 1 Inquest LR Vo v France interference 'for the protection of others'" (ibid, 60). It expressed the opinion that there had been no violation of Art 8 of the Convention because "not every regulation of the termination of unwanted pregnancies constitutes an interference with the right to respect for the private life of the mother" (ibid, 61), while emphasising: "There is no evidence that it was the intention of the Parties to the Convention to bind themselves in favour of any particular solution" (ibid, 64). 77. In the X v UK decision cited above the Commission considered an application by a man complaining that his wife had been allowed to have an abortion on health grounds. While it accepted that the potential father could be regarded as the "victim" of a violation of the right to life, it considered that the term "everyone" in several articles of the Convention could not apply prenatally, but observed that "such application in a rare case - eg under Art 6, para 1 - cannot be excluded" (see X v UK, 7; for such an application in connection with access to a court, see Reeve v UK, appn 24844/94, Commission decision of 30 November 1994, DR 79-A, p146). The Commission added that the general usage of the term "everyone" ("toute personne ") and the context in which it was used in Art 2 of the Convention did not include the unborn. As to the term "life" and, in particular, the beginning of life, the Commission noted a "divergence of thinking on the question of where life begins" and added: "While some believe that it starts already with conception, others tend to focus upon the moment of nidation, upon the point that the foetus becomes 'viable', or upon live birth" (see X v UK, cited above, at p250, 12). The Commission went on to examine whether Art 2 was "to be interpreted: as not covering the foetus at all; as recognising a 'right to life' of the foetus with certain implied limitations; or as recognising an absolute 'right to life' of the foetus". Although it did not express an opinion on the fi

rst two options, it categorically ruled out the third interpretation, having regard to the need to protect the mother's life, which was indissociable from that of the unborn child: "The 'life' of the foetus is intimately connected with, and it cannot be regarded in isolation of, the life of the pregnant woman. If Art 2 were held to cover the foetus and its protection under this Art were, in the absence of any express limitation, seen as absolute, an abortion would have to be considered as prohibited even where the continuance of the pregnancy would involve a serious risk to the life of the pregnant woman. This would mean that the 'unborn life' of the foetus would be regarded as being of a higher value than the life of the pregnant woman" (ibid, 19). The Commission adopted that solution, noting that by 1950 practically all the Contracting Parties had "permitted abortion when necessary to save the life of the mother" and that in the meantime the national law on termination of pregnancy had "shown a tendency towards further liberalisation" (ibid, 20). 78. In the case of H v Norway, concerning an abortion carried out on non-medical grounds against the father's wishes, the Commission added that Art 2 required the State not only to refrain from taking a person's life intentionally but also to take appropriate steps to safeguard life (see H v Norway, cited above, at p167). It considered that it did not have to decide "whether the foetus may enjoy a certain protection under Art 2, first sentence", but did not exclude the possibility that "in certain circumstances this may be the case notwithstanding that there is in the Contracting States a considerable divergence of views on whether or to what extent Art 2 protects the unborn life" (ibid). It further noted that in such a delicate area the Contracting States had to have a certain discretion, and concluded that the mother's decision, taken in accordance with Norwegian legislation, had not exceeded that discretion (ibid, p168). 79. The Court has only rarely had occasion to consider the application of Art 2 to the foetus. In the case of Open Door and Dublin Well Woman (previously cited) the Irish Government relied on the protection of the life of the unborn child to justify their legislation prohibiting the provision of information concerning abortion facilities abroad. The only issue that was resolved was whether the restrictions on the freedom to receive and impart the information in question had been necessary in a democratic society, within the meaning of para 2 of Art 10 of the Convention, to pursue the "legitimate aim of the protection of morals of which the protection in Ireland of the right to life of the unborn is one aspect" (see Open Door and Dublin Well Woman, 63), since the Court did not consider it relevant to determine "whether a right to abortion is guaranteed under the Convention or whether the foetus is encompassed by the right to life as contained in Art 2" (ibid, 66). Recently, in circumstances similar to those in the abovementioned case of H v Norway, where a woman had decided to terminate her pregnancy against the father's wishes, the Court held that it was not required to determine "whether the foetus may qualify for protection under the first sentence of Art 2 as interpreted [in the case-law relating to the positive obligation to protect life]", and continued: "Even supposing that, in certain circumstances, the foetus might be considered to have rights protected by Art 2 of the Convention, in the instant case [the] pregnancy was terminated in conformity with s. 5 of Law no 194 of 1978" - a law which struck a fair balance between the woman's interests and the need to ensure protection of the foetus (see Boso v Italy (dec), appn 50490/99. 80. It follows from this recapitulation of the case-law that in the circumstances examined to date by the Convention institutions - that is, in the various laws on abortion - the unborn child is not regarded as a "person" directly protected by Art 2 of the Convention and that if the unborn do have a "right" to

2005 147 1 Inquest LR Vo v France "life", it is implicitly limited by the mother's rights and interests. The Convention institutions have not, however, ruled out the possibility that in certain circumstances safeguards may be

extended to the unborn child. That is what appears to have been contemplated by the Commission in considering that "Art 81 cannot be interpreted as meaning that pregnancy and its termination are, as a principle, solely a matter of the private life of the mother" (see Brggeman and Scheuten, cited above, at 61) and by the Court in the above-mentioned Boso decision. It is also clear from an examination of these cases that the issue has always been determined by weighing up various, and sometimes conflicting, rights or freedoms claimed by a woman, a mother or a father in relation to one another orvis--vis an unborn child. 2. Approach in the instant case 81. The special nature of the instant case raises a new issue. The Court is faced with a woman who intended to carry her pregnancy to term and whose unborn child was expected to be viable, at the very least in good health. Her pregnancy had to be terminated as a result of an error by a doctor and she therefore had to have a therapeutic abortion on account of negligence by a third party. The issue is consequently whether, apart from cases where the mother has requested an abortion, harming a foetus should be treated as a criminal offence in the light of Art 2 of the Convention, with a view to protecting the foetus under that Article. This requires a preliminary examination of whether it is advisable for the Court to intervene in the debate as to who is a person and when life begins, in so far as Art 2 provides that the law must protect "everyone's right to life". 82. As is apparent from the above recapitulation of the case-law, the interpretation of Art 2 in this connection has been informed by a clear desire to strike a balance, and the Convention institutions' position in relation to the legal, medical, philosophical, ethical or religious dimensions of defining the human being has taken into account the various approaches to the matter at national level. This has been reflected in the consideration given to the diversity of views on the point at which life begins, of legal cultures and of national standards of protection, and the State has been left with considerable discretion in the matter, as the opinion of the European Group on Ethics at Community level appositely puts it: "the Community authorities have to address these ethical questions taking into account the moral and philosophical differences, reflected by the extreme diversity of legal rules applicable to human embryo research It is not only legally difficult to seek harmonisation of national laws at Community level, but because of lack of consensus, it would be inappropriate to impose one exclusive moral code" (see para 40 above). It follows that the issue of when the right to life begins comes within the margin of appreciation which the Court generally considers that States should enjoy in this sphere, notwithstanding an evolutive interpretation of the Convention, a "living instrument which must be interpreted in the light of present-day conditions" (see Tyrer v UK (1978) 2 EHRR 1 , 31, and subsequent case-law). The reasons for that conclusion are, firstly, that the issue of such protection has not been resolved within the majority of the Contracting States themselves, in France in particular, where it is the subject of debate (see para 83 below) and, secondly, that there is no European consensus on the scientific and legal definition of the beginning of life (see para 84 below). 83. The Court observes that the French Court of Cassation, in three successive judgments delivered in 1999, 2001 and 2002 (see paras 22 and 29 above), considered that the rule that offences and punishment must be defined by law, which required criminal statutes to be construed strictly, excluded acts causing a fatal injury to a foetus from the scope of Art 221-6 of the Criminal Code, under which unintentional homicide of "another" is an offence. However, if, as a result of unintentional negligence, the mother gives birth to a live child who dies shortly after being born, the person responsible may be convicted of the unintentional homicide of the child (see para 30 above). The first-mentioned approach, which conflicts with that of several courts of appeal (see paras 21 and 50 above), was interpreted as an invitation to the legislature to fill a legal vacuum. That was also the position of the Criminal Court in the instant case: "The court cannot create law on an issue which [the legislature has] not yet succeeded in defining." The French parliament attempted such a definition in proposing to create the offence of

involuntary termination of pregnancy (see para 32 above), but the Bill containing that proposal was lost, on account of the fears and uncertainties that the creation of the offence might arouse as to the determination of when life began, and the disadvantages of the proposal, which were thought to outweigh its advantages (see para 33 above). The Court further notes that alongside the Court of Cassation's repeated rulings that Art 221-6 of the Criminal Code does not apply to foetuses, the French parliament is currently revising the 1994 bioethics laws, which added provisions to the Criminal Code on the protection of the human embryo (see para 25 above) and required re-examination in the light of scientific and technological progress (see para 34 above). It is clear from this overview that in France, the nature and legal status of the embryo and/or the foetus are currently not defined and that the manner in which it is to be protected will be determined by very varied forces within French society. 84. At European level, the Court observes that there is no consensus on the nature and status of the embryo and/or foetus (see paras 39 and 40 above), although they are beginning to receive some protection in the light of scientific progress and the

2005 148 1 Inquest LR Vo v France potential consequences of research into genetic engineering, medically assisted procreation or embryo experimentation. At best, it may be regarded as common ground between States that the embryo/ foetus belongs to the human race. The potentiality of that being and its capacity to become a person - enjoying protection under the civil law, moreover, in many States, such as France, in the context of inheritance and gifts, and also in the UK (see para 72 above) - require protection in the name of human dignity, without making it a "person" with the "right to life" for the purposes of Art 2. The Oviedo Convention on Human Rights and Biomedicine, indeed, is careful not to give a definition of the term "everyone" and its explanatory report indicates that, in the absence of a unanimous agreement on the definition, the member States decided to allow domestic law to provide clarifications for the purposes of the application of that Convention (see para 36 above). The same is true of the Additional Protocol on the Prohibition of Cloning Human Beings and the draft Additional Protocol on Biomedical Research, which do not define the concept of "human being" (see paras 37 and 38 above). It is worth noting that the Court may be requested under Art 29 of the Oviedo Convention to give advisory opinions on the interpretation of that instrument. 85. Having regard to the foregoing, the Court is convinced that it is neither desirable, nor even possible as matters stand, to answer in the abstract the question whether the unborn child is a person for the purposes of Art 2 of the Convention ("personne " in the French text). As to the instant case, it considers it unnecessary to examine whether the abrupt end to the applicant's pregnancy falls within the scope of Art 2, seeing that, even assuming that that provision was applicable, there was no failure on the part of the respondent State to comply with the requirements relating to the preservation of life in the public-health sphere. With regard to that issue, the Court has considered whether the legal protection afforded the applicant by France in respect of the loss of the unborn child she was carrying satisfied the procedural requirements inherent in Art 2 of the Convention. 86. In that connection, it observes that the unborn child's lack of a clear legal status does not necessarily deprive it of all protection under French law. However, in the circumstances of the present case, the life of the foetus was intimately connected with that of the mother and could be protected through her, especially as there was no conflict between the rights of the mother and the father or of the unborn child and the parents, the loss of the foetus having been caused by the unintentional negligence of a third party. 87. In the aforementioned Boso v Italy decision, the Court said that even supposing that the foetus might be considered to have rights protected by Art 2 of the Convention (see para 79

above), Italian law on the voluntary termination of pregnancy struck a fair balance between the woman's interests and the need to ensure protection of the unborn child. In the present case, the dispute concerns the involuntary killing of an unborn child against the mother's wishes, causing her particular suffering. The interests of the mother and the child clearly coincided. The Court must therefore examine, from the standpoint of the effectiveness of existing remedies, the protection which the applicant was afforded in seeking to establish the liability of the doctor concerned for the loss of her childin utero and to obtain compensation for the abortion she had to undergo. The applicant argued that only a criminal remedy would have been capable of satisfying the requirements of Art 2 of the Convention. The Court does not share that view, for the following reasons. 88. The Court reiterates that the first sentence of Art 2, which ranks as one of the most fundamental provisions in the Convention and also enshrines one of the basic values of the democratic societies making up the Council of Europe (see McCann and Others v UK (1995) 21 EHRR 97 , 147), requires the State not only to refrain from the "intentional" taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see, for example, LCB v UK (1998) 27 EHRR 212 , 36). 89. Those principles apply in the public-health sphere too. The positive obligations require States to make regulations compelling hospitals, whether private or public, to adopt appropriate measures for the protection of patients' lives. They also require an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable (see Powell v UK [2000] Inquest Law Reports 19, and Calvelli and Ciglio, cited above, 49). 90. Although the right to have third parties prosecuted or sentenced for a criminal offence cannot be asserted independently (see Perez v France [GC], appn 47287/99, 70), the Court has stated on a number of occasions that an effective judicial system, as required by Art 2, may, and under certain circumstances must, include recourse to the criminal law. However, if the infringement of the right to life or to physical integrity is not caused intentionally, the positive obligation imposed by Art 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case. In the specific sphere of medical negligence, "the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for

2005 149 1 Inquest LR Vo v France damages and for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged" (see Calvelli and Ciglio, cited above, 51; Lazzarini and Ghiacci v Italy (dec) appn 53749/00, 7 November 2002; and Mastromatteo v Italy [2000] Inquest Law Reports 182). 91. In the instant case, in addition to the criminal proceedings which the applicant instituted against the doctor for unintentionally causing her injury - which, admittedly, were terminated because the offence was covered by an amnesty, a fact that did not give rise to any complaint on her part - she had the possibility of bringing an action for damages against the authorities on account of the doctor's alleged negligence (see Kress v France [GC], appn 39594/98, 14 et seq). Had she done so, the applicant would have been entitled to have an adversarial hearing on her allegations of negligence (see Powell, cited above) and to obtain redress for any damage sustained. A claim for compensation in the administrative courts would have had fair prospects of success and the applicant could have obtained damages from the hospital. That is apparent from the findings clearly set out in the expert reports (see para 16 above) in 1992 - before the

action had become statute-barred - concerning the poor organisation of the hospital department in question and the serious negligence on the doctor's part, which nonetheless, in the Court of Appeal's opinion (see para 21 above), did not reflect a total disregard for the most fundamental principles and duties of his profession such as to render him personally liable. 92. The applicant's submission concerning the fact that the action for damages in the administrative courts was statute-barred cannot succeed in the Court's view. In this connection, it refers to its case-law to the effect that the "right to a court", of which the right of access is one aspect, is not absolute; it is subject to limitations permitted by implication, in particular where the conditions of admissibility of an appeal are concerned, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard (see, among other authorities, Brualla Gmez de la Torre v Spain, 19 December 1997, 33). These legitimate restrictions include the imposition of statutory limitation periods, which, as the Court has held in personal injury cases, "serve several important purposes, namely to ensure legal certainty and finality, protect potential defendants from stale claims which might be difficult to counter and prevent the injustice which might arise if courts were required to decide upon events which took place in the distant past on the basis of evidence which might have become unreliable and incomplete because of the passage of time" (see Stubbings and Others v UK (1996) 23 EHRR 213 , 51). 93. In the instant case, a four-year limitation period does not in itself seem unduly short, particularly in view of the seriousness of the damage suffered by the applicant and her immediate desire to prosecute the doctor. However, the evidence indicates that the applicant deliberately turned to the criminal courts, apparently without ever being informed of the possibility of applying to the administrative courts. Admittedly, parliament recently extended the time allowed to ten years under the Law of 4 March 2002 (see para 28 above). It did so with a view to standardising limitation periods for actions for damages in all courts, whether administrative or ordinary. This enables the general emergence of a system increasingly favourable to victims of medical negligence to be taken into account, an area in which the administrative courts appear capable of striking an appropriate balance between consideration of the damage to be redressed and the excessive "judicialisation" of the responsibilities of the medical profession. The Court does not consider, however, that these new rules can be said to imply that the previous period of four years was too short. 94. In conclusion, the Court considers that in the circumstances of the case, an action for damages in the administrative courts could be regarded as an effective remedy that was available to the applicant. Such an action, which she failed to use, would have enabled her to prove the medical negligence she alleged and to obtain full redress for the damage resulting from the doctor's negligence, and there was therefore no need to institute criminal proceedings in the instant case. 95. The Court accordingly concludes that, even assuming that Art 2 was applicable in the instant case (see para 85 above), there has been no violation of Art 2 of the Convention. 4. Holdings For these reasons, the court 1. 1.Joinsto the merits unanimously the Government's preliminary objections of the application's incompatibilityrationemateriae with the provisions of the Convention and of failure to exhaust domestic remedies, anddismisses them; 2. 2.Declares unanimously the applicationadmissible ; 3. 3.Holds by 14 votes to 3 that there has been no violation of Art 2 of the Convention. 5. Separate opinion of Judge Rozakis, joined by Judges Caflisch, Fischbach, Lorenzen and Thomassen 1. I have voted, together with the majority of the Grand Chamber, in favour of finding that there has been no violation of Art 2 in the instant case. Yet, my approach differs in certain respects from that of the majority and I would therefore like to append to the

2005 150 1 Inquest LR Vo v France judgment this separate opinion setting out the points on which my assessment of the law is at variance with that of the majority. 2. The Court in this case correctly stresses that research into French domestic law shows that the nature and legal status of the embryo and/or the foetus are currently not defined in France and that the manner in which it is to be protected will ultimately be determined by very varied forces within French society (para 83,in fine ). It also stresses (and this was a forceful argument in the eyes of the Court) that at European level there is no consensus on the nature and status of the embryo and/or foetus and, at best, "it may be regarded as common ground between States that the embryo/ foetus belongs to the human race. The potentiality of that being and its capacity to become a person - enjoying protection under the civil law, moreover, in many States, such as France, in the context of inheritance and gifts, and also in the UK - require protection in the name of human dignity, without making it a 'person' with the 'right to life' for the purposes of Art 2" (para 84). 3. Despite these findings, with which I readily agree, the Court refuses to draw the relevant conclusions, namely that in the present state of development of science, law and morals, both in France and across Europe, the right to life of the unborn child has yet to be secured. Even if one accepts that life begins before birth, that does not automatically and unconditionally confer on this form of human life a right to life equivalent to the corresponding right of a child after its birth. This does not mean that the unborn child does not enjoy any protection by human society, since - as the relevant legislation of European States, and European agreements and relevant documents show - the unborn life is already considered to be worthy of protection. But as I read the relevant legal instruments, this protection, though afforded to a being considered worthy of it, is, as stated above, distinct from that given to a child after birth, and far narrower in scope. It consequently transpires from the present stage of development of the law and morals in Europe that the life of the unborn child, although protected in some of its attributes, cannot be equated to post-natal life, and, therefore, does not enjoy a right in the sense of "a right to life", as protected by Art 2 of the Convention. Hence, there is a problem of applicability of Art 2 in the circumstances of the case. 4. Instead of reaching that unavoidable conclusion, as the very reasoning of the judgment dictated, the majority of the Grand Chamber opted for a neutral stance, declaring: "the Court is convinced that it is neither desirable, nor even possible as matters stand, to answer in the abstract the question whether the unborn child is a person for the purposes of Art 2 of the Convention" (para 85). 5. What also seems problematic with the majority's reasoning is that, despite their obvious doubts or, at any rate, their reluctance to accept that Art 2 was applicable in this case, the majority ended up abandoning their neutral stance and based their finding of no violation on the argument that the procedural guarantees inherent in the protection of Art 2 had been satisfied in the circumstances of the case. By using the "even assuming" formula as to the applicability of Art 2, and by linking the life of the foetus to the life of the mother ("the life of the foetus was intimately connected with that of the mother and could be protected through her" - see para 86), the majority has surreptiously brought Art 2 of the Convention to the fore of the case. Yet, it is obvious from the case-law that reliance on the procedural guarantees of Art 2 to determine whether or not there has been a violation presupposes the prima facie applicability of that Art (and using the "even assuming" formula does not alter the position if, in the end, the only real ground for the Court's findings is the hypothesis referred to in the formula); and in the circumstances of the case there was not even the remotest threat to the mother's right of life such as would justify bringing the procedural guarantees of Art 2 of the Convention into play.

6. For the reasons explained above, I am unable to agree with the reasoning of the majority and conclude that, as matters presently stand, Art 2 is inapplicable in this case. 6. Separate opinion of Judge Costa, joined by Judge Traja 1. In this case, in which a doctor's negligence caused a pregnancy to be terminated after almost six months against the wishes of the woman carrying the unborn child, the Court has found no violation of Art 2 of the Convention. 2. Its reasoning, however, is cautious: the Court decided that it was unnecessary to determine whether Art 2 was applicable, holding that even assuming it was, there has been no violation on the facts. 3. I voted in favour of finding no violation of Art 2, but would have preferred the Court to hold that Art 2 was applicable, even if such a conclusion is not self-evident. As I will attempt to demonstrate, such a decision would perhaps have been clearer with only minimal inconvenience as regards the scope of the judgment. 4. It seems to me, firstly, that it is not the Court's role as a collegiate body to consider cases from a primarily ethical or philosophical standpoint (and, in my view, it has successfully avoided this pitfall in this judgment). The Court must endeavour to remain within its own - legal - sphere of competence, although I accept that law does not exist in a vacuum and is not a chemically pure substance detached from moral or societal considerations. Whether or not they choose to express their personal opinions as Art 45 of

2005 151 1 Inquest LR Vo v France the Convention entitles (but does not oblige) them to do, individual judges are not, in my opinion, subject to the same constraints. The present case enters into the realm of deep personal convictions and for my part I thought it necessary and perhaps helpful to set out my views. As the reader will have understood, they slightly differ from those of the majority. 5. From the ethical standpoint, the most natural way to attempt to interpret Art 2 of the Convention ("Everyone's right to life shall be protected by law" - "le droit de toute personne la vie est protg par la loi " in the French text) is to ask what is meant by "everyone" (personne ) and when does life begin. It is very difficult to obtain unanimity or agreement here, as ethics are too heavily dependent on individual ideology. In France, the National Advisory Committee, which has been doing a remarkable job for the past twenty years and has issued a number of opinions on the human embryo (a term it generally prefers to " foetus" at all stages of development), has not been able to come up with a definitive answer to these questions. This is only to be expected, particularly bearing in mind the Committee's composition, which President Mitterrand decided at its inception should be pluralist. To say (as the Committee has done since issuing its first opinion in 1984) that "the embryo must berecognised as apotential human person" does not solve the problem because a being that is recognised as potential is not necessarily a being and may in fact, byconverse implication, not be one. As to life and, therefore, the point at which life begins, everybody has his or her own conception (see the Committee's fifth opinion issued in 1985). All this shows is that there perhaps exists a right for a potential person to a potential life; for lawyers, however, there is a world of difference between the potential and the actual. 6. What is true for the ethical bodies of States such as the respondent State is also true internationally. The judgment rightly notes that the Oviedo Convention on Human Rights and Biomedicine (a Council of Europe sponsored instrument signed in 1997) does not define what is meant by "everyone". Nor does it provide any definition of "human being", despite the importance it attaches to the dignity, identity, primacy, interests and welfare of human beings. Nor is there any reference to the beginning of life.

7. Does the present inability of ethics to reach a consensus on what is a person and who is entitled to the right to life prevent the law from defining these terms? I think not. It is the task of lawyers, and in particular judges, especially human-rights judges, to identify thenotions - which may, if necessary, be the autonomous notions the Court has always been prepared to use - that correspond to the words or expressions in the relevant legal instruments (in the Court's case, the Convention and its Protocols). Why should the Court not deal with the terms "everyone" and the "right to life" (which the European Convention on Human Rights does not define) in the same way it has done from its inception with the terms "civil rights and obligations", "criminal charges" and "tribunals", even if we are here concerned with philosophical, not technical, concepts? 8. Indeed, the Court has already embarked upon this course in the sphere of Art 2, at least as regards the right to life, for instance, by imposing positive obligations on States to protect human life, or holding that in exceptional circumstances the use of potentially lethal force by State agents may lead to a finding of a violation of Art 2. Through its case-law, therefore, the Court has broadened the notions of the right to life and unlawful killing, if not the notion of life itself. 9. Conversely, I do not believe that it is possible to take the convenient way out of saying that Mrs Vo, a "person", had a right to life (of her unborn child). It is true that the notion of who constitutes a victim has been enlarged by the case-law: a complaint by a nephew alleging a violation of Art 2 on account of his uncle's murder has thus been declared admissible (Yaa v Turkey, 2 September 1998). However, in the instant case, the Court is concerned with a pleaded right to life of the unborn child and this type of decision can only apply to the applicant's case if it is accepted that the unborn child itself has a right to life, since, in order to be a victim within the meaning of Art 34 of the Convention, Mrs Vo must also be a victim of a violation that is recognised by the Convention,quod est demonstrandum . 10. Indeed, it seems to me that the Commission and the Court have already worked on the assumption that Art 2 is applicable to the unborn child (without, however, affirming that the unborn child is a person). In a number of cases they have held that, even if they did not have to decide the question of applicability, there was in any event no violation of Art 2 on the facts, for instance in the case of a termination of pregnancy in accordance with legislation "which struck a fair balance between the woman's interests and the need to ensure protection of the foetus" (see Boso v Italy, decision of 5 September 2002, which is cited in the judgment; but also, in less forthright terms, the Commission's decision of 19 May 1992 in another cited case, H v Norway). Had Art 2 been considered to be entirely inapplicable, there would have been no point - and this applies to the present case also - in examining the question of foetal protection and the possible violation of Art 2, or in using this reasoning to find that there had been no violation of that provision. 11. It is possible to turn to the law of the respondent State, not because it is a model to be imposed on others, but because it is directly in issue in the present case. As far back as 1990, theConseil d'Etat held that the French Voluntary Termination of Pregnancy Act

2005 152 1 Inquest LR Vo v France (which the Constitutional Council had declared in its decision no 74-DC of 15 January 1975 was not unconstitutional, while at the same time declining jurisdiction to examine its compatibility with the Convention) was not incompatible with Art 2 of the Convention or Art 6 of the International Covenant on Civil and Political Rights (which provides: "Every human being has the inherent right to life. This right shall be protected by law"). Above all, theConseil d'Etat thereby recognised unambiguously, albeit implicitly, that that Act came within the scope of Art 2 (see its decision of 21 December 1990,Confdration nationale des associations familiales

catholiques , published at p369 of theRecueil Lebon , and the submissions of Mr Bernard Stirn, which clarify it). 12. To my mind, this judgment of the highest French administrative court demonstrates that a decision by the European Court of Human Rights in which it is plainly stated that the "end of life" of an unborn child is within the scope of Art 2 of the Convention would not threaten - at least not in essence - the domestic legislation of a large number of European countries that makes the voluntary termination of pregnancy lawful, subject, of course, to compliance with certain conditions. In a number of European States, such legislation has been held to be consistent with the domestic Constitution and even with Art 2 of the Convention. The Norwegian Supreme Court so found in 1983. The German Federal Constitutional Court and the Spanish Constitutional Court have also accepted that the right to life, as protected by Art 2 of the Convention, can apply to the embryo or the foetus (the question whether that right is absolute being a separate issue). These are examples of decisions in which the highest courts of individual countries have recognised that the right to life, whether set out in Art 2 of the European Convention on Human Rights or enshrined in domestic constitutional principles of like content and scope, applies to the foetus, without being absolute. Is there any reason why the Court, which aspires to the role of a constitutional court within the European human-rights order, should be less bold? 13. Obviously, were the Court to rule that Art 2 was applicable, either on its wording or in substance, it would have to examine in any event (and not just on the facts of the individual case as here) whether or not it had been complied with. This, though, should not be of concern to it either. In the aforementioned Boso decision, it applied the "fair balance" test to the impugned statute, so that it would have had to reach the opposite conclusion had the legislation been different and not strike a fair balance between the protection of the foetus and the mother's interests. Potentially, therefore, the Court reviews compliance with Art 2 in all cases in which the "life" of the foetus is destroyed. 14. Similarly, it might be contended that, since Art 15 of the Convention states that no derogation may be made from Art 2, it would be preposterous for the Court to find that Art 2 is not absolute, or is subject to implied exceptions other than those exhaustively set out in the second paragraph thereof. This would militate in favour of holding that Art 2 does not apply to the unborn child (as the unborn child is not one of the exceptions set out in the second paragraph). However, I am not persuaded by either of these two arguments. The non-derogation rule only prohibits States parties that derogate from the Convention in time of war or other public emergency, as they are entitled to do by Art 15, from infringing Art 2. However, quite clearly situations and exceptional circumstances of this kind are quite unrelated to the killing of an unborn child. More disconcerting from a logical perspective is an argument based on the actual wording of Art 2. However, not only has the Court already decided the point (as it indisputably did in Boso), Art 2 cannot be conclusively construed as clearly prohibiting all voluntary terminations of pregnancy, if only because a number of Contracting States have ratified the Convention without any apparent problem, despite already possessing legislation permitting voluntary termination in certain circumstances. Even more persuasive when it comes to an evolutive interpretation of Art 2 is the fact that a large number of European countries passed legislation in the 1970s permitting the voluntary termination of pregnancy within a strict framework. 15. As regards the potential effects of finding Art 2 applicable, it could perhaps be objected, conversely, that the present case can be distinguished from the voluntary termination of pregnancy cases and that the destruction of a foetus as a result of medical error, or any other negligent act or omission, is different from termination at the request of the mother in distress herself. In other words, those who, in the name of women's freedom of choice, defend the principle of voluntary termination of pregnancy might fear that such legislation would indirectly be at risk if Art 2 was found to be applicable. It is true that the "Garraud Amendment", which is mentioned in the judgment and was finally withdrawn from Parliament, was fiercely opposed by

sections of French society, in particular (but not only) supporters of the Voluntary Termination of Pregnancy Act, precisely for this reason (as it was intended to create an offence of involuntary termination of pregnancy). 16. However, I do not believe that such fears are legitimately justified, if only because a woman who loses her unborn child against her wishes and sees her hopes of maternity dashed is in an entirely different situation from a woman resigned - albeit likewise in circumstances of suffering and bereavement - to ask for her pregnancy to be brought to an end. In any event, it is not a judicial decision (on the applicability or otherwise of Art 2 of the Convention) which will resolve this ethical debate, still less justify society's

2005 153 1 Inquest LR Vo v France policy choices. In addition, since the Vo v France judgment does not require States to afford criminal-law protection against the risk of the loss of the foetus (and on that I agree), it does not, in any event, plead in favour of making the involuntary termination of pregnancy a criminal offence. 17. In sum, I see no good legal reason or decisive policy consideration for not applying Art 2 in the present case. On a general level, I believe (in company with many senior judicial bodies in Europe) that there is life before birth, within the meaning of Art 2, that the law must therefore protect such life, and that if a national legislature considers that such protection cannot be absolute, then it should only derogate from it, particularly as regards the voluntary termination of pregnancy, within a regulated framework that limits the scope of the derogation. The actual circumstances of Mrs Vo's case made it all the more appropriate to find that Art 2 was applicable: she was six months pregnant (contrast this - purely for illustration purposes - with the German Federal Constitutional Court's view that life begins after fourteen days gestation), there was every prospect that the foetus would be born viable and, lastly, the pregnancy was clearly ended by an act of negligence, against the applicant's wishes. 18. I have nothing further to add, since, with minor differences, I agree with what the judgment has to say in finding that there has been no violation of Art 2. 7. Dissenting opinion of Judge Ress 1. France's positive obligation to protect the unborn children against unintentional homicide, that is to say against negligent acts that could cause a child's death, can only be discharged if French law has effective procedures in place to prevent the recurrence of such acts. On this point, I am unable to agree with the opinion expressed by the majority that an action in damages in the administrative courts (on account of the hospital doctor's alleged negligence) afforded the unborn child adequate and effective protection against medical negligence. As Judge Rozakis, joined by Judges Bonello and Strznick, pointed out in his dissenting opinion in the case of Calvelli and Ciglio v Italy [GC] appn 32967/96, an action in pecuniary and even non-pecuniary damages will not in all circumstances be apt to protect against the unintentional taking of life, especially in a case such as the present one in which a mother lost her child as a result of a doctor's negligence. Even though I accepted the outcome in the case of Calvelli and Ciglio v Italy, which was based on the fact that the applicants had agreed to compensation under a friendly settlement, criminal proceedings were commenced in that case (although they were not continued because prosecution of the offence became statute-barred). It is not retribution that makes protection by the criminal law desirable, but deterrence. In general, it is through the criminal law that society most clearly and strictly conveys messages to its members and identifies values that are most in need of protection. Life, which is one of the values, if not the main value, protected by the Convention (Streletz, Kessler and Krenz v Germany, 22 March 2001, 92-94; and McCann and Others v UK (1995) 21 EHRR 97 ,147), will in principle require the protection of the criminal law if it is to be adequately safeguarded and defended. Financial liability to pay compensation is

only a secondary form of protection. In addition, hospitals and doctors are usually insured against such risks, so that the "pressure" on them is reduced. 2. One might consider that imposing a disciplinary penalty on a doctor could be regarded as equivalent to imposing a criminal penalty in certain circumstances. Disciplinary measures were viewed as an alternative means of discouraging negligence in the case of Calvelli and Ciglio v Italy (51). However, it is equally clear that, as unpleasant as the consequences may be professionally, a disciplinary penalty does not amount to general condemnation (Unwerturteil ). Disciplinary penalties depend on conditions that are entirely specific to the profession concerned (the bodies being self-regulating) and in general do not afford the deterrence necessary to protect such an important value as life. Nevertheless, the question has to be asked whether in the present case a disciplinary penalty for such a serious error could have provided sufficient deterrence. Here, though, is where the problem lies, as the authorities at no stage brought disciplinary proceedings against the doctor. For an error as serious as that committed by Dr G, such disciplinary proceedings accompanied by an adequate measure could at least have sent an appropriate signal to the medical profession to prevent the recurrence of such tragic events. I do not think it necessary to say that France requires criminal legislation. However, it does need to take strict disciplinary action in order to meet its obligation to afford effective protection of the life of the unborn child. In my opinion, therefore, there was no effective protection. 3. In order to reach that conclusion, it seems necessary to find out whether Art 2 applies to the unborn child. I am prepared to accept that there may be differences in the level of protection afforded to an embryo and to a child after birth. Nevertheless, that does not justify the conclusion (at para 85 of the judgment) that it is not possible to answer in the abstract the question whether the unborn child is a person for the purposes of Art 2 of the Convention. All the Court's case-law and the Commission's decisions (see paras 75-80 of judgments) are based on the "assuming that" argument (in eventu ). Yet the failure to give a clear answer can no longer be justified by reasons of procedural economy. Nor can the problem of protecting the embryo through the Convention be solved solely through the protection of the mother's life. As this case illustrates, the embryo

2005 154 1 Inquest LR Vo v France and the mother, as two separate "human beings", need separate protection. 4. The Vienna Convention on the Law of Treaties (Art 311) requires treaties to be interpreted in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its objects and purpose. The ordinary meaning can only be established from the text as a whole. Historically, lawyers have understood the notion of "everyone" (toutepersonne ) as including the human being before birth and, above all, the notion of "life" as covering all human life commencing with conception, that is to say from the moment anindependent existence develops until it ends with death, birth being but a stage in that development. The structure of Art 2 and, above all the exceptions set out in para 2 thereof, appear to indicate that persons are only entitled to protection thereunder once they have been born and that it is only after birth that they are regarded as having rights under the Convention. In view of the "aim" of the Convention to provide extended protection, this does not appear to be a conclusive argument. Firstly, a foetus may enjoy protection, especially within the framework of Art 82 (see Odivre v France [GC] appn 42326/98, 45). In addition, the decisions of the Commission and the Court contain indications that Art 2 is applicable to the unborn child. In all the cases in which that issue has been considered, the Commission and the Court have developed a concept of an implied limitation or of a fair balance between the interests of society and the interests of the individual, that is to say the mother or the unborn child. Admittedly, these concepts were developed in connection with legislation on the voluntary, but not the involuntary, termination of pregnancy. However, it is clear that they would not have been necessary if the Commission and the Court

had considered at the outset that Art 2 could not apply to the unborn child. Even though the Commission and the Court have left the question open formally, such a legal structure proves that both institutions were inclined to adopt the ordinary meaning of "human life" and "everyone" rather than the other meaning. Similarly, the practice of the Contracting States, virtually all of which had constitutional problems with their laws on abortion (voluntary termination of pregnancy), clearly shows that the protection of life also extends in principle to the foetus. Specific laws on voluntary abortion would not have been

necessary if the foetus did not have a life to protect and was fully dependent till birth on the unrestricted wishes of the pregnant mother. Nearly all the Contracting States have had problems because, in principle, the protection of life under their constitutional law also extends to the prenatal stage.
5. It is obvious that the premise of the debate on genetic safeguards in a number of recent conventions and the prohibition on the reproductive cloning of "human beings" in the Charter of Fundamental Rights of the European Union (Art 32, final subparagraph) is that the protection of life extends to the initial phase of human life. The Convention, which was conceived as a living instrument to be interpreted in present-day conditions in society, must take such a development into account in order to confirm the "ordinary meaning", in accordance with Art 32 of the Vienna Convention. Even if it is assumed that the ordinary meaning of human life in Art 2 of the Convention is not entirely clear and can be interpreted in different ways, the obligation to protect human life requires more extensive protection, particularly in view of the techniques available for genetic manipulation and the unlimited production of embryos for various purposes. The manner in which Art 2 is interpreted must evolve in accordance with these developments and constraints and confront the real dangers now facing human life. Any restriction on such a dynamic interpretation must take into account the relationship between the life of a person who has been born and the unborn life, which means that protecting the foetus to the mother's detriment would be unacceptable. 6. The fact that various provisions of the Convention contain guarantees which by their nature cannot extend to the unborn cannot alter that position. If, by their very nature, the scope of such provisions can only extend to natural persons or legal entities, or to persons who have been born or are adults, that does not preclude the conclusion that other provisions such as the first sentence of Art 2 incorporate protection for the lives of human beings in the initial stage of their development. 7. It should be noted that the present case is wholly unrelated to laws on the voluntary termination of pregnancy. That is a separate issue which is fundamentally different from interference, against the mother's wishes, in the life and welfare of her child. The present case concerns wrongdoing by a third party resulting in the loss of a foetus, if not the death of the mother, whereas voluntary abortion is solely concerned with the relationship between the mother and the child and the question of their protection by the State. Although holding that Art 2 applies to human life before birth may have repercussions on the laws regulating the voluntary termination of pregnancy, that is not a reason for saying that Art 2 is not applicable. Quite the opposite. Furthermore, it is not necessary in the instant case to decide when life begins. It was noted that the twenty-one week old foetus was viable, although I believe that the notion of viability cannot limit the States' positive obligation to protect the unborn child against interference and negligence by doctors. 8. There can be no margin of appreciation on the issue of the applicability of Art 2. A margin of appreciation may, in my opinion, exist to determine the measures that should be taken to discharge the positive obligation that arises because Art 2 is applicable, but it is not possible to restrict the

2005 155 1 Inquest LR Vo v France applicability of Art 2 by reference to a margin of appreciation. The question of the interpretation or applicability of Art 2 (an absolute right) cannot depend on a margin of appreciation. If Art 2 is applicable, any margin of appreciation will be confined to the effect thereof. 9. Since I consider that Art 2 applies to human beings even before they are born, an interpretation which seems to me to be consistent with the approach of the Charter of Fundamental Rights of the European Union, and since France does not afford sufficient protection to the foetus against the negligent acts of third parties, I find that there has been a violation of Art 2 of the Convention. As regards the specific measures necessary to discharge that positive obligation, that is a matter for the respondent State, which should either take strict disciplinary measures or afford the protection of the criminal law (against unintentional homicide). 8. Dissenting opinion of Judge Mularoni joined by Judge Strznick 1. I am unable to concur with the majority's finding that there has been no violation of Art 2 of the Convention because the applicant could have brought an action in negligence in the administrative courts for the damage caused by the hospital doctor (see para 91 of the judgment). According to the majority, since the applicant did not bring such an action, there was no violation of Art 2. 2. I agree with the majority that it is necessary to consider "whether the legal protection afforded the applicant by France in respect of the loss of the unborn child she was carrying satisfied the procedural requirements inherent in Art 2 of the Convention" (see para 85 of the judgment) and that: "the first sentence of Art 2, which ranks as one of the most fundamental provisions in the Convention and also enshrines one of the basic values of the democratic societies making up the Council of Europe (see McCann and Others v UK (1995) 21 EHRR 97 , 147), requires the State not only to refrain from the "intentional" taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see, among other authorities, LCB v UK (1998) 27 EHRR 212 , 36)" (see para 88 of the judgment). However, I come to entirely different conclusions. 3. I note that in December 1991, when the applicant and her partner lodged a criminal complaint with an application to be joined to the proceedings as civil parties for unintentional injury to the applicant entailing total unfitness for work for a period not exceeding three months and unintentional homicide of her child, theConseil d'Etat had not yet abandoned its position that a hospital department could incur liability only in cases of gross negligence (see para 57 of the judgment, the Government's submissions). 4. It is true that, as the majority note, the applicant could have tried to bring an action in damages against the authorities before it became statute-barred. However, it seems to me that the Court may be demanding too much of this applicant when it is recalled that the position taken by the Court of Cassation in its judgment of 30 June 1999, and which it subsequently followed in its judgments of 29 June 2001 (sitting as a full court) and 25 June 2002 (see para 29 of the judgment), was far from established, as witnessed by the court of appeal decisions to the contrary, the submissions of the advocates general at the Court of Cassation and, lastly, the almost universal criticism it attracted from legal commentators (see para 31 of the judgment). Since it was doubtful that she would be successful in an action in the administrative courts, the applicant brought criminal proceedings under the only two provisions of the Criminal Code that were open to her. She told the Court that she chose that course of action because a criminal investigation would aid in the task of establishing responsibility (see para 50 of the judgment). That explanation is entirely logical: it is precisely what most victims of crime do in countries that offer a choice between proceedings in the criminal courts or in the civil or administrative courts.

5. It could be argued that the French legal system did not afford the applicant any "effective" remedy when these sad events took place. Nevertheless, let us assume that the applicant had a choice between criminal and administrative remedies. Since a victim cannot claim compensation for his or her damage twice over, it would to my mind be disproportionate to criticise the applicant for not having exercised both remedies simultaneously. It would also represent a departure from the Court's case-law. 6. Under the case-law of the Convention institutions, where there is a choice of remedies open to the applicant, Art 35 must be applied to reflect the practical realities of the applicant's position in order to ensure the effective protection of the rights and freedoms guaranteed by the Convention (Allemeine Gold und Silberscheideanstalt AG v UK, 9118/80, Commission decision of 9 March 1983, DR 32, p165). The applicant must have made normal use of domestic remedies which are likely to be effective and sufficient. When a remedy has been attempted, use of another remedy which has essentially the same objective is not required (Wjcik v Poland, 26757/95, Commission decision of 7 July 1997, DR 90, p28; Gnaydin v Turkey (dec), 27526/95, 25 April 2002; Anagnostopoulos v Greece, 54589/00, 32, 3 April 2003). Furthermore, the applicant is only required to have recourse to such remedies as are both available and sufficient, that is to say capable of providing redress for his or her complaints (Airey v Ireland (1979) 2 EHRR 305 , 19; Deweer v Belgium (1980) 2 EHRR 439 , 29).

2005 156 1 Inquest LR Vo v France 7. I would also note that the amount at stake in the aforementioned Anagnostopoulos v Greece case was 15,000 drachmas (approximately 44 euros), whereas in the present case we are dealing with an unborn child. 8. The majority make a number of references to the Calvelli and Ciglio v Italy judgment ([GC], appn 32967/96), in which the Court stated (at 51): "[I]f the infringement of the right to life or to personal integrity is not caused intentionally, the positive obligation imposed by Art 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy". It added: "In the specific sphere of medical negligence the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged". 9. I consider that the differences between the solutions afforded by the two domestic legal systems must outweigh the similarities. In Calvelli and Ciglio, the applicants - the father and mother of a newborn child who died two days after birth - had brought criminal proceedings which ended when the offence of involuntary manslaughter with which the obstetrician was charged became statute-barred. However, the applicants were able to summon the doctor to appear in the civil courts after he was convicted at first instance in the criminal courts almost seven years after the death of the child and, with the civil proceedings still pending, they reached a settlement with the doctor's and clinic's insurers in respect of the damage they had sustained. The Court recognised that the Italian legal system afforded the applicants an effective alternative to criminal proceedings (Calvelli and Ciglio, 54-55) that enabled the respondent State to discharge its positive obligations under Art 2 of the Convention. In my opinion, the same cannot be said of its French counterpart in the present case. 10. I must confess that, had I been sitting in the Calvelli and Ciglio case, I would undoubtedly have concurred with the partly dissenting opinion of Judges Rozakis, Bonello and Strznick. However, even if I had agreed with the majority, it does not seem to me that their conclusion in Calvelli and Ciglio can be transposed to the present case, in which the limitation period for an action in the administrative courts, which at the time was four years from the date of stabilisation

of the damage, had expired by the time the criminal proceedings ended. The applicant received no reparation for her loss, not even for the offence of unintentionally causing injuries, for which the doctor was given an amnesty by the law of 3 August 1995. 11. I conclude that, in the light of the loss of the child she was carrying, the legal protection France afforded the applicant did not satisfy the procedural requirements inherent in Art 2 of the Convention. 12. Obviously, since I do not accept the reasoning that led the majority to hold that there has been no violation of Art 2 on procedural grounds and that it is therefore unnecessary to determine whether Art 2 is applicable, I must explain why I consider that that provision is applicable and has been violated. Up till now, while the Convention institutions have refrained from deciding whether or not Art 2 applies to unborn children (see paras 75-80 of the judgment), they have not excluded the possibility that the foetus may enjoy a certain protection under Art 2, first sentence (H. v Norway, Commission decision of 19 May 1992, DR 73, p167; Boso v Italy (dec), appn 50490/99, 5 September 2002). 13. Firstly, I think it necessary to bear in mind that the task of the national and international judge is not always easy, especially when a text may be construed in ways that are diametrically opposed. Thetravaux prparatoires on the Convention are silent on the scope of the words "everyone" and "life" and as to whether Art 2 is applicable prior to birth. Yet since the 1950s, considerable advances have been made in science, biology and medicine, including at the prenatal stage. 14. The political community is engaged at both national and international level in trying to identify the most suitable means of protecting, even prenatally, human rights and the dignity of the human being against certain biological and medical applications. 15. I consider that it is not possible to ignore the major debate that has taken place within national parliaments in recent years on the subject of bioethics and the desirability of introducing or reforming legislation on medically assisted procreation and prenatal diagnosis, in order to reinforce guarantees, prohibit techniques such as the reproductive cloning of human beings and provide a strict framework for techniques with a proven medical interest. 16. The aim of the Convention on Human Rights and Biomedicine, which was opened for signature on 4 April 1997 in Oviedo and entered into force on 1 December 1999, is to protect the dignity and identity of human beings and to guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to the application of biology and medicine. It protects the dignity of everyone, including the unborn, and its main concern is to ensure that no research or intervention may be carried out that would undermine respect for the dignity and identity of the human being. Although this Convention is very recent, it does not define the terms "everyone" and "human

2005 157 1 Inquest LR Vo v France being" either, although it affirms their primacy in Art 2 in these terms: "The interests and welfare of the human being shall prevail over the sole interests of society or science". As to the problem of defining the term "everyone", the Explanatory Report produced by the Directorate General of Legal Affairs at the Council Europe states, at para 18: "In the absence of a unanimous agreement on the definition of these terms among member States of the Council of Europe, it was decided to allow domestic law to define them for the purposes of the application of the present Convention". 17. Furthermore, I note that this Convention unquestionably contains provisions on the prenatal phase (see, for instance, Chapter IV - Human Genome). Requests may be made to the European Court of Human Rights under Art 29 of the Convention for advisory opinions on its interpretation. The Contracting States did not impose any restriction on the scope of such

referrals confining the Court's jurisdiction to questions arising postnatally. Although the texts are either silent or full of cross-references, the applicant is nevertheless entitled to an answer. 18. Secondly, I would stress that the Court must deliver a decision on the concrete case before it. The application concerns the termination of a pregnancy as a result of medical negligence that caused the loss of a foetus aged between 20 and 24 weeks, against the mother's wishes. 19. In that connection, I consider that one should not overlook the fact that the foetus in the instant case was almost as old as foetuses that have survived and that scientific advances now make it possible to know virtually everything about a foetus of that age: its weight, sex, exact measurements, and whether it has any deformities or problems. Although it does not yet have any independent existence from that of its mother (though having said that, in the first years of its life, a child cannot survive alone without someone to look after it either) I believe that it is a being a separate from its mother. Although legal personality is only acquired at birth, this does not to my mind mean that there must be no recognition or protection of "everyone's right to life" before birth. Indeed, this seems to me to be a principle that is shared by all the member States of the Council of Europe, as domestic legislation permitting the voluntary termination of pregnancy would not have been necessary if the foetus was not regarded as having a life that should be protected. Abortion therefore constitutes an exception to the rule that the right to life should be protected, even before birth. 20. In any event, this case is wholly unconcerned with the States' domestic abortion laws, which have long been the subject matter of applications to the Convention institutions and have been found to be consistent with the Convention (see paras 75-80 of the judgment). 21. I consider that, as with other Convention provisions, Art 2 must be interpreted in an evolutive manner so that the great dangers currently facing human life can be confronted. This is made necessary by the potential that exists for genetic manipulation and the risk that scientific results will be used for a purpose that undermines the dignity and identity of the human being. The Court has, moreover, often stated that the Convention is a living instrument, to be interpreted in the light of present-day conditions (see, among other authorities, Tyrer v UK (1978) 2 EHRR 1 , 31; Loizidou v Turkey, 23 March 1995, 71; Mazurek v France, appn 34406/97, 49). 22. I therefore find that Art 2 the Convention is applicable in the present case and has been violated, as the right to life has not been protected by the law of the respondent state. [2005] 1 Inquest LR 128

Decisions APPLICATION No 11045/84 Borre Arnold KNUDSEN v. /NORWAY DECISION of 8 March 1985 on the admissibility of the application Articles 2 and 25 of the Convention : A minister of religion within a State church, dismissed for refusing to perform certain of his functions in protest at a new law concerning the termination of pregnancy, cannot claim to be a victim of a violation of Article 2 of the Convention. Article 9 of the Convention : Where the beliefs of a minister of religion within a State church conflict with his administrative duties, freedom of religion is protected by the possibility of resigning from the post. The dismissal of a minister of religion for refusal to perform administrative tasks within a State church is not in violation of the Convention where the refusal does not directly form the expression of beliefs. Article 25 of the Convention : The Commission cannot examine the compatibility of a law with the Convention in abstract. A person who cannot show that he is personally affected by the law to a greater extent than other citizen may not claim to be a victim of a violation of the Convention. THE FACTS The facts of the case, as submitted by the applicant, may be summarised as follows:

The applicant is a Norwegian citizen, born in 1937. He is a vicar and resides at Balsfjord, Norway. Before the Commission he is represented by Mr Johan Hjort of the law firm Hjort, Eriksrud, Myhre and Bugge Fougner, Oslo, Norway. In Norway, an Act of 16 June 1978 (No. 66) made a number of amendments to the Act of 13 June 1975 (No. 50) concerning interruption of pregnancy the so-called Abortion Act. The most important amendment was that whereas a pregnant woman could previously have her pregnancy terminated only by decision of a medical committee in accordance with conditions drawn up by the Act, the 1978 amendment authorised the woman herself to make the final decision whether to terminate the pregnancy provided the operation is performed before the end of the twelfth week of pregnancy. Already on 31 May 1978, the day after the amending Act had been dealt with in the lower house of the Norwegian Parliament, the applicant declared in a letter to the King that he regarded the Act as being "in manifest conflict with God's holy Commandment and the spirit and letter of the Constitution". He declared that he had to regard himself as relieved from his Government appointment and his oath of office as soon as the Act came into force. On the day the Act came into force, 1 January 1979, the applicant announced in another letter to the King that he considered himself relieved from the oath he had given on taking the office of vicar. A few months later he informed the parish councils that he had withdrawn from his Government appointment in protest against the new Abortion Act. As a consequence of his opinion he no longer performed the duties which he considered to belong to the State's part of the office of vicar. He performed no marriages, examination of marriage conditions or conciliation in matrimonial cases. He refused to keep the birth register. He refused to receive Government mail which was sent to him by the Ministry, and he refused to receive salary from the Government. However he still considered himself to be the true clergyman of the parish, holding that office by appointment from the Church, and he continued therefore to perform the functions which he regarded as pertaining to the Church's part of the office. The Ministry of Church and Education confined itself at first to declaring that the applicant, through his statements and his attitude, had revealed an interpretation of his office which was new and unacceptable to the Ministry. Apart from this, the Ministry decided to await developments, and accordingly no measures were taken against him. As the applicant's action continued and the situation gradually became more difficult, however, the Ministry requested by letter of 25 September 1980 the Bishop of Nord-Hlogaland to pass on an order to the applicant to resume promptly the duties of his office which he was not performing, as the Ministry would otherwise consider dismissing him in accordance with Article 10 of the Criminal Code Enforcement Act (Ikrafttraedelsesloven). The applicant maintained his decision. By Royal Decree of 24 October 1980 it was then decided that the Ministry of Church and Education should on behalf of the Government bring legal action against the applicant to have him dismissed from office by court order. Following unsuccessful conciliation proceedings the Attorney General instituted proceedings before the Malangen District Court on 21 November 1980, moving on behalf of the Government for the dismissal of the applicant from office, and requesting moreover a declaratory judgment to determine certain specific consequences of a dismissal. The District Court pronounced judgment on 1 February 1982 concluding that the motion against the applicant should be rejected. The Government represented by the Ministry of Church and Education appealed against this judgment to the Hlogaland Court of Appeal. During the main hearings in the Court of Appeal the Attorney General moved for dismissal of the applicant, in the alternative, a declaratory judgment obliging him to accept dismissal. The parties' arguments in the Court of Appeal as well as in Supreme Court were largely the same and may be summarised as follows.

The applicant claimed that it was only formally and in its external aspects that the case concerned neglect of duty. Above all it concerned the innermost essence of the pastoral office. A clergyman had by virtue of his ordination received the call of God and the Church and he was bound primarily by the Word of God and the Confession of the Church. In the applicant's opinion he was acting through his protests on behalf of the Church, and this was so whether or not everybody within the Church agreed with the method of action he had chosen. The reason for his action should be found in the Abortion Act of 1978. The applicant insisted that the Act implied the abandonment of every legal protection of the budding human life and involved in principle a denial of the foetus's human worth. The Act was in conflict with basic Christian values and hence also with Articles 2 and 4 of the Norwegian Constitution which establishes the Evangelical Lutheran religion as the State's official faith. It was moreover in conflict with unwritten constitutional principles and with rules of international law for the protection of human rights. His acts of protest were intended to make the courts examine the legality of the Act. The legality of the Act should be examined in relation to the Constitution or to other superior sources of law. If the applicant was right in claiming that the Act was void, this would influence the evaluation of his action and hence the question whether he could be dismissed. Furthermore the applicant maintained that his actions were justified under an emergency aspect. The Abortion Act created for the Church a state of affairs that could be called a confession situation, where the Church would lose its credibility if it failed actively to take up the struggle against a denial of vital christian and human values. He, as pastor, was committed by church doctrine, and it was not merely his right but also his duty to react on behalf of the Church. The action he chose went no further than was justified by the situation. Finally the applicant was of the opinion that even if his acts of protest should not be considered justified, there were in his view no grounds for dismissal. He did not contest that Article 10 of the Criminal Code Enforcement Act, under which a Government official may be dismissed when he persistently proves unable adequately to perform his duties, was in principle applicable also to an official who refused to perform his duties. But the official duties that were neglected in this case were so modest that they could not form reasonable grounds for a dismissal. The Government through the Ministry of Church and Education on the other hand argued that there were three independent grounds for dismissal. First, the applicant had for several years refused to perform functions that were clearly duties of his office. Second, he had revoked his oath of loyalty which he had made under Article 21 of the Constitution on assuming office, and he could thus no longer be regarded as satisfying the validly required conditions for holding that office. Third, he had by written word and deed made it clear that he considered himself to have retired from office. It should thus be justifiable for the Government to take him at his word and to confirm the dismissal which he himself had in reality effected. The conditions for dismissal according to Article 10 of the Criminal Code Enforcement Act were therefore satisfied. Furthermore, in the Government's view, the case did not justify any discussion of the position of the Abortion Act in relation to the Constitution, to other constitutional rules or to international law. The Government were of the opinion that the decisive point was that the Abortion Act did not interfere with the applicant's terms of employment; the official duties he refused to perform bore no relation to the Abortion Act. The Government moreover contested that the provisions of Articles 2 and 4 of the Constitution regarding the Established Church imposed barriers to legislation which did not concern the Established Church's own affairs. If any such barriers should exist, it was doubtful how far the courts might be competent to undertake the constitutional review which the applicant had requested. The Government finally maintained that the applicant's acts could not be defended on grounds of emergency law. The applicant had every opportunity of battling for his view of the Abortion Act without resorting to unlawful discontinuance of his functions.

The Court of Appeal pronounced judgment on 26 November 1982 in which the applicant was dismissed from his job according to Article 10 of the Criminal Code Enforcement Act. With regard to the applicant's allegations that the Abortion Act violated constitutional and international law the Court found no reason to express itself on these matters since the Abortion Act did not interfere with the terms of employment between the applicant and the State. The Court found no link between the official duties which the applicant had refused to carry out and the Abortion Act. On 23 September 1983 the Supreme Court upheld the decision of the Court of Appeal. Regarding the question whether the case provided an occasion for examining the validity of the Abortion Act with regard to constitutional and international law Justice Aasland wrote for the unanimous court: "Although there are strong indications that the case could have been decided on the grounds argued here by the Government with reference to the Appeal Court's judgment, I find it unsatisfactory under the circumstances to ignore the question of the legal validity of the Abortion Act. [The applicant] has also claimed that the Abortion Act should be regarded as invalid because it is incompatible with central legal principles of a constitutional nature and moreover with rules of international law which bind the legislator. Every Government operating under the rule of law must, he claims, be obliged to establish legal protection of human life, including the unborn life. The Human Rights declaration, adopted by the United Nations on 10 December 1948, affirms in Article 3 that everybody has the right to life, freedom and personal safety. And Article 2 of the European Human Rights Convention of 4 November 1950 provides: "Everyone's right to life shall be protected by law. No one shall be deprived of life intentionally, save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law." In [the applicant's] view, this Convention overrides internal Norwegian legislation. And in addition he claims as already mentioned that the Government's obligation to protect the unborn life applies as a constitutional barrier for the legislator whether or not it follows from any written source of law, since every government operating under the rule of law is obliged not to undermine essential human rights. On that basis the Abortion Act, which deprives the foetus of legal protection in its first twelve weeks of life, should be declared void. I find it obvious that these arguments too fail to lead to the conclusion that the Abortion Act is invalid. I start with the question of international law, where the provision of Article 2 of the European Human Rights Convention is particularly important. This Convention, to which Norway has acceded, is legally binding on the contracting States. A somewhat controversial question in the literature on international law is whether and to what extent the provision of Article 2 imposes requirements as to the contents of abortion laws. The Austrian Constitutional Court has in a decision of 11 October 1974 considered that the provision according to its contents does not comprise the unborn. I for my part do not find it necessary to decide whether it is justified to rely on such an absolute interpretation. In any case the provision must be regarded as not imposing any far-reaching restrictions on the legislator's right to set the conditions for abortion. The Norwegian Act, under which the woman herself makes the final decision whether or not to terminate her

pregnancy provided the operation can be made before the end of the twelfth week of pregnancy, is similar to the legislation of a number of other countries belonging to the same culture, countries which also have acceded to the European Human Rights Convention. This is hardly immaterial to the consideration of a matter of international law. I add for the sake of good order that the decision of 25 February 1975 by the Constitutional Court [of the Federal Republic of Germany] which was mentioned by the Court of Appeal, in which a law permitting the woman herself to require an abortion in the first twelve weeks of pregnancy was declared invalid, concerned the application of internal constitutional rules. The question now remains whether the Abortion Act is incompatible with unwritten principles of law which bind the legislator. It is of course conceivable that such principles of law might impose more far-reaching requirements on the legislator than does the Human Rights Convention. Another matter is that both the Convention and legislative practice in other countries belonging to our culture must be taken into consideration as expressing the margin it is natural for the legislator to have in this area. The Supreme Court has in certain decisions, see especially Rt. 1961 p. 1350 and Rt. 1966 p. 476, left open the possibility that a law may have to be declared void if it conflicts with certain general principles of law of a constitutional nature, even if it is not contrary to any positive rule of the Constitution. It was made clear in the 1961 decision, however, that this can only be done in extreme cases, and "that quite exceptional circumstances must be present in order for a law, issued by the Storting and sanctioned by the King, to be thus declared void as conflicting with the "spirit and principles" of the Constitution." Clearly in my opinion, respect for human life, including the unborn life, is one of the legal principles that might be accepted as overriding positive law. In principle it is not difficult to conceive that an abortion law, based for example on nazi race ideology, might infringe human rights in such a way that it would have to be invalidated as contrary to unwritten standards of law of a constitutional nature. However, this example is remote from our reality. The Abortion Act which is being challenged by [the applicant] is not the reflection of a legislative ideology based on a lack of respect for human life. I refer to the passages I have quoted above from the opinions expressed in the drafting of the said Act. But abortion laws must necessarily be based on a compromise between the respect for the unborn life and other essential and worthy considerations. This compromise has led the legislator to permit self-determined abortion under the circumstances defined by the Act. Clearly, such a reconciliation of disparate considerations give rise to ethical problems, and clearly too, there will be some disagreement about the system embodied in the Act. The reactions to the Act show that many, like [the applicant], view it as an attack on central ethical principles. But it is equally relevant that others also from an ethical point of view regard the Act as having done away with an unacceptable legal situation. It is not a matter for the courts to decide whether the solution to a difficult legislative problem which the legislator chose when adopting the Abortion Act of 1978, is the best one. On this point, different opinions will be held among judges as among other members of our society. The reconciliation of opposing interests which abortion laws require is the legislator's task and the legislator's responsibility. The legislative power is exercised by the People through the Storting. The Storting majority which adopted the Abortion Act in

1978 had its mandate from the People after an election campaign in which the abortion question had a prominent place. As already mentioned, the Storting in 1983, after a new election in which the abortion question was again a central issue, decided moreover not to take the initiative towards any statutory amendment. Clearly, the courts must respect the solution chosen by the legislator. I accordingly find that [the applicant] has been unsuccessful in challenging the legal validity of the Abortion Act." By virtue of this judgment the applicant was dismissed from his job. However, by letter of 6 September 1983 from the Ministry of Church and Education, to which a Royal Decree of 15 January 1982 had delegated the competence to grant a dispensation from the loss of pastoral rights following a possible judgment for dismissal, the Ministry decided that the applicant should not forfeit these rights which follow from his ordination. This meant that the applicant could continue to carry out religious functions, however, no longer as a State employee. COMPLAINTS The applicant maintains that the Norwegian Abortion Act in its wording following the amendment of 16 June 1978, is in contravention of Article 2 of the Convention. He also maintains that the Norwegian Supreme Court has arrived at an incorrect result. It is further maintained in this context that the Convention on Human Rights as a rule of international law supersedes national legislation. If, therefore, the Commission finds that Norwegian legislation in this field is in conflict with the Convention, the consequence is that the Norwegian legislation must be amended. The applicant is of the opinion that he has a direct legal interest in a decision as to whether Norwegian law is in contravention of Article 2. His case is allegedly different from the earlier so-called abortion cases brought before the Commission, in which the applicants approached the subject in their capacity of ordinary citizens with public interests, but without being personally affected by the national legislation which they attacked. The applicant finds that his case is different: he has risked and lost his office on the issue of the acceptability of the Norwegian Abortion Act, i.e. in relation to the Convention on Human Rights. And therefore he has a direct and personal interest in the examination of the matter. It cannot be said in his case, therefore, that his interest is of an entirely abstract nature. He will resume his functions in the Norwegian State Church, provided his view on the Abortion Act is upheld. It is his belief that it must follow from a decision by the Commission or the Court, based on his conception of the law, that the Norwegian law must be amended. The applicant's second line of argument is that his dismissal from his office contravenes Article 9 of the Convention. He has been dismissed from his office although his views on the abortion issue are the same as those of the Church. He alleges that his dismissal was against the wishes of the members of his parish and against the advice of his bishop. In this connection it is argued that a minister in the Church has mixed duties, both towards the Church and towards the State, and that his duties towards the Church are of far greater importance than his relatively unimportant duties towards the State. It is therefore submitted that a minister cannot be dismissed against the wishes of the Church, and that a dismissal solely at the request of the State authorities and upheld by the court, constitutes a breach of the Convention. THE LAW 1. The applicant has first complained that the Norwegian Abortion Act as it was formulated following the amendment of 16 June 1978 contravenes Article 2 of the Convention. He is furthermore of the opinion that he is personally affected by the above legislation in that he has risked and lost his office as vicar of Balsfjord within the Norwegian State Church on account of his views on this issue. Article 2 of the Convention provides that everyone's right to life shall be protected by law. Deprivation of life is not permitted under the Convention except in certain cases enumerated in

the second sentence of Article 2 para. 1, in Article 2 para. 2, and Article 15 para. 2 of the Convention. However, it is clear from Article 25 para. 1 of the Convention that the Commission can receive an application from a person, non-governmental organisation or group of individuals only if such person, non-governmental organisation or group of individuals can claim to be a victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention. The Commission recalls in this respect its earlier case-law according to which the Commission is competent to examine the compatibility of domestic legislation with the Convention only with respect to its application in a concrete case, while it is not competent to examine in abstracto its compatibility with the Convention. The Commission refers on this point in particular to No. 867/60, Dec. 29.5.61, Collection 6 p. 34 concerning a similar case with respect to the introduction of new abortion legislation in Norway where the above principle was applied. The Commission also refers to No. 7045/75, Dec. 10.12.76, D.R. 7 p. 87 in which the Commission found that the applicant could not claim to be affected by the new legislation in a way different to any other citizen. On the other hand the Commission has also in No. 6959/75, Dec. 19.5.76, D.R. 5 p. 103 developed the above principle in the sense that application of the law in a concrete case must not necessarily mean its application by a judicial or other authority. It is sufficient that the applicant is immediately concerned by it. Finally the Commission also recalls No. 8416/79, Dec. 13.5.80, D.R. 19 p. 244 in which the Commission accepted that the applicant, as a potential father, was so closely affected by the termination of his wife's pregnancy that he could claim to be a victim, within the meaning of Article 25 of the Convention, of the legislation complained of. With regard to the question whether the applicant can be considered a victim of a violation of Article 2 of the Convention within the meaning of Article 25, the Commission has examined this case under the criteria laid down in the decisions mentioned above. The Commission recalls that the applicant is of the opinion that he has a direct legal interest in a decision as to whether Norwegian law contravenes Article 2. His case is allegedly different from the earlier so-called abortion cases brought before the Commission, in which the applicants approached the subject in their capacity of ordinary citizens with public interests, but without being personally affected by the national legislation which they attacked. He has risked and lost his office on the issue of the acceptability of the Norwegian Abortion Act, i.e. in relation to the Convention on Human Rights. He maintains, therefore, that he has a direct and personal interest in the examination of the matter and that it cannot be said in his case that his interest is of an entirely abstract nature. He will resume a position in the Norwegian State Church, provided his view of the Abortion Act is upheld. It is his belief that it must follow from a decision by the Commission or the Court, based on his conception of the law, that the Norwegian law must be amended. The Commission finds in accordance with its above case-law that a person cannot claim to be a victim of a violation of the Convention unless he can show that he is personally affected by the circumstances of the case. In regard to legislation governing abortion in connection with Article 2 of the Convention this question obviously raises certain questions as to who may claim to be personally affected by the situation. The Commission has accepted that a potential father may claim to be a victim of an alleged violation of Article 2 but has on the other hand rejected applications where, however respectable his motives may be, the applicant cannot show that he has been affected by the new legislation in a way different to any other citizen. The Commission cannot find that the applicant in the present case was affected differently by the new legislation than other citizens. The amendment to the Abortion Act did not directly affect the applicant in his family life nor did it affect him in his obligations as vicar. It is true that he lost the said office, but this was not due to the Abortion Act as such but to the fact that the applicant, because of his views on the Act, refused to perform functions that were duties of his office. The functions in question were considered by the applicant to belong to the State's part of

the office of vicar. He performed no marriages, examination of marriage conditions or conciliation in matrimonial cases. He refused to keep the birth register, refused to receive Government mail and refused to receive salary from the Government. The Commission finds that even though the applicant's attitude was motivated by his opposition to the Abortion Act, the sanctions imposed upon him cannot lead to the conclusion that he can claim to be a victim within the meaning of Article 25 of the Convention with regard to that Act. The Commission therefore concludes that the matters raised by the applicant are abstract questions within the meaning of the Commission's constant case-law. It follows that the applicant cannot, with regard to this complaint, claim to be a victim of a violation of the Convention. This part of the application is therefore incompatible ratione personae with the provisions of the Convention and must consequently be rejected under Article 27 para. 2 of the Convention. 2. The applicant has also complained that the Norwegian Abortion Act as amended on 16 June 1978 violates his rights under Article 9 of the Convention in that he was dismissed from his office although his views on the abortion issue are the same as those of the Church. Article 9 of the Convention provides: 1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. The Commission first points out that a right to hold office within the Norwegian State Church or in general is not as such guaranteed by the Convention. Nevertheless the Commission considers it conceivable that a dismissal of a State official for disobedience could in certain circumstances raise an issue under the above Article. However, in the circumstances of the present case no such issue arises for the following reason. The Commission finds that a clergyman within a State Church system, has not only religious duties, but has also accepted certain obligations towards the State. If the requirements imposed upon him by the State should be in conflict with his convictions, he is free to relinquish his office as clergyman within the State Church, and the Commission regards this as an ultimate guarantee of his right to freedom of thought, conscience and religion. In the present case the Commission recalls that the applicant refused to carry out functions that were duties of his office and that he lost the said office. The Commission also recalls that the applicant has retained the pastoral rights which follow from his ordination and which allow him to carry out religious functions. Finally, it is recalled that the applicant's religious views, including his views on the abortion issue, were consistent with the views held by the Norwegian State Church. However, these views expressed by the applicant did not lead to his dismissal which the Commission finds was due to his refusal to perform functions that were administrative duties of his office. The Commission finds that this refusal did not actually express the applicant's belief or religious views and it cannot, therefore, be considered as such to be protected by Article 9 para. 1, even when it was motivated by such views or belief (cf. Arrowsmith v. the United Kingdom, Comm. Report 12.10.78, para. 71, D.R. 19 p. 19). The applicant has not shown that he has been under any pressure to change his views or that he has been prevented from manifesting his religion or belief. It follows, that the applicant's dismissal did not in any way interfere with the exercise of his rights under Article 9 of the Convention and this part of the application is therefore manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention. For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE. 42 D & R 247

[1987] 1 I.L.R.M.

DIGEST

FUNDAMENTAL RIGHTS
Personal rights Right to life of the unborn
Pregnancy counselling services - Abortion considered as an option - Referral to medical clinic in Great Britain - Whether the giving of such assistance unlawful - Whether admitted activities of defendants amounted to conspiracy to corrupt public morals.Locus standi - Locus standi of relator -Whether constitutional provisions self-executing in the absence of legislation - Offences Against the Person Act, 1861 (c. 100), ss. 58, 59 - Health (Family Planning) Act, 1979 (No. 20), s. 10 -Constitution of Ireland, 1937, Arts. 6, 15, 38, 40. The defendants provided a service to pregnant women which inter alia included counselling women who had an unwanted pregnancy and who sought assistance on the options open to them. Termination of pregnancy might be one of the options discussed and if the pregnant woman wished to consider this further the defendants would refer her to a medical clinic in Great Britain where abortions were performed. The plaintiff commenced proceedings which sought inter alia (1) a declaration that the activities of the defendants were unlawful having regard to the provisions of Article 40, s. 3, sub-s. 3 of the Constitution; (2) a declaration that the activities of the defendants amounted to a conspiracy to corrupt public morals; and (3) an injunction prohibiting the defendants from carrying on such activities. Held by Hamilton P., in granting the first declaration, in refusing the second declaration and in granting an injunction, 1, that the plaintiff had the locus standi to maintain the proceedings. That the public interest was committed to the care of the plaintiff and it was his function to represent the public in litigation. He was entitled to sue to restrain the commission of an unlawful act, to protect and vindicate a right acknowledged by the Constitution and to prevent the corruption of public morals. When the Attorney General sues with a relator, the relator need have no personal interest in the subject except his interest as a member of the public. Moore v. The Attorney General & Ors. [1930] I.R. 471 and The Attorney General v. Logan [1891] 2 Q.B. 100 applied. 2. That the right to life of the unborn had always been recognised in Ireland at common law, by statute law, and also by the Constitution as one of the unenumerated personal rights which the State guaranteed to protect and since the passing of the Eight Amendment to the Constitution, specific recognition has been given to such right. G. v. An Bord Uchtla [1980] I.R. 32; McGee v. The Attorney General [1974] I.R. 284; and Norris v. The Attorney General [1984] I.R. 36 considered. 3. That the judicial organ of government was obliged to lend its support, if sought, to the enforcement of the right to life of the unborn, to defend and vindicate that right and, if there was a threat to that right from whatever source, to protect that right from such threat. 4. That a right guaranteed by the Constitution carried with it its own right to a remedy, and did not require legislation for its enforcement unless expressly stated by the Constitution. Educational Company of Ireland Ltd. v. Fitzpatrick (No. 2) [1961] I.R. 345; Byrne v. Ireland [1972] I.R. 241; Meskell v. C.I.E. [1973] I.R. 121 and In re Mead (Unreported, Supreme Court, 26 July, 1972) applied. 5. That the offence of conspiracy to corrupt public morals could be committed even when the agreement between two or more persons was to assist in the commission of a lawful act. The giving of assistance to obtain an abortion in another jurisdiction where it was not a crime, could constitute a conspiracy to corrupt public morals however the declaration sought on this ground would not be granted as it was an offence triable on indictment and it was for a jury to decide in each case whether or not persons were likely to be corrupted. Knuller v. Director of Public Prosecutions

[1973] A.C. 435 and Attorney General v. Able [1984] Q.B. 795 considered. 6. That the activities of the defendants amounted to counselling and assisting pregnant women to travel abroad to obtain further advice on abortion and to secure an abortion and, as such, were unlawful having regard to the provisions of Article 40, s. 3, sub-s. of the Constitution and as such constituted a violation of the fundamental law of the State and if damage had been suffered such activities would amount to an actionable conspiracy. 7. That the qualified right to privacy, the rights of association and freedom of expression and the right to disseminate information cannot be invoked to interfere with the fundamental right to life of the unborn. 8. That the provisions of the law of the European Communities were not applicable because the relevant activities took place within the State. On appeal by the defendants it was Held by the Supreme Court (Finlay C.J., Walsh, Henchy, Griffin and Hederman JJ.) in dismissing the appeal and varying the orders of the High Court, 1, that the jurisdiction of the courts could be invoked by a party who had a bona fide concern and interest for the protection of the constitutionally guaranteed right to life of the unborn and it was not necessary that any specific pregnant woman and her unborn child be represented before the courts. The Attorney General was an especially appropriate person to invoke the jurisdiction of the court. The State (Quinn) v. Ryan [1965] I.R. 70 followed. 2. That it was not necessary in order to assist in the destruction of the life of the unborn for the defendants to advise or encourage the procuring of abortions, it was enough that their admitted activities were assisting pregnant women to travel outside the jurisdiction in order to have an abortion. 3. That there was no implied or unenumerated constitutional right to information about the availability of abortion outside the State, the purpose of which was to defeat the constitutional right to life of the unborn child. 4. That the order of the High Court was directed to the giving of assistance to a pregnant woman to have an abortion in another jurisdiction and did not prevent a pregnant woman herself from becoming aware of the existence of abortion outside the State accordingly no question arose as to the interpretation of the Treaty of the European Economic Community. Attorney General (ex rel. Society for the Protection of Unborn Children Ireland Ltd.) v. Open Door Counselling Ltd (H.C., S.C.) [1988] I.R. 593; [1987] ILRM 477 [1987] ILRM 477

[1998] 4 I.R.

DIGEST

CHILD
Practice
- Supreme Court - Stare decisis - Whether Supreme Court bound by previous decision. Article 40.3.3 of the Constitution of Ireland, 1937 as inserted by the Eighth Amendment to the Constitution, provides:- "The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right." The plaintiff was a company limited by guarantee with the objects of protecting the life of the unborn child. The first to fourteenth defendants were officers of students unions, which organisations were engaged, inter alia, in the publication and distribution of certain documents wherein was contained information as to the identity and location of, and the method of communication with, specified abortion clinics in the United Kingdom. The fifteenth defendant was the printer of the documents. The plaintiffs applied for an interlocutory injunction restraining the defendants from publishing any publication which contained information calculated to inform persons (including pregnant women) of the identity and location of, and the method of communication with, a specified clinic or clinics where abortions were performed. The learned judge referred certain questions to the European

Court of Justice. Following the determination by the European Court of Justice that a prohibition on the distribution of information as to the identity and location of abortion clinics in another member state of the European Community was not unlawful having regard to the provisions of the Treaty of Rome, the plaintiff applied to the High Court (Morris J.) for the permanent injunction restraining the activities complained of, which was granted. The defendants appealed to the Supreme Court. Subsequent to the judgment of the High Court, the Constitution and legal position as to the provision of information with regard to abortion was altered by the provisions of the Fourteenth Amendment to the Constitution and the Regulation of Information (Services Outside the State for the Termination of Pregnancies) Act, 1995. Held by the Supreme Court (Hamilton C.J., Blayney and Barrington, JJ.; Denham and Keane JJ. dissenting), in lifting the injunction, 1, that the court was required to consider the present state of the law and not the law at the time the proceedings commenced. Nevertheless, it was necessary to deal with the state of the law prior to the passing of the Fourteenth Amendment to the Constitution for the purpose of determining whether the order of the High Court was correct at the time it was made. Appln. des Gaz S.A. v. Falks Veritas [1974] Ch. 381 followed. 2. That Open Door Counselling had been correctly decided. The service being provided by the defendant in that case was not in any way confined to, or specifically directed towards the equal right to life of the mother mentioned in Article 40.3.3 and that did not arise for interpretation or decision. Information (Termination of Pregnancies) Bill, 1995 [1995] 2 I.R. 1; A.G. (S.P.U.C.) v. Open Door Counselling Ltd. [1988] I.R. 593; The Attorney General v. X [1992] 1 I.R. 1 considered. 3. That it was clear that the service being provided by the defendants was not in any way confined to or specifically directed towards pregnant women to whom the test set forth in Attorney General v. X applied. The fact that the information might be given to a pregnant woman to whom the said test applied, did not render lawful the activities of the defendants because their avowed intention was to distribute such information generally. A.G. (S.P.U.C.) v. Open Door Counselling Ltd. [1988] I.R. 593 considered. 4. That, while there must be grave doubts about the effectiveness of the injunction, if the courts failed to enforce the guarantee of the right to life of the unborn as construed in Open Door Counselling, then the rule of law would be set at nought. 5. That, if, in carrying out the impugned activity, the defendants complied with the conditions laid down in the Act of 1995, they were protected by the provisions of the Fourteenth Amendment. If they were not complying with them, they were committing criminal offences and the only party who had the right to obtain an injunction against them was the Attorney General. Per Denham J. (dissenting): 1. That the decision in A.G. (S.P.U.C.) v. Open Door Counselling Ltd. was based on the premise that an abortion could never be lawful. Such a premise was erroneous, since, arising out of Article 40.3.3 there existed extremely limited circumstances when, to protect the life of the mother, an abortion was lawful. The Attorney General v. X [1992] 1 I.R. 1 considered. 2. That the conclusion of the Supreme Court in A.G. (S.P.U.C.) v. Open Door Counselling Ltd. that there was no implied and unenumerated constitutional right to information about the availability of a service of abortion outside the State, rested on a flawed premise that abortion could never be lawful. Aright to receive information and a corollary right to give information existed in the limited circumstances specified in The Attorney General v. X. 3. That the right to information arising as a corollary of Article 40.6.1, that was the right of citizens to freely express their convictions and opinions, was also considered in A.G. (S.P.U.C.) v. Open Door Counselling Ltd. The fact that there was a constitutional provision to protect the life of the mother meant that there was a corollary right to receive information. 4. That the decision in A.G. (S.P.U.C.) v. Open Door Counselling Ltd. was also in error on the ground that the injunction granted was over-broad and disproportionate. Open Door Counselling v. Ireland (1993) 15 E.H.R.R. 244 considered. 5. That a court should not follow a previous decision if it was wrong, even if it had become inveterate, where to do so would be to deny extant constitutional rights. Mogul of Ireland v. Tipperary (N.R.) C.C. [1976] I.R. 260 distinguished. Per Keane J. (dissenting) 1. That the absence of dissent from a decision of the Supreme Court did not foreclose any further judicial

determination of the issue by a later Supreme Court, particularly when constitutional rights were in issue. To hold otherwise would be to encroach upon the role of the Supreme Court as guardian of the Constitution. Mogul of Ireland v. Tipperary (N.R.) C.C. [1976] I.R. 260 distinguished. 2. That what was in issue was not the identifiable superiority of one constitutional right to another: it was whether the duty to protect and vindicate the highest of constitutional rights might sometime have to be reconciled with the exercise of other constitutional rights and duties with which it was in conflict. The right to life of the unborn, which was acknowledged and guaranteed by the Constitution, was protected only to the extent that such protection was consistent with the due regard to the equal right to life of the mother, and, in any event, only to the extent that it was practicable. 3. That the decision in A.G. (S.P.U.C.) v. Open Door Counselling Ltd. that no right could constitutionally arise to obtain information the purpose of which was to defeat the constitutional right to life of the unborn, could not be reconciled with the determination that information might lawfully be given to a pregnant woman in respect of whom it was established as a matter of probability that there was a real and substantial risk to her life, as distinct from her health. Information (Termination of Pregnancies) Bill, 1995 [1995] 2 I.R. 1; A.G. (S.P.U.C.) v. Open Door Counselling Ltd. [1988] I.R. 593; The Attorney General v. X. [1992] 1 I.R. 1 considered. 4. That the exclusion from any consideration in Open Door Counselling of the words "with due regard to the equal right to life of the mother" led to a decision which was erroneous in point of law, i.e. that there could not in any circumstances be an implied and unenumerated right to information about the availability of a service of abortion outside the State which, if availed of, would have the consequence of destroying the constitutionally protected right to life of the unborn. Society for the Protection of Unborn Children (Ireland) Ltd v. Grogan (No. 5) (S.C.) [1998] 4 I.R. 343 [1998] 4 I.R. 343 1997 285 SC KELLY v. KELLY No. 38. SECOND DIVISION. 24 May 1997 Lord Eassie. JAMES KELLY , Pursuer (Reclaimer) Sutherland, QC, Kelly . MRS LYNN FALCONER OR KELLY , First-named defender (Respondent) Smith, QC, Fitzpatrick . THE ROYAL INFIRMARY OF EDINBURGH NHS TRUST , Second-named defenders No appearance . Children and young personsParent and childInterdictInterim interdictHusband seeking interdict from estranged wife having abortionWhether foetus legal personaWhether interdict appropriateWhether abortion a civil wrong actionable by father on behalf of the child Abortion Act 1967 (cap 87), sec 1(1)1 Section 1(1) of the Abortion Act 1967 enacts, inter alia , that: A person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith (a) that the continuance of the pregnancy would involve risk to the life of the pregnant

woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family greater than if the pregnancy were terminated. A husband sought to interdict his estranged wife from instructing, consenting or submitting to a termination of pregnancy. He also sought to interdict the hospital at which the proposed abortion was due to be undergone. Two doctors certified that the terms of sec 1(1)(a) of the 1967 Act had been satisfied in relation to the wife. Interim interdict was granted by the Lord Ordinary (Lord Eassie) after a hearing ex parte , but was later recalled by the Lord Ordinary after a full hearing of parties. The husband reclaimed. Held (1) that the remedy of interdict would be available at the instance of a person or that person's representative to prevent damage being deliberately caused to that person, being damage, which, if it occurred, would sound in an award of damages in favour of that person; (2) that if an abortion was an actionable wrong to the foetus as such, the father would be entitled to take proceedings on behalf of the foetus, but the critical question was whether the abortion was, or could be, an actionable wrong; and (3) that while a child had a right of action in respect of injury caused by actions before his or her birth, an injury to the foetus was not actionable before the birth, Scots law conferring no right on a foetus to continue to exist in the mother's womb and the court could not be invoked to vindicate such a right; and reclaiming motion refused. Observed (1) that to recognise a right of the foetus to continue in the womb would inevitably create a conflict with the policy of the 1967 Act to enable women to exercise their right to terminate the pregnancy in accordance with its terms; and (2) that if the foetus had a right to its own protection which could be vindicated on its behalf by interdict there would be no reason why it should be confined to cases of abortion. James Kelly brought an action of interdict in the Court of Session against his estranged wife, Mrs Lynn Falconer or Kelly as first-named defender and the Royal Infirmary of Edinburgh NHS Trust, as second-named defenders. In the action the pursuer sought interdict against the carrying out of a termination under sec 1(1) of the Abortion Act 1967, of the first defender's pregnancy. 1 Section 1(1) of the Abortion Act 1967, so far as material, is as set forth in the rubric, supra and the opinion of the court,infraEd.

1997 286 SC KELLY v. KELLY. The cause called before the Lord Ordinary (Eassie) on ex parte statements. The Lord Ordinary granted interim interdict. The first defender thereafter entered the process and the cause called before the Lord Ordinary (Eassie) for a hearing on an interim interdict motion. At advising, on 21 May 1997, the Lord Ordinary recalled the grant of interim interdict previously made. The pursuer reclaimed. Cases referred to: B v. Islington Health Authority [1991] 1 QB 638 Borowski v. Att Gen for Canada (1987) 39 DLR (4th) 731 C v. S [1988] QB 135 Dehler v. Ottawa Civic Hospital (1979) 101 DLR (3d) 686 De Martell v. Merton & Sutton Health Authority [1993] QB 204 Elliot v. Joicey 1935 SC (H.L.) 57 F (In Utero), Re [1988] FCR 529 Hamilton v. Fife Health Board 1993 SC 369 Medhurst v. Medhurst (1984) 9 DLR (4th) 252 Paton v. British Pregnancy Advisory Service Trustees [1979] 1 QB 276

Paton v. United Kingdom (1980) 3 EHRR 408 Roe v. Wade 410 US 113 (1973) Tremblay v. Daigle (1989) 62 DLR (4th) 634 Textbooks referred to: Burn-Murdoch, Interdict , p 1 Gordon, Criminal Law (2nd ed), para 2801 The reclaiming motion called before the Second Division, comprising the Lord Justice-Clerk (Cullen), Lord McCluskey and Lord Wylie for a hearing. At advising, on 24 May 1997, the opinion of the court was delivered by the Lord Justice-Clerk (Cullen). Opinion of the CourtThe pursuer in this action seeks to have his estranged wife, the first defender, interdicted from instructing, consenting or submitting to a termination of pregnancy. He also seeks to interdict the Royal Infirmary of Edinburgh NHS Trust, the second defenders, by its servants or agents from carrying out any termination of that pregnancy. On 21 May 1997 the Lord Ordinary recalled the grant of interim interdict in terms of the conclusions which he had made after a hearing ex parte on 15 May. The pursuer's reclaiming motion against the recall of interim interdict was heard by this court on 23 May, when submissions were made on behalf of the pursuer and the first defender. The second defenders have not entered the process. Where a court in Scotland requires to consider whether interim interdict should be granted or recalled, the first question is whether the party seeking that order has set forth a prima facie case. If so, the next question is whether the balance of convenience favours the granting of the order or not. The first of these questions does not normally make it necessary for the court to resolve a point on which the outcome of the case depends. However, the present case is unusual in a number of respects: the arguments in regard to interim interdict do not depend on questions of fact which have yet to be answered but upon questions of law which are fundamental to a consideration of the pursuer's case. Further the constraints of time are such that a decision in regard to interim interdict will obviously determine the outcome of the case. If interim interdict is recalled, the first defender will be able to exercise her right to terminate the pregnancy in accordance with the Abortion Act 1967. If interim interdict is to stand, abortion is ruled out and the first defender's pregnancy will take its course.

1997 287 SC KELLY v. KELLY. Before coming to the main arguments which were presented in the reclaiming motion we will refer briefly to the procedure under the Abortion Act 1967. Section 1 of the Act provides: (1) Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith(a) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated; or (b) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped . It is not in dispute that certificates have been given by two medical practitioners in respect of the termination of the first defender's pregnancy and by reference to para (a) of subsec (1). The pursuer does not seek to challenge these certificates. There was a suggestion before the Lord Ordinary that they had been given on the basis of a false account of the pursuer's past behaviour which the first defender had provided to medical staff of the second defenders. However, at the hearing of the reclaiming motion this matter was not raised again. Senior counsel for the pursuer submitted that the Act had no direct relevance to the adjudication of civil rights and duties with which the present action was concerned. It merely purported to

decriminalise abortion in certain circumstances. There was no suggestion that it went further than that and altered the common law in regard to civil liability for abortion as a wrong. It did not make abortion lawful in the civil law. He added that prior to the Act all abortions were criminal, subject to an ill-defined exception for abortions necessary to preserve the mother's life or health (Gordon, Criminal Law , 2nd edn, para 2801). We accept counsel's submission as to the limited legal effect of the Act, and we did not understand senior counsel for the defender to contend to the contrary, although in the course of her submissions she emphasised that the underlying purpose of the Act was also to protect pregnant women from the risks which they had been exposed by having recourse to illegal abortions. It is clear that the Act was intended to remove the risk of prosecution, provided that the abortion was carried out in accordance with the limits, and subject to the procedure, laid down by and under the Act. Thus, in terms of sec 5(1), the Act is to be without prejudice to the provisions of the Infant Life (Preservation) Act 1929, which is directed to protecting the life of the viable foetus. A certificate as to the opinion of a medical practitioner requires to be in accordance with regulations made under the Act, currently the Abortion (Scotland) Regulations 1991. To the extent that the Act does not apply, the pre-existing law as to the criminality of the actions of those involved in an abortion still applies. The provisions of the Act are not of themselves determinative of the separate question as to whether the carrying out of an abortion may violate any person's legal rights. We come now to the main arguments which counsel presented in support of the pursuer's case for interim interdict. In the order in which they were presented they may be broken down into a number of points as follows: (i) An action of damages lay at the instance of a child's guardian, including the father of a legitimate child, in respect of wrongful injury sustained by that child while in utero . (ii) Such an injury was actionable at the instance of the child, acting

1997 288 SC KELLY v. KELLY. through his or her guardian, and not at the instance of the mother as an individual. (iii) If such an injury created an actionable wrong, it must be a wrong not merely sounding in damages after the event but also a wrong capable of prevention by interdict in advance of the wrong occurring. (iv) In that connection the wrong which was capable of being interdicted could not be confined to one which was only capable of causing injury to, and not the death of, the child. (v) In regard to what he described as a peripheral issue, there should be no fiction that injury to a child caused antenatally only occurs in law at the child's birth. In support of point (i) counsel relied on the well-known fiction by which, for the purposes of testamentary succession, a child in utero is deemed to have been already born. He referred to the exposition of this subject by Lord Macmillan in Elliot v. Joicey at pp 7071. He also referred to dicta in Hamilton v. Fife Health Board , in which it was held that the parents of a child who had died three days after her birth, allegedly as a result of negligent acts on the part of doctors attending the child's mother, were entitled to sue for damages in respect of the loss of her society. A similar approach would be taken to claims by the child himself or herself in respect of injury caused by allegedly negligent acts while he or she was in utero . Such a claim was the subject of B v. Islington Health Authority and de Martell v. Merton & Sutton Health Authority ,which were followed by the court in Hamilton v. Fife Health Board . In support of point (ii) counsel pointed to the fact that under sec 2 of the Children (Scotland) Act 1995 both parents were placed on an equal footing in regard to the representation of the interests of the child. Where the mother had damaged the child the father had the right to sue the mother on the child's behalf. The same would apply where the damage had been done to the foetus. As regards point (iii) counsel submitted that interdict was available to prevent not only a wrong which was in the course of being done but also an apprehended violation of a party's rights (Burn-Murdoch onInterdict , p 1).

On point (iv) he submitted that the actionability of damage could not differ according to whether it was injury or death that resulted from the wrongful act. More fundamentally, the effect of the wrong could not determine whether or not a person could seek a remedy for the damage, whether threatened or done by that wrong. Thus it could not be a bar to the remedy of interdict that the wrong which was sought to be prevented was likely to have fatal rather than non-fatal but injurious results. In the present case it was no answer to the pursuer's claim that abortion would result in there being no live birth. As regards point (v) counsel submitted that the reality was that harm occurred when the foetus suffered damage. It did not occur at birth, although it was at birth that as a matter of procedure an action could be raised. This submission ran counter to what was said by Lord McCluskey in Hamilton v. Fife Health Board at p 382F: But once the foetus ceases on birth to be a foetus and becomes a person there is a concurrence of iniuria and damnum and the newly born child has a right to sue the person whose breach of duty has resulted in the child's loss. At p 389E Lord Caplan said: Certainly damage was done at an earlier stage to the foetus but it is only at birth for the first time one could say "Here is a living being who has sustained personal injuries".

1997 289 SC KELLY v. KELLY. We should add that counsel made it clear that, while the argument in the present case was concerned with a foetus in the fourth month of pregnancy, the same principle would apply at any stage in the pregnancy. At this point it may be useful for us to make a number of observations in order to concentrate attention on the core of what is in dispute. Firstly, we have no difficulty in accepting the proposition that the remedy of interdict would be available at the instance of a person or that person's representative to prevent damage being deliberately caused to that person, being damage which, if it occurred, would sound in an award of damages in favour of that person. Secondly if an abortion is an actionable wrong to the foetus as such, we agree that the father would be entitled to take proceedings on behalf of the foetus. However, the critical question is whether the abortion is or can be an actionable wrong. The decisions on which counsel relied in support of point (i) clearly show that they proceeded on the basis that the child to whom the claim related had been born alive. Thus in Elliot v. Joicey the birth of the child provided the necessary basis for the fiction that he had been born at an earlier stage. Likewise in Hamilton v. Fife Health Board it is clear that the right to claim damages in respect of antenatal injury was dependent on the birth of the child who had been injured. Apart from the passages which we have quoted earlier in this opinion we would add the following words of Lord McCluskey at p 382DE: There can be no liability to pay damages until there is a person in respect of whose loss the claim to damages arises. An unborn

person, a foetus, is not a person in the eyes of the lawat least in relation to the law of civil remediesand there can be no liability to pay damages to a foetus, even though the foetus has sustained injuries resulting from a negligent act or omission constituting a breach of duty owed". This passage is adverse to the thrust of the pursuer's argument that damage to the
foetus as such is actionable while birth has not yet occurred. In reply senior counsel for the defender submitted that the first defender was not in the course of committing a legal wrong, and that there was no apprehension that she was going to do so. The fatal flaw in the pursuer's argument was that of treating the foetus as a person with rights. In particular there was no law to the effect that the foetus had the right to remain where it was, in the womb. So long as there was an unborn foetus there was no legal persona which was separate

from that of the mother; and hence no wrong done to the foetus as such. The foetus was part of its mother's body, in the eyes of the law, in the same way as the placenta and the umbilical cord. It was no doubt in recognition of this that in the criminal law abortion was a distinct crime and was not subsumed in the crime of murder. It followed that while she was pregnant the mother could sue in respect of injury caused by a wrongdoer which led to the foetus being still-born. However, if the injury to the foetus did not prevent a live birth, a claim could then be made on behalf of the child as a separate legal persona . A useful way in which to describe the change which occurred on the birth of the child was to say that the child's rights crystallised at that point. Counsel referred to a number of decisions in other jurisdictions in which the legal status of the foetus had been considered. While each of these cases arose within its own particular legal context, there are certain observations within the judgments which are of general significance.

1997 290 SC KELLY v. KELLY. In Paton v. British Pregnancy Advisory Service Trustees , Sir George Baker P dismissed a husband's attempt to obtain an injunction against his wife having an abortion. Senior counsel for the pursuer submitted that this case was of little assistance as it turned on the approach in England to the injuncting of criminal actions; and, because the proposed abortion, which was in accordance with the Abortion Act 1967, was treated as being the end of the matter in English law (p 281F). Accordingly he submitted that it did not foreclose the question of whether a wrong was about to be committed. In our view this analysis of the decision is incorrect. As regards the injuncting of criminal actions, it is plain from what Sir George Baker P said at p 279C that he did not consider that it was necessary for him to decide the case on that point; and that he did not do so. As regards the significance of the fact that the proposed abortion was in accordance with the Act, it is important to note that Sir George Baker P considered the husband's claim on two distinct bases. The first related to the husband as the representative of the interests of the foetus. The second was concerned with him as the husband of the pregnant woman. It was in regard to the second that he observed that the courts had never exercised jurisdiction to control personal relationships in marriage; and that, in the absence of the right to be consulted under the Act, the husband had no rights enforceable in law or equity to prevent the abortion when it was lawful under the Act. It is in that context that he observed that the husband could not stop what had been accepted to be a lawful abortion. In dealing with the former basis he said, at p 279D: The first question is whether this plaintiff has a right at all. The foetus cannot, in English law, in my view, have a right of its own at least until it is born and has a separate existence from its mother. That permeates the whole of the civil law of this country (I except the criminal law, which is now irrelevant), and is, indeed, the basis of the decisions in those countries where law is founded on the common law, that is to say in America, Canada, Australia and, I have no doubt, in others. It is true that Sir George Baker P did not specifically refer to the law of tort, but it is plain that his words were wide enough to comprehend it. At this point it is appropriate to note that in the present case the pursuer's claim is based exclusively on his right to represent the interests of the foetus in order to prevent an apprehended wrong being done to it. In C v. S the Court of Appeal affirmed a decision of Heilbron J dismissing an application by a putative father on his own behalf and on behalf of the foetus for injunction to prevent an abortion on the ground that the foetus was a child capable of being born alive. We note that at p 140E Heilbron J observed that the authorities showed that a child after being born and only then in certain circumstances, based on the child having a legal right may be a party to an action brought with regard to such matters as the right to take, on a will or intestacy, or for damages for injuries suffered before birth. In other words, the claim crystallises upon the birth,

at which date, but not before, the child attains the status of a legal persona , and thereupon can then exercise that legal right. Counsel also drew attention to the fact that in Re F (In Utero) in which an application for making an unborn child a ward of court was refused. May LJ expressed (at p 533E) his agreement with what had been said by Sir George Baker P in Paton and by Heilbron J in C v. S in regard to the status of the unborn child. We were referred to a number of Canadian decisions. Medhurst v. Medhurst In the Ontario High Court of Justice rescinded an injunction which the father of an

1997 291 SC KELLY v. KELLY. unborn child had obtained against his wife, her physician and a hospital preventing them from performing or undergoing an abortion. In his judgment Reid J considered the status of a father both as the representative of the unborn child and as the husband of the pregnant woman. So far as the first is concerned, we note that at pp 255256 he quoted with approval the following passage from Dehler v. Ottawa Civic Hospital in which Robins J said at p 695: What then is the legal position of an unborn child? Is it regarded in the eyes of the law as a person in the full legal sense? Does it have the capacity in law to prosecute an action sounding in tort or to sue for injunctive relief? The short answer to the latter questions is "No". While there can be no doubt that the law has long recognised foetal life and has accorded the foetus various rights, those rights have always been held contingent upon a legal personality being acquired by the foetus upon its subsequent birth alive and, until then, a foetus is not recognised as included within the legal concept of "persons". It is only persons recognised by law who are the subject of legal rights and duties the law does not regard an unborn child as an independent legal entity prior to birth, it is not recognised as having the rights the plaintiff asserts on its behalf or the status to maintain an action. In Borowski v. Att Gen for Canada the Saskatchewan Court of Appeal decided that an unborn foetus was not a person within the meaning of the law and was not within the scope of the term everyone in sec 7 of the Canadian Charter of Rights and Freedoms. The judgment of the court, which was delivered by Gerwing JA, includes a discussion of the treatment of the foetus in the civil law which concluded (at p 744) that there were no cases in Anglo-Canadian law giving the foetus a status qua foetus. In dealing with the treatment of the foetus outside Anglo-Canadian law, the judgment included at pp 744746 a reference to the majority opinion of the United States Supreme Court in Roe v. Wade . After pointing out that the perfection of the interests of a child had generally been contingent upon live birth, it concluded with the words: In short, the unborn have never been recognised in the law as persons in the whole sense. Lastly in Tremblay v. Daigle the Supreme Court of Canada allowed an appeal against an interlocutory injunction restraining a mother from having an abortion, holding that there were no substantive rights upon which the injunction could be founded. The discussion in the judgment of the court is primarily concerned with the interpretation of the Quebec Charter of Human Rights and Freedoms and the Civil Code of Lower Canada. The court rejected the argument that because various articles of the Code protected the economic interests of a foetus they also impliedly recognised that a foetus was a juridical person. Their conclusion at p 658 was that the articles did not generally recognise that a foetus was a juridical person. A foetus is treated as a person only where it is necessary to do so in order to protect its interests after it is born. The question for this court is a question of law and not a question of policy. As Sir George Baker P observed in Paton :My task is to apply the law free of emotion or predilection (p 278). None of the decisions to which we were referred appear to us to provide support for the view that a foetus has a legal persona , or is otherwise recognised as capable of being vested in personal rights for the protection of which the remedy of interdict may be invoked. Senior counsel for the

pursuer submitted that none of the decisions in jurisdictions outside Scotland had answered the questionIf it was legally wrong to damage the foetus, why was it not capable of being interdicted as a wrong? However, that question

1997 292 SC KELLY v. KELLY. itself begs a further question, namely, given that a claim can be made by or on behalf of a child who has been born in respect of an injury caused by what was done before his or her birth, does it follow that injury to the foetus as such is actionable before the birth? In our opinion it does not and our answer to that question appears to be supported by the general approach which has been followed in Scotland and in other jurisdictions. Whether it is an actionable wrong to the unborn foetus for an abortion to be terminated depends essentially on whether Scots law confers on the foetus a right to continue to exist in the mother's womb. Our conclusion is that Scots law recognises no such right on the foetus. It follows that no person can invoke the power of the court to vindicate such a right. While it is sufficient for us to reach a conclusion as to the law, there are a number of considerations which, while they form no part of the reasons for our conclusion, tend to support the maintaining of the law as it is. It is sufficient to refer to two of them. Firstly, to recognise the right of the foetus to continue in the womb would inevitably create a conflict with the policy of the Act to enable women to exercise their right to terminate the pregnancy in accordance with its terms. We note that the case of Paton was the subject of an application to the European Commission of Human Rights which declared that the application was inadmissible. In the report of their decision ( Paton v. United Kingdom ) the Commission rejected the proposition that art 2 of the Convention recognised an absolute right to life of the foetus. At para 19 they observed that this would involve a serious risk to the life of the pregnant woman. This would mean that the " unborn life" of the foetus would be regarded as being of a higher value than the life of the pregnant woman. In Re F (In Utero) May LJ at p 533 observed that to apply the principle that the interest of the child was to be predominant was bound to create conflict between the existing legal interests of the mother and those of the unborn child; that the enforcement of the wardship order against the mother would pose insuperable difficulties. Secondly if the foetus had the right to its own protection which could be vindicated on its behalf by interdict there would be no reason why it should be confined to cases of abortion. If such a right existed it could be used as the basis for a father taking legal action with a view to restraining the mother from some form of activity which was claimed to be harmful to the foetussuch as smoking, and certain sports and occupations. There is plainly room for conflicting views as to what would be adverse to the interests of the foetus. In these circumstances we are of opinion that the legal proposition on which the pursuer's case for interdict is based is without foundation. Accordingly we consider that the pursuer has not set out a prima facie case. The parties said little about the balance of convenience, no doubt because it was recognised that it was not a concept that was apposite in the present circumstances. In particular we were not addressed by senior counsel for the pursuer on its application should the pursuer's position on the fundamental legal point be correct. In the circumstances we express no opinion in regard to that matter. In these circumstances the reclaiming motion will be refused. The Court refused the reclaiming motion. David Johnson & CoBalfour & Manson [1997] SC 285

[1988] 593 1 I.R. A.G. (S.P.U.C.) v. Open Door Counselling Ltd. The Attorney General (at the relation of The Society for the Protection of Unborn Children Ireland Limited), Plaintiff v. Open Door Counselling Limited and Dublin Wellwoman Centre Limited, Defendants [1985 No. 5652P] High Court Supreme Court 19th December 1986 16th March 1988 Constitution - Right to life of the unborn - Pregnancy counselling services - Abortion considered as an option - Referral to medical clinic in Great Britain - Whether the giving of such assistance unlawful - Whether admitted activities of defendants amounted to conspiracy to corrupt public morals. Local standi - Locus standi of relator - Whether constitutional provisions self-executing in the absence of legislation - Offences against the Person Act, 1861 (24 & 25 Vict., c. 100) ss. 58 and 59 - Health (Family Planning) Act, 1979 (No. 20) s. 10 - Constitution of Ireland, 1937, Articles 6, 15, 38 and 40. The defendants provided a service to pregnant women which inter alia included counselling women who had an unwanted pregnancy and who sought assistance on the options open to them Termination of pregnancy might be one of the options discussed and if the pregnant woman wished to consider this further the defendants would refer her to a medical clinic in Great Britain where abortions were performed. The plaintiff commenced proceedings which sought inter alia (1) a declaration that the activities of the defendants were unlawful having regard to the provisions of Article 40, s. 3, sub-s. 3 of the Constitution; (2) a declaration that the activities of the defendants amounted to a conspiracy to corrupt public morals; and (3) an injunction prohibiting the defendants from carrying on such activities. Held by Hamilton P., in granting the first declaration, in refusing the second declaration and in granting an injunction, 1, that the plaintiff had the locus standi to maintain the proceedings. That the public interest was committed to the care of the plaintiff and it was his function to represent the public in litigation. He was entitled to sue to restrain the commission of an unlawful act, to protect and vindicate a right acknowledged by the Constitution and to prevent the corruption of public morals. When the Attorney General sues with a relator, the relator need have no personal interest in the subject except his interest as a member of the public. Moore v. The Attorney General & Ors. [1930] I.R. 471 and The Attorney General v. Logan [1891] 2 Q.B. 100 applied. 2. That the right to life of the unborn had always been recognised in Ireland at common law, by statute law, and also by the Constitution as one of the unenumerated personal rights which the State guaranteed to protect and since the passing of the Eighth Amendment to the Constitution, specific recognition has been given to such right. 1. G. v. An Bord Uchtla [1980] I.R. 32 ; McGee v. The Attorney General [1974] I.R. 284 ; and Norris v. The Attorney General [1984] I.R. 36 considered. 3. That the judicial organ of government was obliged to lend its support, if sought, to the enforcement of the right to life of the unborn, to defend and vindicate that right and, if there was a threat to that right from whatever source, to protect that right from such threat. 4. That a right guaranteed by the Constitution carried with it its own right to a remedy, and did not require legislation for its enforcement unless expressly stated by the Constitution. Educational Company of Ireland Ltd. v. Fitzpatrick (No. 2) [1961] I.R. 345 ; Byrne v. Ireland [1972] I.R. 241 ; Meskell v. C.I.E. [1973] I.R. 121 and In re Mead (Unreported, Supreme Court, 26th July, 1972) applied.

[1988] A.G. (S.P.U.C.) v. Open Door Counselling Ltd. 594 1 I.R. H.C. 5. That the offence of conspiracy to corrupt public morals could be committed even when the agreement between two or more persons was to assist in the commission of a lawful act. The giving of assistance to obtain an abortion in another jurisdiction where it was not a crime, could constitute a conspiracy to corrupt public morals however the declaration sought on this ground would not be granted as it was an offence triable on indictment and it was for a jury to decide in each case whether or not persons were likely to be corrupted. Knuller v. Director of Public Prosecutions [1973] A.C. 435 and Attorney General v. Able [1984] Q.B 795 considered. 6. That the activities of the defendants amounted to counselling and assisting pregnant women to travel abroad to obtain further advice on abortion and to secure an abortion and as such were unlawful having regard to the provisions of Article 40, s. 3, sub-s. 3 of the Constitution and as such constituted a violation of the fundamental law of the State and if damage had been suffered such activities would amount to an actionable conspiracy. 7. That the qualified right to privacy, the rights of association and freedom of expression and the right to disseminate information cannot be invoked to interfere with the fundamental right to life of the unborn. 8. That the provisions of the law of the European Communities were not applicable because the relevant activities took place within the State. On appeal by the defendants its was Held by the Supreme Court (Finlay C.J., Walsh, Henchy, Griffin and Hederman JJ.) in dismissing the appeal and varying the orders of the High Court, 1, that the jurisdiction of the courts could be invoked by a party who had a bona fide concern and interest for the protection of the constitutionally guaranteed right to life of the unborn and it was not necessary that any specific pregnant woman and her unborn child be represented before the courts. The Attorney General was an especially appropriate person to invoke the jurisdiction of the court. The State (Quinn) v. Ryan [1965] I.R. 70 followed. 2. That it was not necessary in order to assist in the destruction of the life of the unborn for the defendants to advise or encourage the procuring of abortions, it was enough that their admitted activities were assisting pregnant women to travel outside the jurisdiction in order to have an abortion. 3. That there was no implied or unenumerated constitutional right to information about the availability of abortion outside the State, the purpose of which was to defeat the constitutional right to life of the unborn child. 4. That the order of the High Court was directed to the giving of assistance to a pregnant woman to have an abortion in another jurisdiction and did not prevent a pregnant woman herself from becoming aware of the existence of abortion outside the State accordingly no question arose as to the interpretation of the Treaty of the European Economic Community. Cases mentioned in this report: G. v. An Bord Uchtla IR DLTR [1980] I.R. 32; (1978) 113 I.L.T.R. 25. McGee v. The Attorney General IR DLTR [1974] I.R. 284; (1973) 109 I.L.T.R. 29. Norris v. The Attorney General [1984] I.R. 36.

Caldwell v. Paghan Habour Reclamation Company (1875-76) 2 Ch. D. 221. Moore v. The Attorney General & Others [1930] I.R. 471. Attorney General v. Logan [1891] 2 Q.B. 100. Educational Company of Ireland v. Fitzpatrick (No. 2) IR DLTR [1961] I.R. 345; (1961) 97 I.L.T.R. 16. Byrne v. Ireland and The Attorney General [1972] I.R. 241. Meskell v. Cras Iompair ireann [1973] I.R. 121. In re Mead (Unreported, Supreme Court, 26th July, 1972).

[1988] A.G. (S.P.U.C.) v. Open Door Counselling Ltd. 595 1 I.R. H.C. R. v. Bourne [1939] 1 K.B. 687. Paton v. British Advisory Services Trustees ELR WLR [1979] 1 Q.B. 276; [1978] 3 W.L.R. 687; [1978] 2 All E.R. 987. Shaw v. Director of Public Prosecutions ELR WLR [1962] A.C. 220; [1961] 2 W.L.R. 897; [1961] 2 All E.R. 446. Mayo-Perrott v. Mayo-Perrott IR DLTR [1958] I.R. 336; (1959) 93 I.L.T.R. 185. Knuller v. Director of Public Prosecutions ELR WLR [1973] A.C. 435; [1972] 3 W.L.R. 143; [1972] 2 All E.R. 898; 56 Cr. App. R. 633. Attorney General v. Able ELR WLR [1984] Q.B. 795; [1983] 3 W.L.R. 845; [1984] 1 All E.R. 277; 78 Cr. App. R. 197. Ferguson v. Weaving [1951] 1 K.B. 814; [1951] 1 All E.R. 412; (1951) 1 T.L.R. 465. Attorney-General's Reference (No. 1 of 1975) ELR WLR [1975] Q.B. 773; [1975] 3 W.L.R. 11; [1975] 2 All E.R. 684; 61 Cr. App. R. 118; [1975] R.T.R. 473. The State (Quinn) v. Ryan [1965] I.R. 70. Attorney General v. Birmingham District Drainage Board [1910] 1 Ch. 48. Attorney General v. Harris ELR WLR [1960] 1 Q.B. 31; [1959] 3 W.L.R. 205; [1959] 2 All E.R. 393. Attorney General v. Bastow ELR WLR

[1957] 1 Q.B. 514; [1957] 2 W.L.R. 340; [1957] 1 All E.R. 497. Cahill v. Sutton [1980] I.R. 269. In re The Housing (Private Rented Dwellings) Bill, 1981 IR DLRM [1983] I.R. 181; [1983] I.L.R.M. 246. Thomson & Co. Ltd v. Deakin [1952] 1 Ch. 646; [1952] 2 T.L.R. 105; [1952] 2 All E.R. 361. The Attorney General for England and Wales v. Brandon Book Publishers Ltd. IR DLRM [1986] I.R. 597; [1987] I.L.R.M. 135. In re O'Kelly (1974) 108 I.L.T.R. 97. The People v. Campbell 2 Frewen 131. Attorney General and Minister for Posts and Telegraphs v. Paperlink Ltd. [1984] I.L.R.M. 373. Dillon-Leetch v. Calleary & Ors. (Unreported, Supreme Court, 31st July, 1974). The People v. Shaw [1982] I.R. 1. The People v. O'Shea IR DLRM [1982] I.R. 384; [1983] I.L.R.M. 549. Tormey v. Ireland and Attorney General IR DLRM [1985] I.R. 289; [1985] I.L.R.M. 375. Bigelow v. Virginia (1974) 421 U.S. 809. Regina v. Saunders [1971] 1 E.C.R. 1129. Rutili v. Minister for Interior [1975] 2 E.C.R. 1219; [1976] 1 C.M.L.R. 140. Brockmeulen v. Huisarts Registratie Commissie [1981] 3 E.C.R. 2311; [1982] C.M.L.R. 91. The State (Healy) v. Donoghue IR DLTR DLTR [1976] I.R. 325; (1975) 110 I.L.T.R. 9; (1976) 112 I.L.T.R. 37. Campus Oil Ltd. v. Minister for Industry and Energy IR DLRM [1983] I.R. 82; [1983] I.L.R.M. 258. Doyle v. An Taoiseach [1986] I.L.R.M. 693.

[1988] A.G. (S.P.U.C.) v. Open Door Counselling Ltd. 596 1 I.R. H.C. McLoughlin v. Minister for Social Welfare [1958] I.R. 1. Shannon v. Ireland IR DLRM [1984] I.R. 548; [1985] I.L.R.M. 449. Walrave & Koch v. Association Union Cyliste Internationale [1974] E.C.R. 1405; [1975] 1 C.M.L.R. 320. Luisi v. Ministero Del Tesoro [1984] E.C.R. 377; [1985] 3 C.M.L.R. 52.

CILFIT v. Italian Ministry for Health [1984] E.C.R. 1128. Procureur du Roi v. Debauve [1980] E.C.R. 833; [1981] C.M.L.R. 362. Moser v. Land Baden-Wiirttemberg (1984) E.C.R. 2539. Van Binsbergen v. Board of Trade Association of the Engineering Industry [1974] E.C.R. 1299; [1975] C.M.L.R. 298. Morson & Thanjan v. The Netherlands [1982] E.C.R. 3723; [1983] 2 C.M.L.R. 221. Van Duyn v. Home Office [1974] E.C.R. 1337; [1975] C.M.L.R. 1. R. v. Henn and Darby [1979] E.C.R. 3975; [1980] C.M.L.R. 246. Coenen v. Sociaal-Economische Raad [1975] E.C.R. 1547; [1976] C.M.L.R. 30. Foglia v. Novello (No. 2) [1981] E.C.R. 3045; [1982] C.M.L.R. 585. Da Costa en Schaake v. The Netherlands [1963] E.C.R. 31; [1963] C.M.L.R. 224. Plenary Summons. The proceedings were originally instituted by the relator (The Society for the Protection of Unborn Children Ireland Limited). On the 28th June, 1985, the defendants challenged the locus standi of the Society and by order of the High Court dated 24th September, 1986, the proceedings were amended and converted into the name of the Attorney General at the relation of the Society. The hearing of the case in the High Court proceeded not on oral evidence but on the basis of admitted facts which are listed in the judgment of the learned President. Article 40, s. 3, sub-s. 3 of the Constitution provides: "The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right." The action was tried by Hamilton P. on 7th, 8th, 9th and 10th October, 1986. Hugh O'Flaherty S.C. (with him Anthony Kennedy S.C. and James O'Reilly ) for the plaintiff. Paul Carney S.C. (with him Frank Clarke S.C. and Patrick Gageby ) for the first defendant. David Butler S.C. (with him Mary Robinson S.C. and Adrian Hardiman ) for the second defendant. Cur. adv. vult.

[1988] 1 I.R.

A.G. (S.P.U.C.) v. Open Door Counselling Ltd.

597 H.C.

Hamilton P.
19th December 1986

Hamilton P.

The right to life of the unborn

The right to life of the unborn has always been recognised by Irish law.
It has been recognised at common law; by statute law; as one of the unenumerated personal rights which the State guaranteed by its laws to respect, and, as far as practicable, to defend and vindicate and is specifically acknowledged by the provisions of the Eighth Amendment to the Constitution. Abortion is an interference with and a destruction of the right

to life of an unborn infant in the mother's womb and as such is an offence contrary to Irish law. Originally, it was an offence contrary to the common
law. The common law misdemeanour of abortion applied however only after the child had quickened in the womb. The statute, (43 Geo. III, c. 58) of 1803 enacted that it should be a felony punishable by death to administer poison with intent to procure the miscarriage of a woman quick with child and a

felony punishable with imprisonment or transportation for fourteen years to administer poison with a like intent to a woman who was not proved to be quick with child. As stated in the third edition of Smith and Hogan: Criminal Law p. 275, the distinction between quick and non-quick women gave rise to complications and this distinction disappeared in the reenactment of the law by the Offences Against the Person Act, 1839, which established substantially the law in its present form. The current statute applicable is the Offences Against the Person Act, 1861. Section 58 of this Act provides that: "Every Woman being with Child, who, with Intent to procure her own Miscarriage, shall unlawfully administer to herself any Poison or other noxious Thing, or shall unlawfully use any Instrument or other Means whatsoever with the like Intent, and whosoever, with Intent to procure the Miscarriage of any Woman, whether she be or be not with Child, shall unlawfully administer to her or cause to be taken by her any Poison or other noxious Thing, or shall unlawfully use any Instrument or other means whatsoever with the like Intent, shall be guilty of Felony, and being convicted thereof, shall be liable, at the Discretion of the Court, to be kept in Penal Servitude for life . . . or to be imprisoned for any term not exceeding Two Years . . ." Section 59 of the said Act provides that: "Whosoever shall unlawfully supply or procure any Poison or other noxious Thing, or any Instrument or Thing whatsoever, knowing that the same is intended to be unlawfully used or employed with Intent to procure the Miscarriage of any Woman, whether she be or be not with Child, shall be guilty of a Misdemeanor, and being convicted thereof shall be liable . . . to imprisonment for any term not exceeding two years . . ." The Health (Family Planning) Act, 1979, reaffirmed the acceptance by the Oireachtas of ss. 58 and 59 of the Offences Against the Person Act, 1861, as setting forth the law of abortion in this jurisdiction.

[1988] 1 I.R.

A.G. (S.P.U.C.) v. Open Door Counselling Ltd.

598 H.C.

Hamilton P.
1. (a) the procuring of abortion,

Section 10 of the said Act provides that: "Nothing in this Act shall be construed as authorising -

2. (b) the doing of any other thing the doing of which is prohibited by Section 58 or 59 of the Offences Against the Person Act, 1861 (which sections prohibit the administering of drugs or the use of instruments to procure abortion or the supplying of drugs or instruments to procure abortion) or 3. (c) the sale, importation into the State, manufacture, advertising or display of abortifacients." Sections 58 and 59 of the Offences Against the Person Act, 1861, protected and protect the foetus in the womb and having regard to the omission of the words"Quick with child" which were contained in the statute of 1803 hereinbefore referred to, that protection dates from conception. Consequently, the right to life of the foetus, the unborn, is afforded statutory protection from the date of its conception.

Prior to the enactment of the Eighth Amendment to the Constitution the right to life of the unborn had been referred to and acknowledged by Walsh J. in the course of his judgment in G. v. An Bord Uchtla [1980] I.R. 32 when he stated at p. 69 of the report: "Not only has the child born out of lawful wedlock the natural right to have its welfare and health guarded no less well than that of a child born in lawful wedlock, but a fortiori it has the right to life itself and the right to be guarded against all threats directed to its existence whether before or after birth. The child's natural rights spring primarily from the natural right of every individual to life, to be reared and educated, to liberty, to work, to rest and recreation, to the practice of religion, and to follow his or her conscience. The right to life necessarily implies the right to be born, the right to preserve and defend (and to have preserved and defended) that life, and the right to maintain that life at a proper human standard in matters of food, clothing and habitation. It lies not in the power of the parent who has the primary, natural rights and duties in respect of the child to exercise them in such a way as intentionally or by neglect to endanger the health or life of the child or to terminate its existence. The child's natural right to life and all that flows from that right are independent of any right of the parent as such." He then repeated what he had said in McGee v. The Attorney General [1974] I.R. 284 at p. 312 of the report: ". . . 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." These passages clearly acknowledge: 1. (1) the right to life of the unborn; 2. (2) that that right springs primarily from the natural right of every individual to life;

[1988] 1 I.R.

A.G. (S.P.U.C.) v. Open Door Counselling Ltd.

599 H.C.

Hamilton P.

3. (3) the right includes the right to have that right preserved and defended and to be guarded against all threats to its existence before or after birth; 4. (4) that it lies not in the power of a parent to terminate its existence, and 5. (5) any action on the part of any person endangering 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. By virtue of the enactment of the Eighth Amendment to the Constitution, Article 40, s. 3, sub-s. 3 of the Constitution provides that: "The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right." The right to life of the unborn therein referred to is not created by law or by the Constitution; the aforementioned Article merely confirms or acknowledges its existence and gives it protection. As stated by Walsh J. in the course of his judgment in McGee v. The Attorney General [1974] I.R. 284 at p. 310: "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 rights referred to in Article 40, s. 3, sub-s. 3 are in the same category and are part of what is generally called the natural law. Though the sole and exclusive power of making laws for the State is, by Article 15, s. 2 of the Constitution, vested in the Oireachtas no laws have been enacted by the Oireachtas which, with due regard to the equal right to life of the mother, respect, defend or vindicate the right to life of the unborn. Under the Constitution, however, the State's powers of government are exercised in their respective spheres by the legislative, executive and judicial organs established under the Constitution and the courts will act to protect and enforce the rights of individuals and the provisions of the Constitution. In the course of his judgment in Norris v. The Attorney General [1984] I.R. 36 McCarthy J. stated at p. 103 of the report that: "For myself I am content to say that the provisions of the preamble, which I have quoted earlier in this judgment, would appear to lean heavily against any view other than the right to life of the unborn is a sacred trust to which all the organs of government must lend their support." Consequently, the judicial organ of government is obliged to lend its support to the enforcement of the right to life of the unborn, to defend and vindicate that right and, if there is a threat to that right from whatever source, to protect that right from such threat, if its support is sought.

[1988] 1 I.R.

A.G. (S.P.U.C.) v. Open Door Counselling Ltd.

600 H.C.

Hamilton P.

Relief sought The plaintiff has sought such support and claims: 1. (a) A declaration that the activities of the defendants, their servants or agents in counselling and procuring pregnant women within the jurisdiction of this Honourable Court to travel abroad to obtain an abortion or to obtain further advice on abortion within that foreign jurisdiction and in assisting them in so doing are unlawful having regard to the provisions of Article 40, s. 3, sub-s. 3 of the Constitution of Ireland; 2. (b) A declaration that the activities of the defendants, their servants or agents in counselling and procuring pregnant women within the jurisdiction of this Honourable Court to travel abroad to obtain an abortion or to obtain further advice on abortion within that foreign jurisdiction and in assisting them in so doing amounts to a conspiracy to corrupt public morals contrary to the common law or in the alternative contrary to Article 40, s. 3, sub-s. 3 of the Constitution of Ireland; and 3. (e) An order directed to the defendants, their servants or agents prohibiting them from counselling or procuring or assisting pregnant women within the jurisdiction of this Honourable Court to travel abroad to obtain an abortion or to obtain further advice on abortion within that foreign jurisdiction. Activities of the first and second defendants, their respective servants or agents. No evidence was adduced at the hearing of this action which proceeded on the basis of certain admitted facts. The first defendant admitted that:

1. (1) Its servants or agents counsel in a non-directive manner pregnant women resident in Ireland. 2. (2) Such non-directive counselling takes place at the defendant's premises at 3, Belvedere Place in the City of Dublin. 3. (3) Abortion or termination of pregnancy may be one of the options discussed within the said counselling. 4. (4) If a pregnant woman wants to consider the abortion options further they will arrange to refer her to a medical clinic in Great Britain. 5. (5) A reasonable fee is charged in respect of such counselling but may be waived in cases of financial necessity. 6. (6) Its servants or agents inspect the medical clinics in Great Britain to satisfy itself that the clinic operates at the highest standard. 7. (7) At the said medical clinics abortions have been performed on pregnant woman who have been previously counselled by the first defendant, its servants or agents.

[1988] 1 I.R.

A.G. (S.P.U.C.) v. Open Door Counselling Ltd.

601 H.C.

Hamilton P.

8. (8) It has counselled and continues to counsel such women after having an abortion in medical clinics in Great Britain and returning to Ireland. 9. (9) Pregnant women resident in Ireland have been referred to medical clinics in Great Britain where abortions have been performed for many years, including the months of November and December, 1984. 10. (10) It was aware that the second defendant counselled pregnant women. The second defendant admitted that: 1. (1) It counsels in a non-directive manner pregnant women resident in Ireland and also provides counselling services to other persons. 2. (2) Such non-directive counselling takes place at various locations including the second defendant's premises at 63, Lower Leeson Street in the City of Dublin and 60, Eccles Street in the City of Dublin. 3. (3) Abortion or termination of pregnancy may be one of the options discussed in the said counselling, if the question is raised by the person seeking counselling. 4. (4) If a pregnant woman wants to consider the abortion option further, the second defendant will arrange to refer her to a medical clinic in Great Britain. 5. (5) In certain circumstances, the second defendant may arrange the travel requirements of such pregnant woman. 6. (6) A reasonable fee is charged in respect of such counselling but the second defendant is an entirely non-profit making body. 7. (7) The second defendant will inspect the medical clinics in Great Britain to satisfy itself that they operate at the highest standards. 8. (8) At the said medical clinics abortions have been performed on pregnant women who have been previously counselled by the second defendant. 9. (9) The second defendant has counselled and continues to counsel women after they have had an abortion in a medical clinic in Great Britain and returned to Ireland. It also counsels women who have not prior to their operation attended it. 10. (10) Pregnant women resident in Ireland have been referred to medical clinics in Great Britain where abortions are performed for many years, including the months of November and December, 1984. History of proceedings

On the 28th June, 1985, the then plaintiff, The Society for the Protection of the Unborn Child Ireland Ltd. issued proceedings against the defendants herein, namely Open Door Counselling Ltd. and Dublin Well-Woman Centre Ltd. and on the 2nd August, 1985, caused to be delivered the statement of claim in which it is alleged that the activities of the defendants, their servants or agents, as therein set forth, are not and could not be authorised by law and are now in breach of the Constitution of Ireland in that: 1. (a) They attack the lives and fail to vindicate the right to life of the unborn contrary to Article 40, s. 3, sub-s. 3 of the Constitution:

[1988] 1 I.R.

A.G. (S.P.U.C.) v. Open Door Counselling Ltd.

602 H.C.

Hamilton P.

2. (b) They attack the lives and fail to vindicate the personal and unenumerated rights of the unborn, including the right to life, contrary to Article 40, s. 3, sub-s. 1 and Article 40, s. 3, sub-s. 2 of the Constitution, and 3. (c) They interfere without any lawful cause or justification with the right to life of the unborn in such a manner as to endanger or to ensure the destruction of the said life contrary to Article 40, s. 3, sub-s. 1, Article 40, s. 3, sub-s. 2 and Article 40, s. 3, sub-s. 3 of the Constitution. Further more their activities amount to a conspiracy to corrupt public morals contrary to common law or, in the alternative, contrary to Article 6, Article 40, s. 3, sub-s. 1, Article 40, s. 3, sub-s. 2 and Article 40, s. 3, sub-s. 3 of the Constitution of Ireland by: 1. (1) corrupting public morals and acting in a manner contra bonos mores by counselling and procuring pregnant women to abort their unborn children and otherwise acting as abortion agencies; 2. (2) promoting depraved moral standards by holding themselves out as abortion referral agencies in the manner complained of and corrupting thereby women availing of the said services together with other citizens of the State; 3. (3) subverting the rule of law within the jurisdiction of this Honourable Court and bringing same into disrepute by evading the application of the law on administering drugs or using instruments to procure abortions contrary to ss. 58 and 59 of the Offences Against the Person Act, 1861, and s. 10 of the Health (Family Planning) Act, 1979. The first defendant in its defence delivered on the 11th September, 1985, claimed, inter alia , that: "1. The plaintiff does not have any or any sufficient standing or interest in law to institute, or prosecute or maintain these proceedings. 2. Without prejudice to the foregoing, the proceedings herein would only be maintainable, if at all, at the relation of the Attorney General." The second defendant in its defence delivered on the 3rd August, 1985, claimed, inter alia , that: "2. The plaintiff has no locus standi to institute or prosecute these proceedings whether on its own behalf or on behalf of any other person. 5. If which is denied, these proceedings are maintainable by any person, they are so maintainable only by, or with the joinder of, the Attorney General." Locus standi It is not necessary for me, in the events which lave happened, to decide whether the then plaintiff, the Society for the Protection of Unborn Children Ireland Ltd., had a locus standi to

maintain these proceedings because an existing action may, by amendment of the writ and statement of claim and by authority of the Attorney General be converted into an action by the Attorney General with [1988] 1 I.R. A.G. (S.P.U.C.) v. Open Door Counselling Ltd. 603 H.C.

Hamilton P.

a relator, without prejudice to the proceedings pending in the action. ( Vide: Caldwell v. Paghan Harbour Reclamation Company (1875-76) 2 Ch. D. 221). This was done in this action by order of the High Court made on the 24th September, 1986, wherein it was ordered that the proceedings herein be amended and converted into proceedings in the name of the Attorney General at the relation of the Society for the Protection of Unborn Children Ireland Ltd. and it was further ordered that the pleadings be amended in accordance with the amended statement of claim included as an exhibit in the affidavit sworn on behalf of the said Society for the Protection of Unborn Children Ireland Ltd. upon which the said application was grounded. By virtue of this order and the amended writ and statement of claim referred to therein, the claim for the reliefs previously sought at (c), (d) and (h) were withdrawn and the claim is now limited to the relief sought at (a), (b), (e), (f) and (g) of the statement of claim. The reliefs sought at (a), (b) and (e) are the substantial reliefs sought and have been set forth in detail in the earlier portion of this judgment. What is sought is a declaration that the activities of the defendants, their servants or agents in counselling and procuring pregnant women within the jurisdiction of this Honourable Court to travel abroad and obtain an abortion or to obtain further advice on abortion within that foreign jurisdiction and in assisting them to do so are unlawful having regard to the provisions of Article 40, s. 3, sub-s. 3 of the Constitution of Ireland and amount to a conspiracy to corrupt public morals contrary to common law or, in the alternative, contrary to Article 40, s. 3, sub-s. 3 of the Constitution of Ireland and for an order prohibiting them from counselling or procuring or assisting pregnant women within the jurisdiction of this Honourable Court to travel abroad to undergo abortions or to obtain further advice on abortion within that foreign jurisdiction. The questions whether the defendants, their servants or agents were acting unlawfully or unconstitutionally or whether their activities amounted to a corruption of public morals are undoubtedly justiciable controversies and if they are so acting, it is in the public interest and the interest of the common good that they be restrained from so doing. It is a traditional function of the Attorney General to represent the public in litigation and he is the forensic representative, not only of the executive but of the public at large. In Moore v. The Attorney General [1930] I.R. 471, Kennedy C.J. stated at p. 495: "(Thus,) the Attorney-General in Ireland had come to be, prior to the Treaty of 1921, the legal representative of the public in the Courts of the period of the British rgime; and his business, powers, authorities, duties, and functions as such were, by sect. 6 of the Ministers and Secretaries Act, 1924, vested in the Attorney-General of the Saorstt, who there upon became, in my opinion, the legal representative of the public, that is to say, of the corporate community of the Saorstt, in all litigation in the Courts of the Saorstt in [1988] 1 I.R. A.G. (S.P.U.C.) v. Open Door Counselling Ltd. 604 H.C.

Hamilton P.

which the public may be involved as a party interested, whether as plaintiff or defendant, or otherwise."

The public interests are committed to the care of the Attorney General. He is entitled to sue to restrain the commission of an unlawful act, to protect and vindicate a right acknowledged by the Constitution and to prevent the corruption of public morals. I am satisfied that the Attorney General has the locus standi to maintain these proceedings and that when the Attorney General sues with a relator, the relator need have no personal interest in the subject except his interest as a member of the public. ( Attorney General v. Logan [1891] 2 Q.B. 100). Defences of the first and second defendants The first defendant in its defence delivered on the 11th September, 1985, denied that it, its servants or agents counselled, procured or assisted pregnant woman to travel abroad for the purpose of undergoing abortions or of receiving advice within that jurisdiction on abortion: denied that it conspired with any person or persons by any means to persuade pregnant women to resort to them for the purpose of pregnancy counselling, including advice on the manner and mode by which to obtain an abortion and with intent thereby to debauch and corrupt the morals of the youth and citizens of Ireland and to destroy thereby the right to life of the unborn and thereby deny, attack and fail to vindicate their constitutional right to life: denied that its activities are not and could not be authorised by law: denied that it was in breach of the Constitution: and denied that its activities amount to a conspiracy to corrupt public morals. It further denies that its activities are encompassed by or affected by any of the laws referred to in Article 40, s. 3, sub-s. 3 of the Constitution and allege that it maintains a non directive counselling service in relation to pregnancy and related matters and that it is entitled so to do by virtue of the provisions of the Constitution. The second defendant in its defence delivered on the 3rd August, 1985, alleged that there was no unborn person whose rights were in issue in these proceedings and that the plaintiff was not entitled to sue on behalf of the unborn: acknowledged that among the services it provides was the non directive counselling of women who seek such counselling and that if, after counselling, a client decided that she wanted to consider the option of abortion further, it would arrange to refer her to a medical facility in England where a decision could lawfully be taken as to whether or not such an operation should be performed there in all the circumstances and in accordance with English law; denied the other allegations made in the statement of claim: denied that it conspired with any person to resort to it for any purpose: that its acknowledged activities were intended to, or do in fact, debauch or corrupt the morals of any person or group or destroy the right to [1988] 1 I.R. A.G. (S.P.U.C.) v. Open Door Counselling Ltd. 605 H.C.

Hamilton P.

life of the unborn or fail to vindicate their constitutional rights or amount to any conspiracy. This defendant stated, in its defence, that the activities acknowledged by it are not unauthorised by law, are not in breach of the Constitution and do not amount to a conspiracy and that the activities acknowledged by it are matters which it, its servants or agents and clients are entitled to do and to participate in, by virtue inter alia of its constitutional right to privacy, to freedom of expression, to freedom of communication and to freedom of access to information in the course of counselling and generally and by virtue of Article 29, s. 4, sub-s. 3 of the Constitution and the rights procured thereby and the Treaty of Rome and by laws enacted, acts done and measures adopted by the Communities referred to in the said Article or Institutions thereof. Issues The parties have agreed and submitted to me the issues which they submit arise on the pleadings herein. They are 1. 1. Has the plaintiff on the pleadings the locus standi to maintain these proceedings?

2. 2. Do the admitted activities of the defendants, their servants or agents, constitute: 1. (a) An actionable criminal conspiracy to corrupt public morals contrary to common law? 2. (b) An actionable conspiracy contrary to Article 40, s. 3, sub-s. 3 of the Constitution of Ireland? 3. 3. Do the admitted activities of the defendants, their servants or agents constitute activity that is restrainable by virtue of Article 40, s. 3, sub-s. 3 of the Constitution of Ireland? 4. 4. Is the plaintiff entitled to the declaratory and injunctive relief in the forms prayed for in relation to the alleged actionable conspiracy or activities that may be restrained on alleged constitutional grounds? 5. 5. If the answer to 2 or 3 is yes, are the defendants nevertheless entitled to carry out their said activities by virtue of any provision of the law of the European Economic Community? I have already decided the first issue in favour of the plaintiff and now proceed to deal with the other issues but before doing so there is one matter that I wish to deal with at this stage. Counsel on behalf of both defendants submitted that it was a matter for the Oireachtas to introduce legislation subsequent to the passing of the Eighth Amendment to the Constitution which would respect and, as far as practicable, defend and vindicate the right therein acknowledged: that the amendment is not [1988] 1 I.R. A.G. (S.P.U.C.) v. Open Door Counselling Ltd. 606 H.C.

Hamilton P.

self-executory and that, in the absence of such legislation, the courts should not intervene to restrain the activities of the defendants. In the course of his judgment in Educational Company of Ireland Ltd. v. Fitzpatrick (No. 2) [1961] I.R. 345 Budd J. stated at p. 368 of the report that: "If an established right in law exists a citizen has the right to assert it and it is the duty of the Courts to aid and assist him in the assertion of his right. The Court will therefore assist and uphold a citizen's constitutional rights. Obedience to the law is required of every citizen, and it follows that if one citizen has a right under the Constitution there exists a correlative duty on the part of other citizens to respect that right and not to interfere with it. To say otherwise would be tantamount to saying that a citizen can set the Constitution at nought and that a right solemnly given by our fundamental law is valueless. It follows that the Courts will not so act as to permit any body of citizens to deprive another of his constitutional rights and will in any proceedings before them see that these rights are protected, whether they be assailed under the guise of a statutory right or otherwise." In the course of his judgment in Byrne v. Ireland [1972] I.R. 241, Walsh J. stated at p. 264 of the report that: "In several parts of the Constitution duties to make certain provisions for the benefit of the 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." In the course of his judgment in Meskell v. C.I.E. [1973] I.R. 121, the same judge stated at p. 134 of the report that: "To infringe another's constitutional rights or to coerce him into abandoning them or waiving them . . . is unlawful as constituting a violation of the fundamental law of the State . . ."

and that, also at p. 134: "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 with it its own right to a remedy or for the enforcement of it." In Mead's case (Supreme Court, Unreported, 26th July, 1972) Dalaigh dalaigh C.J. said: "The High Court is the appropriate forum for the declaration of human rights. Constitutional rights, for enforcement, do not require statutory vesture unless the Constitution itself were to express such a limitation." These and many other statements clearly establish that the courts will provide a procedure for the enforcement and protection of personal rights and the power of the courts in this regard does not depend on legislation. The public interest and the common good require that personal rights be respected, vindicated and protected.

[1988] 1 I.R.

A.G. (S.P.U.C.) v. Open Door Counselling Ltd.

607 H.C.

Hamilton P.

The right to life of the unborn is acknowledged by the Constitution and this right necessarily implies the right to have that right preserved and defended. As already stated in this judgment the public interest is committed to the care of the Attorney General and the court is entitled and indeed obliged, on his application, to restrain the activities of the defendants if satisfied that such activities constitute an interference with the right to life of the unborn or a failure to respect, vindicate and preserve that right. Law in England and Wales As one of the issues in the case is the alleged illegality or unconstitutionality of the reference by the defendants of pregnant women to medical clinics in Great Britain it is necessary at this stage to set out the legal position there with regard to abortion as appears from the affidavit of David Anthony Poole, a member of the Bar of England and Wales and one of Her Majesty's Counsel, sworn on the 2nd October, 1986. From this affidavit it appears that abortion is a crime at common law and by virtue of s. 58 of the Offences Against the Person Act, 1861, already cited. Section 1, sub-s. 1 of the Abortion Act, 1967, provides that: "Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner, if two registered medical practitioners are of the opinion, formed in good faith 1. (a) That the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated; or 2. (b) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped."

Section 1, sub-s. 2 of the said Act provides that: "In determining whether the continuance of a pregnancy would involve risk of injury to health as is mentioned in paragraph (a) of sub-section (1) of this section, account may be taken of the pregnant woman's actual or reasonably foreseeable environment." The law in England and Wales differs from that in the jurisdiction of this court in that, though abortion is a crime in both countries at common law and by virtue of s. 58 of the Offences against the Person Act, 1861, in England and Wales a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is termination by a registered medical practitioner, if two registered medical practitioners are of the opinion, formed in good faith, that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing [1988] 1 I.R. A.G. (S.P.U.C.) v. Open Door Counselling Ltd. 608 H.C.

Hamilton P.

children of her family, greater than if the pregnancy were terminated or that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped. It is clear that an abortion is permitted by the laws of England and Wales if it is carried out by a registered medical practitioner if two registered medical practitioners are of the opinion formed in good faith that: 1. (i) the continuance of the pregnancy would involve risk to the life of the pregnant woman greater than if the pregnancy were terminated, or 2. (ii) the continuance of the pregnancy would involve risk of injury to the physical or mental health of the pregnant woman greater than if the pregnancy were terminated, or 3. (iii) the continuance of the pregnancy would involve risk of injury to the physical health of any existing children of her family greater than if the pregnancy were terminated, or 4. (iv) the continuance of the pregnancy would involve risk of injury to the mental health of any existing children of her family greater than if the pregnancy were terminated, or 5. (v) there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped. It is clear from a consideration of the relevant terms of the Abortion Act, 1967, that the registered medical practitioners when forming the opinion required by s. 1, sub-s. 1 (a) and (b) on the matters therein referred to are required to be concerned only with the risk to life of the pregnant woman, the risk to the physical or mental health of the pregnant woman, the risk to the physical or mental health of any existing children of her family or the substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped and in determining whether the continuance of a pregnancy would involve risk of injury to health, they are entitled to take account of the pregnant woman's actual or reasonably foreseeable environment. Section 5, sub-s. 2 of the Abortion Act, 1967, provides that: "For the purposes of the law relating to abortion, anything done with intent to procure the miscarriage of a woman is unlawfully done unless authorised by section 1 of the Act." Section 5, sub-s. 1 of the Act however provides that: "Nothing in this Act shall affect the provisions of the Infant Life (Preservation) Act, 1929." Section 1, sub-s. 1 of the Act of 1929 provides:

"Subject as hereinafter in this subsection provided, any person who, with intent to destroy the life of a child capable of being born alive, by any wilful act causes a child to die before it has existence independent of its mother, shall be guilty of felony, to wit, of child destruction, and shall be liable on conviction thereof on indictment to penal servitude for life.

[1988] 1 I.R.

A.G. (S.P.U.C.) v. Open Door Counselling Ltd.

609 H.C.

Hamilton P.

Provided that no person shall be found guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother." Section 1, sub-s. 2 of this Act provides that: "For the purpose of this Act, evidence that a woman had at any material time been pregnant for a period of twenty-eight weeks or more shall be prima facie proof that she was at any time pregnant of a child capable of being born alive." This latter enactment, however, in the opinion of Macnaghten J., in The King v. Bourne [1939] 1 K.B. 687 at p. 691 provides for the case where a child is killed by a wilful act at the time when it is being delivered in the ordinary course of nature. Consequently, it offers no protection to an unborn child who has not reached the stage of being "capable of being born alive". Section 1 of the Abortion Act, 1967, is the sole criterion of the lawfulness of an abortion in circumstances other than where the child is capable of being born alive. In the course of his judgment in Paton v. British Advisory Services Trustees and Another [1979] 1 Q.B. 277, Sir George Baker P. stated at p. 279 that: "The foetus cannot, in English law, in my view, have a right of its own at least until it is born and has a separate existence from its mother. That permeates the whole of the civil law of this country. (I accept the criminal law . . .)" In this case, the husband had sought an injunction to restrain his wife and the first defendant, a charitable organisation, from causing or permitting an abortion to be carried out on his wife without the husband's consent. Having considered the terms of the Abortion Act, 1967, Sir George Baker P. went on to say at p. 281: "The two doctors have given a certificate. It is not and cannot be suggested that the certificate was given other than in good faith and it seems to me that there is the end of the matter in English law. The Abortion Act, 1967, gives no right to a father to be consulted in respect of a termination of a pregnancy. True, it gives no right to the mother either, but obviously the mother is going to be right at the heart of the matter consulting with doctors if they are to arrive at a decision in good faith . . . The husband, therefore, in my view, has no legal right enforceable in law or in equity to stop his wife having this abortion or to stop the doctors from carrying out this abortion." I have outlined the provisions of the Abortion Act, 1967, which removed from criminal liability abortions in respect of which the conditions set for s. 1 (a) and s. 1 (b) are complied with. Many abortions permitted by reason of the aforesaid provisions would, were it not for such provisions, have been offences at common law and contrary to the provisions of ss. 58 and 59 of

the Offences Against the Person Act, 1861, and would be offences if committed within this jurisdiction.

[1988] 1 I.R.

A.G. (S.P.U.C.) v. Open Door Counselling Ltd.

610 H.C.

Hamilton P.

It is submitted on behalf of the defendants herein that their respective admitted activities cannot amount to aiding, abetting, counselling, procuring or assisting the commission of an offence because the extra-territorial activities of the pregnant woman referred by each of the defendants in seeking advice on or actual termination of pregnancy does not constitute a crime within that jurisdiction and that if I were to regard the activities of the defendants, their respective servants or agents as unlawful, I would be effectively extending the criminal law of Ireland to cover actions which occur in another jurisdiction where they are not criminal and that such an extension can only be made by statutes which have extra-territorial effect such as the Criminal Law (Jurisdiction) Act, 1976. No such statute exists with respect to abortion and it is submitted that the court cannot cure this deficiency. Having regard to "the sacred trust", referred to by McCarthy J. in Norris v. The Attorney General [1984] I.R. 36, all the organs of government, including the judicial organ, must lend their support. Though ordinarily it is no function of the courts to extend the criminal law, it may well be that where there is a breach of or interference with a fundamental personal or human right, they may be under a constitutional obligation so to do in order to respect, and, as far as practicable, to defend and vindicate that right. In Shaw v. Director of Public Prosecutions [1962] A.C. 220 Viscount Simonds stated at p. 267 of the report that: "In the sphere of criminal law I entertain no doubt that there remains in the courts of law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the State, and that it is their duty to guard it against attacks which may be the more insidious because they are novel and unprepared for." It seems to me that, where there is a breach of or interference with a fundamental and personal and human right, such as the right to life of the unborn, which is acknowledged by the Constitution, and which the courts are under a constitutional obligation to defend and vindicate, it would be scandalous if the legitimacy or criminality of such breach or interference could, in the words of the late Kingsmill Moore J. in Mayo-Perrott v. Mayo-Perrott [1958] I.R. 336 at p. 350 of the report - "be decided by a flight over St. George's Channel" because as stated by Walsh J. in Meskell v. C.I.E. [1973] I.R. 121 at p. 134: "To infringe another's constitutional rights . . . is unlawful as constituting a violation of the fundamental law of the State." Happily, having regard to the declarations sought by the plaintiff in this case, I do not have to decide this issue. Even if I had, I might have been prevented from so doing by the statement of the former Chief Justice in Norris v. The Attorney General [1984] I.R. 36 at p. 53 of the report which stated that: "the sole function of this Court, in a case of this nature, is to interpret the Constitution and the law and to declare with objectivity and impartiality the result of that interpretation on the claim being considered. Judges may, and do, share with other citizens a concern and interest in desirable changes and

[1988] 1 I.R.

A.G. (S.P.U.C.) v. Open Door Counselling Ltd.

611 H.C.

Hamilton P.

reform in our laws; but, under the Constitution, they have no function in achieving such by judicial decision. It may be regarded as emphasising the obvious but, nevertheless, I think it proper to remind the plaintiff and others interested in these proceedings that the sole and exclusive power of altering the laws of Ireland is, by the Constitution, vested in the Oireachtas. The Courts declare what the law is - it is for the Oireachtas to make changes if it so thinks proper." Conspiracy to corrupt public morals contrary to common law It is submitted on behalf of the Attorney General that the admitted activities of the defendants, their servants or agents amount to a conspiracy to corrupt public morals. It was decided by the House of Lords in Shaw v. Director of Public Prosecutions [1962] A.C. 220 that conspiracy to corrupt public morals is a common law misdemeanour and is indictable at common law. In the course of his judgment in Knuller v. Director of Public Prosecutions [1973] A.C. 45 Lord Morris stated at p. 459 of the report that: "[I]n the case of Shaw v. Director of Public Prosecutions , it was clearly recognised and affirmed that a conspiracy to corrupt public morals is a common law misdemeanour which is indictable at common law." It is submitted on behalf of the defendants: 1. (1) that the Attorney General is not entitled to such a declaration, and 2. (2) that the admitted activities of the defendants cannot amount to a conspiracy to corrupt public morals because what they are doing is engaging in non-directive counselling, referring and assisting pregnant women for further advice and dependent on that advice a termination of pregnancy which would not be a crime in the jurisdiction in which it is carried out if the requirements of section 1, sub-s. 1 of the Abortion Act, 1967, were complied with. It is submitted that the termination of a pregnancy is lawful in England and Wales if the requirements of this Act are complied with and that it is unreasonable and cannot be the law that they are guilty of an offence namely conspiracy to corrupt public morals if they merely put pregnant women, who have sought their counselling and assistance, in touch with medical clinics in which the pregnancy may be terminated in accordance with law. In Knuller v. Director of Public Prosecutions [1973] A.C. 435 the House of Lords considered a point of law which had been certified by the Court of Appeal as being of general public importance. As appears from the judgment of Lord Morris at p. 459 of the report, the point of law was: "Whether an agreement by two or more persons to insert advertisements in a magazine, whereby adult male advertisers seek replies from other adult males who are prepared to consent to commit homosexual acts with them in [1988] 1 I.R. A.G. (S.P.U.C.) v. Open Door Counselling Ltd. 612 H.C.

Hamilton P.

private, is capable of amounting to the offence of conspiracy to corrupt public morals." Having recited this point of law, he went on to say at p. 460 that:

"It was contended on behalf of the appellants that, in view of the provisions of s. 1, sub-s. 1 of the Sexual Offences Act, 1967, no offence had in the present case been committed. By that sub-section it is provided as follows: 'Notwithstanding any statutory or common law provision, but subject to the provisions of the next following section, a homosexual act in private shall not be an offence provided that the parties consent thereto and have attained the age of 21 years.' It was submitted that where Parliament has altered the law so that certain sexual conduct which was formerly illegal becomes under certain circumstances no longer an offence there can be no commission of the offence of conspiring to corrupt public morals by the insertion of advertisements which only have in view such sexual conduct under the specified circumstances . . . In considering the submission which is made I propose to leave out of account any question whether some of the advertisements might be regarded as having been addressed to or might have been responded to by persons under the age of twenty-one years. The submission which is made is, I think, fallacious. What s. 1 of the 1967 Act does is to provide that certain acts which previously were criminal offences should no longer be criminal offences. But that does not mean that it is not open to a jury to say that to assist or to encourage persons to take part in such acts may be to corrupt them. If by agreement it was arranged to insert advertisements by married people proclaiming themselves to be such and to be desirous of meeting someone of the opposite sex with a view to clandestine sexual association, would it be justification to say that adultery is not of itself a criminal offence? A person who, as a result of perusing the Ladies Directory, decided to resort to a prostitute was committing no legal offence; but it was open to a jury to hold that those who conspired to insert the advertisements did so with the intention of corrupting the morals of those who read the advertisements. So in the present case it was open to the jury to hold that there was an intention to corrupt; it was for the jury to decide whether the advertisements would induce readers of them to meet those who inserted the advertisements and to meet them for the purpose of the contemplated sexual practice; it was for the jury to decide whether readers would be or might be encouraged to indulge in such practices; it was for the jury to decide whether those conspiring together to insert the advertisements had the intent to debauch and corrupt the morals of the readers." In the course of his judgment in the same case, Lord Reid stated at p. 457 of the report that: "I can now turn to the appellants' second argument. They say that homosexual acts between adult males in private are now lawful so it is unreasonable and cannot be the law that other persons are guilty of an offence if they merely put in touch with one another two males who wish to indulge in [1988] 1 I.R. A.G. (S.P.U.C.) v. Open Door Counselling Ltd. 613 H.C.

Hamilton P.

such acts. But there is a material difference between merely exempting certain conduct from criminal penalties and making it lawful in the full sense. Prostitution and gaming afford examples of this difference. So we must examine the provisions of the Sexual Offences Act, 1967, to see just how far it altered the old law. It enacts subject to limitation that a homosexual act in private shall not be an offence but it goes no farther than that. Section 4 shows that procuring is still a serious offence and it would seem that some of the facts in this case might have supported a charge under that section.

I find nothing in the Act to indicate that Parliament thought or intended to lay down that indulgence in these practices is not corrupting. I read the Act as saying that, even though it may be corrupting, if people chose to corrupt themselves in this way that is their affair and the law will not interfere. But no licence is given to others to encourage the practice. So if one accepts Shaw's case as rightly decided it must be left to each jury to decide in the circumstances of each case whether people were likely to be corrupted." This case is clear authority for the proposition that the offence of conspiracy to corrupt public morals may be committed even when the agreement between two or more persons is to assist in the commission of a lawful act. The question which I have to consider is whether the admitted activities of the defendants, their servants or agents in counselling and referring pregnant women within the jurisdiction of this Honourable Court, to travel abroad to obtain an abortion or to obtain further advice on abortion within that foreign jurisdiction amounts to a conspiracy to corrupt public morals contrary to the common law. While I am dealing with the defendants together, I am doing so for convenience sake as their admitted activities are similar and were I to deal with them separately, it could lead to unnecessary repetition. I do not consider that they conspire together to engage in their admitted activities and do not approach the consideration of this question on the basis that they did so. At this stage, I should also make it clear that I consider that the two defendants are reputable organisations providing many and needed services to women, that their employees are skilled and concerned people and well-motivated with regard to the counselling and other services which they provide and consider necessary. This is illustrated by the manner in which they have met this case; they have avoided unpleasant controversy by openly admitting the activities in which they are engaged and contend that such activities are lawful. Consequently, a finding that such activities or conduct is liable to corrupt public morals is one not lightly to be reached. Lord Simon of Glaisdale said at p. 491 of the same case: "The words 'corrupt public morals' suggest conduct which a jury might find to be destructive of the very fabric of society." The fabric of our society is woven from the threads of the law and the Constitution and respect therefor is an essential component of our society. As stated by the former Chief Justice in the course of his judgment in Norris v. The Attorney General [1984] I.R. 36 at p. 64 of the report:

[1988] 1 I.R.

A.G. (S.P.U.C.) v. Open Door Counselling Ltd.

614 H.C.

Hamilton P.

"The preamble to the Constitution proudly asserts the existence of God in the Most Holy Trinity and recites that the people of Ireland humbly acknowledge their obligations to 'our Divine Lord, Jesus Christ'. It cannot be doubted that the people, so asserting and acknowledging their obligations to our Divine Lord, Jesus Christ, were proclaiming a deep religious conviction and faith and an intention to adopt a Constitution consistent with that conviction and faith and with Christian beliefs." This is a view with which I respectfully agree. Article 6, s. 1 of the Constitution 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 question of national policy, according to the requirements of the common good." As late as 1983, the people enacted the Eighth Amendment to the Constitution. Consequently, there can be no doubt but that abortion, which is an interference with and destruction of the right to life of the unborn, is contrary to national policy, public morality, contrary to law, both common law and statute law, to the fundamental right of the unborn and contrary to that right to life as acknowledged by the Eighth Amendment to the Constitution. Both defendants, their servants or agents, know that a significant number of the pregnant women who sought their counselling and who were referred to a medical clinic in Great Britain would be contemplating an abortion. The action of the defendants in referring them to such clinics, after they had satisfied themselves that the said clinics operated at the highest standard, could amount to an assent to the pregnant women obtaining an abortion, if the conditions set forth in s. 1, sub-s. 1 of the Abortion Act, 1967, were complied with and the abortion was legal, to the provision of assistance and encouragement to procure an abortion and an agreement with the pregnant woman to procure an abortion. Such an agreement could constitute a conspiracy to corrupt public morals as the defendants' services are available to the public and well advertised. In a prosecution alleging a conspiracy to corrupt public morals, it would however be a matter for a jury to decide whether the activities of the defendants amounted to a conspiracy to corrupt public morals and whether in fact public morals were corrupted. The declaration sought by the plaintiff is that the defendants, their servants or agents are engaged in a criminal conspiracy to corrupt public morals and this court should, as stated by Mr. Justice Woolf in Attorney General v. Able [1984] Q.B. 795 at p. 808 of the report - "should bear in mind the danger of usurping the jurisdiction of the criminal courts." He further stated at p. 808 that: "[I]t would only be proper to grant a declaration if it is clearly established that there is no risk of it treating conduct as criminal which is not clearly in contravention of the criminal law." As already stated, conspiracy to corrupt public morals is a common law misdemeanour which is indictable at common law.

[1988] 1 I.R.

A.G. (S.P.U.C.) v. Open Door Counselling Ltd.

615 H.C.

Hamilton P.

Article 38, s. 1 of the Constitution provides that: "No person shall be tried on any criminal charge save in due course of law." Indictable offences are tried by a judge and jury. When a case turns on public morals or standards, the question is for the jury though of course the judge rules whether there is evidence upon which they can find the case proved. Lord Reid stated in Knuller v. Director of Public Prosecutions [1973] A.C. 435 at p. 457 that: "[I]t must be left to each jury to decide in the circumstances of each case whether people were likely to be corrupted." That being so, I am not satisfied that there is no risk in my treating conduct as criminal when a jury might consider otherwise. Consequently, the plaintiff is not entitled to this declaration.

Unlawfulness having regard to the provisions of Article 40, s. 3, sub-s. 3 of the Constitution of Ireland The other declaration which the plaintiff seeks is: A declaration that the activities of the defendants, their servants or agents in counselling and procuring pregnant women within the jurisdiction of this Honourable Court to travel abroad to obtain an abortion or to obtain further advice on abortion within that foreign jurisdiction and in assisting them in so doing are unlawful having regard to the provisions of Article 40, s. 3, sub-s. 3 of the Constitution of Ireland. Do the admitted activities of the defendants, their servants or agents amount to counselling and procuring pregnant women to travel abroad to obtain an abortion or to obtain further advice on abortion? The consideration of this question necessarily involves a consideration of the meaning of the term "counsel and procure". As stated by Lord Goddard in Ferguson v. Weaving [1951] 1 K.B. 814 at p. 818 of the report: "It is well known that the words "aid and abet" are apt to describe the action of a person who is present at the time of the commission of an offence and takes some part therein . . . The words "counsel and procure" are appropriate to a person who, though not present at the commission of the offence, is an accessory before the fact." A person counsels the commission of an act if before the commission of the act he/she conspires to commit it, advises its commission or knowingly gives assistance to one who may commit it. A person procures the commission of an act if he/she brings it about. As Lord Widgery C.J. stated in Attorney-General's Reference (No. 1 of 1975) [1975] Q.B. 773 at p. 779:

[1988] 1 I.R.

A.G. (S.P.U.C.) v. Open Door Counselling Ltd.

616 H.C.

Hamilton P.

"To procure means to produce by endeavour. You procure a thing by setting out to see that it happens and taking the appropriate steps to produce that happening. . ." and at p. 780: "You cannot procure an offence unless there is a casual link between what you do and the commission of the offence . . ." However, you do not need to procure to be an accessory and the same close causal connection is not required when what is being done is the provision of assistance. Counselling implies consensus but not causation and involves an intention to assist in the commission of the act. The intention to assist involves knowledge of the nature of the act to be committed and such intention to assist need not involve a desire that the act should be committed or attempted. The admitted activities of the defendants, their servants or agents, which I have outlined herein, involve the giving of assistance by way of advice on the various options, including abortion, open to pregnant women, the giving of information with regard to the availability of medical clinics in England and Wales which they have inspected and are satisfied operate to the highest standard, to pregnant women, who, after counselling by the defendants with regard to the options open to them, express the desire to consider that option further, and the referral of such pregnant women to such clinics. Knowing that a significant number of such women are contemplating abortion they intentionally give assistance to them as outlined herein.

It is irrelevant in those circumstances that some of these women do not have an abortion or that the defendants may not desire that they should have an abortion or even that they had advised against it. It is also irrelevant that these pregnant women cannot have a lawful abortion in England and Wales unless two registered medical practitioners are of the opinion formed in good faith that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated or that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped and that the formation in good faith of such opinion necessarily involved further counselling by and consultation with such registered medical practitioners. The defendants and each of them put pregnant women contemplating abortion in touch with clinics where pregnancy is terminated so that they can obtain an abortion if they wish and the provisions of s. 1, sub-s. 1 of the Abortion Act, 1967, are complied with. Their actions in so doing imply assent to, approval of and encouragement for the procurement of an abortion if the pregnant woman so wishes and the provisions of the Abortion Act, 1967, are complied with. As I have already pointed out in the course of this judgment, the laws of England and Wales offer no protection to an unborn child who has not reached the stage of "being capable of being born alive", do not acknowledge the right to life of the unborn and do not defend and vindicate that right.

[1988] 1 I.R.

A.G. (S.P.U.C.) v. Open Door Counselling Ltd.

617 H.C.

Hamilton P.

Consequently, many abortions carried out in England and Wales would be offences if committed here, at common law, contrary to the provisions of ss. 58 and 59 of the Offences Against the Person Act, 1861, and would interfere with the right to life of the unborn as acknowledged by Article 40, s. 3, sub-s. 3 of the Constitution. I am satisfied that the activities of both defendants, through their servants and agents amount to counselling and assisting pregnant women to travel abroad to obtain further advice on abortion and to secure an abortion. Are such activities unlawful having regard to the provisions of Article 40, s. 3, sub-s. 3 of the Constitution of Ireland? I have no doubt but that they are. In this Article the State acknowledges the right to life of the unborn and, with due regard to equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable by its laws to defend and vindicate such rights. I do not, in the circumstances of this case, have to have regard to the effect of"the equal right to life of the mother" on the right to life of the unborn acknowledged by this Article. As I have already stated that right to life of the unborn includes the right to have that right preserved and defended and to be guarded against all threats to its existence before and after birth, and that it lies not in the power of a parent to terminate its existence and that any action on the part of any person endangering that life was necessarily not only an offence against the common good but also against the guaranteed personal rights of the human life in person. Obedience to the law is required of every citizen and there exists a duty on the part of the citizens to respect that right and not to interfere with it. The court is under a duty to act so as not to permit any body of citizens to deprive another of his constitutional right, to see that such rights are protected and to regard as unlawful any infringement or attempted infringement of such constitutional right as constituting a violation of the fundamental law of the State.

The qualified right to privacy, the rights of association and freedom of expression and the right to disseminate information cannot be invoked to interfere with such a fundamental right as the right to life of the unborn, which is acknowledged by the Constitution of Ireland. Consequently, I am satisfied that the plaintiff is entitled to a declaration that the activities of the defendants, their servants or agents in counselling pregnant women within the jurisdiction of this Honourable Court to travel abroad to obtain an abortion or to obtain further advice on abortion within that foreign jurisdiction are unlawful having regard to the provisions of Article 40, s. 3, sub-s. 3 of the Constitution of Ireland. If damage had been suffered, their activities would have amounted to an actionable conspiracy. However, as the plaintiff has suffered no damage the only relief to which it is entitled is: an order directed to the defendants, their servants or agents prohibiting them from counselling or assisting pregnant women within the jurisdiction of this Honourable Court to obtain further advice on abortion or to obtain an abortion.

[1988] 1 I.R.

A.G. (S.P.U.C.) v. Open Door Counselling Ltd.

618 H.C.

Hamilton P.

Before deciding to grant the declaration sought by the plaintiff and the injunctive relief sought by the plaintiff, I gave full and careful consideration to the submissions made by Mr. Butler on behalf of the second defendant and adopted by Mr. Carney on behalf of the first defendant and by Mr. O'Reilly on behalf of the plaintiff with regard to the effect of Article 29, s. 4, sub-s. 3 of the Constitution, the provisions of the Treaty of Rome and the provisions of the Council Directive of the 21st May, 1973, (No. 73/148/EEC) which deals with the abolition of restrictions on movement and residence within the Community for nationals of member states with regard to establishment and the provision of services and the cases opened during the course of these submissions. The submissions warranted such consideration and to ensure that they received same I obtained from the court stenographer the full transcript thereof. I have, however, come to the conclusion that the issues and facts relevant to the issue in these proceedings relate to the activities of the defendants, their servants or agents within this State and that, consequently, the provisions of the law of the European Communities are not applicable. As they may have to be considered in some future case, I express no view as to whether or not they have or could have any effect on the rights acknowledged by Article 40, s. 3, sub-s. 3 of the Constitution. The defendants appealed to the Supreme Court pursuant to Notice of Motion dated 5th June, 1987, from the order and judgment of the High Court. The appeal was heard on the 9th, 10th, 11th and 12th February, 1988. The grounds of appeal are set out in the judgment of Finlay P. The Court dismissed the appeals and varied the order of the High Court as set out in the judgment infra . It was argued inter alia by the defendants that the proceedings should not have been entertained because they did not relate to a particular unborn person; that they sought to provide a proper counselling service and that they could not do this without providing full information; and that an abortion was an option which the client herself must raise. Paul Carney S. C. and Frank Clarke S.C. (with them Patrick Gageby ) for the first defendant referred to Attorney General v. Birmingham District Drainage Board ; Attorney General v. Harris ; Attorney General v. Bastow ; Cahill v. Sutton ; In re The Housing (Private Rented Dwellings) Bill 1981 ; Byrne v. Ireland ; Meskell v. C.I.E. ; Norris v. Attorney General ; Attorney General's Reference (No. 1 of 1975) and Thomson & Co. Ltd. v. Deakin.

David Butler S.C. and Mary Robinson S.C. (with them Adrian Hardiman ) for the second defendant referred to Norris v. Attorney General ; Attorney General's Reference (No. 1 of 1975) ; Thomson & Co. Ltd. v. Deakin ; In re The Housing [1988] 1 I.R. A.G. (S.P.U.C.) v. Open Door Counselling Ltd. 619 S.C.

Finlay C.J.

(Private Rented Dwellings) Bill, 1981 ; In re O'Kelly; Attorney General for England and Wales v. Brandon Book Publishers Ltd. ; Attorney General and Minister for Posts and Telegraphs v. Paperlink Ltd. ; The People v. Campbell ; State (Quinn) v. Ryan ; Dillon-Leetch v. Calleary ; The People v. Shaw ; The People v. O'Shea ; Tormey v. Ireland ; Bigelow v. Virginia ; Walrave & Koch v. Association Union Cycliste Internationale ; Luisi v. Ministero Del Tesoro ; CILFIT v. Italian Ministry of Health ; Procureur du Roi v. Debauve ; Moser v. Land Baden-Wrttemberg ; Van Binsbergen v. Board of Trade Association of the Engineering Industry ; Morson & Thanjan v. The Nertherlands ; R. v. Saunders ; Van Duyn v. Home Office ; Rutili v. Minister for Interior ; Brockmeulen v. Huisarts Registratie Commissie ; The State (Healy) v. Donoghue ; Campus Oil Ltd. v. Minister for Industry and Energy and Doyle v. An Taoiseach. Hugh O'Flaherty S.C. (with him James O'Reilly ) for the plaintiff in reply referred to McLoughlin v. Minister for Social Welfare ; Byrne v. Ireland ; Shannon v. Ireland ; The State (Quinn) v. Ryan ; Procureur du Roi v. Debauve ; Moser v. Land Baden-Wrttemberg ; Morson & Thanjan v. The Netherlands ; Van Binsbergen v. Board of Trade Association of the Engineering Industry ; Van Duyn v. Home Office ; Coenen v. Sociaal-Economische Raad ; Luisi v. Ministero Del Tesoro ; Fogilia v. Novello (No. 2) and Da Costa en Schaake v. The Netherlands . 16th March 1988 Finlay C.J. This is an appeal brought by the defendants against the order made by Hamilton P. in the High Court, dated the 27th April, 1987, which granted to the plaintiff a declaration that the activities of the defendants, their servants or agents, in counselling pregnant women within the jurisdiction of the court to travel abroad to obtain an abortion or to obtain further advice on abortion within that foreign jurisdiction were unlawful, having regard to the provisions of Article 40, s. 3, sub-s. 3 of the Constitution, and which restrained the defendants and each of them, their servants or agents from counselling or assisting pregnant women within the jurisdiction to obtain further advice on abortion or to obtain an abortion. The parties These proceedings were originally instituted by the Society for the Protection of Unborn Children (Ireland) Ltd. ("the Society"). The defendants each in their defence challenged the locus standi of that Society to institute the proceedings and subsequently on the 24th September, 1986, by order of the High Court, the proceedings were amended and converted into proceedings in the name of the Attorney General at the relation of the Society. Amended defences were then filed by the defendants challenging the locus standi of the Attorney General to maintain the proceedings.

[1988] 1 I.R.

A.G. (S.P.U.C.) v. Open Door Counselling Ltd.

620 S.C.

Finlay C.J.

Constitutional provision in issue The Eighth Amendment of the Constitution added to s. 3 of Article 40 of the Constitution the following sub-section:

"3 The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right." The facts The plaintiffs served, prior to the hearing, on each of the defendants a notice to admit facts and that notice coupled with the replies thereto constituted an agreed set of facts upon which the hearing in the High Court proceeded without any other oral or documentary evidence. Of these facts those material to the issues arising on this appeal with regard to each of the defendants may thus be summarised. The defendant Open Door Counselling Ltd.: 1. (a) By its servants or agents counsels in a non directive manner pregnant women resident in Ireland and the counselling takes place in Dublin. 2. (b) Abortion or termination of pregnancy may be one of the options discussed within that counselling. 3. (c) If a pregnant woman wants to consider the abortion options further, this defendant will arrange to refer her to a medical clinic in Great Britain. 4. (d) This defendant's servants or agents inspect the medical clinic in Great Britain to satisfy themselves that the clinic operates at the highest standard. 5. (e) At these clinics abortions had been performed on pregnant women who had been previously counselled by this defendant. 6. (f) Pregnant women resident in Ireland have been referred to medical clinics in Great Britain where abortions have been performed for many years, including the months of November and December 1984. With regard to the defendant Wellwoman Centre Ltd. the relevant agreed facts are as follows: 1. (a) It counsels in a non directive manner pregnant women resident in Ireland and that counselling takes place within the State. 2. (b) Abortion or termination of pregnancy may be one of the options discussed within the said counselling if the question is raised by the person seeking counselling. 3. (c) If a pregnant woman wants to consider the abortion option further, this defendant will arrange to refer her to a medical clinic in Great Britain. 4. (d) In certain circumstances this defendant may arrange the travel requirements of such pregnant woman.

[1988] 1 I.R.

A.G. (S.P.U.C.) v. Open Door Counselling Ltd.

621 S.C.

Finlay C.J.

5. (e) This defendant inspects the medical clinic in Great Britain to satisfy itself that it operates at the highest standards. 6. (f) At those medical clinics abortions have been performed on pregnant women who have been previously counselled by this defendant. 7. (g) Pregnant women resident in Ireland have been referred to medical clinics in Great Britain where abortions are performed for many years including the months of November and December, 1984. It was submitted on behalf of each of the defendants that the meaning of non directive counselling in these agreed sets of facts was that it was counselling which neither included advice nor was judgemental but that it was a service essentially directed to eliciting from the client her own appreciation of her problem and her own considered choice for its solution. This interpretation of the phrase "non directive counselling" in the context of the activities of the defendants was not disputed on their behalf. It follows from this, of course, that non directive counselling to pregnant women would never involve the actual advising of an abortion as the

preferred option but neither, of course, could it permit the giving of advice for any reason to the pregnant woman receiving such counselling against choosing to have an abortion. It was not part of the facts of this case nor of the submissions of the defendants that the service which they were providing for pregnant women in relation to the obtaining of abortion outside this jurisdiction was in any way confined to, or especially directed towards, the due regard to the equal right of life of the mother mentioned in the sub-section of the Constitution which I have already quoted, and this portion of that sub-section did not therefore arise for interpretation or decision in this case. It was submitted on behalf of each of the defendants at the hearing of the appeal that they did not consider it essential to the service which they wished to provide for pregnant women in Ireland that they should take any part in arranging the travel of such women who wished to go abroad for the purpose of having an abortion or that they should make bookings in the clinics for such women. They did, however, consider it essential to the service which they wish to provide that they should be at liberty to inform such women who wish to have an abortion outside the jurisdiction of the Court of the name, address, telephone number and method of communication with a specified clinic which they had examined and were satisfied was one which maintained a high standard. Grounds submitted on the hearing of this appeal 1. The defendants appealed against the finding of the learned President that the Attorney General had the locus standi to maintain this action on the grounds that the action did not concern any specific pregnant woman and her unborn child and by reason of that fact it was alleged that the Court should in its discretion [1988] 1 I.R. A.G. (S.P.U.C.) v. Open Door Counselling Ltd. 622 S.C.

Finlay C.J.

refuse to grant any relief to the Attorney General because by doing so it might affect the position of the mother of an unborn child who had not been heard. 2. The defendants contended that the finding by the President of the High Court on the agreed facts that the activities of the defendants constituted the counselling of and assisting of pregnant women to go abroad for the purpose of having an abortion performed was not supported by the evidence and gave insufficient weight to the real meaning of non directive counselling. 3. It was contended on behalf of the defendants that an order restraining them from providing for pregnant women the service which they had been providing would be ineffective to prevent such women obtaining an abortion abroad and was, therefore, not an order which should be made by the Court. 4. It was contended that one of the unenumerated constitutional rights was a right to receive and impart information. It was submitted that that right included a right in pregnant women within the jurisdiction to receive information about the availability of abortion outside the jurisdiction and that the Court could not make an order impeding the exercise of that constitutional right. 5. It was contended that a question arose in this case as to the interpretation of the Treaty of the European Economic Community and that a decision on that question was necessary to enable this Court to give judgment and that therefore this Court, as a court of final appeal, was bound to request the Court of Justice of the European Communities to give a ruling on that question pursuant to Article 177 of the Treaty. It was submitted that the question of interpretation of the Treaty arose in the following way. It was asserted that a pregnant woman residing in this state had a right, pursuant to Articles 59 and 60 of the Treaty, to travel to part of another member state, to wit, the United Kingdom, for the purpose of being the recipient of a service consisting of the performing of an abortion upon her. It was further asserted that a necessary corollary to that

right vested in such pregnant woman by the Treaty was the right to information about the availability of that service. On these issues I have come to the following conclusions. Locus standi The guarantee contained in Article 40, s. 3, sub-s. 3 of the Constitution by the State in its laws to respect and as far as practicable by its laws to defend and vindicate the right to life of the unborn imposes an obligation not only on the legislature but also upon the courts. The fundamental nature of this obligation on the courts and its importance is well stated in the decision of this Court in The State (Quinn) v. Ryan [1965] I.R. 70, where Dlaight dlaight C.J., at page 122, stated as follows: "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 [1988] 1 I.R. A.G. (S.P.U.C.) v. Open Door Counselling Ltd. 623 S.C.

Finlay C.J.

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 those rights at nought or circumvent them, and that the Courts' powers in this regard are as ample as the defence of the Constitution requires." If it is established to the satisfaction of the Court that the admitted activities of the defendants constitute an assistance to pregnant women within the jurisdiction to go out of the jurisdiction for the purpose of having an abortion, then that is an activity which directly threatens the right to life of the unborn, not only in a single case but in all cases of women who are assisted by those activities to have an abortion. If, therefore, the jurisdiction of the courts is invoked by a party who has a bona fide concern and interest for the protection of the constitutionally guaranteed right to life of the unborn, the courts, as the judicial organ of government of the State, would be failing in their duty as far as practicable to vindicate and defend that right if they were to refuse relief upon the grounds that no particular pregnant woman who might be affected by the making of an order was represented before the courts. I am satisfied that the Attorney General, who is the holder of a high constitutional office, is an especially appropriate person to invoke the jurisdiction of the Court in order to vindicate and defend the right to which I have referred. The defendants' appeal on the issue of locus standi must, therefore, fail. Finding that the defendants were counselling and assisting pregnant women to go abroad for the purpose of having an abortion The learned President in the course of his judgment dealt with the meaning of the word "counsel" to some extent in the context of the criminal law. He stated as follows: "A person counsels the commission of an act if before the commission of the act he/she conspires to commit it, advises its commission or knowingly gives assistance to one who may commit it . . . Counselling implies consensus but not causation and involves an intention to assist in the commission of the act. The intention to assist involves knowledge of the nature of the act to be committed and such intention to assist need not involve a desire that the act should be committed or attempted." Having so defined counselling, the learned President later in his judgment stated as follows:

"I am satisfied that the activities of both defendants, through their servants and agents amount to counselling and assisting pregnant women to travel abroad to obtain further advice on abortion and to secure an abortion." In making this finding the learned President did not indicate which of the three meanings of counselling which he had previously set out he was referring to.

[1988] 1 I.R.

A.G. (S.P.U.C.) v. Open Door Counselling Ltd.

624 S.C.

Finlay C.J.

If he intended by this finding to hold that the defendants were conspiring to procure an abortion out of the jurisdiction or were advising the procuring of an abortion outside the jurisdiction, those findings would not be supported by the evidence. I am satisfied, however, that the essential issues in this case do not in any way depend upon the plaintiff establishing that the defendants were advising or encouraging the procuring of abortions. The essential issue in this case, having regard to the nature of the guarantees contained in Article 40, s. 3, sub-s. 3 of the Constitution is the issue as to whether the defendants' admitted activities were assisting pregnant women within the jurisdiction to travel outside that jurisdiction in order to have an abortion. To put the matter in another way, the issue and the question of fact to be determined is: were they thus assisting in the destruction of the life of the unborn? I am satisfied beyond doubt that having regard to the admitted facts the defendants were assisting in the ultimate destruction of the life of the unborn by abortion in that they were helping the pregnant woman who had decided upon that option to get in touch with a clinic in Great Britain which would provide the service of abortion. It seems to me to be an inescapable conclusion that if a woman was anxious to obtain an abortion and if she was able by availing of the counselling services of one or other of the defendants to obtain the precise location, address and telephone number of, and method of communication with, a clinic in Great Britain which provided that service, put in plain language, that was knowingly helping her to attain her objective. I am, therefore, satisfied that the finding made by the learned trial judge that the defendants were assisting pregnant women to travel abroad to obtain further advice on abortion and to secure an abortion is well supported on the evidence and that, therefore, this ground of appeal must fail. Alleged ineffectiveness of the restraining order It was strenuously submitted on behalf of the defendants that if they did not provide this counselling service and, in particular, did not provide the identification, name and address of and method of communication with a properly run clinic the probability was that in many or all cases the pregnant woman concerned, who had decided upon the option of abortion, would succeed in obtaining an abortion in England, and probably in circumstances less advantageous to her health. No evidence was adduced to support this contention. There are no grounds for inferring it from any of the facts which are agreed as the basis for the trial of the action. Even if it could be established, however, it would not be a valid reason why the Court should not restrain the activities in which the defendants were engaged. The function of the courts, which is not dependent on the existence of legislation, when their jurisdiction to defend and vindicate a constitutionally [1988] 1 I.R. A.G. (S.P.U.C.) v. Open Door Counselling Ltd. 625 S.C.

Finlay C.J.

guaranteed right has been invoked, must be confined to the issues and to the parties before them.

If the Oireachtas enacts legislation to defend and vindicate a constitutionally guaranteed right it may well do so in wider terms than are necessary for the resolution of any individual case. The courts cannot take that wide approach. They are confined to dealing with the parties and issues before them. I am satisfied, therefore, that it is no answer to the making of an order restraining these defendants' activities that there may be other persons or the activities of other groups or bodies which will provide the same result as that assisted by these defendants' activities. This ground of appeal also fails. Alleged constitutional right to information about the availability of abortions outside the State. The performing of an abortion on a pregnant woman terminates the unborn life which she is carrying. Within the terms of Article 40, s. 3, sub-s. 3 it is a direct destruction of the constitutionally guaranteed right to life of that unborn child. It must follow from this that there could not be an implied and unenumerated constitutional right to information about the availability of a service of abortion outside the State which, if availed of, would have the direct consequence of destroying the expressly guaranteed constitutional right to life of the unborn. As part of the submission on this issue it was further suggested that the right to receive and give information which, it was alleged, existed and was material to this case was, though not expressly granted, impliedly referred to or involved in the right of citizens to express freely their convictions and opinions provided by Article 40, s. 6, sub-s. 1 of the Constitution, since, it was claimed, the right to express freely convictions and opinions may, under some circumstances, involve as an ancillary right the right to obtain information. I am satisfied that no right could constitutionally arise to obtain information the purpose of the obtaining of which was to defeat the constitutional right to life of the unborn child. This ground of appeal, therefore, fails. European Communities law As I have already outlined in this judgment the defendants contend that the pregnant woman who has decided within the State to have an abortion and who wishes to travel to another member state of the European Communities to be the recipient of the service of abortion has, by virtue of the provisions of Articles 59 and 60 of the E.E.C. Treaty, a right to do so.

[1988] 1 I.R.

A.G. (S.P.U.C.) v. Open Door Counselling Ltd.

626 S.C.

Finlay C.J.

They did not suggest that the order made in the High Court in this case prevented such women from travelling out of the State for the purpose of obtaining an abortion. They did assert that as a necessary corollary to that right to travel and receive the service of abortion in another member state there was a right to be given information relating to that service. Counsel for the defendants expressly conceded that the corollary right for which they contended was confined to the obtaining of information about the availability or existence of the service and could not be extended to the obtaining of assistance to avail of or receive the service. It follows from this unavoidable concession that the issue of European law raised in the pleadings does not arise in the case unless what is sought to be restrained by the plaintiff is the obtaining by a pregnant woman of information concerning the availability of the service of abortion in another member state. What is sought to be restrained in this case is in noway confined to the question of information nor does the order of the High Court in any way prevent a pregnant woman from becoming aware of the existence of abortion outside the jurisdiction. In fact what is here sought to be restrained is assistance to a pregnant woman to travel abroad and obtain the service of abortion. Since no claim is made on behalf of the defendants that that is a corollary right to whatever rights such woman may have under the Treaty, it follows that no question of the interpretation of the Treaty falls to be decided in this case for the purpose of determining the issue between the

parties. Therefore, the making of a reference to the Court of Justice of the European Communities pursuant to Article 177 of the Treaty does not arise. Having regard to this conclusion it is not necessary for me to express any view on certain issues which have arisen in the course of the submissions before this Court and I do not intend to do so. Those issues are: 1. (a) Whether there exists in the mother of an unborn child a right pursuant to the E.E.C. Treaty to travel abroad for the purpose of having an abortion, thus terminating the life of an unborn child which has been guaranteed by the Constitution. 2. (b) Whether these defendants are entitled by way of defence against the injunction sought against them to raise a right under European law which is not vested in them but in the mother of an unborn child. 3. (c) The general nature of the right to travel to another member state in order to receive cervices referred to in Articles 59 and 60 of the E.E.C. Treaty. Form of order Having regard to the difference between the interpretation of the word"counselling" in the criminal law and the interpretation of the word "counselling"in the form of non directive counselling which is part of the services which have been provided by these defendants, it seems to me that in order to avoid [198 A.G. (S.P.U.C.) v. Open Door Counselling Ltd. 8] 1 I.R. 627

Finlay C.J.; Walsh J.; Henchy J.; Griffin S.C . J.; Hederman J.

any possibility of ambiguity it would be desirable to vary to a limited extent the forms of the orders made in the High Court. I would, therefore, substitute for the declaratory order made in the High Court the following order: "The Court doth declare that the activities of the defendants, their servants or agents in assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by referral to a clinic; by the making of their travel arrangements, or by informing them of the identity and location of and method of communication with a specified clinic or clinics are unlawful, having regard to the provisions of Article 40, s. 3, sub-s. 3 of the Constitution." I would vary the order restraining the defendants so that it reads in the following terms: "And it is ordered that the defendants and each of them, their servants or agents be perpetually restrained from assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by referral to a clinic, by the making for them of travel arrangements, or by informing them of the identity and location of and the method of communication with a specified clinic or clinics or otherwise." Save for these variations in the form of the orders made, I would dismiss this appeal. Walsh J. I agree. Henchy J. I agree. Griffin J. I agree. Hederman J.

I agree. Solicitors for the plaintiff: Collins Crowley & Co. Solicitors for the first defendant: Amorys. Solicitors for the second defendant: Barbara Hussey & Co. Eithne Casey, B.L. [1988] I.R. 593

1937 41 JC H. M. Advocate v. Semple No. 7. HIGH COURT. 23 February 1937 Lord Justice-Clerk. Ld. Fleming. Ld. Moncrieff. HIS MAJESTY'S ADVOCATE . Sol.-Gen. ReidJ. W. Johnston, A.-D. JOHN SEMPLE , Panel . Cameron, K. C.Williamson. CrimeProcuring abortionAttempt to procure abortionSupplying powders to pregnant woman and instigating her to take them with intent to cause abortionPowders not stated to be noxiousRelevancy. CrimeProcuring abortionActing with intent to procure abortionSupplying powders to woman and instigating her to take them with intent to cause abortionNo statement that woman was pregnantRelevancy. CrimeProcuring abortionAttempt to procure abortionSupplying drugsDrugs known to supplier to be incapable of causing abortion. An indictment set forth that the accused supplied a number of powders, whose nature was unknown to the prosecutor, to a woman who was then pregnant, with intent to cause her to abort, and instigated her to take them, which she did, and that the accused attempted to cause the woman to abort. A further charge regarding another woman set forth that the powders were supplied in the belief that the woman was pregnant, and that this was done with intent to cause her to abort. Held that the first charge was relevant in respect (1) that the statement that the accused had supplied powders to a pregnant woman and instigated their consumption was a relevant averment of an attempt to procure abortion; (2) that it was unnecessary to state that the powders were calculated to cause abortion, if they were supplied with that intent; and (3) that it was unnecessary to aver the locus where the powders were consumed. Held further that the second charge was irrelevant, in respect that it did not state that the woman was pregnant, and that supplying powders to, and instigating their consumption by, a woman who was not pregnant did not per se constitute a crime known to the law of Scotland. H. M. Advocate v. Anderson , 1928 J. C. 1,approved . At the trial direction to the jury by Lord Robertson that, if the accused knew positively that the drugs he was giving would not cause abortion, he could not be convicted of the crime of attempting to procure abortion. John Semple was charged on an indictment at the instance of His Majesty's Advocate, containing a number of charges, of which the following were typical:"(1) That you John Semple did, on

or about 20th November 1935, at the premises occupied by you at Glasgow, supply to [a woman], she being then pregnant, a number of powders and pessaries, the nature of which is to the prosecutor unknown, with intent to cause her to abort, and did instigate and cause her to take and use the same, which she did, and thereafter between 1st December 1935 and 27th December 1935, both dates inclusive, on the representations by the said [woman] made to you that she had consumed the said powders and used the said pessaries without effect, you did successively between said last-mentioned dates, she being still then pregnant, at and Glasgow aforesaid, supply to her further powders and a quantity of liquid

1937 42 JC H. M. Advocate v. Semple. preparation, the nature of which is to the prosecutor unknown, with intent to cause her to abort, and did instigate and cause her to take the same, which she did, in accordance with your instructions, and you did attempt to cause her to abort." "(6) That you John Semple did, on or about 1st February 1935, at Glasgow and Perthshire supply to [a woman] in the belief that she was then pregnant, a number of powders and pessaries, the nature of which is to the prosecutor unknown, with intent to cause her to abort, and did instigate and cause her to take and use the same, which she did, and thereafter between 1st February 1935 and 30th April 1935, both dates inclusive, on the representations by the said [woman] made to you that she had consumed the said powders and used the said pessaries without effect, you did successively between said last-mentioned dates, in the belief that she was still then pregnant, at at and at aforesaid, supply to her a number of pills, a further quantity of powders and a quantity of liquid preparation, the nature of which is to the prosecutor unknown, with intent to cause her to abort, and did instigate and cause her to take the same, which she did, in accordance with your instructions, and this you did with intent to cause her to abort." The accused, who pleaded not guilty, stated objections to the relevancy of the indictment, and the case was heard before the High Court (consisting of the Lord Justice-Clerk, Lord Fleming and Lord Moncrieff) on 24th November 1936. Argued for the panel;The indictment was irrelevant. (1) It was not an offence merely to supply drugs to a woman, unless the accused administered them, which was not charged in this case. Mere supplying could not be an offence, unless it was an offence for a woman to cause herself to abort, which had never been decided.1 (2) In order to make a relevant indictment it must be stated that the drugs supplied were calculated to cause abortion. A charge of supplying unknown drugs with intent to cause abortion was not sufficient.2 (3) The offence charged was not completed until the drugs were consumed,3 and, accordingly, the indictment should have stated that they were consumed within the jurisdiction of the Court. (4) In any event charge (6) was irrelevant in respect that it was not stated that the woman was pregnant. It was not an offence to supply drugs to a woman who was not pregnant.4 [Counsel also argued that certain of the charges 1 Alison, Criminal Law, vol. i, p. 628; Burnett, Criminal Law, p. 5; Hume on Crimes, vol. i, p. 186; Macdonald, Criminal Law, (4th ed.) p. 161; Anderson, Criminal Law, (2nd ed.) p. 156; Maclaurin's Arguments and Decisions, p. 759; H. M. Advocate v. Webster , (1858) 3 Irvine, 95. 2 H. M. Advocate v. Graham , (1897) 2 Adam, 412; H. M. Advocate v. Reid , (1858) 3 Irvine, 235; H. M. Advocate v. Coggans , (1905) 8 F. (J.) 109, 4 Adam, 635; Macdonald, Criminal Law, (4th ed.) p. 5. 3 H. M. Advocate v. Baxter , (1908) 5 Adam, 609. H. M. Advocate v. Craig and Brown (1932), unreported, was also referred to.

4 H. M. Advocate v. Anderson , 1928 J. C. 1.

1937 43 JC H. M. Advocate v. Semple. were lacking in specification.] The objections to the relevancy should be sustained. Argued for the Crown;The indictment was relevant. (1) The panel was charged, not merely with supplying drugs to procure abortion, but with instigating the women to whom they were supplied to take them. That was a relevant charge of attempting to procure abortion.1 (2) It was unnecessary to state, or to prove, that the drugs supplied were effective to cause abortion. It was enough that the panel supplied them with that intent. (3) Charge (6) was not rendered irrelevant by the fact that the woman was not alleged to have been pregnant. In order to warrant a conviction of attempt to commit a crime it was not necessary to show that the accomplishment of the attempt was physically possible.2 The objections to the relevancy of the indictment should, accordingly, be repelled. LORD JUSTICE-CLERK (Aitchison).This is an indictment which sets out eleven separate charges. All the charges, with the exception of charge 2, relate solely to the panel John Semple. No objection is taken to the relevancy of Charge 2. Objections are taken to the relevancy of the other charges, which fall into two groups. Charges 1, 3, 4, 5, 8, 9, 10 and 11 are in substantially the same position, and charges 6 and 7 raise the same question as the other charges, but they also raise an additional question. Now, taking charge 1, which may be taken as typical of the first group of charges, it is as followsI do not read it at length, but I read it in summarythat you John Semple did on or about 20th November 1935, at premises libelled, supply to the woman named in the indictment, she being then pregnant, a number of powders and pessaries, the nature of which is to the prosecutor unknown, with intent to cause her to abort, and did instigate and cause her to take and use the same, which she did: and thereafter on representations made to you by the said woman that the powders and the pessaries had been without effect, you did between certain dates libelled supply to her, she being still then pregnant, further powders and a quantity of liquid preparation, the nature of which is to the prosecutor unknown, with intent to cause her to abort, and did instigate and cause her to take the same, which she did, in accordance with your instructions; and then the charge concludes, "and you did attempt to cause her to abort." It is maintained by counsel for the panel that this does not set forth the crime of attempted abortion as known to the law of Scotland. Before there can be a relevant charge of procuring abortion, or of the lesser crime of attempting to procure abortion, it must appear on the face of the libel that the person charged has had a hand in the actual commission of the crime, whether it be the full crime or attempt only. It is not necessary either to the full crime, or to the attempt to commit 1 Hume on Crimes, vol. i, p. 186 (and case of Marion Kempt (1627) there referred to) and p. 278. 2 Lamont v. Strathern , 1933 J. C. 33; Russell on Crimes, (8th ed.) vol. i, p. 786.

1937 44 JC H. M. Advocate v. Semple. Lord Justice-Clerk. the full crime, or to the relevancy of the libel in either case, that it should appear that the panel has taken an active part at every stage of the commission of the crime; it is enough to show participation in the crime if the libel sets out that the panel has furnished the instruments with which the full crime, or the attempt, as the case may be, is committed, with the intention that

they should be used for the criminal purpose for which they are in fact used. The fact of use must, of course, be libelled, as it is in this case. In this relation no distinction can properly be drawn between the furnishing of a mechanical instrument, such as a catheter or probe, and the furnishing of a chemical instrument such as a drug or other medicinal substance. Now, applying these general principles to the libel as set out in charge 1, the facts alleged by the Crown plainly amount to the crime of attempting to procure abortion. The charge sets out these facts: first, the fact of pregnancy; second, the supplying by the panel of powders and pessaries with intent to cause abortion; third, the instigation of the woman to take and use them; fourth, the fact that they were used; fifth, the fact that representations were made that they were ineffectual; sixth, the supply by the panel of further powders and a liquid preparation; seventh, further instigation and further use; and it is said that what was done by the panel was with intent on his part to bring about an abortion. Now, if these facts are proved they point to such an active participation by the panel in the effort to cause the woman to abort as will amount to the crime of attempt to procure abortion as understood in our law. It is right to deal specifically with some of the points that were specially urged by counsel for the panel. It was pointed out by counsel that the modus libelled in charge 1 is supply and not administration, and it was said that supply by itself does not amount to a crime. Of course supply by itself does not amount to a crime, but here it is coupled with use, and the distinction between supply and administration does not appear to me to be material in a case where the supply is closely related to the use by words of instigation or by some act of instigation on the part of the panel, which is what is set out in this libel. The next objection taken by counsel was that it was not libelled that the powders and pessaries supplied were noxious. That, in my view, is unnecessary if what was supplied was calculated, in the belief of the panel, to procure abortion. Now, that is clearly implied in the words of the indictment that what the panel did was done "with intent to cause her to abort." I cannot attach any meaning to these words "with intent to cause her to abort." if they do not postulate a belief in the mind of the panel that what he was supplying was something which was calculated to cause an abortion to take place. The third objection taken by counsel was this: it was said that the charge did not set out any locus within Scotland where use was made of what was supplied. Now, it is no doubt true that if there is no use of the drug supplied there can be no crime, but then it does not follow that, if there is use, the attempt only began with the use. I think the

1937 45 JC H. M. Advocate v. Semple. Lord Justice-Clerk. correct view is that, if there is use, the attempt to procure abortion began with the supply of the drug with the intention that it should be used. The locus of the supply is libelled in each case as being in Glasgow. Accordingly, I do not think there is any real substance in that point. If your Lordships are in agreement with the view I have expressed, then charge 1 is a relevant charge. That will rule all the charges with the exception of charges 6 and 7; but before coming to these I should mention a point which was taken upon charge 5 and which is also taken upon charge 11. It refers to the representations said to have been made to the panel, and the libel reads, "On the representations made by and on behalf of" the said woman named. Now, I think it might have been better if the Crown in these charges had, in the case where the representations were not made directly by the woman named but on her behalf, set out the person or persons by whom they were made, but then the words "on behalf of" are really intended to cover the case where the representations were made by some messengers or other persons, representing the woman named, whose names appear as witnesses in the indictment, and I am not prepared to say that these charges are irrelevant as being wanting in specification because the Crown has not set out the names in the libel.

That leaves charges 6 and 7, which, in addition to the first point generally ruled, raise a point by themselves. I take charge 6 as typical. It sets out that the panel did on the date libelled supply to the woman named a number of powders and pessaries, the nature of which was to the prosecutor unknown, in the belief that she was then pregnant, with intent to cause her to abort, and then the libel sets out instigation and use as before, and then representations made to the panel by the woman that what had been supplied to her had been without effect, and a further supply, and so on, and then the charge concludes, "and this you did with intent to cause her to abort." Now, I think it is quite plain that an attempt to procure abortion is not libelled in this charge. I think it was rightly not libelled, because it is an essential element of the crime of attempting to procure abortion that there be something to abort; in other words, the woman must be pregnant. We were referred to the case of Anderson .1 In that case, upon a libel which did not set out that the woman was pregnant, but merely, as here, that the panel did certain things in the belief that she was pregnant, Lord Anderson held the libel to be irrelevant, but there the charge was laid as a charge of attempting to procure abortion. I have not the slightest doubt that Lord Anderson was right in holding, on the terms of the libel with which he had to deal, that it did not set out the crime of attempt to procure abortion. Now, in this case the Crown has not libelled pregnancy, only a belief in the mind of the panel that the woman was pregnant, and it is said that what was done was done in that belief and with the intent to cause an abortion. In my judgment, that does not disclose a crime as the law of Scotland at present stands. It may be 1 1928 J. C. 1.

1937 46 JC H. M. Advocate v. Semple. Lord Justice-Clerk. reprehensible conduct; it may be injurious to private and public morality; it may be conduct which ought to be criminal conduct; but that will not make it a crime by the law of Scotland. We were referred to no case in which a charge of this kind has been sustained as a relevant charge. The matter is not free from difficulty, but I think we ought not to declare new offences in this branch of the law. If that is to be done, it should, in my view, be done by the Legislature. But I wish to reserve my opinion as to whether there might not have been a crime if what was done had caused death or injury to the woman. In such a case different considerations might apply, especially if the death or injury arose from want of skill or any degree of negligence. I take such a case to be reserved. Upon the whole matter, I move your Lordships that we sustain the plea of the panel with regard to the relevancy of charges 6 and 7 in the libel; that quoad ultra we repel the objections to the relevancy; and that, with the exception of charges 6 and 7, we remit the libel to the knowledge of an assize. LORD FLEMING .The first question which arises here is whether there is a relevant allegation of any criminal offence against the accused John Semple under charge 1 and the other charges in similar terms. The crime libelled in these charges is attempt to procure abortion. That is of course a criminal offence; but it is contended for the accused that the species facti set out in the indictment is not sufficient, if proved, to infer the accused's guilt of that offence. What then are the material averments? It is alleged, in the first place, that the woman to whom the powders and pessaries were supplied by the accused was pregnant. I agree with the view which has been expressed by the institutional writers that a pregnant woman may be guilty of the crime of procuring abortion of her unborn child. If that view is right, she may now also be found guilty of attempt to procure abortionCriminal Procedure (Scotland) Act, 1887, section 61.1 Under this indictment I think the Crown will be entitled to prove that the woman by using these powders and pessaries attempted to procure abortion of her own child. The question then comes to be whether there are averments sufficient to infer the guilt of the accused by accession. The

allegations by which the Crown seeks to associate the accused with the attempt which it is averred was made by the woman herself are that he supplied her with powders and pessaries with the intention of causing her to abort, and that he instigated and caused her to take and use them. The Crown's case, accordingly, is that he knowingly supplied her with the means of committing a particular crime, viz., abortion of her own unborn child, and instigated her to commit that crime, and that she attempted to do so by using the means which he had supplied. In my opinion, such a species facti constitutes a relevant charge of the crime of attempting to procure abortion. 1 50 and 51 Vict. cap. 35.

1937 47 JC H. M. Advocate v. Semple. Ld. Fleming. It was, however, also maintained by counsel for the accused that the charges were irrelevant, because there, was no specification of the nature of the powders and pessaries, and it was not alleged that they were calculated to cause abortion. The Crown says the nature of those things was unknown to the prosecutor; and, in my opinion, the objection otherwise is completely met by the words used in the indictment "with intent to cause her to abort." These words seem to me to involve at least two things. They involve that the accused believed that the woman to whom he supplied the powders and pessaries was pregnant, and that the things supplied to her were calculated to procure abortion. If that was his state of mind, then it seems to me that all the essential elements of criminal responsibility are set out in these charges and that this objection to their relevancy also fails. There are two subsidiary points which arise with regard to the sufficiency of the specification in some of the charges, and I content myself with saying that I concur entirely with what the Lord Justice-Clerk has said with regard to these points. As regards charges 6 and 7, a question of considerable novelty and difficulty arises. These charges are not libelled as attempts to procure abortion. Under them the charge against the accused is that he supplied a woman whom he believed to be pregnant with powders and pessaries with intent to cause her to abort, and instigated her to take and use them, which she did. It is not alleged that the woman was in fact pregnant, or that the powders and pessaries were noxious or calculated to endanger health or life, or that the woman suffered any harm from taking them. Admittedly there is no recorded case in which the relevancy of a charge in such terms has been sustained, and, with the possible exception of a dictum by the late Lord Sands, we were not referred to any passage in any judgment or text-book which supports it. To hold it to be relevant would be to extend criminal responsibility beyond what has hitherto been recognised in the law of Scotland. That is within our powers, and I do not doubt that conduct such as is here alleged would generally be regarded as morally reprehensible. But important questions of general public policy are involved, and, if the law is to be extended beyond what has been hitherto understood, I think it is expedient that such extension should have the authority of the Legislature. LORD MONCRIEFF .I am of the same opinion. The first charge, as also the related group of charges, is of having taken part in an attempt to procure abortion; and the modus of the completion of the crime which is charged against the panel John Semple is by supplying to a pregnant woman certain powders, pessaries and liquids, of the nature of which no more is said than that this is to the prosecutor unknown. If the charge had ended at this point there would, accordingly, be unanswerable force in the challenge of its relevancy. Before the supplying of powders, pessaries or liquids can be related to an attempt to procure abortion, it of course must be made clear in what way the

1937 48 JC H. M. Advocate v. Semple. Ld. Moncrieff. administration of these articles would be of effect in producing the desired result. In the English statute it has been found proper to charge such a crime by describing the articles under the term "noxious," and associating them with an intent on the part of the person supplying them to procure abortion. In this indictment a similar intent is charged in terms against the panel, but the epithet "noxious" is not used. I regard that as a distinction without a difference. If articles are supplied to a pregnant woman with an intent to cause her to abort, this fixes against the person who supplies her a guilty knowledge, or at least a guilty assertion, which bars him from denying that the supplying of the articles was in fact directed towards that end. Nevertheless, supposing the supply and the intent had alone been charged and no later history referred to in the indictment, that might not per se have made a relevant charge of crime. The mere supply of such an article if it be not used, and the supply of which is not related to its eventual use, would not infer participation in any subsequent criminal act. But, in my opinion, the gap is adequately filled in this indictment by the statement that these articles, being articles supplied with this intent, were articles which the panel "did instigate and cause" the pregnant woman to take and use. I regard such instigation as a sufficient link between the supply and the subsequent use of the articles, which, as is stated, was made by the woman herself. I agree with Lord Fleming in holding, on the authority of the institutional writers and upon my own understanding of principle, that such an act of assailing an unborn child may be charged against an expectant mother herself as well as against a third party; and, when I find that the indictment narrates not only an original supply but a further supply given to the same woman at a later visit, upon her representation of the failure of effect of the articles first supplied, I find a wholly relevant association of the panel with the woman herself as art and part in an attempt to complete the crime. I agree with your Lordship as regards the question of the naming of the representative of the pregnant woman in the 5th and 11th charges, and also as to the offence having already been complete, quoad the action of the panel, as soon as the supply of the articles was made, although criminal responsibility in respect of such offences may only have attached to him from the time when the act which gave effect to his offence was completed by his partner and victim. Turning now to the other charges, which are charges merely of intent in contrast with attempt to commit a crime, I agree with your Lordships in recognising that, if we were here concerned with an offence against the moral law in place of with a breach of the criminal code, a trespass, and indeed a very serious trespass, must be found to have been charged. In sustaining the jurisdiction of the Criminal Courts, however, an entirely different question arises for decision. Moral turpitude is notper se a criminal offence. The acts charged against the panel in these heads of the indictment are not related to any attempt to procure abortion, but are only related to a guilty intent to complete

1937 49 JC H. M. Advocate v. Semple. Ld. Moncrieff. that act. Apart from that intent, the acts charged, as was admitted by the Solicitor-General, would carry no taint of crime. To give medical supplies to a woman who is not stated to be pregnant, when there is no statement that danger has been incurred or that injury has resulted to the woman, is not per se a criminal act, nor does such an act, in my opinion, become criminal by reason only of a delinquent motive. It might quite possibly be regarded as salutary if the Legislature should intervene, as in the English statute, to enact that such practices should hereafter be recognised as criminal. Such a step would result, however, in introducing a new crime, and not merely in recognising an existing crime; and would, accordingly, be beyond the competence of a judicial as contrasted with a legislative act.

The Court sustained the objection to the relevancy of charges (6) and (7); and quoad ultra repelled the objections to the relevancy of the indictment. R. H. James , S.S.C., Crown AgentAllan M'Dougall & Co. , S.S.C. The accused was tried before Lord Robertson and a jury at a sitting of the High Court in Glasgow on 23rd February 1937, when the parties were represented by the following counsel: HIS MAJESTY'S ADVOCATE . J. Walker, A.-D. M`Larty. JOHN SEMPLE , Panel. MacLean, K.C.G. S.Reid. At the conclusion of the judge's charge a juryman asked the following question: The Juryman .If the powders and pessaries were sold by the accused and it was stated by him to any customers that they may have the effect of procuring abortion, but knowing himself they could never have that effectthat the powders and pessaries, as he gathered, were practically harmlessdoes the charge now stand as we have it here in the charge? LORD ROBERTSON .You have raised a point of some difficulty and of great importance, if I may say so, and my direction upon that is to this effect: If the accused supplied medicines or pessaries, or whatever it is, knowing that they would not cause abortionknowing that definitely, although he may have told the women that they would cause abortionthen he cannot be convicted of the crime of attempting to procure abortion. He may be guilty of the crime of defrauding the women, but that is a different thing. On the other hand, while that is the situation, you will, of course, have to bear in mind in this connexion that, however harmless in one sense drugs of this kind may be, there is a certain amount of medical evidence as to the possibility of abortion arising, in relation to certain women at any rate, from very slight causes; so that it may or may not be difficult for you to hold that the accused knew positively that they would not cause abortion. If he knew positively that the drugs he was giving would not cause abortion, then it would be quite wrong to convict him of attempting to procure abortion, although he may be guilty of some different crime. The Panel was found guilty of certain of the charges, and sentenced. R. H. James , S.S.C., Crown AgentM. D. Peden. [1937] JC 41

Decisions APPLICATION No 8416/79 X v. /the UNITED KINGDOM DECISION of 13 May 1980 on the admissibility of the application Article 2, paragraph 1 of the Convention 1. a. The word "everyone's" seems not to be applicable to an unborn child. 2. b. Assuming that the right to life is secured to a foetus from the beginning of pregnancy, this right is subject to an implied limitation allowing pregnancy to be terminated in order to protect the mothers life or health. Article 8, paragraph 1, of the Convention : Since the continuance or termination of pregnancy principally raises a question of a woman's right to respect for her private life, a prospective father's right to respect for his family life does not extend to a right to be consulted on, or to seize the authorities of, the question of a proposed termination of pregnancy by his wife. Article 8, paragraph 2, of the Convention : In so far as termination of a pregnancy on health grounds may constitute an interference with the prospective father's right to respect for his family life, it can be considered as being justified as necessary for the protection of the rights of others.

Article 25 of the Convention : A prospective father who complains that his wife has been able legally to terminate her pregnancy without his consent may claim to be the victim of an alleged violation of the Convention. THE FACTS 1. The applicant is a citizen of the United Kingdom born in 1944. He is a steel worker by profession. The applicant is represented by MM. Berkson and Berkson, solicitors at Birkenhead, Merseyside. 2. From his statements and the documents submitted by the applicant it appears that he was married to Y. on 10 October 1974. On 12 May 1978 he was told by his wife that she was eight weeks pregnant and intended to have an abortion. On 17 May 1978 the applicant applied to the High Court of Justice for an injunction to prevent the abortion from being carried out. The original defendants to the application were Dr K., the manager of the M. Nursing Home at which two doctors had given certificates in accordance with Section 1 of the Abortion Act 1967 (hereinafter called the "1967 Act"), and the applicant's wife. 3. Section 1 (1) of the 1967 Act permits the termination of a pregnancy by a registered medical practitioner if two registered medical practitioners find : a. that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated ; or b. that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped. The certificate in the present case was issued under paragraph (a) (injury to the physical or mental health of the pregnant woman).1 4. The application was heard and decided by Sir B., the President of the Family Division of the High Court of Justice, sitting at L. on 24 May 1978. At the hearing leave was granted to amend the writ by deleting Dr K. and by adding as defendants the trustees and director of the British Pregnancy Advisory Service, by which the M. Nursing Home was owned and operated. 5. In his oral submissions counsel for the applicant conceded that the 1967 Act had been complied with. 6. As to the question whether, in English law, the unborn child has a right to life, which could be invoked by the father, reference was inter alia made, on the one hand, to Roman law, where abortion without the father's consent was a crime, and, on the other, to the United States Supreme Court's decision in Planned Parenthood of Central Missouri v. Danforth A.G. where the Court, by a majority, held that the State of Missouri "may not constitutionally require the consent of the spouse as a condition for an abortion" Counsel for the applicant observed : "I do not pretend to be, by size of shape or feat, a 'Foetal Advocate', but I have endeavoured, whilst I have been developing the submissions to your Lordship, to look at it in that context. If the foetus has some kind of right to have its life preserved it might be possible to spell out of that a derivative right in the father. Everything is against that particular notion. It comes to this : the Supreme Court's decision has got to be wrong, admittedly although they are in a different jurisdiction in dealing with different principles. The fact a man has got a right to father children, in the face of the Abortion Act does not entitle him to cause a wife whose health may be at risk to bear that risk and produce a child. The fact he has got some interest in the child has been urged by some of the authorities both in the Commonwealth and in America, but in this country they are against any such notion." 7. The President dismissed the application. He stated that an injunction could be granted only to restrain the infringement of a legal right ; that in English law the foetus has not legal rights until it is born and has a separate
1

In an affidavit submitted to the High Court the applicant's wife stated inter alia : "My marriage was increasingly unhappy and has broken down irretrievably. I left the plaintiff on legal

advice as I feared for any safety and we live apart and in future I will live as a single woman Because of the plaintiff's behaviour life with him became increasingly impossible and my health suffered and I am receiving treatment from my doctor I could not cope and I verily believe that for months I have been close to a nervous breakdown." existence from its mother ; and that the father of a foetus, whether or not he is married to the mother, has no legal right to prevent the mother from having an abortion or to be consulted or informed about a proposed abortion, if the provisions of the 1967 Act have been complied with. 8. The abortion was carried out within hours of the dismissal of the application. COMPLAINTS The applicant contends that the Law of England and Wales violates : 1. Articles 2 and/or 5 of the Convention in that it allows abortion at all, and/or that it denies the foetus any legal rights ; and/or 2. Articles 6 and/or 8 and/or 9 of the Convention in that, if the provisions of the 1967 Act are complied with, it denies the father of a foetus, whether or not he is married to the mother : 1. a. a right to object to a proposed abortion of the foetus ; and/or 2. b. a right to apply to the Courts for an order to prevent or postpone the proposed abortion ; and/or 3. c. a right to be consulted about the proposed abortion ; and/or 4. d. a right to be informed about the proposed abortion ; and/or 5. e. a right to demand, in a case where registered medical petitioners have given certificates under Section 1 of the 1967 Act, that the mother be examined by a different registered medical practitioner or practitioners appointed by the father or by and upon his application to a designated court, tribunal or other body ; and/or 6. f. a right to demand that the registered medical practitioners, who examine the mother to decide whether or not to give certificates under Section 1 of the 1967 Act, should be independent of the institution or organisation at or by which the abortion will be carried out should such certificates be given. The applicant states that it is the object of his petition "to obtain the opinion of the European Court and the Commission of Human Rights upon the (above) conventions" and "to secure such amendments of the law of England and Wales as may be necessary to remove such violations of the Convention that the Court and Commission may find presently exist." The applicant finally submits with regard to Article 26 of the Convention (exhaustion of domestic remedies) that his application to the High Court "was for an injunction. An abortion having been carried out on Mrs Y. within hours of the dismissal of the application, it was not legally possible to pursue the application further. An injunction is (not) an equitable remedy. It is a maxim of equity that equity does nothing in vain. Accordingly, the dismissal of the application on 24 May 1978 by the President of the Family Division of the High Court of Justice marked the exhaustion of the applicant's domestic remedies." THE LAW 1. The applicant complains of the refusal, by the High Court of Justice, of his application for an injunction to prevent the termination of his wife's pregnancy. He submits that the Abortion Act 1967, under which this abortion was authorised and eventually carried out, violates Articles 2 and/or 5, 6, 8 and 9 of the Convention. 2. The Commission accepts that the applicant, as potential father, was so closely affected by the termination of his wife's pregnancy that he may claim to be a "victim", within the meaning of Article 25 of the Convention, of the legislation complained of, as applied in the present case. The Commission here refers to its decision on the admissibility of Application No. 2758/66, X. v. Belgium, Collection of Decisions 30, 11 - Yearbook on the European Convention on Human Rights 12, 175. The applicant in that case, a widow, complained that her husband had been killed in violation of Article 2 of the Convention, and the Commission assumed by implication that, for the purpose of that complaint, she fulfilled the "victim" condition of Article 25. The Commission

further recalls that, in Application No. 5961/72, Amekrane v. the United Kingdom, Collection 44, 101 - Yearbook 16, 356, it accepted, again by implication, that the widow and the children of Mohamed Amekrane could claim to be "victims" not only under Article 8, but also under Articles 3 and 5 of the Convention of the measures taken against their late husband and father. 3. The Commission also accepts that the present applicant, by his unsuccessful application to the High Court for an injunction, has exhausted the only available "domestic remedy" in the sense of Article 26 of the Convention. 4. The Commission, therefore, has to examine whether this application discloses any appearance of a violation of the provisions of the Convention 'invoked by the applicant, in particular Articles 2 and 8. It here recalls that the abortion law of High Contracting Parties to the Convention has so far been the subject of several applications under Article 25. The applicants either alleged that the legislation concerned violated the ( unborn child's) right to life (Article 2) or they claimed that it constituted an unjustified interference with the (parents') right to respect for private life (Article 8). Two applications invoking Article 2 were declared inadmissible by the Commission on the ground that the applicants in the absence of any measure of abortion affecting them by reason of a close link with the foetus could not claim to be "victims" of the abortion laws complained of (Application No. 867/60, X. v. Norway, Collection 6, Yearbook 4, 270, and Application No. 7045/75, X. v. Austria, Decisions and Reports 7, 87). One application (No. 6959/75 Brggemann and Scheuten v. the Federal Republic of Germany), invoking Article 8, was declared admissible by the Commission, insofar as it had been brought by two women. The Commission, and subsequently the Committee of Ministers, concluded that there was no breach of Article 8 (Decisions and Reports 10, 100-122). That conclusion was based on an interpretation of Article 8 which, inter alia , took into account the High Contracting Parties' law on abortion as applied at the time when the Convention entered into force (ibid. p. 117, para. 64 of the Commission's Report). 5. The question whether the unborn child is covered by Article 2 was expressly left open in Application No. 6959/75 (loc. cit. page 116, paragraph 60 of the Report) and has not yet been considered by the Commission in any other case. It has, however, been the subject of proceedings before the Constitutional Court of Austria, a High Contracting State in which the Convention has the rank of constitutional law. In those proceedings the Austrian Constitutional Court, noting the different views expressed on this question in legal writings, found that Article 2, paragraph 1, first sentence, interpreted in the context of Article 2, paragraphs 1 and 2, does not cover the unborn life (Decision of 11 October 1974, Erk. Slg, (Collection of Decisions) No. 7400, EuGRZ (Europische Grundrechtezeitschrift) 1975, p.74). 6. Article 2, paragraph 1, first sentence, provides "Everyone's right to life shall be protected by law" (in the French text "Le droit de toute personne la vie est protg par la loi"). The Commission, in its interpretation of this clause and, in particular, of the terms "everyone" and "life", has examined the ordinary meaning of the provision in the context both of Article 2 and of the Convention as a whole, taking into account the object and purpose of the Convention. 7. The Commission first notes that the term "everyone" ("toute personne") is not defined in the Convention. It appears in Article 1 and in Section I, apart from Article 2, paragraph 1, in Articles 5, 6, 8 to 11 and 13. In nearly all these instances the use of the word is such that it can apply only postnatality. None indicates clearly that it has any possible prenatal application, although such application in a rare case eg under Article 6, paragraph 1 cannot be entirely excluded. 8. As regards, more particularly, Article 2, it contains the following limitations of "everyone's" right to life enounced in the first sentence of paragraph 1 : 1. a clause permitting the death penalty in paragraph 1, second sentence : "No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law" ; and

2. the provision, in paragraph 2, that deprivation of life shall not be regarded as inflicted in contravention of Article 2 when it results from "the use of force which is more than absolutely necessary" in the following three cases : "in defence of any person from unlawful violence" : "in order to effect a lawful arrest or to prevent the escape of a person lawfully detained" ; "in action lawfully taken for the purpose of quelling a riot or insurrection". All the above limitations, by their nature, concern persons already born and cannot be applied to the foetus. 9. Thus both the general usage of the term "everyone" ("toute personne") in the Convention (paragraph 7 above) and the context in which this term is employed in Article 2 (paragraph 8 above) tend to support the view that it does not include the unborn. 10. The Commission has next examined, in the light of the above considerations, whether the term "life" in Article 2, paragraph 1, first sentence, is to be interpreted as covering only the life of persons already born or also the " unborn life" of the foetus. The Commission notes that the term "life", too, is not defined in the Convention. 11. It further observes that another, more recent international instrument for the protection of human rights, the American Convention on Human Rights of 1969, contains in Article 4, paragraph 1, first and second sentences, the following provisions expressly extending the right to life to the unborn : "Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception." The Commission notes that no such express extension is contained in Article 2 of the European Convention on Human Rights. 12. The Commission is aware of the wide divergence of thinking on the

question of where life begins. While some believe that it starts already with conception others tend to focus upon the moment of nidation, upon the point that the foetus becomes "viable", or upon live birth.
13. The German Federal Constitutional Court, when interpreting the provision "Everyone has a right to life" in Article 2 (2) of the Basic Law, stated as follows (judgment of 25 February 1975, Appendix VI to the Commission's Report in the Brggemann and Scheuten Case, C I 1 b of the grounds) :

"Life in the sense of the historical existence of a human individual exists according to established biological and physiological knowledge at least from the 14th day after conception (Nidation, Individuation) The process of development beginning from this point is a
continuous one so that no sharp divisions or exact distinction between the various stages of development of human life can be made. It does not end at birth ; for example, the

particular type of consciousness peculiar to the human personality only appears a considerable time after the birth. The protection
conferred by Article 2.2 first sentence of the Basic Law can therefore be limited neither to the 'complete' person after birth not to the foetus capable of

independent existence prior to birth. The right to life is guaranteed to every one who 'lives' ; in this context no distinction can be made between the various stages of developing life before birth or between born and unborn children. 'Everyone' in the meaning of

Article 2.2 of the Basic Law is 'every living human being', in other words : every human individual possessing life ; 'everyone' therefore includes unborn human beings."
14. The Commission also notes that, in a case arising under the Constitution of the United States (Roe v. Wade, 410 U.S. 113), the State of Texas argued before the Supreme Court that, in general, life begins at conception and is present throughout pregnancy. The Court, while not resolving the difficult question where life begins, found that, "with respect to the State's important and legitimate interest in potential life, the 'compelling' point is at viability". 15. The Commission finally recalls the decision of the Austrian Constitutional Court mentioned at paragraph 5 above which, while also given in the framework of constitutional litigation, had to apply, like the Commission in the present case, Article 2 of the European Convention on Human Rights. 16. The Commission considers with the Austrian Constitutional Court that, in interpreting the scope of the term "life" in Article 2.1, first sentence, of the Convention, particular regard must be had to the context of the Article as a whole. It also observes that the term "life" may be subject to different interpretations in different legal instruments, depending on the context in which it is used in the instrument concerned. 17. The Commission has already noted, when discussing the meaning of the term "everyone" in Article 2 (para. 8 above), that the limitations, in paragraphs 1 and 2 of the Article, of "everyone's" right to "life", by their nature, concern persons already born and cannot be applied to the foetus. The Commission must therefore examine whether Article 2, in the absence of any express limitation concerning the foetus, is to be interpreted : as not covering the foetus at all ; as recognising a "right to life" of the foetus with certain implied limitations ; or as recognising an absolute "right to life" of the foetus. 18. The Commission has first considered whether Article 2 is to be construed as recognising an absolute "right to life" of the foetus and has excluded such an interpretation on the following grounds. 19. The "life" of the foetus is intimately connected with, and it cannot be regarded in isolation of, the life of the pregnant woman. If Article 2 were held to cover the foetus and its protection under this Article were, in the absence of any express limitation, seen as absolute, an abortion would have to be considered as prohibited even where the continuance of the pregnancy would involve a serious risk to the life of the pregnant woman. This would mean that the " unborn life" of the foetus would be regarded as being of a higher value than the life of the pregnant woman. The "right to life" of a person already born would thus be considered as subject not only to the express limitations mentioned in paragraph 8 above but also to a further, implied limitation. 20. The Commission finds that such an interpretation would be contrary to the object and purpose of the Convention. It notes that, already at the time of the signature of the Convention (4 November 1950), all High Contracting Parties, with one possible exception, permitted abortion when necessary to save the life of the mother and that, in the meanwhile, the national law on termination of pregnancy has shown a tendency towards further liberalisation. 21. Having thus excluded, as being incompatible with the object and purpose of the Convention, one of the three different constructions of Article 2 mentioned in paragraph 17 above, the Commission has next considered which of the two remaining interpretations is to be regarded as the correct one ie whether Article 2 does not cover the foetus at all or whether it recognises a "right to life" of the foetus with certain implied limitations. 22. The Commission here notes that the abortion complained of was carried out at the initial stage of the pregnancy the applicant's wife was ten weeks pregnant under Section 1 (1) (a) of the Abortion Act 1967 in order to avert the risk of injury to the physical or mental health of the pregnant woman. It follows that, as regards the second of the two remaining interpretations,

the Commission is in the present case not concerned with the broad question whether Article 2 recognises a "right to life" of the foetus during the whole period of the pregnancy but only with the narrower issue whether such a right is to be assumed for the initial stage of the pregnancy. Moreover, as regards implied limitations of a "right to life" of the foetus at the initial stage, only the limitation protecting the life and health of the pregnant woman, the so-called "medical indication", is relevant for the determination of the present case and the question of other possible limitations (ethic indication, eugenic indication, social indication, time limitation) does not arise. 23. The Commission considers that it is not in these circumstances called upon to decide whether Article 2 does not cover the foetus at all or whether it recognises a "right to life" of the foetus with implied limitations. It finds that the authorisation, by the United Kingdom authorities, of the abortion complained of is compatible with Article 2 (1), first sentence because, if one assumes that this provision applies at the initial stage of the pregnancy, the abortion is covered by an implied limitation, protecting the life and health of the woman at that stage, of the "right to life" of the foetus. 24. The Commission concludes that the applicant's complaint under Article 2 is inadmissible as being manifestly ill-founded within the meaning of Article 27.2 25. In its examination of the applicant's complaints concerning the Abortion Act 1967 and its application in this case, the Commission has next had regard to Article 8 of the Convention which, in paragraph 1, guarantees to everyone the right to respect for his family life. The Commission here notes, apart from his principal complaint concerning the permission of the abortion, the applicant's ancillary submission that the 1967 Act denies the father of the foetus a right to be consulted, and to make applications, about the proposed abortion. The Commission also observes that the applicant, who under Article 2 claims to be the victim of a violation of the right to life of the foetus of which he was the potential father, under Article 8 invokes a right of his own. 26. As regards the principal complaint concerning the permission of the abortion, the Commission recalls that the pregnancy of the applicant's wife was terminated in accordance with her wish and in order to avert the risk of injury to her physical or mental health. The Commission therefore finds that this decision, insofar as it interfered in itself with the applicant's right to respect for his family life, was justified under paragraph 2 of Article 8 as being necessary for the protection of the rights of another person. It follows that this complaint is also manifestly illfounded within the meaning of Article 27.2. 27. The Commission has next considered the applicant's ancillary complaint that the Abortion Act 1967 denies the father of the foetus a right to be consulted, and to make applications, about the proposed abortion. It observes that any interpretation of the husband's and potential father's right, under Article 8 of the Convention, to respect for his private and family life, as regards an abortion which his wife intends to have performed on her, must first of all take into account the right of the pregnant woman, being the person primarily concerned in the pregnancy and its continuation or termination, to respect for her private life. The pregnant woman's right to respect for her private life, as affected by the developing foetus, has been examined by the Commission in its Report in the Brggernann and Scheuten Case (loc. cit. paras. 59 et seq.). In the present case the Commission, having regard to the right of the pregnant woman, does not find that the husband's and potential father's right to respect for his private and family life can be interpreted so widely as to embrace such procedural rights as claimed by the applicant, ie a right to be consulted, or a right to make applications, about an abortion which his wife intends to have performed on her. The Commission concludes that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27.2. 28. The Commission does not find that any of the other provisions invoked by the applicant (Articles 5, 6 and 9 of the Convention) are relevant for the examination of his complaints. For these reasons, the Commission

DECLARES THIS APPLICATION INADMISSIBLE. 19 D & R 244

1992] 1 I.L.R.M.

DIGEST

CONSTITUTION Personal Rights.

Right to life of unborn
Abortion outside jurisdiction - Avowed intention -Mother - Injunction restraining exit - Right to travel - Liberty - Risk to life - "Due regard"- Suicide - Magnitude of risk - Balance -Offences Against the Person Act, 1861 (24 25 Vict. c. 100), s. 58 - Civil Liability Act, 1961 (No. 41), s. 58 - Constitution of Ireland, 1937, Art. 40.3.3. European Communities - Free movement - Services Recipient - Travel -Service lawful in arrival but not departure State - Whether right to travel to receive service -Public policy - Derogation - Criteria - Proportionality - Council Directive 73/148/EEC -Treaty of Rome, 1957, Arts. 48, 59, 60. Injunction - Permanent - Criteria Supervision -Enforcement - Extra-territoriality - Practicability - Discretion. Article 40, s. 3, sub-s. 3 as inserted by the Eighth Amendment to the Constitution provides: "That the State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right." The first defendant, a fourteen year old school girl, discovered she was pregnant as the result of an alleged rape. The garda were informed of the matter. The girl and her parents concluded that the best course to adopt in relation to the girl's circumstances was to travel to England and obtain an abortion there. The parents informed the garda of this proposed course and also raised with them the possibility of having scientific tests carried out on the foetus for the purpose of ascertaining the identity of the father. A legal opinion was sought by the garda on the admissibility of such evidence from the Director of Public Prosecutions. The Director of Public Prosecutions informed the Attorney General of the matter. On the next day the Attorney General obtained interim injunctions in the High Court restraining the girl and her parents from interfering with the right to life of the unborn; restraining the same defendants from leaving the jurisdiction for nine months; and restraining them from procuring or arranging an abortion within or outside the jurisdiction. When notice of the making of such orders reached the defendants in England, they cancelled the arrangements for the abortion and returned to Ireland and contested the motion for interlocutory injunctions on the grounds that they had a right to travel from the jurisdiction to do what was lawful elsewhere; that the mother's right to life was itself in peril; and that such injunctions were unprecedented and ought not to have been granted. The motion was then treated by consent as the full trial and the defendants led oral testimony from inter alia a senior psychologist to the effect that, in view of the girl's threatened intentions, there was a risk that she might commit suicide. Held by Costello J., in granting the permanent injunctions sought, 1, that the court's duty to defend and vindicate the right to life of the unborn was imposed by the clear rule of law of Article 40, s. 3, sub-s. 3 of the Constitution, notwithstanding that no law had yet been passed by the Oireachtas in implementation of that provison. The Attorney General (S.P.U.C) v. Open Door Counselling Ltd. [1988] I.R. 593 applied. 2. That in the instant case the court had a duty to protect the girl from danger arising not only from the actions of others but also from her own actions. 3. That there was a real and imminent danger to the life of the unborn if the permanent injunctions were not granted, but that the risk that the girl might take her own life if the injunctions were granted was of a less and different order of magnitude than the otherwise certain death of the unborn. 4. That the defendants' contentions that the girl's right to liberty was being unlawfully infringed were

unfounded since the court had power to restrain the abuse of a constitutional right when exercised for the purposes of committing a wrong notwithstanding the necessary curtailment of such constitutional right. The People v. O'Callaghan [1966] I.R. 501 and Ryan v. Director of Public Prosecutions [1989] I.R. 399 distinguished. 5. That, as a matter of European Community law, the defendants had a prima facie right under Article 59 establishing the Treaty of the European Economic Community to travel to another Member State to receive a service consisting of medical termination of pregnancy performed in accordance with the law of that Member State. S.P.U.C. v. Grogan (No. 2) Case 159/90 [1991] 3 C.M.L.R. 849 and Luisi and Carbone v. Ministero del Tesoro Cases 286/82 and 26/83 [1984] 1 E.C.R. 377 applied. 6. That in ruling upon Ireland's powers of derogating on the grounds of public policy from the right to travel to receive services implicit in Article 59 the court could properly note that that concept of public policy might vary from one country to another and from one period to another and that each Member State was allowed an area of discretion within the limits of the Treaty and its implementing provisions and that the Eighth Amendment incorporated into Article 40, s. 3, subs. 3 of the Constitution was clearly an expression arising from deeply held moral convictions of that public policy. Regina v. BouchereauCase 30/77 [1977] E.C.R. 1999 applied. 7. That the derogation by Ireland on this issue did not infringe European Community law which recognised that wide cultural differences existed throughout the Community and permitted derogations arising therefrom and, moreover, the attainment of the fundamental objectives of the Treaty was enhanced by laws assisting the development of that Community in which legitimate differences on moral issues were recognised without seeking to impose a spurious or divisive uniformity on such issues. 8. That upon further examination of the development of European Community law, including its incorporation of the jurisprudence of the European Court of Human Rights, the measure taken by Ireland to protect the unborn in this case, viz. restraining the defendants from travelling abroad, was not disproportionate to the necessary achievement of that public policy derogation. The defendants appealed from the judgment and order of the High Court. In the Supreme Court counsel for the Attorney General conceded that on the facts the injunction restraining the defendants from leaving the jurisdiction for nine months was too wide and should be varied to restrain them from travelling abroad for the purposes of abortion. Counsel further conceded that the Eighth Amendment envisaged lawful abortion in the jurisdiction but only where the mother's life was in imminent and inevitable danger of death. Held by the Supreme Court (Finlay C.J., McCarthy, O'Flaherty and Egan JJ.: Hederman J. dissenting) in allowing the appeal and discharging the injunctions, 1, (Hederman J. concurring) that the Attorney General had properly exercised his duties in the performance of his office in bringing the matter before the High Court. Dictum of Finlay C.J. in The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd. [1988] I.R. 593 at 623 applied. 2. (Hederman J. concurring): That notwithstanding the absence of "laws" enacted by the Oireachtas, Article 40, s. 3, sub-s. 3 of the Constitution itself provided its own clear rule of law authorising the courts, as organs of the State, to defend and vindicate the constitutional rights guaranteed by the Article. The State (Quinn) v. Ryan [1965] I.R. 70; The People v. Shaw [1982] I.R. 1 and The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd. [1988] I.R. 593 considered. 3. (Hederman J. concurring): That the Constitution requires that its provisions be interpreted harmoniously and that the rights thereby guaranteed be interpreted in concert. Where a conflict of rights in any case cannot be avoided, a changing hierarchy of rights was envisaged, headed generally by the night to life, the destruction of which right was irreversible. McGee v. Attorney General [1974] I.R. 284 and The State (Healy) v. Donoghue [1976] I.R. 325 and The People v. Shaw [1982] I.R. 1 followed. 4. (Hederman J. dissenting): That the true interpretation of Article 40, s. 3, sub-s. 3 of the Constitution required that termination of pregnancy was permissible only when it was established as a matter of probability that there was a real and substantial risk to the life of the mother if such termination were not effected. To prevent termination except in circumstances where there was a risk of immediate or inevitable death of the mother did not sufficiently

vindicate the right to life of the mother. McGee v. The Attorney General [1974] I.R. 284 and The State (Healy) v. Donoghue [1976] I.R. 325 applied; Rex v. Bourne [1939] 1 K.B. 687 considered. Per Hederman J. The evidence required to justify a termination of pregnancy must be of such a weight and cogency as to leave open no other conclusion but that the consequences of the continuance of the pregnancy will, to an extremely high degree of probability, cost the mother her life and medical evidence must be based on the most competent medical opinion available. In the instant case the evidence adduced fell short of this standard. 5. (Hederman J. dissenting): That the risks to the life of the mother which should be considered by the court included a real and substantial risk that the mother might commit suicide. Per Finlay C.J., Hederman and Egan JJ.: That, notwithstanding the difficulties in proofs, supervision or enforcement and the likelihood of widespread evasion of any such injunctions, Article 40, s. 3, sub-s. 3 required the courts in proper cases and upon the exercise, as far as practicable, of their equitable discretion to restrain by injunction the removal of the unborn from the jurisdiction so that the right to life of the unborn might be defended and vindicated. Per O'Flaherty J.: An injunction restraining a woman from leaving the jurisdiction for the purpose of having an abortion would interfere to an unwarranted degree with the individual's freedom of movement and the authority of the family and the aspiration expressed in the Preamble to assure the dignity and freedom of the individual. Per Finlay C.J., Hederman and Egan JJ.: The right to travel simpliciter could not take precedence over the right to life. Per Hederman J.: The court should decline to grant an injunction restraining the girl from leaving the country for the purpose of having an abortion because of the impossibility of enforcement; if the girl travelled out of the jurisdiction and had an abortion the matter could be dealt with by contempt of court proceedings on her return but the unborn life could not be restored. Per McCarthy J.: Injunctions should not be granted to restrain activity in another jurisdiction since the right to travel should not be curtailed because of a particular intention even the intention to commit a crime in the other jurisdiction. The court has no jurisdiction to make an order interfering with the right to travel. Per McCarthy J.: Although Article 25, s. 5, sub-s. 4 of the Constitution provided that its Irish text should prevail over the English in cases of conflict, this conflict may arise only due to the translation of the original English text. There was no material discordance between the words "as far as practicable" and "sa mhid gur fidir " in Article 40, s. 3, subsection 3. Per McCarthy and O'Flaherty JJ.: The positive thrust of Article 40, s. 3, sub-s. 3 was to impel the State to provide practical assistance by way of counselling, comfort and encouragement to women unwillingly pregnant and to help them make a decision in accordance with the Constitution and the law. Per McCarthy J.: When enacting the Eighth Amendment the people were entitled to believe that legislation would be enacted to regulate the manner in which the right to life of the unborn and that of the mother could be reconciled; the failure of the legislature over eight years to enact the appropriate legislation with guidelines for all persons necessarily affected was inexcusable. Per Finlay C.J. and Egan J.: An application to the Court of Justice of the European Community under Article 177 of the European Econonmic Community Treaty was not necessary as it was possible to decide the case under domestic law. Avonmore Creameries Ltd. v. Bord Bainne Co-Operative Ltd. (Unreported, Supreme Court, 21 March, 1991) and Doyle v. An Taoiseach [1986] ILRM 693 applied. Attorney General v. X (H.C., S.C.) [1992] 1 I.R. 1; [1992] ILRM 401 [1992] ILRM 401

[1990] 1 I.L.R.M.

DIGEST

PERSONAL RIGHTS
Courts
Access - Locus standi -Right to life of unborn - Information on abortion - Threatened publication - Injunctions restraining publication sought by private person - Locus standi - Whether standing vested exclusively in Attorney General - Whether such access to courts a public or private right Constitution of Ireland, 1937, Art. 40.3.3. Attorney General - Status - Public right - Whether enforcement vested exclusively in Attorney General - Constitution of Ireland, 1937, Art. 30. Article 40, s. 3, sub-s. 3, as inserted by the Eighth Amendment to the Constitution, provides: "The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right." The plaintiff a company limited by guarantee with objects of protecting the right to life of the unborn child, objected to the inclusion of material giving information on abortion and pertinent addresses in a book entitled "Welfare Guide 1988/89" to be published by the students union of University College Dublin, and sought undertakings from eight officers of the union and the printer and University College Dublin that they would refrain from publishing such material. On 20 July, 1988, the plaintiff's solicitors wrote to the Attorney General enclosing a copy of the previous year's "Welfare Guide"and inquired whether he was "to take action in the courts and prevent the dissemination of this information." On 16 August the plaintiff issued a plenary summons in the High Court seeking injunctions restraining publication of the material impugned, and by letter of 6 September the Attorney General replied that as the plaintiff had already commenced proceedings in the High Court in the circumstances he did not propose taking legal action. The plaintiff then sought interlocutory injunctions in the High Court restraining such publication, which injunctions were refused by Carroll J. who held in an ex tempore judgment that the plaintiff lacked the locus standi reserved to the Attorney General to seek undertakings and injunctions to restrain threatened breaches of the Constitution. The plaintiff appealed against the High Court's refusal to grant the interlocutory injunctions sought and in the Supreme Court the defendants objected to the plaintiff's locus standi and argued that interlocutory injunctions were inappropriate remedies to restrain the apprehended commission of a criminal offence. At the request of the Supreme Court, the Attorney General was joined as a notice party and he disclaimed any exclusive standing to initiate such proceedings or seek such reliefs as the plaintiff had done and submitted that the proper test to establish locus standi was whether proceedings were instituted by reason of a party's bona fide concern and interest in the actual or threatened constitutional infringement of any right, where such party could establish an objective proximity to that infringement; but that mere reliance upon the objects of an incorporated body would not, by itself, provide such locus standi. Held by the Supreme Court (Finlay C.J., Walsh, Griffin and Hederman JJ.; McCarthy J. dissenting), in allowing the appeal and remitting the case to the High Court to deal with the interlocutory injunctions, 1, that any party who had a bona fide concern and interest, which interest connoted proximity or an objective interest, in the protection of the constitutionally guaranteed right to life of the unborn had sufficient standing to invoke the jurisdiction of the courts to take such measures as would defend and vindicate that right. A. G. (S. P. U. C.) v. Open Door Counselling Ltd. [1988] I.R. 593 applied. Principles in East Donegal Co-Operative Livestock Mart Ltd. v. Attorney General [1970] I.R. 317 and Cahill v. Sutton [1980] I.R. 269 followed. 2. That while the Attorney General as the holder of high constitutional office might be an especially appropriate person to invoke such jurisdiction of the courts, such recourse was not confined to him exclusively. 3. That an incorporated body did not establish such a bona fide concern and interest merely by relying upon provisions of its articles and memorandum of association. 4. That given the plaintiff's record of earlier successful proceedings at the relation of the Attorney General to protect the right of the unborn and in view of the importance of that right to the whole nature of Irish society, the plaintiff had sufficiently established its bona fide concern and interest and,

accordingly, its locus standi. Per Walsh J., Hederman J. concurring: Every member of the public has an interest in seeing that the fundamental law of the State is not defeated, and although the courts are the ultimate guardians of the Constitution, such protection is possible only where their powers are invoked. Since breaches of constitutional rights may on occasion be threatened by the Government itself or its agents, it would be intolerable if access to the courts to defend and vindicate such constitutional rights were confined to the Attorney General as the very officer of state instructed to defend the Government's position. Per Walsh J., Hederman J. concurring: The citizen's right of access to the courts in the appropriate case will include not only access in defence of his own personal and direct rights which are being threatened by the executive or by his fellow citizens, but also the right to seek to restrain the acts of the executive or other persons from breaching the constraints imposed by the Constitution if the public interest requires that such breaches or attempted breaches should be restrained. It would be ironic if the law permitted a citizen to bring a petty thief who had stolen from another before the courts for prosecution, but nevertheless deemed that citizen to be unqualified to invoke the protection of the courts to prevent the destruction of the constitutional right to life. The State (Ennis) v. Farrell [1966] I.R. 107 considered. Per Walsh J., Hederman J. concurring: There must be some doubt as to whether any statute could validly seek to exclude members of the public from calling in aid the judicial power in defence of the public interest in the vindication of constitutional rights. Ultimately it is a question reserved exclusively to the courts to decide whether or not in a given case a plaintiff, who is not personally affected either individually or as a member of a group directly by the activities complained of, may be permitted to maintain an action and to obtain an order restraining or restricting such impugned activities. Crotty v. An Taoiseach [1987] I.R. 713 followed. Per McCarthy J., dissenting: Where breaches of rights guaranteed by the Constitution are threatened by private citizens, then the Attorney General alone can pursue to judgment a claim to protect such rights. The plaintiff's previous successful proceedings at the relation of the Attorney General did not distinguish its interest or concern from those of any other citizen, and its refusal of the Attorney General's offer of assistance disqualified it from having the standing necessary to maintain the proceedings. Society for the Protection of Unborn Children (Ireland) Ltd v. Coogan (No. 1) (H.C., S.C.) [1989] I.R. 734; (S.C.) [1990] ILRM 70 [1990] ILRM 70

21 May 2009

Title Department Keyword Priority Date Document No. Text

Abortion statistics, England & Wales: 2008 DEPARTMENT OF HEALTH (DH)

21 May 2009 COI174137P

DEPARTMENT OF HEALTH (DH) 21 May 2009 Abortion statistics, England & Wales: 2008 The following National Statistics were released today by the Department of Health: Abortion Statistics, England & Wales: 2008 Main findings: In 2008, for women resident in England and Wales: * the total number of abortions was 195,296, compared with 198,499 in 2007, a fall of 1.6% * the age-standardised abortion rate was 18.2 per 1,000 resident women aged 15-44, compar2007ed with 18.6 in * the abortion rate was highest at 36 per 1,000, for women age 19, the same as in 2007 * the under-16 abortion rate was 4.2 and the under-18 rate was 18.9 per 1,000 women, both lower than in 2007 * 91% of abortions were funded by the NHS; of these, just over half (58%) took place in the independent sector under NHS contract * 90% of abortions were carried out at under 13 weeks gestation; 73% were at under 10 weeks * medical abortions accounted for 38% of the total * 1,988 abortions (1%) were under ground E, risk that the child would be born handicapped Non-residents: * in 2008, there were 6,862 abortions for non-residents carried out in hospitals and clinics in England and Wales (7,099 in 2007) 2007 2008 All abortions 198,499 (100%) 195,296 (100%) 3-9 weeks 139,144 (70.1%) 142,645 (73.0%) 10-12 weeks 38,998 (19.6%) 33,661 (17.2%) 13-19 weeks 17,430 (8.8%) 16,101 (8.2%) 20-21 weeks 1,726 (0.9%) 1,615 (0.8%) 22-23 weeks 1,066 (0.5%) 1,150 (0.6%) 24 weeks and over 135 (0.1%) 124 (0.1%) See this link for detailed figures and see below for detailed notes. http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsStatistics/DH_09928 5 Notes for editors: Background Provisional quarterly data for Q1, Q2 and Q3 of 2008 have been published in Health Statistics Quarterly; this is the first time full year figures for 2008 are being published by DH. In July 2005, ONS produced a report on disclosure guidance for abortion statistics, with recommendations on the suppression levels to be used for unsafe cells. Applying the recommendations allows us to publish abortions statistics at a detailed level without risk of breaching patient and practitioner data confidentiality. In addition, ONS published disclosure guidelines for wider health statistics in October 2006.

The recommendations were applied to the statistical bulletins from 2003 onwards and they have been used in subsequent PQs and FOI requests. Similarly, the 2008 bulletin tables have also been produced in line with the ONS recommendations. For areas that have been continually suppressed due to small numbers every year, for example abortion numbers for young ages, the 2008 bulletin includes analysis based on three-yearly aggregated data (2006-2008). ONS is currently reviewing its guidance on disclosure of abortion statistics.

1992] 1 1 I.R. The Attorney General v. X The Attorney General, Plaintiff v. X. and Others, Defendants [1992 No. 846P] High Court 17th February 1992 Supreme Court 26th February 1992 Supreme Court 5th March 1992 Constitution - Personal rights - Right to life - Unborn - Abortion outside jurisdiction - Avowed intention - Mother - Injunction restraining exit - Right to travel - Liberty - Risk to life - "Due regard" - Suicide - Magnitude of risk - Balance - Offences Against the Person Act, 1861 (24 & 25 Vict., c. 100), s. 58 - Civil Liability Act, 1961 (No. 41) s. 58 - Constitution of Ireland, 1937, Article 40, s. 3, sub-s. 3. European Communities - Free movement - Services - Recipient - Travel - Service lawful in arrival but not departure State - Whether right to travel to receive service - Public policy Derogation - Criteria - Proportionality - Council Directive 73/148/EEC - Treaty of the European Economic Community, 1957, Articles 48, 59, 60. Injunction - Permanent - Criteria - Supervision - Enforcement - Extra-territoriality Practicability - Discretion. Article 40, s. 3, sub-s. 3 as inserted by the Eighth Amendment to the Constitution provides: "The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right." The first defendant, a fourteen year old school girl, discovered she was pregnant as the result of an alleged rape. The garda were informed of the matter. The girl and her parents concluded that the best course to adopt in relation to the girl's circumstances was to travel to England and obtain an abortion there. The parents informed the garda of this proposed course and also raised with them the possibility of having scientific tests carried out on die foetus for the purpose of ascertaining the identity of the father. A legal opinion was sought by the garda on to the admissibility of such evidence from the Director of Public Prosecutions. The Director of Public Prosecutions informed the Attorney General of the matter. On the next day the Attorney General obtained interim injunctions in the High Court restraining the girl and her parents from interfering with the right to life of the unborn; restraining the same defendants from leaving the jurisdiction for nine months; and restraining them from procuring or arranging an abortion within or outside the jurisdiction. When notice of the making of such orders reached the defendants in England, they cancelled the arrangements for the abortion and returned to Ireland and contested the motion for interlocutory injunctions on the grounds that they had a right to travel from the jurisdiction to do what was lawful elsewhere; that the mother's right to life was itself in peril; and

that such injunctions were unprecedented and ought not to have been granted. The motion was then treated by consent as the full trial and the defendants led oral testimony from inter alia a senior psychologist to the effect that, in view of the girl's threatened intentions, there was a risk that she might commit suicide. Held by Costello J., in granting the permanent injunctions sought, 1, that the court's duty [1992] The Attorney General v. X 2 1 I.R. H.C. to defend and vindicate the right to life of the unborn was imposed by the clear rule of law of Article 40, s. 3, sub-s. 3 of the Constitution, notwithstanding that no law had yet been passed by the Oireachtas in implementation of that provision. The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd. [1988] I.R. 593 applied. 2. That in the instant case the court had a duty to protect the girl from danger arising not only from the actions of others but also from her own actions. 3. That there was a real and imminent danger to the life of the unborn if the permanent injunctions were not granted, but that the risk that the girl might take her own life if the injunctions were granted was of a less and different order of magnitude than the otherwise certain death of the unborn. 4. That the defendants' contentions that the girl's right to liberty was being unlawfully infringed were unfounded since the court had power to restrain the abuse of a constitutional right when exercised for the purposes of committing a wrong notwithstanding the necessary curtailment of such constitutional right. The People v. O'Callaghan [1966] I.R. 501 and Ryan v. Director of Public Prosecutions [1989] I.R. 399 distinguished. 5. That, as a matter of European Community law, the defendants had a prima facie right under Article 59 establishing the Treaty of the European Economic Community to travel to another Member State to receive a service consisting of medical termination of pregnancy performed in accordance with the law of that Member State. 1. S.P.U.C. v. Grogan (No. 2) Case 159/90 [1991] 3 C.M.L.R. 849 and Luisi and Carbone v. Ministero del Tesoro Cases 286/82 and 26/83 [1984] 1 E.C.R. 377 applied. 6. That in ruling upon Ireland's powers of derogating on the grounds of public policy from the right to travel to receive services implicit in Article 59 the court could properly note that that concept of public policy might vary from one country to another and from one period to another and that each Member State was allowed an area of discretion within the limits of the Treaty and its implementing provisions and that the Eighth Amendment incorporated into Article 40, s. 3, sub-s. 3 of the Constitution was clearly an expression arising from deeply held moral convictions of that public policy. Regina v. Bouchereau Case 30/77 [1977] E.C.R. 1999 applied. 7. That the derogation by Ireland on this issue did not infringe European Community law which recognised that wide cultural differences existed throughout the Community and permitted derogations arising therefrom and, moreover, the attainment of the fundamental objectives of the Treaty was enhanced by laws assisting the development of that Community in which legitimate differences on moral issues were recognised without seeking to impose a spurious or divisive uniformity on such issues. 8. That upon further examination of the development of European Community law, including its incorporation of the jurisprudence of the European Court of Human Rights, the measure taken by Ireland to protect the unborn in this case, viz. restraining the defendants from travelling abroad, was not disproportionate to the necessary achievement of that public policy derogation. The defendants appealed from the judgment and order of the High Court. In the Supreme Court counsel for the Attorney General conceded that on the facts the injunction restraining the defendants from leaving the jurisdiction for nine months was too wide and should be varied to

restrain them from travelling abroad for the purposes of abortion. Counsel further conceded that the Eighth Amendment envisaged lawful abortion in the jurisdiction but only where the mother's life was in imminent and inevitable danger of death. Held by the Supreme Court (Finlay C.J., McCarthy, O'Flaherty and Egan JJ.: Hederman J. dissenting) in allowing the appeal and discharging the injunctions, 1, (Hederman J. concurring) that the Attorney General had properly exercised his duties in the performance [1992] The Attorney General v. X 3 1 I.R. H.C. of his office in bringing the matter before the High Court. Dictum of Finlay C.J. in The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd. [1988] I.R. 593 at 623 applied. 2. (Hederman J. concurring): That notwithstanding the absence of "laws" enacted by the Oireachtas, Article 40, s. 3, sub-s. 3 of the Constitution itself provided its own clear rule of law authorising the courts, as organs of the State, to defend and vindicate the constitutional rights guaranteed by the Article. The State (Quinn) v. Ryan [1965] I.R. 70 ; The People v. Shaw [1982] I.R. 1 and The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd. [1988] I.R. 593 considered. 3. (Hederman J. concurring): That the Constitution requires that its provisions be interpreted harmoniously and that the rights thereby guaranteed be interpreted in concert. Where a conflict of rights in any case cannot be avoided, a changing hierarchy of rights was envisaged, headed generally by the right to life, the destruction of which right was irreversible. McGee v. Attorney General [1974] I.R. 284 and The State (Healy) v. Donoghue [1976] I.R. 325 and The People v. Shaw [1982] I.R. 1 followed. 4. (Hederman J. dissenting): That the true interpretation of Article 40, s. 3, sub-s. 3 of the Constitution required that termination of pregnancy was permissible only when it was established as a matter of probability that there was a real and substantial risk to the life of the mother if such termination were not effected. To prevent termination except in circumstances where there was a risk of immediate or inevitable death of the mother did not sufficiently vindicate the right to life of the mother. McGee v. The Attorney General [1974] I.R. 284 and The State (Healy) v. Donoghue [1976] I.R. 325 applied; Rex v. Bourne [1939] 1 K.B. 687 considered. Per Hederman J. The evidence required to justify a termination of pregnancy must be of such a weight and cogency as to leave open no other conclusion but that the consequences of the continuance of the pregnancy will, to an extremely high degree of probability, cost the mother her life and medical evidence must be based on the most competent medical opinion available. In the instant case the evidence adduced fell short of this standard. 5. (Hederman J. dissenting): That the risks to the life of the mother which should be considered by the Court included a real and substantial risk that the mother might commit suicide. Per Finlay C.J., Hederman and Egan JJ.: That, notwithstanding the difficulties in proofs, supervision or enforcement and the likelihood of widespread evasion of any such injunctions, Article 40, s. 3, sub-s. 3 required the courts in proper cases and upon the exercise, as far as practicable, of their equitable discretion to restrain by injunction the removal of the unborn from the jurisdiction so that the right to life of the unborn might be defended and vindicated. Per O'Flaherty J.: An injunction restraining a woman from leaving the jurisdiction for the purpose of having an abortion would interfere to an unwarranted degree with the individual's freedom of movement and the authority of the family and the aspiration expressed in the Preamble to assure the dignity and freedom of the individual. Per Finlay C.J., Hederman and Egan JJ.: The right to travel simpliciter could not take precedence over the right to life.

Per Hederman J.: The Court should decline to grant an injunction restraining the girl from leaving the country for the purpose of having an abortion because of the impossibility of enforcement; if the girl travelled out of the jurisdiction and had an abortion the matter could be dealt with by contempt of court proceedings on her return but the unborn life could not be restored. Per McCarthy J.: Injunctions should not be granted to restrain activity in another jurisdiction since the right to travel should not be curtailed because of a particular intention [1992] The Attorney General v. X 4 1 I.R. H.C. even the intention to commit a crime in the other jurisdiction. The court has no jurisdiction to make an order interfering with the right to travel. Per McCarthy J.: Although Article 25, s. 5, sub-s. 4 of the Constitution provided that its Irish text should prevail over the English in cases of conflict, this conflict may arise only due to the translation of the original English text. There was no material discordance between the words "as far as practicable" and "sa mhid gur fidir " in Article 40, s. 3, sub-section 3. Per McCarthy and O'Flaherty JJ.: The positive thrust of Article 40, s. 3, sub-s. 3 was to impel the State to provide practical assistance by way of counselling, comfort and encouragement to women unwillingly pregnant and to help them make a decision in accordance with the Constitution and the law. Per McCarthy J.: When enacting the Eighth Amendment the people were entitled to believe that legislation would be enacted to regulate the manner in which the right to life of the unborn and that of the mother could be reconciled; the failure of the legislature over eight years to enact the appropriate legislation with guidelines for all persons necessarily affected was inexcusable. Per Finlay C.J. and Egan J.: An application to the Court of Justice of the European Community under Article 177 of the European Economic Community Treaty was not necessary as it was possible to decide the case under domestic law. Avonmore Creameries Ltd. v. Bord Bainne Co-Operative Ltd. (Unreported, Supreme Court, 21st March, 1991) and Doyle v. An Taoiseach [1986] I.L.R.M. 693 applied. Cases mentioned in this report: The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd. IR DLRM [1988] I.R. 593; [1987] I.L.R.M. 477. Avonmore Creameries Ltd. v. An Bord Bainne Co-Operative Ltd. (Unreported, Supreme Court, 21st March, 1991). Cowan v. Trsor Publique Case 186/87 [1989] E.C.R. 195; [1990] 2 C.M.L.R. 613. In re the Criminal Law Jurisdiction Bill, 1975 IR DLTR [1977] I.R. 129; (1976) 110 I.L.T.R. 69. Doyle v. An Taoiseach [1986] I.L.R.M. 693. In re the Electoral (Amendment) Bill, 1961 [1961] I.R. 169. Ellis v. O'Dea IR DLRM [1989] I.R. 530; [1990] I.L.R.M. 87. Finucane v. McMahon [1990] 1 I.R. 165. G. v. An Bord Uchtla IR DLTR

[1980] I.R. 32; (1978) 113 I.L.T.R. 25. Lennon v. Ganly [1981] I.L.R.M. 84. Lett v. Lett [1906] 1 I.R. 618 Luisi and Carbone v. Ministero del Tesoro Cases 286/82 and 26/83 [1984] 1 E.C.R. 377; [1985] 3 C.M.L.R. 52. Kutchera v. Buckingham International Holdings Ltd. IR DLRM [1988] I.R. 61; [1988] I.L.R.M. 1. McGee v. Attorney General IR DLTR [1974] I.R. 284; (1973) 109 I.L.T.R. 29. Norris v. The Attorney General [1984] I.R. 36.

[1992] The Attorney General v. X 5 1 I.R. H.C. O'Donovan v. The Attorney General IR DLTR [1961] I.R. 114; (1962) 96 I.L.T.R. 121. In re the Offences Against the State (Amendment) Bill, 1940 [1940] I.R. 470. The People (Attorney General) v. Moscow (Unreported, Court of Criminal Appeal, 19th July, 1950). The People (Attorney General) v. O'Brien [1965] I.R. 142. The People v. O'Callaghan [1966] I.R. 501. The People v. O'Shea IR DLRM [1982] I.R. 384; [1983] I.L.R.M. 549. The People v. Shaw [1982] I.R. 1. Quinn's Supermarket v. The Attorney General IR DLTR [1972] I.R. 1; (1969) 104 I.L.T.R. 13. Regina v. Bouchereau ECAS ELR WLR 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. Rex v. Bourne [1939] 1 K.B. 687; [1938] 3 All E.R. 615. Ryan v. The Attorney General [1965] I.R. 294. Ryan v. Director of Public Prosecutions IR DLRM [1989] I.R. 399; [1989] I.L.R.M. 333. S.P.U.C. v. Coogan [1989] I.R. 734. S.P.U.C. v. Grogan

 IR DLRM [1989] I.R. 783; [1990] I.L.R.M. 350; [1990] 1 C.M.L.R. 689. S.P.U.C. v. Grogan (No. 2) Case 159/90 [1991] 3 C.M.L.R. 849. The State (Browne) v. Feran [1967] I.R. 147. The State (Burke) v. Lennon and The Attorney General [1940] I.R. 136. The State (Director of Public Prosecutions) v. Walsh [1981] I.R. 412. The State (Healy) v. Donoghue IR DLTR [1976] I.R. 325; (1976) 110 I.L.T.R. 9. The State (M.) v. The Attorney General [1979] I.R. 73. The State (Quinn) v. Ryan IR DLTR [1965] I.R. 70; (1964) 100 I.L.T.R. 105. Van Duyn v. Home Office ECAS ELR WLR WLR Case 41/74 [1974] E.C.R. 1337; [1975] 1 C.M.L.R. 1; [1975] Ch. 358; [1974] 1 W.L.R. 1107; [1974] 3 All E.R. 178; [1975] 2 W.L.R. 760; [1975] 3 All E.R. 196 E.C.J. Plenary Summons. By plenary summons issued on the 6th February, 1992, the Attorney General commenced proceedings against "X" a fourteen year old girl and her parents claiming: 1. (a) An order restraining the defendants, their servants or agents, or anyone having knowledge of the order, from interfering with the right to life of the unborn as contained in Article 40, [1992] 1 I.R. The Attorney General v. X 6 H.C.

Costello J.

s. 3, sub-s. 3 of the Constitution of Ireland on such terms as to this honourable court shall seem meet and just. 2. (b) An injunction restraining the first defendant from leaving the jurisdiction of this honourable court or the second and third defendants, their servants or agents, or anyone having knowledge of the said order, from assisting the first defendant to leave the aforesaid jurisdiction for a period of nine months from the date hereof or such other period as may be specified by this honourable court. 3. (c) An order restraining the first defendant, her servants or agents, or anyone having knowledge of the said order, from procuring or arranging a termination of pregnancy or abortion whether within or without the jurisdiction of this honourable court. On the same day the Attorney General applied to the High Court (Costello J.) and was granted interim orders in those terms effective until and returnable for the 10th February, 1992, when an application for interlocutory orders was listed for hearing. By agreement between the parties, at the suggestion of the court, the hearing of the motion was treated as the hearing of the action and was heard on affidavit and on oral evidence. The application was heard by the High Court (Costello J.) on the 10th and 11th February, 1991. James O'Reilly S.C. (with him anna anna Mulloy ) for the plaintiff.

John Rogers S.C. (with him Mary O'Toole ) for the defendants. Cur adv. vult. Costello J. 17th February, 1992 The facts This is an application for an injunction to restrain the first defendant from going to England for the purposes of having an abortion. The events which have given rise to these proceedings are painful and distressing and have resulted in tragedy and a great measure of human suffering. The first defendant is a young girl, now aged fourteen and a half years. She has a school friend whom she visited regularly. Her friend's parents and her parents were also on friendly terms. Her parents had no idea that in letting [1992] 1 I.R. The Attorney General v. X 7 H.C.

Costello J.

their daughter visit her friend's house she was being placed in physical and in moral danger. In fact, her statement disclosed that her friend's father is a depraved and evil man. He began sexually molesting the first defendant when she was less than thirteen years old. Over the months in which it occurred this molestation was continuous and took different forms. In June, 1990, abuse of a serious nature took place and this occurred again in the early part of 1991. In December, 1991, her statement records, he had full sexual intercourse with her to which she did not consent. As a result she became pregnant. She did not tell anyone of the abuse to which she was being subjected on her visits to her friend's home but on the 27th January last she told her parents everything that had happened. On that day, following mounting worry and concern by her mother, she and her parents learnt from their local doctor that she was pregnant. The defendant was referred to hospital and on the 30th January the garda were alerted that a crime had been committed. On the 3rd February, 1992, a full statement was taken by the garda. On the 4th February the hospital confirmed the pregnancy. Faced with a most difficult and harrowing decision and after discussing the tragic situation amongst themselves, both the parents and their daughter came to the conclusion that the best course to adopt was to go to England for an abortion. The parents made known to the garda that they were considering this course and raised with them the possibility of making arrangements that someone could be present in England for the purpose of carrying out a scientific test on the foetus by which it was thought that the identity of the father could be ascertained. The garda concerned explained that he did not know whether such evidence would be admissible but that he would make inquiries. Legal opinion was sought from the office of the Director of Public Prosecutions. On the 5th February the parents were informed that the advice obtained was that the evidence which they sought to obtain would not be admissible in court. They were distressed to hear this but in the course of conversation confirmed that notwithstanding this the defendant and her parents were going to England the next day. On the 6th February the defendant and her parents travelled to England and arrangements were made there for an abortion to take place. Whilst in England they learned that an injunction had been granted. They cancelled the arrangement and returned to Ireland. It has been made clear by counsel that the defendants intend to abide by the order of the court. But it has also been made clear that, if an injunction is not granted, the arrangement for the abortion will go ahead. When the defendant learned that she was pregnant she naturally was greatly distraught and upset. Later she confided in her mother that when she [1992] The Attorney General v. X 8

1 I.R.

Costello J.

H.C.

learned she was pregnant she had wanted to kill herself by throwing herself downstairs. On the journey back from London she told her mother that she had wanted to throw herself under a train when she was in London, that, as she had put her parents through so much trouble, she would rather be dead than continue as she was. On the 31st January, 1992, in the course of a long discussion with a member of the Garda Sochna she said: "I wish it were all over. Sometimes I feel like throwing myself downstairs". And in the presence of another member of the Garda Sochna, when her father commented that the situation "was worse than a death in the family", she commented "Not if it was me." On the day of her return from London the defendant's parents brought her to a very experienced clinical psychologist. He explained in his report that he had been asked to assess her emotional state; that whilst she was co-operative she was emotionally withdrawn, that he had concluded that she was in a state of shock and that she had lost touch with her feelings. She told him that she had been crying on her own but had hidden her feelings from her parents to protect them. His opinion was that her vacant expressionless manner indicated that she was coping with the appalling crisis she faced by a denial of her emotions. She did not seem depressed but he said that she "coldly expressed a desire to solve matters by ending her life." In his opinion, in her withdrawn state she was capable of such an act, not so much because she is depressed but because she could calculatingly reach the conclusion that death is the best solution." He considered that the psychological damage to her of carrying a child would be considerable and that the damage to her mental health would be devastating". His report was supplemented by oral testimony. He explained that in the course of his consultation with the defendant she had said to him: "It is hard at fourteen to go through the nine months," and that she said: "It's better to end it now than in nine months' time." The psychologist understood this to mean that by ending her life she would end the problems through which she was putting her parents, with whom she has a very strong and loving relationship. The proceedings The enactment of the Eighth Amendment to the Constitution Act, 1983, resulted in the insertion of a new section (Article 40, s. 3, sub-s. 3) in the Constitution which provides: "The State acknowledges the fight to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right."

[1992] 1 I.R.

The Attorney General v. X

9 H.C.

Costello J.

This constitutional amendment was effected in the manner prescribed by Article 46 of the Constitution, namely, by means of a Bill passed by the two Houses of the Oireachtas, which was approved by the People in a referendum. The information that the defendant and her parents intended to go to England for the purpose of an abortion was conveyed to the Attorney General. The duty of the Attorney General in the circumstances cannot be in doubt. Provision is made in the Constitution for the office of Attorney General. He is legal adviser to the Government. But in addition the Constitution imposes on him duties which he must fulfil independently of the Government. As pointed out by the Chief Justice in The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd. [1988] I.R. 593 at 623, once it is established that activities constitute assistance to pregnant women to go out of the jurisdiction for the purpose of having an abortion, then this activity directly threatens the right to life of the unborn and the Attorney General is an

especially appropriate person to invoke the jurisdiction of the court in order to vindicate and defend the light to life of the unborn. Acting as required by the Chief Justice, the Attorney General instructed counsel to apply to the High Court so that the court could, in the light of the facts to be established before it, make an appropriate decision. The summons in which the young expectant mother was joined as the first defendant and her parents as second and third defendants claimed the following orders: "(a) An order restraining the defendants their servants or agents or anyone having knowledge of the order from interfering with the right to life of the unborn as contained in Article 40, s. 3, sub-s. 3 of the Constitution of Ireland on such terms as to this honourable court shall seem meet and just. (b) An order restraining the first defendant from leaving the jurisdiction of this honourable court or the second and third defendants, their servants or agents or anyone having knowledge of the said order from assisting the first defendant to leave the aforesaid jurisdiction for a period of nine months from the date hereof or such other period as may be specified by this honour- able court. (c) An order restraining the first defendant her servants or agents or anyone having knowledge of the said order from procuring or arranging a termination of pregnancy or abortion whether within or without the jurisdiction of the honourable court." An ex parte application was made before me on the morning of the 6th February, 1992, and I granted a temporary order in the terms claimed in the [1992] 1 I.R. The Attorney General v. X 10 H.C.

Costello J.

summons until the 10th February. As already stated, the defendants had in fact left the jurisdiction but decided to return once knowledge of the court's order had been conveyed to them. On February 10th, the application for interlocutory relief until the trial of the action came before me. I was requested to hear it in camera . By s. 45 of the Courts (Supplemental Provisions) Act, 1961, jurisdiction is conferred on the court to hear "minor matters" otherwise than in public. As the first defendant was a minor and as the distress from which she was suffering would have been immeasurably increased had her name become known and the facts of this case given publicity, I concluded that in her interests I should accede to the request. In camera hearings in minor matters are by no means uncommon. When they raise issues of law which require a written judgment, then the judgment is so drafted as to preserve the minor's anonymity, and then circulated and made public in the ordinary way. Because of the need to dispose of the case at the earliest possible time, I suggested to counsel that consideration be given to treating the motion as the trial of the action, with leave to call oral evidence. Having taken instructions, counsel agreed to this course. I ordered accordingly and by agreement heard the case on (a) the evidence contained in the affidavits which were filed and (b) the oral evidence which was adduced. Both parties co-operated in making available witnesses which the other side required. Legal issues There are four legal issues raised in this case which I think can best be dealt with in the context of the submissions advanced on the defendants' behalf. (1) The first issue is a jurisdictional one. It was urged on behalf of the defendants that, because the Oireachtas had not enacted any law regulating the manner in which the right to life of the unborn and the right to life of the mother referred to in the Eighth Amendment could be reconciled, the court could make no order in a case in which an issue of reconciliation arose.

I do not think that this submission is well founded. The Constitution acknowledges many rights which the courts are required to protect and vindicate. There have been hundreds of cases in which they have carried out this constitutional duty, even though no law has been enacted by the Oireachtas regulating the manner in which it is to be done. The right acknowledged in the Eighth Amendment is clear and unambiguous and the court's duty to protect it is imperative. It was explained in the following words by the Chief Justice in The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd. [1988] I.R. 593 at p. 623 of the report: "If it is established to the satisfaction of the Court that the admitted activities of the defendants constitute an assistance to pregnant women within the jurisdiction to go out of the jurisdiction for the purpose of having an abortion, then that is an activity which directly threatens the right to life to the unborn, not only in a single case but in all cases of women who are assisted by those activities to have an abortion. If, therefore, the jurisdiction of the courts is invoked by a party who has a bona fide concern and interest for the protection of the constitutionally guaranteed right to life of the unborn, the courts, as the judicial organ of government of the State, would be failing in their duty to refuse upon the grounds that no particular pregnant woman who might be affected by the making of the order was represented before the courts." It seems to me that if the court is apprised of a situation in which the life of the unborn is threatened then it would be failing in its constitutional duty to protect it merely because the Oireachtas had failed to legislate on how it was to have regard to the equal right of the mother, as provided for in the Eighth Amendment. Complicated and difficult issues of fact may, of course, arise in individual cases but that does not inhibit the court from applying the clear rule of law laid down in the Amendment. (2) The second issue arises from the mother's right to life acknowledged by the Eighth Amendment. It was submitted on behalf of the defendants that although the Eighth Amendment required the courts to defend and vindicate the life of the unborn, they were, in doing so, to have regard to the equal right to life of the mother; that in doing so in this case the court should not make the order sought because this would prejudice the mother's right to life because of the very real danger which it is said the evidence established that she would take her own life if the order was made and she was unable to procure an abortion. The situation which has arisen in this case is not one of those which may arise in the practice of medicine, namely, a situation in which surgical intervention, necessary to save the life of the unborn, may involve risk to the mother's life, or in which the surgical intervention necessary to save the life of a mother may involve risk to the life of the unborn. This is a case in which the risk to the mother's life comes from herself. What the court is asked to do is not to make an order because if it did the mother may take her own life. I think that in a case such as this, involving a young girl in a highly [1992] 1 I.R. The Attorney General v. X 12 H.C.

Costello J.

distressing and deeply disturbing situation, the court has a duty to protect her life not just from the actions of others but from actions she may herself perform. What the court, therefore, is required to do is to assess by reference to the evidence the danger to the life of the child and the danger that exists to the life of the mother. I am quite satisfied that there is a real and imminent danger to the life of the unborn and that if the court does not step in to protect it by means of the injunction sought its life will be terminated. The evidence also establishes that if the court grants the injunction sought there is a risk that the defendant may take her own life. But the risk that the defendant may take her own life if an order is made is

much less and is of a different order of magnitude than the certainty that the life of the unborn will be terminated if the order is not made. I am strengthened in this view by the knowledge that the young girl has the benefit of the love and care and support of devoted parents who will help her through the difficult months ahead. It seems to me, therefore, that having had regard to the rights of the mother in this case, the court's duty to protect the life of the unborn requires it to make the order sought. (3) The third issue relates to the girl's right to liberty. It is submitted on the defendants' behalf that the order sought would infringe the first defendant's constitutional right contained in Article 40, s. 4 which provides that no citizen shall be deprived of his personal liberty save in accordance with law. This submission is based on conclusions which, it is suggested, follow from the decision of the Supreme Court in Ryan v. Director of Public Prosecutions [1989] I.R. 399. This was a case dealing with the principles on which bail should be granted or refused in criminal cases. The court reaffirmed the views expressed in the earlier case of The People v. O'Callaghan [1966] I.R. 501 which held that it was contrary to the concept of personal liberty enshrined in the Constitution that a person should be deprived of his liberty upon the belief that he would commit offences if left at liberty. It was urged that the Attorney General in this case by asking the court to prohibit the defendant from exercising her right to personal liberty by going to England was seeking the sort of order which the Supreme Court in O'Callaghan and in Ryan had condemned. It seems to me that this submission is based on a misunderstanding of what these cases decided. They decided that in a criminal case an accused cannot be imprisoned pending trial merely because it may be apprehended that he would commit further offences if he remained at liberty. They did not decide that the court cannot order a defendant to refrain from doing an unlawful act, if necessary by restraining his or her constitutional right to liberty. If a constitutional right is being abused by exercising it to commit [1992] 1 I.R. The Attorney General v. X 13 H.C.

Costello J.

a wrong (as would be the case when travelling abroad to procure an abortion) then the court may restrain the wrongful act even though this may involve the curtailment of the exercise of a constitutional light. (4) The fourth issue relates to European Community law (which I am required to determine and in respect of which no request to refer to the Court of Justice of the European Community under Article 177 was made). Our courts must enforce Community law; and if that law conflicts with Irish law, including Irish constitutional law, then Community law will prevail. It is submitted on the defendants' behalf that a light to travel abroad to obtain an abortion is conferred on the defendant by Community law and if this is so then, notwithstanding the provisions of the Constitution and the Eighth Amendment, the court cannot grant an injunction to stop her. Article 59 of the Treaty of Rome provides that restrictions on the freedom to provide services "shall be progressively abolished within the Community", and Article 60 provides that services shall be considered as"services" within the meaning of the Treaty when they are normally provided for remuneration. The Court of Justice of the European Community

has decided that "medical termination of pregnancy performed in accordance with the law of the State in which it is carried out constitutes a service within the meaning of Article 60." (S.P.U.C. v. Grogan (No. 2) Case
159/90 [1991] 3 C.M.L.R. 849). Earlier it had decided that the freedom to provide services in the Treaty includes the freedom for the recipient of services to go to another Member State in order to receive a service there without being subject to restrictions, and that persons receiving medical

treatment are to be regarded as the recipients of services ( Luisi and Carbone v. Ministero del Tesoro Cases 286/82 and 26/83 [1984] 1 E.C.R. 377 at page 403). I was referred by counsel for the defendants to Council Directive 73/148/EEC, a directive dealing with the abolition of restrictions on movement in relation to the supply of services. This directive made provision not only for the suppliers of services but also in relation to the recipients of services. It provided in Article I that Member States were required to abolish restrictions on the movement of nationals wishing to go to another Member State as recipients of services. Accordingly, it was submitted that the first defendant as a proposed recipient of a service within the meaning of Articles 59 and 60 cannot be subjected to restrictions on her travel to England for the purpose of receiving it. Counsel for the Attorney General, whilst not disputing the general principles of Community law on which the defendants rely, refers to Article 8 of Council Directive 73/148/EEC, which provides:

[1992] 1 I.R.

The Attorney General v. X

14 H.C.

Costello J.

"Member States shall not derogate from the provisions of this directive save on grounds of public policy, public security or public health." It is submitted on behalf of the Attorney General that the Eighth Amendment and the legal consequences which flow from it (including the jurisdiction of the court to prohibit persons from leaving the country to obtain an abortion) amount to a derogation by Ireland from those principles which is permitted on the grounds of public policy. The Court of Justice of the European Community has expressed an opinion as to the meaning of "public policy" in the context of freedom of movement of workers within the Community contained in Article 48, a right which under Article 48 (3) is declared to be subject to limitations justified on grounds of "public policy, public security or public health". In the course of its judgment in Regina v. Bouchereau Case 30/77 [1977] 2 E.C.R. 1999 at pp. 2013-2014 it was stated: "The third question asks whether the words 'public policy' in Article 48 (3) are to be interpreted as including reasons of state even where no breach of the public peace or order is threatened or in a narrower sense in which is incorporated the concept of some threatened breach of the public peace, order or security, or in some other wider sense. Apart from the various questions of terminology, this question seeks to obtain a definition of the interpretation to be given to the concept of 'public policy' referred to in Article 48. In its judgment of 4th December, 1984 (Case 41/74 Van Duyn v. Home Office [1974] E.C.R. 1337 at p. 1350) the court emphasised that the concept of public policy in the context of the Community and where, in particular, it is used as a justification for derogating from the fundamental principle of freedom of movement for workers, must be interpreted strictly so that its scope cannot be determined unilaterally by each Member State without being subject to control by the institutions of the Community. Nevertheless, it is stated in the same judgment that the particular circumstances justifying recourse to the concept of public policy may vary from one country to another and from one period to another and it is therefore necessary in this matter to allow the competent national authorities an area of discretion within the limits imposed by the Treaty and the provisions adopted for its implementation.

In so far as it may justify certain restrictions on the free movement of persons subject to Community law, recourse by a national authority [1992] 1 I.R. The Attorney General v. X 15 H.C.

Costello J.

to the concept of public policy pre-supposes, in any event, the existence in addition to the perturbation of the social order which any infringement of the law involves of a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society." It is urged on the Attorney General's behalf that the general principles established in Regina v. Bouchereau Case 30/77 [1977] 2 E.C.R. 1999 in relation to the concept of public policy in the context of freedom of movement of workers can be applied to the concept of public policy in relation to the freedom to provide and receive services under Articles 59 and 60. I think this is a valid submission. This means that I should approach the restrictions which are imposed by national law in this case on the basis that recourse to public policy may vary from one country to another and from one period to another and that Community law recognises the necessity of allowing competent national authorities an area of discretion within the limits imposed by the treaty and the provisions adopted for its implementation. The issue of whether the unborn have a right to life or whether women have a right to have an abortion are moral issues on which there are profound differences and deeply held views throughout the contemporary world. In Ireland the legislature and later a majority of the Irish electorate unequivocally expressed a definite conclusion on these issues by a constitutional amendment which acknowledged the light to life of the unborn and imposed duties on the organs of government to defend and vindicate that right. The Eighth Amendment was clearly an expression of public policy and the issue for determination on this part of the case is whether Community law prohibits Ireland from exercising the power of derogation on the grounds of public policy in this particular way. I can find no provision or principle of Community law which would prohibit the exercise of the discretionary power to derogate in the manner contained in the Eighth Amendment. On the contrary, Community law already recognises that within the Community wide cultural differences exist and has permitted derogations which flow from such differences. I can see no reason why it should refuse to do so when the derogation by a Member State arises because of deeply held convictions on moral issues. Indeed, I think the attainment of the fundamental objectives of the Treaty is enhanced by laws which assist in the development of a Community in which legitimate differences on moral issues are recognised and which does not seek to impose a spurious and divisive uniformity on its members on such issues.

[1992] 1 I.R.

The Attorney General v. X

16 H.C.

Costello J.

In considering certain issues of public policy in Community law it may be relevant to consider the jurisprudence of the European Court of Human Rights. It seems to me that the case law of that court supports the conclusions which I have reached for that court has allowed, when considering limitations imposed by national laws on the exercise of the Convention's guaranteed rights, national authorities a margin of appreciation in relation to laws dealing with moral issues. In considering issues of public policy I should also examine the measure of derogation to see whether it passes the test of proportionality. The aim of the Eighth Amendment was to ensure

that the right to life of the unborn is adequately protected. I do not think that a measure which empowers a court to stop a woman going abroad (which taken in conjunction with constitutional principles is one of the effects of the Eighth Amendment) to terminate the life of the unborn is disproportionate to the aim which the Eighth Amendment seeks to achieve. Indeed, in the absence of such a power the protection afforded to the right to life which the Constitution acknowledges would be in many cases worthless. I must therefore hold that there has been a permissible derogation from the requirements of Articles 59 and 60 of the Treaty and the relevant implementing measures and that Community law does not preclude the court from making the order which the Constitution requires it to make. I will therefore make the orders as claimed in the plenary summons. By notice of appeal of the 21st February, 1992, the defendants appealed from the judgment and order of the High Court to the Supreme Court. (Finlay C.J.; Hederman, McCarthy, O'Flaherty and Egan JJ.) The appeal in the Supreme Court was heard on 24th, 25th and 26th February, 1992. Patrick Keane S.C. for Radio Telefs ireann ireann . I am applying on behalf of my client Radio Telefs ireann ireann for liberty to attend and report the appeal. Finlay C.J.: This Court has already received a letter from other newspapers to the same effect; what locus standi do you have for this application? Patrick Keane S.C. : My client is the national broadcasting station and represents the interests of the public; this case is one of considerable public interest.

[1992] 1 I.R.

The Attorney General v. X

17 S.C.

Costello J.

Finlay C.J.: This Court is of the view that you have no locus standi. Do you have any authorities in support of your application? Patrick Keane S.C. : No. Finlay C.J. : Then I must refuse your application and the appeal will be conducted in camera . There is nothing which justifies this case from being treated differently from other in camera cases. Peter Shanley S.C. and James O'Reilly S.C. (with them anna anna Mulloy )for the plaintiff. John Rogers S.C. (with him Mary O'Toole and Seamus Woulfe ) for the defendants. Finlay C.J. : Mr. Rogers do you wish the appeal to be heard in camera ? John Rogers S.C. : I would prefer to have complete anonymity in the matter. Peter Shanley S.C. : Likewise with the State. John Rogers S.C. : The absence of the defendants from the Court should not be taken as undermining the very strong disquiet of my clients in respect of the High Court judgment. I am to advance every possible ground that will permit the defendant to pursue the decision made for her in good faith and in all conscience by her parents. We all know what this case is about. We assert that X. has a right under the Constitution to have the abortion. As a matter of Community law and particularly under Article 29 of the Constitution, the Constitution must defer to those established principles of Community law, viz. the right to travel and receive a service in another Member State albeit that the principle is subject to higher interests under the concept of public policy. The derogation in this instance from that Community right is contrary to public policy as enunciated by the Court of Justice of the European Communities the High Court order which restricts the exercise of this right cannot be justified on the grounds of public policy in this case.

It could not be compatible with European Community law. These proceedings are directly targetted at activity lawfully carried out in another Member State. Finlay C.J. : This Court should apply this principle of Community law to which you refer. Are you saying it is an acte clair , and a reference under Article 177 of the EEC Treaty is unnecessary? Can you say there is no ambiguity in E.C. law on this issue? John Rogers S.C. : Yes my Lord. That is correct. However should you decide otherwise I am saying that a reference under Article 177 must be made. What was or is the nature and effect of the Eighth Amendment? I refer to the High Court judgment and to the submissions made in the High Court. [1992] 1 I.R. The Attorney General v. X 18 S.C.

Costello J.

Four substantive points were made. I will deal with the first: The failure of the Oireachtas to make laws for the purpose of Article 40, s. 3, sub-section 3. The learned trial judge had no guidance, post-Eighth Amendment, as to how to give effect to the equal right to life of the mother under the Eighth Amendment. The trial judge found that there was a clear rule of law in the Eighth Amendment. According to the trial judge the Amendment itself carried its own meaning and effect. The trial judge referred to The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd. [1988] I.R. 593 at page 623. I say that contrary to the learned trial judge's finding there is no clear rule laid down in the Eighth Amendment. There are a number of different tests that may be applied: immediate risk or peril of instant death or mere risk of death or likely risk to mother's health and welfare, etc. This is what I meant in my submission as to the lack of guidance given by the Oireachtas. I would refer to G. v. An Bord Uchtla [1980] I.R. 32 at page 69; McGee v. Attorney General [1974] I.R. 284 at page 312 and Norris v. The Attorney General [1984] I.R. 36. In particular I would refer to an obiter dictum of Walsh J. in G. v. An Bord Uchtla where he very strongly stated the right of the unborn as an absolute test and one which, I submit, has certainly been qualified by the Eighth Amendment. In McGee (pp. 311 and 312) Walsh J. seems to introduce a personal fight, pre-amendment, of the unborn. This certainly was ratio in Walsh J.'s judgment though perhaps not of the fun Court. Again, it is presented as an absolute right: the right to have the unborn life protected from destruction. Finlay C.J. : Isn't it correct to say that in both decisions referred to, viz. The Attorney General (S.P.UC.) v. Open Door Counselling Ltd. and S.P.U.C. v. Grogan there was no balancing exercise required? The Court was merely voicing the right to life of the unborn. McCarthy J. : Aren't you better off saying that prior to the Eighth Amendment, pre-1983, the right of the unborn was absolute? John Rogers S.C. : That is in effect the substance of my submission. In Norris v. The Attorney General at p. 103 McCarthy J. referred to the right to life of the unborn as a "sacred trust" to which all the organs of government must lend their support. This dictum of McCarthy J. merely voices the dicta of Walsh L, namely, it recognises the right to life of the unborn. Where else do you go to define the extent of the right to life of the unborn? That is found in the law itself s. 58 of the Offences Against the Person Act, 1861. This rule of law, pre-1983, made it unlawful to procure a miscarriage or more correctly a crime to unlawfully procure an abortion. How was that law applied? In Rex v. Bourne [1938] 3 All E.R. 615, which [1992] 1 I.R. The Attorney General v. X 19 S.C.

Costello J.

involved a charge to a jury in a trial for a s. 58 offence, Macnaghten J. said that the "duty of a surgeon to carry out the abortion existed where the consequences of the pregnancy would make the mother a physical and mental wreck." The surgeon was not obliged to wait for that ultimate contingency. I don't propose to go that far in this case. Referring again to the judgment in Bourne , no person ought to be convicted unless the act was not done in 'good faith' with a view to preserving the life of the mother. In Bourne the victim was a fourteen year old rape victim like the instant case. Hederman J. : But that test is only for the purposes of being a defence to a criminal charge; one upon which a jury might be entitled to acquit and having regard to the burden on the prosecution to prove beyond all reasonable doubt. McCarthy J. : Mr. Rogers, the report of the charge to the jury in the original King's Bench Reports is considerably shorter than what you are now opening to us from the All England Reports. Your submission is based on what the law was prior to 1983 and how this is to be gleaned from the charge to the jury in this particular trial. It appears however that the trial judge himself, for the purposes of expounding the law in the official reports, was prepared after due reflection to adopt much less in the way of legal rules or principles for posterity. John Rogers S.C. : I will continue reading from the All England Report. I don't think anything substantive turns on any omissions. I do not contend for a test which goes as far as in Bourne but the balancing of interests which is raised there must also exist in this case. Risk of immediate death was not the only consideration raised and accepted in Bourne . The Bourne test raised the issue of balancing which doctors in this State are doing. It is happening: we can't deny it. The "physical and mental wreck" test in Bourne is not part of my argument, nor do I intend to go that far the liberal character ofBourne does not have to be accepted by this Court. Finlay C.J. : Are you pre-1983 or post 1983 in your submission at this stage? John Rogers S.C. : Pre-1983. I say the testis that there must be as a matter of probability a real and substantial risk to the life of the mother this is a more restrictive test than in Bourne . Finlay C.J. : Are you now saying that there was a standard before the Amendment? Egan J. : Are you saying this test would have given the mother greater rights? Are you saying this was not changed? John Rogers S.C. : I am saying that there was no post-amendment guideline for the Eighth Amendment itself but there was a pre-amendment [1992] 1 I.R. The Attorney General v. X 20 S.C.

Costello J.

common law guideline of real and substantial risk to the life of the mother, which test survived the Eighth Amendment. [McCarthy J. : Does that mean the mother's life is superior?] The restrictive gloss I give to Bourne is not incompatible with the Eighth Amendment. On the Eighth Amendment: (a) By its very terms it does not give an absolute right on either side; (b) the two rights are juxtaposed as equal and therefore the Eighth Amendment recognises the conflict which may arise and which may require reconciliation. Explicit in the Eighth Amendment is the duty to vindicate and defend "that right" that is the right to life of the unborn. Can this mean there can never be an abortion? The obvious answer to this is no. Equation of equality throws the emphasis back to "as far as is practicable." Finlay C.J. : Article 40, s. 3, sub-s. 3, you say, explicitly guarantees to defend and protect the right to life of the unborn. Hederman J. : The Irish version says "possible". O'Donovan v. The Attorney General [1961] I.R. 114. McCarthy J. : The State guarantees to "respect in its laws". John Rogers S.C. : That means the State acknowledges the right to life of the unborn but then Article 40, s. 3, sub-s. 3 goes somewhat further to say"vindicate and defend". The equality of

right is thrown into focus by the primary conditioning clause of "as far as is practicable" having regard to the rights of the mother. My restrictive gloss in the Bourne test is consistent with the Eighth Amendment. [McCarthy J. : What does the term "due regard" mean?] It means "appropriate and proper" in the circumstances of the case and the background of the Constitution. Finlay C.J. : What is the significance of established constitutional standards in giving meaning to "appropriate and proper"? John Rogers S.C. : I submit, it is appropriate to the "right of the mother".The Bourne test is a test directed to practicability and this automatically makes it attractive. This test must apply how else, in circumstances of this kind, is a decision to be made by a doctor? Would it be right for the courts to second guess the truly considered decision of parents which has been confirmed by medical evidence to assist and protect their child? McCarthy J. : Isn't the real issue the grounds on which the decision is made is it material that the child is not sui juris ? John Rogers S.C. : Yes, my Lord. The issue is the grounds on which the decision is made. The test provides an adequate test for the purpose of the Eighth Amendment that is the Bourne test. If you adopt a higher test of the imminent risk of death of the mother, women will die. If women die needlessly because their lives are only saved when there is imminent risk of death, this is going too far and would be contrary to the common good. [1992] 1 I.R. The Attorney General v. X 21 S.C.

Costello J.

It breaches equality in the Eighth Amendment and is contrary to the public good. The life of a mother will be needlessly lost. Egan J. : The Eighth Amendment says "due regard" to the life of the mother. As a matter of reason the threat of imminent death is too high as a test. The absence of adequate protection for the life of the mother is itself contrary to the public good. Finlay C.J. : Surely the more appropriate principles of justice and charity appear preferable to the terms common good/public good. Are those concepts not referred to in McGee v. Attorney General ? John Rogers S.C. : I accept your Lordship's comment. The learned trial judge did not apply this test. [Reads from High Court judgment: Refers to the trial judge's finding of fact]. Finlay C.J. : Do you take exception to the trial judge's assessment that the risk to the mother's life was or is one of self-destruction? Do you also accept that the Court can save her from her own acts of self-destruction? John Rogers S.C. : Yes, I accept both those findings. Finlay C.J. : What do you say about a psychiatric or mental condition threatening the life of the mother? John Rogers S.C. : On whether a psychiatric ailment would be sufficient? My answer to this is that it must in all cases satisfy the test of real and substantial risk to the life of the mother. The trial judge applied the wrong test which was not justified on a proper construction of the Eighth Amendment. The trial judge seems to have taken on an absolute imperative to protect the life of the unborn. The trial judge made a clear finding that there was a real risk to the life of the mother. Having regard to the manner in which the question was resolved, the test is at too great a price to the life of the mother. What is a "real risk"? The trial judge refers to the risk for the mother as being of a "much less and a different order of magnitude". This is merely to state the obvious. [Egan J. : You say it must be a workable test.] The risk to the mother is always going to be less than the risk to the unborn. The learned trial judge was wrong as a matter of interpretation of the Eighth Amendment and in interpreting the law applicable. The life of the unborn is contingent on the life of the mother.

Finlay C.J. : This is not a general principle for assisting in the interpretation of the Eighth Amendment the unborn child may live independent of the mother after a stage of gestation. It may however be applicable in this case (that is an early stage in pregnancy). O'Flaherty J. : Doesn't the Civil Liability Act, 1961, provide redress for wrongs to an unborn child "provided the child is subsequently born alive"? John Rogers S.C. : The contingent nature of the right to life of the unborn [1992] 1 I.R. The Attorney General v. X 22 S.C.

Costello J.

supports the test I am asking the Court to adopt. McCarthy J. : Are you not better saying "dependant" rather than "contingent".All unborn life is contingent upon the perils of birth. If there is a life in being in the born and the unborn, what is the difference? John Rogers S.C. : On the evidence of the affidavit of the mother. The learned trial judge accepted the mother's evidence that the child was threatening to kill herself. I rely on the report and oral testimony of the senior psychologist. This was descriptive as well as being an opinion. The child has expressed a desire to solve matters by taking her own life. It has a devastating effect on her health. Garda S., an independent witness, recalled the comment by the child that she would take her own life. The nature of the evidence showed a very serious risk to the child's life but the trial judge did not assess it accordingly. McCarthy J. : The trial judge did not consider the risk to the child's life to be greater than or in excess of the risk to the unborn child. Finlay C.J. : Open Door had nothing to do with balancing rights as between the mother and the unborn. John Rogers S.C. : The answer to question 42 (of the transcript) clearly demonstrates the real risk to the life of the mother. All of the evidence satisfies the test which I offered earlier on this morning: that is the gloss onRex v. Bourne : "the real and substantial risk". On the issue of practicability. Is the order of the High Court practicable? The Court must in a case like this derive the law from the Eighth Amendment. The equitable jurisdiction of the Court is exercised only in situations where it is possible to supervise the remedy being sought. The Court has in effect granted a mandatory injunction "You shall have the child." Hederman J. : Surely the Court is saying that you shall not have an abortion? Finlay C.J. : Are you saying that the limitation flows from the principles of equity or from the "as far as practicable" proviso? Where is the sweep of this limitation? Surely the injunction could be granted with a proviso protecting the life of the mother? [McCarthy J. : referred to Kutchera v. Buckingham International Holdings Ltd. ] John Rogers S.C. : What I am appealing against is an absolute order which places the mother's life at serious risk. Whatever orders the Court may make it will not be able to protect the life of the unborn. Because of the intimacy of the mother with the pregnancy it is difficult to police the injunction. Finlay C.J. : But the mother has obeyed this injunction. She has returned to this jurisdiction after cancelling an appointment for an abortion. What more practical consequence could have been achieved?

[1992] 1 I.R.

The Attorney General v. X

23 S.C.

Costello J.

O'Flaherty J. : Can't you argue that if someone invokes the Court, they must see it through? They must be prepared to go the whole hog? McCarthy J. : Practicable Can be done in practice? John Rogers S.C. : I accept that, my Lord. But the difficulties of supervising the injunction remain. I turn now to preventative detention. I would refer to Ryan v. Director of Public Prosecutions [1989] 2 I.R. 399 in particular a reference at p. 406 et seq. Hederman J. : Does the High Court order amount to detention? The defendant is merely being restrained from leaving the jurisdiction. O'Flaherty J. : Leave out detention; what about the freedom of that individual? The High Court order restrains her from leaving the jurisdiction it can only mean detention. Finlay C.J. : What do you say of the validity of guardianship orders which require individuals to deliver up passports and such like? John Rogers S.C. : That is a different situation. The Oireachtas has laid down laws, unlike in this case. In The State (M.) v. The Attorney General [1979] I.R. 73 the right to travel was clearly recognised albeit it was recognised subject to exceptions. Hederman J. : The right to travel is not absolute. Where the fight to travel is exercised for the purpose of destroying the life of the unborn, surely a restriction is justified? John Rogers S.C. : The Constitution is concerned with what happens here in this jurisdiction the Eighth Amendment says nothing of stopping people from leaving this jurisdiction to travel abroad to do something which is lawfully done abroad. Finlay C.J. : What about the commission of offences outside the jurisdiction the Criminal Jurisdiction Act, 1976? John Rogers S.C. : Those acts are unlawful in the foreign state also unlike in this instance. Finlay C.J. : Yes, I see your point. John Rogers S.C. : There is no express warrant in the Constitution to prevent an individual from going abroad to procure an abortion which is lawful abroad. Finlay C.J. : There is a very clear right that children should travel but where the life is in risk of destruction can the Court not permit any limitation? John Rogers S.C. : It is necessary to go back to principles and rights recognised under the Constitution. The Eighth Amendment refers to the State defending and vindicating "by its laws" which I submit refers to laws [1992] 1 I.R. The Attorney General v. X 24 S.C.

Costello J.

of the Oireachtas. I rely on The State (M.) v. The Attorney General at p. 80 in relation to the right to travel. This case wasn't opened in the court below. Also the fluoridation case Ryan v. Attorney General [1965] I.R. 294 at p. 311. Finlay C.J. : Are you saying that until such time as the State acts, that is the Oireachtas, the unborn has less protection? John Rogers S.C. : Yes my Lord, that is what I am saying. The right to travel can only be limited in strict compliance with whatever is absolutely necessary for the purposes of public order or the common good. Hederman J. : But can there be a right to travel for the convenience of having an abortion? Egan J. : Do people not travel out of the jurisdiction to effect some form of divorce, whether such be a valid, effectual divorce or not, and whether they subsequently commit bigamy in this or in any other jurisdiction or not?

John Rogers S.C. : The right to travel is part and parcel of the right to liberty. The precise terms of the Offences Against the State Act, 1939, show for example how the restriction of that right can only be attained in the most strictly construed circumstances. Finlay C.J. : If the law was enacted limiting protection to this jurisdiction, would it not itself be struck down as being unconstitutional and in breach of the Eighth Amendment? This Court is an equal organ of government and therefore it is under a continuing obligation to uphold the Constitution. Second day of hearing John Rogers S.C. : I wish to address the Court on the Protocol to the Maastricht Treaty and to a policy statement by the Government in relation to the application and enforcement of the Eighth Amendment. My solicitors wrote to the plaintiff on the 21st February, 1992, requiring information as follows: What is the nature and status of the proposed Protocol to the Maastricht Treaty whereby the State is to be entitled to derogate from the provisions of the Treaty of Rome as amended at Maastricht? Please furnish full particulars of this Protocol indicating whether the Protocol has yet come into being or effect as a legal instrument and furnish all documents emanating from government depart- ments wherein the position of this State and its requirements regarding the proposed Protocol are set forth. Further please furnish all documents whereby representations were made to the Institutions or member States of the European Community regarding the nature, purpose, effect and implementation of the Eighth Amendment of the Constitution are set out.

[1992] 1 I.R.

The Attorney General v. X

25 S.C.

Costello J.

Finlay C.J. : On what basis do you purport to introduce or prove anything in relation to the Protocol? What is the form of the evidence which you would like to present? Peter Shanley S.C. : I respectfully submit that matters pertaining to the Protocol are not relevant to these proceedings. My client, the Attorney General, is quite distinct from the other parties who may or may not have made representations. Finlay C.J. : Mr. Rogers, on what basis is this relevant to these proceedings? John Rogers S.C. : I am saying that representations by the Government were made to the effect that it would not enforce the Eighth Amendment in the manner proposed in this case; that is to restrict people from going abroad. My clients feel aggrieved that they are in some way being singled out for different treatment. Finlay C.J. : You are asking to see the content of these written representations in order to determine the binding character and the legal nature of the Protocol. McCarthy J. : This touches on whether the Eighth Amendment is to be enforced in Ireland alone. John Rogers S.C. : Yes. This Court should know the answer to this question and further it is apparent that in this particular case the defendant is being treated in a discriminatory manner and contrary to Article 40, s. 1 of the Constitution. Finlay C.J. : Mr. Shanley what do you say now? An allegation is made that documents exist which constitute representations made by the Executive to Member States of the European Community concerning the nature, purpose and effect of the Eighth Amendment, which in effect show (a) that this defendant is being treated differently from other possible parties in a similar situation and (b) that an undertaking was given by the State not to enforce the Eighth Amendment outside the State. Would you like to address these issues? Peter Shanley S.C. : I haven't seen the documents. I don't know if such exist and even if they do, whether they are relevant. Finlay C.J. : Assume that the documents do what Mr. Rogers claim they do. Would this Court not have to see those documents? It seems to me that where the relevance of documents is

immediately in issue, and having regard to the wide sweep of the issues before us, we should see them. Peter Shanley S.C. : The documents in issue should be produced to be examined by the Court. Finlay C.J. : The appeal will continue and this issue may be addressed at a later stage. Mr. Rogers, do you wish the Court to continue hearing this [1992] 1 I.R. The Attorney General v. X 26 S.C.

Costello J.

appeal in camera ? John Rogers S.C. : I did not make the application for an in camera hearing. It was the Attorney General's application. [Egan J. : But didn't you support it?] Finlay C.J. : But do you wish for this hearing to continue in camera? John Rogers S.C. : Yes. Resuming the right to travel submission; I would refer to The State (Burke) v. Lennon [1940] I.R. 136 at page 172 and In re the Offences Against the State (Amendment) Bill, 1940 [1940] I.R. 470 at page 481. The judgment of O'Sullivan C.J. is of relevance in so far as it pinpoints the Oireachtas as the obvious focus for law making in the State. Ryan v. Attorney General [1965] I.R. 294. I would refer to page 312: There Kenny J. specifically pinpointed special considerations for "medical matters". The Oireachtas has to reconcile the rights of the common good. Finlay C.J. : Where does that authority lead us in this case? Are you saying that this Court cannot restrict the exercise of the right to life of the unborn because the Oireachtas has not done so? John Rogers S.C. : No. I am referring to the Oireachtas as being the organ of government which is peculiarly well placed to harmonise and balance the rights of individuals. There was an implicit right to life of the unborn prior to the Amendment (s. 58 of the Offences Against the Person Act, 1861,) and the Eighth Amendment merely entrenched a prohibition against abortion in this State. There is nothing in the Eighth Amendment to justify or warrant the State restricting the individual from going abroad just as it had no right to do so prior to the Eighth Amendment. Finlay C.J. : Why do you say the "law" can only be a law emanating from the Oireachtas? I am not following the proposition that because the Oireachtas has not intervened, that the Eighth Amendment requires legislation for the right to life of the unborn to be protected against the exercise of the mother's constitutional lights. Are you saying that this Court must sit idly by? Egan J. : Was the order of Costello J. not a "law"? John Rogers S.C. : No, the Court must reconcile them. Can the light of the unborn have trammelled the mother's light to travel? The unborn cannot have absolute rights. Finlay C.J. : How else can it do that but by regulating one right as against the other? Egan J. : Was there any balancing in The People v. Shaw ? John Rogers S.C. : I accept the Court must balance the rights in conflict. In effect, the Court is forced to make law on this point. [Egan J. : We have [1992] 1 I.R. The Attorney General v. X 27 S.C.

Costello J.

been given no guidance at all by the Oireachtas.] Other constitutional considerations arise for determination the separation of powers in particular. If this Court would not enjoin the State to enact laws to protect the life of the unborn (for example by mandamus) then it cannot enjoin the individual in this case. To do so would result in a hit and miss regulation of the constitutional protection and to allow this would be discriminatory and contrary to Article 40, section 1.

[McCarthy J. : The Court could grant a declaration.] Yes, my Lord, but it would not interfere into the executive or legislative domain. Hederman J. : What you are really saying in this context is that the right to life of the unborn is qualified by the right to life of the mother. If you are wrong on this, you are then saying the protection cannot involve a restriction on the individual travelling out of the State. Finlay C.J. : You would then have no grounds of objection to an order merely prohibiting the individual from having an abortion in this State? John Rogers S.C. : Yes, that is correct. Hederman J. : What if the order also restricted the plaintiff from going abroad to have an abortion. Is this an acceptable restriction? John Rogers S.C. : I respectfully submit the situation is the same. [sic. ] McCarthy J. : What if the mother went abroad to recuperate and then changed her mind? Referring to Costello J.'s judgment, it is a clear statement of the court's power to proceed or act without the existence of legislation. Do you accept that this is correct? John Rogers S.C. : Yes I do, but there must be a limit on the court's power. If not the whole principle must be reviewed. I would refer to a dictum of Griffin J. in The People v. Shaw [1982] I.R. 1 at p. 61 concerning the harmonising of constitutional lights. In order to determine how this conflict is to be resolved the Court must look at how these laws are generally applied. There are no laws enacted by the Oireachtas to monitor or regulate the right to life of the unborn. Egan J. : Is there any balance between the mother's right to travel and the light to life of the unborn? Finlay C.J. : Do you accept that this Court has a function to reconcile these two rights? John Rogers S.C. : In achieving a balance, let us approach it in a consistent manner. This Court must look to see whether laws are being generally applied. Finlay C.J. : What must be the result of the balance in this case? John Rogers S.C. : I respectfully submit that the light to travel must take priority. Hederman J. : Is that not going against your earlier submission when you [1992] 1 I.R. The Attorney General v. X 28 S.C.

Costello J.

relied on Griffin J.'s dictum in Shaw to balance rights? Finlay C.J. : In Shaw a restriction on the right to liberty was justified in the interests of protecting the fight to life. How can you now say that the fight to travel takes precedence over the fight to life? McCarthy J. : In Shaw liberty was restrained in the hope of saving a life which as it subsequently turned out was already lost. What if Shaw had brought habeas corpus after the time for lawful detention had elapsed? Could the garda have been heard to say in answer that his continued detention was necessary because of their (as it happened) mistaken belief? John Rogers S.C. : I am saying that in this case the fight to travel takes precedence. Finlay C.J. : But that is against the ratio of the grounds of the decision inShaw . On what basis has the right to travel such an elevated constitutional status? John Rogers S.C. : I respectfully submit that like members of paramilitary organisations travelling from here to Northern Ireland to pursue military targets this State has no right to restrict them: neither has the State a right in this case. The State's law, as a fundamental principle, is limited to its own national and sovereign jurisdiction. Lennon v. Ganly [1981] I.L.R.M. 84 is an example of the fight to travel abroad not being limited. My argument here concerns the extent of the court's jurisdiction to restrain certain of the individual's constitutional rights which are sought to be exercised outside the jurisdiction, for example, the right to travel abroad.

Referring to the Eighth Amendment: The Eighth Amendment calls on the State not to make laws authorising abortion except where the life of the mother is affected. Going beyond this, the laws must be the laws of the Oireachtas, which are generally applied. I would refer to Article 13 of the United Nations Declaration on Human Rights on the right to travel. This right may be trammelled by laws which are 'prescribed'. Surely this is the hallmark of a civilised democratic system of law? Standards are prescribed by law. 4th Protocol to the European Convention on Human Rights of 16th September, 1963. Again I would refer to right to travel. Again the fight is trammelled by reference to restrictions prescribed by law, for example, legislation. Finlay C.J. : This Court has on a number of occasions said that legislation to protect constitutional fights is not strictly necessary for example Open Door Counselling in particular. John Rogers S.C. : The Open Door case referred to an activity within the State. There is a real distinction between the two situations. Laws of general application require to be made to give effect to the protections contained in the Eighth Amendment. An interpretation of the Eighth Amendment which [1992] 1 I.R. The Attorney General v. X 29 S.C.

Costello J.

involves enjoining individuals is certainly not warranted the Amendment refers to the State. McCarthy J. : The Court is part of the State and the Court may enjoin an individual who evinces an intention to go abroad for an abortion. Finlay C.J. : A particular and important function of the Court is that it deals with particular cases which come before it. John Rogers S.C. : I will conclude the point by saying the Eighth Amendment was introduced to prevent the State from legislating for abortion, subject to having due regard for the mother's life. The Open Door case is different in the sense already outlined. I now turn to my European law submissions. The second sentence of Article 29, s. 4, sub-s. 3 of the Constitution gives precedence to European Community law over other provisions of the Constitution. [He reads Title III of Treaty of Rome concerning free movement of persons, workers, services and capital.] The only restriction on workers travelling is a restriction by the host state for example, public policy, security or health. Finlay C.J. : What says it is only the receiving or host state which may apply the restrictions? John Rogers S.C. : I say that it is the interpretation under Community law. Hederman J. : Are you saying that it doesn't apply within the State? Is it not designed to prevent discrimination on grounds of nationality? John Rogers S.C. : That is it, my Lord. It is in this context that I say it relates to host sovereign states. Article 48, s. 3 permits a restriction on foreign nationals coming into a Member State on grounds of public policy, security and safety. Finlay C.J. : The rights given by the Chapter relate to workers' rights. John Rogers S.C. : That is correct. Host states are again permitted to introduce restrictions. [He cites Article 59: Provision of Services provides for progressive abolition of restrictions on the provision of services and Article 63.] Finlay C.J. : Mr. Shanley, am I right in understanding that you do not challenge the right to travel under European Community law to obtain the service abroad? Peter Shanley S.C. : Yes, I am not challenging this right. Finlay C.J. : The matter is then one of the interpretation of the restrictions attaching to the principle.

John Rogers S.C. : Again, to emphasise, the restrictions are on foreigners coming into the country. Article 66 is limited only to that extent that is the right to receive services in the host state. In Luisi and Carbone v. Ministerio [1992] 1 I.R. The Attorney General v. X 30 S.C.

Costello J.

del Tesoro [1984] E.C.R. 377 the European Court of Justice held at pp. 397-401 referring to Article 60 that it "established the right of the individual to receive a service." Council Directive 73/148 of 1973 grants a right of residence co-terminous with the light and duration of the service. It is my case that the State cannot introduce a restriction which confounds one of the objectives of the Treaty. [He refers to p. 406, para. 33 and 34 of Luisi judgment.] Controls must be kept within limits permitted by Community law. This was recognised in Luisi and constitutes a clear statement of the individual's right to go abroad to receive a service. Furthermore, controls cannot be put on the right to render it illusory. McCarthy J. : Is it a control in this case? Is it an example of absolute prohibition? John Rogers S.C. : Yes my Lord: It is a restriction of an absolute character. Finlay C.J. : The controls in Luisi were for the purpose of preventing the unauthorised movement of capital. John Rogers S.C. : The control is not just a control on money but also on the service for which the money was being used. [Resuming after lunch : He refers to a letter received from Chief State Solicitor and informs the Court that documents will be made available to the Court as soon as possible], I will return to Luisi v. Carbone . Finlay C.J. : You say that Luisi stands for the proposition that a restriction cannot nullify the right? John Rogers S.C. : That is correct. See Cowan v. Trsor Publique [1990] 2 C.L.M.R. 613. Referring to p. 631, paragraphs 14-17. The reference shows the extent to which the right to travel has been provided and recognised. An individual is entitled to compensation for injuries in the same manner as nationals of the foreign state. I would also refer to the Advocate General's opinion in S.P.U.C. v. Grogan (No. 2) (page 859, para 7). The European Court of Justice held that as the activity was non-economic activity, it was not protected by the Treaty that is the distribution of information by students. From Grogan I submit that the defendant has aprima facie right under Community law to travel for a service (Grogan and Article 59 of Treaty offered in support of this submission.) It is my case that there is no power to prevent or obstruct an individual from leaving the State to avail of a service abroad in another Member State. Referring to the Advocate General's opinion in Grogan : I seek to make the case that the European Court of Justice has emphasised at all times the freedom of movement to avail of services. I submit the Court must scrutinise very carefully the alleged power to restrict such a right. Referring to para. 19 of the Advocate General's opinion, where he says [1992] 1 I.R. The Attorney General v. X 31 S.C.

Costello J.

that the most extensive possible effectiveness must be given to the fundamental rules relating to free movement in the Treaty. The Treaty contains no express provision to permit home states imposing restrictions on the right to travel abroad. This is in contrast to Article 56, where

limitations are permissible with regard to foreigners coming into the country. The basic logic of the Treaty is that the Member States are allowed a level of discretion: a residuary control over activities taking place on their own territory. The State can impose restrictions on services here; it cannot do so in relation to services elsewhere. [He refers to para. 22 Advocate General's opinion.] The Advocate General's opinion supports my case. Finlay C.J. : Isn't the restriction here the restriction on the right to travel? The order is effective within the State. Therefore does this restriction restrict the operation of any service elsewhere? The individual is restricted from leaving this jurisdiction. The High Court order does not restrict the provision of any service abroad. John Rogers S.C. : My argument here is on the right to avail of a service, not specifically the right to travel which necessarily must exist if the right to avail of a service is to be meaningful. Finlay C.J. : Is there any decision acte clair which indicates the answer or must we interpret Community law? In the absence of a decision from the European Court of Justice, how can this Court say that it is an acte clair ? John Rogers S.C. : I take your point, my Lord. McCarthy J. : What do you say the European Court of Justice decision inGrogan stands for? John Rogers S.C. : I say because the Treaty provides for no express restriction being imposed by home states, and in addition, the court in Grogan having recognised the prima facie right to travel abroad; together these features of Community law make it clear, as a matter of Community law, that there is no restriction permitted in this area, in other words restriction by the home state preventing the individual from travelling abroad. The High Court order here is not consistent with the rules of the common market on free travel for the purpose of availing of a service. Finlay C.J. : You say that you cannot impose your law outside the national territory. John Rogers S.C. : Is there any authority for permitting this restriction under Community law? That is what the plaintiff must show. McCarthy J. : Assume that they offer the Constitution as a justification. John Rogers S.C. : I would refer to p. 27 of the Advocate General's opinion in Grogan which is directly in point: restriction on right to travel abroad would be entirely disproportionate. Finlay C.J. : That is obiter . It was not part of the case which the European [1992] 1 I.R. The Attorney General v. X 32 S.C.

Costello J.

Court of Justice had to resolve. In any event it was not addressed by the European Court of Justice. John Rogers S.C. : I think I have made my point on the European Community law dimension. They are my submissions for the moment. Peter Shanley S.C. in reply: The Attorney General adverts to the form of the order. The Attorney General now consents to a less restrictive type of order. The High Court order could now provide that X. is prohibited from travelling abroad for the purpose of an abortion. It would remove the absolute prohibition on travelling actually ordered in the High Court. It now appears that a Community law issue is alive in this appeal. If the Court cannot resolve it on a local issue, for example, a constitutional interpretation, then a reference under Article 177 will have to be made. These are my instructions. I will deal with the function of this Court in giving effect to the Eighth Amendment. I will deal with the argument that it is not a self-executing amendment. The learned trial judge rejected the non self-executing argument put forward by Mr. Rogers. On the question of addressing whether "laws" in the Eighth Amendment must be laws enacted rather than a court order I would refer to The People v. Shaw [1982] I.R. 1 at page 62 and The Attorney General (S.P.U.C.) v. Open Door Counselling [1988] I.R. 593. [He reads p. 62 of Shaw

.] This dictum for the self-executing effect of constitutional provisions is supported by the dictum of the Chief Justice in The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd. at p. 622 of the report. I should inform the Court that the Attorney General felt himself to have no discretion but to take the matter before the High Court. He felt it was not right or appropriate for him to sit in judgment himself or to deal with it on the nod. McCarthy J. : Are you saying he has no discretion? What of a situation where the mother's life is at risk? Should the Attorney General not enquire into the case further beyond mere knowledge before he exercises his constitutional discretion? Peter Shanley S.C. : I will come back to that scenario. But clearly the Attorney General was of the view that he had no discretion. Relying on the above authorities I respectfully submit that "laws"referred to in the Eighth Amendment include orders of the Court. I now turn to the right to life of the mother. I will consider this under the precise words of the Eighth Amendment under the following headings: 1. (1) Due regard is to be had to equal right to life of the mother, and 2. (2) Vindication is to be "as far as practicable".

[1992] 1 I.R.

The Attorney General v. X

33 S.C.

Costello J.

Mr. Rogers propounded a test which he says applied pre-Amendment and now applies postAmendment, a test of "real and substantial risk to the mother". The judgment does not disclose whether this was a test considered by Costello J. He was certainly never addressed to consider it. Equally apparent, it is not clear whether this test flows from Rex v. Bourne [1939] 1 K.B. 687. Looking at the Eighth Amendment: What is contemplated by the Eighth Amendment is not a "probability of risk to the life of the mother". If it were so you would be asking the Court to balance two wholly unequal consequences or risks, namely, probability versus inevitability. If you adopt this approach you are not giving due regard to the life of the unborn. Lives are equal and due regard is to be given to the life of the mother where the mother's life is in imminent danger of death. If you do adopt the other standard you would need only to establish a substantial risk to the life of the mother. If this were permitted, you would not be giving due regard to the life of the unborn. [McCarthy J. : You cannot compare under any circumstances like with like the child either lives or dies it is an absolute position. There is no other standard capable of being applied]. That is correct. Could this Court be treating the lives equally if the Bourne test were to be applied.? Finlay C.J. : It seems to me that the words 'due regard' introduce some constitutional standards which have already been recognised. "Due" has some constitutional significance. It is not a word simply to be weighed in medical or theoretical terms. What do you say to the suggestion that your approach leaves out of account a meaning for the words "due regard"? Was this not dealt with by Walsh and Henchy JJ. in McGee v. Attorney General? ? Peter Shanley S.C. : I think you are right, my Lord. I will come back to this again. You are not having due regard to the equal right of the unborn if the test offered by Mr. Rogers is accepted. McCarthy J. : Are you saying that there is only one answer: the child must be aborted if the mother is in imminent danger of death? If this is so, where does "as far as practicable" enter the equation? Do you accept that the Eighth Amendment envisages a "lawful abortion" in Ireland? Peter Shanley S.C. : Yes, I accept that. For example, a mother suffering from a cancerous condition which requires chemotherapy has the right to have her pregnancy terminated. The pregnancy may be terminated if, but only if, there is an inevitable danger to the right to life of the mother.

Finlay C.J. : Your formula is not a formula of absolute equality. It allows for tolerance. It is an equality until imminence of death. Who should survive? Peter Shanley S.C. : The mother.

[1992] 1 I.R.

The Attorney General v. X

34 S.C.

Costello J.

Finlay C.J. : Why? Would you agree that "due regard" in a broad sense would appear to rest on proper regard for the right to life of the mother? Peter Shanley S.C. : I do accept that. Possibly there are reasons for looking at the whole scheme of rights in the Constitution. McCarthy J. : But if the lives are absolutely balanced why come down on one side or the other? Peter Shanley S.C. : In any event, neither the evidence of the psychologist nor the evidence of the child's mother is sufficient to satisfy the standard offered by Mr. Rogers. As a matter of evidence the test was not satisfied. Hederman J. : Child abuse is an abhorrent crime. The child's expression of wishing death, was it possibly because of the attack or trauma of the assault or abuse rather than because of the pregnancy? This was not addressed by the State. The State ought to have addressed this aspect of the case. Peter Shanley S.C. : The issue was raised my Lord. (Refers to questions asked of Mr. Rogers in the High Court.) Third day of hearing Finlay C.J. : Mr. Shanley, the Court will hear you on all the non-European issues in the case. Peter Shanley S.C. : Referring to plaintiff's calling for inspection and discovery of documents, such documents have been disclosed. There are no representations in writing to any other Member States. [McCarthy J. : If they were oral, are there any minutes?] Not that I am aware of. The late Professor J.M. Kelly in his treatise The Irish Constitution identified a development over time in constitutional interpretation, consisting of five stages. (1) The historical approach; (2) the literal approach; (3) an approach that retained a literal background but looked at the broader context of individual provisions; (4) the natural law interpretation; and (5) the harmonious interpretation of the Constitution. Take the phrase "due regard" and couple with it "as far as practicable".Do we interpret it in a parsed sense, that is, without reference to other constitutional provisions, or is it to be interpreted in the constitutional context as a whole? I refer to McGee v. Attorney General [1974] I.R. 284 and a dictum of Walsh J. at page 319. A source of harmonious interpretation is found in this case. The State (Healy) v. Donoghue [1976] I.R. 325 at 347: O'Higgins C.J. in effect repeats Walsh J.'s dictum but adds referring to the Preamble that [1992] 1 I.R. The Attorney General v. X 35 S.C.

Costello J.

the precepts therein fall to be considered in accordance with concepts of prudence, justice and charity which may gradually change or develop as society changes and develops, and which fall to be interpreted from time to time in accordance with prevailing ideas. See also The State (Browne) v. Feran . I also refer to The State (Director of Public Prosecutions) v. Walsh [1981] I.R. 412 at p. 424 concerning the interpretation of the Constitution. I submit that the general scheme of the Constitution must be the template against or by which to interpret any particular provision.

These authorities support the proposition that a harmonious interpretation must be adopted when interpreting the Eighth Amendment. The terms "due regard" and "as far as practicable" must be given a meaning consonant with the meanings given to them in other parts of the Constitution. The section should be given a meaning not in conflict with the other provisions. What the Eighth Amendment is doing is asking that all these other rights, values, obligations be brought into account when interpreting the Eighth Amendment. Specifically: the girl's rights and duties as a mother, as a sister, as a daughter, as a parent perhaps. [Finlay C.J. : Does the Eighth Amendment take into account the rights of her parents? Should they be weighed when favouring the mother's life over the life of the unborn?] Yes I do say that is so. The mother's right may be superior to the right to life of the unborn because of her other constitutional rights and duties. But we must look at the circumstances in which it calls for determination. Plainly, there has to be more than just a serious risk of probability. I refer to s. 1 of the United Kingdom Abortion Act, 1967, which of course is different from the law in Northern Ireland which was referred to by this Court in The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd. [1988] I.R. 593. In effect Mr. Rogers' test will in practice lapse into the test in s. 1 of the U.K. Act of 1967. Finlay C.J. : Staying with the mother's other rights and obligations, in weighing her right to life as against the right to life of the unborn, can it be said to vindicate the right to life of the mother (which is independently protected under Article 40, s. 3, sub-s. 2) by waiting to a time when her life is in 'imminent danger'? Does this test not fall short of proper vindication"as far as practicable" of her right to life? Take the scenario, wholly independent of this case, where an individual is homeless and on the streets. Is the State entitled to wait until that person's life is in imminent danger before taking steps to vindicate his life and welfare? Peter Shanley S.C. : It does seem to me to require a necessary train of development which will lead to an inevitable death, and accordingly, it may [1992] 1 I.R. The Attorney General v. X 36 S.C.

Costello J.

be better to intervene at the earlier, or earliest stage. Finlay C.J. : Would that appear to concede the correctness of Mr. Rogers' contention? Peter Shanley S.C. : If a woman who becomes pregnant will lose her life if she carries it to full term then the State may intervene. But such a woman's death is inevitable unlike in Mr. Rogers' client's case. Finlay C.J. : Medical knowledge can prophesy that death will follow if an abortion is not carried out. But here we are dealing with a risk, which, generally speaking, is quite different in character to your example. If the risk happens, it can do so without any opportunity of intervention by anybody, unlike in your scenario. Does your formula not appear largely inflexible with regard to the particular facts obtaining in this case? What about the conduct of the mother, as it affects the risk? Peter Shanley S.C. : My formula does not take account of a mental or emotional factor which will possibly lead to the mother taking her life. Where the risk in such a case is all but inevitable and the evidence is to that effect then it would be permissible to have an abortion under my formula. Egan J. : Where the mother is emotionally unstable and threatening to take her life because of the pregnancy, is this not a risk to her life? Are you saying that the mother's death must be certain? McCarthy J. : You highlight the absence of legislation in assisting in what test is to be applied. Peter Shanley S.C. : The difficulty in allowing abortion where the death of the mother is not certain is that you push the test back and back. If the English Abortion Act, 1967, were enacted here it would probably be struck down as unconstitutional. I may highlight such absence of legislation but I say the test may be inferred from the Constitution and furthermore any

legislation which would be so liberally formulated would be unconstitutional for not giving due regard to the right to life of the unborn because of the inevitability of death for the unborn as against the possibility of risk to the life of the mother. Returning to the query raised by Egan J. If the evidence before the High Court was to the effect that should the child be forced to carry this pregnancy, she will almost inevitably take her life, then I say it would be justified to allow an abortion. Finlay C.J. : What of the "real and substantial" risk of arthritis, which is often the medical evidence given in personal injuries cases? That was traditionally sufficient evidence, if given by a consultant specialist for the jury. As a "matter of probability" if the medical evidence is that she will as a probability take her life, do you say she is justified to seek an abortion? Peter Shanley S.C. : Yes I do.

[1992] 1 I.R.

The Attorney General v. X

37 S.C.

Costello J.

I turn now to the fight to travel. The right to travel, like all other fights, is not absolute. It is necessarily subject to the exercise of other constitutional rights. McCarthy J. : Do you say the mother could have been prevented from travelling prior to the Eighth Amendment? Peter Shanley S.C. : Yes, the mother could be enjoined from leaving the jurisdiction to do an act which is unlawful here, though it may be lawful abroad. The Court has an inherent jurisdiction to enjoin an individual from leaving the jurisdiction. McCarthy J. : On what basis do you say this is so? Peter Shanley S.C. : Lett v. Lett [1906] 1 I.R. 618. The court in Lett exercised jurisdiction to restrain an individual from pursuing proceedings abroad. In that case the parties had agreed not to sue each other; when the defendant issued proceedings in Argentina, the plaintiff was granted an injunction in personam . McCarthy J. : If an English citizen comes here, finds herself pregnant, can she go home to the United Kingdom for an abortion? Can this Court restrain her? Article 40, s. 2 of the Constitution is limited to a citizen but Article 40. s. 3 is not so limited. Peter Shanley S.C. : I cannot distinguish it logically from this case and accordingly I say the Attorney General would have to act as he did in this case. Lett v. Lett is authority for the proposition that the equitable jurisdiction acts in personam . Hederman J. : You say the case of a foreign citizen in this country must be treated like a citizen of this country. The "unborn life" is in this country in both cases. Can she be detained in Ireland? Peter Shanley S.C. : I have to say yes. McCarthy J. : If it were dealt with under wardship jurisdiction that might be a distinguishing feature. Peter Shanley S.C. : Each case will be decided on its own facts. Egan J. : Can you give us an example of restraining travel abroad to do an act which is unlawful here? Peter Shanley S.C. : The courts have never shirked from enforcing or operating quia timet injunctions. I would like to refer to Professor Kelly: The Irish Constitution p. 437 [Reads]. In The People v. Shaw [1982] I.R. 1 at p. 63 "There is a hierarchy of constitutional rights and where there is a collision the higher must prevail." McCarthy J. : Do you accept that there is a hierarchy of rights? Peter Shanley S.C. : Yes I do. Finlay C.J. : A pragmatic approach is to say that if the right to life is

[1992] 1 I.R.

The Attorney General v. X

38 S.C.

Costello J.

deprived, all other rights are frustrated. McCarthy J. : Even the right to life can be taken away by the Constitution. Its provisions specifically envisage the death penalty. Peter Shanley S.C. : Continuing with The People v. Shaw. Kenny J. at 63: I agree with Kenny J.'s dictum . Hederman J. : Is everyone bound by these rights which derive from the Christain and democratic nature of the State? Peter Shanley S.C. : Yes. Even non-Christians are bound by the Christian and democratic nature of the State. McCarthy J. : Testing your proposition about the hierarchy of rights if I say I am going to rob a bank can my liberty be taken away? Can I be denied a right to change my mind? Peter Shanley S.C. : The courts have always been ready to give a quia timet injunction to restrain threatening acts. Finlay C.J. : Barring orders are very clear examples of restraining a person's constitutional rights. McCarthy J. : These are all examples of private law. Have you any example of public law? Peter Shanley S.C. : I don't have to, with respect, because what is being restrained is the threatened infringement of a constitutional right. Hederman J. : Can you give a case where there is no specific purpose attaching to the decision of going abroad? What are the rights of the State to inquire into this? Peter Shanley S.C. : The jurisdiction of the Court flows from the Constitution. It is an order made by the Court to people amenable to the jurisdiction. McCarthy J. : In The State (Quinn) v. Ryan the Supreme Court called to book the English police for conspiring to frustrate an order of the Court. The powers of the Court are as ample as the provisions of the Constitution require. Finlay C.J. : How is the Court to police an order which is in the form that the defendant is permitted to go abroad but not for the purpose of an abortion? Peter Shanley S.C. : I say that but for the conduct of the defendant in this case (that is, voluntarily returning home), I would be entitled to ask for the wider order which was originally made in this case, namely, one prohibiting any travel abroad. McCarthy J. : In The State (Quinn) v. Ryan the order was to require the English police to answer why they should not be held in "contempt of the courts" not "in contempt of court". There is a difference. Peter Shanley S.C. : They are my submissions.

[1992] 1 I.R.

The Attorney General v. X

39 S.C.

Costello J.

John Rogers S.C. in reply. On Mr. Shanley's test, it would be virtually impossible for any mother to satisfy that test. It leaves out of account the psychiatric illness which is a risk in waiting for the life of the mother. Suicide may come for many reasons and like a bolt from the blue. There is often no time for intervention. It may be brought on by panic. Quite often the physical expression and behaviour of the person is normal. It has been catalogued that this is so. Consequently we must take account of this as a matter of principle and common sense in addressing the risk to my client's life. To adopt Mr. Shanley's test would fall short of the "due regard" requirement for the equal

right of the mother. It has been demonstrated that there is a threat to the life of the mother. How, then, is it to be measured? There is an enormous responsibility on this Court in fixing these boundaries. Mr. Shanley's test seems not only to posit an imminent but also an immediate risk of death. Finlay C.J. : Mr. Shanley said his test was to include imminent and inevitable death but not necessarily immediate death. John Rogers S.C. : But the "inevitable test" puts the doctor in an impossible situation. He must be in a position to say that the mother's death was inevitable. How can he possibly say that with certainty? It would be important that my case would not be imbued by any considerations other than considerations of constitutional principle and concern for the life and welfare of the mother. I would refer to McGee v. The Attorney General [1974] I.R. 284 and a dictum of Griffin J. at p. 334 referring to Article 40, s. 3, sub-section 1. This feature is dealt with by Griffin J. He was pointing to the sense in which the State is enjoined not to interfere with the individual as opposed to being enjoined to respect the rights of the citizens. Finlay C.J. : But if the State permits a right to travel for abortion has the State not failed to protect the life of the second (unborn) individual? O'Flaherty J. : Why should the State use what American constitutional lawyers call its 'police powers' to enforce this Article? Could you say that it calls on the State to provide counselling and support measures only? John Rogers S.C. : I have difficulty in accepting as a rational exercise how the State can police an intention. This is a very intimate aspect of the human person. McCarthy J. : In the reign of Elizabeth I the offence of encompassing the death of the monarch was committed merely by contemplating it. Finlay C.J. : Surely where there is a stated intention to do a wrong the State has a right to injunct such criminal or unlawful intentions? John Rogers S.C. : That goes somewhat further. The injunction is against the act not against the intention. A party may have the intention and change [1992] 1 I.R. The Attorney General v. X 40 S.C.

Costello J.

her mind. O'Flaherty J. : The woman may go to England with the intention of having an abortion and then change her mind and return home. There is also the likelihood that she will receive further counselling after arrival in England. John Rogers S.C. : Can this order be enforced? How are you to know what the parties did; where and when? Can the State ask a woman returning from the United Kingdom "what did you do"? What is the effectiveness of such an order? McCarthy J. : If the Court has the power to restrict travel abroad then surely it may have powers to have the woman examined? John Rogers S.C. : Exactly, that is why I am so reluctant to accept the right of restricting travel. If you do it carries you so much further. Hederman J. : What if the woman goes outside the State for more than nine months? Is the State entitled to require the production of the child? If the order of the Court is not effective should it be made? John Rogers S.C. : The State (Burke) v. Lennon [1940] I.R. 136 is authority for the proposition that a court will not issue an order which is futile. [Finlay C.J. : The Court accepts this principle.] The People (Attorney General) v. Moscow Dixon J. (14th, 15th, 16th June 1950) was a case decided by the Court of Criminal Appeal on charges of conspiracy and incitement to commit a felony (i.e. procuring an abortion). The charge was preferred in a s. 58 indictment.

Finlay C.J. : What charges were withdrawn? Are you saying that a conspiracy to commit an abortion in London was held not to be an offence in Ireland under s. 58 of the Offences Against the Person Act, 1861? John Rogers S.C. : In effect yes, my Lord, but it is not explicit. Finlay C.J. : The fact that Dixon J. quashed the order of guilty without ordering a retrial does not support your contention that an abortion in London was held not to be an offence in this jurisdiction. McCarthy J. : Surely there is no logic in saying that it is a conspiracy to commit an act which is lawful where it is being carried out. What about Ellis v. O'Dea (No. 2) ? John Rogers S.C. : I would refer to O'Donovan v. Ireland [1961] I.R. 182. There is no difference in effect between Irish and English text of Article 40, s. 3, sub-s. 3 of the Constitution. Also Finucane v. McMahon IR ENR [1990] 1 I.R. 165 at 206. Refers to 206 and page 226. McCarthy J. dealing with the standard of proof referred to a real and substantial risk and an unnecessary danger to the life of the person whose extradition was being sought. These are authorities on which the Court can rely in measuring the extent of the risk to the life of the mother in this case.

[1992] 1 I.R.

The Attorney General v. X

41 S.C.

Finlay C.J.

They are my submissions in reply. Peter Shanley S.C. in reply: The Finucane authority is not one that can be borrowed and applied to the Eighth Amendment. Also I reiterate my submission that the psychological evidence led in the High Court was not sufficient to warrant a finding in favour of the mother. Finlay C.J. : The Court will rise. Supreme Court Reporter: Eamonn Marray, B.L. Ex tempore. Finlay C.J. The Court is satisfied that the appeal should be allowed. Reasons will be given later and counsel will be notified. Cur adv. vult. Finlay C.J. 5th March, 1992 This is an appeal brought by the defendants against an order made by Costello J. in the High Court on the 17th February, 1992, which was made in these proceedings upon an application for an interlocutory injunction which by consent of the parties was treated as the hearing of the action. The first defendant is a fourteen and a half year old girl and the second and third defendants are her parents. Upon the facts proved in the High Court, the first defendant was, in the month of December, 1991, raped, and as a result of such rape became pregnant of which fact she and her parents became aware at the very end of January, 1992. The rape was then reported to the Garda Sochna and a statement given by the first defendant to them of the facts surrounding the alleged rape. All the defendants were distraught as a result of the revelation of the fact of rape and as a result of the fact that the first defendant was pregnant and after careful consideration all of them reached a decision that she should travel to the United Kingdom and undergo an operation for abortion. The family informed the Garda Sochna of that fact and inquired from them whether

any particular process was available for testing the foetus so aborted in order to provide proof in any subsequent charge of the paternity of the accused. The Garda Sochna apparently submitted that inquiry to the Director of Public Prosecutions and he in turn communicated the information thus arising to the Attorney General.

[1992] 1 I.R.

The Attorney General v. X

42 S.C.

Finlay C.J.

The Attorney General on the 7th February, 1992, having applied ex parte to Costello J. in the High Court, obtained an order of interim injunction restraining the first defendant and the other defendants from leaving the country or from arranging or carrying out a termination of the pregnancy of the first defendant. At the time that order was ready to be served on the defendants they apparently had left this country and were in England arranging for the carrying out of the termination of the pregnancy. Upon being informed whilst there of the order which had been made by the court, they returned to this country. The interim injunction was to last until the 10th February, 1992, or until further order made in the meantime. The application for an interlocutory injunction, which was treated as the hearing of the action, was tried before Costello J. on the 10th and 11th February, 1992, and his reserved judgment was delivered on the 17th February, 1992. The order which he then made and against which this appeal is brought was in the following terms: "IT IS ORDERED (a) that the defendants their servants or agents or anyone having knowledge of the order be restrained from interfering with the right to life of the unborn as contained in Article 40, s. 3, subs. 3 of the Constitution of Ireland; (b) that the first defendant be restrained from leaving the jurisdiction of this Honourable Court or the second and third named defendants their servants or agents or anyone having knowledge of the said order from assisting the first defendant to leave the aforesaid jurisdiction for a period of nine months from the date hereof; (c) that the first defendant her servants or agents or anyone having knowledge of the said order be restrained from procuring or arranging a termination of pregnancy or abortion either within or without the jurisdiction of the Honourable Court." Against the making of that order a notice of appeal to this Court was filed on behalf of the defendants on the 21st February, 1992. The grounds of appeal set out in that notice were as follows: "1. That the learned trial judge was wrong in law and in fact in holding that upon the information that the defendants intended to go to England for the purposes of obtaining an abortion for the first [1992] 1 I.R. The Attorney General v. X 43 S.C.

Finlay C.J.

defendant being conveyed to the Attorney General it was his duty in the circumstances to apply to the High Court for the relief sought herein.

2. That the learned trial judge was wrong in law and in fact in holding that the High Court had power to make an order in these proceedings notwithstanding the failure of the Oireachtas to enact any law to reconcile the right to life of the unborn with the equal right to life of its mother as the same is referred to in the Eighth Amendment of the Constitution. 3. That the learned trial judge was wrong in law and in fact in holding that the right to life of the unborn acknowledged in the Eighth Amendment to the Constitution was clear and unambiguous and that the duty of the courts to protect it was imperative. 4. That the learned trial judge was wrong in law and in fact in holding that, although complicated and difficult issues of fact may arise in individual cases, the fact that the Oireachtas had failed to legislate on how the courts were to have regard to the equal right to life of the mother did not inhibit the courts from applying the clear rule of law laid down in the Eighth Amendment. 5. That the learned trial judge was wrong in law and in fact in the test that he applied to measure in the circumstances of this case the comparative risk to the right to life of the first defendant as mother. 6. That in balancing the right of the first defendant to her life as mother and that of the unborn the learned trial judge was wrong in law and in fact in failing to give a preference to the life of the first defendant as mother such life being a life in being against the life of the unborn which life was contingent and putative. 7. That the learned trial judge was wrong in law and in fact in treating the life of the unborn as a life of equal certainty with that of the first defendant. 8. That the learned trial judge was wrong in law and in fact in holding that the risk that the first defendant may take her own life if the orders made herein should be made was much less and of a different order of magnitude than the certainty that the life of the unborn would be terminated if the order was not made. 9. That the learned trial judge was wrong in law and in fact in finding that the danger to the right to life of the mother was a lesser danger than the danger to the right to life of the unborn. 10. That the learned trial judge was wrong in law and in fact in holding that in the circumstances of this case it was the Court's duty to protect the life of the unborn by making the order sought.

[1992] 1 I.R.

The Attorney General v. X

44 S.C.

Finlay C.J.

11. That the learned trial judge was wrong in law and in fact in holding that by travelling abroad to procure an abortion the first defendant would be committing a wrong and/or an unlawful act and that the court ought to restrain such wrongful act even though this might involve the curtailment of the exercise by the first defendant of her constitutional right to liberty as provided in Article 40, s. 4 of the Constitution.

12. That the learned trial judge was wrong in law and in fact in holding that to travel abroad to procure an abortion was to commit an unlawful or wrongful act. 13. That the learned trial judge was wrong in law and in fact in holding that in the circumstances of this case the Eighth Amendment of the Constitution empowered the court to stop the first defendant from going abroad to terminate the life of her unborn. 14. That the learned trial judge was wrong in law and in fact in holding that there was no provision or principle of community law which would prohibit the exercise of the discretionary power to derogate from the requirements of the Treaty of Rome and community law in the manner contained in the Eighth Amendment of the Constitution. 15. That the learned trial judge was wrong in law and in fact in holding that the first defendant did not have a right under community law to travel abroad to obtain an abortion. 16. That the learned trial judge was wrong in law and in fact in holding that the Eighth Amendment to the Constitution and the legal consequences flowing from it amounted to a derogation on grounds of public policy by Ireland from the principles of community law permitting the first defendant to travel abroad to another state within the European Community to obtain and receive services there. 17. That the learned trial judge was wrong in law and in fact in holding that the concept policy as applied to the laws of the Community relating to the freedom of movement of workers could be applied in relation to the freedoms to provide and to receive services under Articles 59 and 60 of the Treaty of Rome and the other measures giving effect thereto. 18. That the learned trial Judge was wrong in law and in fact in finding no provision or principle of Community Law prohibiting a derogation by the State in the manner contained in the Eighth Amendment of the Constitution. 19. That the learned trial judge was wrong in law and in fact in holding [1992] 1 I.R. The Attorney General v. X 45 S.C.

Finlay C.J.

that the Eighth Amendment of the Constitution amounted to a derogation from the laws of the European Community by Ireland on grounds of public policy. 20. That the learned trial judge was wrong in law and in fact in holding that such derogation by the State by way of the Eighth Amendment of the Constitution from the effect and operation of the laws of the European Community passed the test of proportionality under community law. 21. That the learned trial judge was wrong in law and in fact in finding that the Constitution required the making of the orders sought. 22. Such further or other grounds as may be relied upon." The proceedings In the High Court the learned trial judge exercised the jurisdiction conferred on him by s. 45 of the Courts (Supplemental Provisions) Act, 1961, to hear the matter of the application for an

injunction as a 'minor' matter otherwise than in public. His reason for so doing, as set out in his judgment, is as follows: "As the first defendant was a minor and as the distress from which she was suffering would have been immeasurably increased had her name become known and the facts of this case given publicity, I concluded that in her interests I should accede to the request. In camera hearings in minor matters are by no means uncommon. When they raise issues of law which require a written judgment, then the judgment is so drafted as to preserve the minor's anonymity, and then circulated and made public in the ordinary way." Against that decision by the learned trial judge in relation to the method of proceeding there was no appeal to this Court. This Court accordingly listed the case as one in which the appeal was to be heard in camera . At the commencement of the appeal counsel on behalf of the defendants was asked whether his clients still wished that the matter should be held in camera .The Court was informed that the application for the hearing of the case in camera had been made in the High Court on behalf of the Attorney General in the first instance, but had been supported by counsel on behalf of the family whose most urgent desire was as far as possible to protect their anonymity. Counsel then informed this Court that that was still the urgent desire of the family. In these circumstances, the Court reached the same conclusion as did the [1992] 1 I.R. The Attorney General v. X 46 S.C.

Finlay C.J.

learned trial judge in the High Court, namely, that the interests of justice and the dominant welfare of the first defendant, in particular, required that the proceedings should continue in camera . The appeal was at hearing before this Court on 24th, 25th and 26th February. On the last-mentioned date, the Court having heard all the submissions from both sides on the constitutional issues arising, with the exception of questions which might have arisen under the provisions of european law, came to the conclusion that the appeal should be allowed and that the order of the High Court should be set aside. That ruling was given in open court on 26th February, and it was then stated that reasons for the decision would be given at a later stage. I now, in this judgment, give my reasons for that decision. The judgment in the High Court At the commencement of his judgment, Costello J. dealt first with the question of the initiation of the proceedings by the Attorney General, in the following terms, and I quote: "The information that the defendant and her parents intended to go to England for the purposes of an abortion was conveyed to the Attorney General. The duty of the Attorney General in the circumstances cannot be in doubt. Provision is made in the Constitution for the office of Attorney General. He is legal adviser to the Government. But in addition, the Constitution imposes on him duties which he must fulfil independently of the Government. As was pointed out by the Chief Justice in The Attorney General (S.P.U.C) v. Open Door Counselling Ltd [1988] I.R. 593 at p. 623, once it is established that activities constitute assistance to pregnant women to go out of the jurisdiction for the purpose of having an abortion, then this is an activity directly threatening the right to life of the unborn, and the Attorney General is an especially appropriate person to invoke the jurisdiction of the court in order to vindicate and defend the right to life of the unborn. Acting as required by the Chief Justice, the Attorney General instructed counsel to apply to the High Court so that the court could, in the light of the facts to be established before it, make an appropriate decision."

As appears from the grounds of appeal set out in this judgment, an appeal against that part of the judgment was originally formulated. No submissions, [1992] 1 I.R. The Attorney General v. X 47 S.C.

Finlay C.J.

however, were made at the hearing of this case in furtherance of those grounds. I feel, however, that I should state that the view expressed by Costello J. in this part of his judgment is correct, and I see no reason to alter the view which I expressed and to which he refers in The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd [1988] I.R. 593 with regard to the function of the Attorney General. It would have been, in my view, quite incorrect for him in this case, and in the absence of legislation providing any alternative procedure, to take it upon himself to make a decision on the facts available to him, instead of, as he did, bringing the matter before the courts. The first issue submitted before the High Court on behalf of the defendants was that because the Oireachtas had not enacted any law regulating the manner in which the right to life of the unborn and the right to life of the mother, referred to in the Eighth Amendment, could be reconciled the court could make no order in a case in which an issue of reconciliation arose. The learned trial judge in rejecting this submission stated as follows: "It seems to me that if the court is apprised of a situation in which the life of the unborn is threatened, then it would be failing in its constitutional duty to protect it merely because the Oireachtas had failed to legislate on how it was to have regard to the equal right of the mother, as provided for in the Eighth Amendment. Complicated and difficult issues of fact may, of course, arise in individual cases, but that does not inhibit the court from applying the clear rule of law laid down in the Amendment." The second issue which was submitted on behalf of the defendants in the High Court was that although the Eighth Amendment required the courts to defend and vindicate the life of the unborn, they were in doing so to have regard to the equal right to life of the mother; that in doing so in this case the court should not make the order sought because this would prejudice the mother's right to life, because of the very real danger, which, it was said, the evidence established, that she would take her own life if the order was made and she was unable to procure an abortion. Dealing with this issue the learned trial judge stated as follows: "I am quite satisfied that there is a real and imminent danger to the life of the unborn and that if the court does not step in to protect it by means of the injunction sought, its life will be terminated. The evidence also establishes that if the court grants the injunction sought there is a risk that the defendant may take her own life. But the risk that the defendant may take her own life, if an order is made, is much [1992] 1 I.R. The Attorney General v. X 48 S.C.

Finlay C.J.

less and of a different order of magnitude than the certainty that the life of the unborn will be terminated if the order is not made. I am strengthened in this view by the knowledge that the young girl has the benefit of the love and care and support of devoted parents who will help her through the difficult months ahead. It seems to me, therefore, that having had regard to the rights of the mother in this case, the court's duty to protect the life of the unborn requires it to make the order sought." Submissions of the defendants with regard to these two issues

With regard to the issue concerning the question of the inability of the court to make any order where a reconciliation of a conflict between the right to life of the unborn and the right to life of the mother, both dealt with in the Eighth Amendment, arose, it was submitted on this appeal that the word 'laws' contained in that amendment must be construed to mean laws enacted by the Oireachtas, and that since no laws had been enacted by the Oireachtas to vindicate or defend the right of the unborn, following upon the enactment of the Eighth Amendment of the Constitution, the court had no jurisdiction to intervene in that behalf. With regard to the finding by the learned trial judge concerning the disparity between the risk to life of the unborn and the risk to life of the mother, the following submission was made. It was contended that the true test, having regard to the proper interpretation of Article 40, s.3, sub-s. 3, of the Constitution, was that if it was established as a matter of probability that the continuation of the life of the unborn child constituted a real and substantial risk to the life of the mother then the conflict thus arising should be resolved by preferring the life of the mother. This submission was based upon an assertion, having regard to the meaning which should be placed upon the two phrases 'as far as practicable' and 'with due regard to' contained in sub-s. 3 of s. 3 of Article 40, that the protection of the life of the mother must, by reason of it being a life in being as distinct from an unborn life, in the circumstances where a real and substantial risk to it was established, be preferred. It was further submitted on behalf of the Attorney General that the phrases 'due regard' and 'as far as practicable' contained in the sub-section of the Constitution made it necessary that in interpreting this sub-section one looked elsewhere at the position of a woman who is a mother and a member of a family group and a member of society in the terms of the rights and obligations which, as such, she may have, together with, in relevant cases, the rights and obligations of her parents as well.

[1992] 1 I.R.

The Attorney General v. X

49 S.C.

Finlay C.J.

Submissions of the Attorney General on these two issues With regard to the submission that by reason of the absence of legislation vindicating and defending the right identified and guaranteed in Article 40, s.3, sub-s.3 the court had no power or function to protect that right by any particular order, counsel on behalf of the Attorney General relied upon the judgment of Kenny J. in The People v. Shaw [1982] I.R. 1. He also relied on the judgment delivered by me, with which the other members of the Court agreed, in The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd [1988] I.R. 593. He submitted that it would be quite inconsistent with the obligation and right of the courts to uphold the Constitution and the rights therein identified and guaranteed, if it were not empowered to act without the intervention in any particular instance of the Oireachtas. With regard to the question of the true interpretation of the provisions of Article 40, s. 3, sub-s.3, it was submitted on behalf of the Attorney General, firstly, that the terms of that sub-section must not be interpreted in isolation from the other provisions of the Constitution: that the use of the phrase 'due regard' and of the phrase 'as far as practicable' necessarily involved, for the interpretation of the provisions of the sub-section of the Article, a consideration of the entire provisions of the Constitution, of the principles in accordance with which the courts should approach its interpretation, and with the need for harmonisation between this particular provision of the Constitution and other rights and obligations identified, granted or guaranteed by it. In this context reliance was placed by counsel on the judgments of this Court in McGee v. The Attorney General [1974] I.R. 284; on the judgment of O'Higgins C.J. in The State (Healy) v. Donoghue [1976] I.R. 326 and the judgment of O'Higgins C.J. in The State (Director of Public Prosecutions) v. Walsh [1981] I.R. 412. Having regard to the principles thus laid down by this Court, it was submitted on behalf of the Attorney General that the phrases 'due regard' and 'as far

as practicable' contained in the sub-section of the Constitution made it necessary that in interpreting this sub-section one looked elsewhere at the position of a woman who is a mother and a member of a family group and a member of society in the terms of the rights and obligations which, as such, she may have, together with, in relevant cases, the rights and obligations of her parents as well. Having regard to these principles, it was submitted that the true test to be applied was that under the terms of the sub-section if it was established in any case that the continuation of the life of the unborn constituted a risk of immediate or inevitable death to the mother the termination of the pregnancy would be justified and lawful. Such a test, it was urged, had due regard to the principles which had been [1992] 1 I.R. The Attorney General v. X 50 S.C.

Finlay C.J.

submitted and to the rights and obligations and constitutional situation of the mother as a life in being. It was consequently contended that the test proposed on behalf of the defendants of a real and substantial danger to the life of the mother, as justifying the termination of the pregnancy, was disproportionate and even having regard to the considerations which it was conceded were relevant, was a failure to approach sufficiently equality between the two rights concerned. On behalf of the Attorney General it was further submitted that, even if the test for reconciliation of the fight to life of the unborn and of the mother proposed by the defendants were correct, the evidence adduced on behalf of the defendants did not establish a risk complying with that test. Article 40, s. 3, sub-s. 3 of the Constitution as inserted by the Eighth Amendment "The State acknowledges the fight to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right." Decision on these two issues arising in the appeal Powers of the Court in the absence of legislation In The State (Quinn) v. Ryan [1965] I.R. 70 Dlaigh dlaigh C.J. with whose judgment the other members of the Court agreed, stated as follows: "It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at naught or circumvented. The intention was that fights of substance were being assured to the individual and that the courts were the custodians of these fights. As a necessary corollary it follows that no one can with impunity set these rights at naught or circumvent them, and that the courts' powers in this regard are as ample as the defence of the Constitution requires." In his judgment in The People v. Shaw [1982] I.R. I Kenny J., stated as follows at p. 62 of the report at p. 122: "When the People enacted the Constitution of 1937, they provided (Article 40, s. 3) that the State guaranteed in its laws to respect, and, [1992] 1 I.R. The Attorney General v. X 51 S.C.

Finlay C.J.

as far as practicable, by its laws to defend and vindicate the personal rights of the citizen and that the State should, in particular, by its laws protect as best it might from unjust

attack and in the case of injustice done, vindicate the life, person, good name and property rights of every citizen. I draw attention to the use of the words 'the State'. The obligation to implement this guarantee is imposed not on the Oireachtas only, but on each branch of the State which exercises the powers of legislating, executing and giving judgment on those laws: Article 6. The word 'laws' in Article 40, s. 3, is not confined to laws which have been enacted by the Oireachtas, but comprehends the laws made by judges and by ministers of State when they make statutory instruments or regulations." In my judgment in The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd. [1988] I.R. 593 at p. 621, dealing with the guarantee contained in Article 40, s. 3, sub-s. 3 of the Constitution, having quoted from the decision of Dlaigh dlaigh C.J. in The State (Quinn) v. Ryan [1965] I.R. 70 as applicable to an issue which arose in that case concerning the locus standi of the plaintiff to maintain the proceedings, I stated as follows: "If it is established to the satisfaction of the Court that the admitted activities of the defendants constitute an assistance to pregnant women within the jurisdiction to go out of die jurisdiction for the purpose of having an abortion, then, that is an activity which directly threatens the right to life of the unborn, not only in a single case but in all cases of women who were assisted by those activities to have an abortion. If, therefore, the jurisdiction of the courts is invoked by a party who has a bona fide concern and interest for the protection of the constritutionally guaranteed right to life of the unborn, the courts as the judicial organ of government of the State would be failing in their duty as far as practicable to vindicate and defend that right if they were to refuse relief upon the grounds that no particular pregnant woman who might be affected by the making of an order was represented before the courts." Having regard to these statements of the law expressed by this Court to the principles underlining them, I have no doubt that the submission that the courts are in any way inhibited from exercising a function to vindicate and defend the right to life of the unborn which is identified and guaranteed by Article 40, s. 3, sub-s. 3 of the Constitution by reason of a want of legislation is incorrect and that the appeal of the defendants upon this ground must fail.

[1992] 1 I.R.

The Attorney General v. X

52 S.C.

Finlay C.J.

Interpretation of Article 40, s. 3, subsection 3 In the course of his judgment in McGee v. The Attorney General [1974] I.R. 284 Walsh L, stated as follows at pp. 318/319 of the report: "In this country, it falls finally upon the judges to interpret the Constitution and in doing so to determine, where necessary, the rights which are superior or antecedent to positive law or which are imprescriptible or inalienable. In the performance of this difficult duty there are certain guidelines laid down in the Constitution for the judge. The very structure and content of the Articles dealing with fundamental rights clearly indicate that justice is not subordinate to the law. In particular, the terms of s. 3 of Article 40 expressly subordinate the law to justice. Both Aristotle and the Christian philosophers have regarded justice as the highest human virtue. The virtue of prudence was also esteemed by Aristotle, as by the philosophers of the Christian world. But the great additional virtue introduced by Christianity was that of charity not 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." In the course of his judgment in The State (Healy) v. Donoghue [1976] I.R. 325, O'Higgins C.J. stated as follows at p. 347 of the report: "The preamble to the Constitution records that the people seeking to promote the common good, with due observance of prudence, justice and charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations, do hereby adopt, enact, and give to ourselves this Constitution. In my view, this preamble makes it clear that rights given by the Constitution must be considered in accordance with concepts of prudence, justice and charity, which may gradually change or develop as society changes and develops and which fall to be interpreted from time to time in accordance with prevailing ideas. The preamble [1992] 1 I.R. The Attorney General v. X 53 S.C.

Finlay C.J.

envisages a Constitution which can absorb or be adapted to such changes. In other words, the Constitution did not seek to impose for all time the ideas prevalent or accepted with regard to these virtues at the time of its enactment. Walsh J. expressed this view very clearly in McGee v. The Attorney General when he said at p. 319 of the report . . ." The learned Chief Justice then quoted from that portion of the judgment of Walsh J. which I have set out above in this judgment. I not only accept the principles set out in these two judgments as correct and appropriate principles which I must follow in interpreting the provisions of this subsection of the Constitution, but I find them particularly and peculiarly appropriate and illuminating in the interpretation of a sub-section of the Constitution which deals with the intimate human problem of the fight of the unborn to life and its relationship to the right of the mother of an unborn child to her life. I accept the submission made on behalf of the Attorney General, that the doctrine of the harmonious interpretation of the Constitution involves in this case a consideration of the constitutional rights and obligations of the mother of the unborn child and the interrelation of those rights and obligations with the rights and obligations of other people and, of course, with the right to life of the unborn child as well. Such a harmonious interpretation of the Constitution carried out in accordance with concepts of prudence, justice and charity, as they have been explained in the judgment of Walsh J. in McGee v. The Attorney General [1974] I.R. 284 leads me to the conclusion that in vindicating and defending as far as practicable the right of the unborn to life but at the same time giving due regard to the right of the mother to life, the Court must, amongst the matters to be so regarded, concern itself with the position of the mother within a family group, with persons on whom she is dependent, with, in other instances, persons who are dependent upon her and her interaction with other citizens and members of society in the areas in which her activities occur. Having regard to that conclusion, I am satisfied that the test proposed on behalf of the Attorney General that the life of the unborn could only be terminated if it were established that an inevitable or

immediate risk to the life of the mother existed, for the avoidance of which a termination of the pregnancy was necessary, insufficiently vindicates the mother's right to life. I, therefore, conclude that the proper test to be applied is that if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be [1992] 1 I.R. The Attorney General v. X 54 S.C.

Finlay C.J.

avoided by the termination of her pregnancy, such termination is permissible, having regard to the true interpretation of Article 40, s. 3, sub-s. 3 of the Constitution. Has the first defendant by evidence satisfied this test? With regard to this issue, the findings of fact made by the learned trial judge in the High Court at p. 7 of the report are as follows: "When the defendant learned that she was pregnant she naturally was greatly distraught and upset. Later she confided in her mother that when she learned she was pregnant she had wanted to kill herself by throwing herself downstairs. On the journey back from London she told her mother that she had wanted to throw herself under a train when she was in London, that as she had put her parents through so much trouble she would rather be dead than continue as she was. On the 31st January, in the course of a long discussion with a member of the Garda Sochna, she said: 'I wish it were all over, sometimes I feel like throwing myself downstairs.' And in the presence of another member of the Garda Sochna, when her father commented that the 'situation was worse than a death in the family' she commented: 'Not if it was me'." On the day of her return from London the defendant's parents brought her to a very experienced clinical psychologist. He explained in his report that he had been asked to assess her emotional state; that whilst she was co-operative she was emotionally withdrawn; that he had concluded that she was in a state of shock and that she had lost touch with her feelings. She told him that she had been crying on her own, but had hidden her feelings from her parents to protect them. His opinion was that her vacant, expressionless manner indicated that she was coping with the appalling crisis she faced by a denial of her emotions. She did not seem depressed, but he said that she 'coldly expressed a desire to solve matters by ending her life.' In his opinion, in her withdrawn state 'she was capable of such an act, not so much because she is depressed but because she could calculatingly reach the conclusion that death is the best solution.' He considered that the psychological damage to her of carrying a child would be considerable, and that the damage to her mental health would be devastating. His report was supplemented by oral testimony. He explained that in the course of his consultation with the defendant she had said to him: 'It is hard at fourteen to go through the nine months' and that she said: 'It is better to end it now than in nine months' time.' The psychologist [1992] 1 I.R. The Attorney General v. X 55 S.C.

Finlay C.J.

understood this to mean that by ending her life she would end the problems through which she was putting her parents with whom she has a very strong and loving relationship. The psychologist who gave oral evidence as well as submitting a report, (which was admitted by agreement in evidence before the learned trial judge) stated that when he had interviewed this young girl and was anxious to have a continuing discussion with her parents who accompanied her and not having anybody available to remain with the young girl in the waiting room, his view

of the risk of her committing suicide was so real, on his past experience in this field of medicine, that notwithstanding its obvious inappropriateness he requested her to remain in the room while he discussed the problem with her parents. I am satisfied that the only risk put forward in this case to the life of the mother is the risk of selfdestruction. I agree with the conclusion reached by the learned trial judge in the High Court that that was a risk which, as would be appropriate in any other form of risk to the life of the mother, must be taken into account in reconciling the right of the unborn to life and the rights of the mother to life. Such a risk to the life of a young mother, in particular, has it seems to me, a particular characteristic which is relevant to the question of whether the evidence in this case justifies a conclusion that it constitutes a real and substantial risk to life. If a physical condition emanating from a pregnancy occurs in a mother, it may be that a decision to terminate the pregnancy in order to save her life can be postponed for a significant period in order to monitor the progress of the physical condition, and that there are diagnostic warning signs which can readily be relied upon during such postponement. In my view, it is common sense that a threat of self-destruction such as is outlined in the evidence in this case, which the psychologist clearly believes to be a very real threat, cannot be monitored in that sense and that it is almost impossible to prevent self-destruction in a young girl in the situation in which this defendant is if she were to decide to carry out her threat of suicide. I am, therefore, satisfied that on the evidence before the learned trial judge, which was in no way contested, and on the findings which he has made, that the defendants have satisfied the test which I have laid down as being appropriate and have established, as a matter of probability, that there is a real and substantial risk to the life of the mother by self-destruction which can only be avoided by termination of her pregnancy. It is for this reason that, in my view, the defendants were entitled to succeed in this appeal, and the orders made in the High Court have been set aside.

[1992] 1 I.R.

The Attorney General v. X

56 S.C.

Finlay C.J.

Further issues arising under domestic and constitutional law, other than issues arising under European law The remaining issues under domestic and constitutional law which were submitted on this appeal, as distinct from being formulated in the notice of appeal, can briefly be summarised as follows. 1. (a) It was asserted that the mother's right to travel, including travelling out of the jurisdiction, was an absolute right which could not be restricted by any vindication or defence of the right of the unborn child to life. 2. (b) In the alternative it was submitted that such right to travel could not be restricted by any vindication or defence of the right of the unborn to life in the absence of a legislated restriction. 3. (c) In the further alternative it was submitted that even if an injunction restraining the mother from travelling out of the jurisdiction in order to have an operation of abortion performed was constitutionally permissible, it was so incapable of enforcement or supervision that it basically constituted a futile order which the courts should not make by way of injunction. 4. (d) If the defendant were prevented by court order from travelling out of the jurisdiction for the purpose of having an operation of abortion performed, such order would apply to her in effect a form of preventive detention which, in the decision of this Court in Ryan v. The Director of Public Prosecutions [1989] I.R. 399, reaffirming the views previously expressed by this Court in The People v. O'Callaghan [1966] I.R. 501, has been declared

constitutionally impermissible. Particular reliance was placed in this argument on the fact that it was submitted that the act which it was sought to prevent, namely, the termination of the pregnancy, was not extraterritorially unlawful. Of necessity, these submissions were presented as alternatives to the main contention of the defendants that on the particular facts of this case and on the appropriate test to be applied to the conflict between the right to life of the unborn and the right to life of the mother, as provided for in Article 40, s. 3, sub-s. 3, a termination of the defendant's pregnancy was permissible, having regard to the constitutional provisions.

[1992] 1 I.R.

The Attorney General v. X

57 S.C.

Finlay C.J.

The conclusions which I have reached and which are shared by a majority of my colleagues on this Court as to the true test to be applied to the reconciliation of the right to life of the unborn and the light to life of the mother identified and guaranteed under Article 40, s. 3, sub-s. 3 of the Constitution and on the facts which have been established by the defendants to satisfy that test make it unnecessary for the purpose of deciding this appeal to reach any conclusion on these further issues which were raised. These issues having, however, been fully argued and being matters of considerable public interest, it seems to me that I should express my views upon them, even though those views may fall as a matter of law within the category of being obiter dicta . The right to travel was identified by me in a judgment delivered when I was President of the High Court in The State (M.) v. The Attorney General [1979] I.R. 73, as an unenumerated constitutional right. That it exists as an important and, in a sense, fundamental light closely identified with the characteristics of any free society, cannot be challenged. The making of an order by way of injunction restraining a person from travelling out of the jurisdiction of the State, whether confined to travelling for a particular purpose or for a particular period, constitutes a major restriction of such right to travel, placing the right in actual abeyance. The questions raised by these submissions obviously are questions as to whether there can be a reconciliation between the right to life of the unborn child and the right to travel of its mother, and if there can, by what principles such reconciliation must be applied. Right to travel I accept that where there exists an interaction of constitutional lights the first objective of the courts in interpreting the Constitution and resolving any problem thus arising should be to seek to harmonise such interacting rights. There are instances, however, I am satisfied, where such harmonisation may not be possible and in those instances I am satisfied, as the authorities appear to establish, that there is a necessity to apply a priority of rights. Notwithstanding the very fundamental nature of the right to travel and its particular importance in relation to the characteristics of a free society, I would be forced to conclude that if there were a stark conflict between the right of a mother of an unborn child to travel and the right to life of the unborn child, the right to life would necessarily have to take precedence over the right to travel. I therefore conclude that the submission made that the mother of the unborn child had an absolute light to travel which could [1992] 1 I.R. The Attorney General v. X 58 S.C.

Finlay C.J.

not be qualified or restricted, even by the vindication or defence of the right to life of the unborn, is not a valid or sustainable submission in law.

Furthermore, for the reasons set out by me earlier in this judgment concerning the ample powers of the Court, even in the absence of legislation, to vindicate and defend the right to life of the unborn, I reject also the submission that the power of the Court to interfere with the right to travel of the mother of an unborn child is in any way limited or restricted by the absence of legislation, except in so far as such absence of legislation may be a relevant factor on the questions of ineffectiveness or futility of the granting of orders restricting travel. The order made in the High Court in this case was an order prohibiting the travelling by the mother of the unborn child outside the State for a period of nine months. At the commencement of the submissions made on behalf of the Attorney General it was indicated that the Attorney General no longer sought to stand over that precise order but was content instead, if the Court concluded that a restriction on the right to travel could and should be applied, that it would be confined to an injunction restraining the mother from travelling outside the State for the purpose of having an operation of abortion carried out. It was stated by counsel on behalf of the Attorney General that whilst the Attorney General was in this case seeking the more limited order of restraining travel, not in general but for the purpose of having an abortion performed, he did not concede that the more extensive order might not be appropriate in another case. It is a principle applicable to the making of orders by the courts by way of injunction that the Court should avoid making a futile or unenforceable order. That principle would prima facie apply to injunctions made in order to protect constitutional rights in the same way as it applies to injunctions made in the protection of rights arising under private law. Furthermore, the duty which is imposed upon the State under the terms of Article 40, s.3, sub-s. 3 of the Constitution which is being discharged by the courts in granting injunctions in the context with which I am now concerned, is a duty to vindicate and defend the right of the unborn to life 'as far as practicable.' This duty, with that qualification, must it seems to me necessarily apply in any event to the discretions vested in the Court the principle that it cannot and should not make orders which are futile, impractical or ineffective. It is therefore necessary to examine the submissions made that orders, either in the form made in the High Court in this case or even in the more limited form now contended for by counsel on behalf of the Attorney General, are orders which are so incapable of supervision or enforcement that they must be deemed to be futile and, therefore, never orders which can [1992] 1 I.R. The Attorney General v. X 59 S.C.

Finlay C.J.

properly be made by the courts. I would accept that in a great number of instances, living in a country which has a land frontier and in an age which has such wide and varied facilities of travel, the making of orders restraining an individual from travelling out of the jurisdiction either for a specified time or for a specified purpose would be impossible to supervise and impossible to enforce except in the negative sense of possible imposition of punishment or sanctions after the order had been disobeyed. The imposition of such penalties, except to the extent that they might provide a deterrent, would not be an effective defence of the right of the unborn to life. Whilst this is so, it is clear that in the instant case the orders made in the High Court, firstly, by way of an interim injunction and subsequently by way of a permanent injunction, were orders which until they were discharged by the ruling of this Court on appeal were wholly effective to achieve the purpose for which they were made. The fact that they were so effective was entirely due to the strikingly commendable attitude of all of the three defendants in this case, notwithstanding the anguish which they were suffering, of being willing and anxious to abide by the lawful orders of the court. It may, unfortunately, be true that a great number of people exist

who would not have such a proper approach to the orders made by a court in pursuance of the defence of the right to life of the unborn. Having regard, however, to the obligation of the courts to vindicate and defend that right and to use every power which they may have in an attempt to achieve that objective I do not consider that it can be said that a mere expectation that a significant number of people may be unwilling to obey the orders of a court could deprive that court from attempting, at least, in appropriate cases to discharge its constitutional duty by the making of an injunction restricting, to some extent, the right to travel of an individual. Issues which arose under European Law It was submitted on behalf of the defendants as a further alternative to all other submissions that even if the orders restraining the first defendant from leaving the jurisdiction for the purpose of having an abortion carried out, were permissible under Irish constitutional law, they were prohibited by European law as being in breach of Article 59 of the Treaty of Rome, which effectively provides a freedom for persons to travel from one Member State to another for the purpose of availing of a service in that other Member State, the performance of the operation of abortion being, within the meaning of European law, such a service. A prohibition on that right, it was [1992] 1 I.R. The Attorney General v. X 60 S.C.

Finlay C.J.

submitted would have been in conflict with Directive 73/148/EEC. In the High Court this submission was disputed on behalf of the Attorney General by reference to Article 8 of the Council Directive 73/148/EEC, which provides that: "Member States shall not derogate from the provisions of this Directive save on grounds of public policy, public security or public health." It was submitted that the Eighth Amendment and the legal consequences which flow from it, including the jurisdiction of the courts to prohibit persons from leaving the country to obtain an abortion, amounted to a derogation by Ireland from those principles which is permitted on the grounds of public policy. The learned trial Judge was not requested to make any reference of that issue to the European Court of Justice under Article 177, and was not, of course, as a court of first instance obliged to make such a reference. He concluded that the amendment and the legal consequences did constitute such a derogation and that the making of such an order would not be inconsistent with European law. Article 177 of the Treaty of Rome provides as follows: "The Court of Justice shall have jurisdiction to give preliminary rulings concerning: 1. (a) the interpretation of this Treaty; 2. (b) the validity and interpretation of acts of the institutions of the Community; 3. (c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide. Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State, against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice."

In a judgment delivered by me in Avonmore Creameries Ltd v. An Bord Bainne Co-Operative Ltd (Unreported, Supreme Court, 21st March, 1991), with which McCarthy J. and O'Flaherty J. agreed, I set out the consequences of that Article in so far as they affected the Supreme Court as a court of ultimate appeal, in the following terms:

[1992] 1 I.R.

The Attorney General v. X

61 S.C.

Finlay C.J.

"In any case where a judge of first instance has, as he is clearly entitled to do, reached a decision on one or more questions of European Community law coming within the categories mentioned in Article 177 of the Treaty, this Court as a final court of appeal cannot affirm, vary or reverse such a decision, but must, if the resolution of such questions is necessary to enable it to give its judgment, refer those questions for a preliminary ruling to the Court of Justice of the European Communities pursuant to Article 177. If, of course, this Court decides that the resolution of such questions is not necessary to enable it to give judgment in the case, then, no reference is made. In either event, it is not appropriate for this Court to express any view on issues of European Community law arising in this manner, except for the particular instance where it may conclude that what was alleged to be an issue of EC law is in fact incapable of any but one resolution, and has so clearly been determined." In this case the Court has decided the question at issue in the case without reference to the submissions which were, of necessity, alternative submissions made under European law. No decision on any question of European law is therefore necessary to enable the Court to give its judgment. In these circumstances, I am satisfied that there can be no question of referring any question of such law to the Court of Justice of the European Community pursuant to Article 177, as there is no provision in that code for the determination by that court of any question of law as a moot at the instance of a national court. In Doyle v. An Taoiseach [1986] I.L.R.M. 693, Henchy J. delivering judgment in this Court, with which the other members of the Court agreed, stated as follows, at p. 714 of the report: "I consider that a decision on a question of Community law as envisaged by Article 177 of the Treaty of Rome is not necessary to enable this Court to give judgment in this case. Just as it is generally undesirable to decide a case by bringing provisions of the Constitution into play for the purpose of invalidating an impugned law when the case may be decided without thus invoking constitutional provisions, so also, in my opinion, should Community law, which also has the paramount force and effect of constitutional provisions, not be applied save where necessary for the decision in the case." Apart from the practical time scale difficulties of obtaining a ruling by way of preliminary ruling from the Court of Justice of the European Community, pursuant to Article 177 of the Treaty, in time for the due resolution of the problems arising in this case, it is consistent with the [1992] 1 I.R. The Attorney General v. X 62 S.C.

Finlay C.J.; Hederman J.

jurisprudence of the Court that there being a ground on which the case can be decided without reference to European law, but under Irish law only, that method should be employed. Hederman J. 5th March, 1992

I agree with the judgment delivered by the Chief Justice regarding the right of the Attorney General to institute these proceedings. Once the matter was brought to his attention he was obliged in the discharge of his office to bring the matter immediately to the attention of the court. It was his duty to ascertain as quickly and as fully as he could the facts of this particular case but the decision on whether the girl should be allowed to have an abortion was exclusively a matter for the court. I also agree that though the Oireachtas had not enacted any law purporting to regulate the manner in which the right to life of the unborn and the right to life of the mother referred to in the Eighth Amendment should be reconciled, the Court has jurisdiction to make such orders as it thinks proper to give effect to the Amendment. In the absence of legislation not in conflict with the Constitution it must fall to the Court pursuant to Article 40, s. 3, sub-s. 3 to reconcile the conflict between the right to life of the unborn and the right to life of the mother. The nature and effect of the Eighth Amendment Counsel for the defendants submitted that as parents and as a family the defendants are entitled to pursue a decision "made in conscience" after the alleged rape of their daughter who became pregnant. He submitted that the case comes down to a matter of law; of interpretation of the Eighth Amendment and the rights of the first defendant in the title. He further submitted she has rights under the Constitution to do what she decided to do, i.e. to go to England for the purpose of having an abortion. He submitted that there was no guidance to define the equal rights to life of the mother with the unborn and submitted that the trial judge purported to define a clear rule of law from the Amendment. He further submitted that the Court, in determining the mother's rights under the Eighth Amendment, should have regard to the decisions of this Court in G. v. An Bord Uchtla [1980] I.R. 32; McGee v. The Attorney General [1974] I.R. 284 and in particular pp. 318/319 of that judgment and Norris v. Attorney General [1984] I.R. 36. Counsel also submitted that the manner in which the law was to be applied should be as set out in Rex v. Bourne [1939] 1 K.B. 687.

[1992] 1 I.R.

The Attorney General v. X

63 S.C.

Hederman J.

In that case a fifteen year old girl became pregnant as a result of a violent rape. A surgeon of the highest skill, without fee, performed the operation of abortion. He was subsequently tried under s. 58 of the Offences against the Person Act, 1861. The jury were directed that it was for the prosecution to prove beyond reasonable doubt that the operation was not performed in good faith for the purpose only of preserving the life of the girl. The surgeon had not got to wait until the girl was in peril of immediate death but it was his duty to perform the operation "if a doctor using his best judgment comes to the opinion that the continuance of the pregnancy will endanger the life of the mother or make her a physical or mental wreck, he is not only entitled but it is his duty to perform the operation, and the operation will not. be unlawful." Counsel in this case accepted that if the consequences of the continued pregnancy would be to make the patient a physical and mental wreck, that fact alone would not suffice to justify an abortion. He submitted that the true test is, "as a matter of probability, is there a real or substantial risk of the right to life of the mother?" This test, he submitted, the learned High Court judge had not applied. He further submitted that the Eighth Amendment does not give the absolute right to life to the unborn child or to the mother. "The two rights are juxtaposed as equal." The Amendment recognises the conflict which may arise and require reconciliation. Explicit in the Amendment is the duty to defend and vindicate that right, i.e. the right of the unborn. He submitted that the "real or substantial risk to the life of the mother" is a test which is consistent with the Eighth Amendment. If any other test is applied it would not be right for the courts to second-guess the decision of the parents which was justified by the evidence in this case. He further submitted that

if a court were to adopt a higher test than that, then there is not an adequate protection of the mother as that would be in breach of her equal right to life and such a decision would be contrary to the common good. If the test is immediate danger he submitted it was not an adequate protection of the mother's equal right to life. The learned trial judge, he submitted, resolved the question by putting too great an emphasis on the risk to the unborn against the risk to the health of the mother, as in this case, on his submissions, the risk of death of the mother is "real and substantial". Because the learned trial judge held that the risk is much less and of a different order of magnitude to that of the mother, therefore he says that the risk to the mother must always be less than the risk to the unborn. He submitted that the life of the unborn is "putative", if there is no life for the mother, then there is no life for the unborn. The unborn life he submitted,"is contingent" on the life of the mother and justifies the tests that he submits should apply to the mother's right to life.

[1992] 1 I.R.

The Attorney General v. X

64 S.C.

Hederman J.

The evidence on which the above submissions were made In an affidavit sworn on the 10th February, 1992, the mother of the girl, the third defendant, in the course of her affidavit stated that the first defendant was born on the 15th July, 1977; that on the 22nd January, 1992, the first defendant complained to her and to her husband that she had been sexually abused for over eighteen months by a close male friend of the family and that on the 7th December, 1991, she "had been raped" by this man. On the 4th February it was medically confirmed that the first defendant was nine weeks pregnant. She said that on discovering she was pregnant her daughter was extremely upset and distraught and informed both her and her husband that she wanted to kill herself by throwing herself down the stairs. She also stated that both herself and her husband were also extremely upset. She said that as a family they went through the options available; that her daughter had been through a harrowing experience, having been raped by a person who had sexually abused her over a period of time. The daughter emphatically stated she felt no love for the child. The daughter also expressed the view that were she to have the baby she would not be able to look at its face when it was born, but at the same time felt that she could not give up the child for adoption lest it would suffer the same fate as she had at the hands of the man who had abused her. The mother went on to depose: "We discussed the possibility of termination of her pregnancy and the first defendant was totally in agreement with the suggestion. I say and believe that both myself and the second defendant (the father) felt that in the circumstances of the case it was the best option and the option that would serve our daughter's welfare to the greatest extent." She went on to depose that arrangements were made to travel to London for the termination of the pregnancy but prior to the time set for the operation the husband was in contact with the garda in Dublin and was informed over the telephone of the making of the orders of the High Court. Immediately all plans in relation to the termination of the pregnancy ceased and the family returned to Ireland. Continuing her deposition the mother avers that the family: "truly believes that the best course of action in the interests of the first defendant is to terminate her pregnancy." She said that she and her husband were fearful of their daughter's mental health if she had to bring the pregnancy to full term and further that, while returning from London her daughter said that she wanted to throw herself under a train. The daughter felt she had put the parents through a lot of

[1992] 1 I.R.

The Attorney General v. X

65 S.C.

Hederman J.

difficulty because of her situation and would rather be dead than continue as she was. She said that the daughter is clear in her own mind and "has repeated to us on a number of occasions because of the circumstances of its conception. I this deponent and the second defendant herein are extremely fearful that she may suffer a complete mental breakdown if a termination does not take place. I believe because of the distress and difficulty the first defendant was experiencing on her return to Ireland . . . we brought her to a clinical psychologist for counselling" and the deponent exhibits the opinion of the psychologist. A member of the garda swore an affidavit on the 5th February, 1992. He deposes that he first became aware of these events on Friday the 31st January, 1992, when informed by a woman garda and was present at a garda station on the 3rd February, 1992, when the first defendant gave a detailed statement of alleged indecent assaults and alleged rape. He further averred that the first defendant, while making the statement, said she feared she would not be believed as the person whom she named in the statement is an adult and much older than she. After the interview the mother of the first defendant mentioned the possibility of the use of D.N.A. "fingerprinting"to assist in corroboration of the matters of which the daughter complained. On enquiries the garda was satisfied that such testing could not be carried out on a foetus in the womb. On the 4th February the deponent was informed by a doctor that the first defendant was pregnant. The garda was also informed by the mother that the family had discussed the possibility of ending the pregnancy and asked him if they were to decide to take this course, would it be possible to arrange a person to attend or be present in England to carry out tests on the foetus for the purpose of corroboration. On making enquiries the garda was informed that any such evidence by way of D.N.A. "fingerprinting" in the circumstances described, would be illegal, unconstitutional and not admissible in evidence. On the 5th February he telephoned the defendants' household and informed them of the advice he had received. Both parents were disappointed and distressed. The mother then informed the detective that all three of the defendants were going to England on the following day. A woman garda also made a deposition on the 6th February, 1992. She deposed that on the 30th January she was contacted by the same doctor, attached to a sexual assault unit to the effect that the presence of a garda was required at the unit. There she saw all three defendants and ultimately on the 3rd February took a detailed statement from the first defendant in the presence of her mother. In the High Court on the 11th February, 1992, the garda was sworn for the purpose of being examined by counsel for the defendants. In the course [1992] 1 I.R. The Attorney General v. X 66 S.C.

Hederman J.

of her corss-examination she stated that when she met the first defendant while in the sexual assault unit, she told the witness that she thought about running away; that would be the end of the matter. She also stated: "She did not say in my presence that she thought about killing herself but did say she was looking at ways out of this particular situation and thought about running away." That was on the Thursday. On the following morning the witness was with the first defendant for approximately five hours. She said the first defendant seemed fairly withdrawn but that when she did talk she was very specific about what she said. The defendant said: "I wish this was all over. Sometimes I feel like throwing myself down the stairs."

A clinical psychologist practising in Ireland since 1979, with six years experience in child psychology, but not a medical practitioner, was called by counsel for the defendants. His report had already been exhibited. He examined the first defendant on 7th February at the request of her parents. In the course of this report he states: "She seemed almost in a trance and she herself stated that she could not believe this was happening to her. While she told me she had been crying on her own she hides her feelings deliberately from her parents in order to protect them from further distress. Her vacant expressionless manner suggests she is coping with this appalling crisis in her life by denial of her emotions. For this reason she did not seem depressed, but I fear that when her feelings surface she will face a psychological crisis. She coldly expressed a desire to solve matters by ending her life. In this withdrawn state, she is capable of such an act, not so much because she is depressed, but because she could calculatingly reach the conclusion that death is the best solution. As her pregnancy proceeds, the psychological damage of carrying a child that she has emotionally rejected, and which she blames for the ruination of her life could be considerable. She is only too aware that her schooling will suffer, that she will have to repeat a year and lose her friends. Her sense of being a victim, and of self blame will increase. There is no doubt in my mind that the damage of this pregnancy to her mental health is going to be devastating." In the course of replies to questions during the High Court hearing he stated:

[1992] 1 I.R.

The Attorney General v. X

67 S.C.

Hederman J.

"I was asked to see her (the first defendant) with one specific question to be answered what was her emotional state given the recent events? My assessment was on that alone." He said he found the child strangely distanced from her emotions . . . she did not seem depressed but seemed almost calculatingly rational about her state. "This is what disturbed me most of all, that she was able to talk about not wishing to put her parents through more of this 'I thought about not putting my parents through more, it would be better to end it now than nine months more. It is hard to understand . . . it is hard at fourteen to go through nine months'." He was asked "Have you met adolescent teenagers who are a danger to themselves?" Answer: "I have, as have all psychologists and people who work in this area. I have had patients who have unfortunately taken their lives." Question: "Could I put it like this, is this a constant element of your experience?" Answer: "It is always a constant worry with depressed people but in this particular case I felt it was something I would have to protect myself against . . . I wanted to speak to the parents on their own. I decided I could not risk leaving her on her own in a waiting room. Professionally I could not take that risk. I brought her into the room and sat her behind the parents while I was talking to them." Later the witness said: "She is in a crisis but I don't think she has realised the full emotional impact of that. Currently the pregnancy for her is 'a pain'. A pain is all she is aware of. If she was aware of more she might become panicky about the situation she was in." The witness went on to say:

"She did not state an intention of how she would do it (suicide ). Simply I concluded it. That is why I used the term 'clearly to me ending her life might end her parents' problems'." Question: ". . . This morning the detective said that on the 30th January he was at the home of the first defendant for a number of hours and heard her remark that she would throw herself down the stairs. Does that reflect what you found in the interview?" Answer: "That certainly is one of the kinds of behaviour I would have seen as a risk with this girl."

[1992] 1 I.R.

The Attorney General v. X

68 S.C.

Hederman J.

Question: "The final sentence of your report 'There is no doubt in my mind the damage of this pregnancy to her mental health is going to be devastating." Answer: "Yes." Question: "Can you express to my Lord the dimensions of this?" Answer: "It is all hypothetical at present. I am willing to stand over my statement. This girl is going through a traumatic episode and the pregnancy will involve further trauma which will be permanent damage to her state. For example, there is a high level of guilt and confusion within the child . . . That wonderment . . . that confusion is going to persist and this is going to go on and on and on and even after there is no real end to the concern . . . this kind of concern is something we must bear in mind in the case of this girl. Her state, as I saw it, was suggesting that she was going to go through this kind of distress for years to come." Later, he was asked: Question: "In relation to her parents, is there a well-founded relationship with her parents so far as you could establish?" Answer: "Yes, and one of the things she said, perhaps three times 'I don't know why I kept it to myself so long. I should have told them more.' In the same context 'I should not be putting them through this. I cannot be putting them through this . . . I cannot put them through more. I have put them through enough'." Question: "We know the parents and the first defendant resolved that they would deal with this by going to London and getting a termination of the pregnancy. If that were not to occur now, would it have an effect on her? Would you be able to answer?" Answer: "I believe we are in a dilemma whatever happens this child now. The damage and it is a question of minimising the damage. It was my belief minimising it would be best achieved by minimising the episode, by putting some certainty into her life." Question: "Can you say the effect to which that uncertainty affects her mental stability?". Answer: "She seems to be a bright child, I did not do any testing to confirm this, but she seemed also to be under-achieving. I felt she has potential and that is going to suffer. She herself is only too aware. She is going to miss a year, be kept down in school and be harmed socially as a result, as well as academically." In cross-examination the psychologist said: "My recommendation would be she was not safe unless under supervision. I would have thought, given the state which I found her [1992] 1 I.R. The Attorney General v. X 69 S.C.

Hederman J.

in, in-patent treatment would be essential. I don't think the parents can offer 24-hour supervision." The witness also said that in the last two years he had come across about half a dozen girls under seventeen who were pregnant. Two went for adoption, two for termination, the other three he did not know what happened. One was fifteen, nearly sixteen, the other two in their sixteenth year and another had a child under seventeen. Two of the pregnancies were as a result of incest, three by boyfriends but the girls were under age and another was by an uncle. When asked "have you ever had a patient say she would in effect destroy herself because she had become pregnant in this way?" he answered: "Not within the age-range I am talking about. I have had wives say they would not tolerate another pregnancy from a man they detested. The specific situation relating to the first defendant. No." Question: "As far as her physical health is concerned, insofar as it is within your competence, how would you describe that to the court, her physical well-being, her psychological wellbeing?" Answer: "I saw her probably at her weakest. She had been vomiting for four days and had not kept food down. She was in pain. I was concerned about her physical state and was relieved when told by her parents she had been admitted to the hospital and placed in a situation where she could be fed. She was pale, wan and weak-looking." Question: "Apart from that, from an ordinary physical prospect, did you see her life as being in danger?" Answer: "I don't think I am competent to talk about whether her life was in danger from the pregnancy. That is best asked of the people supervising her. If she went on vomiting I don't think I need to be an expert to say it would endanger her health. She had not been able to hold anything down for four days." Later the witness was asked: Question: "Is it your professional view that she would destroy herself if matters continue as they are?" Answer: "I would not have taken it on myself to leave that girl alone in the state I saw her." Question: "But you only dealt with similar traumatic experience with slightly older girls where a pregnancy obviously ran full term?" Answer: "In Stafford I once left a distressed girl on her own. She ran away. It took the police a day and a half to find her. I was chastened by that experience, never to take a risk with anybody emotionally disturbed. I did [1992] 1 I.R. The Attorney General v. X 70 S.C.

Hederman J.

feel she would pose a risk if I left her on her own." Question: "How would she be at risk?" Answer: "It depends how long we protract this trauma for her." Question: "Do I take it therefore that she in effect would commit suicide if there was not a termination or abortion?" Answer: "I feel she might commit suicide or decide to terminate it herself by throwing herself down the stairs or something like that. That is the kind of thing that happened in previous cases I dealt with where girls attempted to gain abortion." Question: "Is that more prevalent when pregnancy is just confirmed or might it lessen if the matter is not ended?"

Answer: "It often increases because you can feel the kicking of the child inside you and you perhaps become more aware of the pregnancy. At present there are no physical symptoms. The child just feels pain." The fact that this girl is pregnant clearly proves that somebody is guilty of unlawful carnal knowledge of a girl under the age of fifteen years. The proof of such an offence does not depend on the absence of consent of the girl. So far as the allegation of rape is concerned it must for the purpose of this case remain an allegation as neither the High Court nor this Court can decide whether or not there was a rape by the person alleged by the first defendant or any person. The law The case on behalf of the defendants has not been presented on the basis that a rape would justify an abortion. The Eighth Amendment to the Constitution of Ireland is contained in Article 40, s. 3, sub-s. 3 and reads as follows: "The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right." Article 40, s. 3, sub-s. 3 is preceded by Article 40, s. 3, sub-s. 2 which states: "The State shall, in particular, by its laws protect as best it may from unjust attack and in the case of injustice done, vindicate the life, person, good name and property rights of every citizen." In interpreting any Article in the Constitution the Court must give to the words in that Article their ordinary meaning with due regard to the other [1992] 1 I.R. The Attorney General v. X 71 S.C.

Hederman J.

Articles of the Constitution. In the decision of this Court in McGee v. Attorney General [1974] I.R. 284 at p. 315, Walsh J. stated his opinion that by virtue of the terms of Article 40, s. 3 of the Constitution, the State had the positive obligation to ensure by its laws as far as is possible (relying on the Irish text of the Constitution) that a married woman should have available to her a means which would prevent a conception which was likely to put her life in jeopardy over and above the ordinary risks inherent in pregnancy. The reference to s. 3 of Article 40 was a reference to the general obligation undertaken by the State to vindicate the life of its citizens and indeed to protect their lives, and would be applicable to all lives which would require protection in particular circumstances. The context in which it arose in McGee's case was the context of prevention of the creation of life. That is legally, morally and psychologically different from acts interfering with a life already created. But that constitutional provision could also be invoked in circumstances where a life had already been created as was pointed out by Walsh J. at p. 312 of the same report. The application of the provision, and the nature of the form of application adopted by the State to honour its guarantees must necessarily depend upon the particular circumstances of every case in which it is sought to invoke the Article in question. It would be a mistake to think that Article 40, s. 3, subs. 2 or the Eighth Amendment refer only to the creation or destruction of life. It appears to me that they can also be invoked to deal with other situations, and might be invoked by the mother of an unborn child or others to protect it from injury by adverse environmental conditions, the use of various toxins in the air and other health or life threatening situations. It is a protection which all lives may invoke or have invoked on their behalf. Article 40, s. 3, sub-s. 2 as invoked in the McGee case could have been equally invoked at the time for the protection of an unborn life, as if, for example, Mrs. McGee had been pregnant and was in some way being deprived of

some procedure or other treatment or medicines, the absence of which would threaten the life of the child she was carrying. The Eighth Amendment to the Constitution was quite clearly designed to prevent any dispute or confusion as to whether or not unborn life could have availed of Article 40 as it stood before the Eighth Amendment. The Eighth Amendment made it clear, if clarity were needed, that the unborn life was also life within the guarantee of protection. It went further, and expressly spelled out a guarantee of protection of the life of the mother of the unborn life, by guaranteeing her life equality equality of protection, to dispel any confusion there might have been thought to exist to the effect that the life of the infant in the womb must be saved even if it meant certain death for the mother. The death of a foetus may be the indirect [1992] 1 I.R. The Attorney General v. X 72 S.C.

Hederman J.

but foreseeable result of an operation undertaken for other reasons. Indeed it is difficult to see how any operation, the sole purpose of which is to save the life of the mother, could be regarded as a direct killing of the foetus, if the unavoidable and inevitable consequences of the efforts to save the mother's life leads to the death of the foetus. But like all examples of self-defence, of which this would be one, the means employed to achieve the self-protection must not go beyond what is strictly necessary. The most significant aspect of the provisions of Article 40, s. 3 and of the Eighth Amendment is the objective of protecting human life which is the essential value of every legal order and central to the enjoyment of all other rights guaranteed by the Constitution. The constitutional provisions amount to a dedication to the fundamental value of human life. The Eighth Amendment establishes beyond any dispute that the constitutional guarantee of the vindication and protection of life is not qualified by the condition that the life must be one which has achieved an independent existence after birth. The right of life is guaranteed to every life born or unborn. One cannot make distinctions between individual phases of the unborn life before birth, or between unborn and born life. Clearly the State's duty of protection is far reaching. Direct State interference in the developing unborn life is outlawed and furthermore the State must protect and promote that life and above all defend it from unlawful interference by other persons. The State's duty to protect life also extends to the mother. The natural connection between the unborn child and die mother's life constitutes a special relationship. But one cannot consider the unborn life only as part of the maternal organism. The extinction of unborn life is not confined to the sphere of private life of the mother or family because the unborn life is an autonomous human being protected by the Constitution. Therefore the termination of pregnancy other than a natural one has a legal and social dimension and requires a special responsibility on the part of the State. There cannot be a freedom to extinguish life side by side with a guarantee of protection of that life because the termination of pregnancy always means the destruction of an unborn life. Therefore no recognition of a mother's right of self-determination can be given priority over the protection of the unborn life. The creation of a new life, involving as it does pregnancy, birth and raising the child, necessarily involves some restriction of a mother's freedom but the alternative is the destruction of the unborn life. The termination of pregnancy is not like a visit to the doctor to cure an illness. The State must, in principle, act in accordance with the mother's duty to carry out the pregnancy and, in principle must also outlaw termination of pregnancy. The State's obligation is to do all that is reasonably possible having regard to the importance of preserving life.

[1992]

The Attorney General v. X

73

1 I.R.

Hederman J.

S.C.

In the sphere of criminal law, in the Offences against the Person Act, 1861, the penalty for unlawful termination of pregnancy can be life imprisonment. This is what might be thought to be the endeavour to achieve the objective by deterrents which have not proved, where similar statutory provisions apply, to have done much to save lives. Therefore in Article 40, s. 3, sub-s. 3 of the Constitution the State has not confined itself by any means to the field of penal law by relying upon punitive provisions. Obviously to succeed in saving a life is of far greater benefit than the infliction of punishment for the destruction of that life. The State therefore can be obliged to take positive action to intervene to prevent an imminent destruction of life and one obvious way is by a restraining order directed to any person who is threatening the destruction of the unborn life where known to the State. That can include restraint of the mother of the child where she is the person or one of the persons threatening the continued survival of the life. In such a case the most appropriate person to move for such restraint is the Attorney General. One of his functions is to represent the public interest and to defend the public interest as has been recognised by this Court in its decisions in The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd. [1988] I.R. 593 and S.P.U.C. v. Grogan [1989] I.R. 734. When the protection of the courts is invoked it will only be granted where the life to be protected is within the jurisdiction of the Courts, or the threat lies within the jurisdiction and the persons sought to be restrained are also within the jurisdiction of the courts. If that involves restraint upon the removal of the protected life from the jurisdiction it necessarily involves the restraint of the movement of the pregnant woman. A restraint upon leaving the territory of the jurisdiction of the courts would in the ordinary way be a restraint upon the exercise of the constitutional right to travel but the competing right is the preservation of life and of the two the preservation of life must be deemed to be paramount and to be sufficient to suspend for at least the period of gestation of the unborn life the right to travel. This is much less a diminution of constitutional rights than the irrevocable step of the destruction of life. With regard to the principles applicable to competing constitutional rights see the judgments of this Court in The People (Attorney General) v. O'Brien [1965] I.R. 142; Quinn's Supermarket v. The Attorney General [1972] I.R. 1 and The People v. Shaw [1982] I.R. 1. It is to be noted that there are several other areas in which the right to travel can be restricted as for example a person who is on bail can be bound not to leave the jurisdiction without the permission of the court; persons who are wards of court cannot be taken out of the jurisdiction without the express permission of the court.

[1992] 1 I.R.

The Attorney General v. X

74 S.C.

Hederman J.

It is necessary to emphasise that the application before the High Court and this Court is not in the sphere of criminal law and there is no question of the imposition of punishment on anybody. I have already referred to the existing criminal law dealing with the unlawful termination of pregnancy within the jurisdiction. However lest it should be thought that that is the limit of the legislative powers of the State it should be borne in mind that the Oireachtas enjoys power to make laws of extra-territorial jurisdiction also as is set out in Article 3 of the Constitution and as has been upheld by this Court in the reference of the Criminal Law Jurisdiction Act, 1976. See In re Criminal Law (Jurisdiction) Bill, 1975 [1977] I.R. 129. If the State was of opinion that further penal provisions should be enacted it is quite within the competence of the Oireachtas to make the Irish criminal law applicable to acts committed outside the jurisdiction regardless of the law of the place of commission. This is a type of extra-territorial jurisdiction which is exercised to a

greater or lesser degree by all our fellow member states in the European Community. For example, within our existing penal law, the offence of bigamy is triable within this jurisdiction no matter where the offence is committed. In the course of the arguments before this Court reliance was placed upon the ruling of the trial judge in Rex v. Bourne [1939] 1 K.B. 687 where he instructed the jury that if the object of the operation in that case was one made in good faith and had as its only purpose the saving of the life of the mother then it did not come within the term "unlawfully" as appears in the statute. It should be remembered however that that decision relied upon the Infant Life Preservation Act, 1929, as the judge said that the word"unlawfully" in the Act of 1861 imported the same meaning as that contained in the proviso to s. 1 of the Act of 1929 which imported a question of whether the act concerned was or was not done in good faith and for the purpose only of preserving the life of the mother. The Act of 1929 did not of course apply to this jurisdiction nor is there any similar provision. The Act of 1929 applied to cases where a child, who was born alive, was killed after it had an existence independent of its mother while under the Act of 1861 it is not necessary to prove that the child is capable of being born alive to establish the offence of what is popularly called a criminal abortion, although that term does not appear in the Statute. The killing acknowledged in the English Act of 1929 if adopted in this jurisdiction could lead to a charge of murder. At common law abortion was not treated as murder because by common law the definition of murder related only to the homicide of a person born alive although abortion as an offence also at one time was a capital offence. However the terms of the Constitution totally exclude any possible suggestion that the unborn fife is any less a human life [1992] 1 I.R. The Attorney General v. X 75 S.C.

Hederman J.

than a life which has acquired an existence independent of its mother. The common law definition of murder excluded the killing of an unborn child and on the other hand the common law dealing with the law of property could deem an unborn child to be "a life in being", for example, in the rule against perpetuities. While there has never been any court ruling in this jurisdiction on whether the successful defence in Rex v. Bourne [1939] 1 K.B. 687 would have been accepted as a correct interpretation of the Act of 1861, it is clear that the interpretation of the Constitution cannot be made to be dependent upon the provisions of a statute, particularly a statute which was passed almost a century before the Constitution itself was enacted. Even if one were to assume that the Bourne interpretation could be given in this jurisdiction to the statute it goes to the question of mens rea in a criminal case. It is also to be borne in mind that the learned judge in that case stated that "the desire of the woman to be relieved of her pregnancy is not justification". The Eighth Amendment does contemplate a situation arising where the protection of the mother's right to live has to be taken into the balance between the competing rights of both lives, namely the mother's and the unborn child's. Abortion as a medical procedure is unique in that it involves three parties. It involves the person carrying out the procedure, the mother and the child. It is inevitable that if the procedure is adopted the child's life is extinguished. Therefore before that decision is taken it is obvious that the evidence required to justify the choice being made must be of such a weight and cogency as to leave open no other conclusion but that the consequences of the continuance of the pregnancy will, to an extremely high degree of probability cost the mother her life and that any such opinion must be based on the most competent medical opinion available. In the present case neither this Court nor the High Court has either heard or seen the mother of the unborn child. There has been no evidence whatever of an obstetrical or indeed of any other medical nature. There has been no evidence upon which the courts could conclude that there are any obstetrical problems, much less serious threats to the life of the mother of a medical nature. What has been offered is the evidence of a psychologist based on his own encounter with

the first defendant and on what he heard about her attitude and behaviour from other persons, namely the Garda Sochna, and her parents. This led him to the opinion that there is a serious threat to the life of the first defendant by an act of self-destruction by reason of the fact of being pregnant. This is a very extreme reaction to pregnancy, even to an unwanted pregnancy. But as was pointed out in this Court in S.P.U.C. v. Coogan [1989] I.R. 734 the fact that a pregnancy is unwanted was no justification for terminating it or attempting to terminate it. If there is a suicidal tendency then this is [1992] 1 I.R. The Attorney General v. X 76 S.C.

Hederman J.

something which has to be guarded against. If this young person without being pregnant had suicidal tendencies due to some other cause then nobody would doubt that the proper course would be to put her in such care and under such supervision as would counteract such tendency and do everything possible to prevent suicide. I do not think the terms of the Eighth Amendment or indeed the terms of the Constitution before amendment would absolve the State from its obligation to vindicate, and protect the life of a person who had expressed the intention of selfdestruction. This young girl clearly requires loving and sympathetic care and professional counselling and all the protection which the State agencies can provide or furnish. There could be no question whatsoever of permitting another life to be taken to deal with the situation even if the intent to self-destruct could be traced directly to the activities or the existence of another person. It has not been argued that the words "having regard to the equal right of life of the mother" should be construed more widely than preserving the life of the mother and should be construed to be wide enough to include a situation where the best expert opinion is to the effect that the continuance of the pregnancy would be to make the mother a physical wreck. I do not think the word "life" in this context is to be construed any differently from the word "life" in the earlier part of the same Article though the State would be obliged to do all it reasonably possibly can to take steps to prevent anybody becoming a physical or a mental wreck, short of taking innocent life to achieve it. Fortunately the Court does not have to decide this matter now but has to decide the matter in the context of a threat of suicide. Suicide threats can be contained. The duration of the pregnancy is a matter of months and it should not be impossible to guard the girl against selfdestruction and preserve the life of the unborn child at the same time. The choice is between the certain death of the unborn life and a feared substantial danger of death but no degree of certainty of the mother by way of self-destruction. On the vital matter of the threat to the mother's life there has been a remarkable paucity of evidence. In my opinion the evidence offered would not justify this Court withdrawing from the unborn life the protection which it has enjoyed since the injunction was granted. Since this hearing commenced the solicitors for the defendants sought particulars as to how the plaintiff would or could enforce the injunction preventing the first defendant from leaving the jurisdiction. In reply to these requisitions the Attorney General directed that counsel of his behalf should submit to the Supreme Court that in the event of its dismissing the appeal by the defendants that the Court should alter the order of the High Court insofar as it is unconditionally restraining the first defendant from leaving the jurisdiction (i.e. from leaving it under any circumstances or for any [1992] 1 I.R. The Attorney General v. X 77 S.C.

Hederman J.; McCarthy J.

purpose). Instead it is considered that it would be sufficient to make an order restraining her from leaving the jurisdiction for the purpose of having an abortion outside the State. In these new circumstances, unless the Court could make an injunction of the nature already granted by Costello J., prohibiting the defendant from leaving the jurisdiction, it could not effectively discharge its constitutional obligation of protecting the unborn life. If the defendants were to travel out of the jurisdiction and the first defendant had an abortion, the Court could only deal with the question of contempt of Court if the defendants returned to the jurisdiction, but could not restore the unborn life. Therefore this Court should not grant the injunction at (b) in the terms now sought by the Attorney General. I would uphold the order of the High Court at paragraphs (a) and (c) of his order and would make no order in respect of paragraph (b). McCarthy J. The facts of this matter have been fully set out in the judgment of the Chief Justice. (1) The role of the Attorney General In S.P.U.C. v. Coogan [1989] I.R. 734, this Court held that any party who had a bona fide concern and interest, which interest connoted proximity or an objective interest, in the protection of the constitutionally guaranteed right to life of the unborn had sufficient standing to invoke the jurisdiction of the courts to take such measures as would defend and vindicate that right, affirming its view as expressed in The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd [1988] I.R. 593 at page 623. I disagreed with the conclusion in Coogan's case since I did not consider the point to have been decided in the Open Door case. I accept the law as stated by the majority in Coogan's case. All the judgments identified the Attorney General as the person appropriate to call in aid the courts to enforce the right of the unborn; in S.P.U.C. v. Grogan [1989] I.R. 753, this Court endorsed the earlier decision. In my judgment in Coogan's case at p.751 I observed that "If, as submitted on behalf of the Society, the whole nature and quality of Irish society is affected by the right, it would appear to be a public right, ordinarily in the province of the Attorney General". It is beyond question that the Attorney General is empowered to invoke the guarantee. If, as in this case, the termination of pregnancy is imminent, and the prospective mother is leaving or has left the jurisdiction for that purpose, in my view the Attorney [1992] 1 I.R. The Attorney General v. X 78 S.C.

McCarthy J.

General is constitutionally entitled to apply to the court to make such order as is necessary and appropriate. It is a power, function and duty imposed on him by the Constitution. (2) The guarantee Article 40, s.3, sub-s. 3 provides: "The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right." In the course of this appeal some discussion took place as to the version of this sub-section in the Irish language and, in particular, in respect of the phrase "sa mhid gur fidir " which in English is stated "as far as practicable". A like discussion arose in O'Donovan v. The Attorney General [1961] I.R. 114 and In re The Electoral (Amendment) Bill, 1961 [1961] I.R. 169. It was there considered that in the context of Article 16, s.2, sub-s 3, like but not identical words in English and identical words in Irish did not contain any material discordance. Despite the fact that there have been instances of the courts adverting to the Irish text in order to construe that in English, the debate on this being conducted in English, I have some difficulty in identifying the conflict

referred to in Article 25, s.5, sub-s 4 as the circumstance under which the Irish text shall prevail. Historically, the Irish text is a translation of that in English. If there be a hierarchy of constitutional rights, as argued by the Attorney General, it is, perhaps easier to compare two of them rather than to identify the level of each particular right. This is all the more so since the catalogue of unenumerated rights remains incomplete. Life itself, although until 1990 qualified as a fundamental right (see s. 1 of the Criminal Justice Act, 1990, and Article 13, s.6 of the Constitution), would appear to rank at the top of the scale. I would prefer to seek harmony between the various rights guaranteed and to reconcile them to each other rather than to rank one higher than another. True in The People v. Shaw [1982] I.R. 1 Griffin J., with whom Henchy and Parke JJ. agreed, said: "If possible, fundamental rights under a Constitution should be given a mutually harmonious application, but when that is not found possible, the hierarchy or priority of the conflicting rights must be examined, both as between themselves and in relation to the general welfare of the society. This may involve the toning down or even the [1992] 1 I.R. The Attorney General v. X 79 S.C.

McCarthy J.

putting into temporary abeyance of a particular guaranteed light so that, in a fair and objective way, the more pertinent and important right in a given set of circumstances may be preferred and given application." Kenny J., at p. 63, of the report said: "There is a hierarchy of constitutional rights, and, when a conflict arises between them that which ranks higher must prevail. This is the law for the exercise of all three powers of Government and flows from the conception that all three powers must be exercised to promote the common good: see the preamble to the Constitution. The decision on the priority of constitutional rights is to be made by the High Court and, on appeal, by this Court. When a conflict of constitutional rights arises, it must be resolved by having regard to (a) the terms of the Constitution, (b) the ethical values which all Christians living in the State acknowledge and accept, and (c) the main tenets of our system of constitutional parliamentary democracy." I find some conflict between these two statements because of some possible lack of objectivity identified in the latter. Walsh J. at p. 39 concluded that on the evidence there was no basis for the belief which might have justified the preferring of the right to life of one of the victims to the right to liberty of the accused. In the Court of Criminal Appeal (O'Higgins C.J., Finlay P. and McMahon J.), the court was satisfied "that, if it needs to be excused, the interference with the applicant's right to liberty is amply excused by the circumstance that the paramount and primary purpose for continuing his detention was the hope of saving the life of the woman from imminent peril." Disregarding what might have happened in Shaw's case if he had access to a court during his detention, the words I have quoted from the judgment of McMahon J. in the Court of Criminal Appeal do indicate not, I suggest, a hierarchy of rights but, rather, the reconciliation of them. The right of the girl here is a right to a life in being; the right of the unborn is to a life contingent; contingent on survival in the womb until successful delivery. It is not a question of setting one above the other but rather of vindicating, as far as practicable, the right to life of the girl/mother (Article 40, s.3, sub-s. 2), whilst with due regard to the equal light to life of the girl/mother, vindicating, as far as practicable, the right to life of the unborn. (Article 40, s.3, sub-section 3). If the right to life of the mother is threatened by the pregnancy, and it is practicable to vindicate

that light, then because of the due regard which must be paid to the equal right to life of the mother, it may not be practicable to vindicate the right to life of the unborn. What then does "threatened" mean? The learned trial judge identified the question [1992] 1 I.R. The Attorney General v. X 80 S.C.

McCarthy J.

in these words: "What the court, therefore, is required to do is to assess by reference to the evidence the danger to the life of the child and the danger that exists to the life of the mother. I am quite satisfied that there is a real and imminent danger to the life of the unborn and that if the court does not step in to protect it by means of the injunction sought its life would be terminated. The evidence also establishes that if the court grants the injunction sought there is a risk that the defendant may take her own life. But the risk that the defendant may take her own life if an order is made is much less and is of a different order of magnitude than the certainty that the life of the unborn will be terminated if the order is not made. I am strengthened in this view by the knowledge that the young girl has the benefit of the love and care and support of devoted parents who will help her through the difficult months ahead. It seems to me, therefore, that having had regard to the rights of the mother in this case, the court's duty to protect the life of the unborn requires it to make the order sought." In my judgment, this was an incorrect approach to the problem raised by the terms of the Eighth Amendment. It is not a question of balancing the life of the unborn against the life of the mother; if it were, the life of the unborn would virtually always have to be preserved, since the termination of pregnancy means the death of the unborn; there is no certainty, however high the probability, that the mother will die if there is not a termination of pregnancy. In my view, the true construction of the Amendment, bearing in mind the other provisions of Article 40 and the fundamental rights of the family guaranteed by Article 41, is that, paying due regard to the equal right to life of the mother, when there is a real and substantial risk attached to her survival not merely at the time of application but in contemplation at least throughout the pregnancy, then it may not be practicable to vindicate the right to life of the unborn. It is not a question of a risk of a different order of magnitude; it can never be otherwise than a risk of a different order of magnitude. On the facts of the case, which are not in contest, I am wholly satisfied that a real and substantial risk that the girl might take her own life was established; it follows that she should not be prevented from having a medical termination of pregnancy. This conclusion leads inevitably to the recognition that the wording of the Amendment contemplates abortion lawfully taking place within this State. In S.P.U.C. v. Grogan [1989] I.R. 753, I said at p.770 of the report: "In the course of argument, counsel for the defendants submitted [1992] 1 I.R. The Attorney General v. X 81 S.C.

McCarthy J.

that the wording of the Eighth Amendment itself recognised that there could, in certain circumstances, be a lawful abortion in this State. The constitutional guarantee by the State is 'in its laws to respect, and, as far as practicable, by its laws to defend and vindicate' the light to life of the unborn. No relevant law has been enacted by the

Oireachtas since the Eighth Amendment came into force, the direct criminal law ban on abortion still deriving from the Offences Against the Person Act, 1861. As was pointed out by the Chief Justice in the Open Door Counselling case at p. 625: 'If the Oireachtas enacts legislation to defend and vindicate a constitutionally guaranteed right it may well do so in wider terms than are necessary for the resolution of any individual case'. It is unfortunate that the Oireachtas has not enacted any legislation at all in respect of this constitutionally guaranteed light." In the course of argument, counsel for the Attorney General acknowledged that the Amendment does envisage the carrying out of a lawful abortion within the State. In my view, he was correct in so doing. From the wording of that portion of his judgment which I have cited, I conclude that Costello J. also considered that there could be circumstances in which an abortion within the State might lawfully be carried out. Before the enactment of the Amendment, the provisions of s. 58 of the Offences Against the Person Act, 1861, made it a criminal offence to procure a miscarriage. The terms were wide enough to make the act of the prospective mother or any one taking part in the procedure guilty of an offence. Abortion, for any purpose, was unlawful. The Eighth, like any Amendment to the Constitution, originated in the legislature and, in this instance, was initiated by the executive. The relevant bill was passed by both houses of the Oireachtas and in accordance with the Constitution, it was then voted on by the People in a referendum. Its purpose can be readily identified it was to enshrine in the Constitution the protection of the right to life of the unborn thus precluding the legislature from an unqualified repeal of s. 58 of the Act of 1861 or otherwise, in general, legalising abortion. The guarantee to the unborn was qualified by the requirement of due regard to the right to life of the mother and made less than absolute by recognising that the right could only be vindicated as far as practicable. The guarantee was secured by the commitment of the State in its laws to respect and by its laws to defend and vindicate that right. I agree with the Chief Justice that the want of legislation pursuant to the amendment does not in any way inhibit the courts from exercising a function to vindicate and defend the right to life of the unborn. I think it reasonable, however, to hold that [1992] 1 I.R. The Attorney General v. X 82 S.C.

McCarthy J.

the People when enacting the Amendment were entitled to believe that legislation would be introduced so as to regulate the manner in which the right to life of the unborn and the right to life of the mother could be reconciled. In the context of the eight years that have passed since the Amendment was adopted and the two years since Grogan's case the failure by the legislature to enact the appropriate legislation is no longer just unfortunate; it is inexcusable. What are pregnant women to do? What are the parents of a pregnant girl under age to do? What are the medical profession to do? They have no guidelines save what may be gleaned from the judgments in this case. What additional considerations are there? Is the victim of rape, statutory or otherwise, or the victim of incest, finding herself pregnant, to be assessed in a manner different from others? The Amendment, born of public disquiet, historically divisive of our people, guaranteeing in its laws to respect and by its laws to defend the right to life of the unborn, remains bare of legislative direction. Does the right to bodily integrity, identified in Ryan v. Attorney General [1965] I.R. 294 and adverted to by Walsh J. in S.P.U.C. v. Grogan [1989] I.R. 753 at p. 767, involve the right to control one's own body? Walsh J. graphically describes part of the problem: "When a woman becomes pregnant she acquires rights which cannot be taken from her, namely, the right to protect the life of her unborn child and the right to protect her own

bodily integrity against any effort to compel her by law or by persuasion to submit herself to an abortion. Such rights also carry obligations the foremost of which is not to endanger or to submit to or bring about the destruction of that unborn life. There is no doubt that, particularly in the case of an unmarried pregnant woman, intense pressures of a social kind may be brought to bear upon her to submit to an abortion, even from her peers or her parents. There may even be specious arguments of an economic nature ranging from those of the neo-Malthusian type to those which would seek to determine for economic reasons that the population should be structured in a particular way even to the point of deciding that the birth of too many persons of one sex should be prevented. The destruction of life is not an acceptable method of birth control. The qualification of certain pregnancies as being "unwanted"is likewise a totally unacceptable criterion. The total abandonment of young children or old persons or of those who by reason of infirmity, mental or physical, or those who are unable to look after themselves too often occurs throughout the world. There is clear evidence that they are unwanted by those who abandon them. That would however provide no justification whatever for their [1992] 1 I.R. The Attorney General v. X 83 S.C.

McCarthy J.

elimination. On the economic plane there are, no doubt, some distorted minds which could make a case for the elimination of what they would regard as old useless and unproductive human units. To be unwanted is not justification for the destruction of one's life." Since the Amendment contemplates lawful abortion, how may the State still, as far as practicable, vindicate the right to life of the unborn? Legislation may be both negative and positive: negative, in prohibiting absolutely or at a given time, or without meeting stringent tests: positive by requiring positive action. The State may fulfil its role by providing necessary agencies to help, to counsel, to encourage, to comfort, to plan for the pregnant woman, the pregnant girl or her family. It is not for the courts to programme society; that is partly, at least, the role of the legislature. The courts are not equipped to regulate these procedures. (3) Enforcement At the time the original order was made, the girl and her parents were in London out of the jurisdiction. They have shown a most admirable sense of responsibility to the courts. They had no advance notice of any application for the order that was made and went to London without any intention of evading the jurisdiction of the courts. They returned to Dublin immediately on learning of the making of the order not having achieved the ultimate purpose of their journey. That is not to say that up to the very moment of medical intervention, the girl and her parents might not well have changed their minds. It would be unreal not to recognise that there are many who would not show the same respect for the courts and who, because of this case and the extraordinary publicity, charged with emotion, that it has attracted would take great care to ensure that their intention of leaving the jurisdiction would not come to the notice of any person, in public office or otherwise, who might seek to call the courts in aid of preventing them going outside the jurisdiction in order to terminate the pregnancy. 1. (a) Has the Court jurisdiction to prevent a person leaving the State in order to have an abortion? 2. (b) Assuming there is such jurisdiction, should such an order be made where it is highly unlikely to be obeyed? 3. (c) How wide is the application of such a possible order?

Counsel for the Attorney General expressly conceded that, if such a power existed, it could not be confined to a girl under age, as here, a citizen, as here, or in any way to restrict the ambit of its application from any pregnant woman then in the State, irrespective of her nationality, [1992] 1 I.R. The Attorney General v. X 84 S.C.

McCarthy J.

citizenship, or, indeed, where the conception had taken place. If, as in this case is quite a reasonable possibility, the girl was living with her parents in London and had come to Ireland on holiday, a holiday perhaps as part of the treatment for her ordeal, she not merely could but should be prevented from returning to her home if her objective in doing so, partly or otherwise, was to have an abortion. Ranged against these arguments or the unreality alleged to underlie them, is the simple propositionthe failure of the legislature to enact the appropriate laws does not relieve the courts, and, in particular, this Court, of its duty, as one of the great organs of State, to vindicate the fundamental right identified in the Amendment, although clearly ante-dating it, as detailed in judgments in this Court. See: G. v. An Bord Uchtla [1980] I.R. 32; McGee v. The Attorney General [1974] I.R. 284 at p. 312 and Norris v. The Attorney General [1984] I.R. 36 at page 103. The short answer, in the instant case, is that the order was effective; it may well be that others will be less responsible than the family involved here but that would not, of itself, be a ground for not making the order. If one examines other possibilities, however, the propriety of making such an order seems to be more in question. If, for instance a citizen of another State who did not at the time of her arrival in Ireland know she was pregnant, learned of her condition whilst here and wished immediately to go home in order to terminate the pregnancy, she is unlikely to inform any official authority or any interested bystander. If, however, she did so would the courts make an order detaining her in Ireland for nine months? I think not, but why not? It introduces the next problem. (4) The right to travel Such a right has been identified in The State (M.) v. The Attorney General [1979] I.R. 73 as one of the unenumerated rights, all of which enjoy the same guarantee as contained for those expressed in Article 40. If the purpose of exercising the right to travel is to avail of a service, lawful in its own location, but unlawful in Ireland, is the right curtailed or abolished because of that local illegality and/or because of the guarantee in the Amendment? If it were a matter of a balancing exercise, the scales could only tilt in one direction, the right to life of the unborn, assuming no threat to the life of the mother. In my view, it is not a question of balancing the light to travel against the right to life; it is a question as to whether or not an individual has a right to travel which she has. It cannot, in my view, be curtailed because of a particular intent. If one travels from the jurisdiction of this State to another, one, temporarily, becomes subject to the laws of the other state. An [1992] 1 I.R. The Attorney General v. X 85 S.C.

McCarthy J.

agreement, commonly called a conspiracy, to go to another state to do something lawfully done there cannot, in my opinion, permit of a restraining order. Treason is thought to be the gravest of crimes. If I proclaim my intent to go to another country there to plot against the Government here, I may, by some extension of the law against sedition, be prosecuted and, consequently, subject to detention here, but I cannot be lawfully prevented from travelling to that other country there to plot the overthrow, since that would not be a crime in the other country. I go further. Even if it were a crime in the other country, if I proclaim my intent to explode a bomb or shoot

an individual in another country, I cannot lawfully be prevented from leaving my own country for that purpose. The reality is that each nation governs itself and enforces its own criminal law. A court in one state cannot enjoin an individual leaving it from wrong-doing outside it in another state or states. It follows that, insofar as it interferes with the right to travel, there is no jurisdiction to make such an order. In this context, I cannot disregard the fact that, whatever the exact numbers are, there is no doubt that in the eight years since the enactment of the Amendment, many thousands of Irish women have chosen to travel to England to have abortions; it is ironic that out of those many thousands, in one case of a girl of fourteen, victim of sexual abuse and statutory rape, in the care of loving parents who chose with her to embark on further trauma, having sought help from priest, doctor and garda, and with an outstanding sense of responsibility to the law of the land, should have the full panoply of the law brought to bear on them in their anguish. In short 1. (1) The Attorney General acted properly in bringing the matter before the court. 2. (2) The terms of the Eighth Amendment, now contained in Article 40, s. 3, sub-s. 3 contemplate lawful abortion within the State. 3. (3) Despite the absence of regulating legislation, the judicial ann of government must seek to enforce the guarantee. 4. (4) On the facts of this case, the mother is not to be prevented from having an abortion. 5. (5) In any event, she cannot be lawfully prevented from leaving the State, whatever her purpose in doing so. 6. (6) The failure of the legislature to provide for the regulation of Article 40, s. 3, sub-s. 3 has significantly added to the problem. It was for these reasons that I agreed that the order of the High Court should be set aside.

[1992] 1 I.R.

The Attorney General v. X

86 S.C.

O'Flaherty J.

O'Flaherty J. The enactment of Article 40, s. 3, sub-s. 3 in 1983 did not I believe bring about any fundamental change in our law. Already, s. 58 of the Offences Against the Person Act, 1861, made it an offence unlawfully to bring about the miscarriage of a woman. In G. v. An Bord Uchtia [1980] IR 32 Walsh J. articulated the right to life thus when he said at p. 69 of the report: "[A child] has the right to life itself and the right to be guarded against all threats directed to its existence whether before or after birth . . . The right to life necessarily implies the right to be born, the right to preserve and defend (and to have preserved and defended) that life. . . ." It should be recalled, also, that s. 58 of the Civil Liability Act, 1961, provides as follows: "For the avoidance of doubt it is hereby declared that the law relating to wrongs shall apply to an unborn child for his protection in like manner as if the child were born, provided the child is subsequently born alive." Thus, to take a simple example, if a pregnant woman is involved in a car accident and the child in the womb sustains injuries through someone's negligence, that child, on birth, would be entitled to have proceedings brought on his behalf to recover damages for such injuries. I know that there are many in other jurisdictions who in times past would have wished to have such enlightened legislation in force putting beyond doubt the entitlements of the unborn child. So I

believe we can have pride in the measures taken in our statute and case law to affirm and protect the rights of the child in the womb. The fact is that this right to life is now, by reason of the Eighth Amendment of the Constitution, in express words enshrined in the document. The case in hand puts in question a particular form of intervention by the State in an attempted vindication of that right. It is our duty, therefore, to define what it means and to set out the scope of its application. Prior to making such a decision, it would have been desirable that we would have had an opportunity to consider a jurisprudence built up on a case-by-case basis. We as judges of final appeal have to bring all our powers of concentration to bear to provide a substantial interpretation of this constitutional provision and to provide it now. This provision cannot, of course, be taken in isolation from its historical background which I have already briefly sketched: it must also be considered as but one provision in the whole Constitution. The Constitution has [1992] 1 I.R. The Attorney General v. X 87 S.C.

O'Flaherty J.

at its core a commitment to freedom and justice. It treats the family with such respect and in language of such clarity and simplicity that any attempt to summarise or paraphrase it must be inadequate. Can it be that a Constitution which requires the State to look to theeconomic needs of mothers is unconcerned for the health and welfare and happiness of mothers? I am certain that reading the Constitution as a whole, as I believe one must do, then the answer is clearly not. A broad dimension must be given to the Constitution and a narrow or pedantic approach to its provisions has to be put aside. I repeat and adopt what Henchy J. said in The People v. O'Shea [1982] I.R. 384 at p. 426: "Any single constitutional light 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 killeth, but the spirit giveth life'". I believe the sub-section is clear in the following respects: 1. (i) Abortion, as such, certainly abortion on demand, is not something that can be legalised in this jurisdiction. 2. (ii) Promotional propaganda in respect of abortions abroad is prohibited. The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd [1988] I.R. 593. 3. (iii) The legislators when they come to enact legislation must have due regard to the mother's light to lifea right protected throughout the Constitution in any event. Until legislation is enacted to provide otherwise, I believe that the law in this State is that surgical intervention which has the effect of terminating pregnancybona fide undertaken to save the life of the mother where she is in danger of death is permissible under the Constitution and the law. The danger has to represent a substantial risk to her life though this does not necessarily have to be an imminent danger of instant death. The law does not require the doctors to wait until the mother is in peril of immediate death. I believe the instant case to come within this principle. Having regard to the principles of interpretation that in my judgment should apply, the further question to be asked is whether officers of the State are obliged to invoke what may be called the police power of the State to [1992] The Attorney General v. X 88

1 I.R.

O'Flaherty J.; Egan J.

S.C.

interfere with the freedom of the individual, especially the individual's freedom of movement in and out of the jurisdiction? I leave aside the entitlement of the Oireachtas to enact legislation in regard to the provision and take it as self-executing in the absence of such legislation. I believe that its positive thrust is that the State should provide every practical assistance to pregnant women who find themselves unwillingly in that situation to help them make a decision which is in accordance with the Constitution and the law. The responsibility for this devolves primarily on the executive branch of government pending the enactment of legislation; but, in addition, no effort of heart or mind or resource should be spared by all citizens to provide encouragement for such mothers. The State's role in such a case should be a positive rather than a negative one. In particular, I do not believe that the Court should grant an injunction to interfere to this extraordinary degree with the individual's freedom of movement. In this case the injunction granted also involves, in my judgment, an unwarranted interference with the authority of the family. It should be known that once an injunction is granted by a court it is an order that must be obeyed. If there is a failure to obey the order, then that disobedience may be punished by the imposition of various penalties, including the possibility of imprisonment or fines. To say that it is unlikely that such penalties would ever be invoked in this case is no answer; the fact is that such severe remedies are available. Such a regime is impossible to reconcile with a Constitution one of the primary objects of which, as stated in its Preamble, is to assure the dignity and freedom of the individual. I join with the other members of the Court in agreeing that the Attorney General acted correctly in seeking the opinion of the High Court in the circumstances of this case. Egan J. This is an appeal from an order of Costello J. dated the 17th February, 1992, by which it was ordered: 1. (a) that the defendants, their servants or agents or anyone having knowledge of the order be restrained from interfering with the right to life of the unborn as contained in Article 40, s. 3, sub-s. 3 of the Constitution of Ireland; 2. (b) that the first defendant be restrained from leaving the jurisdiction of the court or the second and third defendants, their servants or agents or anyone having knowledge of the [1992] 1 I.R. The Attorney General v. X 89 S.C.

Egan J.

order from assisting the first defendant to leave the said jurisdiction for a period of nine months from the date of the said order, 3. (c) that the first defendant, her servants or agents or anyone having knowledge of the said order be restrained from procuring or arranging a termination of pregnancy or abortion either within or without the said jurisdiction. Counsel for the Attorney General submitted on his instructions, however, that in the event of this Court dismissing the appeal by the defendants it should alter the order of the High Court in so far as it unconditionally restrains the first defendant from leaving the jurisdiction (i.e. from leaving it under any circumstances or for any purpose) and that instead an order should be made restraining her from leaving the jurisdiction for the purpose of having an abortion outside the State. The evidence in the case was partly oral and partly on affidavit and it was agreed by all parties that the application for interlocutory relief should be treated as the trial of the action. The facts as found by Costello J. are set out fully by him in his judgment but I will attempt to summarise his findings. The first defendant (to whom I will subsequently refer as "X") is a young girl aged 14

years. She did not give evidence in court but her statement to the garda disclosed that the father of a friend of hers who was also a friend of her parents began molesting her sexually when she was less than 13 years of age. The abuse was of a continuing nature becoming more serious in time and resulting eventually in December, 1991, in full sexual intercourse to which she did not consent. On the 27th January, 1992, she told her parents all that had happened and she and her parents learned from their local doctor that she was pregnant. This fact was confirmed on the 4th February by the hospital to which she had been referred. X and her parents travelled to England on the 6th February and arrangements were made for an abortion. The garda authorities had been informed on the previous day that they intended doing so. Later in the day, however, they cancelled the arrangements after being informed that an interim injunction had been granted prohibiting abortion. X confided in her mother that when she learned that she was pregnant she had wanted to kill herself by throwing herself down the stairs and, on the 31st January, she again said much the same to a member of the garda authorities. In between, on the journey back from England she told her mother that she had wanted to throw herself under a train when she was in London and that she would rather be dead than be the way she was. Again in the presence of another member of the Garda Sochna when her father [1992] 1 I.R. The Attorney General v. X 90 S.C.

Egan J.

commented that the situation was worse than a death in the family, she commented: "Not if it was me." On her return from England, X was brought by her parents to a very experienced clinical psychologist. He found that she was emotionally withdrawn, in a state of shock and that she had lost touch with her feelings. He took this as indicating that she was coping with the appalling crisis she faced by a denial of her emotions. He stated that she did not seem depressed but that she coldly expressed a desire to end matters by ending her life. He was of opinion that she was capable of such an act not just because of depression but because she could "calculatingly reach the conclusion that death is the best solution." He considered that the psychological damage to her of carrying a child would be considerable and that the damage to her mental health would be devastating. She told him that: "It's better to end it now than in nine months time" and he understood her to mean that by ending her life she would end the problems through which she was putting her parents. At question 81 of the transcript the psychologist was asked: "Do I take it therefore that you feel she, in effect, would commit suicide if there was not a termination or abortion?" and his reply was: "I feel she may commit suicide or decide to terminate it herself by throwing herself down the stairs or something like that. That is the kind of thing that happened in previous cases I dealt with where girls attempted to gain abortion." At question 78 he was asked: "Is it your professional view that she would destroy herself if matters continue as they are?" and his reply was: "I would not have taken it on myself to leave that girl alone in the state I saw her." The justification which was advanced for the making of the injunction was the Eighth Amendment of the Constitution of 1983, which amends Article 40 by adding a new sub-section 3, as follows: "The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate that right." It will be noted that the Amendment refers twice to "laws" and it was argued on behalf of the defendants that no order should have been made because no "laws" existed which would constitute or provide a guideline as to the manner or principles upon which the right to life of the mother could be reconciled with the right to life of the unborn. It is true that no statute has been

passed following on the Amendment but "laws" are not confined to statutes. As stated very simply by Kenny J. in The People v. Shaw [1982] I.R. 1 at p.62 of the report: "The word 'laws' in Article 40, s. 3 is not confined to laws which [1992] 1 I.R. The Attorney General v. X 91 S.C.

Egan J.

have been enacted by the Oireachtas but comprehends the laws made by judges and by Ministers of State when they make statutory instruments or regulations." Specifically in reference to the Amendment the following was stated by Finlay C.J. in The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd [1988] I.R. 593 at p. 622 of the report: "The guarantee contained in Article 40, s.3, sub-s 3 of the Constitution by its laws to respect and as far as practicable by its laws to defend and vindicate the right to life of the unborn imposes an obligation not only on the Legislature but also on the courts." It is abundantly clear, therefore, that the absence of legislative action does not relieve the courts of their duty to implement the constitutional guarantee. In regard to the criminal law abortion is dealt with in s. 58 of the Offences Against the Person Act, 1861, which provides: "Every woman being with child who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony." Not every abortion, however, was regarded as unlawful. In Rex v. Bourne [1939] 1 K.B. 687 a London surgeon stood trial in the Central Criminal Court in London on a charge of unlawfully procuring the abortion of a very young girl who had become pregnant as a result of rape. The jury were directedinter alia that it was for the prosecution to prove beyond reasonable doubt that the operation was not performed in good faith for the purpose only of preserving the life of the girl and they were directed that the surgeon did not have to wait until the patient was in peril of immediate death. It did not matter that his diagnosis could be wrong provided that there was a real and substantial risk to the girl's life if the pregnancy were allowed to continue. The wording of the Eighth Amendment which guarantees to defend and vindicate the right to life of the unborn recognises by the inclusion of the words "with due regard for the equal right to life of the mother" and the words "as far as practicable" that an abortion will not in every possible circumstance be unlawful. In the present case Costello J. accepted that there was a risk that X might [1992] 1 I.R. The Attorney General v. X 92 S.C.

Egan J.

take her own life. He held, however, that it was much less and of a different order of magnitude than the certainty that the life of the unborn would be terminated if an injunction were not granted. Even although that be so, however, can it be said that he applied the proper test? I would

regard it as a denial of the mother's light to life if there was a requirement of certainty of death in her case before a termination of the pregnancy would be permissible. In my opinion the true test should be that a pregnancy may be terminated if its continuance as a matter of probability involves a real and substantial risk to the life of the mother. The risk must be to her life but it is irrelevant, in my view, that it should be a risk of self-destruction rather than a risk to life for any other reason. The evidence establishes that such a risk exists in the present case. For reasons stated by the Chief Justice I avoid referring to any considerations relating to European Community law but I regard myself as free to express an opinion on the arguments addressed to the Court on the constitutional right to travel. In the The People v. Shaw [1982] I.R. 1 Kenny J. stated that there was a hierarchy of constitutional lights and, when a conflict arises between them, that which ranks higher must prevail. This cannot be taken to mean that an immutable list of precedence of rights can be formulated. The light to life of one person (as in Shaw's case) was held to be superior to the right to liberty of another but, quite clearly, the right to life might not be the paramount light in every circumstances. If, for instance, it were necessary for a father to kill a man engaged in the rape of his daughter in order to prevent its continuance, I have no doubt but that the right of the girl to bodily integrity would rank higher than the right to life of the rapist. The right to travel can only effectively arise in reference to an intention to procure an unlawful abortion and must surely rank lower than the right to life of the unborn. It may well be that proof of an intention to commit an unlawful act cannot amount to an offence but I am dealing with the question of an unborn within the jurisdiction being removed from the jurisdiction with the stated intention of depriving it of its right to life. In the face of a positive obligation to defend and vindicate such a right it cannot reasonably be argued that a right to travel simpliciter can take precedence over such a right, (I again emphasize that the question of European Community law is not being considered). It may well be that instances of a declared intention and proof of such would be very rare indeed and there is also the position that the supervision of a court order would be difficult but these considerations must, in my opinion, yield precedence to the defence and vindication of the light to life. Having regard to the construction and meaning, however, of the Eighth [1992] 1 I.R. The Attorney General v. X 93 S.C.

Egan J.

Amendment and my opinion that an abortion in this case would not be unlawful, I was satisfied that the orders made in the High Court should be set aside. Solicitors for the plaintiff: The Chief State Solicitor . Solicitors for the defendants: O'Higgins . anna anna Mulloy, B.L. [1992] 1 I.R. 1

[2002] 169 2 I.R. Baby O. v. Minister for Justice Baby O. (suing by mother and next friend I. A. O.) and I. A. O., Applicants v. Minister for Justice, Equality and Law Reform, Ireland, Attorney General and James Nicholson, Respondents

[S.C. Nos. 4 and 17 of 2002] Supreme Court 6th June 2002 Constitution - Personal rights - Unborn child - Deportation - Right to life - Whether deportation affecting right to life of unborn child - Whether availability of ante-natal care relevant to deportation - Constitution of Ireland, 1937, Article 40.3.3. Aliens - Judicial review - Deportation order - Refoulement - Refusal of leave to appeal - Refusal of extension of time - Decision on refoulement without reasons - Whether leave required Whether refusal of extension of time appealable - Whether applicant entitled to notice and reasons for decision on refoulement- Rules of the Superior Courts, 1986 (S.I. No. 15), O. 84, r. 21 - Refugee Act, 1996 (No. 17), s. 5 - Immigration Act, 1999 (No. 22), s. 3 - Criminal Justice (United Nations Convention Against Torture) Act, 2000 (No. 11), s. 4 - Illegal Immigrants (Trafficking) Act, 2000 (No. 29), s. 5. The second applicant applied for and was refused refugee status. A deportation order was made in respect of her. She commenced judicial review proceedings in respect of those decisions but on consent the proceedings were struck out. The first respondent then made a further deportation order in respect of her. The second applicant was pregnant and commenced proceedings for judicial review seeking, inter alia , an order restricting the deportation of both herself and the first applicant (her unborn child) on the ground that it would be in contravention of Article 40.3.3 of the Constitution guaranteeing the right to life of the unborn. The application was refused by the High Court (Smyth J.). However the trial judge certified that his decision involved a point of law of exceptional public importance, the point of law being whether the Minister had the legal right or entitlement to deport a person who had failed to secure a declaration of refugee status from the State because she alleged she was pregnant. The second applicant also attempted to appeal the refusal of the High Court to grant her leave to challenge by way of judicial review the decisions refusing her refugee status and the first deportation order. Held by the Supreme Court (Keane C.J., Denham, Murphy, Murray and McGuinness JJ.), in dismissing the appeals, 1, that Article 40.3.3 of the Constitution was intended to prevent the legalisation of abortion either by legislation or judicial decision within the State, except where there was a real and substantial risk to the life of the mother which could only be avoided by the termination of the pregnancy. Neither the State nor any of its organs was seeking to terminate the second applicant's pregnancy and the fact that the standard of ante-natal or post-natal care available to her in Nigeria was less than would be available to her in Ireland was entirely irrelevant to the legality of her deportation. Attorney General v. X [1992] 1 I.R. 1 followed.

[2002] Baby O. v. Minister for Justice 170 2 I.R. S.C. 2. That the language of s. 5(3)(a) of the Illegal Immigrants (Trafficking) Act, 2000, was perfectly clear and unambiguous and excluded the right of appeal to the Supreme Court, save where the necessary certificate was granted by the High Court and the court would not be justified in having any regard to what was said during the passing of the Bill in the Oireachtas. Irish Asphalt Ltd. v. An Bord Pleanla [1996] 2 I.R. 179 ; Irish Hardware Association v. South Dublin County Council [2001] 2 I.L.R.M. 291 ; Crilly v. T. & J. Farrington Ltd. [2001] 3 I.R. 251 followed. 3. That the High Court's refusal to extend the time in respect of the application to challenge the determinations made in relation to the refugee status of the second applicant, was a decision he was entitled to arrive at as a matter of law and it had not been shown that he erred in principle in declining to extend the time.

4. That as the decision in relation to the refugee status of the applicant was now res judicata, it could not be reopened by the institution of a second set of judicial review proceedings brought on different grounds. 5. That, unless it could be shown that there was some breach of fair procedures in the manner in which the application for refugee status was considered, there would be no ground for an order ofcertiorari in respect of the decision to refuse refugee status to the applicant. The State (Keegan) v. Stardust Victims Compensation Tribunal [1986] I.R. 642 ; O'Keeffe v. An Bord Pleanla [1993] 1 I.R. 39 followed. 6. That s. 5 of the Act of 1996 simply required the first respondent to satisfy himself as to the refoulement issue before making a deportation order. There was no obligation on the first respondent to enter into correspondence with the second applicant setting out detailed reasons as to why refoulement did not arise. 7. That neither the High Court nor the Supreme Court on appeal had any jurisdiction to interfere with the first respondent's determination that the change of circumstances referred to would justify him in refusing to revoke the deportation order. Cases mentioned in this report:Attorney General v. X. IR DLRM [1992] 1 I.R. 1; [1992] I.L.R.M. 401. Crilly v. T. & J. Farrington Ltd. IR DLRM [2001] 3 I.R. 251; [2002] 1 I.L.R.M. 161. Irish Asphalt Ltd. v. An Bord Pleanla IR DLRM [1996] 2 I.R. 179; [1997] 1 I.L.R.M. 81. Irish Hardware Association v. South Dublin County Council [2001] 2 I.L.R.M. 291. O'Keeffe v. An Bord Pleanla IR DLRM [1993] 1 I.R. 39; [1992] I.L.R.M 237. F.P. v. Minister for Justice IR DLRM [2002] 1 I.R. 164; [2002] 1 I.L.R.M. 16. The State (Keegan) v. Stardust Victims Compensation Tribunal IR DLRM [1986] I.R. 642; [1987] I.L.R.M. 202. Stefan v. Minister for Justice IR DLRM [2001] 4 I.R. 203; [2002] 2 I.L.R.M. 134.

[2002] 2 I.R.

Baby O. v. Minister for Justice

171 S.C.

Keane C.J.

Appeals from the High Court. The facts have been summarised in the headnote and are more fully set out in the judgment of Keane C.J., infra . By notice of appeal dated the 11th January, 2002, the applicants appealed against so much of the judgment and orders of the High Court (Smyth J.) delivered on the 20th December, 2001, whereby he refused to grant leave to apply for judicial review and refused to grant leave to appeal the said refusal to the Supreme Court. By notice of appeal dated the 24th January, 2002, the applicants further appealed so much of the judgment and order of the High Court (Smyth J.) made on the 22nd January, 2002, whereby he refused to grant leave to the applicants and awarded costs against or failed to award costs in favour of the applicant. On the 22nd January, 2002, Smyth J. certified that his decision involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court, the point of law being whether the first respondent had the legal right or entitlement to deport a person who had failed to secure a declaration of refugee status from the State because she alleges she is, or in fact is, pregnant. The appeals were heard by the Supreme Court (Keane C.J., Denham, Murphy, Murray and McGuinness JJ.) on the 5th and 6th February, 2002. On the 14th February, 2002, the Supreme Court announced that the appeals would be dismissed and the orders of the High Court affirmed, with the reasons to be given at a later date. Dr. Michael Forde S.C. and Richard Humphreys for the applicants. George Birmingham S.C. (with him Robert Barron ) for the respondents. Cur. adv. vult. 6th June, 2002 Keane C.J. Introduction On the 14th February, 2002, the court announced that the appeals in this case would be dismissed and the orders of the High Court affirmed. I now in this judgment give my reasons for agreeing with that decision.

[2002] 2 I.R.

Baby O. v. Minister for Justice

172 S.C.

Keane C.J.

The second applicant, who is a Nigerian national, arrived in this jurisdiction on either the 24th or 25th December, 1999. She thereupon applied for refugee status and, in completing the questionnaire furnished to her by the refugee application centre, said that she feared her life would be in danger if she returned to Nigeria. The danger to her life, she claimed, arose from the activities of a body called the "Ogboni Fraternity" of which her father had at one time been a member and which, she alleged, had made threats to her life. The second applicant was then interviewed by an officer of the first respondent ("the Minister"). He concluded that the application should be considered, in the words of the procedure then applicable in such cases and known as "the Hope Hanlon procedure", as "manifestly unfounded". (The effect of such a recommendation, if upheld, was that the application would be dealt with under the "accelerated procedure", which would mean that any appeal would be on the basis of the relevant papers.) That recommendation was upheld by another officer, Mr. Enda Hughes, who said:"I am satisfied that this case is manifestly unfounded and should be dealt with in accordance with the Hope Hanlon procedures. The following sections at para. 14 apply to this case:

1. 14(a) it does not show on its face any grounds for the contention that the applicant is a refugee; 2. 14(c) the applicant's reason for leaving or not returning to her country of nationality does not relate to a fear of persecution; 3. 14(e) the applicant, without reasonable cause, made deliberately false or misleading representations of a material or substantial nature in relation to the application; 4. 14(f) the applicant, without reasonable cause and in bad faith, destroyed identity documents, withheld relevant information or otherwise deliberately obstructed the investigation of the application." The second applicant having been notified of this decision, the solicitor then acting on her behalf, Mr. Mark Graham of the Refugee Legal Service, submitted an appeal which came before the then appeals authority, i.e. , the fourth respondent. In his written recommendation, dated the 30th May, 2000, the fourth respondent recommended that the appeal should be dismissed. The second applicant was then informed that the officer authorised by the first respondent had decided to uphold the original decision and had refused the appeal and that, as a result, the first respondent proposed to make a deportation order in respect of the second applicant under the power given to him by s. 3 of the Immigration Act, 1999. She was also informed that, in accordance with s. 3 of the Act of 1999, she was entitled to make written representations to the first respondent setting [2002] 2 I.R. Baby O. v. Minister for Justice 173 S.C.

Keane C.J.

out any reasons as to why she should be allowed to remain in the State, provided this was done within fifteen working days of the sending of the letter notifying her of the determination of the appeal. On the 24th July, 2000, her solicitor wrote to the immigration division of the first respondent's Department setting out reasons why, in his submission, she should be granted leave to remain in Ireland. On the 3rd January, 2001, Ms. Wendy Murray, an officer of the repatriation unit, of the immigration division of the first respondent, wrote to the second applicant enclosing a copy of a deportation order made by the first respondent in respect of her. The deportation order was dated the 11th December, 2000. On the 17th January, 2001, a legal aid certificate was granted to the second applicant relating to the institution of judicial review proceedings by her in respect of the making of the deportation order, but limited to the ground that the first respondent had failed to give reasons, or any adequate reasons, for his decision to make a deportation order. The legal aid board refused an application by her solicitor to review the decision to limit the legal aid certificate to proceedings instituted on that ground in a letter of the 19th January, 2001. On the 19th January, 2001, the second applicant applied by motion on notice for leave to institute proceedings by way of judicial review claiming inter alia an order of certiorari quashing the deportation order on the ground that the first respondent had failed to give reasons, or any adequate reasons, for the making of the deportation order. Thereafter, those proceedings were adjourned from time to time as other proceedings had been brought in the High Court, which were the subject of an appeal to this court, challenging the validity of deportation orders on that ground, i.e. , the failure to give reasons or adequate reasons for the making of the order. On the 2nd January, 2001, the High Court had refused to grant leave on that ground in the other proceedings and that decision was upheld by this court on the 30th July, 2001, (see P. v. Minister for Justice [2002] 1 I.L.R.M. 16). Since it was clear that the latter decision effectively disposed of the only ground on which the second applicant was seeking leave in the proceedings instituted

on her behalf, those proceedings were struck out by consent on the 23rd October, 2001, without any order as to costs. On the 26th October, 2001, a further deportation order was made in respect of the second applicant which was served on her by registered post on that day. On the 30th November, 2001, a notice of motion was served on the respondents by another firm of solicitors. Those are the proceedings which are now before this court by way of appeal from two orders made in the High Court in respect of them by Smyth J. on the 20th December, 2001, and the 18th January, 2002, respectively. At the time these proceedings were instituted, the second applicant was pregnant and among the [2002] 2 I.R. Baby O. v. Minister for Justice 174 S.C.

Keane C.J.

reliefs now being sought was an order restricting the deportation of both the first applicant and the second applicant on the ground that it would be in contravention of Article 40.3.3 of the Constitution guaranteeing the right to life of the unborn. The notice of motion claiming the various reliefs was in two parts. Part A sought leave pursuant to s. 5 of the Illegal Immigrants (Trafficking) Act, 2000, and O. 84 of the Rules of the Superior Courts, 1986, for:1. (1) an order of certiorari in respect of the notification of the making of the deportation order by the first respondent on the 26th October, 2001, and what was described as the "purported decision" that s. 5 of the Refugee Act, 1996, was satisfied in the case of the first applicant; 2. (2) an order of certiorari quashing the notification of the 3rd January, 2001, of the making of a deportation order on the 11th December, 2000, and what was described as the "purported decision" that s. 5 of the Refugee Act, 1996, was satisfied in the case of the first applicant; 3. (3) an order of certiorari in respect of the deportation order made by the first respondent on the 11th December, 2000; It was accepted on behalf of the applicants that the application for these reliefs was necessarily made by way of motion on notice to the respondents, having regard to the provisions of s. 5 of the Act of 2000. Part B of the notice of motion consisted of an application for certain reliefs which, it was claimed on behalf of the applicants, did not have to be made on notice in accordance with s. 5 of the Act of 2000, could be made ex parte pursuant to O. 84 of the Rules of the Superior Courts, 1986, and were included in the same notice of motion as a matter of procedural convenience. The reliefs sought in part B included inter alia :1. (1) declarations that the first applicant was a person whose constitutional rights would be interfered with by the deportation of the second applicant; 2. (2) an order of mandamus directed to the first respondent requiring him to revoke the deportation order of the 26th October, 2001, or alternatively requiring him to reconsider the order in the light of what were described as the "changed circumstances" of the applicant; 3. (3) a declaration that the Immigration Act, 1999, (Deportation) Regulations, 1999, are ultra vires and void; 4. (4) damages for breach of duty, unlawful detention and breach of constitutional right;

[2002]

Baby O. v. Minister for Justice

175

2 I.R.

Keane C.J.

S.C.

5. (5) orders of certiorari in respect of the decisions of the first respondent dated the 15th May, 2000, and the 4th July, 2000, rejecting the second applicant's application for refugee status and her appeal against the refusal of refugee status and the decision of the first respondent dated the 30th May, 2000, to recommend rejection of the second applicant's appeal against the refusal of refugee status; 6. (6) insofar as necessary, an order extending the time for applying for leave to apply for such reliefs pursuant to O. 84 of the Rules of the Superior Courts, 1986; 7. (7) a stay and/or an interim and/or interlocutory and thereafter permanent injunction restraining the respondents from requiring the applicants to leave the State or otherwise acting on the said purported deportation order. The grounds on which those various reliefs were sought will emerge at a later stage in this judgment when I come to consider the arguments advanced on behalf of the applicants. On the 20th December, 2001, the High Court (Smyth J.) granted leave to the applicants in respect of part A of their application to apply for the relief specified at para. 1 above and, in respect of part B of their application, the relief specified at paras. 1 and 2 above. The judge refused to grant leave for the bringing of an appeal to this court from his decision to refuse the application for leave in respect of the other reliefs. A notice of motion was then served on behalf of the applicants claiming the reliefs in respect of which they had been granted leave to institute the proceedings. They also came on for hearing before the High Court (Smyth J.) and in a written judgment delivered on the 18th January, 2002, he refused the application for leave in respect of each of the reliefs claimed. On the 22nd January, 2002, he certified that his decision involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to this court, the point of law being whether the first respondent has the legal right or entitlement to deport a person who had failed to secure a declaration of refugee status from the State because she alleges she is, or is, pregnant. The applicants then served a notice of appeal to this court pursuant to the leave thus granted. The applicants also served a purported notice of appeal in respect of the order of Smyth J. of the 20th December, 2001, in which he refused to give leave to the applicants to institute proceedings in respect of the other reliefs claimed by them and refused to grant leave for the bringing of an appeal to this court. The court having been informed that the second applicant was expected to give birth in the early part of May, 2002, an expedited oral [2002] 2 I.R. Baby O. v. Minister for Justice 176 S.C.

Keane C.J.

hearing of the appeals was granted and took place on the 5th and 6th February, 2002. As already noted, the court on the 14th February, 2002, last announced that both appeals would be dismissed and that the court would give its reasons at a later date. Certain procedural difficulties which arise in the case of the appeal from the order of the 20th December, 2001, should be mentioned at the outset. It is conceded on behalf of the applicants that leave was required to bring the appeal in respect of the refusal by Smyth J. on the 20th December, 2001, to grant the reliefs in respect of part A mentioned at paras. (2) and (3) above, i.e., the orders ofcertiorari in respect of the first deportation order made by the first respondent on the 11th December, 2000. The applicants argued that they were entitled to appeal to this court from the refusal by the High Court to grant such a certificate.

At this point, it is necessary to refer to the precise wording of s. 5(3)(a) of the Act of 2000, which is as follows:"The determination of the High Court of an application for leave to apply for judicial review as aforesaid or of an application for such judicial review shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case except with the leave of the High Court which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court." In Irish Asphalt Ltd. v. An Bord Pleanla [1996] 2 I.R. 179, this court held that the effect of s. 82(3A)(b)(i) of the Local Government (Planning and Development) Act, 1963, which is in identical terms to s. 5(3)(a) of the Act of 2000 was to exclude all appeals from the High Court to the Supreme Court in judicial review proceedings contemplated by s. 82(3A) unless the High Court issued the necessary certificate and that the High Court alone had power to issue such a certificate. An attempt to reopen the issue in Irish Hardware Association v. South Dublin County Council [2001] 2 I.L.R.M. 291 was rejected by the court. The applicants sought to distinguish the two latter decisions on two grounds. The first was that, in the context of the constitutional right to personal liberty, security and bodily integrity, the right of appeal could not be excluded save by what was described as "the most express language". I am satisfied that, as found by this court in Irish Asphalt Ltd. v. An Bord Pleanla [1996] 2 I.R. 179 and Irish Hardware Association v. South Dublin County Council [2001] 2 I.L.R.M. 291 the language of s. 5(3)(a) is perfectly clear and unambiguous and that the right of appeal has been excluded, save where the necessary certificate is granted by the High [2002] 2 I.R. Baby O. v. Minister for Justice 177 S.C.

Keane C.J.

Court. Secondly, it was submitted that statements of the first respondent during the course of the debate in the Oireachtas on the committee stage of the Illegal Immigrants (Trafficking) Bill, 2000, could be relied on as indicating that the intention of the Oireachtas was not to exclude an appeal from the refusal by the High Court of a certificate. Having regard to the clear and unambiguous language of the provision, I am not satisfied that the court would be justified in having any regard to what was said in the Oireachtas, in the light of the judgments delivered by this court in Crilly v. T. & J. Farrington Ltd. [2001] 3 I.R. 251. It was accordingly clear that no appeal lay from the refusal of the High Court to grant the relief sought under part A at paras. (2) and (3) above. As to the reliefs under part B, referred to in para. 5 above, the applicants argued that, since these related to decisions of the first respondent and the fourth respondent made before the coming into force of the Act of 2000, they were unaffected by the provisions of s. 5(2) of that Act. In the result, it was argued, the application for this relief could be made ex parte and it did not have to be shown that there were "substantial grounds" for contending that the relevant decisions were invalid or ought to be quashed nor, it was said, was leave required to appeal the order of the High Court to this court. That submission gave rise to two problems. First, although the decisions sought to be challenged were undoubtedly made before the Act of 2000 came into operation, the deportation order of the 26th October, 2001, was made after that Act came into force and, accordingly, under s. 5, its validity could only be questioned in judicial review proceedings to which the provisions of s. 5(2) of the Act of 2000 apply. That, in turn, would preclude the bringing of any appeal to this court save with the leave of the High Court, which has been granted only in respect of the reliefs already mentioned. Accordingly, even if this court were to grant leave to the applicants to

challenge the three determinations made in relation to the refugee status of the second applicant prior to the coming into force of the Act of 2000 and that challenge succeeded, it would avail the applicants nothing, since there would still be in existence a valid deportation order requiring the removal of the second applicant from the State. Secondly, the application for these reliefs is affected by the provisions of O. 84, r. 21(1) of the Rules of the Superior Courts, 1986, i.e. :"An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, or six months where the relief sought is certiorari , unless the Court considers that there is good reason for extending the period within which the application shall be made."

[2002] 2 I.R.

Baby O. v. Minister for Justice

178 S.C.

Keane C.J.

In this case, the application for leave was made eighteen months after the making of the first of the decisions sought to be quashed. The agreed note of the High Court Judge's judgment of that day does not contain any reference to the fact that the application for these reliefs was out of time, although we were invited by counsel for the applicants to infer that his refusal to grant leave was, effectively, a refusal to extend the time. Naturally, one could not exclude the possibility that he may also have been of the view that the granting of leave, for the reasons already given, would in any event have been futile and that, even if that consideration did not arise, the applicants had not satisfied him that they had an arguable case to make in support of the grant of these reliefs. Approaching the case, however, on the basis suggested by counsel for the applicants - i.e., that this was in effect a refusal to extend the time - the grounds on which this court was urged to come to a different view was the quality of the legal advice which she received at the relevant time. The first criticism is that the judicial review proceedings were limited exclusively to the question of the reasons or lack of reasons: this was stated to be "in defiance of counsel's opinion obtained at the time." Counsel, in the course of his opinion dated the 18th January, 2001, had said:"'Failure to give reason or adequate reason' is an important question currently before the courts and I appreciate that it is perhaps the most compelling ground available to the applicant. However, it will be appreciated that some or all of the other matters I have referred to have not been considered by the court and accordingly it is not possible to give a definitive view as to the likelihood of success on those grounds." In the light of that opinion the Legal Aid Board, as appears from their letter of the 19th January, 2001, decided to limit the certificate. I find it difficult to understand, in those circumstances, how it could be said that the decision to limit the judicial review proceedings to the question of reasons or lack of reasons was made "in defiance of counsel's opinion". The second criticism is that no appeal was taken from the decision of the Legal Aid Board to limit the certificate granted in that manner. In view of the advice of counsel, it is hardly surprising that no such appeal was taken, although it is clear from Mr. Graham's letter to the second applicant of the 19th January, 2001, that he informed her of her right to appeal. She did not appeal and, in the absence of any evidence to the contrary, I am not prepared to assume that she was not fully advised in relation to this matter by Mr. Graham at the time. I am satisfied that, given the repeated emphasis in the decisions of this court on the importance of instituting judicial review proceedings promptly, if, as the applicants contend, the High Court Judge effectively

[2002] 2 I.R.

Baby O. v. Minister for Justice

179 S.C.

Keane C.J.

refused to extend the time in respect of the application for these reliefs, that was a decision he was entitled to arrive at as a matter of law and it has not been shown that he erred in principle in declining to extend the time. The third difficulty that arises is that, the proceedings by way of judicial review in respect of the decisions in question having been struck out by consent with no order as to costs, the matter is nowres judicata and cannot be reopened by the institution of a second set of judicial review proceedings brought on different grounds. I am satisfied that, on this ground also, the application for leave was properly refused. In the light of those findings, it is not strictly necessary to consider whether, on the merits, the applicant had in any event established an arguable case for the granting of leave in respect of these reliefs. However, since the issues debated before us arise with considerable frequency in the High Court, the views of this court on those issues in the light of the submissions advanced may be of assistance. It is not in dispute that the first respondent at the relevant time was, as a matter of law, obliged to give effect to what are normally known as the "Hope Hanlon procedures" and which were set out in a letter from the Department of Justice, Equality and Law Reform to Ms. Hanlon, as the representative of the United Nations High Commissioner on Refugees, on the 10th December, 1997. It is also clear from the judgment of Denham J., speaking for this court in Stefan v. Minister for Justice [2001] 4 I.R. 203 that the fact that under the procedures then in force, an appeal could be brought from the decision of the first respondent to refuse refugee status to the Appeals Authority did not preclude a challenge to the earlier stages of the process on the ground that fair procedures had not been observed. The grounds on which the second applicant was seeking refugee status were set out in her answers to the questions put to her by Mr. Michael Leahy, an officer of the first respondent and related to her involvement with a cult known as the "Ogboni Fraternity" in Lagos, to which she was introduced by her father. She said that she was informed by the high priest of the cult that she should bring three human heads as soon as possible for "rituals" and that the mark of death was placed on her for not carrying out this order. She said that she had been studying business and administration at the University of Lagos since 1996 and had also worked as a sales manager for a company involved in fish products, on whose behalf she had travelled all over Nigeria. She produced no identification of any sort at the interview and said that she could not get any from Nigeria. She also said that she had arrived in Ireland on the 25th December, 1999, having flown from Paris to Belfast. It was subsequently ascertained that Belfast Airport was in fact closed on Christmas Day. Mr. Leahy concluded that the [2002] 2 I.R. Baby O. v. Minister for Justice 180 S.C.

Keane C.J.

application lacked credibility, did not show on its face any grounds for the contention that the second applicant was a refugee and that it did not appear to him that her reasons for leaving or not returning to Nigeria related to a fear of persecution. In arriving at that conclusion, Mr. Leahy, in accordance with procedures normally adopted in dealing with applications of this nature, had regard to what information was available to him as to the conditions in the country of origin which would be relevant to a conclusion as to whether the applicant was genuinely in fear of persecution if she returned. In that connection, he said that the information he received as to the "Ogboni Fraternity" was that it was a movement which was

religious in character and was not in the habit of resorting to violence. He was also of the view that the applicant seemed to misunderstand the nature of the "Ogboni Fraternity Society". The assessment by Mr. Leahy was criticised on a number of grounds but particularly because, as it was claimed, he had not invited the applicant to comment on these matters before sending his conclusions to his superior officer. It was also said that it was adopting an unnecessarily harsh approach in treating her application as lacking credibility because she said that she had arrived in Belfast on Christmas Day, when it might have been another day. It was also urged that Mr. Leahy had made a mistake in referring to her as having three brothers and one sister, whereas in fact she had said that she had fifteen half brothers and sisters, four girls and eleven boys. It is inevitable that a determination under procedures of this nature as to whether a person is genuinely in fear of persecution, if he/she returns to his/her country of nationality, will be based on the assessment by the interviewing officer of that person's credibility. That is what has been frequently been referred to as the necessarily"subjective" element in determining whether the fear of persecution genuinely exists. It is also clear that an interviewing officer in such circumstances must also have regard to what objective evidence is available to him as to the conditions in the country of origin which might give rise to a fear of persecution. Unless it can be shown that there was some breach of fair procedures in the manner in which the interview was conducted and the assessment arrived at by the officer concerned or that, in accordance with the well established principles laid down in The State (Keegan) v. Stardust Victims Compensation Tribunal [1986] I.R. 642 and O'Keeffe v. An Bord Pleanla [1993] 1 I.R. 39, there was no evidence on which he could reasonably have arrived at the decision, there will be no ground for an order of certiorari in respect of the decision. In this case, it was entirely a matter for Mr. Leahy to assess the weight that should be given to the various matters to which I [2002] 2 I.R. Baby O. v. Minister for Justice 181 S.C.

Keane C.J.

have referred and it could not be said that there were no grounds on which he could not have reasonably arrived at the decision that her application for refugee status was manifestly unfounded. The same considerations are applicable to the further assessment of her case by Mr. Enda Hughes and to the recommendation by the fourth respondent. It follows that, even if the procedural difficulties to which I have already referred could be overcome, the second applicant had not advanced any arguable ground under which she would have been entitled to obtain the reliefs under part B referred to in para. 5 above. The point of law involved in the decision of the High Court which Smyth J. certified as being of exceptional public importance and in respect of which he gave leave to appeal to this court must next be considered. There were before the High Court affidavits by Jo Murphy Lawless, Ph.D., a sociologist and research fellow at the Centre for General Women's Studies in Trinity College, Dublin and Dr. Adeyemi Coker, a consultant obstetrician and gynaecologist at Harold Wood Hospital, Essex, England. Dr. Lawless deposed as to risks which would arise in relation to the pregnancy in the event of the second applicant returning to Nigeria because of the lack of adequate ante-natal and hospital care available to her in Nigeria. Dr. Coker said that:"As the difference in health care and maternity services in Nigeria compared with the Republic of Ireland is significant, where [the second applicant] delivers her baby will significantly influence the outcome in terms of pre-natal mortality and morbidity. If her baby was born premature (below thirty weeks) it would have little chance of survival in Nigeria".

Counsel for the applicants relied on Article 40.3.3 of the Constitution which provides inter alia that:"the State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and so far as practicable, by its laws to defend and vindicate that right." Counsel argued that, given the uncontradicted evidence just referred to, the deportation of the second applicant, while pregnant, to Nigeria would constitute a failure by the State to defend and vindicate the right to life of the unborn in this case. The High Court Judge, in rejecting that argument, said that:" this case has nothing to do with abortion or the right to life of the unborn or what is sometimes referred to as a woman's right to choose " I have no doubt that the High Court Judge was entirely correct in so holding. The passage from Article 40.3.3 on which counsel relied, as [2002] 2 I.R. Baby O. v. Minister for Justice 182 S.C.

Keane C.J.

explained by the judgments of the majority in this court in Attorney General v. X [1992] 1 I.R. 1, was intended to prevent the legalisation of abortion either by legislation or judicial decision within the State, except where there was a real and substantial risk to the life of the mother which could only be avoided by the termination of the pregnancy. In this case, neither the State nor any of its organs was seeking to terminate the second applicant's pregnancy and the fact that the standard of ante or post-natal care available to her in Nigeria was less than would be available to her in this country was entirely irrelevant to the legality of her deportation. If the second applicant had arrived in this country accompanied by a young infant, and both of them had been refused refugee status and ordered to be deported, the life expectation of the infant, and for that matter the second applicant herself, might have been less. That would plainly not be a ground for interfering with the deportation. If the State's right to deport persons who have been refused refugee status and who have no legal right to remain in this country were thus circumscribed, it would be, in a great range of cases, virtually negated. It is obvious that the rights of the born, in this context, cannot be less than those of the unborn. Counsel on behalf of the applicants conceded that, if his submission were well-founded, it would necessarily follow that every woman or girl of child bearing age would have to submit to pregnancy testing before she was deported or extradited to a country with less developed pre and post-natal services than are available in this country. No such gross violation of the privacy of women and girls could possibly have been intended by the enactment of Article 40.3.3 of the Constitution. Three further grounds were relied upon in the High Court and, while in neither case did the High Court Judge certify that any point of law of exceptional public importance was involved, the case was approached, in this court, on the basis that the court would not confine its consideration of the appeal to the point of law certified by the High Court. The first of these grounds related to s. 5 of the Refugee Act, 1996, which, under the cross heading, "Prohibition of Refoulement ",provides that:"(1) A person shall not be expelled from the State or returned in any manner whatsoever to the frontiers of territories where, in the opinion of the Minister, the life or freedom of that person would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion.

(2) Without prejudice to the generality of subsection (1), a person's freedom shall be regarded as being threatened if, inter alia ,in the opinion of the Minister, the person is likely to be subject to a serious assault (including a serious assault of a sexual nature)."

[2002] 2 I.R.

Baby O. v. Minister for Justice

183 S.C.

Keane C.J.

As already noted, lengthy submissions in writing were made on behalf of the second applicant in support of the application made on her behalf for leave to remain in Ireland on humanitarian grounds, notwithstanding the failure of her application for refugee status. It was submitted on behalf of the second applicant that consideration of this application necessarily involved a determination by the first respondent as to whether s. 5 of the Act of 1996 had been satisfied. The requirement that fair procedures should be observed by the first respondent in arriving at such a decision meant that he was also obliged to give reasons for holding that s. 5 had been satisfied, and this had not been done in this case. The decision in F.P. v. Minister for Justice [2002] 1 I.R. 164, it was said, had no application to a decision such as this. I am satisfied that this submission is also without foundation. Section 5 of the Act of 1996, does not require the first respondent to give any notice to a person in the position of the second applicant that he proposes to make a decision under the section: it simply requires the first respondent to satisfy himself as to therefoulement issue before making a deportation order. In this case, representations having been made to the first respondent as to why the second applicant should not be deported, she was informed that:"the Minister has satisfied himself that the provisions of s. 5 (Prohibition of Refoulement ) of the Refugee Act, 1996, are complied with in your case." I am satisfied that there is no obligation on the first respondent to enter into correspondence with a person in the position of the second applicant setting out detailed reasons as to why refoulement does not arise. The first respondent's obligation was to consider the representations made on her behalf and notify her of his decision: that was done and, accordingly, this ground was not made out. It was further submitted that the first respondent was obliged to consider s. 4 of the Criminal Justice (United Nations Convention Against Torture) Act, 2000, before making the deportation order. That provides:"(1) A person shall not be expelled or returned from the State to another state where the Minister is of the opinion that there are substantial grounds for believing that the person would be in danger of being subjected to torture. (2) For the purposes of determining whether there are such grounds, the Minister shall take into account all relevant considerations including, where applicable, the existence in the state concerned of a consistent pattern of gross, flagrant or mass violations of human rights."

[2002] Baby O. v. Minister for Justice 2 I.R.

184 S.C.

Keane C.J. Denham J. Murphy J. Murray J.

Consideration by the first respondent of refoulement in this case necessarily involved the consideration by him of whether there were substantial grounds for believing that the second applicant would be in danger of being subjected to torture within the meaning of s. 4(1) of the Criminal Justice (United Nations Convention Against Torture) Act, 2000. That the consideration of the issue of refoulement under s. 5 of the Refugee Act, 1996, extended to considerations arising under s. 4 of the former Act was made clear in the affidavit of Mr. Terry Lonergan in these proceedings. This ground, accordingly, also fails. Finally, it was urged that the first respondent should have taken into account what were said to be changed circumstances which should have led him to revoking the deportation order pursuant to s. 3(11) of the Immigration Act, 1999. Those circumstances were alleged to be the second applicant having become pregnant and the assassination on the 23rd or 24th December, 2001, of the Attorney General and Minister for Justice of Nigeria, who was stated to be a prominent Yoruba politician. (The applicant was herself a member of the Yoruba tribe). By letter dated the 28th December, 2001, addressed to the applicant's solicitors, the Chief State Solicitor said:"I am instructed that the first respondent is not aware of any change of circumstances that would lead him to revoke the deportation order dated the 11th December, 2000, against the second applicant or to undertake a full reconsideration of this case." It was entirely a matter for the first respondent to determine whether the circumstances relied on were such that he was obliged to revoke the deportation order already made. I was satisfied that neither the High Court nor this court on appeal had any jurisdiction to interfere with the first respondent's determination that the change of circumstances referred to would not justify him in revoking the deportation order. For these reasons, I was satisfied that both appeals should be dismissed and the orders of the High Court affirmed. Denham J. I agree. Murphy J. I also agree. Murray J. I also agree.

[2002] 2 I.R.

Baby O. v. Minister for Justice

185 S.C.

McGuinness J.

McGuinness J. I also agree. Solicitors for the applicants: MacGeehin & Toale. Solicitor for the respondents: The Chief State Solicitor. Patrick McEvoy, Barrister [2002] 2 I.R. 169

Irish Law Times

(1993) 11 ILT 8: Article: Natural Rights and the Irish Constitution : Roderick J. O'Hanlon
Article Natural Rights and the Irish Constitution Roderick J. O'Hanlon, Judge of the High Court, Introduction The issues raised in the referenda held on 25 November 1992 have important implications for the protection of human rights in the Irish Constitution . Briefly stated, the questions put before the people sought (a) to define conditions under which it would be lawful to terminate one human life in order to save another, (b) to grant a licence to travel abroad for a purpose which is directly contrary to a right to life, and (c) to permit the provision of information and other assistance which had been held to be contrary to a right to life. Each of the proposed amendments addressed an area of apparent conflict between individual rights, in a manner which would substantially reduce the protection previously afforded to the unborn under Irish law. To anyone familiar with the Irish Constitution , such proposals must occasion serious misgivings. If important aspects of a most fundamental human right can be set aside in this manner, the question must arise as to whether there are any limits to the power to make laws which are contrary to basic human rights. Would it be constitutionally licit, for example, for the people to enact a provision allowing the elderly, disabled or infirm to be killed on the advice of a doctor? Is there any limitation on the power in Article 46.1 of the Constitution by which Any provision of this Constitution may be amended ? This question goes to the root of the nature of law. It obliges us to consider the relationship between basic human rights and the process of political resolution of issues of public controversy. It is clearly not sufficient that the formal requirements of the legislative process be observed for a law to be considered just and in accordance with human dignity. In fact, the origin of all modern Charters of Human Rights lies in the recognition that there are limits, grounded in human nature, to any law-making power. Natural Law and the Constitution Fortunately, Bunreacht na hEireann leaves us in little doubt as to where it stands on this question. It acknowledges the authority of a higher law as the source of inalienable and imprescriptable rights which are antecedent and superior to all positive law (Article 41.1.1 ). It identifies man, in virtue of his rational being as the subject of fundamental rights (Article 43.1.1 ) and human personality as the basis for equality before the law (Article 40.1 ). These are important indicators of the legal philosophy on which the Constitution is based and they must govern our understanding of Irish law so long as they remain part of the Constitution . This understanding of the Constitution has been confirmed in a number of important cases, as for example the following well-known passage from the judgment of Mr Justice Walsh in McGee v Attorney General . [1974] IR 284 : 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 That judgment of Mr Justice Walsh was referred to and followed by Mr Justice Hamilton (now President of the High Court) in Northants Co. Council v A.B.F. , [1982] ILRM 164 , where an order was sought for the return of a child to England. He said: The natural law is of universal application and applies to all human persons, be they citizens of the State or not These rights are recognised by (the Constitution ) and the courts created under it, as antecedent to and superior to all positive law; they are not so recognised by the law or the courts of the jurisdiction to which it is sought to have the infant returned. This law, of universal application, is also in essence immutable. It is not contingent on contemporary mores or any particular culture, because it resides in the innermost common denominator of all humankind through all generations, that is, human reason. It is the capacity of human reason to identify basic human goods in an essentially consistent manner which makes possible a meaningful discourse on ethics, law and philosophy. It is this which links, for example, a contemporary Irish jurist with the philosophers of ancient Greece and Rome. The Right to Life of the Unborn That these concepts are applicable to the right to life of the unborn child is clear from the terms of Article 40.3.3 , which equates that right with the right to life of the mother. This right has also been affirmed, before and after the 8th Amendment, in a succession of judicial pronouncements. In G. v An Bord Uchtala , [1980] IR 32 , a case decided before the passing of the 8th Amendment, Mr Justice Walsh considered the question of the natural rights of the child: The child's natural rights spring primarily from the natural right of every individual to life, to be reared and educated, to liberty, to work, to rest and recreation, to the practice of religion, and to follow his or her conscience. The right to life necessarily implies the right to be born It lies not in the power of the parent to terminate its existence The child's natural right to life and all that flows from that right are independent of any right of the parent as such. In a dissenting judgment in the Norris case, the late Mr Justice McCarthy had this to say: The provisions of the Preamble would appear to lean heavily against any view other than that the right to life of the unborn is a sacred trust to which all the organisations of government must lend their support. (p.103) In the more recent cases concerning the dissemination of information within the jurisdiction to assist persons seeking to have abortions outside the State, both the High Court and the Supreme Court have condemned this practice in an unequivocal manner. Hamilton P., Attorney General (S.P.U.C. Ltd) v Open Door Counselling , [1987] ILRM 477 , said: The qualified right to privacy, the rights of association and freedom of expression and the right to disseminate information cannot be invoked to interfere with such a fundamental right as the right to life of the unborn, which is acknowledged by the Constitution of Ireland . Chief Justice Finlay in Attorney General (S.P.U.C. Ltd) v Open Door Coun selling , [1988] IR 593 , 625, [1988] ILRM 19 , said: No right could constitutionally arise to obtain information the purpose of the obtaining of which was to defeat the constitutional right to life of the unborn child, and later, in S.P.U.C. Ltd. v Grogan [1989] IR 753 , 764 This application for an interlocutory injunction, therefore consists of an application to restrain an activity which has been clearly declared by this court to be unconstitutional, and therefore unlawful, and which could assist and is intended to assist in the destruction of the right to life of an unborn child, a right acknowledged and protected under the Constitution . That constitutionally guaranteed right must be effectively protected by the courts. Mr Justice Walsh said, in the same case:

The intentional destruction of unborn life is not a permissible option. The court has already held that when a pregnant woman is intent upon the destruction of the life of her unborn child, all of those who assist her or facilitate her in the accomplishment of that intention are acting in violation of the Constitution . The Ultimate Source of the Natural Law It is clear, therefore, that the protection of fundamental rights in the Irish Constitution (and in particular the right to life of the unborn) is firmly grounded on what is called the Natural Law. While various accounts have been given of the basis of this law in human reason [ See in particular Natural Law and Natural Rights' by Professor John Finnis, University of Oxford, for an authoritative account of modern natural law jurisprudence. ] , Article 6 and the Preamble unambiguously identify the Most Holy Trinity as the ultimate source of this higher law. [ This echoes the teaching of St. Paul in his Epistle to the Romans (2:1415): As for the Gentiles, though they have no law to guide them, there are times when they carry out the precepts of the law unbidden, finding in their own natures a rule to guide them, in default of any other rule; and this shows that the obligations of the law are written in their hearts; their conscience utters its own testimony and when they dispute with one another they find themselves condemning this, approving that. ] It should not be thought that these recitals amount to no more than an empty formula, quickly submerged in and subservient to the remaining provisions of the Constitution . The contrary is the case, as can be seen from a succession of statements by some of the most eminent judges in the field of constitutional law who have been appointed to the High Court and the Supreme Court since the foundation of the State. The fact that all authority comes from God had received recognition in the earlier Constitution of the Irish Free State (Saorstat Eireann) Act, 1922 , but in a less comprehensive manner than in the 1937 Constitution . The Act of 1922 opened with the words: Dail Eireann sitting as a Constituent Assembly in this Provisional Parliament, acknowledging that all lawful authority comes from God to the people Article 2 of that Constitution , dealing with powers of government, does not contain the reference to God which is found in the 1937 document, and merely stated All powers of government, and all authority, legislative, executive and judicial in Ireland, are derived from the people of Ireland Nor did the 1922 Constitution contain a declaration to be made by judges on taking up office, as found in the later text of the 1937 document. Nevertheless, the brief acknowledgement in the Preamble to the Act of 1922 that all lawful authority comes from God to the people was endowed with great significance by Chief Justice Kennedy in The State (Ryan) v Lennon , [1935] IR 170 . The following passage appears in his judgment: The Constituent Assembly declared in the forefront of the Constituent Act 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 example, if it were repugnant to the Natural Law, such legislation would be necessarily unconstitutional and invalid, and it would be, therefore, absolutely null and void and inoperative. In the major constitutional case of The State (Burke) v Lennon [1940] IR 136 , Gavan Duffy J. drew attention to the importance of the Preamble in the new Constitution , enacted in 1937, saying

The Constitution , with its most impressive Preamble, is the Charter of the Irish People, and I will not whittle it away. In an essay written by Mr Justice Henchy for the Modern Law Review in 1962, and published shortly after his appointment to the High Court, he spelt out very clearly the special character of the 1937 Constitution in the following passage: From the point of view of jurisprudence, the most striking change effected by the present Constitution is the break with the positivist character of the common law . The Irish Constitution rejects such a basis for law. Its Preamble makes clear that the Constitution and the laws which owe their force to the Constitution derive, under God, from the people and are directed to the promotion of the common good. If a judicial decision rejects the divine law or has not as its object the common good, it has not the character of the law . (Emphasis added) Mr. Justice Kenny, in a landmark decision in the case of Ryan v Attorney General [1965] IR 294 , declared that the personal rights protected by the Constitution were not confined to those spelt out expressly but included all rights which derived from the Christian and democratic nature of the State. He said: I think that the personal rights which may be invoked to invalidate legislation are not confined to those specified in Article 40 but include all those rights which result from the Christian and democratic nature of the State. He derived assistance, in ascertaining what were these rights, from the teaching contained in a Papal Encyclical: The conclusion that there is a right of bodily integrity gets support from a passage in the Encyclical Letter, Peace on Earth: Beginning our discussion of the rights of man, we see that every man has the right to life, to bodily integrity and to the means which are necessary and suitable for the proper development of life The same judge had to assess, in Conroy v Attorney General , [1965] IR 411 , the moral quality of the act involved in the offence of drunken driving as this was one of the tests applied in deciding whether it should be regarded as a major or minor offence under the Constitution . He said: On this matter I have had the considerable advantage of hearing the evidence of Canon John McCarthy who is a Doctor of Theology and of Canon Law and who was formerly a Professor of Moral Theology in Maynooth. His evidence about the moral gravity of a section 49 offence was not based on the theological or moral doctrines of the Roman Catholic Church but on that moral gravity which may be derived from and measured by the natural law or natural ethics He said that from the ethical standpoint, every individual as an individual has certain inherent rights of which the right to life is the most fundamental; after it comes the right to bodily integrity. These inherent rights of the individual impose on everyone an obligation to respect them. Mr Justice Walsh in Quinn's Supermarket v Attorney General [1972] IR 1 , said that the Constitution reflects the firm conviction that we are a religious people, basing his conclusion inter alia on the fact that the Preamble acknowledges that we are a Christian people. In McGee v Attorney General [1974] IR 284 , where Mrs McGee successfully challenged the restriction on the importation of contraceptives, the same judge said: Both in its Preamble and in Article 6 , the Constitution acknowledges God as the ultimate source of all authority . In view of the acknowledgement of Christianity in the Preamble and in view of the reference to God in Article 6 of the Constitution , it must be accepted that the Constitution intended the natural human rights I have mentioned as being in the latter category (i.e., that the natural law is to be regarded as the law of God promulgated by reason and the ultimate governor of all the laws of men). In Norris v Attorney General [1984] IR 36 , Chief Justice O'Higgins stated: The Preamble to the Constitution proudly asserts the existence of God in the Most Holy Trinity and recites that the people of Ireland humbly acknowledge their obligation to our Divine Lord Jesus Christ. It cannot be doubted that the people so asserting and acknowledging their

obligations to our Divine Lord Jesus Christ, were proclaiming a deep religious conviction and faith and an intention to adopt a Constitution consistent with that conviction and faith and Christian beliefs. Tentative Conclusions Some tentative conclusions may be reached at this stage. 1. The State is founded on a Constitution which acknowledges that all authority comes from the Most Holy Trinity to Whom, as our final end, all actions both of men and States must be referred, and which states that all powers of government derive under God from the people. 2. It would appear to follow, as affirmed by Chief Justice Kennedy and Mr Justice Henchy, that no law could be enacted, no amendment of the Constitution could lawfully be adopted, and no judicial decision could lawfully be given, which conflicted with the Natural Law (which we recognise as being of divine origin). 3. Extending this proposition further, it would seem that the State could not bind itself by any international agreement or convention which conflicted with the Natural Law and to the extent that any such agreement or convention, e.g., the Treaty of Rome , the Maastricht Treaty , or the European Convention of Human Rights , involved the State in undertaking commitments which conflicted with our obligations to respect the Natural Law, such agreement on our part would be pro tanto, ultra vires the organs of State established by the Constitution and the people, so long as we retain the present Constitution , and would be, to that extent, without effect in domestic law. It is universally accepted that the most fundamental of all human rights is the right to life. The most elementary and universal aspect of this right is the right not to be killed for the sake of another or for some further end. This rights is enjoyed equally by all human beings at all times. It is attacked whenever abortion, murder or euthanasia are practised. 5. The expectant mother enjoys that right to life in common with every other human person. So does the unborn. All human life is entitled to the same protection, whether born or unborn. If any doubt existed on this score, it was laid to rest by the enactment of the 8th Amendment, with its reference to the equal right to life of the mother, thereby implicitly recognising the equal right to life of the unborn. 6. To put forward a proposed amendment of the Constitution providing that it should be permissible to kill the mother where it was necessary to do so to preserve the life of the unborn would be unthinkable. It would be recognised immediately as flying in the face of the Natural Law. Can a different yardstick be applied to legitimise an amendment which would permit the killing of the unborn, which enjoys an equal right to life to that of the mother? By what principle of the Natural Law can the mother claim the right to kill the unborn life in her own womb? Can it be done 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? 7. If it is suggested that, where the life of the mother is considered to be in danger, it is permissible by the Natural Law to kill the unborn to save the mother's life, it raises the question when may any innocent life be taken to preserve another? The argument can only proceed on the basis that the life of the unborn should not really be regarded as human life, and that the right to life of the mother is in some way superior to the right to life of the unborn. But this would contradict the express reference in Art. 40.3.3 to the equal right to life of the mother. To justify abortion by attempting to balance the relative values of the two lives is to embark on the course which was rejected in language of considerable nobility by Lord Coleridge CJ in the case previously referred to, of Dudley and Stephens (ILT, April 1992). It is worth repeating again what he said: It is enough in a Christian country to remind ourselves of the Great Example whom we profess to follow. It is not needful to point out the awful danger of admitting the principle which has been contended for. Who is to the be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? Is it to be strength, or intellect, or what? It is plain

that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another's life to save his own. In this case the weakest, the youngest, the most unresisting was chosen. 8. What is claimed as the right to travel is not the universal right to travel enjoyed by everyone in the State subject to such restrictions as are acceptable in every democratic society, but a special right for the expectant mother to travel to another State for the purpose of killing the unborn. This is the effect of the amendment which was put before the people in relation to the constitutional right to life of the unborn. It was adopted. Was it a lawful amendment? (Did the people really realise what they were voting about?) Is it compatible with the Natural Law? 9. What is claimed as the right to information is not the universal right to receive and impart information, common to all truly democratic societies, but a right to be informed of facilities in another State where the unborn may be killed without breaking the law. The amendment which was adopted guarantees that notwithstanding the previous guarantee of the right to life of the unborn, it shall be permissible subject to conditions to be laid down by law to disseminate within the State information relating to services lawfully available in another State, which is a nice way of referring to information helping the expectant mother to have the unborn killed in another State. It was adopted. Was this also a lawful amendment? Is it, also, compatible with the Natural Law? 10. The matter last-mentioned raises the question of the legal effect of the decision of the Court of Human Rights in Strasbourg in the Open Door Counselling case. Ireland has, in effect, been ordered by that court to put her house in order by permitting information to be made available in this country to facilitate the killing in other States of the unborn whose lives are guaranteed by our Constitution . The State has also been ordered to pay close on 200,000 by way of damages and costs. That decision was based on Article 10 of the European Convention on Human Rights , which guarantees the right to freedom of expression. That Article , however, permits restrictions on information which are necessary in a democratic society for the protection of the rights of others. The people of this country decided in a democratic man ner in 1983 to acknowledge the equal right to life of the unborn in the Constitution . Unborn children in Ireland are therefore among those others whose human rights may be protected in Ireland by restrictions on harmful information. Those rights appear to have been ignored in this decision. The judgment of the Court of Human Rights is also at variance with the guarantees expressed in the Human Rights Convention itself. Article 60 of the Convention states that Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party. The equal right to life of the unborn, acknowledged in the Irish Constitution , is clearly one of these human rights. The judgment, nevertheless, construes Article 10 of the Convention as prohibiting the protection of that human right in the manner deemed necessary by the Irish Supreme Court. At a minimum, any right to life must include an absolute right not to be killed for the advantage or benefit of another. Such killing is the essence of every directly procured abortion, whatever the individual circumstances. The restrictions on harmful information which may be permitted under the Convention should therefore include a prohibition on referral to agencies abroad which carry out such abortions, albeit within the laws of their own countries. The Irish Supreme Court has deemed such restrictions necessary for the defence of the constitutionally recognised right to life of the unborn. The failure of the Court of Human Rights to have regard to the equal human rights of these others in their decision is an arbitrary discrimination which, arguably, renders this judgment contrary to the Natural Law as understood in this jurisdiction. 11. It will be seen that the importance of the abortion debate extends far beyond the issue of abortion itself, critical though that may be. It extends into the whole area of the extent to which we are prepared to allow supranational tribunals, such as the Court of the European Communities

in Luxembourg and the Court of Human Rights in Strasbourg, the final say in issues involving the moral law and the Natural Law, and to determine how we should regulate our affairs in matters on which our moral values may still be fundamentally different from those of many of our European partners. It is of vital importance that this process should not be allowed to take place by default or to creep up on us unnoticed. It must be confronted, and the time has clearly arrived for this to happen. 12. In the meantime it is to be hoped that the Supreme Court will be given an opportunity to examine the issues referred to above, and which have yet to be determined. As was pointed out by Mr Justice Brian Walsh in an address given by him to the Law Society, University College Galway, 11 November 1992, the decision in the case of Attorney General v X proceeded on an agreed basis which involved a concession that abortion was legally permissible in certain circumstances under the provisions of Article 40.3.3 . The position was stated as follows by Mr Justice Walsh. The wording of the 8th Amendment is probably not flawed, as has been claimed. It confers no immunity for taking life. It is perfectly consonant with the idea of the safeguarding of the mother's life without intentional and direct intervention to terminate the life of the foetus. The claim that it permits of direct termination has never been fully argued. In the X case it was conceded. There was no legitimus contradictor to argue against such a construction, therefore the court's decision can only bind the particular case, as it was based on a conceded and unargued construction. It is well-established that neither a constitutional provision nor even a statutory provision can be construed on the basis of a concession if it is to be binding in rem.

Irish Law Times

(1993) 11 ILT 81: Article: Democracy, Natural Law and the Irish Constitution : Tim Murphy,
Article Democracy, Natural Law and the Irish Constitution Tim Murphy, B.C.L. (N.U.I.), Lecturer in Jurisprudence and Constitutional Law, Mr Justice Roderick O'Hanlon argued in the January ILT that Bunreacht na hEireannn must be interpreted in accordance with one particular view of natural law. He claims that no legal measure or judicial decision may conflict with this natural law. In this article , it will be contended that his argument is based on a selective reading of constitutional sources, is antidemocratic in its assumptions and is dangerous in its practical implications. Introduction The place of natural law in Irish constitutional law was recently discussed by Mr Justice Roderick O'Hanlon in an article in this journal. [ Natural Rights and the Irish Constitution (1993) 11 ILT 8. ] His main concern is with the right to life of the unborn. He contends that the

right to life of the unborn is equal to that of the mother, despite the Supreme Court decision in Attorney General v X [ [1992] ILRM 401 . ] and the results of the constitutional referenda held in November 1992. Indeed, he questions the lawfulness of the Thirteenth and Fourteenth Amendments of the Constitution [ The Eighth Amendment (1983) inserted Article 40.3.3 into the Constitution : The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right. In the X case this was interpreted in such a way as to permit termination of the unborn life. The Thirteenth Amendment inserted a guarantee into Article 40.3.3 that nothing in the subsection would interfere with the right to travel to another state. The Fourteenth Amendment inserted a similar guarantee, subject to conditions to be laid down by law, of the right to disseminate within the State information relating to services lawfully available in another State. These developments all appear to place limitations on the right to life of the unborn in Irish law. Mr Justice O'Hanlon is seeking to deny this on the basis of a natural law argument. ] since they both have the effect of limiting the right to life of the unborn. O'Hanlon J invokes natural law theory to support his position: It is clear that the protection of fundamental rights in the Irish Constitution (and in particular the right to life of the unborn) is firmly grounded on what is called the Natural Law .It would appear to follow that no law could be enacted, no amendment of the Constitution could lawfully be adopted, and no judicial decision could lawfully be given, which conflicted with the Natural Law (which we recognise as being of divine origin). [ Loc. cit. supra . n.1 at 9, 10. ] The present writer believes that Mr Justice O'Hanlon's argument should not go unanswered. It goes far beyond the issue of the right to life of the unborn. The purpose of this article is to argue that in terms of constitutional law and constitutional theory Mr Justice O'Hanlon's analysis is flawed and anti-democratic. I would challenge three different assumptions underpinning his argument: first, that legal measures which conflict with natural law are unlawful, second, that there is one clear natural law, and third, that the case-law on the matter supports his general thesis. The Character of the Law Mr Justice O'Hanlon's whole argument rests ultimately on the references in the Preamble to the Irish Constitution of 1937 to the Most Holy Trinity and in Article 6 to God. [ The Preamble states that the people adopted the Constitution [i]n 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.. Article 6 states that [a]ll powers of government derive, under God, from the people . ] He claims that these references unambiguously identify the Most Holy Trinity as the ultimate source of a higher law against which all human, positive law may be measured. This higher law represents the true, absolute morality. If any positive law or judicial decision does not conform with the higher law then that law or decision is not lawful, or to use the words of Mr Justice Henchy which Mr Justice O'Hanlon quotes, has not the character of the law. [ Precedent in the Irish Supreme Court, (1962) MLR 544 at 550. ] What precisely does Mr Justice O'Hanlon mean by this? What is the status of a law that is not lawful? Mr Justice Hency claimed that such a law is not law, [ Ibid. ] but again the meaning is unclear. Does it mean that when the Oireachtas enacts a law that has not the character of the law, that it is then lawful to disobey that law? the assumption, presumably, is that such instances will arise on only very rare occasions and that the judiciary, when given the opportunity, will interpret the law to ensure conformity with natural law. But what if a judicial decision, let us say a decision of Mr Justice O'Hanlon himself, does not conform with natural law, is it legitimate to disregard that decision? Not surprisingly, his article avoids these questions. Leaving aside the problems associated with the enunciation of natural law, which we will come to shortly, this seems a rather remarkable argument for a judge of the High Court to put forward.

Certainly, from the perspective of what has been called the ontology of constitutions, it is very unhelpful. In a seminal article, [ Reflections on the Value of Constitutions in Our Revolutionary Age in A.Zurcher (ed.), Constitutions and Constitutional Trends since World War II (1951). ] Karl Lowenstein defined this as the investigation of what a written constitution really means within a specific national environment. In this basic context, the essential problem with Mr Justice O'Hanlon's proposition would appear to be a perception that the Constitution and constitutional law operate on an entirely separate plane to the political process and indeed society generally. The reality is that a constitution is a political as well as a legal document and any theory of natural law has political as well as legal consequences. In the case of Mr Justice O'Hanlon's article, the consequences involve a usurpation of the democratic process by constitutional interpretation. To claim, in a democracy, that the law may not be lawful is a legal fiction of the highest order. It does not contribute in any way to constitutional jurisprudence. Specifically, it is surely not acceptable for him to second guess the will of the people in reaction to, for example, the constitutional amendment on the right to travel, by asking [w]as it a lawful amendment? [d]id the people really realise what they were voting about? [ Loc. cit. supra . n.1 at 10. ] Natural Law and the Constitution One of the many problems with the concept of natural law is that there are two entirely different kinds of natural law theories. The essential difference between the two is that some are secular, based solely on human reason, while the others are theocratic, based on faith in the existence of a deity. [ See generally J. M. Kelly, A Short History of Western Legal Theory (Clarendon Press, Oxford, 1992). Certainly, according to the theocratic tradition, it is only through the use of our reason that we can come to know the divine law and indeed Mr Justice O'Hanlon invokes both the secular and the theocratic traditions. Obviously, he does not refer to those scholars and jurists who, through the use of their reason, have completely rejected any concept of an objective morality or natural law. ] This dichotomy leads to some of the differences as to which rights are to be considered natural. Differences also exist on the basis of particular conceptions of nature. Thus, conflicting views as to what constitutes natural law exist within, as well as between, the two traditions. [ See J.J. Shestack, The Jurisprudence of Human Rights in T. Meron (ed.), Human Rights in International Law: Legal and Policy Issues (Clarendon Press, Oxford, 1984) at 7779. ] In the context of the Irish Constitution , Mr Justice O'Hanlon states that while various accounts have been given of the basis of [natural law] identify the Most Holy Trinity as the ultimate source of this higher law. [ Loc. cit. supra . n.1 at 9. ] It would therefore seem more appropriate at this juncture to concentrate on the inconsistencies inherent in the theocratic version of natural law rather than to dwell on tensions between the secular and theocratic versions. The reality is that any notion of a theocratic natural law, based on references to the Most Holy Trinity and God, is open to several interpretations. Perhaps the most important demonstration of this in the Irish context is the divergence between the Catholic and Protestant traditions in relation to natural law implications for positive law. Both traditions agree on the existence of the Most Holy Trinity and God but fundamentally disagree as to what the divine law actually is. For example, the two traditions adopt opposing natural law positions on the questions of contraception, sterilisation and, most significantly for our purposes, abortion. In a recent newspaper article responding to some of Mr Justice O'Hanlon's theological assumptions, the Reverend Kenneth Kearon noted that there are those within the Christian tradition who, while opposed to abortion, would argue that some cases may arise where a termination of the life of the unborn would have to be the Christian opinion, however regrettable or tragic that might be. [ Christian values call us away from divisions, The Irish Times , 5 February 1993. ] Any legislative enactment or judicial decision on these issues will conflict with some interpretation of natural law. How are we to decide, in cases of differences within the Christian tradition, what is lawful and what is not? Bunreacht na hEireann certainly does not provide an answer to that question.

Indeed, this leads directly to another fundamental question about the value of the natural law concept in the context of Irish constitutional law. Who is to decide, irrespective of the Christian or any other tradition, what the objective morality is in any given instance? Judges, indeed lawyers generally, can claim no special ability in this regard. Mr Justice O'Hanlon's argument is seriously undermined by the facts that not only are there inconsistencies within the Christian natural law tradition but the enunciation of any principles of natural law is highly problematical. As the Reverend Kearon also notes: The difficulty for all of us to know what is the divine law .Even a concept like Natural Law cannot provide an infallible guide to the will of God on these subjects. Natural Law is, according to Aquinas, our human understanding of God's plan for us. It is of its nature human and therefore can't be an infallible guide to God's will. [ Ibid. ] This statement transcends the religious context in which it is made. It highlights the simple fact that, in terms of any discussion of natural law, the question will always remain: whose natural law? Natural Law and the Judiciary Mr Justice O'Hanlon also draws support for his argument from various judicial interpretations of the Constitution . He claims that they confirm a natural law basis for the constitutional protection of fundamental rights. However, his choice of judicial pronouncements is highly selective. It is submitted that further reference to, in particular, three of the cases which he cites casts his thesis into even more doubt. The indeterminate nature of natural law was made explicit in Mr Justice Walsh's more cautionary approach to the concept in McGee v Attorney General [ [1974] IR 284 . ] 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 fully agreed 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 natural rights as they are to be found in the natural law. [ 16 ] It is necessary also to address Mr Justice O'Hanlon's reliance on Mr Justice Kenny's judgment in Ryan v Attorney General . [ [1965] Ir 294 . In this case Mr Justice Kenny held that the personal rights protected by the Constitution were not confined to those spelt out expressly but included all those rights which result from the Christian and democratic nature of the State (at 312). ] Mr Justice O'Hanlon's argument focuses on the word Christian while ignoring Mr Justice Kenny's reference to the democratic nature of the state, which echoes Article 5 of the Constitution . [ Article 5 states: Ireland is a sovereign, independent, democratic state. ] The point here is surely that the Constitution respects both of these values but it does not purport to resolve all of the conflicts which may arise between them. In this general context it is completely misleading to claim, as Mr Justice O'Hanlon does, that the Constitution leaves us in little doubt as to where it stands on the question of whether there are any limits to the power to make laws. [ Loc. cit. supra . n.1 at 8. ] Again, legal analysis of this nature is meaningless if not placed in this appropriate context; surely it is not the Constitution alone which places limits on this power; surely the community which the Constitution regulates, comprising as it does varied and potentially conflicting values (such as democracy and Christianity), also has this responsibility. Mr Justice O'Hanlon's argument is again undermined by a comparison of the Ryan and McGee cases. In Ryan , the Supreme Court concluded that the right to bodily integrity, although not mentioned, was a right that was nonetheless protected by the Constitution . He notes that a Papal Encyclical was invoked by the court in asserting the existence of this right. By contrast, in McGee , the Supreme Court's decision to uphold a challenge to the restriction on the importation of contraceptives and to recognise an unenumerated right to marital privacy directly contravened Roman Catholic natural law doctrine.

The Church, calling men back to the observance of the norms of natural law, as interpreted by her constant doctrine, teaches that each and every marriage act must remain open to the transmission of life We believe that the men of our day are particularly capable of seizing the deeply reasonable and human character of this fundamental principle. [ Humanae Vitae , 1968, paras. 11 and 12. ] It would seem to follow from Mr Justice O'Hanlon's argument that this decision, and the laws which have been enacted as a result of it, [ The Health (Family Planning) Act 1979 and the Health (Family Planning) (Amendment) Acts 1985 and 1992 are all in breach of Roman Catholic natural law teaching. ] are not lawful. Mr Justice O'Hanlon also quotes the late Mr Justice McCarthy's reference in Norris v Attorney General [ [1984] IR 36 . ] to the right to life of the unborn as a sacred trust. [ Ibid. at 103. ] Yet this is from a dissenting judgment which rejected the majority's application of Catholic natural law doctrine to the question of homosexuality. [ See Conor Gearty (1983) 5 DULJ 264. ] Again, in terms of natural law, there is no consistency here. These cases show that the judiciary have been far from uniform in their pronouncements on, and interpretation of, natural law. Given the contradictions inherent in the concept itself this is hardly surprising. Conclusion Turning to the specific issue in Mr Justice O'Hanlon's article: the right to life of the unborn. His argument is that the Supreme Court's decision in X , and indeed the whole of the since amended Article 40.3.3 , including as it now does the rights to travel and information in addition to the 8th Amendment itself, do not have the character of law. [ Supra . n.3. ] This is said to be the case because the right to life of the unborn is protected by natural law. Not having the character of law all of the above must be reinterpreted in accordance with Mr Justice O'Hanlon's particular conception of theocratic natural law. This argument is not a tenable one precisely because of its natural law basis. Despite frequent references to natural law ideas in the case-law, the more important of the assumptions underlying a purely natural law interpretation of Irish constitutional law, [ There are other such assumptions which are also highly problematical but which space has prevented me from examining in this article . For example: that natural law theory is not applicable, save in the case of the private property rights, to questions of economic and government morality. ] as this article has demonstrated, are not sound. Despite Mr Justice O'Hanlon's claims, our Constitution does not endorse a uniform objective standard of morality based on the theological doctrine of any one religion's interpretation of natural law. Nor does the full range of judicial pronouncements on the question support such a view. The complex and often self-contradictory nature of Bunreacht na hEireann will continue to be denied by some but it nonetheless remains the reality.

Irish Law Times

(2002) 20 ILT 107: Article: Life Choices A Comparative Look at The Issue of Abortion in Ireland And North America : Anne-Marie Cotter Ph.D., J.D.
Constitutional Life Choices A Comparative Look at The Issue of Abortion in Ireland And North America Anne-Marie Cotter [ Ph.D., J.D. ] INTRODUCTION This article will take a comparative look at the contentious issue of abortion, dealing with the legal facts on both sides of the debate. It will examine the important legislation in the area, including the Constitutions of the United States, Canada and Ireland. It will go on to look at the seminal cases in the matter first in the United States and Canada where abortion became a paramount issue in the 1970s and 1980s respectively. It will conclude by looking at the situation in Ireland where abortion became an issue of great concern in the 1990s and again today. The United States The concepts of equality and good government, found in the American judicial system, were important principles to the Founding Fathers of the United States. They fundamentally stated that [w]e hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty and the pursuit of happiness. [ American Declaration of Independence 1776 . ] The American Founding Fathers designed the United States Constitution to be a set of broad guidelines for successive generations. Chief Justice Marshall said of the Constitution , it was intended to endure for ages to come and consequentially to be adapted to the various crises of human affairs. [ McCullough v. Maryland , 4 Wheaton 415 (1819) . ] The seminal case of Marbury v. Madison , brought forth the important principles that: 1. 1. the Constitution is the supreme law of the land; 2. 2. the powers granted to various branches of government are limited; and 3. 3. it is the sole and essential function of the Court to determine which law should prevail in conflict of laws. [ Marbury v. Madison , 1 Cranch 137 (1803) . ]

The Fifth and Fourteenth Amendments of the Constitution are of paramount importance. With the due process clause of the Fifth Amendment including an equal protection component, the Fifth and Fourteenth Amendments provide due process of law and equal protection to citizens from federal and state actions respectively. The clauses state: Amendment V [ American Constitution , Fifth No person shall be deprived of life, liberty, or property, without due process of law Amendment . ] Amendment XIV Section 1 . 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. [ Ibid., Fourteenth Amendment . ] In the United States, the case of Griswold v. Connecticut was the precursor to the historic and

far-reaching decision of Roe v. Wade which legalised abortion in the United States. In Griswold v. Connecticut , the majority of the Supreme Court held a
Connecticut statute forbidding the use of contraceptives by married couples to be invalid. [ Griswold v. Connecticut , 381 US 479 (1965) . ] The judges writing for the majority used various constitutional routes to arrive at this conclusion, but the common denominator seems to have been a profound concern over the invasion of the marital home required for the enforcement of the law. The Supreme Court went further in Eisenstadt v. Baird , by striking down a Massachusetts law prohibiting the distribution of any drug for the purposes of contraception to unmarried persons on the ground of violation of the equal protection clause. [ Eisenstadt v. Baird , 405 US 438 (1972) . ] The Court stated: It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional make up. If the right of privacy means anything, it is the right of the individual , married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. [ Eisenstadt v. Baird , 405 US 438 , 453 (1972) . ] In 1973, the United States Supreme Court decided the landmark case of Roe v. Wade . A class action was brought by Roe, a pregnant single woman challenging the constitutionality of the Texas criminal abortion laws, which proscribed procuring or attempting an abortion except on medical advice for the purpose of saving the mother's life, and by the Does, a childless married couple, the wife not being pregnant, challenging the laws, alleging injury on the future possibilities of contraceptive failure, pregnancy, unpreparedness for parenthood, and impairment of the wife's health. [ Roe v. Wade , 410 US 113 (1973) . ] In finding that a woman's right to an abortion fell within the right to privacy protected by the Fourteenth Amendment, the Supreme Court held that this decision was mandated by the body of existing law ensuring that the state would not be allowed to interfere with certain fundamental personal decisions such as education, child-rearing, procreation, marriage and contraception. It concluded that the right to privacy found in the Fourteenth Amendment guarantee of liberty is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. [ Roe v. Wade , 410 US 113 , 153 (1973) . ] Because the woman's right to decide whether or not to end a pregnancy is fundamental, only a compelling interest can justify state regulation impinging in any way upon that right. The Court found that a state criminal abortion statute that excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests, violates the Due Process Clause of the Fourteenth Amendment, which includes a woman's qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman's health and

the potentiality of human life, each of which interests grows and reaches a compelling point at various stages of the woman's approach to term. The Court went on to outline its historic three-tiered approach in deciding the right: 1. 1. for the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician; 2. 2. for the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health; 3. 3. for the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. [ Roe v. Wade , 410 US 113 , 165 (1973) . ] Canada The Canada Act , the Canadian Constitution , was proclaimed into force and entrenched on April 17, 1982. It is made up of three separate documents: The British North America Act and its various amendments, the Constitution Act and its amending formula, and the Canadian Charter of Rights and Freedoms . Section 32 of the Charter provides for its application to the Parliament and government of Canada, as well as to the legislature and government of each of the ten provinces. [ Canadian Charter of Rights and Freedoms , s. 32 . ] The purpose of the Canadian Charter of Rights and Freedoms was to protect and safeguard the rights and freedoms enumerated, and to contain governmental action within reasonable limits. Section 52(1)(a) provides that [t]he 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. [ Ibid. , s. 52(1) . ] The important legal rights section of the Charter is s. 7 , which states that: [e]veryone 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. [ Ibid. , s. 7 . ] Importantly, there are several provisions in denial of rights. Section 33 of the Charter is the infamous notwithstanding clause, allowing the Canadian provinces to opt out of the Constitution for successive and infinite five-year periods. It provides that: Parliament or the legislature of a province may expressly declare in an act of Parliament or of the legislature that the act or a provision thereof shall operate notwithstanding a provision included in this Charter . [ Ibid. , s. 33 . ] The Canadian Constitution extends power to judges to review legislative action on the basis of congruence with protected values in the Charter , and treats the judicial branch of government as a partner with the legislative and executive branches, in determining the rights of citizens. However, s. 33 , the overriding clause, will ensure that legislatures rather than judges have the final say on important matters of public policy, so that laws offensive to certain provisions of the Charter may be upheld. Section 1 of the Charter is also an overriding clause and states that [t]he Canadian Charter of Rights and Freedoms set out is subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. [ Ibid. , s. 1 . ] Thus, constitutional rights and freedoms can be subjected to this notwithstanding clause. In addition to the Canadian Constitution , there is the Canadian Bill of Rights, which outlines in s. 1 the human rights and fundamental freedoms guaranteed. It states that:

[i]t is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely, (a) the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law. [ Canadian Bill of Rights , s. 1 . ] In Canada, as far back as 1869, abortion was illegal, and in 1892, Canada's first Criminal Code was enacted prohibiting abortions. The landmark case of Morgentaler v. the Queen effectively legalised abortions in Canada. [ Morgentaler v. The Queen ( 1 S.C.R. 1988 ) . ] In Morgentaler , indictments were brought against the appellant physicians charging that they had conspired with each other with intent to procure abortions. By its decision, the Supreme Court of Canada struck down the Nation's abortion law, s. 251 of the Criminal Code as unconstitutional. [ Canadian Criminal Code , s. 251 . ] It was found to be not justified by s. 1 of the Canadian Charter of Rights and Freedoms . Further, the law was found to violate s. 7 of the Charter of Rights and Freedoms , infringing on a woman's right to life, liberty and security of person. The Court stated that: [t]he interests of life, liberty and security of the person guaranteed under s. 7 of the Charter may only be impaired if the principles of fundamental justice are respected [ Op. cit. ] In finding that the anti-abortion procedures and administrative structures were often unfair and arbitrary, the Court held that the effects of the limitation upon the s. 7 rights of many pregnant women were out of proportion to the objective sought to be achieved and actually defeated the objective of protecting the life and health of women. The Court went on to state that: [a]ny infringement of the right to life, liberty and security of the person must comport with the principles of fundamental justice. These principles are to be found in the basic tenets of our legal system Section 251 cannot be saved under s. 1 of the Charter [ Ibid. ] Ireland In Ireland, abortion has been outlawed since as far back as 1861 due to the Offences Against The Person Act , and in particular s. 58 which states: Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for life [ Offences Against the Person Act 1861 , s. 58 . ] The Preamble to the Irish Constitution states: 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, We, the people of Eire, Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial, Gratefully remembering their heroic and unremitting struggle to regain the rightful independence of our Nation, and seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may he assured, true social order attained, the unity of our country restored, and concord established with other nations, Do hereby adopt, enact, and give to ourselves this Constitution . [ Irish Constitution . ] The Constitution goes on to guarantee personal rights under Art 40 : 1 All citizens shall, as human persons, be held equal before the law. 3.2 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. [ Irish Constitution , Art. 40 . ]

Further, Art 40.3.3 is of paramount importance to the abortion debate. It states that: [t]he State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right. This subsection shall not limit freedom to travel between the State and another state. This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state. [ Ibid. ] The Supreme Court of Ireland was faced with the issue of abortion in the case of Attorney General v. X. on March 5, 1992. [ Attorney General v. X. [1992] 1 IR 1 . ] The defendants in the case were a fourteen-year old girl and her parents. In December 1991, the teenager was raped, and as a result became pregnant. The rape was reported to the Garda who were also informed that the young defendant would travel to the United Kingdom for an abortion. This information was conveyed to the Attorney General's office which in turn sought an interlocutory injunction, which decision ordered that the defendants be restrained from interfering with the right to life of the unborn as contained in Article 40.3.3 of the Constitution of Ireland; restrained from leaving the jurisdiction for a period of nine months from the date hereof; and restrained from procuring or arranging a termination of pregnancy or abortion either within or without the jurisdiction. A notice of appeal to the Supreme Court was filed on behalf of the defendants, submitting that although the Eighth Amendment required that the courts to defend and vindicate the life of the unborn, they were also to have regard for the equal right to life of the mother, with the real danger that she would take her own life if she were unable to procure an abortion. In looking at Article 40.3.3 , and in particular the words as far as practicable and with due regard to, it was contended by the defendants that the true test of the matter should be that if it were established as a matter of probability that the continuation of the life of the unborn child constituted a real and substantial risk to the life of the mother then the conflict should be resolved by preferring the life of the mother, by reason of it being a life in being as distinct from an unborn life. On the other hand, it was submitted by the Attorney General that the true interpretation of the provisions of Article 40.3.3 must not be interpreted in isolation from the other provisions of the Constitution and that, consequently, the test proposed on behalf of the Defendants of a real and substantial danger to the life of the mother, as justifying the termination of the pregnancy, was disproportionate and was a failure to approach sufficient equality between the two rights concerned. The Court in the seminal case of McGee v. The Attorney General stated a paramount philosophy: In this country, it falls finally upon the judges to interpret the Constitution 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. [ McGee v. The Attorney General [1974] IR 284 , 318 . ] The Court in the X. case applied the doctrine of the harmonious interpretation of the Constitution carried out in accordance with the concepts of prudence, justice and charity (as expressed in McGee ) in considering the constitutional rights and obligations of the mother of the unborn child and the interrelation of those rights and obligations with the rights and obligations of other people and with the right to life of the unborn child. [ McGee v. The Attorney General [1974] IR 284 . ] It concluded as to the proper test to be applied: if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her

pregnancy, such termination is permissible, having regard to the true interpretation of Article 40.3.3 of the Constitution . [ Attorney General v. X. [1992] 1 IR 1 , 54 . ] Therefore, the judge concluded that based on the evidence presented the Defendants had satisfied the test laid down as appropriate and had established, as a matter of probability, that there was a real and substantial risk to the life of the mother by self-destruction which could only be avoided by termination of the pregnancy. [ Attorney General v. X. [1992] 1 IR 1 , 55 . ] Although the Attorney General acted properly in bringing the matter before the court, the terms of the Eighth Amendment, contained in Article 40.3.3 contemplated lawful abortion within the State and the government must enforce the guarantee. The defendants were entitled to succeed in this appeal, since on the facts of this case, the mother could not be prevented from having an abortion and could not be lawfully prevented from leaving the State, whatever her purpose in doing so. Virtually ten years to the day of the X. case decision, the abortion referendum of the March 6, 2002 in essence asked voters: Do you approve of the proposal to amend the Constitution as set out in the undermentioned Bill?. [ Twenty-Fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill 2001 . ] The referendum proposed to add two new sub-sections to Article 40.3.3 of the Constitution , the acknowledged equal right to life of the mother and the unborn: A new Article 40.3.4 : In particular, the life of the unborn in the womb shall be protected in accordance with the provisions of the Protection of Human Life in Pregnancy Act, 2002 and a new Article 40.3.5 proposing that the intended Act could not be changed unless it is approved by the people in a new referendum. [ Referendum, March 6, 2002 . ]

The main provisions of the Protection of Human Life in Pregnancy Bill are that the threat of suicide, based on the X. case, would be removed as a ground for abortion; abortion would be defined as the intentional destruction by any means of unborn human life after implantation in the womb; a procedure carried out by a medical practitioner at an approved place laid down by the Minister by regulation to prevent a real and substantial risk of the loss of a woman's life, other than by selfdestruction, would not be regarded as an abortion; and anyone aiding and procuring an abortion would be liable to up to 12 years' imprisonment.
The referendum proved to be a narrow defeat for the government's constitutional amendment proposal to roll back the X. decision: Yes 49.8% (618,485 votes), No 50.42% (629,041 votes). [ Ibid. ] Ironically though, due to the nature of the question presented to voters, the debate should have been more aptly labeled as an anti-abortion referendum rather than the typical abortion referendum. Clearly and not surprisingly, the country was and still is divided on this heartwrenching issue. Conclusion Abortion has been a controversial issue for both North America and Ireland, and will continue to be for some time. As the rights of the unborn are pitted against the rights of the mother, polar opposite views are generally taken and there is no easy solution to reconciling both sides of the debate.

Irish Law Times

(1983) 1 ILT 8: Article: Abortion and the Law : by Barry McAuley,

Abortion and the Law by Barry McAuley, Lecturer in Criminal Law and Criminology, As even the dogs in the street by now know, abortion is prohibited by section 58 of the Offences Against the Person Act, 1861 . Yet not even the Attorney General seems clear as to the scope of the prohibition contained in section 58 . Does the section prohibit abortion absolutely? Or does it admit of exceptions? If exceptions are allowed, how far do they go? Are they co-extensive with those recognised by Catholic moral teaching, as many appear to believe? Or are they more broadly based? Can the exceptions recognised by the Catholic Church be justified on jurisprudential grounds? What does it mean to speak of exceptions in this regard? Does it mean that abortion as such is always wrong, but that the law is sometimes prepared to excuse its perpetrators? Or does it mean that the law recognises that some abortions are justified and therefore not wrongful in the legal acceptation of that term? These questions, which I shall attempt to answer in what follows, are important for two reasons: (i) because they help to clarify the existing law on abortion, something which the amendment debate has failed to do; and (ii) because they point to a fundamental and, in my view, insuperable obstacle to amending the Constitution in regard to abortion. The Fallacy of Absolute Prohibition It is sometimes assumed, by lawyers and laymen alike, that some criminal prohibitions are absolute, in the sense that they admit of no exceptions, and that section 58 of the Offences Against the Person Act, 1861 , which defines the offence of abortion, is a prohibition of this type. But this assumption is mistaken. There is no such thing in the criminal law as an absolute prohibition. This follows from the nature of legal rules. Although commentators with a religious bias are apt to overlook the fact, the law is a human institution whose rules and standards must be capable of being met by the ordinary individual. Standards pitched beyond the reach of the ordinary individual may be acceptable in ethics and theology, where indeed they may well be the norm, but they have no place in the criminal law. The criminal law is concerned with the regulation of human conduct, not with the perfectability of human nature. Consequently, its standards, unlike those of ethics and theology, must take account of ordinary human capacities and limitations. Indeed, since these factors determine the extent to which human conduct can be regulated, they may be said to be implicit in the very idea of legal rules and standards. This aspect of legal rules has two important consequences for the criminal law. First, it is responsible for the requirement, recognised by all modern legal systems, that the rules of the Criminal Law must be applied prospectively. In plain language, this means that the person or persons at whom such rules are directed must be given fair warning of their coming into effect, that the rules themselves must be clear enough to enable the ordinary individual to adjust his conduct to them, and that anyone charged with a criminal offence has a good defence if he can show that either or both of these conditions were not met in his case. Nowadays this requirement is often described as a fundamental principle of constitutional law, yet it would be wrong to assume that its importance stems from the fact that it has been recognised as a constitutional norm, as some constitutional lawyers are wont to do. On the contrary, its real importance derives from the simple truth that since the ordinary individual is neitther prescient nor clairvoyant, he

cannot be expected to keep rules of which he has received no notice or whose contents are either unintelligible or too vague to serve as a guide to action. Nor is this a purely academic distinction. Indeed, it will be apparent that since the requirement of prospectively is inextricably bound up with the nature of legal rules, and not merely a matter of constitutional doctrine, its place in the legal system is unassailable, in the sense that any attempt to dispense with it, whether by the legislature, the Courts, or even by means of a constitutional amendment, would be juridical nonsense. Second, the fact that legal rules and standards are designed to regulate human conduct also gives rise to what lawyers call the defence to a criminal chargethe various pleas of excuse and justification which, if successful, have the effect of exempting a defendant from blame and punishment. Again this follows because prohibitory rules presuppose that those at whom they are aimed are capable of complying with them, in the sense that they are endowed with the ordinary human capacities necessary to do so. Thus in all modern legal systems a defendant who lacks capacity in this sensefor example, because he is insane or too young to appreciate what he was doing when he broke the lawwill invariably be excused. But prohibitory rules also presuppose that an accused had a reasonable opportunity of complying with them, even if the question of his capacity to do so is not in dispute. Consequently, a defendant who can show that it was humanly impossible to avoid doing what he did in the circumstancesbecause, for example, he was acting in self-defence, under duress, or out of necessitywill normally have a good defence to a criminal charge. This last point is fundamentally important because it brings out the fact that the law does not expect the individual to comply with its requirements at any cost, but merely to do what is reasonable in the circumstances. Thus a defendant who pleads self-defence in answer to a charge of murder will have a good defence if it is clear from the facts that an ordinary person, placed in his shoes, would have reacted as he did, while a doctor forced to choose between two candidates for a life-support machine will have an answer to a charge of manslaughter if the unlucky candidate dies, provided his decisions was made in good faith and on reasonable grounds. Indeed, it is submitted that a doctor would have a good defence to a charge of murder or manslaughter even if he discontinued a particular patient's life-support facilities on the grounds that, in his professional opinion, they were needed in a more deserving case. Moreover, this would be so even if the doctor's opinion turned out to be wrong, provided it was one that other doctors of comparable skill and experience might reasonably have reached in the same circumstances. In a word, the law does not expect the individual to show unusual fortitude when faced with an attacker, no more that it expects him to demonstrate extraordinary self-control when provoked or Solomon-like judgement when forced to choose the lesser of two evils. Thus this aspect of legal rules and their application is unlikely to please those who like to see the law as the mundane expression of some higher scheme of things, or who perhaps feel that it is part of the law's business to enforce moral absolutes or raise standards of conduct so as to bring them into line with the moral tenets of a particular religion. However, the law must of necessity ignore such claims since to accommodate them would be to place its standards beyond the reach of ordinary people and, consequently, to destroy the moral infrastructure on which any system of prohibitory legal rules is and must be based. Nor can such claims be written into the Constitution . Indeed, it will be apparent that such a radical departure from the natural parameters of legal rules would be incompatible with the idea of a Constitution , written or otherwise, since, by definition, the latter must give effect to fundamental legal principles. That this point would seem to have been overlooked by those seeking to amend the Constitution in regard to abortion is perhaps deserving of comment. Admittedly, the deep structure of legal rules is not a matter with which ordinary members of the public can be expected to be conversant. However, many of those who have been most vocal in putting the amendment case are eminent members of the legal profession whose ignorance in this regard is, to say the least,

culpable. The Constitution is not simply a charter of fundamental human rights, as members of this group seem determined to believe (although to be fair to them, this assumption is symptomatic of the general orientation of Irish Constitutional theory, at least in recent times). On the contrary, since it is by definition a statement of fundamental legal principles in the broadest sense, the Constitution circumstances the extent to which, if at all, fundamental human rights can be recognised within the framework of the law. Seen in this light, the Constitution can no more accommodate an absolute prohibition on abortion, or even a prohibition to compromise the fundamental principle that a defendant must be judged in the light of what was reasonable in the circumstances, than it can countenance an attempt to dispense with the requirement of prospectivity. Moreover, even if those seeking to amend the Constitution , or, for that matter, the government's legal advisers, cannot understand this, the courts are unlikely to be similarly handicapped. Lawful and Unlawful Abortion It will be apparent from what has already been said about the nature of legal rules that no one can be convicted of a criminal offence unless he was in a position to comply with the prohibitory norm he has been accused of violating. This fundamental principle has a number of important consequences for the law on abortion. First, it gives rise to the inescapable fact that not all abortions are unlawful. This is true in two distinct, but related senses. Thus it is true in the weak sense that although a defendant may have done the act prohibited by section 58 of the Offences Against the Person Act, 1861 , he will sometimes be excused on the grounds that he was not responsible (in the legal sense) for his actions. This would follow, for example, in the unlikely, but not impossible, event that the doctor who performed the abortion was insane, or, to take a less extreme case, operated on the wrong patient, i.e. on a perfectly healthy patient whom he mistook, perhaps because the theatre nurse got their charts mixed up, for someone whose pregnancy had to be terminated on medical grounds. Although the defendant in both these cases has done the thing prohibited by law, he cannot be convicted of an offence under section 58 of the Offences Against the Person Act, 1861 , because of his conduct was not blameworthy, in the sense that he had no mens rea or guilty mind, to use the legal term of art. Consequently, although his actions may be said to be wrongful, in the legal acceptation of that term, they cannot be described as unlawful since, as it is said in section 58 , that term implies that he is guilty of a criminal offence. But there is also a strong sense in which abortion is lawful. This can perhaps best be seen by analogy with the law of murder. As everyone knows, not all killings are murder, in the sense that some killings, like some abortions, are justified. Thus a defendant who successfully pleads selfdefence to a charge of murder will be acquitted, not because he has a good excuse for breaking the law, as would be the case, for example, if he was insane, but because he has not broken the law at all. Similarly, a doctor whose patient dies on the operating table will not be guilty of either murder or manslaughter (assuming he was not negligent), since the performance of a properly conducted surgical operation, even if it involves a serious risk of death to the patient, is not an unlawful act. However, it would be wrong to assume that these killings are lawful simply because the law allows the infliction of physical harm in the particular circumstances in which they happen to occur, that is to say, because all civilised legal systems recognise killing in self-defence or in the course of a surgical operation as defence to a charge of murder. On the contrary, such killings are lawful and, consequently afford a good defence to a charge of murder, because the act or acts which caused death represented the only reasonable option available to the defendant in the circumstances. In a word, they are lawful because of the fundamental legal principle that any course of conduct whether it be killing or failing to comply with an immigration order, is justified in the eyes of the law if there was nothing the defendant could reasonably do to avoid it.

Thus, to return to the case of abortion, it follows that the termination of pregnancy in circumstances in which it would have been unreasonable not to do so is justified in the eyes of the law, and therefore, lawful in the strong sense of that term, and that a doctor who performs the operation in these circumstances will have a good defence to a charge under section 58 of the Offences Against their Person Act, 1861 . Indeed, it is submitted that a doctor who refused to terminate a pregnancy in these circumstances would be guilty of manslaughter by neglect if the patient died, as he would be in breach of the legal duty of care which binds all doctors in such cases. (Of course it goes without saying that he would be free to withdraw from the operation on moral or religious grounds. But even here he would have to ensure that there was another doctor willing and able to take his place, since the law on this point is designed to protect the interests of the patient, not the moral scruples of the doctor). Moreover, it will be apparent that this conclusion has nothing to do with what some commentators imagine to be the permissive character of the law of abortion; nor can it be explained away as a residual effect of English rule in Ireland, as others have been silly enough to suggest. On the contrary, as I have tried to show, it follows from the fundamental principles on which the criminal law in all civilised legal systems is based. Second, it is equally clear from the principle that no one can be convicted of a criminal offence unless he was in a position to comply with the law's requirements that the list of exceptions to enacted legal rules, including section 58 of the Offences Against the Person Act, 1861 , cannot be fixed in advance, as both sides in the amendment debate appear to believe. Indeed, it will be apparent from what has already been said that those who take this view are seriously misinformed as to the philosophical principles underlying the recognition of legal rules and their exceptions. As I have tried to show, the latter arise because of the principle that a defendant cannot be convicted unless he could have avoided doing what he did, not the other way round. In other words, it is this principle which determines the range and type of exceptions to a given legal rule, rather than the exceptions which determine the scope of the principle. Thus a doctor who terminates a pregnancy in order to save the life of the mother has a good defence, not because this is a recognised exception to the rule in section 58 , although this is in fact the case, but because it would be unreasonable (and, therefore, unlawful) not to do so in the circumstances. This does not of course mean that an abortion is necessarily lawful simply because it was carried out in order to save the mother's life, since there may be cases in which the chances of doing so are too remote. Thus in a case in which the mother has terminal cancer, it is arguable that a doctor who terminates her pregnancy will be guilty of abortion, since he can hardly claim that the operation was justified on reasonable grounds. However, once it is established that there was a reasonable chance of saving the mother, an abortion carried out for this purpose will always be lawful. Moreover, this is so whether or not the operation is acceptable to Catholic moral teaching. Thus an abortion carried out to alleviate the serious risk of death to a patient with heart disease will be no less lawful than one performed on a patient with an ectopic pregnancy or cancer of the uterus. Indeed, it also follows that an abortion carried out to alleviate the serious risk of suicide if the pregnancy is allowed to continue will equally be lawful since, in the circumstances, it may be equally unreasonable to expose the patient to that risk. Thus it is submitted that a doctor who terminates the pregnancy of a very young patient whose pregnancy was the result of rape would have a good defence on these grounds. Indeed, as Macnaghten J. recognised in Bourne [1939] I K 687 , it is arguable that this would be so in any case in which the doctor concluded that the continuation of the pregnancy was likely to reduce the patient to a physical and mental wreck, since in the eyes of the law any appreciable diminuition in the quality of life that a patient may reasonably be expected to enjoy will be regarded as a sufficiently serious threat to her life for the purposes of the rule in section 58 . Moreover, contrary to popular misconception, a doctor carrying out an abortion in these circumstances does not have to be right in his assessment that the operation is necessary. On the

contrary, the operation will still be lawful even if his assessment was wrong and the mother would have survived anyway, provided it was arrived at in good faith and on reasonable grounds. In other words, the critical test is whether the doctor acted in the best interests of the patient as he saw them, not whether his actions can be justified in terms of some absolute medical norm. Thus those professors of obstetrics who argue that there are no circumstances in which abortion is necessary to save a mother's life miss the point that what they see as good medicine is not necessarily good law, since legal standards must reflect the fact that there are other doctors who see things differently, and other still who may have no definite view on the matter one way or the other. Intentions Likewise, those Catholic theologians and apologists who insist on limiting the exceptions to section 58 to cases of etopic pregnancy and cancer of the uterus miss the point that the doctrinal justification for allowing abortion in such casesnamely, that the doctor's intention is to save the mother, not to kill the foetushas no basis in the law. As every law student knows, intention in the criminal law is a term of art, in the sense that it includes both (i) a desire to bring about a particular result and (ii) foresight that that result is virtually certain to occur, even if it is not desired. Consequently, it will be apparent that, if the exceptions to section 58 depended on showing that the defendant did not intend to kill the foetus, all abortions, including those allowed under the Catholic doctrine of double effect, would by definition be unlawful! Of course it may be that this outcome would not unduly bother the theologians and apologists. However, it is happily not the law. As I have tried to show, the lawfulness of conduct does not depend on the defendant's intentionindeed, if it did, killing in self-defence would be murder since the defendant clearly intends at least to do the act which causes death when acting in selfdefenceas the theologians mistakenly suppose, but on whether he could have avoided doing what he did in the circumstances: in a word, on whether the defendant has behaved reasonably. That neither side in the amendment debate seems capable of grasping this fundamental point is grim testimony to the continuing influence of sectarian moral teaching on Irish intellectual life. As I have been arguing, recognition of the fact that abortion is sometimes necessary, and that it is impossible to anticipate all of the circumstances in which it may be necessary, does not represent an abnegation of civilised standards. On the contrary, such recognition is one of the hallmarks of a civilised society. Consequently, there is no need to relegate abortion to the realm of the unspeakable, or to seize every opportunity to condemn it, as even the opponents of the amendment never tire of doing. Nor should the Catholic Church and its apologists be allowed to fix the parameters of the debate with loose talk about murdering babies. Indeed, that Irish intellectual opinion in general, and Irish legal opinion in particular, is in danger of capitulating to a group which cannot think straight about the fundamental issues affecting its case is perhaps the real scandal of contemporary Irish life. The amendment should be opposed not because abortion is already illegal, as its opponents continue to insist, but because there are many cases in which abortion is lawful, and because a society which turned its back on this fact would also be turning its back on the rule of law. However, in this as in other matters, we can thankfully rely on the courts to save us from ourselves. The existing law of abortion is much more flexible than even the most ardent opponents of the amendment have had the courage to contemplate, while the courts are certain to defend that flexibility for reasons which those who support the amendment have not had the wit to see.

Irish Law Times

(1992) 10 ILT 104: Article: The Protection of the Unborn in Three Legal Orders Part II : By James Kingston LL.B.(Dub), LL.M.(Lond), Research Assistant, Irish Centre for European Law, Trinity College, Dublin. and Anthony Whelan LL.B.(Dub), LL.M.(Cantab), Lecturer in Law, Trinity College, Dublin.
Article The Protection of the Unborn in Three Legal Orders Part II By James Kingston [ LL.B.(Dub), LL.M.(Lond), Research Assistant, Irish Centre for European Law, Trinity College, Dublin. ] and Anthony Whelan [ LL.B.(Dub), LL.M.(Cantab), Lecturer in Law, Trinity College, Dublin. ] This series of articles is designed to outline the law and jurisprudence, in the field of abortion and the protection of the unborn, of three legal orders which can lay claim to Irish allegiance: the domestic constitutional order; the international order, in which Ireland is bound by the European Convention on Human Rights and Fundamental Freedoms ; and the European Community order. In particular, it is hoped to assess whether conflicting demands are made on Ireland by these different legal systems. It is submitted in this article that EC law poses no threat to Ireland's substantive abortion law. Part I of the series examined the provisions of domestic Irish law and of the European Convention in relation to abortion in Ireland; travel outside the jurisdiction to obtain an abortion not lawfully available in Ireland; and provision in Ireland of information and assistance in respect of abortion. The potential conflict identified in that article (subject to the decision in the Open Door case of the Court of Human Rights) may be remedied by the forthcoming constitutional referendum. This article (Part II in the series) will discuss the likely impact of EC law on the domestic enforcement of the guarantees in Article 40.3.3 of the Constitution . Further articles are planned to deal with the provisions of EC law on travel and information in respect of the provision and receipt of services, and to assess the impact of the protocol to the Maastricht Treaty . European Community Law and Abortion Our task in this article is to examine the provisions and case-law of the EC legal order that may be of relevance to the protection of the right to life of the unborn within Ireland . It will be assumed for the sake of discussion that abortion is a service within the meaning of Article 60 of the Treaty of Rome . In SPUC v Grogan , [ [1991] 62 CMLR 849 . ] the Court of Justice held that termination of pregnancy, as lawfully practised in several Member States, is a medical activity which is normally provided for remuneration and may be carried out as part of a professional activity. [ At paragraph 18 . ] The remuneration point had not in fact been disputed by any party to the case, and may be a basis for future debate in this area, as it is in respect of State-funded education. For the moment, however, we must accept that provision of abortion is

an economic service. It therefore falls within the scope of EC law, and its guarantees in respect of freedom to provide and receive services. Argument will focus largely on the scope of that freedom, and the extent to which Member States may restrict its exercise in the service of objectives other than those of European economic integration. The effect of EC law is not presently felt in this area. There has been no attempt to harmonise the laws of EC Member States regulating abortion within their own domestic jurisdictions. Nonetheless, concern has been expressed in some quarters that pressure for such harmonisation might materialise in future. Binchy remarked (before the Supreme Court decision in X ) that Ireland was unique in the European Community in opposing legalised abortion, and that EC law might ordain the introduction of abortion into this country. [ W Binchy, Removing fear of injunctions under Treaty, The Irish Times , 25 February 1992 at p4. ] Were this fear wellfounded, it could provide a justification for the protocol to the Maastricht Treaty (preserving from the effects of EC law the application in Ireland of Article 40.3.3 of the Constitution ) even if rights to travel and information receive express constitutional protection. [ At the time of writing (9th April, 1992), the campaign to amend the protocol has been abandoned, due to opposition from other EC Member States, in favour of a domestic constitutional amendment in respect of travel and information. ] It is submitted, however, that there is no real prospect of the EC imposing on Ireland an abortion law not of her choosing. One preliminary remark can be made, that the domestic legal regimes of the other eleven States of the Community are far from uniform in respect of abortion. [ See generally S Flynn, Other EC States permit abortion, but rules vary widely, The Irish Times , 29 February 1992, at p5; and for more detailed analysis, J Gunning, Human IVF, embryo research, fetal tissue for research and treatment, and abortion: International Information (HMSO, 1990). ] Although the consequences of the X decision are not yet clear, it is likely that Ireland's law in this area may be comparable to the restrictive legal provisions of countries like Belgium, which are very different to those of States like the Netherlands or the United Kingdom. If pressure were to build up to achieve harmonisation in this area, it could be expected that there would be resistance from both the more liberal and the more conservative countries to the imposition of a common abortion regime. The Community does not have unlimited jurisdiction, and must be able to cite provisions of the constituting Treaties that authorise its acts. On what legal basis could such a harmonisation (or imposition) of abortion laws be sought or achieved? Arguably, it could be done either by EC legislation or through the European Court of Justice. Neither avenue appears a very likely one, as Curtin has pointed out. [ D Curtin, Confusion over effect of Maastricht protocol, The Irish Times , 2 March 1992, at p4. ] Legislative harmonisation might be attempted, it could be asserted, under Articles 100A , 118A , or 63 of the Treaty of Rome (as amended by the Single European Act ). Article 100A permits the Council to adopt measures for the approximation of national laws which have as their object the establishment and functioning of the internal market. Such measures can be adopted by qualified majority in the Council, which does raise the spectre of the imposition of unacceptable legislation on Ireland if she were outvoted. However, they must be proposed by the Commission, and are subject to the rather tortuous co-operation procedure in the European Parliament. [ See generally P Kapteyn & P Verloren van Themaat, Introduction to the Law of the European Communities (2nd ed, 1989) at pp2656. ] Thus, a considerable alliance would have to be mustered in order to force through such measures. Leaving aside the question of a veto, [ The question of whether the veto has survived in the Council is discussed in TC Hartley, The Foundations of European Community Law (1989) at pp1819. ] a reluctant Irish Government could invoke Article 100A(4) , which permits a Member State to continue to apply national provisions on grounds of major needs such as public morality, public policy, and the protection of the health and life of humans. [ On the scope of public policy, see discussion below. ] Having notified the Commission of these provisions, the Commission must confirm the

derogation so long as it is not arbitrarily discriminatory or a disguised restriction on EC trade. In the unlikely event of the Commission refusing such confirmation, Ireland could challenge any refusal in the Court of Justice under Article 173 EEC. Article 118A permits the Council, by qualified majority, on a Commis sion proposal and in cooperation with the Parliament, to adopt minimum requirements to encourage improvements, especially in the working environment, as regards the health and safety of workers. This provision provides the legal basis for Council Directive 89/391/EEC , Article 15 of which provides that particularly sensitive risk groups, including pregnant women, must be protected against the dangers which specifically affect them. This objective will be advanced further upon the adoption of the proposed Council Directive concerning the protection at work of pregnant women or women who have recently given birth (the draft Pregnancy Directive ). [ Submitted by the Commission on 18 September 1990; amended by the Commission on 19 October 1990 OJ No. C 281, 9 November 1990, at p3; further amended by the Commission on 8 January 1991 OJ No. C 25, 1 February 1991, at p9. The Council has adopted a common position on the latest proposals. There will be further discussion of this measure in the next article. ] This proposed measure sets protective standards for pregnant women and recent mothers in the workplace, in respect of arduous physical and mental work, night work, exposure to chemical or other agents, etc. , and provides for periods of maternity leave, the maintenance of employment rights during such leave, etc. Furthermore, a recent decision of the ECJ, in the Dekker Case , prohibits refusal of employment due to pregnancy as an instance of direct sex discrimination, contrary to Directive 76/207 on equal treatment. [ Dekker v Stichting Vormingscentrum voor Jonge Volwassen (VJV-Centrum) Plus [1991] IRLR 27 . ] This directive derives its authority from Article 235 EEC (discussed below). Thus, the trend in EC law in respect of the pregnant woman is to protect her from working conditions which might affect her health (or presumably that of the unborn child); and from employment discrimination which might be taken to provide a disincentive to continuing with her pregnancy. It is difficult to conceive of circumstances, given such protective measures, in which Member States could be required to make abortion available as an option to female workers either to protect them, qua workers, from discrimination (under Directive 76/207 , or some subsequent measure) or from work-related health and safety risks (under Article 118A ). Clearly, the emphasis is on the termination of discrimination, and of such workplace risks, rather than on the termination of the state (pregnancy) which exposes women to such hazards. It does not seem possible that the wording of Article 118A could support a contrary development, forcing States to liberalise abortion laws simply to allow (potential) working women more total control over their conditions of access to employment. Nor, it is submitted, does Article 118A permit a general extension of abortion provision (where it is not otherwise permitted) in cases of threats, however serious, to the health of the mother, as this would be only tangentially related to her status qua worker. Otherwise, Article 118A could be interpreted to give the Council a licence to intervene by qualified majority in all aspects of the regulation of health matters, and of the provision of health services, in the Member States a construction far wider than the States would be prepared to support. [ Witness the objections of the Member States to extensions of the concept of vocational training under Article 128 EEC to bring their systems of general education within the scope of Community law see J Currall, Education Rights under the EC Treaty in Mobility of People in the European Community (1989, ICEL, Dublin) 13. ] The limits of Article 118A may be further confirmed by catalogue in Article 118 of matters in the social field in which Member States are to seek to cooperate. In the health sphere, it is highly work-specific, referring only to prevention of occupational accidents and diseases, and occupational hygiene. It is worth remarking that the new Article 129 EEC in the Maastricht Treaty , on public health, contains no provision which might be thought to concern abortion, and expressly excludes any harmonisation of the laws of the Member States. It has been suggested to the authors that the EC might take an interest in abortion not as a general right but as a remedy for specific wrongs in the work-place or the market-place. Possible

examples would be an accident at work (e.g. exposure to radiation) affecting a pregnancy; or use of a drug or other product with similar adverse effects. The EC is competent to legislate in the sphere of employers' liability and product liability, but it is difficult to see how such competences could be employed to liberalise Irish abortion law. If the effect of the accident or product is gravely to endanger the mother's life, which danger can be avoided only by ending the pregnancy, Irish law was understood to permit this even before the X decision. If the effect is on the unborn child, in the form of mental or physical handicap, there seems little EC interest in distinguishing such cases from others of a similar nature simply because they were caused by activities subject at least in part to EC law. A claim for what is sometimes termed eugenic abortion can hardly be seen as a remedy, against either the employer/manufacturer or against the State, which the EC could require to be made available. This leaves only Article 63 as a basis of EC legislative action to provide for abortion throughout the Twelve. Article 63 permits the Council to adopt directives by qualified majority in order to implement the general programme for the abolition of restrictions on freedom to provide services within the Community. It might be argued that the following provision of the General Programme would justify Council action on abortion: [A]ny requirements imposed, pursuant to any provision laid down by law, regulation or administrative action or in consequence of any administrative practice, in respect of the provision of services are also to be regarded as restrictions where, although applicable irrespective of nationality, their effect is exclusively or principally to hinder the provision of services by foreign nationals. [ OJ, Sp Ed, 2nd series IX, at p3. The General Programme was adopted by the Council on 18th December 1961. ] Quite apart from the fact that Ireland's or any other State's abortion law can hardly be said to have as its exclusive or principal concern or effect the closing of the market to other EC operators, it is arguable that regulation by the domestic criminal law of the circumstances in which a service can be provided (as opposed to regulation of the means or standard required, or of the price charged, for its provision) does not constitute the sort of barrier against which the Community can act under this provision of the General Programme. [ This question depends on how the decisions in Blesgen , B & Q and Quietlynn (discussed below) are reconciled. ] In any event, the chapter of the Treaty on services is subject to Article 56 , which would permit such purportedly special treatment of foreign nationals on grounds, inter alia , of public policy (on the scope of which, see below). Admittedly, Article 56(2) provides that the Council may (by qualified majority) issue directives coordinating such national measures, but this process is designed simply to approximate the procedures followed in each Member State when invoking grounds of public policy, etc. , and to make adequate legal remedies available to EC nationals who wish to challenge such decisions. [ Preamble to Directive 64/221/EEC , OJ Sp Ed, 19634, at p117. ] Article 235 may also bear mention, while we consider the legislative powers of the Community. This allows the Council to take appropriate measures, on a proposal from the Commision, if action should prove necessary to attain one of the objectives of the Community, and the Treaty does not provide the necessary powers. An example of such measure is Directive 76/207 on equal treatment. In this regard, it is difficult to think of any of the objectives of the Community which could meaningfully be subserved by a measure imposing liberal abortion legislation on unwilling Member States. In any event, the Council must vote unanimously for acts adopted on the basis of Article 235 , so the Irish Government would have to be in league against its own people and Constitution in order to achieve such a result. If it is therefore unlikely (in the extreme) that valid legislative action could be taken by the Community to force changes in Ireland's domestic law on abortion, what of the Court of Justice in Luxembourg? It is the Court which has on many occasions served as the engine of integration in the Community, but it must be doubted whether it would force so drastic a harmonisation of value systems and criminal laws. Curtin puts the pivotal question as follows:

[C]ould the Irish rules which outlaw abortion entirely in Ireland [as it was thought at the time of writing] be held one day to be incompatible with the Treaty on the basis that they constituted an impermissible restriction on the freedom of, say, French and English doctors and nurses to provide abortion services in Ireland? [ Curtin, loc cit . ] It has already been suggested above that such domestic rules do not come within the directly applicable Treaty provisions prohibiting restrictions on the freedom to supply services (Articles 59 and 60 EEC). An analogy with free movement of goods is perhaps apposite. [ See e.g. the Opinion of Advocate General van Gerven in SPUC v Grogan [1991] CMLR 849 at 870. ] In Dassonville , the Court of Justice held that any national measure capable of hindering intraCommunity trade, directly or indirectly, actually or potentially, was a measure having equivalent effect to a quantitative restriction, and was therefore prohibited by Article 30 EEC. [ Procureur du Roi v Dassonville [1974] ECR 837 . See also the definition of prohibited cartel agreements in Voelk v Etablissements J Vervaecke [1969] ECR 295 . ] Nonetheless, certain rules on the circumstances in which goods could be traded or produced were deemed to fall outside this wide test, in Blesgen [ [1982] ECR 1211 . A restriction on the sales outlets of spirits was deemed to be incapable of affecting trade between Member States. ] and Oebel . [ [1981] ECR 1993 . A similar conclusion was reached in respect of a prohibition on night work in bakeries. ] The Court has been much criticised for its reasoning in such cases, [ See e.g. Kapteyn & Verloren van Themaat, op cit at pp3801. ] and such circumstantial rules should perhaps be deemed to be embraced by the Dassonville formula. [ Cf Quietlynn Ltd v Southend Borough Council [1990] CMLR 436 . ] They could then, however, be made subject to what has been termed the rule of reason, which has arisen from the Cassis de Dijon Case . [ Rewe-Zentrale AG v Bundersmonopolverwaltung fuer Branntwein [1979] ECR 649 . ] In the absence of Community regulation , the rule of reason permits the maintenance of non-discriminatory national rules, despite the hindrance they may pose to intra-Community trade, if they are necessary (and proportionate) for the achievement of a legitimate objective (a mandatory requirement). The rule of reason is enforced by the Court of Justice, to ensure that States do not abuse it. The class of mandatory requirements is not closed. Such a rule might be invoked by Ireland were it sought to rely on Article 30 EEC to gain permission for the importation of a purely abortofacient drug such as RU-486. It is also of interest because a similar line of authority has emerged in respect of the provision of services. In van Binsbergen , [ van Binsbergen v Bestuur van de bedrijfsvereniging voor de Metallnijverheid [1974] ECR 1299 . ] the Court of Justice ruled that specific requirements may be made of the provider of a service on grounds of public interest, provided such rules apply to everyone established in the territory of the Member State in which the service is provided and to the extent to which such requirements are necessary to ensure that the provider of the service does not escape the net of of these rules through being established in another Member State. In Webb , it was added that a ground of public interest (or the general good) can only be invoked in so far as that interest is not safeguarded by the provisions to which the provider of the service is subject in the Member State of his establishment. [ [1981] ECR 3305 at 3325. See also Commission v Germany [1986] ECR 3755 . ] Among the public interests that can be protected by non-discriminatory national measures are national or regional socio-cultural characteristics, [which], in the present state of Community law, is a matter for the Member States. [ Torfaen Borough Council v B & Q [1989] ECR 3851 at paragraph 14. ] There would appear to be little difficulty in establishing that for the Irish people, the right to life of the unborn was regarded as being of sufficient public interest to justify the operation of the rule of reason in respect of limits placed by the criminal law on the provision of abortion services in this jurisdiction. Such a conclusion is substantiated by the Opinion of Advocate General van Gerven in Grogan , who commented that the objective of preventing abortion inherent in the Eighth Amendment was a national policy choice of a moral or philosophical nature, whose insertion in the national Constitution demonstrated its fundamental nature, and was justified by Community law. [ [1991] CMLR 849 at 873. ] This is a public

interest not sufficiently safeguarded by the law of those EC countries whose abortion legislation is more liberal than that prevailing in Ireland (whatever may be its ultimate parameters in practice); nor can it be argued that restrictive national legislation is unnecessary or disproportionate to the fulfilment of the public interest in preventing abortion. Furthermore, whatever may be the changed circumstances of Ireland's abortion law after the X decision, it can be anticipated that it will be consistently and uniformly applied, and that repressive measures will be taken against the State's own nationals who act in breach of the law as well as against foreign professionals in the State. [ This requirement is imposed by the decision of the ECJ in Adoui & Cornouaille [1982] ECR 1665 . ] The Court of Justice has stressed that such public interest objectives should be compatible with the objectives of the Treaty ; however, in the light of the above discussion on EC legislation in the social field, it seems clear that restrictions on abortion, within the Member States' domestic jurisdictions, would not be felt to infringe on fundamental Community policies. Even were the rule of reason not to apply (possibly because of some perceived discriminatory effect of the Irish law), there exists express legal provision for a public policy derogation by Ireland from the provisions of the Treaty chapter on services, in Article 56 EEC. The operation of public policy derogations from the Treaty of Rome is very similar to that of the public interest element in the rule of reason. Again, fundamental interests of society must be at stake; the national measure must be necessary and proportionate. Claims for any such derogation will be interpreted strictly. [ Van Duyn v Home Office [1974] ECR 1337 . ] Any such claim is, however, subject to a further consideration, which may not apply to the rule of reason: the requirement of observance of the fundamental rights safeguarded by the Community. While doctrinal debate on the matter is not settled, it appears that the rule of reason is preemptive of the application of provisions like Articles 30 and 59 EEC, so that national measures which benefit from it do not fall within the scope of EC law at all (although the Court of Justice applies strictly the requirements of necessity, proportionality, etc. in order to police this boundary between the EC and national legal orders). However, measures in respect of which it is sought to plead public policy (under Articles 36 or 56 EEC) are prima facie within the area of application of the Treaties, and the derogation is one granted by EC law itself. Generally speaking, a legal authority is not competent to grant a derogation from fundamental rules which are binding upon it, and such is the case in respect of fundamental rights. Thus, in Cinetheque , a case involving the operation of the rule of reason (the protection of cultural interests), French rules on the marketing of videos were deemed by the Court of Justice to fall outside the ambit of application of Article 30 EEC. [ Cinetheque v Federation Nationale des Cinemas Francais [1985] ECR 2605 . ] As a result, the ECJ would not entertain argument on an alleged breach of freedom of expression: this Court has no power to examine the compatibility with the European Convention of national legislation which concerns, as in this case, an area which falls within the jurisdiction of the national legislator. In a later case, this approach was reformulated, to deny a Community power to scrutinise in such fashion national legislation lying outside the scope of Community law. [ Demirel v Stadt Schwaebisch Gmuend [1987] ECR 3719 . See also the decision of the ECJ in Grogan [1991] CMLR 849 . ] On the other hand, where the public policy derogation permitted by Article 56 is sought to be relied upon, the Court will engage in an examination of the national measure's compatibility with EC fundamental rights. [ See e.g . Elliniki Radiophonia Tileorasi v Dimotiki Etairia Pliroforissis , not yet reported ( ERT ). For a summary, see OJ No. c 201, 31st July 1991 at p5, which does not suggest any wider principle in the Court's ratio . ] (It is submitted, incidentally, that the Advocate General erred in attempting conflate public interest (under the rule of reason) and public policy (under Article 56 EEC) in Grogan .) [ [1991] CMLR 849 at 877. His arguments mirror those of Advocate General Sir Gordon Slynn in Cinetheque , which were not accepted by the Court. The distinction argued for above may also explain the apparent distinction between cases like Cinetheque and the decision of the Court of Justice in Rutili v Minister for the Interior [1975]

ECR 1219 see e.g. the discussion in A Clapham, A Human Rights Policy for the European Community (1990) 10 YEL 309 at pp3234. ] If this argument is correct, public policy claims have an additional hurdle to surmount; which gives an importance which it otherwise would not possess to the argument above, that the rule of reason does apply to restrictive national abortion laws. Even if it is not correct, and the operation of the rule of reason is also subject to EC-level fundamental rights protection, it is submitted that Ireland's abortion law cannot ultimately be affected. It is not thought that the Community's fundamental rights principles pose any threat to national policy choices to restrict abortion within the domestic jurisdiction especially when the national law includes a provision for the balancing of the right to life of the unborn against substantial risks (however assessed) to the life of the mother. The Community does not have its own authoritative charter of fundamental human rights. Instead, the Court of Justice developed a fundamental rights jurisdiction under Article 164 EEC to allay the fears of national courts that their domestic constitutional guarantees would be eroded by Community law. [ Internationale Handelsgesellschaft v Einfuhr und Vorratstelle Getreide [1970] ECR 1125 . ] It therefore relies heavily upon national constitutional law: In safeguarding rights, the Court is bound to draw inspiration from constitutional traditions common to the Member States, and it cannot therefore uphold measures which are incompatible with fundamental rights recognised and protected by the Constitutions of those States. [ Nold v Commission [1974] ECR 491 . ] In Hauer , [ Hauer v Land Rheinland-Pfalz [1979] ECR 3727 . ] for example, the property guarantees in the Constitutions of Ireland, Germany and Italy were drawn upon to formulate an EC standard of protection. The other chief source, and possibly now the dominant source, of inspiration in the Community legal order is the European Convention on Human Rights , which has been ratified by all of the Twelve. In Grogan , for example, the ECJ spoke of fundamental rights as laid down in particular in the European Convention on Human Rights . [ See also e.g. Rutili [1975] ECR 1219 . Other sources are not ignored, including non-authoritative Community sources: see e.g. the reference by the Advocate General in Grogan (at 865) to the European Parliament's Declaration of Fundamental Rights and Freedoms OJ No. C 120, 1989, at p51. ] At the same time, however, the Court does not consider itself to be bound by the Convention , which only supplies guidelines. [ See e.g. Royer [1976] ECR 497 ; Watson & Belman [1976] ECR 1185 . See generally A van Hamme, Human Rights and the Treaty of Rome in Human Rights in Europe (1992, ICEL, Dublin, forthcoming); M Dauses, The Protection of Fundamental Rights in the Community Legal Order (1989) ELR 398; H Schermers, The European Communities bound by Fundamental Human Rights (1990) CMLRev 255. ] The position is probably best expressed by Article F of the Maastricht Treaty on European Union : The Union shall respect fundamental rights as guaranteed by the European Convention for the protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States as general principles of Community law. As the discussion in Part I suggests, the European Convention on Human Rights does not appear to envisage a right to abortion (although it permits it in at least some circumstances, which is not at all the same thing). Thus, it is unlikely to provide the basis for intervention by the Court of Justice. Nor do the common constitutional traditions of the Twelve hold out such a prospect. For one thing, Ireland's own Constitution could hardly justify such a step; neither do the traditions in a number of other States, like Belgium, and in the western part of Germany, contain the sort of principle of self-determination which would grant women unrestricted access to abortion. [ See e.g. S Flynn, Irish MEPs voted on German case, The Irish Times , 29th February 1992, at p5; Gunning, op cit ; and the circumstances of the Bruggemann decision of the European Commission on Human Rights (discussed in Part I ). ] It can also be asserted that the fundamental rights guarantees in the EC legal order have historically had as their primary object the facilitation of supervision of EC or national measures

which, by virtue of the supremacy of EC law, are not subject to domestic constitutional norms. This is designed to prevent arbitrary administrative or legal action contrary to the traditions of European democracies and the rights they value. In a situation where a Member State seeks a derogation from Community law in order to protect constitutional rights (of the unborn child) not subject to similar protection in the EC sphere or in the other Member States, or on the content or primacy of which there is patent disagreement, the justification for the (very unlikely) imposition of a Community code of fundamental rights with a different content on that Member State would not exist. Thus, Clapham suggests that where national legislation derogates from an EC freedom in order to enhance human rights, derogations should be interpreted not strictly but widely. [ Clapham, op cit at p324. ] Of course, the position in the Community in respect of fundamental rights is not immutable it is still at a very early stage in its evolution. Two possible developments could lead to a significant change in circumstances. As part of its general policy of constitutionalising and federalising the EC legal order, the Court of Justice might declare that its principles of fundamental rights are binding on the Member States in all spheres, and not just within the ambit of Community law. Such a decision, equivalent to the US Supreme Court's decision in Gritwold v New York extending the Bill of Rights to bind the states, is very unlikely given the Community's present state of development, and the fact that its constitution (the Treaties) derives its unenumerated fundamental rights guarantees at least in part from the national constitutional traditions. A development in the jurisprudence on the European Convention on Human Rights establishing a generalised right to abortion could also induce a change of policy in the Court of Justice, but again, this does not appear to be an immediate likelihood. The perceived danger of abortion being foisted on Ireland by the Community must form part of the justification for the Maastricht protocol. Such a development is perhaps possible, but not at all probable. Thus, the potential conflict between the two legal orders, which the Maastricht protocol was designed to resolve should it arise, does not appear very threatening. Nonetheless, its inclusion in the EC Treaties should serve to reassure those not convinced by the above analysis that any decisions about Ireland's abortion law and the protection of the unborn will be taken in the domestic sphere. [ We are grateful to a number of colleagues in Trinity College, Dublin who discussed the contents of this paper at a seminar organised by Professor Nial Osborough; and in particular to Dr Yvonne Scannell, some of whose helpful suggestions have been incorporated in the text. Naturally, responsibility for all opinions, errors and infelicities of style remains our own. ]

Revisiting

Irish Journal of Family Law

(2005) 8(4) IJFL 19: Article: Revisiting Article 40.3.3. Part One: Third-Party Foetal Assault : Jennifer Schweppe
Article 40.3.3. Part One: Third-Party Foetal Assault Jennifer Schweppe Junior Lecturer in Law University of Limerick. Introduction Article 40.3.3 of the Constitution states:

The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate that right It is this questionhow the state by its laws defends and vindicates the right to life of the unborn childthat will be the subject of this and a companion article. 1 [ An abridged version of this article appeared in UCD Law Review (2003) 3. This article forms the first part of a two-part analysis of the boundaries of Art.40.3.3 of the Constitution. The second part will appear in the first issue of this journal in 2006. While the term unborn child might be controversial, indicating as it might a particular moral standpoint, it will be used in these articles. In the opinion of this author, any consideration of the ambit of Art. 40.3.3 demands the use of this term. ] In Attorney General v X , 2 [ [1992] 1 I.R. 1. ] McCarthy J. stated: I think it reasonable to hold that the People when enacting the [Eighth Amendment to the Constitution] were entitled to believe that legislation would be introduced so as to regulate the manner in which the right to life of the unborn and the mother could be reconciled. In the context of the eight years since the Amendment was adopted and the two years since Grogan's case, the failure to enact legislation is no longer just unfortunate; it is inexcusable. 3 [ ibid. , at 8182. ] Article 40.3.3 of the Constitution has always been interpreted from an anti-abortion perspectivethus, two constitutional referenda, a Supreme Court case in 1992, 4 [ Attorney General v X [1992] 1 I.R. 1. ] a High Court case in 1997, 5 [ A and B v The Eastern Health Board, Judge Mary Fahy and C and The Attorney General [1998] 1 I.R. 464. ] a Green Paper on Abortion 6 [ Green Paper on Abortion (Stationery Office, Dublin, 1999). ] and an All-Party, Oireachtas Committee Report 7 [ All Party Oireactas Committee on the Constitution, Fifth Progress ReportAbortion (Stationery Office, Dublin, 2000). ] have all dealt with the issue of abortion. In this article and its companion, however, I will attempt to consider Art.40.3.3 from a broader perspective: first, from the point of view of third-party foetal assault, and, secondly, by assessing mother-foetus conflicts, particularly with reference to in utero drug exposure. In so doing, reference to the reasoning employed and the decisions reached in cases from a number of common law jurisdictions, particularly the United Kingdom, will be made. Constitutional interpretation 8 [ For an in-depth discussion of the doctrines of constitutional interpretation, see Casey, Constitutional Law in Ireland 3rd. ed., (Round Hall Sweet and Maxwell, 2000), pp.376-385, and Hogan and Whyte, J.M Kelly: The Irish Constitution , 4th ed., (LexisNexis Butterworths, Dublin, 2003), pp.337. ] Prior to examining either of these issues, an initial question is whether the Constitution itself prohibits a broad interpretation of the right to life guarantee. A literal interpretation of Art.40.3.3 would suggest there is no such prohibition. The word abortion does not appear anywhere in the Article, and in guaranteeing the right to life of the unborn child, the Article is not prohibitive in nature, but is framed in protective language: the State is under an obligation to protect and vindicate the right to life of the unborn child. On a literal interpretation of the words, therefore, there is nothing prohibiting the legislature taking a broad view of the right to life of the unborn. Indeed, the historical approach to constitutional interpretation would bolster the view that a broad approach should be taken. In G. v An Bord Uchtala 9 [ [1980] I.R. 32. ] Walsh J. stated: Not only has the child born out of wedlock the natural right to have its welfare and health guarded no less well than that of a child born in lawful wedlock, but a fortiori it has the right to life itself and the right to be guarded against all threats directed to its existence whether before or after birth The right to life necessarily implies the right to be born, the right to preserve and defend (and have preserved and defended) that life It lies not in the power of the parent who has the primary natural rights and duties in respect of the child to exercise them in such a way as intentionally or by neglect to endanger the health or life of the child or to terminate its existence. 10 [ ibid , at 69. ]

Further, McCarthy J. in his dissenting judgment in Norris v The Attorney General 11 [ [1984] I.R. 36. ] relied on the Preamble to the Constitution, 12 [ The preamble to the Constitution states: 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, We, the people of Eire, Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial, Gratefully remembering their heroic and unremitting struggle to regain the rightful independence of our Nation, And seeking to promote the common good, with due observance of Prudence , Justice and Charity, so that the dignity and freedom of the individual may he assured, true social order attained, the unity of our country restored, and concord established with other nations, Do hereby adopt, enact, and give to ourselves this Constitution. ] which he believed: would appear to lean heavily against any view other than that the right to life of the unborn child is a sacred trust, to which all the organs of government must lend their support. 13 [ [1984] I.R.36 at 103. ] As O'Flaherty J. stated in Attorney General v X , 14 [ [1992] 1 I.R. 1. ] the Eighth Amendment to the Constitution did not bring about any fundamental change in our law but rather set it at a constitutional level. Thus, it would be quite justifiable to argue that nothing in the Constitution itself prohibits a broad interpretation of Art.40.3.3, and indeed, using a historical reading of the provision, a broad interpretation is in fact demanded. Third-party foetal assault Any assault on a person may give rise to two actions: first, the criminal prosecution; second, a private action. Thus, if a woman is assaulted, the person who assaulted her will not only be prosecuted for the act in the criminal courts 15 [ The prosecution would be taken under ss.2, 3 or 4 of the Non-Fatal Offences Against the Person Act 1997 . ] but can face a private action and be made to pay damages. 16 [ The prosecution would be for the tortious act of battery. ] The question then arises as to whether there is a related, or indeed independent, action where the woman is pregnant and the assault causes harm to both herself and her unborn child, or where the harm caused to the woman is negligible but the harm caused to the unborn child is substantial, or indeed in the rare circumstance where there is no harm caused to the woman herself but there is harm caused to the unborn child. It is this question that needs to be addressed in light of the constitutional provision protecting the right to life of the unborn child. The criminal action There are two major outcomes that can occur as a result of a prenatal injury: first, the child dies; secondly, the child is born alive but has sustained injuries of some description as a result of the assault. These two outcomes shall be examined in turn. Unborn child dies as a result of prenatal injuries If an unborn child dies as a result of injuries sustained while in utero , the action brought in criminal proceedings will be determined in accordance with when the life, in medical terms, ends. The position is relatively straightforward if the child is stillborn. As Smith and Hogan 17 [ Smith and Hogan, Criminal Law 11th ed., (Butterworths, London, 2005). ] point out, it was not, at common law, murder to kill a child in the wombit was instead a great misprision, or misdemeanour. 18 [ ibid. , p.430. ] This common law position has now been transposed into statute law through s.58 of the Offences Against the Person Act 1861 , which provides: Every woman, being with child, who, with intent to procure her own abortion shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether or not she be with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument with the like intent shall be guilty of felony The intention required for a conviction under this section is, very clearly, intention to procure a miscarriage. Charleton, McDermott and Bolger 19 [ Charleton, McDermott and Bolger, Criminal

Law (Butterworths, Dublin, 1999). ] agree that for a prosecution under s.58 to succeed, the accused must intend to cause a miscarriage in the other. 20 [ ibid. , p.521. ] What, then, of our defendant who assaults the pregnant women, not with the intention to procure a miscarriage, but with an intention to cause injury to the woman herself? The case of R. v Spicer 21 [ [1955] Crim L.R. 772. ] neatly illustrates this point. The accused in the case argued that he did not intend to procure a miscarriage, but instead, knowing that the woman was pregnant and wished to have an abortion, inserted two fingers into the woman's vagina to satisfy his curiosity and give the woman confidence. Unsurprisingly perhaps, the jury found that the accused had the requisite intention, and he was accordingly convicted under s.58. Charleton, McDermott and Bolger 22 [ Charleton, McDermott and Bolger, Criminal Law, op. cit. ] are of the opinion that as a result of the Eighth Amendment to the Constitution: the rule of common law which confines the protection of law, through the offences of murder and manslaughter to children fully extruded from the womb is abrogated. Equal treatment of unborn and born life is explicit in the Constitution 23 [ ibid., p. 517. ] In 1680, Sir Edward Coke gave the following definition of murder: Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any country of the realm any reasonable creature in rerum natura under the King's peace [so as the party wounded or hurt etc. die of the wound or hurt etc. within a year and a day after the same]. 24 [ ibid. , pp.500501. ] The requirement that a person be in rerum natura has been interpreted as a requirement that the person be born alive. The case of R. v Hutty 25 [ [1953] V.L.R. 338. ] stated the modern common law position as: A baby is fully and completely born when it is completely delivered from the body of its mother and it has a separate and independent existence in the sense that it does derive its power of living from its mother. It is not material that the child may still be attached to its mother by the umbilical cord But it is required that the child should have an existence separate from and independent of its mother, and that occurs when the child is fully extruded from its mother's body and is living by virtue of the functioning of its own organs. 26 [ ibid. , at 339. ] A clear problem arises here, one highlighted by the Criminal Law Revision Committee, 27 [ Criminal Law Revision Committee, Fourteenth Report Offences Against the Person (H.M.S.O., London, March 1980). ] who stated that as s.58 of the Offences Against the Person Act 1861 does not apply to the killing of a foetus in the process of being born, if the jury were not sure that the killing had occurred after birth they would not return a verdict of murder, yet once the process of birth had started section 58 if the Act of 1861 was no longer applicable. 28 [ ibid. , p.15. ] In light of this lacuna, the Infant Life (Preservation) Act 1929 was introduced in the United Kingdom. The Act provides that: any person who, with intent to destroy the life of a child capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother, shall be guilty of an offence of child destruction A constitutional crime? There is no Act comparable to the Infant Life (Preservation) Act 1929 in Irish law, which means that, on the face of it, it is not a crime to kill a child in the process of being born in Ireland. Charleton, McDermott and Bolger are of the opinion that the Eighth Amendment provides for such an offence, 29 [ Charleton, McDermott and Bolger Criminal Law, op. cit. , p.521. ] although whether the courts will take the same view remains to be seen. Two issues arise in this regard. The first relates to the separation or powers. Article 15.2.1 of the Constitution vests the sole and exclusive law-making power in the Oireachtas. Thus, since 1937, the courts have been constitutionally incapable of creating new crimes. The other issue relates to non-retroactivity, an element of the principle of legality. McAuley and McCutcheon 30 [ McAuley and McCutcheon, Criminal Liability (Round Hall Sweet & Maxwell, Dublin, 2000). ] define this principle simply:

a person should not be tried or convicted in respect of conduct that was not criminal when he engaged in it. 31 [ ibid. , p.43. ] If our hypothetical defendant in fact killed a child in the process of being born and was prosecuted for it, the court, were it to find that this was in fact a breach of Art.40.3.3, would have two hurdles. First, they would have to seize jurisdiction from the Oireachtas and create a constitutional crime which, arguably, would be a breach of the doctrine of the separation of powers. Secondly, they would then have to overcome the hurdle of non-retroactivity. Simply put, if our hypothetical defendant were to be prosecuted for a breach of Art.40.3.3 rather than any existing crime, he could quite feasibly argue that to convict him for this constitutional crime would be a breach of the principal of legality. The remedy for a breach of a constitutional right is generally a traditional constitutional remedy, such as damages or an injunction, rather than a term of imprisonment or any other criminal sentence. In Attorney General v Open Door Counselling , 32 [ [1988] I.R. 593. ] Hamilton P. was of the opinion that the courts, in certain circumstances, could override the principles of nonretroactivity and the separation of powers where it was necessary to protect constitutional rights. He stated: Though ordinarily it is no function of the courts to extend the criminal law, it may well be that where there is a breach of or interference with a fundamental personal or human right, they may be under a constitutional obligation so to do in order to respect, and, as far as practicable, to defend and vindicate that right. Indeed, as regards Art.40.3.3, he went on to state: It seems to me that, where there is a breach of or interference with a fundamental and personal and human right, such as the right to life of the unborn, which is acknowledged by the Constitution, and which the courts are under a constitutional obligation to defend and vindicate, it would be scandalous if the legitimacy or criminality of such breach or interference could, in the words of the late Kingsmill Moore J. in Mayo-Perrott v Mayo-Perron [1958] IR 336 at p. 350 of the report be decided by a flight over St. George's Channel because as stated by Walsh J. in Meskell v C.I.E. [1973] IR 121 at p. 134: To infringe another's constitutional rights is unlawful as constituting a violation of the fundamental law of the State. This statement was, however, obiter , and it remains to be seen whether, as Charleton, McDermott and Bolger are so certain, 33 [ Charleton, McDermott and Bolger, Criminal Law, op. cit. , p.521. ] a court would take that step of declaring an Act to be a constitutional crime. Child is born alive, but suffers harm as a result of prenatal injuries Where harm is caused to the unborn child in utero , but the child is born alive, the question then arises as to what crime an accused person might be guilty. The most recent judicial statement on this question came from the House of Lords in 1997, by way of a reference by the Attorney General to the court. 34 [ Attorney-General's Reference (No. 3 of 1994) [1997] 3 W.L.R. 421. ] The facts of the case are reasonably straightforward. The respondent, the father of the child, stabbed the mother in the abdomen, knowing her to be pregnant. She received medical attention, but her unborn child was thought not to be injured. Just over two weeks later, she went into early labour and gave birth to a grossly premature baby who survived for 121 days. On the death of the child, the respondent, who had previously pleaded guilty to wounding the woman with intent to cause her grievous bodily harm, was charged with murder. The trial judge directed that the accused be acquitted, and the Attorney General referred the question to the Court of Appeal as to whether the crimes of murder or manslaughter could have been committed in this situation. The Court of Appeal held that through the doctrine of transferred malice the intention to injure the mother could be transferred to the unborn. The House of Lords rejected this reasoning. Lord Mustill said: The mother and the foetus were two distinct organisms living symbiotically, not a single organism with two aspects. The mother's leg was a part of the mother; the foetus was not. 35 [ ibid. , at 429. ] Lord Mustill went on to explain that the foetus could not be the victim of

murder, as to allow this would create a new offence, which is not the place of the courts. 36 [ ibid. , at 429435. ] The House of Lords instead ruled that the assault in question could result in a charge of constructive manslaughter, with Lord Mustill saying: there was the possibility that the unlawful attack on the mother was a threat not only to the foetus before birth, but also to the live child when ultimately born. 37 [ ibid., at 436. ] Lord Hope discussed the doctrine of manslaughter in more detail. He summarised the position, saying: The intention which must be discovered is an intention to do an act which is unlawful and dangerous. In this case, the act which had to be shown to be an unlawful and dangerous act was the stabbing of the child's mother As B. [the respondent] intended to commit that act, all the ingredients for mens rea in regard to the crime of manslaughter were established, irrespective of who was the ultimate victim of it. The fact that the child whom the mother was carrying at the time was born alive and then died as a result of the stabbing is all that was needed for the offence of manslaughter when actus reus for that crime was completed by the child's death. 38 [ ibid. , at 446. ] The House of Lords were clearly of the opinion that the proper charge in this case was manslaughter rather than murder. As Smith and Hogan 39 [ Smith and Hogan, Criminal Law, op. cit. ] point out, however: the act was not merely unlawful and dangerous it was done with the mem rea of murder and, as it is acknowledged that is caused the death of the child, it is hard to see why it is not murder. 40 [ ibid. , at 432. ] It remains to be seen what approach an Irish court might take to this question, particularly in light of the fact that the unborn child has a constitutional right to life. Whether a conviction of murder, manslaughter or assault would be upheld remains to be seen. If the child does not die as a result of the prenatal injures, but suffers harm nonetheless, the question then arises whether there would be a separate action for the assault to the child as well as that to the mother. The Non-Fatal Offences Against the Person Act 1997 eliminated the common law distinction between assault and battery and put in their place three separate offences of assault. Section 2 of the Act provides for simple assault: 1. (1) A Person shall be guilty of the offence of assault who without lawful excuse, intentionally or recklessly1. (a) directly or indirectly applies force to or causes an impact on the body of another, without the consent of another. The more serious offence of assault causing harm is provided for in s.3: A person who assaults another causing him or her harm shall be guilty of an offence. Section 4 goes on to provide for the offence of assault causing serious harm: A person who intentionally or recklessly causes erious harm to another shall be guilty of an offence. Section 2 is a summary offence, s.3 a hybrid offence, and s.4 is indictable. What happens then if, for example, the assault to the mother was a simple s.2 assault, but that to the child was closer in nature to the more serious s.4 offence? While it would be unusual to prosecute a person for causing injury to the unborn child, clearly it is conceivable that the need for such an offence could arise. It seems that it is a matter of interpretation: does the phrase on the body of another include the unborn? This is unclear. What is clear, however, is that where there is no real harm caused to the mother but the unborn is severely injured, there is a residual action that needs to be addressed and, arguably, is not being addressed by the legislation at the moment. Conclusions as to the criminal action The situation in regards to a criminal action remains lamentably unclear. Arguably, if a doctor truly believed that a patient required her pregnancy to be terminated and carried out that

termination, he could still be charged under the 1861 Act . If, however, an individual who wished to terminate the existence of the child killed it while it was in the process of being born, they could quite conceivably walk free, were the courts unwilling to engage in judicial activism. This incoherency in the law is inexcusable. In America, the Unborn Victims of Violence Act 2004 was recently passed by the Federal Government. The 2004 Act amends Title 18 of the United States Code by inserting a new Chapter 90A governing offences against the unborn. While the Act applies only to federal crimes, it is useful nonetheless as an example of legislation that provides for a comprehensive redress to the issues raised in this article, while also avoiding the problem of holding mothers accountable for injuries caused to their children. The new s.1841 makes it a separate offence for someone to engage in conduct, proscribed under other sections of the Code, which causes the death of, or bodily injury to, a child in utero. 41 [ s.2(a)(1)of the Unborn Victims of Violence Act. ] For a person to be convicted under the section, it is not necessary for them to have known that the woman was pregnant, 42 [ s.2(a)(2)(B)(i). ] or that they intended to cause the death of, or bodily injury to, the unborn child. 43 [ s.2(a)(2)(B)(ii). ] It also provides that if the person engaging in the conduct intentionally kills or attempts to kill the unborn child, they shall be charged with murder, or attempted murder. 44 [ s.2(a)(2)(C). ] The Act also provides that no charge can be brought under the Act for any act done with the consent of the mother 45 [ s.2(c)(2). ] (thereby excluding abortion from the ambit of the Act), nor can the woman herself be prosecuted with respect to her unborn child. 46 [ s.2(c)(3). ] While Art.40.3.3 of the Constitution is currently interpreted solely as anti-abortion, it is arguable that Acts such as the Unborn Victims of Violence Act 2004 and the Infant Life (Preservation) Act 1929 need to be considered by the legislature in order for it to fulfil its constitutional obligations to, by its laws, protect and vindicate the right to life of the unborn child. The tortious action The earliest written legal code, the Code of Hammurabi, from 1,800 BC provided for the right of the father to be compensated for the loss of his child. 47 [ Reiman, Abortion and the Ways we Value Human Life , (Rowman and Littlefield Publishers, MD, 1999), pp.1523. ] Article 20 and 210 of the Code provide that: If a seignior struck a[nother] seignior's daughter and has caused her to have a miscarriage, he shall pay ten shekels of silver for her foetus. If that woman has died, they shall put his daughter to death. 48 [ ibid. ] This position did not carry through to the common law, however, and it was only recently that the courts and legislature have recognised that loss of the life of the unborn child, or damage thereto, gives rise to a civil action. Child is born alive but suffers injuries as a result of prenatal injuries In Walker v Great Northern Railway Co , 49 [ [1891] 28 L.R., I.R. 69. ] the unborn child that a pregnant woman on a train was carrying was, due to the negligence of an employee of the railway company, born permanently injured. Deciding the matter on the basis of contract law, the court said that because the railway company did not know of the existence of the child, or the condition of the mother, they did not owe the child a duty of care. O'Brien J. stated: In law, in reason, in the common language of mankind, in the dispensation of nature, in the bond of physical union, and the instinct of duty and solicitude, in which the continuance of the world depends, a woman is the common carrier of her unborn child, and not a railway company. The Canadian courts considered the issue in the case of Montreal Tramways v Leveille. 50 [ [1933] 4 D.L.R. 337. ] The case was decided based on the civil law system of that country, but has been cited in a number of common law decisions and is of some use in analysing the area. The child in this case was born with clubfeet as a result of the negligence of the Railway Company. In this oft-quoted passage, Lamont J. explained why there was a need for this action: If a child after birth has no right of action for pre-natal injuries, we have a wrong inflicted for which there is no remedy, for, although the father may be entitled to compensation for the loss he has incurred and the mother for what she has suffered, yet there is a residuum of injury for which

compensation cannot be had save at the suit of the child. If a right of action be denied to the child it will be compelled, without any fault on its part, to go through life carrying the seal of another's fault and bearing a very heavy burden of infirmity and inconvenience without any compensation therefor. To my mind it is but natural justice that a child, if born alive and viable, should be allowed to maintain an action in the courts for injuries wrongfully committed upon its person while in the womb of its mother. 51 [ ibid. , at 345 ] Lamont J. was of the opinion that as medical advances made it easier to show the causal link between the negligent act and the damage caused, the argument that to allow the action would open wide the door to extravagance of testimony and perjury and fraud was negated. Cannon J. 52 [ Cannon J. gave his judgment in French, and the translation of his judgment in Watt v Rama [1972] VR 353 is referred to. ] was of the opinion that the cause of action arose when the damage was suffered and not when the wrongful act was committed. He held that it was not a question of the right the child had after conception, but of the right to compensation which commences when she was born. It was not until 1972 that the question was raised in a common law jurisdiction, when both the Canadian and the Australian courts gave judgments on the issue. In that year, the Supreme Court of Victoria in Australia decided the case of Watt v Rama. 53 [ [1972] VR 353. ] Winneke C.J. stated at the outset that the question to be decided in the case was: Whether, in the present case, which arises out of the use by the defendant of a motor car on a public highway, the circumstances produced such a relationship between the defendant and the infant plaintiff as to impose a duty on the defendant in relation to the plaintiff. He was of the opinion that the answer to the question lay in the basic principles of the tort of negligence, and whether the defendant owed the plaintiff a duty of care. Evaluating the relationship of the plaintiff and the defendant in the instant case, Winneke C.J. was of the opinion that it was reasonably foreseeable that any act or omission by the defendant would cause harm to a woman and, if she were pregnant, to her unborn child. These circumstances constituted a potential relationship capable of imposing a duty on the defendant in relation to the child if and when born. The child was born with injuries arising from the negligent act of the defendant but: as the child could not in the very nature of things acquire rights correlative to a duty until it became by birth a living person, and as it was not until then that it could sustain injuries as a living person, it was, we think, at that stage that the duty arising out of the relationship was attached to the defendant, and it was at that stage that the defendant was in breach of the duty to take reasonable care to avoid injury to the child. The fact that the damage was caused to the plaintiff when still en ventre sa mere was merely an evidentiary fact relevant to the issue of causation. Gillard J. was of the opinion that the fact that the victim was not in existence at the time of the careless act was immaterial. He held that there were no reasons why a newly born infant should be allowed to recover for injuries sustained through the negligent act of a third party, while a child en ventre sa mere , whose mother is being driven to the labour ward to deliver such child, should be denied recovery. An important insight into the mindset of Gillard J. is to be found in his statement that The infant plaintiff was, on the assumed facts, injured subsequently on birth as a result of the defendant's original fault. Because the damage occurred at the time of birth and it had been shown that the defendant owed the plaintiff a duty of care, the breach of that duty meant that an action was formed. The judge avoided the complex question as to when the action arose by assuming that the damage was only caused at birth, a time at which the plaintiff was a persona juridica and capable of bringing an action. Summing up his opinion, he stated: the tort of negligence is only complete on proof of damnum which in this case is assumed to be disability at birth. Working back from this damnum, both temporally and causatively, it must be assumed the disabilities at birth and since were caused by the defendant's fault in a road accident.

As it had already been established that the defendant owed the plaintiff a duty of care, the action was proven. In the Canadian decision of Duval v Segitin , 54 [ [1972] 26 D.L.R.3d 418. ] the plaintiff was a child who was born with permanent physical and mental handicaps. In this case, the plaintiff's mother was involved in a car accident when the plaintiff was still en ventre sa mere. As the question had never been raised in the jurisdiction prior to that, the court decided the matter on first principles. Addressing the question as to whether the plaintiff could recover in this case, Fraser J. looked to the case of M'Alister (or Donoghue) v Stevenson , 55 [ [1932] A.C. 562. ] which defined the duty of care in negligence actions. He quoted Lord Atkin's famous dictum in which he laid out the neighbour principle 56 [ The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer's question, who is my neighbour receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be liable to injure your neighbour. Who then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question. ] and mentioned that there are three things necessary to sustain an action in negligence: a duty of care, breach of that duty and damage. In assessing whether the defendant owed the plaintiff a duty of care, he first noted that a duty was plainly owed to the mother, and went on to say that: Procreation is normal and necessary for the preservation of the race. If a driver drives on a highway without due care for other users it is foreseeable that some of the other users of the highway will be pregnant women and that a child en ventre sa mere may be injured. Such a child therefore falls well within the area of potential danger which the driver is required to foresee and take reasonable care to avoid. 57 [ (1972) 26 D.L.R. 3d 419, 433. ] Fraser J. was of the opinion that it was not necessary to consider whether the unborn child was a person in law, or at what point it became a person; the only other requirement to establish an action in negligence is that there is damage sustained by the complainant. He had noted earlier that the negligent act and the damage do not need to be contemporaneous, a point which has been reiterated in later cases. He came to the conclusion that, while the child was en ventre sa mere at the time of the accident, the damages sued for are the damages suffered by the plaintiff since birth and which she will continue to suffer as a result of that injury. He also referred to Watt v Rama 58 [ [1972] VR 353. ] and noted that the members of the court in that case held that the cause of action was not complete until after the birth of the plaintiff when the damages were suffered. It was not until the 1993 cases of Burton v Islington and De Martell v Merton and Sutton Health Authority 59 [ [1993] Q.B. 204. The cases started out as two separate actions, but were heard together in the Court of Appeal. ] that the matter was addressed by the English court. In both cases, the injuries sustained by the plaintiffs were a result of negligence on the part of medical staff in their treatment of the plaintiffs' mothers when they were en ventre sa mere. What is interesting about the judgments of the trial judges is that they both considered Watt v Rama ,but approved different judgments. In Burton v Islington , 60 [ [1991] 1 Q.B. 638. ] Potts J. approved Winneke C.J., while Phillips J. in De Martell v Merton and Sutton Health Authority 61 [ [1993] Q.B.206. ] preferred the approach of Gillard J. Both judges ruled that the plaintiffs should succeed, and the defendants appealed. Dillon L.J. gave the judgment in the Court of Appeal. At the outset, he lay out the elements required to sustain an action in negligence, namely, a duty of care, breach of that duty and damage sustained as a result of that negligent act. Like Winneke J., he noted that the negligent act and the damage sustained need not be contemporaneous. He then addressed the question of whether a foetus can be owed a duty of care. At the outset, he noted that in English law, a foetus, while a foetus, does not enjoy any independent legal personality, referring to Paton v British

Pregnancy Advisory Service Trustees 62 [ [1979] I Q.B. 276. ] , In Re F (in utero) 63 [ [1988] Fam. 122. ] and C v S , 64 [ [1988] Q.B. 135. ] cases that decided, among other things, that a foetus, while a foetus, cannot sue and cannot be made a ward of court. He was of the opinion that it would be open to the court to apply the civil law maxim as enunciated by Lamont J. in Montreal Tramways v Leveille 65 [ [1933] 4 D.L.R. 337. ] that treats an unborn child as born when it is in the interest of the unborn child to do so. However, Dillon J. noted that there had been a number of developments in common law jurisdictions since that judgment that meant that reliance does not need to be placed on this civil law fiction. He discussed the judgments of Winneke C.J. and Gillard J. in Watt v Rama , noting that while the trial judges had differing opinions as to what approach was correct, there were no substantial differences in their approaches. In Duty of care to Unborn Child, 66 [ D. Brahams, (1990) The Lancet 336. ] Brahams argues that the case of McKay v Essex Health Authority 67 [ [1982] Q.B. 1166. ] sheds some light on the outcome of Burton. McKay was a wrongful birth case, where a doctor had failed to diagnose maternal rubella which resulted in the plaintiff being born severely handicapped. Ackner J. stated: The self same duty is relied upon for pre-natal injuries as would be relied upon postnatally, if there was a failure to give proper treatment after the child had been born. The

embryo or foetus is in a comparable position to the child and adult which it may ultimately become. According to Brahams, although the court rejected the claim for
wrongful birth as against public policy, it seems to have accepted that a duty of care does lie towards the unborn child at common law. It is only, as Potts J. said, when the plaintiff becomes defined in law that it can maintain the action. The final words of Dillon J. are of considerable interest. Counsel for the defendants had pointed out the dangers of allowing the action, arguing that it would open the floodgates to frivolous and unjustified actions, pointing to case law in the United States where children can sue for damages for injuries allegedly caused by the negligence of the mother before the child's birth. In reply to this point, Dillon J. did not refuse to entertain the possibility of such an action, saying instead: If the floodgates prove to be open too wide no doubt Parliament can intervene. But I doubt very much whether there are any claims now outstanding which are not statute-barred, in respect of children stillborn before 22 July 1976 or any children born before that date, who are locked in litigation with their mothers over whether the mother tasted alcohol or followed a diet other than that recommended by the current phase of medical opinion during pregnancy. 68 [ The date cited is the date of the commencement of the Congenital Disabilities Act 1976 ] The issue has arisen in the Irish context too, in Dunne v National Maternity Hospital. 69 [ [1989] I.L.R.M. 735. ] Although there was not much debate in this case as to the possibility of a child making a claim for injuries received in utero as a result of the negligence of others, it is important to note that there was no arguing over the validity of the claim on the basis of when the harm was caused. The case concerned an action brought on behalf of an infant plaintiff who was born with irreversible brain damage, as a result of which he was left as a spastic quadriplegic with major mental handicap. The judgment in the High Court was essentially concerned with whether the trial judge was correct in law to leave challenged issues to the jury, and the test on which medical negligence actions should be based. The challenged findings of fact all concerned brain damage suffered by the infant plaintiff while he was in the womb of his mother , and relate[d] to the timing and cause of such damage and to his probable foetal condition before and after the suffering of the actual injury. 70 [ ibid. , at 744. ] The court made absolutely no distinction between negligence directed towards the born or the unborn. From analysing these judgments, it is clear that, under common law, the unborn child still does not have an independent legal personality. However, if a foetus is harmed in any way through the negligence of another, and is born alive with injuries that are a direct result of that negligent act, the plaintiff child will succeed in an action against the wrongdoer. While the outcome of the common law cases is sound, it is argued that the reasoning behind them is somewhat contrived.

Advances in medical science, particularly screening tests such as ultra-sound examinations and amniocentesis, mean that we can now establish for certainty whether an unborn child has suffered any damage while in utero , or if it is in any way disabled. In some countries, if the child is severely disabled, this test can justify an abortion if the child will not have a meaningful existence. 71 [ For example, in Germany and Canada if it is shown that the child will be born extremely disabled, it will justify an abortion under the relevant legislation. ] We no longer need to wait for the birth of a child to prove that he or she was harmed by a third party. The proposition that damage is only incurred at birth is medically and logically inaccurate. As Kennedy and Grubb contend 72 [ Kennedy and Grubb, Medical LawText with Materials , 3rd ed., (Butterworths, London, 2000) ] this attempt to manoeuvre the common law's building blocks of duty, breach and damage seem at best contrived and at worst, flawed. 73 [ ibid. , p. 1503. ] They also argue that the judges in these cases failed to establish the true nature of the injury caused, which they maintain was purely economic. They explain that the loss was incurred as a result of the child's disability, and that the disability itself is not an injury caused by the doctor unless the child was a legal person (or possibly deemed to be so) at the time of the prenatal occurrence. (My emphasis). This argument is sound. It is universally accepted that we are susceptible to harm while in the womb, and that any harm sustained by a foetus will have long-lasting effects on the child throughout life. As was said in the case of O'Neill v Morse , 74 [ 385 Mich. 130 , taken from Rand Eric Kruger, Wrongful death and the Unborn: An examination of recovery after Roe v Wade (1973) 13 J.F.L. 99. ] the phenomenon of birth is not the beginning of life; it

is merely a change in the form of life. It can be medically proven that a foetus has
suffered harm in utero , or that the foetus has some genetic disability. Indeed, in some instances, this disability can be remedied. 75 [ In Life Before BirthThe Moral and Legal Status of Embryos and Fetuses (Oxford University Press, Oxford, 1992), p.4, B. Steinbock refers to a surgical team at the University of California who performed what she refers to as an unprecedented operation which successfully corrected a diaphragmatic hernia in a foetus who would otherwise have probably died. ] To claim that damage is incurred only when the child is born is to engage not only in a legal fiction but in a form of legal fantasy whereby harsh issues such as viability, foetal rights and foetal personhood are avoided. In any event, the situation under discussion is now covered by s.58 of the Civil Liability Act 1961 . It reads, For the avoidance of doubt it is hereby declared that the law relating to wrongs shall apply to an unborn child for his protection in like manner as if the child were born, provided that the child is subsequently born alive. 76 [ Wrong is defined in s.2 as a tort, breach of contract or breach of trust, whether the act is committed by the person to whom the wrong is attributed or by one for whose acts he is responsible, and whether or not the act is also a crime, and whether or not the wrong is intentional. ] McMahon and Binchy 77 [ McMahon and Binchy, The Irish Law of Torts , 2nd ed., (Butterworths, Dublin, 1990). ] note that it is not necessary that the child be viable, or capable of sustaining meaningful life, at birth, adding that postnatal birth of even momentary duration will suffice. 78 [ ibid. , p.605. The authors do not refer to the issue in the third edition of their text. ] Unborn child dies as a result of prenatal injuries While the law provides for protection and relief for damages for a child who sustains injuries in the womb and is born alive with those injuries, the same relief is not provided to a child who is stillborn. The question lies open as to whether the law in Ireland relating to injuries received in utero lives up to the demands of the constitutional protection afforded to the foetus under Art.40.3.3. McMahon and Binchy 79 [ McMahon and Binchy The Irish Law of Torts, op. cit. 80 ibid. , p.605. ] note that as s.58 of the Civil Liability Act 1961 provides for the recovery of damages where injury is caused and the child is born alive, the terms of [the section] might seem to foreclose

any debate. 80 [ ibid. p.605. ] However, they also note that it could be argued that the section is merely declaratory in nature, and that it should not be interpreted as excluding the possibility of the law's developing beyond the position then prevailing. 81 [ ibid. ] This view notwithstanding, it is important to evaluate the current situation, particularly if the former view is in fact the more accurate assessment of s.58. It would seem that the reason this action is not available in other common law countries is because of the way in which the law in this area evolved. In all the cases which first allowed for an actioneither civil or criminalreference was made to the succession cases. These cases allowed an unborn child to receive under a will if the child was subsequently born alive. Drawing an analogy with these cases, and allowing for recovery when the child is born alive, the courts seem to agree with this idea that the rights float while the child is en ventre sa mere and crystallise on birth. On birth, the damage is caused and it is then that the action is formed. Kruger explained the damage element: It is a well established proposition in the law of torts that if a chain of causation can be established, the tort occurs when the harm occurs. Court [sic] which recognise the viability for prenatal injury, yet deny the cause of action for wrongful death of a stillborn fetus, conclude that the harm occurs not in the fetal trauma, but rather, in the suffering and accompanying medical expenses caused by the tort victims continuing disability. Under this reasoning, there is damage and hence a cause of action, only after birth. 82 [ Kruger, Wrongful death and the Unborn: An examination of recovery after Roe v Wade (1973), op. cit. ] Kruger highlights the incoherence of the law by referring to two cases: Hord v National Homeopathic Hospital 83 [ 102 F. Supp. 792. ] where parents of a deceased three-day-old child were awarded $17,000 in pecuniary damages for his death arising from a delivery room accident, and Rice v Rizk 84 [ 453 SW 2d 732 ] in which the parents were denied pecuniary damages where an obstetrician negligently caused the death of their foetal child just before it would have been born. While on the face of it there is no action for the loss of a child before it is born, it seems that courts will take quite a pragmatic approach to the problem. In Bagley v North Herts. Health Authority 85 [ [1986] NLJ Law Rep. 1014 ] the plaintiff gave birth to a stillborn child as a result of the admitted negligence of hospital staff. The question Simon Brown J. had to address was whether the plaintiff was entitled to compensatory damages. The claim came under a number of heads, namely, loss of satisfaction in bringing her pregnancy to a successful conclusion, the physical loss of the child, and physical illness and suffering caused by the loss of the child. The court considered the claim of the plaintiff under the Fatal Accidents Act 1976. 86 [ Similar Irish legislation is to be found in the Civil Liability Act 1961 (as amended by the Civil Liability (Amendment) Act 1996). ] The judge stated that the Act only applied to a limited class of claimants, and in specific circumstances. 87 [ [1986] NLJ Law Rep 1014 at 1015. ] He was of the opinion that while the Act could benefit parents in certain cases, it did so only when a live child is tortiously killed. He concluded that there was a critical distinction between killing a live child and what the hospital did in this case, which was causing the child to be born dead. In his view that critical distinction precludes any claim under the statute. 88 [ ibid. ] However, he did find that the plaintiff was entitled to the sum of 3,500 (to which she would have been entitled under the statute were her child born alive and then tortiously allowed to die) for heads one and two of the claim. Somewhat ingeniously, he also found that the plaintiff should be awarded general damages to the sum of 18,000. Evidence was put forward by the plaintiff that, due to the physical loss of the child, she had decided not to attempt another pregnancy, as if it were unsuccessful she would not be able to recover. The judge held that because of this, she was entitled to damages for being thwarted in her ambition of completing her family by adding to it a second child. 89 [ ibid. ] Counsel for the health authority claimed that this would be akin to compensation for loss of society of her stillborn child 90 [ ibid. ] , but the judge disagreed. He was of the opinion that the distinction was clear, as it was the difference between bringing up a

child and bringing up the particular child which in the event was stillborn. 91 [ ibid. ] This ruling is commented on in the article Common Law Duties to Unborn Children 92 [ Whitfield, Common Law Duties to Unborn Children (1993) I Medical Law Review 28. ] , where the author observes that: By this sensible route the common law thus provides direct compensation based on the experience and sufferings and loss of the surviving parent(s) alone. A constitutional tort? Were a plaintiff to bring an action where damage was caused to the child prenatally, leading to the stillbirth of their child, it is possible that this action could be brought on the basis that Art.40.3.3 is sufficiently expansive to provide for constitutional tort. The case of Meskell v CIE 93 [ [1973] IR 121. ] is instructive on this point. The court in this case held that if statutory or common law protection does not live up to the standards laid out in the Constitution, and there is an injury for which there is no redress but for which there is constitutional protection, there is a residual action for which there is no relief. Walsh J stated: if a person has suffered damage by virtue of a breach of a constitutional right or the infringement of a constitutional right, that person is entitled to seek redress against the person or persons who have infringed that right. 94 [ ibid at 133. ] Henchy J. explained the function of the constitutional tort in the later case of Hanrahan v Merck Sharpe & Dohme . 95 [ [1988] I.L.R.M. 629. ] He explained that there are two occasions in which a person may invoke constitutional rights: first, when there is no statutory or common law principle governing the area; secondly, when the statutory or common law principle is ineffectual. In terms of the damages that can be awarded for breach of a constitutional right, meanwhile, the case of Hosford v John Murphy and Sons Ltd 96 [ [1988] I.L.R.M. 300. ] is useful. Referring to the claim for damages made by the defendants under Arts.41 and 42 of the Constitution, Henchy J. remarked that a preliminary point should be made. He stated: Whilst at common law a claim for an award of damages for the harm it is alleged the plaintiff sustained does not lie, this is not the case of the harm resulted from an infringement of constitutionally protected rights. If the defendants careless act amounted to a constitutional wrong which inflicted harm on the plaintiffs then I think damages are recoverable; otherwise the protective provisions of the Constitution would be vacuous and valueless. If therefore the plaintiffs can establish that the defendants were guilty of a breach of a Constitutionally imposed duty which inflicted harm on the plaintiffs, then damages are recoverable even though at common law, an award in respect of such harm could not be made. Conclusion If we are to accept that Art.40.3.3 is more expansive than its traditional interpretation of being solely anti-abortion, then it is clear that legislation is needed to provide for the gaping holes that run through the current statutory framework. McCarthy J. had expressed concern at the lack of legislation surrounding Art.40.3.3 in SPUC v Grogan , 97 [ [1989] I.R. 753. ] where he said that it was unfortunate that the Oireachtas had not enacted any legislation governing the area. One might at this point, adapting Lady Bracknell's famous statement in Wilde's The Importance of Being Earnest suggest that, rather than being unfortunate, the absence of legislation looks like carelessness on the part of the Oireachtas. It is argued that a comprehensive piece of legislation is necessary, not only to provide for the circumstances in which abortion is permitted in this country, but also to provide for firm legal principles governing third party foetal assault.

Irish Law Times

(1993) 11 ILT 244: Article: Abortion and EC Law on Social Security for Persons moving within the Community. : Mel Cousins,
Article Abortion and EC Law on Social Security for Persons moving within the Community. Mel Cousins, Barrister-at-Law This article considers the extent to which Irish women may be entitled to obtain abortions under the public health services of other Member States of the EC. One consequence of such entitlement would be that, at least in theory, the cost of such abortions would be the responsibility of the Irish Department of Health. Abortion in Ireland There has, to put it mildly, been considerable debate in Ireland on the subject of abortion, both in the courts, [ Most recently Attorney General v X [1992] 1 IR 1 and Attorney General (SPUC) v Open Door Counselling and anor. Supreme Court, unreported 20 July 1993. ] amongst the general public, [ Leading to the three Constitutional Referenda in 1992. ] and by legal experts. [ See G. Whyte, Abortion and the Law (1993) Doctrine and Life 253; J. Kingston and A. Whelan The Protection of the Unborn in Three Legal Orders. Parts I to IV. (1992) 10 ILT 93 et seq. . These articles contain references to many of the other contributions to the debate. ] However, in the absence of any legislation on abortion rights, the legal and practical position in relation to abortion in Ireland remains obscure. This is particularly true in the light of the most recent Supreme Court decision in the Well Woman case, [ Attorney General (SPUC) v Open Door Counselling and anor. Supreme Court, unreported 20 July 1993. ] despite the subsequent assurances from the Attorney General. However, while, in certain circumstances, Irish women are entitled to obtain an abortionindeed they have a constitutional right to do soin practice it seems that legal abortions are not available in Ireland. It is in this situation that EC law of social security for persons moving within the Community may be of relevance. I should say at the outset that, other than considering this technical point of EC law, this article will not seek to enter into the general debate as to the legality, morality or otherwise of abortion services. EC Law on Social Security The general issue as to the EC's competence or lack thereof in the area of abortion service has been considered by several writers. [ J. Kingston and A. Whelan op.cit. note 3 at page 104 et seq. . ] However, there is one area in which the EC legislation is undoubtedly of relevance to abortion services, i.e. in relation to the EC Regulation on social security for persons moving within the Community (Regulation 1408/71 ). [ See P. Watson Social Security Law of the European Communities (Mansell, London, 1980) and M. Cousins The EEC Social Security Regulations in Ireland (1992) 2 IJEL 105. ] The purpose of this regulation is to facilitate the free movement of persons within the Community by attempting to co-ordinate the 12 national social security systems. Its function is (almost) solely one of co-ordination and it does not create any substantive EC system of social security. As is the practice in many EC countries, public health services (which can include abortion services) are considered to be part of the social security system. Generally speaking, the aim of the regulation is to overcome the territorial limitations inherent in most national social security and health systems. For example, under Irish law, Irish health

services are, generally speaking, only available to persons ordinarily resident in the State. [ Section 2 of the Health (Amendment) Act 1991 . ] However, one of the results of the EC Regulation is that health service must, in some circumstances, be provided to persons who are normally resident in other EC countries. Many readers will, for example, be familiar with the E111 form with which travellers and tourists can obtain urgent health services while in other EC countries. The legal basis for this is to be found in Article 22 of Regulation 1408/71 which provides that any person who is temporarily in an EC country, other than their normal country of employment or residence, is entitled to health services where that person's condition necessitates immediate benefits during a stay in the territory of the other EC country. However, of relevance to the particular question considered here, Article 22 also provides that health services must be provided in another EC country if the person is authorised by the Irish authorities (the Department of Health and the regional health boards) to go to another EC country to receive treatment appropriate to his or her condition. The regulation originally said that this authorisation might not be refused where the treatment in question could not be provided in the territory of the state of employment. [ The original article 22 and see Case 117/77 , Pierik [1978] ECR 825 . (22). ] However, the regulation was subsequently amended so that currently authorisation may not be refused only where: the treatment in question is among the benefits provided for by the legislation of the Member State on whose territory the person concerned normally resides and where he cannot be given such treatment within the time normally necessary for obtaining the treatment in question in the Member State of residence . The Irish Health Acts do not specifically refer to different types of health treatment and contain no relevant reference to abortion. However, it would seem that legal abortion would come within the definition of in patient services and/or out-patient services contained in the Health Act 1970 . [ Sections 51 and 56 respectively. ] Therefore, one could argue that, in some cases, abortion services are within the range of services which are envisaged by the Irish health legislationalthough not currently provided in practice. Indeed, it is arguable that a woman who medically required abortion services (in accordance with the decision in the X case) would be entitled to require the Irish authorities to provide such services under the Health Acts. In the alternative, where a woman covered by the EC Regulation required an abortion (in accordance with the decision in the X case) and where such a service was not provided in Ireland (as it is not), then it would appear that the Irish authorities would be obliged to grant authorisation for that woman to travel to another EC country (presumably the U.K. in most cases) to obtain an abortion there. The country providing the abortion services is obliged to provide such services to a national of another country where such authorisation has been granted (subject of course to the provisions of its own legislation). The cost to the individual involved would vary from one EC country to another as some EC countries provide free health services whereas in others payments may be required from the patient. However, insofar as the cost is not met by the patient, it is, legally, the responsibility of the national authorities. [ Article 36 of Regulation 1408/71 . In practice, the Irish authorities have agreed to waive charges to and from all EC countries except the U.K. because of the low number of cases involved. In the case of the U.K. a complicated notional basis for assessing the mutual costs in its operation. The Irish authorities are significant net beneficiaries of this arrangement. ] If the view was taken that abortion services are not among the benefits provided by the [Irish] legislation, the Irish authorities would then have a discretion as to whether or not to authorise treatment. However, in a case where a woman was constitutionally entitled to avail of such services, such authorisation could hardly be refused. Limitations of EC Rights There are two limitations on these possible rights under EC law: the first relates to the scope of EC law and the second to the extent to which abortion is legal in Ireland. Regulation 1408/71

applies to employed and self-employed persons and members of their families (including people who were formerly employed or self-employed such as pensioners). [ See Watson op.cit. chapter 5. ] In Ireland, unlike most EC countries, public health services are not insurance based but are provided on a partially means tested basis to all residents. Therefore not all persons who are entitled to health services under Irish law will be covered by the EC Regulation and able to derive entitlements under the Regulation . Thus not all Irish women who wish to avail of an abortion in another EC country will have rights under the Regulation . Secondly, not all women will be legally entitled to an abortion under Irish law. The question then arises as to whether the Irish authorities would be generally obliged to authorise women to obtain abortion in other EC countries. The short answer must be that they would not be so obligated. General abortion services are clearly not provided for under Irish legislation and therefore the Irish authorities have the discretion to refuse such authorisation. The issue of abortion in the context of Article 22 of the Regulation has not been considered by the Court of Justice but was touched on in the Pierik case. [ Op. cit. note 8. ] The Commission in its submissions on that case argued that Member States retain certain powers in areas concerning morality and thus could not be compelled to authorise a treatment which was seriously contrary to the ethical rules prevailing in the particular Member State. [ See Watson p.258. ] The Advocate General did not come to a firm conclusion on this point (which was considered explicitly by the Court) but suggested that a Member State might not be required to authorise medical treatment which would be patently contrary to its public morality. Clearly, therefore, in a situation where abortion remains generally unlawful, the Irish authorities would not be required to grant authorisation to obtain an abortion in another EC country where the woman concerned would not be legally entitled to an abortion in Ireland. Conclusion Thus, it appears that, insofar as the Irish authorities do not make abortion services available under the Health Acts, women who medically require abortions (in a situation where it is now legal to obtain an abortion) may seek authorisation from the Irish authorities to obtain such treatment from the public health services of another EC Member State. It would seem that until such time as services are made available in Ireland, the Irish authorities would not be able to refuse such authorisation. This would, of course, also be the case in relation to a much wider range of medical services in Ireland insofar as the services in Ireland cannot be provided with in the necessary time and insofar as such services are available in another Member State.

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