The Gazette 1972

UNREPORTED IRISH CASES

infringement of that right. In considering this factor O'Keeffe P. thought that the state of public opinion— which is a variable factor—was to be determined with reference to the time of the adoption of the Constitution in 1937. Accordingly the fact that the impugned Sec- tion was adopted in the Dail without a division does not reflect a public opinion in favour of the right of privacy. Accordingly O'Keeffe P. held that the impugned Section 17 of the Criminal Law Amendment Act, 1935, is not inconsistent with the Constitution. [Mary McGee v Attorney-General and the Revenue Commissioners; O'Keeffe P.; unreported; 31st July 1972.] Defendant workman who delays in defending pleadings not entitled to picket; plaintiff company entitled to a perpetual injunction restraining picketing. (1) The defendant was employed by the plaintiff company as a lorry driver in 1960. (2) In May 1960 the defendant was suspended for refusing to drive a particular lorry. After a conciliation conference by the Labour Court, a settlement was reached whereby he was to be re-employed on a proba- tionary basis for six months. (3) The defendant resumed working on a probationary basis from the company's bulk plant in Cork in Sept. 1966 but the company soon decided he was unsatis- factory, and that he could not be continued after six months. The grounds given by the manager of the Cork plant were (a) that he had demanded preferential treat- ment for shift work, and (b) that he had failed to co- operate in the company's pension scheme. He was finally dismissed in March 1967 on the further grounds of (c) poor timekeeping and (d) trying to influence fellow drivers not to help in the company's sales promo- tion campaign. (4) The defendant's trade union contended that the company had unjustly dismissed him, and the matter was referred to the Labour Court. This Court issued its recommendations on 15h July 1967 to the effect that the defendant had not been victimised, and that it was entirely due to his own fault that his services had been terminated. (5) The defendant was dissatisfied with this recom- mendation, but his fellow-employees in Cork refused to support him in a proposed strike. (6) In 1967-68, litigation took place between the defendant and his union, the Irish Transport and General Workers Union. (7) Private efforts to reinstate the defendant were unsuccessful and suddenly, at the end of January 1968, the defendant and some others picketed plaintiff com- pany's bulk plant and oil installations in Cork. (8) At this time, plaintiff company started plenary proceedings claiming an injunction to restrain the defen- dant from watching, besetting or picketing the com- pany's premises in Cork; the injunction was not con- tinued after 5th February 1968 when the defendant undertook not to picket pending the hearing of the action. - 2 5 6

Law prohibiting the sale or importation of contra- ceptives held constitutional. The plaintiff is a young married woman whose husband is a fisherman. They were married in 1968 and had four children. The plaintiff's doctor has advised her that if she had any more children her life would be in danger with cerebral thrombosis. The plaintiff decided to re- sort to artificial methods of prevention of conception. The use of the pill in her case would be dangerous, and the doctor prescribed for her other remedies, which she ordered from England. When the medicine was sent through the post, it was seized by the Customs authorities on the ground that the importation of con- traceptives is prohibited. As the Revenue Commissioners would not release the medicine, the plaintiff brought an action for a declaration that Section 17 of the Criminal Law Amendment Act, 1935, which prohibits the sale or importation of contraceptives, is unconstitutional, and consequently null and void. Each of the following articles of the Constitution was relied upon to uphold the contention that the relevant section was unconstitutional. (1) Article 45— Directive Principles of Social Policy. It is to be noted that the beginning of this Article in the prevalent Irish version differs from the English ver- sion and appears to exclude from the cognisance of the Courts only questions as to the attempts of the Oireach- tas to have regard to the principles laid down in fram- ing legislation or actes préparatoires. It would seem, therefore, possible to argue that it does not preclude the consideration of the directive by the Courts when an enacted Statute of the Oireachtas is under review. However, the fact that in Article 45 (4) (1) the State pledges itself to safeguard the weaker interests of the community does not make it relevant in this case. (2) Article 44— Freedom of conscience. The fact that in Article 44 (2) (1) freedom of conscience and the free practice of religion are, subject to public order and morality, guaranteed to every citizen, is not relevant in this case. The contention that freedom of conscience means freedom to decide what is best in the interests of one's husband and family and to act accordingly is unsustainable because freedom of conscience in this Article means freedom to choose a religion and to act in accordance with its precepts, and not freedom to arrive at decisions on matters of one's own private welfare and to act accordingly. (3) Article 41— The Family. The fact that in Article 41 (1) (2) the State guarantees to protect the family in its constitution and authority as the necessary basis of social order and as indispensable to the welfare of the nation and of the State is not relevant in considering the constitutionality of Section 17 of the 1935 Act. (4) Article 40— Privacy. It was contended that amongst the unenumerated rights guaranteed to citizens under Article 40 was the right to privacy and that the Section impugned was inconsistent with that right. In support of the contention, the American case of Grim- wold v Connecticut was cited, in which a majority of the American Supreme Court held that one of the fundamental rights guaranteed by the United States Constitution was the right to privacy and that legisla- tion making it illegal to use contraceptives was an