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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Norris v. A.G. [1983] IESC 3; [1984] IR 36 (22 April 1983)
URL: http://www.bailii.org/ie/cases/IESC/1983/3.html
Cite as: [1984] IR 36, [1983] IESC 3

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    THE SUPREME COURT

    No. 5793p of 1977

    O'Higgins CJ

    Finlay P

    Henchy J

    Griffin J

    McCarthy J

    David Norris

    (Plaintiff)

    v.
    The Attorney General

    (Defendant)

     

    Judgment of O'Higgins C.J. delivered 22nd of April, 1983

    In these proceedings the plaintiff seeks a declaration that ss. 61 and 62 of the Offences Against the Person Act, 1861, and s. 11 of the Criminal Law Amendment Act, 1885, are inconsistent with the Constitution and, therefore, were not continued in force by Article 50 thereof and do not form part of the law of the State. His claim, having been considered and rejected in the High Court, has been brought to this Court by way of appeal.

    The impugned legislation

    The legislation which the plaintiff challenges provides for the criminalisation and punishment of sexual acts and conduct of a kind usually regarded and described as abnormal or unnatural. Section 61 of the Act of 1861, as amended, deals with the offence of buggery committed with mankind or an animal, and provides a maximum penalty of penal servitude for life. Section 62 of the same Act deals with associated offences, such as attempts and assaults for the purpose of committing buggery, and specifically covers indecent assaults on a male person; a maximum penalty of two years' imprisonment is provided. Section 11 of the Act of 1885 provides as follows:-

    "Any male person who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be guilty of a misdemeanor, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding two years, with or without hard labour."

    It is to be noted that the offences dealt with in ss. 61 and 62 of the Act of 1861 can, in relation to mankind, be committed with or upon a male or female person, but can only be committed by a male. It is also to be noted that the offence dealt with in s. 11 of the Act of 1885 only applies to male persons, that the section applies irrespective of the ages of the male persons involved and irrespective of whether the act is committed in public or private, or with or without consent. While the impugned legislation does not expressly deal with homosexual practices and conduct, it is accepted that the effect of the three sections, taken together, is to prohibit and criminalise such conduct between male persons. No similar prohibition exists in relation to such practices and conduct between females.

    The relevant facts

    The plaintiff is now and has been, since 1967, a lecturer in English at Trinity College, Dublin. He is aged 38 and is unmarried. Although born in Leopoldville, in the former Belgian Congo, he is an Irish citizen. He has asserted in his statement of claim and in evidence that he is congenitally and irreversibly homosexual in outlook and disposition, that he is neither sexually attracted to nor has he any interest in women, that he desires a sexual relationship based on his congenital orientation and that for him any heterosexual relationship, such as that of marriage, is not open or possible.

    He claims that at an early age his realisation of his own feelings and disposition, and a growing awareness of public attitudes and of the state and sanctions of the criminal law, not only caused him considerable anxiety and distress but also led to a profound nervous illness which required protracted medical care and counselling. When he recovered from his illness, he decided to declare himself publicly as a homosexual and, with other homosexual men and women, formed an association known as the Irish Gay Rights Movement, of which he became chairman. In this capacity he was interviewed on television and was given an opportunity to explain the aims and activities of the movement. He is at present involved in two similar organisations – the National Gay Federation and the Committee for Homosexual Law Reform. Although known to be a homosexual and to have indulged in homosexual activities, he has never been prosecuted, nor has any member of the organisations with which he is or has been associated. He has, however, had the experience, some time in 1976, of his cross-Channel mail being opened by the authorities, but this does not appear to have been continued.

    This action has been brought by the plaintiff as an individual citizen. It is not a representative action nor one brought on behalf of the organisations or groups with which he is identified, although the fact of the existence of such groups and of people with similar dispositions, feelings and outlooks may be relevant. It is as a personal litigant seeking the relief claimed that the plaintiff's rights and standing in bringing this action fall to be considered.

    Courts not empowered to reform the law

    In the course of his evidence at the trial, the plaintiff, on many occasions, made it clear that his purpose, in the meetings he attended, the interviews he gave and in the organisations with which he is associated, is to achieve a reform of the law by the decriminalisation of certain homosexual activities. He indicated in evidence the reforms and changes which he wished to achieve which would provide protection for the young and incapacitated, but would free from all criminal sanctions homosexual conduct carried out in private between consenting male adults. Lest it be thought that this Court could or should consider the merits of such proposed reforms or express any view thereon, I desire to make it clear that such is not and can never be a function of this Court. 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 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.

    Was this legislation continued in force?

    In this case we are concerned only with the question whether the items of legislation which are challenged in these proceedings have, in whole or in part, been carried over or re-enacted into our corpus juris by the people when they enacted the Constitution in 1937. Whether they have been so re-enacted depends on whether they passed the tests prescribed by Article 50, s. 1, of the Constitution. That section provides:-

    "Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstát Éireann immediately prior to the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas."

    The purpose of Article 50, s. 1, is to continue in force the laws which had previously operated in Saorstát Éireann, with as few exceptions as possible. The phrase "subject to this Constitution" indicates an obvious requirement that, in order to be operable in the new State, such laws must fit into the framework of, and be controlled by, the Constitution. If, by the nature of their provisions, this were not possible, such laws, on that account alone, could not be continued. Subject to the Constitution in that sense, such laws are to continue to be of full force and effect "to the extent to which they are not inconsistent therewith."

    If Article 50 had provided that such laws would continue to be of full force and effect "to the extent to which they are consistent with the Constitution" would it have the same meaning and effect? In my view, it clearly would not. In such circumstances, consistency would have to be proved and in the absence of such proof the law or laws would be inoperative. However, according to the actual words used in Article 50, the law or laws in question operate unless inconsistency is established, and the onus of establishing such is placed on the person who challenges their continued validity. This is not to say that such pre-Constitution laws enjoy any presumption of consistency or constitutionality. They do not. Each such law must be examined to see what it purports to authorise or permit. If on such examination it emerges that the law permits what the Constitution prohibits or forbids what the Constitution sanctions, then inconsistency is established, and to the extent thereof the law would be declared to have ceased to have effect on the coming into operation of the Constitution.

    While this case is concerned with legislation passed not by the Oireachtas of Saorstát Éireann but by the British Parliament, it has proceeded on the basis that such legislation survived the foundation of the State in 1922 and was in force as part of the laws of Saorstát Éireann immediately prior to the coming into operation of the Constitution of 1937. Accordingly, the question is whether it was continued under Article 50. If on examination of such legislation now, in the light of the Constitution as it has been interpreted and understood since its enactment, inconsistencies are established, such legislation, to the extent thereof, must be held not to have been so continued. To achieve this result, however, the plaintiff must show that such inconsistencies exist. It is not sufficient to show that the legislation is out of date, is lacking in public support or approval, is out of tune with the mood or requirements of the times or is of a kind impossible to contemplate now being enacted by Oireachtas Éireann. Unless inconsistency is established, such legislation, no matter what its defects or blemishes may be, is continued by the express terms of Article 50 "to be of full force and effect" until repealed or amended by enactment of the Oireachtas.

    The plaintiff's case

    I now turn to the manner in which the impugned legislation has been challenged by the plaintiff. In considering this challenge I will, for convenience, regard the first two sections (ss. 61 and 62 of the Act of 1861) as dealing with buggery, and the other section (s. 11 of the Act of 1885) as dealing with gross indecency.

    The plaintiff contends that a continued designation as crimes of the conduct dealt with in these sections is inconsistent with the observance of certain rights which the Constitution guarantees to citizens. While the extent of his complaints varies according to the conduct and its criminal designation, it will be possible to deal with them in association with each of the constitutional provisions to which they are referable. Apart from particular provisions of the Constitution in respect of which inconsistency is alleged, the plaintiff also contends that, having regard to the development in medical and psychological knowledge of human sexual behaviour, and the greater understanding to-day of homosexuality, the designation of such conduct as criminal conflicts with the values of a society which the Constitution's preamble proclaims to be based on the "due observance of prudence, justice and charity, so that the dignity and freedom of the individual may be assured . . ." In short, the plaintiff's case is based partly on a reliance on particular Articles of the Constitution and partly on its general policy as indicated by the preamble.

    I will now refer to the constitutional provisions upon which the plaintiff relies, and will endeavour to state the plaintiff's case in respect of each such provision as I understand it. These provisions are as follows:-

    1. Article 40, s. 1 – With its qualification as to regard being had to differences of capacity, physical and moral, and of social function, this provision guarantees equality before the law for all citizens. The plaintiff contends that the prohibition, in respect of the offence of gross indecency, of homosexual conduct between male persons only constitutes in two respects a discrimination which is invidious and unfair against such male citizens who are homosexual. In the first place he contends that such a prohibition ignores the sexual conduct involved in adultery, seduction and fornication, which are outlets open to heterosexual male citizens and, on that account, puts male homosexuals in a position of inequality before the law. It is also contended that, even if it were said that homosexual citizens have different capacities from heterosexual citizens and that the law can have regard to such differences, nevertheless, the regard which the law must have is "due regard" and this could not include the designation as criminal of the very expression of the difference in capacity which is inherent in such citizens. In the second place the plaintiff says that gross indecency, as an offence, is confined to sexual conduct between males. Similar or associated sexual conduct between female citizens who have a homosexual or lesbian disposition is not prohibited. On this account the plaintiff complains that the section creating the offence discriminates against male homosexuals solely on the ground of their sex and in a way which is unrelated to any difference of capacity, physical or moral, or of social function. For these reasons, the plaintiff contends that s. 11 of the Act of 1885, which creates the offence of gross indecency, is inconsistent with the provisions of Article 40, s. 1, of the Constitution.
    2. 2.     Article 40, s. 3 – Under this provision the State guarantees to respect and, as far as practicable, to defend and vindicate the personal rights of citizens. These personal rights are not merely those rights expressly referred to in the Constitution but include also other rights, unenumerated, which fall to be recognised arid declared as the Constitution is construed and interpreted. The plaintiff contends that among these unenumerated rights of citizens is a right of privacy. He claims that this right, which was identified by this Court in McGee v. The Attorney General [1974] I.R. 284 is not confined to a right of marital privacy. He alleges that it encompasses, but is not exhausted by, the right of a husband and wife to privacy in their sexual relations within their marriage. He contends that it is a right which adheres to every citizen as such and which places a limit on the power of the State to control his personal conduct where neither the exigencies of the common good nor the protection of public order or morality necessitates such control. He claims that the existence of this right must be implied from the preamble when it speaks of the dignity and freedom of the individual, and its protection must be guaranteed by Article 40, section 3. Reliance was placed on the majority judgment of the Supreme Court of the United States in Eisenstadt v. Baird (1972) 405 U.S. 438 and, in particular, on a passage from the judgment of Brennan J. at p. 453 of the report. Reliance is also placed on a passage from the judgment of Budd J. in McGee v. The Attorney General [1974] I.R. 284 where he said at p. 322 of the report:-

    "Whilst the 'personal rights' are not described specifically, it is scarcely to be doubted in our society that the right to privacy is universally recognized and accepted with possibly the rarest of exceptions, and that the matter of marital relationship must rank as one of the most important of matters in the realm of privacy. When the preamble to the Constitution speaks of seeking to promote the common good by the observance of prudence, justice and charity so that the dignity and freedom of the individual may be assured, it must surely inform those charged with its construction as to the mode of application of its Articles."

    In so far as the impugned legislation seeks to control the sexual conduct of the plaintiff and like-minded citizens, carried on in private, the plaintiff claims that it constitutes an unwarranted intrusion into his private life, and is inconsistent with the State's duty to defend and vindicate his right to privacy which is one of his personal rights as a citizen.

    The plaintiff further says, with regard to ss. 61 and 62 of the Act of 1861, that the conduct thereby prohibited extends to sexual acts and conduct between husband and wife, and that in this respect these sections are inconsistent with the defence and vindication of marital privacy as is required by Article 40, section 3.

    The plaintiff also claims that the prohibition of all sexual acts between consenting male adults, even if carried out in private, threatens both the physical and mental health of homosexuals like him whose congenital sexual urges and feelings dispose them, inevitably, towards such acts. He further claims that the prohibition can injure and has injured the mental and physical health of homosexuals, including the plaintiff. He therefore contends that the existence of such a prohibition with its capacity for injury to the plaintiff and others constitutes a threat to the plaintiff's right to bodily integrity, and is inconsistent with the State's duty to defend and vindicate such right in accordance with Article 40, section 3. In this regard reliance was placed on Ryan v. The Attorney General [1965] I.R. 294 and The State (C) v. Frawley [1976] I.R. 365.

    3. Article 40, s. 6 – The plaintiff's next complaint was that the prohibition of acts described as constituting gross indecency between consenting male adults, or of procuring or attempting to procure the commission of such acts, is inconsistent with the plaintiff's rights of freedom of expression and freedom of association which are guaranteed by the Constitution. The plaintiff says that such a prohibition inhibits or prevents him, and also other homosexual citizens, from advocating freely their views and discussing their outlook and convictions. Because of fear of prosecution, blackmail or intimidation, it also inhibits or prevents the plaintiff from associating freely with another male person or with other male persons to whom he may be sexually attracted.

    Finally, as already mentioned, the plaintiff claims that, in the light of present-day knowledge and understanding of homosexuality as a condition which dictates particular sexual attitudes and tendencies, a State which is bound by the observance of charity and which seeks the dignity and freedom of the individual could not brand as criminal the very expression of such unavoidable attitudes and tendencies.

    Locus standi

    At this stage it is convenient to consider an objection to the plaintiff's case which has been submitted on behalf of the defendant. The objection is in the nature of a challenge to the plaintiff's locus standi to advance the arguments on inconsistency, or most of them, which he has advanced. The defendant's objection is based on the authority of this Court's decision in Cahill v. Sutton [1980] I.R. 269. That case dealt with the validity of s. 11, sub-s. 2(b), of the Statute of Limitations, 1957. The Court held that, as the challenge on validity which the plaintiff in that case put forward was based solely on the absence of a saver or proviso to the time limit laid down, which, if present, would riot have preserved her claim, she could not establish that any right of hers had been infringed or threatened by the absence thereof. Accordingly, the Court held that the plaintiff lacked the standing necessary to invoke the jurisdiction of the Court to determine the question of validity raised. In the course of his judgment, with which the other members of the Court agreed, Mr. Justice Henchy said at p. 284 of the report:-

    "If a citizen comes forward in court with a claim that a particular law has been enacted in disregard of a constitutional requirement, he has little reason to complain if in the normal course of things he is required, as a condition of invoking the court's jurisdiction to strike down the law for having been unconstitutionally made (with all the dire consequences that may on occasion result from the vacuum created by such a decision), to show that the impact of the impugned law on his personal situation discloses an injury or prejudice which he has either suffered or is in imminent danger of suffering."

    The defendant seeks to apply the reasoning of that decision to this case and says that, in so far as the plaintiff's complaint against the impugned legislation is based on an alleged inconsistency with Article 40, s. 3, and with the State's obligation to protect the right to privacy, both as a claimed personal right of his as a citizen and as marital privacy in relation to married citizens, the plaintiff lacks the necessary standing to make such complaint. As to the general right to privacy which the plaintiff claims is guaranteed to all citizens, the defendant says that, if such exists, the plaintiff cannot point to any interference therewith so far as he is concerned. He has proclaimed himself publicly to be homosexual, he has been active in organising associations concerned with homosexuals, he has spoken on television and radio, yet he has never been prosecuted nor has he been intimidated in any way, and he continues to carry out, without interference, his normal duties as a lecturer in Trinity College, Dublin. In such circumstances, the defendant contends, the plaintiff has neither suffered nor is he in danger of suffering in any way from the legislation which he challenges and, accordingly, he cannot complain that his personal right to privacy has been threatened or endangered. As to the plaintiff's complaints that the sections of the Act of 1861 are inconsistent with the observance of marital privacy, the defendant says that it is not for the plaintiff to make such a case. Not only is he not married, but the whole thrust of the case which he makes is that, for him, and for homosexuals like him, who desire a lasting partnership in life, marriage is not open or possible. Accordingly, the defendant says that, in this respect also, the plaintiff cannot be heard to make a case which is not his nor to complain of a breach of a right which he has neither suffered nor is likely to suffer.

    In my view, the defendant's objection, in so far as it applies to that part of the plaintiff's case which is based on marital privacy, is well founded and should be upheld. The basis of the plaintiff's case is that there exists in our society a significant number of male homosexual citizens, of whom he is one, for whom, sexually, the female offers no attraction, and who, desiring a stable relationship, must seek such amongst male companions of a similar outlook and disposition. For these, as the plaintiff clearly implied in his evidence (see transcript, Book 1, Q. 153), marriage is not open as an alternative either to promiscuity or a more permanent sexual relationship with a male person. This being so, it is nihil ad rem for the plaintiff to suggest, as a reason for alleviating his own predicament, a possible impact of the impugned legislation on a situation which is not his, and to point to a possible injury or prejudice which he has neither suffered nor is in imminent danger of suffering within the principles laid down by this Court in Cahill v. Sutton [1980] I.R. 269.

    However, I do not agree with the defendant's submission that the plaintiff lacks standing to complain merely because he has not been prosecuted nor has had his way of life disturbed as a result of the legislation which he challenges. In my view, as long as the legislation stands and continues to proclaim as criminal the conduct which the plaintiff asserts he has a right to engage in, such right, if it exists, is threatened and the plaintiff has standing to seek the protection of the Court.

    The plaintiff's case examined

    At the core of the plaintiff's challenge to the impugned legislation is the assertion that the State has no business in the field of private morality and has no right to legislate in relation to the private sexual conduct of consenting adults. It is the plaintiff's case that to attempt to do so is to exceed the limits of permissible interference and to shatter that area of privacy which the dignity and liberty of human persons require to be kept apart as a haven for each citizen. Accordingly, the plaintiff says that any legislation which purports to do so is de facto inconsistent with the Constitution. Apart from this, however, the plaintiff has advanced other grounds of alleged inconsistency which must be considered. I propose in the first place to deal with these other grounds and then to return to what appears to be the plaintiff's main submission.

    As already mentioned, the plaintiff argues that the impugned legislation is inconsistent with Article 40, s. 1, of the Constitution in that it discriminates against male citizens who are homosexual. I understand his complaint in this respect to be confined to the Act of 1885. In case I am incorrect in this respect, however, I would like to express the view that such an argument is scarcely entertainable in relation to the impugned sections of the Act of 1861. The act which constitutes buggery can only be committed by males. It is designated as a crime whether it is committed with a male or a female. It follows that the prohibition applies to the act irrespective of whether it is committed by a homosexual or by a heterosexual male. No discrimination could be involved.

    As to gross indecency, however, the prohibition only applies to such conduct between males. Does the fact that it does not apply to gross indecency between females involve a discrimination which would be prohibited by Article 40, section 1? I do not think so. The legislature would be perfectly entitled to have regard to the difference between the sexes and to treat sexual conduct or gross indecency between males as requiring prohibition because of the social problem which it creates, while at the same time looking at sexual conduct between females as being not only different but as posing no such social problem. Furthermore, in alleging discrimination because the prohibition on the conduct which he claims he is entitled to engage in is not extended to similar conduct by females, the plaintiff is complaining of a situation which, if it did not exist or were remedied, would confer on him no benefit or vindicate no right of his which he claims to be breached. I do not think that such an argument should be entertained by this Court. For the same reasons, I would reject the plaintiff's complaint that there is discrimination in the fact that the laws of the State do not apply criminal sanctions to heterosexual conduct outside marriage between consenting adults.

    The plaintiff has also submitted that the blanket prohibition of homosexual conduct effected by the legislation threatens his physical and mental health through frustration and disorientation arising from his congenital disposition. For this reason the plaintiff asserts that his right to bodily integrity is endangered. In my opinion this submission is not a sound one. If the legislation is otherwise valid and within the competence of the legislature to enact, it cannot be rendered inoperative merely because compliance with it by the plaintiff is difficult for, or harmful to, him due to his innate or congenital disposition. In this respect the exigencies of the common good must prevail. The plaintiff also alleges that this legislation and, in particular, s. 11 of the Act of 1885, impairs his rights of freedom of expression and freedom of association which are guaranteed by Article 40, s. 6, of the Constitution. I do not accept this submission. Freedom of expression and freedom of association are not guaranteed as absolute rights. They are protected by the Constitution subject to public order and morality Accordingly, if the impugned legislation is otherwise valid and consistent with the Constitution, the mere fact that it prohibits the plaintiff from advocating conduct which it prohibits or from encouraging others to engage in such conduct or associating with others for the purpose of so doing, cannot constitute a breach of the Constitution.

    I now turn to what I have described as the core of the plaintiff's case. This is the claim that the impugned legislation constitutes an unwarranted interference with his private life and thereby infringes his right to privacy. This claim is based on the philosophical view, attributed to John Stuart Mill, that the law should not concern itself in the realm of private morality except to the extent necessary for the protection of public order and the guarding of citizens against injury or exploitation. It is a view which received significant endorsement in the report of the Wolfenden Committee on Homosexual Offences and Prostitution. That committee's report, furnished to the British Parliament in 1957, contained the following statement in support of its recommendation for limited decriminalisation:-

    "There remains one additional counter argument which we believe to be decisive, namely, the importance which society and the law ought to give to individual freedom of choice in action in matters of private morality. Unless a deliberate attempt is to be made by society, acting through the agency of the law, to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality, which is, in brief and crude terms not the law's business. To say this is not to condone or encourage private immorality."

    The Wolfenden Committee had been established by the Scottish Home Office and, although it recommended (in effect) the removal of criminal sanctions from homosexual conduct when carried out in private between adult responsible males, the British Parliament was very slow to accept that recommendation and to act upon it. It was not until the Sexual Offences Act, 1967 (which was introduced as a private member's bill) that the law was changed in England and Wales; in Scotland the change was not made until the passing of the Criminal Justice (Scotland) Act, 1980. In relation to Northern Ireland, the British Parliament declined to act until compelled to do so as a result of the recent decision of the European Court of Human Rights in Dudgeon v. United Kingdom (1981) 4 E.H.H.R. 149. The caution shown by successive British Governments and Parliaments is understandable because what was proposed was a significant reversal of legislative policy in an area in which deep religious and moral beliefs were involved.

    From the earliest days, organised religion, regarded homosexual conduct, such as sodomy and associated acts with a deep revulsion as being contrary to the order of nature, a perversion of the biological functions of the sexual organs and an affront both to society and to Gods. With the advent of Christianity this view found clear expression in the teachings of St. Paul, and has been repeated over the centuries by the doctors and leaders of the Church in every land in which the Gospel of Christ has been preached. To-day, as appears from the evidence given in this case, this strict view is beginning to be questioned by individual Christian theologians but, nevertheless, as the learned trial judge said in his judgment, it remains, the teaching of all Christian Churches that homosexual acts are wrong.

    In England, buggery was first treated as a crime by the statute 25 Hen. VIII c. 6, having been previously dealt with only in the ecclesiastical courts. In Ireland, it first received statutory condemnation in the statute of the Irish Parliament 10 Chas. I, sess. 2, c. 20. Subject to statutory changes as to punishment, it continued to be prohibited and punished as a crime in accordance with the provisions of the Act of 1861 which were complemented by the later provisions of the Act of 1885. While those statutory provisions have now been repealed in the entire of the United Kingdom, the question in this case is whether they ceased to operate in Ireland at the time of the enactment of the Constitution in 1937.

    In the course of the trial of this action in the High Court, reference was made to the Wolfenden Report, to the Kinsey Survey on homosexual behaviour conducted in the United States arid to a similar survey conducted in Sweden. No such survey has been conducted in Ireland, but the trial judge on the evidence he heard, was prepared to conclude that there is probably a large number of people in this country with homosexual tendencies. Of these, however, only a small number are exclusively homosexual in the sense that their orientation is congenital and irreversible. It is this small group (of those with homosexual tendencies) who must look to the others for the kind of relationship, stable or promiscuous, which they seek and desire. It follows that the efforts and activities of the congenital must tend towards involving the homosexually orientated in more and more deviant sexual acts to such an extent that such involvement may become habitual The evidence in this case and the text-books produced as part thereof indicate how sad, lonely and harrowing the life of a person, who is or has become exclusively homosexual, is likely to be. Professor West in his work, Homosexuality Re-Examined, states at p. 318:- "Exclusive homosexuality forces a person into a minority group; cuts off all prospect of fulfilment through a family life with children and hampers participation in mainstream social activities which are mostly geared to the needs of heterosexual couples." He goes on to talk of those, whose life centres on short-term liaisons, as facing loneliness and frustration as they lose their sexual attractiveness with advancing age. Other authors, also referred to, indicate the instability of male homosexual relations, the high incidence of suicide attempts and the depressive reactions which frequently occur when a relationship ends (Harrison; Reid, Barrett & Hewer). These are some of the consequences which, experience has indicated, tend to follow on a lifestyle which is exclusively homosexual.

    Apart from these sad consequences of exclusive homosexuality, unfortunately there are other problems thereby created which constitute a threat to public health. Professor West in his work already mentioned, which was published in a revised form in England over ten years after the decriminalisation of homosexual conduct, says at p. 228:- "Far from being immune from venereal infection, as many used to like to believe, male homosexuals run a particularly high risk of acquiring sexually transmitted diseases." The author goes on to show that in the post-decriminalisation decade in Britain many forms of venereal disease (syphilis, gonorrhea, urethritis and intestinal infection) have shown an alarming increase in males, and that this is attributable directly to the increase in homosexual activity and conduct. In relation to syphilis, the author gives this serious warning:- "A promiscuous homosexual with such a reservoir of infection can transmit the disease, in all innocence, to a whole sequence of victims before the carrier is discovered. The diagnosis at this stage is not always obvious, even when suspected, since blood tests for this infection do not usually become positive until some weeks after the primary chancre has appeared." He might well have added that, in the case of the novice or the new entrant into homosexual activity, reticence or shame might well delay further the tracing and discovery of the carrier.

    Apart from these known consequences of fairly widespread homosexual behaviour and conduct, one other matter of particular importance should be noted. This is the effect of homosexual activity on marriage. It has to be accepted that, for the small percentage of males who are congenitally and irreversibly homosexual, marriage is not open or possible. They must seek such partnerships as they can amongst those whose orientation disposes them to homosexual overtures. But for those so disposed or orientated, but not yet committed, what effect will the acceptance of such overtures be likely to have on marriage? Again, precise information in relation to Ireland is not available. One can only look to what the Wolfenden Committee said in its report (para. 55) before the changes in the law occurred in the United Kingdom:- "The second contention, that homosexual behaviour between males has a damaging effect on family life, may well be true. Indeed we have had evidence that it often is: cases in which homosexual behaviour on the part of the husband has broken up a marriage are by no means rare, and there are also cases in which a man in whom the homosexual component is relatively weak, nevertheless, derives such satisfaction from homosexual outlets that he does not enter upon a marriage which might have been successfully and happily consummated. We deplore this damage to what we regard as the basic unit of society."

    That view was based on the limited experience available to the Committee prior to any changes in the law. It indicates, however, that homosexual activity and its encouragement may not be consistent with respect and regard for marriage as an institution. I would not think it unreasonable to conclude that an open and general increase in homosexual activity in any society must have serious consequences of a harmful nature so far as marriage is concerned.

    I have been speaking of homosexuality and of its possible consequences in accordance with what, in my view, can be gathered from the evidence in this case. What I have said can be summarised as follows.

    (1) Homosexuality has always been condemned in Christian teaching as being morally wrong. It has equally been regarded by society for many centuries as an offence against nature and a very serious crime.
    (2) Exclusive homosexuality, whether the condition be congenital or acquired, can result in great distress and unhappiness for the individual and can lead to depression, despair and suicide.
    (3) The homosexually orientated can be importuned into a homosexual lifestyle which can become habitual.
    (4) Male homosexual conduct has resulted, in other countries, in the spread of all forms of venereal disease and this has now become a significant public-health problem in England.
    (5) Homosexual conduct can be inimical to marriage and is per se harmful to it as an institution.

    In the United Kingdom the decisive factor in bringing about decriminalisation of homosexuality was the acceptance of the view advocated by the Wolfenden Committee, and repeated in this case by the plaintiff, that

    homosexuality was concerned only with private morality and that the law had no business in entering into that field. Whether such a view can be accepted in Ireland depends not on what was done by a sovereign parliament in the United Kingdom but on what our Constitution ordains and requires.

    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 with Christian beliefs. Yet it is suggested that, in the very act of so doing, the people rendered inoperative laws which had existed for hundreds of years prohibiting unnatural sexual conduct which Christian teaching held to be gravely sinful. It would require very clear and express provisions in the Constitution itself to convince me that such took place. When one considers that the conduct in question had been condemned consistently in the name of Christ for almost two thousand years and, at the time of the enactment of the Constitution, was prohibited as criminal by the laws in force in England, Wales, Scotland and Northern Ireland, the suggestion becomes more incomprehensible and difficult of acceptance.

    But the plaintiff says that the continued operation of such laws was inconsistent with a right of privacy which he enjoys. Here, in so far as the law and the State are concerned, he asserts a "no go area" in the field of private morality. I do not accept this view either as a general philosophical proposition concerning the purpose of law or as having particular reference to a right of privacy under our Constitution. I regard the State as having an interest in the general moral well being of the community and as being entitled, where it is practicable to do so, to discourage conduct which is morally wrong and harmful to a way of life and to values which the State wishes to protect

    A right of privacy or, as it has been put, a right "to be let alone" can never be absolute. There are many acts done in private which the State is entitled to condemn, whether such be done by an individual on his own or with another. The law has always condemned abortion, incest, suicide attempts, suicide pacts, euthanasia or mercy killing. These are prohibited simply because they are morally wrong and regardless of the fact, which may exist in some instances, that no harm or injury to others is involved. With homosexual conduct, the matter is not so simple or clear. Such conduct is, of course, morally wrong, and has been so regarded by mankind through the centuries. It cannot be said of it, however, as the plaintiff seeks to say, that no harm is done if it is conducted in private by consenting males. Very serious harm may in fact he involved. Such conduct, although carried on with full consent, may lead a mildly homosexually orientated person into a way of life from which he may never recover. As already indicated, known consequences are frustration, loneliness arid even suicide. In addition, it is clearly established that an increase in the practice of homosexuality amongst males increases the incidence of all forms of venereal disease, including the incapacitating and often fatal disease of syphilis. Surely, in the light of such possible consequences, no one could regard with equanimity the freeing of such conduct from all legal restraints with the certain result that it would increase and its known devotees multiply. These, however, are not the only considerations.

    There is the effect of homosexuality on marriage. As long ago as 1957 the Wolfenden Committee acknowledged, in relation to Great Britain, the serious harm such conduct caused to marriage not only in turning men away from it as a partnership in life but also in breaking up existing marriages. That was the conclusion reached as to the state of facts before the criminal sanctions were removed. One can only suspect that, with the removal of such sanctions and with the encouragement thereby given to homosexual conduct, considerably more harm must have been caused in Great Britain to marriage as an institution. In Ireland, in this respect, the State has a particular duty. Article 41. s. 3, sub-s. 1, of the Constitution provides:- "The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack." Surely, a law which prohibits acts and conduct by male citizens of a kind known to he particularly harmful to the institution of marriage cannot be regarded as inconsistent with a Constitution containing such a provision.

    On the ground of the Christian nature of our State and on the grounds that the deliberate practice of homosexuality is morally wrong, that it is damaging to the health both of individuals and the public and, finally, that it is potentially harmful to the institution of marriage, I can find no inconsistency with the Constitution in the laws which make such conduct criminal. It follows, in my view, that no right of privacy, as claimed by the plaintiff, can prevail against the operation of such criminal sanctions.

    European Convention on Human Rights

    One other argument has been advanced on behalf of the plaintiff by Mrs. Robinson. This was based on the Convention for the Protection of Human Rights and Fundamental Freedoms which was signed at Rome on the 4th November, 1950, and was confirmed and ratified by the Government on the 18th February, 1953. This Convention specifies rights and freedoms for the citizens and subscribing countries, broadly similar to the rights and freedoms enjoyed by the citizens of Ireland under the laws and the Constitution. In particular, article 8 of the Convention provides as follows:-

    "1. Everyone has the right to respect for his private and family life his home and his correspondence.
    2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

    Recently the European Court of Human Rights, which is the appropriate body to do so under the Convention, interpreted this article 8 on a complaint by Jeffrey Dudgeon, a citizen of Northern Ireland, that the legislation impugned in this action, which was then in force in Northern Ireland, interfered with his rights as a homosexual. By a majority verdict the European Court held that it did so and that, accordingly, ss. 61 and 62 of the Offences Against the Person Act, 1861 and s. 11 of the Criminal Law Amendment Act, 1885, were inconsistent with the observance of article 8 of the Convention.

    Mrs. Robinson has argued that this decision by the European Court of Human Rights should be regarded by this Court as something more than a persuasive precedent and should be followed. She contends that, since Ireland confirmed and ratified the Convention, there arises a presumption that the Constitution is compatible with the Convention and that, in considering a question as to inconsistency under Article 50 of the Constitution, regard should be had to whether the laws being considered are consistent with the Convention itself. While I appreciate the clarity of her submission, I must reject it in my view, acceptance of Mrs. Robinson's submission would be contrary to the provisions of the Constitution itself and would accord to the Government the power, by an executive act, to change both the Constitution and the law. The Convention is an international agreement to which Ireland is a subscribing party. As such, however, it does not and cannot form part of our domestic law nor affect in any way questions which arise thereunder. This is made quite clear by Article 29, s. 6, of the Constitution which declares:- "No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas."

    A similar contention was put before the former Supreme Court in In re Ó Laighléis [1960] I.R. 93 and was rejected. In the course of his judgment in that case, Maguire C.J. said at p. 125 of the report:-

    "The Oireachtas has not determined that the Convention of Human Rights and Fundamental Freedoms is to be part of the domestic law of the State, and accordingly this Court cannot give effect to the Convention if it be contrary to domestic law or purports to grant rights or impose obligations additional to those of domestic law.
    No argument can prevail against the express command of section 6 of Article 29 of the Constitution before judges whose declared duty it is to uphold the Constitution and the laws.
    The Court accordingly cannot accept the idea that the primacy of domestic legislation is displaced by the State becoming a party to the Convention for the Protection of Human Rights and Fundamental Freedoms. Nor can the Court accede to the view that in the domestic forum the Executive is in any way estopped from relying on the domestic law. It may be that such estoppel might operate as between the High Contracting Parties to the Convention, or in the court contemplated by Section IV of the Convention if it comes into existence, but it cannot operate in a domestic Court administering domestic law. Nor can the Court accept the contention that the Act of 1940 is to be construed in the light of, and so as to produce conformity with, a Convention entered into ten years afterwards."

    I agree with those views expressed by the former Chief Justice.

    For these reasons, I cannot accept Mrs. Robinson's argument. Neither the Convention on Human Rights nor the decision of the European Court in Dudgeon v. United Kingdom (1981) 4 E.H.H.R. 149 is in any way relevant to the question which we have to consider in this case.

    For the reasons set out in this judgment, I have come to the conclusion that the plaintiff is not entitled to the relief he claims and that this appeal should be dismissed.

    Judgment of Finlay P. delivered 22nd of April, 1983

    I agree with the judgment of the Chief Justice and I have nothing further to add to it.

    Judgment of Henchy J. delivered 22nd of April, 1983

    The plaintiff is homosexual in nature to the extent that his sexuality is compulsively and exclusively directed towards members of his own sex. The present state of scientific insight into homosexuality precludes any firm conclusion as to why his particular sexual status was so formed, or any scientifically viable expectation that his exclusively homosexual orientation can be wholly or partly diverted into heterosexuality. What appears clear from the evidence is that his sexual condition was predestined from birth or from childhood rather than adopted by choice, and that the future holds no real hope that any interpersonal sexual conduct in which he may engage will he other than homosexual. Such is the plaintiff who seeks in this action to have the impugned sections expunged from our statute law on the ground that they are so irreconcilable with his personal rights under the Constitution that they cannot be said to have been carried forward into the post-Constitution era and to have been stamped with constitutional validity under Article 50 of the Constitution.

    The particular personal circumstances of the plaintiff in the context of his claim are crucial for two reasons. First, to determine whether he has the standing necessary in the eyes of the law to enable him to allege

    unconstitutionality in the challenged sections. Secondly, even if he has that standing, to decide whether the challenged sections are so inimical to his personal human rights under the Constitution that, weighed against other and more generalised considerations expressed in or postulated by the Constitution, the scale of constitutional values and priorities should be said to preponderate in his favour.

    As to the plaintiff's locus standi, I entertain no doubt that he is qualified to bring the present proceedings. In fact, in the amended defence delivered by the Attorney General the only plea made in this respect was that the plaintiff had no locus standi to allege that ss. 61 and 62 of the Offences Against the Person Act, 1861, are an unconstitutional invasion of the privacy of marriage. On that plea, I would hold with the Attorney General. It is inherent in the plaintiff's case that, as an irremediably exclusive homosexual, he will never marry. Therefore, he has no standing to argue what would in this case be abstract constitutional rights of married couples: see Cahill v. Sutton [1980] I.R. 269 at p. 283 of the report. But, as an unmarried male homosexual, the impact of the impugned statutory provisions on his personal life is so real and so palpably deleterious to his well-being that he has no difficulty in coming within the general rule as to standing, which was stated as follows in Cahill v. Sutton [1980] I.R. 269 at p. 286 of the report:-

    "The primary rule as to standing in constitutional matters is that the person challenging the constitutionality of the statute, or some other person for whom he is deemed by the court to be entitled to speak, must be able to assert that, because of the alleged unconstitutionality, his or that other person's interests have been adversely affected, or stand in real or imminent danger of being adversely affected, by the operation of the statute."

    In this case the clear evidence of the ever-present risk of prosecution, conviction and punishment, and of the many other real or imminent risks that beset the plaintiff's life because of the effect on him of the impugned provisions, marks this case as virtually a classical example of an attack on the constitutionality of statutory provisions at the hands of a litigant who has unanswerable qualifications to mount such an attack. Apart from that, however, the trial judge has held that the plaintiff had locus standi to the extent I have indicated and the Attorney General has not appealed against that finding.

    The second reason for focusing on the facts of the plaintiff's personal predicament is for the purpose of determining whether the impact of the impugned statutory provisions on his life discloses an incompatibility between those provisions and the rights which the Constitution must be held to have vested in him.

    Notwithstanding the submission of the plaintiff's counsel to the contrary, the constitutional question that calls for resolution is unaffected by the fact that the precise statutory provisions in question in this case were held by the European Court of Human Rights in Dudgeon v. United Kingdom (1981) 4 E.H.H.R. 149 to be in breach of article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. That Convention, as has been held by this Court, although it has by its terms a binding force on the Government of this State as one of its signatories, forms no part of the domestic law of this State. Moreover, article 8 of the Convention has no counterpart in our Constitution. Since the constitutionality of the impugned statutory provisions is the only issue raised in this litigation, the touchstone of constitutionality must be held to reside solely in our Constitution. That does not mean that this Court is not open to the persuasive influence that may be drawn from decisions of other courts, such as the European Court of Human Rights, which deal with problems similar or analogous to that now before us. At the end of the day, subject to such influences or methods as are inherent in the judicial process, the task of the Court is to determine the actual and potential effects on the plaintiff of the impugned statutory provisions and then, having viewed those effects in the light of the invoked constitutional protections in their present-day connotation and in the context of the Constitution as a whole, to decide whether there is a repugnancy between what the statutory provisions have prejudicially done to the plaintiff and what the constitutional provisions intended him to be protected against. If such repugnancy is found to exist, the challenged statutory provisions cannot be adjudged to have survived the enactment of the Constitution.

    It is not necessary to catalogue in detail the many, and mainly uncontroverted, complaints made by the plaintiff of denigratory and hurtful treatment meted out to him because of his particular sexual orientation. For example, he has been physically attacked; he has suffered verbal abuse; fear of prosecution or of social obloquy has restricted him in his social and other relations with male colleagues and friends; and in a number of subtle but insidiously intrusive and wounding ways he has been restricted in, or thwarted from, engaging in activities which heterosexuals take for granted as aspects of the necessary expression of their human personality and as ordinary incidents of their citizenship.

    It is not surprising that the repressive and constricting treatment suffered by the plaintiff affected his psychological health. As an involuntary, chronic and irreversible male homosexual he has been cast unwillingly in a role of furtive living, which has involved traumatic feelings of guilt, shame, ridicule and harassment and countless risks to his career as a university lecturer and to his social life generally. Those risks are not the normal lot of the fornicator, the adulterer, the sexually deviant married couple, the drunkard, the habitual gambler, the practising lesbian, and the many other types of people whose propensities or behaviour may be thought to be no less inimical to the upholding of individual moral conduct, or to necessary or desirable standards of public order or morality, or to the needs of a healthy family life, or to social justice, or to other expressed or implied desiderata of the Constitution.

    A stage was reached when the plaintiff, because of what he was suffering as a result of his homosexuality, was referred to one of Dublin's leading consultant psychiatrists. After nine months of psychotherapy the psychiatrist advised the plaintiff that, in the interests of his mental and psychological health, he should consider emigrating to a country, such as England or France, where the law takes a more liberal attitude to male homosexuals. He decided to reject this advice and to continue to live here – a decision which, according to his evidence, had the effect of transforming, to a limited extent, his fear into indignation. His subsequent public espousal of the cause of male homosexuals in this State may be thought to be tinged with a degree of that affected braggadocio which is said by some to distinguish a "gay" from a mere homosexual.

    Before entering on the precise question of unconstitutionality on which this appeal turns, I should like to point out that we are not called upon in this case to express an opinion upon whether the law on this topic should be as it is or upon what the purpose of the law should be. Such considerations are for moral philosophers, legal theorists, lawmakers and the like. In a case such as the present, where the legal materials we are considering are written instruments (i.e., statutory provisions on the one hand and overriding constitutional provisions on the other) and are not amenable to the judicial development or extension which would be the case in regard to unwritten or case law, we must take those legal materials as we find them. The judicial function in a case such as this is to lay the impugned statutory provisions down beside the invoked constitutional provisions and if, in the light of the established or admitted facts, a comparison between the two sets of provisions shows a repugnancy, the statutory provisions must be struck down either wholly or in part – if the test of severability laid down at p. 147 of the report of Maher v. The Attorney General [1973] I.R. 140 is applicable.

    The first constitutional provision that is said to be violated by the impugned sections is Article 40, section 1. It is argued that the equality before the law thereby guaranteed is not given effect to when, as is the case, homosexual acts between male homosexuals are made criminal, while homosexual acts between female homosexuals, or deviant sexual acts (such as buggery) between married couples which would generally be considered debased and immoral, are left outside the purview of the criminal law, at least in regard to wives and when committed in private. I am unable to accept this argument. I think it implies an over-wide interpretation of the scope of that constitutional guarantee. It would be a different matter if an unwarranted discrimination had been made between males in respect of the offences dealt with by the impugned sections. But such is not the case. What the sections have done is to make certain conduct between males criminal, while leaving unaffected by the criminal law comparable conduct when not committed exclusively by males. Therein lies the reason why in my view unconstitutional discrimination under Article 40, s. 1, has not been shown. The sexual acts left unaffected are for physiological, social and other reasons capable of being differentiated as to their nature, their context, the range of their possible consequences and the desirability of seeking to enforce their proscription as crimes. While individual opinions on the matter may differ, it was and is a matter of legislative policy to decide whether a compulsion of the common good is capable of justifying the distinction drawn. I would hold that the proviso contained in the second sentence of Article 40, s. 1, makes constitutionally acceptable under that Article the line of demarcation between the acts made criminal by the impugned sections and those which the plaintiff complains are left unproscribed by the criminal law.

    The second, indeed, the main ground on which it is submitted that the impugned statutory provisions are unconstitutional is that they violate an essential component of the plaintiff's right of privacy. That a right of privacy inheres in each citizen by virtue of his human personality, and that such right is constitutionally guaranteed as one of the unspecified personal rights comprehended by Article 40, s. 3, are propositions that are well attested by previous decisions of this Court. What requires to be decided – and this seems to me to be the essence of this case – is whether that right of privacy, construed in the context of the Constitution as a whole and given its true evaluation or standing in the hierarchy of constitutional priorities, excludes as constitutionally inconsistent the impugned statutory provisions.

    Having regard to the purposive Christian ethos of the Constitution, particularly as set out in the preamble ("to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations"), to the denomination of the State as "sovereign, independent, democratic" in Article 5, and to the recognition, expressly or by necessary implication, of particular personal rights, such recognition being frequently hedged in by overriding requirements such as "public order and morality" or "the authority of the State" or "the exigencies of the common good", there is necessarily given to the citizen, within the required social, political and moral framework, such a range of personal freedoms or immunities as are necessary to ensure his dignity and freedom as an individual in the type of society envisaged. The essence of those rights is that they inhere in the individual personality of the citizen in his capacity as a vital human component of the social, political and moral order posited by the Constitution.

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

    Put in specific terms, the central issue in this case is whether the plaintiff's claim to be entitled to engage in homosexual acts in private must give way to the right and duty of the State to uphold considerations of public order and morality. In my opinion the legal test by which that issue should be determined is this: where, as in this case, a pre-Constitution legislature has condemned as criminal all homosexual acts between males (ranging from acts of gross indecency, the commission of which does not require even physical contact, to acts of sodomy) and thereby blights and thwarts in a variety of ways the life of a person who is by nature incapable of giving expression to his sexuality except by homosexual acts, and who wishes to be entitled to do so consensually in private, on the Attorney General, representing the State, if he is to defeat the individual's claim, to show that to allow him that degree of privacy would be inconsistent with the maintenance of public order and morality.

    In my judgment the Attorney General has signally failed to discharge that onus. In the High Court, ten witnesses were called, all on behalf of the plaintiff. Although homosexual acts in private between consenting adults have largely ceased to be criminal in England and Wales since 1967; although in most European countries for many years the legal position has been no less liberal; although a similar degree of decriminalisation has been in force for varying periods in different jurisdictions throughout the world, including some 20 or so States in the United States of America; and although there have been many studies by experts of the social, religious and other effects of such decriminalisation; not a single witness was called by the Attorney General to rebut the plaintiff's case that the degree of decriminalisation sought by him posed no real threat to public order or morality. On the contrary, the consensus of the evidence given was that the beneficial effects, both in terms of individual fulfilment of personality and of the social, political and religious mores of the community, that would flow from a relaxation of the impugned provisions would outweigh any possible ill-effects on society as a whole.

    I hope to support that conclusion not by eclectic excerpts from the evidence but by answers which epitomise the general tenor of the particular witnesses.

    Of the ten witnesses called for the plaintiff, I leave out of consideration the plaintiff and Edmund Lynch, the research director of the National Gay Federation, on the ground that their opinions represent a vested interest in the outcome of this case.

    Of the two Irish psychiatrists who were called as witnesses, Dr. McCracken confined his evidence to the advice he had given to the plaintiff as his patient; that advice being that the plaintiff should consider emigrating to a country where laxer laws dealing with homosexual acts would be more conducive to his psychological and mental well-being. The other Irish psychiatrist, Professor Ivor Browne, the chief psychiatrist to the Eastern Health Board, gave it as his considered opinion, from a study of the psychiatric problems of confirmed and exclusively homosexual men, that the impugned statutory provisions exacerbate their fears, their loneliness, their sense of alienation and the feelings of emotional and physical deprivation from which they suffer if they seek to conform to the existing restrictions of the criminal law; and that attempts to prohibit or divert the pursuit of their instinctive and inescapable sexual urges by means of legal constraints or psycho-therapeutical methods, are undesirable, counterproductive and tend to produce a furtive way of life which may explain, at least in part, the high incidence of venereal diseases among male homosexuals. His experience in England was that the relaxation of the criminal restrictions on homosexual acts between consenting adult males, as effected by the Sexual Offences Act, 1967, cannot be proved to have caused a deterioration of general moral standards or to have resulted in any increase in the prevalence of homosexuality.

    A Mrs. Robertson, who in 1970 formed in England an organisation called Parents Inquiry, designed to enable young homosexual men to come to terms with their families about their homosexuality, gave it as her opinion that, while there are differing Christian views of the morality of homosexual acts, it is desirable that those compulsively drawn by their sexual orientation to such acts should not be criminally or morally condemned, but should be given such counselling and other services as will enable them to come to reasonable terms with their families and with society generally: an achievement which, in her opinion, is made particularly difficult in this State because of the harshness of the criminal law.

    Perhaps the most prestigious witness in this particular field of homosexual studies was Professor D.J. West, an eminent psychiatrist and Professor of Clinical Criminology in Cambridge University, whose book (Homosexuality Re-Examined) has gone through a number of editions and has won wide acclaim as a balanced and incisive study of the problems of homosexuality. While it is not possible to give in abbreviated form the many pertinent opinions expressed by him, it is sufficient for present purposes to point out that, from his researches, observations and his study of the relevant literature, he has come to the conclusion that the introduction by the Sexual Offences Act, 1967, of a wide measure of freedom from prosecution in respect of homosexual acts in private between consenting adult males has not contributed appreciably to an increased instability of family life, does not appear to have led to a proliferation of homosexuality among males, has not adversely affected the moral or physical health or well-being of society in general, has led to a normative climate of opinion in which irreversible homosexuals have a better chance of leading private lives attuned to their basic human needs, and that the prejudicial effects on compulsive homosexuals of the impugned statutory provisions are an undesirable consequence which is not necessary for the maintenance of public order or morality or for any other public or societal purpose. It is only fair to say that Professor West admitted to a lack of familiarity with the social and other considerations affecting homosexuality in Ireland.

    The next witness called for the plaintiff was a distinguished American social psychiatrist, Professor John P. Spiegel, a former president of the American Psychiatric Association. He gave it as his conclusion, from his personal researches and from a consideration of the relevant literature, that in jurisdictions where the absoluteness of the prohibitions contained in the impugned statutory provisions has been relaxed, prejudice and discrimination against homosexuals have abated, homosexuals have tended more to come forward for counselling or other therapy, the incidence of psychiatric disorders amongst homosexuals seems to have decreased, the lives of obligatory homosexuals have generally been eased and their fears of social degradation, blackmail and personal inferiority lessened; and he rejected the "infection theory", namely, that relaxed homosexual laws are conducive to a spread of homosexual practices.

    The Irish experience of the effect of the impugned laws was most fully dealt with in evidence by Fr. Michael MacGreil S.J., Lecturer in Sociology in St. Patrick's College, Maynooth. His evidence is impressive not simply because of his qualifications in theology and sociology but also because he is the author of Prejudice and Tolerance in Ireland, which is a book based on a survey of intergroup attitudes of Dublin adults and other sources. The exhaustive inquiries made and interviews conducted by him and his collaborators for the purpose of that book gave Fr. MacGreil a unique qualification to pronounce both on the social and moral impact of the impugned laws and on the likely effect on our society of a relaxation of them. Referring to himself as being a conservative but tolerant Christian moralist, and conceding that homosexual acts between males would be deemed morally wrong by most of the citizens of this State, he gave the following two answers to the posed questions:-

    "Q. As somebody who has made a special study of prejudice and tolerance, my question was: as a sociologist, would you think it would be a good thing for Irish society if there were a higher level of tolerance – perhaps if there were a future survey of attitudes towards homosexuals in Ireland?
    A. I will answer this question directly. I think that at present, partially because of the law but not only because of it but because of the attitudes as well, homosexuals are a discriminated against minority and I would like to see them being decriminalised and hopefully the attitudes of the people would become more tolerant. Now, that is not to be taken to mean that I personally agree with homosexual behaviour. In fact, I stand by the Catholic Church's teaching that continence, heterosexually and homosexually, is the norm outside of marriage, but that is on the moral issue which I think is quite a different question, but I do think that as a minority they merit the decriminalisation of their status.
    Q. Does that mean that in this area you do not see any conflict between this disapproving from a moral point of view and decriminalisation?
    A. No."

    The two remaining witnesses were theologians, a Fr. Joseph O'Leary, a Catholic priest with a number of academic qualifications including a doctorate in theology, and Archdeacon Warke of the Church of Ireland. Like Fr. MacGreil, they assumed the necessity under the Constitution of a pluralist society in order to give true effect to the postulates of the Constitution, and they considered the impugned statutory provisions to be too draconian and restrictive to enable the minority who are obligatory homosexuals to achieve the level of necessary self-expression appropriate to their personality, socially dissident though they may be, and notwithstanding that their sexual conduct may not qualify for moral approval in the eyes of orthodox Christian moralists. Recognizing that law and morality are not severable, indeed that there must be an interdependence between them, that while the end of law is not the enforcement of morality or the proscription of immorality, both witnesses were at one in concluding that legal restraints, particularly those compounded by criminal sanctions for their breach, are justified only when the common good requires them. They were in agreement that the impugned laws were not only unnecessary for the common good but were positively at variance with the elements of prudence, justice, charity, tolerance, social justice, fairness and the other attributes inherent under the Constitution in the concept of the common good. I give a single answer from the evidence of each as epitomising their conclusions. Fr. O'Leary's direct examination concluded as follows:-

    "Q. Finally, in your opinion as a Catholic theologian, is the present law criminalising homosexual acts necessary to sustain and enhance the Christian nature of the State?
    A. Quite the contrary. I would think that it is not only not necessary but positively harmful to the Christian nature of the State in that it accentuates or increases the difficulties of homosexual men and women, boys and girls, difficulties which not because of sexual propensity itself but because of isolation and misunderstanding have in many cases led to mental breakdown."

    Also at the end of his direct examination, we find Archdeacon Warke summarising his conclusions in the

    following two answers:-

    "Q. In your opinion would the continuance of those laws [i.e., the impugned sections] sustain or reinforce the Christian concept of this State?
    A. I would say that in so far as the basic criteria for a Christian concept of society is love and charity, I would say that they show a lack of love and a lack of charity towards the homosexual.
    Q. And to that extent are unchristian?
    A. I would say so."

    The foregoing summary is no doubt an over-compressed version of the evidence given, and to that extent it probably does not reproduce many of the nuances and subtleties of the opinions expressed. But it is an indisputable fact that the evidence of all ten witnesses condemned, in one degree or another, and for a variety of reasons, the impugned sections for being repugnant to the essential human needs of compulsive or obligatory homosexuals and as not being required by – indeed, as being inconsistent with – public order and morality or any of the other attributes comprehended by the constitutional concept of the common good.

    In response to this massive and virtually unanimous volume of evidence, given almost entirely by experts in sociology, theology and psychiatry, the Attorney General adduced no oral evidence whatsoever. If the matters pleaded by him in his defence were susceptible of proof, at least to the extent of disproving or casting doubt on the conclusions expressed by the plaintiff and his witnesses, it would have been well within the resources and competence of the State to adduce such evidence. But the hearing in the High Court is notable for the total absence of controverting evidence. True, efforts were made in cross-examination to get witnesses to accept contrary opinions that were said to have been expressed in the writings or pronouncements of other experts or authorities. But a close study of the evidence shows that the largely unanimous conclusions expressed on oath were essentially as I have summarised them and that they stood uncontroverted at the end of the hearing of the evidence.

    What choice, then, was open to the trial judge? In my opinion, since this was an oral hearing an oath carried out under our adversary system (which is based on the determination, from sworn testimony, according to the required onus and level of proof of the relevant issues), where the outcome of the case depended on a judicial conclusion from the actual or potential effect on our society of specified statutory provisions or of their alternatives, when the conclusions expressed overwhelmingly supported the plaintiff's case, the trial judge was bound in law to reject the Attorney General's defence and to uphold, at least in part, the plaintiff's case. The decision of this Court in Northern Bank Finance v. Charlton [1979] I.R. 179 shows that, if the judge had found the factual conclusions in accordance with the plaintiff's uncontroverted evidence, his findings could not be overturned on an appeal to this Court.

    In the course of his judgment the judge said that what he had to decide was ". . . whether there are grounds on which the legislature, under current social conditions and having regard to the prevailing ideas and concepts of morality and the current knowledge of matters affecting public health etc., could now reasonably come to the conclusion that the acts declared unlawful are such as ought to be prohibited for the attainment of the true social order mentioned in the preamble, the implementation of the principles of social policy directed by Article 45 and the preservation of the public order and morality mentioned in Article 40 of the Constitution." Assuming that to be a correct statement of the foundation on which the case fell to be decided, it was not open to the judge to disregard the consensus of the sworn testimony before him and, in the absence of any sworn evidence to the contrary, and relying presumably on suggestions made in the course of cross-examination and on his own intuition, to reach the conclusion that the impugned provisions, if now enacted would, regardless of their impact on the plaintiff and on those in like case, be constitutionally justifiable.

    The question whether the constitutional provisions he relied on gave the necessary justification depended on a complex of expert evidential considerations – social, moral, medical and others – and, since the unrebutted consensus of the evidence was against the existence of such justification, the judge was debarred from holding otherwise. The position would be quite different if the Attorney General had chosen to present evidence to the contrary. But he decided not to, although it appears from the cross-examination that such evidence was available. As was made clear by the decision of this Court in Ryan v. The Attorney General [1965] I.R. 294, where a constitutional challenge depends on expert opinion about the actual or potential effect of questioned statutory provisions, the constitutional point must be ruled on the basis of the facts or opinions as admitted to be correct or as duly found by the judge from the evidence given. Where the evidence given is entirely to one effect, it cannot be rejected.

    The learned judge (who dealt with this difficult case with commendable thoroughness), in substituting his own conclusions on the personal and societal effects of the questioned provisions, seems to have laid undue stress on the fact that the prohibited acts, especially sodomy, are contrary to the standards of morality advocated by the Christian Churches in this State. With respect, I do not think that should be treated as a guiding consideration. What are known as the seven deadly sins are anathematised as immoral by all the Christian Churches, and it would have to be conceded that they are capable, in different degrees and in certain contexts, of undermining vital aspects of the common good. Yet it would be neither constitutionally permissible nor otherwise desirable to seek by criminal sanctions to legislate their commission out of existence in all possible circumstances. To do so would upset the necessary balance which the Constitution posits between the common good and the dignity and freedom of the individual. What is deemed necessary to his dignity and freedom by one man may be abhorred by another as an exercise in immorality. The pluralism necessary for the preservation of constitutional requirements in the Christian, democratic State envisaged by the Constitution means that the sanctions of the criminal law may be attached to immoral acts only when the common good requires their proscription as crimes. As the most eminent theologians have conceded, the removal of the sanction of the criminal law from an immoral act does not necessarily imply an approval or condonation of that act. Here the consensus of the evidence was that the sweep of the criminal prohibition contained in the questioned provisions goes beyond the requirements of the common good; indeed, in the opinion of most of the witnesses it is inimical to the common good. Consequently, a finding of unconstitutionality was inescapable on the evidence.

    Having given careful consideration to all the evidence, I find that the essence of the unconstitutionality claimed lies not in the prohibition, as a crime, of homosexual acts between consenting adult males but primarily in making that prohibition apply without qualification to consenting adult males who are exclusively and obligatorily homosexual. The combined effect of the questioned sections is to condemn such persons, who are destined by nature to be incapable of giving interpersonal outlet to their sexuality otherwise than by means of homosexual acts, to make the stark and (for them) inhumane choice between opting for total unequivocal sexual continence (because guilt for gross indecency may result from equivocal acts) and yielding to their primal sexual urges and thereby either committing a serious crime or leaving themselves open to objectionable and harmful intrusion by those who would wish to prevent such acts, or to intolerance, harassment, blackmail and other forms of cruelty at the hands of those who would batten on the revulsion that such acts elicit in most heterosexuals.

    One way or the other, the impugned provisions seem doomed to extinction. Whether they be struck down by this Court for being unconstitutional or whether they be deemed invalid elsewhere in accordance with the decision in Dudgeon v. United Kingdom (1981) 4 E.H.H.R. 149 (for being in contravention of the European Convention for the Protection of Human Rights and Fundamental Freedoms) they will require to be replaced with appropriate statutory provisions. It would not be constitutional to decriminalise all homosexual acts, any more than it would be constitutional to decriminalise all heterosexual acts. Public order and morality; the protection of the young, of the weak-willed, of those who may readily be subject to undue influence, and of others who should be deemed to be in need of protection; the maintenance inviolate of the family as the natural primary and fundamental unit of society; the upholding of the institution of marriage; the requirements of public health; these and other aspects of the common good require that homosexual acts be made criminal in many circumstances. The true and justifiable gravamen of the complaint against the sections under review is that they are in constitutional error for overreach or overbreadth. They lack necessary discrimination and precision as to when and how they are to apply.

    The opinion expressed by some of the witnesses in the High Court that homosexual acts in private should he decriminalised must not be taken literally. Indeed it is likely that most, if not all, of the witnesses who gave that opinion would wish, on mature consideration, to qualify it. Even the liberalising Sexual Offences Act, 1967, which was passed in England in consequence of the Wolfenden Report, makes extensive exceptions (e.g., in respect of members of the armed services, in respect of acts committed on merchant ships, and because of limitations imposed by the nature of the statutory definitions) to the immunity from prosecution granted. Similar restricting limitations have been inserted in the Homosexual Offences (Northern Ireland) Order, 1982, which was enacted for the purpose of removing the incongruity in that jurisdiction between the now-impugned statutory provisions and the European Convention, as found in the Dudgeon decision.

    I make reference to these matters to indicate that, despite my finding of unconstitutionality in the impugned sections on the ground that by their overreach and lack of precision and of due discrimination, they trench on an area of personal intimacy and seclusion which requires to be treated as inviolate for the expression of those primal urges, functions and aspirations which are integral to the human condition of certain kinds of homosexuals; save in circumstances when the common good requires otherwise, the Constitution leaves a wide range of choice to the Oireachtas in framing a law in place of the questioned provisions. Not only will the Oireachtas be empowered to make homosexual acts criminal but, for the purpose of upholding the requirements of the common good in its full constitutional connotation, it will be necessary for such legislation to hedge in such immunity from criminal sanctions as it may think fit to confer (on acts of a homosexual nature in private between consenting adults) with appropriate definitions of adulthood, consent and privacy and with such exceptions relating to prostitution, immoral exploitation, publicity, drug abuse, commercialisation, family relationships and such other matters or areas of exception as the Oireachtas may justifiably consider necessary for the preservation of public order and decency.

    I would allow this appeal, thereby holding that (references to bestiality in the impugned sections being outside the range of this litigation) ss. 61 and 62 of the Offences Against the Person Act, 1861, and s. 11 of the Criminal Law Amendment Act, 1885, are inconsistent with the Constitution and were not continued in force or effect by Article 50 of the Constitution.

    Judgment of Griffin J. delivered 22nd of April, 1983

    I also agree with the judgment which has been delivered by the Chief Justice.

    Judgment of McCarthy J. delivered 22nd of April, 1983

    The facts underlying the constitutional questions raised in this appeal are fully set out in the judgments of the Chief Justice and Mr. Justice Henchy. The direct physical and psychiatric effects that the existence of the impugned sections of the relevant statutes have had and are having on the plaintiff scarcely require proof; but there is ample proof of it. It is a feature of modern society in Ireland that the male homosexual is scorned, denigrated and, to a degree, ostracised by a very significant section of the community; it may be that this is because of apparent effeminacy or because of the criminal guilt that attaches under the relevant sections. I am content respectfully to adopt the graphic and moving description of the problems faced by the plaintiff, and others like him, in our society, as specified by Mr. Justice Henchy in his judgment and I would add to his list of those who do not suffer such social sanctions the venal, the dishonest, the corrupt and the like.

    It is not appropriate to seek to make any comparable assessment of the situation of the female homosexual – suffice it to say that no evidence was led at the trial in respect of such persons. From one's own knowledge of life in the Irish community, the situation of the female homosexual is not affected in any significant way either by the existence of the impugned sections or by contemporary mores. But I do not lose sight of the fact that ss. 61 and 62 of the Offences Against the Person Act, 1861, would appear to contemplate participation by a female in the commission of the offences, although she could not be charged as the offender, whilst s. 11 of the Criminal Law Amendment Act, 1885, has no relevance whatever to females, homosexual or otherwise; the offence of gross indecency under that latter statute can only be committed by male persons.

    One does not have to be a homosexual to commit an offence under any of the three sections; it is the act or deed itself that constitutes the offence. In the case of a male homosexual, it is more likely that he, rather than a male heterosexual, will commit such an act or deed; clearly, also, the act proscribed by s. 61 may be committed by a male upon a female, who may be his wife, a feature to which I shall return. Such an act was an offence in the common-law courts by the statute 10 Chas. I, sess. 2, c. 20, and in the older form of indictment it was described as "against the order of nature, that detestable and abominable crime of buggery (not to be named among Christians)" – see 1 East P.C. 480; 12 Co. Rep. 37. In R. v. Jellyman (1838) 8 C. & P. 604 it was held that a married woman who consents to her husband committing an unnatural offence with her was an accomplice in the felony and, as such, her evidence required confirmation, although her consent or non-consent was quite immaterial to the offence.

    Locus standi and Jus tertii

    The plaintiff's locus standi, as such, is beyond question; considerations such as the fact that he has not been prosecuted under any of the sections are irrelevant since the sections impugned are, subject to the constitutional considerations, prima facie part of the law of the State. If there were a positive decision made by the Gardaí or the Director of Public Prosecutions never to prosecute in any such case, in my view it would be unlawful as a positive decision not to enforce the law. In the amended defence delivered by the Attorney General, the only plea made on this issue is that the plaintiff has no locus standi to allege that ss. 61 and 62 of the Act of 1861 are an unconstitutional invasion of the privacy of marriage. Pursuant to that plea, it is contended by counsel for the Attorney General that, although the plaintiff runs the risk of prosecution under the two sections of the Act of 1861, he has not the right to call in aid of his attack upon the constitutionality of the sections the rights that attach to the privacy of marriage. He is an irremediably exclusive homosexual and will never marry; therefore, relying upon the decision of this Court in Cahill v. Sutton [1980] I.R. 269 it is contended that he has not the standing required to enable him to call in aid what may be called abstract constitutional rights.

    In the judgments of the Chief Justice and Mr. Justice Henchy in Cahill v. Sutton [1980] I.R. 269, the observations were expressed to be related to the Court's jurisdiction to decide questions concerning the validity of laws passed by the Oireachtas and did not expressly extend to pre-1937 statutes or, indeed, to pre-1922 statutes. Further, no distinction was made in regard to criminal statutes, as Cahill's Case was concerned with a claim for damages for personal injuries arising from an alleged breach of a contractual duty. At p. 282 of the report Mr. Justice Henchy said:-

    "This general rule means that the challenger must adduce circumstances showing that the impugned provision is operating, or is poised to operate, in such a way as to deprive him personally of the benefit of a particular constitutional right." The emphasis is mine.

    Later he said at p. 284:-

    ". . . he is required, as a condition of invoking the court's jurisdiction to strike down the law for having been unconstitutionally made (with all the dire consequences that may on occasion result from the vacuum created by such a decision), to show that the impact of the impugned law on his personal situation discloses an injury or prejudice which he has either suffered or is in imminent danger of suffering."

    At p. 285 he postulated circumstances in which a person who is not so qualified might be permitted to maintain the attack:-

    "For example, while the challenger may lack the personal standing normally required, those prejudicially affected by the impugned statute may not be in a position to assert adequately, or in time, their constitutional rights. In such a case the court might decide to ignore the want of normal personal standing on the part of the litigant before it. Likewise, the absence of a prejudice or injury peculiar to the challenger might be overlooked, in the discretion of the court, if the impugned provision is directed at or operable against a grouping which includes the challenger, or with whom the challenger may be said to have a common interest – particularly in cases where, because of the nature of the subject matter, it is difficult to segregate those affected from those not affected by the challenged provision. However, those examples of possible exceptions to the rule should not be taken as indicating where the limits of the rule are to be drawn. It is undesirable to go further than to say that the stated rule of personal standing may be waived or relaxed if, in the particular circumstances of a case, the court finds that there are weighty countervailing considerations justifying a departure from the rule."

    In the present case, Mr. Justice McWilliam referred to Cahill v. Sutton [1980] I.R. 269 in these words.

    "As part of the argument with regard to the right to privacy, it is submitted that, as the sections of the Act of 1861 apply to married couples, these sections constitute a violation of the right to privacy of husband and wife in respect of the intimacy of their sexual life, as declared by the Supreme Court in McGee v. The Attorney General. After the evidence in the present case had concluded, the Supreme Court gave judgment in Cahill v. Sutton. In that case the plaintiff alleged that the Statute of Limitations, 1957, violated the provisions of the Constitution because it did not contain a provision which would have preserved the constitutional rights of other persons, who might thereby be prejudiced; but the inclusion of the suggested provision would not have altered the position of the plaintiff in that case and it was held that he was not entitled to rely on a possible prejudice to some other person who had made no claim. The case for the present plaintiff is based on the fact that he is permanently and exclusively homosexual. Therefore, no question can arise of prejudice to him in respect of marital privacy, and it seems to follow from the decision in Cahill's Case that he is not entitled to rely on this ground to challenge the constitutionality of the sections. If the statute is challenged by married persons, they may be able, from the nature of their marriage relationship, to present a case on facts and circumstances which do not arise in the present case."

    At the end of his judgment the learned trial judge makes a further reference to what may be called the sex-discrimination argument.

    "The class of persons affected by the section is that of men, all men, and gross indecency may obviously take quite different forms when committed by men than when committed by women. This is one of the matters which, in my opinion, the legislature may reasonably take into account in deciding what activities should be declared to be unlawful for the preservation of public order and morality and the attainment of true social order.

    Furthermore, on this branch of the argument, the plaintiff is saying, in effect, that there would be no complaint if the law were amended by making it an offence for women to commit acts of gross indecency. If this were done, he would not get any benefit and, by analogy to the decision in Cahill v. Sutton, this is not an argument on which he is entitled to rely."

    The hearing of the present case in the High Court for the taking of evidence appears to have concluded on the 2nd July, 1980; judgment in the Supreme Court in Cahill's Case was delivered on the 9th July, 1980, and the attention of the learned trial judge was subsequently drawn to the decision in that case. Before seeking to examine the reason for the decision in that case, there are certain factors in it to which I should refer and there are two subsequent decisions of this Court that bear upon it. It does not appear from the judgment of the President of the High Court in Cahill's Case that the locus standi of the plaintiff was an issue in the High Court; there is no report of the argument of counsel. Page 275 of the report states:- "Subsequently, the Chief Justice informed the legal advisers of the parties that the members of the Supreme Court wished to hear submissions for and against the proposition that the plaintiff had sufficient locus standi to invoke the Court's jurisdiction to declare the provisions of s. 11, sub-s. 2(b), of the Statute of Limitations, 1957, invalid having regard to the provisions of the Constitution of Ireland, 1937. The issue of the locus standi of the plaintiff was tried by the Supreme Court on the 5th February, 1980."

    King v. The Attorney General [1981] I.R. 233 was also heard by Mr. Justice McWilliam and his judgment was delivered on the 24th October, 1978. The plaintiff in that action challenged the constitutionality of s. 4 of the Vagrancy Act, 1824, and s. 15 of the Prevention of Crimes Act, 1871, and s. 7 of the Penal Servitude Act, 1891. The learned judge, presumably because no such pleading was raised, makes no reference to locus standi in his judgment. The argument of the 21st February, 1980, on the appeal (as reported at p. 245) does not advert to this question. At pp. 249-50 of the report the Chief Justice says:-
    "In my view, he was also right in confining his decision to the questioned provision and in not pronouncing on other parts of s. 4 of the Act of 1824. Having been convicted, the plaintiff had an interest and a locus standi to complain in relation to the statutory provisions under which he had been convicted. This, in my view, he has done successfully in relation to at least one of the loitering offences. However, I cannot see that any inconsistency with the Constitution was, or could be, suggested in relation to the provision creating the offence of being in possession of housebreaking implements with a felonious intent. As Mr. Justice McWilliam pointed out, s. 4 of the Act of 1824 creates many separate and distinct offences. The fact that s. 15 of the Act of 1871 applies all of s. 4 of the Act of 1824 to Ireland is no ground for suggesting that, upon inconsistency in relation to one portion of s. 4 (as amended) being established, the provisions of s. 15 itself and, as a consequence, all of s. 4 should fall also. In my view, such a result would violate the provisions of Article 50 of the Constitution. This is not to say that all of the rest of s. 4 of the Act of 1824 is consistent with the Constitution. In my view, it is not. It suffices for me to say that the provision creating the offence in relation to the possession of housebreaking implements is, and that, in relation to other provisions, the plaintiff has no locus standi to complain." The emphasis is mine.

    Despite the terms of the head-note of the report of King's Case: , stating that Cahill v. Sutton [1980] I.R. 269 was applied by the Court as a whole, I do not find in the Chief Justice's judgment any words supporting a proposition that possible infringements of the abstract rights of others may not be called in aid by an individual affected, or in imminent danger of being affected, by a section of a particular statute; the Chief Justice does no more than confirm what I believe to be the true rule of locus standi which is that, ordinarily, the challenger must demonstrate personal impact. In his judgment, with which Mr. Justice Griffin and Parke J. agreed, Mr. Justice Henchy said at pp. 257-8 of the report:- "I am in full agreement with Mr. Justice McWilliam that the impugned provisions (as represented by the version of them which I have set out in this judgment), because of their inconsistency with the Constitution and, particularly, having regard to Article 50, s. 1, failed to have the force or effect of law upon the coming into operation of the Constitution. I am also in agreement with his decision to the effect that the defects relied on by the plaintiff circumscribed his case to such an extent that he had no standing to impugn the constitutionality of other provisions in the sections in question, which did not bear on the convictions of which he complained: see the decision of this Court in Cahill v. Sutton [1980] I.R. 269. "At p. 262 he says:- "Thirdly, I would reject the submission made on behalf of the plaintiff that Mr. Justice McWilliam should have declared unconstitutional the whole of s. 4 of the Act of 1824 (as so applied to Ireland and amended). The plaintiff has not the necessary locus standi to seek such a declaration. The essential relief sought by him can be granted, and is being granted, without entering into any wider investigation of the constitutionality of the section."

    I confess that, reading the judgment of Mr. Justice McWilliam in King's Case, I am unable to find any expression of opinion by him to the effect that the defects relied on by the plaintiff circumscribed his case to such, an extent that he had no standing to impugn the constitutionality of other provisions in the sections in question which did not bear on the convictions of which he complained. At that time, of course, Cahill's Case had not been decided in the Supreme Court. In his short judgment in King's Case, Kenny J. makes no reference to the issue of locus standi, in any form, but concurs in the order proposed by Mr. Justice Henchy. In the circumstances, it appears to me that King's Case, in which the issue of locus standi does not appear to have been argued at the Bar is, at best, authority for the proposition that where a section of a statute creates a multitude of offences, the constitutional validity of the several parts of such section may only be challenged by an individual who is charged with an offence under the relevant portion of the section – but he may not challenge the constitutional validity of other portions of the same section creating other offences. As such, it has little relevance to the instant case. In The State (L'Henryenat) v. The Attorney General [1983] I.R. 193 Miss Justice Carroll applied Cahill's Case.

    In The State (Lynch) v. Cooney [1982] I.R. 337 the prosecutor challenged the constitutional validity of s. 31, s. 1, of the Broadcasting Authority Act, 1960, as inserted by s. 16 of the Broadcasting Authority (Amendment) Act, 1976, and the validity of the Broadcasting Authority Act, 1960 (Section 31) (No. 2) Order, 1982. Under the heading of locus standi, the Chief Justice referred, at p. 362 of the report, to Cahill's Case and said:- "In Cahill v. Sutton [1980] I.R. 269 this Court decided that in the absence of a sufficient interest on the part of the plaintiff, as to the effect of an impugned law on his rights or personal situation, such a challenge would not be entertained" and he cited that portion of the judgment of Mr. Justice Henchy at p. 284 of the report of Cahill's Case to which I have already referred. In Lynch's Case the prosecutor and, through him, his party "were given such access [to make election broadcasts] by the Authority and would have been entitled to act on the invitation extended to them were it not for the order made by the respondent Minister. The invitation was not withdrawn by the Authority – it was rendered inoperable by ministerial intervention. In such circumstances the prosecutor and his party were deprived of the benefit lawfully accorded to them in the first instance and, in my view, were entitled to complain if the deprivation were unlawful. Accordingly, in my view, the prosecutor has sufficient standing to complain that s. 31, sub-s. 1, under which the order was made (which order deprived him of broadcasting time accorded to him by the Authority) is invalid having regard to the provisions of the Constitution" – per O'Higgins C.J., see pp. 362-3 of the report.

    In the same case Mr. Justice Walsh examined at some length the question of whether or not the prosecutor had a sufficient, or any, interest to maintain the proceedings. At pp. 368-9 of the report he said:- "Certiorari has been described as 'this great remedy' by Kenny J. – it is one of the procedures available to initiate judicial review of administrative actions, among other things. It has also been observed that restrictive rules about standing are, in general, inimical to a healthy system of administrative law. The question of the judicial control or review of the administrative acts of public authorities has given rise, not surprisingly, to a considerable amount of judicial opinion upon the question of what sufficient interest is required of the party bringing the public authority before the court. This subject has also arisen in the international sphere covering procedures of such courts as the International Court of Justice, the European Court of Human Rights and the Court of Justice of the European Communities. For example, in the last-named court the private individual plays a very small part in the supervision of the legality of Community action, whereas in proceedings before the European Court of Human Rights he has far greater scope. In national jurisdictions, and particularly in the member States of the European Economic Community, the question has given rise to much case law. In the latter States the actio popularis is admissible in its classical form only in quite exceptional cases. However, there may be circumstances in particular contexts in which, in effect, such an action may be allowed. In Ireland it is sufficient to be 'a person aggrieved' – a term to be generously interpreted – which is generally understood to include any person who has reasonable grounds to bring the proceedings. Broadly speaking the test would be the same whether one is proceeding for certiorari or for a declaratory action. Each of these is a discretionary remedy but not in the sense that the grant or refusal may be at the whim of the court. The discretion of a court to refuse either of these remedies to a person aggrieved is very limited and, normally, they will issue ex debito justitiae.."

    Mr. Justice Walsh continues in Lynch's Case to cite a number of decisions of the British courts in Ireland and of English courts and then, at pp. 370-71 of the report, says:- "The many decisions of the Courts of Ireland and of other national jurisdictions amply illustrate the truth of the statement that a question of what is a sufficient interest is to be determined having regard to the circumstances of each case. When one examines the same question in the context of declaratory orders the conclusion is the same, i.e., that the person concerned must be able to show sufficient interest or a 'real interest' – see Transport Salaried Staffs' Association v. Córas lompair Éireann [1965] I.R. 180 – and that again will depend upon the circumstances. In an action such as the present (which ultimately raises a question of the validity of an Act of the Oireachtas having regard to the provisions of the Constitution) which was initiated by way of certiorari and is tantamount in its effect, if successful, to a declaratory order, the question is whether the test should be any different by reason of the challenge to the constitutionality of the Act of 1960. In my view it should not. The question of the sufficiency of interest must be examined in the light of the particular circumstances. As the Chief Justice pointed out in his judgment, the test laid down in Cahill v. Sutton [1980] I.R. 269 for determining a sufficiency of interest is an obligation to show that 'the impact of the impugned law on his personal situation discloses an injury or prejudice which he has either suffered or is in imminent danger of suffering.' In the judgment of the Court in East Donegal Co-Operative v. The Attorney General [1970] I.R. 317, this Court expressly rejected (at p. 338 of the report) the contention that it was necessary for a plaintiff to show that the provisions of the legislation impugned applied not only to the activities in which he was currently engaged but that their application has 'affected his activities adversely. This decided that a person does not have to wait to be injured) Once again, the question of sufficiency of interest will depend upon the circumstances of the case and upon what appears to be the extent or nature of the impact of the impugned law on the plaintiff's position. As was stated in the East Donegal Case (at p. 338):- 'To afford proper protection, the provisions [of the Constitution] must enable the person invoking them not merely to redress a wrong resulting from an infringement of the guarantees but also to prevent the threatened or impending infringement of the guarantees and to put to the test an apprehended infringement of these guarantees.' Thus while it may be said that in most systems of law, including our own, nowhere is an actio popularis admitted in respect of alleged invalidities, yet there may be circumstances in particular contexts in which, in effect, such an action may be allowed." I have added the emphasis.

    Mr. Justice Henchy, whose judgment in Lynch's Case did not receive express support from any of his colleagues, was dealing extensively with matters which are extraneous to the present issue and holding that the decision of the former Supreme Court in In re Ó Laighleis [1960] I.R. 93 should be overruled. At pp. 381-3 of the report he said:- "Has the prosecutor the standing necessary for impugning the constitutionality of the section under which the Minister's order was made? It was urged on behalf of the Minister that the prosecutor had no right at common law, by statute, or under the Constitution to make a political party broadcast, or any other kind of broadcast, on radio or television; that the general rule stated in Cahill v. Sutton (at p. 284) requires a litigant in the prosecutor's position 'to show that the impact of the impugned law on his personal situation discloses an injury or prejudice which he has either suffered or is in imminent danger of suffering'; and that no reason has emerged from the circumstances of this case to justify a departure from that general rule. . . But once the Authority made its decision and promulgated it to Sinn Féin and to the public (i.e., that, as part of its scheme of allocation of political party broadcasts, it would allow Sinn Féin to make one two-minute broadcast on each of the Authority's five broadcasting outlets), the prosecutor, as the nominated broadcaster for Sinn Féin, had a vested defeasible right, as between himself and the Authority, to make that broadcast, subject only to approval of its content by the Authority. However, before a text of the proposed broadcast could be submitted for approval, the Minister intervened by making the impugned order, thus nullifying the right of the prosecutor to make the broadcast. The documents which are before us would not suggest that the text of the proposed broadcast would be unacceptable to the Authority. Consequently it must be held that it was the Minister's intervention under s. 31, sub-s. 1, that divested the prosecutor of the right to broadcast which had been given by the Authority, and which had been accepted by him and his party. . . For the reasons I have given, I consider that the prosecutor had locus standi to question the constitutionality of s. 31, sub-s. 1, of the Act of 1960."

    In Cahill's Case (in which, incidentally, judgment was delivered after the plaintiff had died; the defendant having died on the 28th January, 1980, and the Bank of Ireland, as the executors of his will, having been substituted as, defendant) the plaintiff's action was clearly barred by the provisions of s.11, sub-s.2(b), of the Statute of Limitations, 1957. Accordingly, her locus standi as "a person aggrieved" could not be in doubt. Her claim was defeated by the relevant section. She said the section was unconstitutional because of the absence of a saving clause enabling a plaintiff to escape the rigour of the period of limitation if, for instance, he were unaware of the material facts until after the expiration of the period, or for other appropriate reasons; in those circumstances, she submitted, the absolute nature of the bar was a failure by the State to give effect to the guarantee in Article 40, s. 3, sub-s. 1, of the Constitution. Referring to Mrs. Cahill's knowledge, Mr. Justice Henchy said at p. 280 of the report:- "Within weeks of the commencement of her treatment in 1968 she knew of the facts which, according to her, constituted a breach of contract, and of their prejudicial effects on her. Yet she did not bring her action within the three-year period. It is clear – indeed, it is admitted – that the plaintiff would still be shut out from suing after the three-year period of limitation even if the suggested saving provision had been included in the Act of 1957."

    At p. 282 of the report of Cahill's Case Mr. Justice Henchy cited portion of the judgment of this Court, delivered by Mr. Justice Walsh, in East Donegal Co-Operative v. The Attorney General [1970] I.R. 317 (from p. 338):-

    "With regard to the locus standi of the plaintiffs the question raised has been determined in different ways in countries which have constitutional provisions similar to our own. It is unnecessary here to go into this matter in detail beyond stating that at one end of the spectrum of opinions on this topic one finds the contention that there exists a right of action akin to an actio popularis which will entitle any person, whether he is directly affected by the Act or not, to maintain proceedings and challenge the validity of any Act passed by the parliament of the country of which he is a citizen or to whose laws he is subject by residing in that country. At the other end of the spectrum is the contention that no one can maintain such an action unless he can show that not merely do the provisions of the Act in question apply to activities in which he is currently engaged but that their application has actually affected his activities adversely. The Court rejects the latter contention and does not find it necessary in the circumstances of this case to express any view upon the former."

    Mr. Justice Henchy continues, at p. 282 of the report of Cahill's Case , as follows:-

    "It should be observed that the contrast drawn in that passage is between two widely divergent opinions or contentions and not between two opposing judicial attitudes taken up in other countries. In point of fact, in no comparable jurisdiction to which the Court's attention has been directed does either of those two polarised opinions or contentions seem to have received authoritative judicial acceptance. On the contrary, in other jurisdictions the widely accepted practice of courts which are invested with comparable powers of reviewing legislation in the light of constitutional provisions is to require the person who challenges a particular legislative provision to show either that he has been personally affected injuriously by it or that he is in imminent danger of becoming the victim of it this general rule means that the challenger must adduce circumstances showing that the impugned provision is operating, or is poised to operate, in such a way as to deprive him personally of the benefit of a particular constitutional right. In that way each challenge is assessed judicially in the light of the application of the impugned provision to the challenger's own circumstances."

    The learned judge does not identify the "other jurisdictions" in which this is the widely accepted practice. Nor is it apparent from the report that reference was made to any jurisdiction other than that of the United States. I am, however, aware of what appears to be the practice in the Federal Supreme Court of the United States to which I shall return. It is to be