IESC 55 · Supreme Court

THE SUPREME COURT

Keane C.J.

Denham J.

Murray J.

McGuinness J.

Hardiman J.

130/03

BETWEEN

MELTON ENTERPRISES LIMITED

APPLICANTS / APPELLANTS

AND

THE CENSORSHIP OF PUBLICATIONS BOARD IRELAND

AND THE ATTORNEY GENERAL

RESPONDENTS

JUDGMENT of the Court delivered by Keane C.J. pursuant to Article 34.4.5 of the Constitution the 4th November 2003

Introduction

This is the judgment of the court on the question raised in these proceedings as to the validity of certain provisions of the Censorship

of Publications Act, 1946 (hereafter “the 1946 Act”) having regard to the provisions of the Constitution.

The factual background to the case is as follows. The appellants are a limited liability company incorporated in the United Kingdom

which is the owner and proprietor of two newspapers which are sold in Ireland, under the titles respectively of “The Midweek Sport”

and “The Weekend Sport”. Their combined sales in the State amount to approximately 25,000 copies per week. They are tabloid

newspapers which compete in the State with other tabloid newspapers such as The Irish Sun, The Irish Mirror and The Star.

The first named respondent (hereafter “the Board”) are a statutory body established pursuant to s. 2 of the 1946 Act. The long title

of that Act describes it as

“An Act to make further and better provision for the censorship of books and periodical publications”

Section 9 of the 1946 Act provides inter alia that

“[The Board] shall examine the issues recently theretofore published of every periodical publication in respect of which a

complaint is made to them in the prescribed manner by any person, and if they are of opinion that the said issues:-

(a) have usually or frequently been indecent or obscene, or …

(c) have devoted an unduly large proportion of space to the publication of matter relating to crime,

and that for any of the said reasons the sale and distribution in the State of the said issues and future issues of that periodical

publication should be prohibited, they shall by order prohibit the sale and distribution thereof accordingly.”

On the 25th April, 2001, the Board served a notice in the prescribed form on the respondents in the following terms

“You are the publisher of the periodical publication: Weekly Sport.

In pursuance of the powers conferred on them by s. 7 and 9 of the [1946 Act] (as amended by the Health (Family Planning)

Act, 1979 and the Regulation of Information (Services outside the State for Termination of Pregnancies) Act, 1995) [the Board]

propose to determine whether they should make a prohibition order in respect of this periodical publication for the following

reason -

(c) that the issues recently published of the periodical publication (in respect of which a complaint has been duly made

to them) –

(i) have usually or frequently been indecent or obscene,

(iii) have devoted an unduly large proportion of space to the publication of matter relating to crime,

and you are hereby notified that the Board will consider any representations you may wish to make to them before they make

a decision in this case.”

On the 2nd May, the applicant’s solicitors wrote to the Board indicating that they intended to make representations to the Board in

respect of the notice. They requested the Board in that letter to furnish “precise details” of all complaints which had been received

concerning their clients’ publication. On the 4th May, the Board replied stating

“Enclosed is a copy of the only complaint exclusive of the identity of the complainant which the Board received in accordance

with the censorship of publications legislation.”

On the 14th May, the applicant’s solicitors wrote inquiring as to the legal basis on which the Board had withheld the complainant’s

name. In their reply on 17th May, the Board said

“The Board takes the view that there is no obligation resting upon it to divulge the identity of a complainant and it is not its

policy to do so.”

In further correspondence between the Board and the applicant’s solicitors, it transpired that there had been a further complaint, a

copy of which was furnished to the applicant’s solicitors, the identity of the complainant again not being disclosed. On the 18th June,

the solicitors wrote reiterating their view that the identity of the complainants should be divulged. They also inquired whether these

were separate complaints and whether either of the complainants was a body corporate. In their reply on the 2nd July, the Board

stated

“The complaints of which you have been notified are separate complaints received from separate persons. Neither of the

complainants is a body corporate.

As already indicated to you it is the policy of the Board to protect the identity of complainants, in the public interest of

encouraging vigilance among readers of publications and encouraging reports to the Board where appropriate.”

In further correspondence, the Board said that as far as they knew there was no association between the persons who made the

individual complaints. They also said that each complainant had been written to asking whether they wished to be identified and that

neither complainant had authorised identification. The Board said that they had no reason to believe that the complaints had not been

made “in good faith”.

The two sides having maintained their respective positions in further correspondence, the applicants then sought leave from the High

Court to issue proceedings by way of judicial review claiming

(i) an order of certiorari quashing the decision of the Board not to disclose the identities of the complainants;

(ii) an order of prohibition preventing the Board from determining whether they should make a prohibition order in respect of the

publication until they disclosed the identities of the complainants;

(iii) an order of mandamus directing the Board to disclose the identities of the complainants;

(iv) declarations that the decision of the Board not to disclose the identities of the complainants was inconsistent with the

Constitution and not in accordance with natural and constitutional justice;

(v) a declaration that s. 9 of the 1946 Act was repugnant to Article 34.1 of the Constitution in providing for the exercise of

judicial functions and powers, other than limited functions and powers, by the Board, a body which was not a court established

under the Constitution.

The complaints received by the Board and transmitted to the applicant’s solicitors said inter alia that the “Weekly Sport” was not a

newspaper in the generally understood sense and devoted much space to material of a pornographic nature and advertisements

offering the services of prostitutes and was of such a nature as to encourage the commission of rape, child abuse and other serious

offences.

Leave having been given to institute these proceedings, and a statement of opposition having been filed on behalf of the

respondents, the substantive hearing came on before the High Court before Kearns J. In a reserved judgment, he refused to grant the

applicants any of the relief claimed. The applicants have appealed to this court from that judgment and this is the judgment of the

court on so much of the appeal as relates to the refusal of the High Court judge to grant a declaration that certain provisions of the

1946 Act were invalid having regard to the provisions of the Constitution.

The Censorship of Publications code

Censorship of books and periodicals was established for the first time in Ireland by The Censorship of Publications Act, 1929. Much of

that Act was repealed by subsequent legislation and the principal provisions affecting the issues which arise in these proceedings are

contained in the 1946 Act.

Section 2(1) of that Act provides for the establishment of the Board, which is to consist of five persons appointed by the Minister for

Justice, Equality and Law Reform. Section 3 provides for the establishment of the Censorship of Publications Appeal Board. Section 6,

7 and 8 of the Act are concerned with the examination of books, as distinct from periodical publications.

Section 9(1), which provides for the examination of periodical publications in respect of which complaints are made to the Board, has

already been set out. Section 9(3) provides that a prohibition order under the section is to last for a period of twelve months, six

months or three months, depending on the intervals at which the publication was ordinarily published.

Section 3 provides for the establishment of a Censorship of Publications Appeal Board consisting of five members, the Chairman of

which is to be a judge of the Supreme Court, High Court or Circuit Court or a practising barrister or practising solicitor of not less than

seven years standing and four ordinary members. The members are appointed by the Minister for Justice, Equality and Law Reform.

Section 10 provides that the Appeal Board may at any time, on the application of the publisher of a periodical publication or of any

five persons, each of whom is a member of Dáil Eireann or Seanad Eireann, revoke a prohibition order in respect of a periodical

publication or vary the order so as to exclude from its application any particular edition or issue of the periodical publication.

Section 11 provides that four members of the Board are to constitute a quorum at any of its meetings and that a prohibition order is

not to be made unless at least three of the members vote in favour of the making of the order and not more than one member votes

against it. Section 14 deals with the prohibition of the sale and distribution of prohibited publications. It provides that

“(1) No person shall, except under and in accordance with a permit -

(a) sell, or expose, offer, advertise or keep for sale, or

(b) distribute, or offer or keep for distribution,

any prohibited book or any prohibited periodical publication.

(2) Every person who acts in contravention of subsection (1) of this section shall be guilty of an offence under this section and

shall be liable on summary conviction thereof to a fine not exceeding fifty pounds or at the discretion of the court, to

imprisonment with or without hard labour for a term not exceeding six months or to both such fine and such imprisonment

and, in any such case, to forfeiture of the relevant prohibited book or prohibited periodical publication.”

Section 16 provides for the keeping of a register of prohibited publications by the Board and in ss. (9) provides that the fact that a

periodical publication is at any particular time entered in the register shall be conclusive evidence that a prohibition order has been

made in regard to it and that the order is at that time still in force.

The 1946 Act has been amended in a number of respects by subsequent legislation, but none of the amending provisions is of any

relevance to these proceedings.

There is no definition in any of the Acts of the word “obscene”. Section 1 of the 1946 Act provides that

“In this Act … the word ‘indecent’ includes suggestive of, or inciting to, sexual immorality or unnatural vice or likely in any

other similar way to corrupt or deprave.”

Submissions of the Parties

On behalf of the appellants, Mr. John Gordon S.C. submitted that a finding of indecency of obscenity and/or the making of a

prohibition order was tantamount to a finding that a criminal offence had been committed. He further submitted that the powers

vested in the Board by s. 9 were judicial in nature and could not be regarded as “limited” within the meaning of Article 37 of the

Constitution. He urged that, even if “limited”, the provisions in question enabled them to be exercised in what are properly described

as “criminal matters”, contrary to the provisions of Article 37. He referred in support of these submissions to Article 40.6.1(i) of the

Constitution which provides that the publication of indecent matter is an offence which is to be punishable in accordance with law

and to the decisions of this court in Irish Family Planning Association Limited –v- Patrick Ryan & Ors [1979] I.R. 295, and Keady –v-

the Garda Commissioner [1992] 2 I.R. 197 and of the former Supreme Court in Re. Solicitors Act, 1954 [1960] I.R. 239.

On behalf of the respondents, Mr. Kevin Cross S.C. submitted that the Board was a tribunal vested with limited functions and powers

of a judicial nature as provided for in Article 37. The powers were clearly distinguishable from the power to strike a solicitor off the

rolls purportedly vested in a disciplinary committee by the Solicitors Act, 1954 and were more akin to the orders upheld in Keady –v-

the Garda Commissioner and in the High Court decision of The State (Murray) –v- McRann [1979] I.R. 133. They were clearly not

powers in “criminal matters”, since neither the determination by the Board that a periodical publication was “indecent or obscene”

nor the making by them of a prohibition order in respect of such a publication had as its consequence the subjecting of any person or

body to any criminal liability. Insofar as passages in the judgments of O’Higgins C.J. and Kenny J. in Irish Family Planning Association

Limited –v- Ryan indicated a contrary view, he submitted that they were obiter observations which were erroneous in law and should

not be followed.

Conclusions

As the former Supreme Court held in Re. Article 26 of the Constitution and the Offences against the State (Amendment) Bill, 1940

[1940] I.R. 470 and as has been reiterated in subsequent decisions, where any particular law is not expressly prohibited and it is

sought to establish that it is repugnant to the Constitution by reason of some implied prohibition or repugnancy, such repugnancy, as

a matter of construction, must be clearly established. However, as laid down by the court in McDonald –v- Bórd na gCon & Anor

[1965] I.R. 217, if in respect of the impugned provisions, two or more constructions are reasonably open, one of which is

constitutional and the other unconstitutional, it must be presumed that the Oireachtas intended only the constitutional construction.

The court must also apply the consequential presumption, identified in its judgment in East Donegal Cooperative Limited –v- The

Attorney General [1970] I.R. 317 that the Oireachtas intended that any procedures permitted or prescribed by an Act of the

Oireachtas will be conducted in accordance with the principles of constitutional justice.

Article 34.1 of the Constitution provides that

“Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution …”

The administration of justice is thus exclusively the province of the courts. However, Article 37.1 provides that

“Nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in

matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and

powers, notwithstanding that such person or such body of persons is not a judge or a court appointed or established as such

under this Constitution.”

The appellants argue that, since the powers and functions of the Board relate to “criminal matters”, they are not validated by Article

37.1.

The court is satisfied that this submission is misconceived. Assuming that the powers and functions vested in the Board by the

impugned sections are judicial in nature and that their exercise by the Board constitutes the administration of justice, they are clearly

not powers and functions which are exercised by them in “criminal matters” within the meaning of Article 37.1. Where the required

number of the Board form the opinion that recent issues of a periodical publication have usually or frequently been indecent or

obscene and the Board make a prohibition order in respect of the publication, they are not adjudicating on the criminal liability of any

body or person. No body or person as a result suffers any form of punishment normally the consequence of criminal conduct, i.e.

imprisonment, the imposition of a fine or a community service order or the seizure or confiscation of any property. While the

publication of indecent or obscene matter is an offence at common law (see R. –v- Hicklin [1868] L.R. 3QB 360) and its publication is

also declared to be an offence under Article 40.6.1(i) of the Constitution, a person can only be rendered amenable by the criminal law

in respect of any such publication in criminal proceedings properly instituted and heard by a court established under the Constitution.

The court is satisfied that the expression “criminal matters” in Article 37.1 refers to criminal procedures of that nature and adopts

the following statement of the law by Finlay P., as he then was, in The State (Murray) –v- McRann:

“A crime or criminal charge must be defined … as an offence against the State itself or as a public offence. A criminal matter

within the meaning of Article 37 can be construed as a procedure associated with the prosecution of a person for a crime. It

may be the preliminary investigation of such a charge, it may be the trial itself, it could be an appeal from the trial or

presumably an application for bail pending trial or appeal. The essential ingredient of a criminal matter must be its association

with the determination of the question as to whether a crime against the State or against the public has been committed.”

The forming by members of the Board of an opinion that a publication has been frequently indecent or obscene and the making of a

prohibition order, as has already been pointed out, do not constitute an adjudication by the Board that any person or body has

committed a crime. A person who sells or distributes a publication in respect of which a prohibition order has been made becomes

amenable to the processes of the criminal law under s. 14 and the publisher may also be prosecuted at common law in respect of the

publication, but that does not give the proceedings of the Board any of the attributes of a criminal nature which are the essential

features of “criminal matters” within the meaning of Article 37.1 of the Constitution.

In support of their submissions, the appellants relied on two passages in the judgments of this court in Irish Family Planning

Association Limited –v- Patrick Ryan & Ors. O’Higgins C.J. (at p. 313) said:

“A prohibition order carries with it the inevitable implication that those responsible for the publication have been guilty of

conduct deserving of public condemnation and also that they have probably been guilty of a criminal offence.”

Kenny J. (at p. 20) said

“The decision to prohibit the sale and distribution on the ground that it was indecent or obscene involved a very serious

implication against them that each of them had committed a criminal offence, for it was rightly conceded by counsel for all

the defendants that the publication of an indecent or obscene booklet is a crime under the common law: R. –v- Hicklin.”

If the learned judges in those passages were indeed expressing the view that a decision by members of the Board that a publication

was indecent or obscene and that a prohibition order should be made was in law an adjudication that the publishers had committed a

criminal offence – and it is not clear that they were – the court is satisfied that that view was erroneous and should not now be

followed. They were in any event at best clearly obiter observations, since there is nothing in the judgments of O’Higgins C.J. or

Kenny J. which would suggest that their conclusion – that the Board should have considered whether they should communicate with

the publishers before deciding whether to make a prohibition order – would have been any different, if the Board’s determination that

the publication in question was indecent or obscene did no more than seriously injure the good name of the publishers.

The alternative argument advanced on behalf of the appellants was that the powers conferred on the Board by s. 19 were judicial in

nature but were not “limited” within the meaning of Article 37.1 and, accordingly, were powers and functions that could only be

exercised by a court established under the Constitution.

It was accepted on behalf of the respondents that the powers and functions in question were judicial. The issue, accordingly, that

has to be determined is whether, although judicial, they were “limited” in nature within the meaning of Article 37.1.

Giving the decision of the former Supreme Court in Re. Solicitors Act, 1954, Kingsmill Moore J. said

“The test as to whether a power is or is not ‘limited’ in the opinion of the court, lies in the effect of the assigned power when

exercised. If the exercise of the assigned powers and functions is calculated ordinarily to affect in the most profound and far

reaching way the lives, liberties, fortunes or reputations of those against whom they are exercised they cannot possibly be

described as ‘limited’.”

In that case, the assignment to a disciplinary committee of the function of determining whether a solicitor should be struck off the

rolls was held to be constitutionally invalid, because the functions so assigned were judicial in nature and not “limited” within the

meaning of Article 37.1. It is clear from the judgment of Kingsmill Moore J. that two factors led to the court’s conclusion that the

provisions were constitutionally invalid and not saved by Article 37.1. The first was the consequence for a solicitor of being struck off

the rolls, which was described as a sanction of such severity that in its consequences it could be much more serious than a term of

imprisonment. The second was that the act of striking solicitors off the rolls had always been reserved to judges.

No such considerations arise in the present case. Undoubtedly, a determination by the Board that a person or body has published an

indecent or obscene periodical is one which could adversely affect the reputation of the publisher. The same could be said of many

other decisions which are legitimately made by bodies other than courts which are entrusted by the Oireachtas with powers and

functions of a judicial nature. The specific consequence which follows – a ban on the sale or distribution of the publications for a

limited period – is far removed in gravity from the disqualification of a person from carrying on a trade or profession. The effects of

the Board’s functions, although in some instances at least of a serious nature, cannot in the view of the court, be described as

“profound and far reaching”. It follows that the functions and powers vested in the Board by s. 9 of the 1946 Act, although of a

judicial nature, are “limited” within the meaning of Article 37.1 of the Constitution.

The court will, accordingly, dismiss the appeal from the order of the High Court refusing a declaration that the provisions of s. 9 of the

1946 Act are invalid having regard to the provisions of the Constitution.