Constitutional Rights (LAW 10060) 2007/2008

Student Number: 07901682 Submission Date: Friday 7th March Course Title: Constitutional Rights (Law 10060)

Assigned Problem
The Criminal Law (Sexual Offences) Act, 1993 section 8 provides: 8.(1) A member of the Garda Sochna who has reasonable cause to suspect that a person is
loitering in a street or public place in order to solicit or importune another person or other persons for the purposes of prostitution may direct that person to leave immediately that street or public place. (2) A person who without reasonable cause fails to comply with a direction under subsection (1) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding (a) [317.43], in the case of a first conviction, (b) [634.86], in the case of a second conviction, or (c) [634.86] or to imprisonment for a term not exceeding 4 weeks or to both, in the case of a third or any subsequent conviction. (3) In this section loitering includes loitering in a motor vehicle.

Girls on the Street is a voluntary organisation concerned with the welfare of prostitutes. A company limited by guarantee, its board of directors includes social workers, psychologists, medical practitioners, lawyers and ex-Garda; all have extensive professional experience of working with women involved in prostitution. The Garda Commissioner has issued a circular announcing a policy of zero tolerance for street prostitution. Girls on the Street feels both that the powers given by section 8 of the Act are too broad in scope and that the Gardas current use of them, on foot of the circular, results in harassment of women who happen to be prostitutes and may put their personal safety at risk. Girls on the Street cannot find any prostitute who is willing to bring a case claiming that section 8 is unconstitutional (or its application unlawful) and

1 of 13

who is likely to be able to pursue a case to a conclusion.

1. (7.5% of the module credit) Can Girls on the Street itself bring such an action?
Can one of its directors or its employees act as the plaintiff or applicant?

Girls on the Street can bring forward an action challenging the constitutionality of the validity of section 8 of the Criminal Law (Sexual Offences) Act, 1993, as they are a bone fide organisation made up of professionals who have common interests about the welfare of those who will be immediately affected by such a provision. They are a charitable organisation, and as such are bringing forward the challenge on behalf of citizens affected who are too vulnerable, both in terms of legal and social standing to come forward and place an action themselves. In order to challenge the constitutionality of a statue before the courts, a plaintiff must have sufficient locus standi before an action can be made. This issue of locus standi is one which refers to a persons legal standing, or their right to sue against a piece of legislation which they feel may be infringing their rights as set out in the constitution of Ireland 1937.1 The basic test of locus standi was established by the leading case in this area, Cahill v Sutton2, where it was determined by Henchy J, apart from exceptional cases-[this case] definitively limited locus standi to persons who could point to a detriment, actual or apprehended, to themselves resulting from the acts operation. From this ruling, the principle that the plaintiff must be immediately affected by such an infringement of the constitution, and personally hindered before a challenge will become valid in the eyes of the courts was established.
1 Fergus w. Ryan, Constitutional Law, (Round Hall Sweet and Maxwell, Dublin 2002) ,p.21 2 Cahil v Sutton [1980] I.R 269

Constitutional Rights (LAW 10060) 2007/2008

In Cahill v Sutton, the plaintiff brought forward charges of negligence against the defendant, a practicing gynecologist. The plaintiff had been injured but had not commenced proceeding within the time frame stipulated in the statue of limitations 1957, as a result her claim was not successful. Ms Cahill argued that this infringed the constitutional rights of a person who might not be aware of their injuries until the time period has elapsed. The court deemed this argument unsuccessful as the plaintiff was aware of her injuries and couldnt argue on the basis of a hypothetical third party (jus tertii), which had no direct impact on her. Such a view taken by the court to establish locus standi was to prevent the wasting of court time and stop the courts becoming the happy hunting ground of the busybody and the crank3 In the common law system active in Irelands judiciary, precedent causes this judgment to be relied on in similar cases concerning legal standing, thus giving foundations upon which future cases can be judged, so that the courts are not required to pronounce on a moot; that the case will not be decided in the abstract and that one litigant will not be permitted to argue what, in effect, is another litigants case. 4 As a result cases coming before the courts after this judgment, such as Norris v Attorney General5 were subject to the pre-dictated legal principles established in the Cahill case and were deemed unsuccessful as they did not establish personal affliction needed for locus standi. However there have in recent years been a relaxation of the rule governing locus standi, and the courts have realized that it is a rule of practice, and Must like all rules
3 James Casey, Constitutional Law in Ireland 2nd ed, (Sweet and Maxwell, London 1992), p287 OHiggins CJ 4 Kelly, The Irish Constitution (4th ed; 2003) 5 Norris v Attorney General [1984] I.R 36

3 of 13

be subject to expansion, exception or qualification when the justice of the case so requires.6 Henchy J in the case of Cahill7 recognized the need for flexibility in locus standi rulings and depicted two situations where the rules could be relaxed:

(1) where the challenger might lack the personal standing normally required (2) where those prejudicially affected by the impugned statue may not be in a position to assert adequately, or in time, their constitutional rights In such cases the court might decide to ignore the want of normal personal standing on the part of the litigant before it8

With such new angles opening up, Girls on the Street would be able to put forward one of its members to challenge the constitutionality of section 8 by means of a bone fide organization protecting the rights of prostitutes, who are valid citizens of Ireland and as such deserve to have their rights upheld as much as any other member of society, for the protection and liberty of those present in the state. Approval of locus standi for the organization would still be at the discretion of the courts but from previous cases which have had gained legal standing by those not personally affected by the legislation, Girls on the street could attempt to put forward an action. In Mulcreevy v Minister for Environment9 which concerned the removal of part of a structure of Carrickmines Castle, it was decided that the plaintiff be given locus standi even though the removal did not have immediate affect on his person. Keane CJ

6 J.M.Kelly, The Irish Constitution 2nd ed, (Jurist Publishing Co.Ltd, Dublin, 1984)p.285 7 Cahil v Sutton [1980] I.R 269 8 J.M.Kelly, The Irish Constitution 2nd ed, (Jurist Publishing Co.Ltd, Dublin, 1984)p.282 9 Mulcreevy v Minister for Environmental Heritage and Local Government [2004] 1 ILRM 419

Constitutional Rights (LAW 10060) 2007/2008

stated: While the applicant has no private interest in the proceedings it is not suggested that the proceedings were brought for anything other than a bona fide reason. It is not in the public interest that decisions of statutory bodies should escape scrutiny merely because the party seeking to judicially review such decisions is not personally affected in a way peculiar to him. It cannot be said that the grounds upon which the applicant brought the proceedings are without substance and accordingly he is to be recognized as possessing the requisite locus standi .

This case indicates that the court would be willing to entertain a challenge to a statute by reviewing that case put forward on its merits of bone fide interest and concern in the context of each specific case. S.P.U.C (Ireland) Ltd v Coogan10 concerned the locus standi of a protection group representing the rights of the unborn child challenging the constitutionality of access and distribution of information on abortion in other countries. The courts granted successful legal standing to the group on the basis that there could never be a victim or potential victim that could sue. This judgment went as far as to state that standing would be granted as there was no question of the intent of the group. They where seen to be genuinely interested in the issue with no intent to meddle or waste time. This can be taken on board in the Girls of the Street application, as all members are seen to be professionals serving society and thus can be seen in the eyes of the legal system as a genuine body seeking justice for their cause. The language used by the courts in previous judgments could aid the organization attain relevant locus standi, in East Donegal Cooperations v Attorney General11,
10 S.P.U.C v Coogan [1989] I.R 734 11 East Donegal Co-operative v Attorney General [1970] I.R 317

5 of 13

Walsh J commentated the concept of a person aggrieved should be generally interpreted showing the courts willingness to entertain possibilities where the plaintiff need not be personally present in order for their case to be heard. These cases show evidence that the court has taken on precedent of exceptions to general locus standi principle and as such allows for jus terti an appropriate party, acting in a bona fide manner, to present legal argument defending the rights of a third party who is not in a position to take such action, is not restricted to defense of the unborn or to applications for habeas corpus.12

2. (17.5% of the module credit) Outline the most persuasive case that could be put
forward (a) for and (b) against section 8 being valid having regard to the provisions of the Constitution. What matters of fact, if any, would the plaintiff have to prove in order to succeed in such a claim? What are the legal arguments which would be most relevant and persuasive on each side of the case (for and against the sections validity)? When assessing the constitutionality validity of a provision in a statue a person must
12 Whyte, Social Inclusion and the Legal System (Dublin 2001)

Constitutional Rights (LAW 10060) 2007/2008

address all issues governing the area and compile them in two separate groupings to attain what would effectively be a balance for the arguments for and against the validity of the statute. This effectively creates an overall view of the case which can aid in an informed and justified decision being made on the statute. Section 8 of the Criminal Law (Sexual Offences) Act 1993, provides a set of guidelines outlining the procedure in place for Gardai when dealing with citizens found to be loitering in public places for the purposes of selling their bodies for prostitution. This piece of legislation was passed into law after the enactment of the 1937 constitution and thus it is presumed to adhere to the laws set out in the text. From this we can establish that it was brought into law to uphold and ensure the security and democracy of the state, unless proved otherwise under a constitutional challenge. In the constitution there are a number of rights bestowed onto every person of Irish citizenship, some are expressly communicated in the articles of the text and others known as unenumerated, are interpreted from inferences drawn from the articles. Both of these types of constitutional rights can be argued in either position for the validity of this statute, and as such the essential method of balancing must be used to determine the stronger and more just argument. In compiling the case in favor of the validity of section 8 a key argument is the rights contained in the constitution which are aimed to create protection of the state and its people for the greater good. Prostitution is a grave and dangerous black market industry. Every year it lures thousands of vulnerable women of all ages onto the streets to attempt to alleviate their financial struggles by selling their bodies to unknown predators. In the attempt by the gardai to stop this industry continuing, to create a safer society for citizens, they have tightened their restrictions on the consequences of being caught in an act of
7 of 13

prostitution. The state is obliged under article 40.3.1 The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen As prostitution is a violation of the intimate act of intercourse, there are a number of serious heath and safety issues which can arise from this repeated, unprotected action. The state have a duty to uphold proper moral and social etiquettes of a Christian state, this extends to ensure that it does not allow actions to occur which would put its citizens in danger or harm, and thus the legislation is question aids the powers in command to ensure that citizens remain safe and healthy. The state must also use the restrictions to prevent the outbreak of a heath epidemic, and thus one of the unenumerated rights of the constitution, the right to bodily integrity would create an onus on the state to prevent the passage of contagious or infectious disease throughout the country by means of trafficked sex. As defined in Ryan v Attorney General13 by Kenny J: I understand the right to bodily integrity to mean that no mutilation of the body or any of its members may be carried outthat no processbe dangerous or harmful to the life or health of the citizen or any of them be imposed This interpretation of a right has been upheld in the court by the case of State (Richardson) v Mounjoy Prison14, which involved a prisoner of Mountjoy prison who argued breach of constitutional rights due to the unsanitary conditions which he was forced to reside in, causing detriment to his health. Here the onus was on the state to
13 Ryan v Attorney General [1965] IR294 14 State (Richardson) v Mounjoy Prison [1980] IR82

Constitutional Rights (LAW 10060) 2007/2008

ensure that condition in society were of an acceptable nature so as not to cause harm. This power given to the state was also accepted in Re Ward of Court (Withdrawal of Medical Treatment)15 where the question of assisted suicide was debated, it was also noted by Lynch J that the courts cannot force medical treatment, they can however grant treatment against will or claim of bodily integrity in an exceptional case of contagious diseases or infection which could have a knock on effect to the public at large. To argue that section 8 of the act is valid within the provisions of the constitution, it is necessary to point out that no right bestowed onto citizens of Ireland are not absolute, and that the state by means of the courts has the power to impose upon personal rights to protect society as a whole. Thus the right to earn a living may be restricted and not deemed unconstitutional in doing so, where the worker has broken the law in the course of their employment. As prostitution is not legal under the constitution of Ireland, section 8 of the act can be seen to be taking positive and deterrent measures to halt an action which is not in any way supported by the state. This form of employment is seen as an inappropriate means of earning a living as was found in the case of Lander v Attorney General16, where a young boy was banned from singing in a pub to earn a living as it was deemed by Finlay J, an inappropriate means of earning a wage for such a vulnerable youth, and was seen to possibly hinder his education. A main issue in determining if section 8 is valid is deciphering if it imposes on a persons right to privacy, from this we can take the angle that unfettered liberty is a sure fire recipe for social upheaval17. In the democratic nature of the state of Ireland there must be laws and restrictions put in place and monitored in order to ensure everyone is treated
15 Re Ward of Court (Withdrawal of Medical Treatment) [1996] 2 I.R 79 16 Lander v Attorney General 109 ILTR 1 17 Fergus w. Ryan, Constitutional Law, (Round Hall Sweet and Maxwell, Dublin 2002) ,p.115

9 of 13

equally and justly. These measures are to ensure that no group however vulnerable is threatened by those with more power, the regulations of section 8 are merely this ideal of monitoring put into action, to deter the under ground prostitution industry from continuing. The right to privacy is seen in the constitution as a natural law, antecedent to and superior to all positive (man made) law. Due to this interpretation, prostitution, which degrades what should be an act of intimacy between two committed people in marriage, cannot be seen as natural, and thus would not be able to claim protection under such a right. In the case of Norris v Attorney General18 the plaintiff who claimed that it was unconstitutional to penalize conduct between consenting homosexual male adults, the courts took the view that homosexual activity was not natural and thus they were not given the constitutional right to privacy afforded to married couples. The section in question seeks to impose a number of restrictions onto those found engaging in matters of prostitution, its aim is stop the activity from occurring to protect citizens involved, and citizens at risk from potential predators, and thus: As well as enjoying rights, citizens owe duties to the state and fellow citizens19 Meaning, that the aim behind such a section is not to impose or infringe, but to serve and vindicate. There are a number of points that can be complied against the validity of section 8 of the Criminal Law (sexual offences) Act 1993 which conclude that it is invalid in accordance with the provisions set out in the constitution. Under article 40 of the constitution a number of key personal rights bestowed to citizens of Ireland are set out:
18 Norris v Attorney General [1984]IR36 19 Fergus w. Ryan, Constitutional Law, (Round Hall Sweet and Maxwell, Dublin 2002) ,p.115

10

Constitutional Rights (LAW 10060) 2007/2008

Article 40.1: All citizens shall, as human persons, be held equal before the law. Article 40.3.2 The state shall in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen. In interpretation of these rights it could be seen that such focus and attention by Gardi on women who happen to be prostitutes is a segregation of those women in society, by drawing unwanted attention to them and imposing levies on their person if they are found to be waiting in a public area. This separation cannot be deemed to be equally treating the women as any other member of society and as such is infringing on a right that should apply as fairly to them as to any other person on the street on which the section is put into action. The attention from a person of power and authority could potentially provoke unwanted threatening attention in what is essentially an abusive trade, possibly resulting in beatings or even assault. An occurrence of this nature would indicate that such intervention failed to aid the upkeep of the womens person rights against unjust attack. The prostitution industry is one which is run brutally and without care for personal pain or suffering, because of this, open attention from power could essentially have the opposite effect than its intention of protection and deterrence under the section. As Gardi are only enforcing the provision of section 8 upon women, it raises an issue of gender equality within the statute. It is laid out in the constitution that men and women are seen as equally with the eyes of the state. As such, it would be deemed unconstitutional if a distinction was made to differentiate between the two genders. In the case of deBurca and Anderson v Attorney General20the issue of gender equality
20 deBurca and Anderson v Attorney General [1976] IR38

11 of 13

arose where jury service was expressly confined to rate payer (thus property owners), thereby excluding women. OHiggins CJ and Walsh J founded their conclusions on article 40.1, and so deemed the section to be invalid with the provision of the constitution. Within the issue of equality there is a related issue of discrimination against those whom the Gardai may think are prostitutes. In order to determine who they should approach they have to make a distinction on the physical appearance of the women. It is said that, Discrimination must be based on human characteristics, as such prostitutes are picked on because of the way they appear or dress. In order for a member of the gardai to intervene they must identify and pick out an inherent characteristic of the woman in question .Thus the section allows the gardai to direct a act based only on what is an assumption; not proven fact, which could held invalid against the provision of the constitution dictating that all people are held as equal regardless of physical appearance, race or colour. Under the constitution, there is an unenumerated right to privacy in private affairs. Section 8 allows for the Gardai to intervene even in instances where the act is occurring in a private motor vehicle. In the case of Kennedy v Ireland21, the state tapped and recorded phone conversations of two journalists. It was later revealed that the state had no justification for such an action and thus had breached the plaintiff constitutional right to privacy, which is seen as one of the fundamental rights of the citizen. It could be argued that sub section (c) of section 8, is also an unjustified breach of the right to privacy on the part of the state, that a citizen has a right to be allowed personal confidentiality whilst their own property, and that the power for the Gardi to intrude on this property would be invalid against the constitution and its aims
21 Kennedy v Ireland [1987] IR 587

12

Constitutional Rights (LAW 10060) 2007/2008

13 of 13