The Gazette 1976

GAZETTE

UNE

1976

of a trial could be made. That

should not be misunderstood by any-

one concerned with the adminis-

tration of justice.

Mr. Lovatt-Dolan said that if an

accused had the right to declare

his innocence of a charge it fol-

lowed that his legal representative

was entitled to do it on his behalf.

The President referred to the por-

tion of Mr. Goldberg's letter which

stated that the statements were not

made voluntarily, and said that the

test should be whether to any ordin-

ary person reading it, it indicated

not only that the statements were

not voluntary but that it carried at

least, if not an overt concealed alle-

gation that the statements had been

obtained by torture.

The President said he thought

publication of the letter making

even this much reference to a pend-

ing criminal proceeding was un-

wise. He thought it was unwise for

a solicitor and unwise for a news-

paper but a decision that it lacked

wisdom did not constitute contempt

of Court. In those circumstances he

would discharge the conditional

order.

Mr- Goldberg, in an affidavit

sworn on August 8th, 1975, said his

letter to the Minister showed his

concern and intention to avoid mak-

ing any reference or excessive ref-

erence of any improper nature in

respect of the four accused persons,

because he appreciated that these

cases were

sub-judice,

and even in

a letter to the Minister, he did not

wish, as a matter of prudence, to be

guilty of any breach of the

sub-

judice

rule. He therefore exercised

caution and restraint in the words

which he used.

Mr. Goldberg said he believed "it

was his duty to express concern, that

his clients were undergoing prolong-

ed interrogation at which he was

not permitted to attend and advise

them. He was concerned also with

the failure of the Garda authorities

to furnish him with copies of state-

ments which he understood had

been made in writing by certain

of the accused men and, also, by

other clients who were not then, or

who had not since been charged.

He believed there was nothing in

his letter which could have been

regarded as tending to prejudice

the possibility of a proper trial tak-

ing place and that his concern was

to ensure just that.

"I say that there has been a fail-

ure on the part of the Minister, the

Garda authorities and the Director

of Public Prosecutions to deal with

my complaints".

He said he had been practising

for almost 41 years and in all of

his experience he had never been

so hampered or found himself in

such difficult and distressing circum-

stances as he had encountered in

this case.

"I do not see how I can discharge

my professional obligations and re-

concile my conscience with my

knowledge of facts and events in

this case without being false to my

clients, to myself, to the profession

of which I am a member and to

the State of which I am a citizen".

He said that while he asked the

Irish Press

to publish his letter he

did not anticipate that an article

would be written nor was he con-

sulted as to this.

D.P.P. v. Irish Press and Goldberg

— Finlay P. — unreported — 15th

December, 1976.

Note—The Judgment in this case

is not available.

CENSORSHIP

Censorship Board's powers to be

tested in

b a n n i ng

"Family Planning".

Mr. Justice McMahon in the High

Court on December 10 made an

order directing the Censorship of

Publications Board to show cause

why its order prohibiting the pub-

lication and sale of a booklet called

Family Planning

should not be

quashed.

A conditional order of

certiorari

was granted to Frank Crummey, his

wife, Evelyn, and Family Planning

Services

Ltd-,

and,

view

of the fact that constitutional issues

are to be raised in the proceedings,

Mr. Justice McMahon directed that

the conditional order be served not

only on the Censorship of Publi-

cations Board but also on the Chief

State Solicitor on behalf of the

Attorney General

Mr. R. J. O'Hanlon, S C., who,

made the application, read an

affidavit by Mr- Crummey, a private

investigator, of Crumlin, Dublin,

who stated that he was aged 40

and he was married to the second-

named prosecutor on April 4th, 1961

and they had five children aged be-

tween 15 and 5. He said that he was

at present a full-time student at

Trinity College, Dublin, studying

economics and social studies. His

wife was employed in a restaurant

in order to supplement his limited

income as a private investigator.

Without his wife's income he would

no longer be able to continue as a

student since his other job was of

necessity a part-time one.

It was imperative that they should

not have any more children at this

stage as that would place an in-

tolerable burden on their family

and their resources. In that regard

it was essential for them that they

have the fullest information immed-

iately available concerning family

planning.

Mr. Crummey said he was a dir-

ector of Family Planning Services

Ltd., of 67 Pembroke Road, Dublin,

which was-a non-profit making com-

pany and employed three persons-

It was one of the major distributors

Family Planning

and he person-

ally distributed it during 1972 and

advertised it in

Woman's Way

mag-

azine.

Family Planning Services Ltd.

provided a postal and personal ser-

vice to about 30,000 couples in the

State in respect of (a) the supply of

non-prescriptive contraceptives and

(b) information and advice on fam-

ily planning. They had distributed

many thousand copies of

Family

Planning.

Mr- Crummey referred to a copy

of Iris Oifguil dated December 3rd,

1976, from which it appeared that

the Censorship of Publications

Board had ordered that

Family

Planning,

being allegedly obscene

and indecent, should be banned from

publication and/or sale. Neither he

nor any member nor director of

Family Planning Association had

been given notice of the proposed

banning of the booklet, nor were

they given time to make argument

against the banning, and in that

regard he claimed that their natural

rights and legal and constitutional

rights had been infringed.

As a result of the ban, his wife

and he were being frustrated in

their constitutional right to infor-

mation on family planning. He also

claimed that his reputation was be-

ing damaged by the ban; his child-

ren and friends would see him as a

distributor of obscene and indecent

literature.

Mr. Crummey, said that in Feb-

ruary 1974, Family Planning Ser-

vices Ltd. had been prosecuted in

the District Court on charges of sell-

ing this booklet in contravention of

Section 16 of the Censorship of

Publications Act, 1929, charging

that it advocated the unnatural pre-

vention of conception. The District

Justice dismissed the charge after

hearing the prosecutor's evidence.

Similar charges had been dismissed

against the Irish Family Planning

Association.