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  • is dated the 29th April 2004 and it does not itself cite any commencement date Clearly this Directive places an obligation on Member States to grant subsidiary protection to eligible persons The Directive itself does not exclude persons who have been informed of an intention to deport There is no temporal limitation placed by the Directive 14 A person eligible for subsidiary protection is defined in Article 2 e of the Directive as has been set out in full earlier in this judgment The appellants have raised in the substantive case the risk of female genital mutilation of the minors Nothing turns on the said definition or the substantive case in this preliminary issue 15 It is necessary to consider the terms of the Regulations to see how the Directive has been implemented into Irish law 16 Regulation 3 1 states that the Regulations apply to specific protection decisions made on or after the coming into operation of the Regulations which was the 10th day of October 2006 The list of decisions includes a a recommendation under s 13 1 of the Refugee Act 1996 b an affirmation under paragraph a or a recommendation under paragraph b of section 16 2 of that Act c the notification of an intention to make a deportation order under s 3 3 of the 1999 Act in respect of a person to whom subsection 2 f of that section relates and d a determination by the Minister under Regulation 4 4 or 4 5 Subparagraphs a b and c clearly relate to acts on or after the coming into operation of the Regulations In relation to c the notification of an intent to deport the notification of the appellants was prior to the coming into operation of the Regulations Thus if this were the only relevant section it would not apply to the appellants as the notification of intent to deport the appellants was made prior to the 10th day of October 2006 17 However Regulation 3 1 d refers to a determination by the Minister under Regulation 4 4 or 4 5 These paragraphs refer to the determination of the Minister that a person is or is not eligible for subsidiary protection and is or is not permitted to remain in the State No such determination could be made prior to the Regulations coming into force All such decisions as to subsidiary protection would be made after the coming into operation of the regulations This creates some ambiguity given the terms of Regulation 3 1 18 Regulation 4 1 makes provision for an application for subsidiary protection At the core of this analysis is Regulation 4 2 Regulation 4 2 has been set out earlier but for ease of analysis it is restated 2 The Minister shall not be obliged to consider an application for subsidiary protection from a person other than a person to whom section 3 2 f of the 1999 Act applies or which is in a form other than that mentioned in paragraph 1 b Emphasis added The construction of these words is at the heart of the case What do they mean 19 The words shall not be obliged to consider must have a meaning Another form of words could have been chosen such as shall not consider This latter hypothesised version would exclude the Minister from considering any other than the form of applications listed However that was not the choice of words Instead the regulation states that The Minister shall not be obliged to consider 20 I interpret the word obliged as having its ordinary meaning being compelled restrained bound by Thus these words of the regulation may be construed as 2 The Minister shall not be compelled to consider an application for subsidiary protection from a person other than a person to whom section 3 2 f of the 1999 Act applies or which is in a form other than that mentioned in paragraph 1 b Emphasis added 21 Thus the words The Minister shall not be obliged to consider an application for subsidiary protection from a person other than clearly indicates that the Minister is obliged to consider an application for subsidiary protection from the persons listed A reasonable inference from these words is that the Minister is not obliged to consider applications from other persons The words are somewhat ambiguous however they clearly differentiate between applications which the Minister is obliged to consider and others which he is not obliged to consider It establishes two situations one where the Minister is obliged to consider an application and another where he is not The words infer that while the Minister is not obliged to consider an application from a person other than a person to whom section 3 2 f of the Act of 1999 applies any other application is not excluded from consideration Consequently the regulation puts the Minister in the position where he or she while not obliged to consider such other applications is not excluded from considering such other applications Thus it leaves to the Minister a discretion in relation to such other applications 22 Under this construction of the Regulations the Minister has a discretion to consider an application other than those specifically specified in Regulation 4 2 There may be many reasons for such a discretion However whatever the reason the regulation gives this discretion to the Minister 23 The discretion under Regulation 4 2 is to be distinguished from the fundamental sovereign discretion of the State which may be exercised by the Minister on behalf of the State over non Irish nationals 24 The above interpretation of Regulation 4 2 is supported by the terms of Regulation 3 1 d and Regulation 4 4 Regulation 3 1 d provides that the Regulations apply to specific decisions made on or after the coming into operation of the Regulations specifically in 3 1 d it applies to a determination by the Minister under Regulation 4 4 or 4 5

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  • provide midwifery services he submitted no one could take those services away as long as the hospital existed If the statute fails he submitted to provide a route that is no fault of the appellants Counsel referred to Keane v An Bord Pleanála and the Commissioners of Irish Lights 1997 1 I R 184 and to the approach taken to the construction of the statutes by Hamilton C J and submitted that this Court should take a similar approach Counsel sought a declaration that the respondent had acted ultra vires 7 In written submissions on behalf of the respondent it was stated that by a decision in 1993 the respondent approved a plan whereby the two hospitals in Cavan and Monaghan were to be known as Cavan Monaghan General Hospitals i e one hospital with two sites A full maternity service was provided from Cavan and an antenatal service in Monaghan It was submitted that the appellants case falls in limine as there was no discontinuance of the service in Cavan Monaghan General Hospital In relation to the decision of the learned trial judge that the respondent could not set aside its obligation by deeming that the two hospitals constitute one hospital the respondent submitted that the learned trial judge fell into error that the respondent could decide that there be one hospital at two sites The decision to have one hospital at two sites was made in 1993 and the decision to suspend maternity services in Monaghan was taken in 2001 It was submitted that even if there was to be regard to Monaghan alone and not to a single hospital on two sites the service has not been discontinued merely that part of the services was temporarily suspended pending a review which resulted in the establishment of a midwife led service in 2005 It was submitted that s 38 3 and s 38 4 of the Act of 1970 have no application to this case In conclusion in the written submissions on behalf of the respondent it was submitted a The respondent has not discontinued the service Part of that service was suspended and full maternity service is provided from another site of the hospital b In any event the service at Monaghan was merely temporarily suspended for a short time after which part was restored It has not been discontinued for the purposes of s 38 of the Act of 1970 c Critically s 38 only applies to the discontinuance of the provision and maintenance of premises as distinct for example from a hospital department There is no question that the provision or maintenance of the premises in question is to be discontinued d Without prejudice to the above if this Court were to hold that there had been a breach of statutory duty no order of mandamus should issue where the respondent does not presently and immediately have the personnel or other resources to ensure the provision of a safe service from Monaghan In oral submissions Counsel for the respondent Mr Gerard Hogan S C addressed the net issue of the construction of the Act of 1970 on the basis of an assumption Counsel stated that he would assume in favour of the appellants that maternity services in Monaghan General Hospital have been discontinued and submitted that even if that were true it would not avail the appellants He submitted that there is nothing in s 38 which precludes that course of action Counsel submitted that a there is nothing in s 38 of the Act of 1970 which relates to the discontinuance of services by the respondent b ss 38 3 and 4 are restrictions relating to the closure of a hospital and c it is a fallacy to extrapolate from ss 38 3 and 4 that there are restrictions on a Health Board discontinuing a service Counsel submitted that by s 5 of the Act of 1970 a health board is deemed to be a corporate body As a body corporate with power to dispose of land it may do what it deems fit with that land with the exception that by ss 38 3 and 4 of the Act of 1970 the Oireachtas has restricted this power He submitted that no inference may be drawn from those subsections that a health board cannot close down a department of a hospital Counsel pointed out that if the appellants analysis of s 38 was correct then a hospital could not close a service which it had historically provided in 1970 As to the issue of vires counsel argued that the power to close a department of a hospital was an implied power Counsel submitted that this was an implied power arising from ss 5 38 51 52 and 62 of the Act of 1970 Counsel submitted that the McMeel case was not relevant McMeel decided that the Minister did not have the power under s 38 2 to direct the discontinuance of services If the Health Board had decided to discontinue services in McMeel the issue would not have arisen Counsel further addressed the Court on the issue of the reliefs sought and what would be appropriate with reference to Brady v Cavan County Council 1999 4 I R 99 Legislation 8 The legislation relevant to this case is as follows Section 38 1 of the Act of 1970 provides 1 A health board may with the consent of the Minister provide and maintain any hospital sanatorium home laboratory clinic health centre or similar premises required for the provision of services under the Health Acts 1947 to 1970 2 The Minister may give to a health board such direction as he thinks fit in relation to the provision or maintenance of any premises provided and maintained under subsection 1 and in relation to the arrangements for providing services therein and the health board shall comply with any such direction 3 A health board may and if directed by the Minister shall discontinue the provision and

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  • the premises who must have had the reasonable cause to suspect required by section 34 1 of the Act of 1996 The first submission on behalf of the respondent placed reliance on the decision of the Court of Criminal Appeal in D P P v Byrne 2003 4 I R 423 which concerned the issue of a search warrant under the Criminal Justice Drug Trafficking Act 1996 Section 26 2 of the Act provides for the issue of a search warrant by a District Court judge or a Peace Commissioner while section 8 2 of the Act provides for the issue of a search warrant by a member of the Garda Síochána not below the rank of Superintendent if he or she is satisfied that circumstances of urgency giving rise to the need for the immediate issue of the search warrant would render it impracticable to apply to a District Court judge or a Peace Commissioner for the issue of the warrant The warrant in question was issued by a Chief Superintendent without on the evidence any enquiry whatever as to the availability of a District Court judge or a Peace Commissioner or as to whether any steps had earlier been taken to ensure the availability of a District judge or a Peace Commissioner In the course of the judgment of the court Hardiman J said But we would say having regard not merely to the provisions of s 8 2 of the Criminal Justice Drug Trafficking Act 1996 but also in the constitutional context as exemplified in Byrne v Gray 1988 I R 31 that it is not the case that An Garda Síochána are free to choose whether they will apply for a warrant to a judge to a peace commissioner or to a superintendent They must apply to a judge or a peace commissioner unless the very limited circumstances which permit them to apply to a superintendent are present These circumstances must be demonstrated to be present for the superintendent s warrant to be valid It seems to us that counsel for the prosecutor may well be correct when he says that the warrant was actually issued by the chief superintendent s signature at some time as near as makes no difference to 12 50 p m on the 20th February 2001 It may indeed have been impractical to get a district judge and a peace commissioner at that moment but as to whether that justification can prevail when there has been a long period of surveillance and when an urgent call was made to the chief superintendent to get him to attend and no call was made to any other person entitled to issue a warrant we need say no more other than that a grave legal issue arises In the circumstances of that case it was unnecessary to reach a final conclusion on the legality of the procedures adopted The learned High Court judge in the present case concluded that the respondent s solicitor s submission was not well founded having regard to the difference in wording between the Criminal Justice Drug Trafficking Act 1996 section 8 2 and the Control of Horses Act 1996 section 34 She held that on the proper construction of section 34 the power of entry thereby conferred is intended to be available once the pre conditions set out in section 34 1 are met The second submission to the learned High Court judge was that on the evidence a member of the Garda Síochána did not have reasonable cause to suspect as required by section 34 1 of the Act of 1996 The learned trial judge carefully considered the authorities cited to her and in particular D P P v Farrell 2009 I E H C 368 D P P v Finnegan 2008 I E H C 347 and D P P v Cash 2007 I E H C 108 She concluded as follows Applying the above principles to the facts recorded and accepted by the learned District judge there is nothing in principle to prevent a member of An Garda Síochána forming a reasonable suspicion either that an offence was being committed or that a horse was being harmed or mistreated for the purpose of section 34 1 upon hearsay information and even where the source is anonymous However the simple receipt of hearsay information is not of itself a sufficient ground to constitute a reasonable suspicion As stated by Lord Devlin in the extract cited by Charleton J from his decision in Hussein v Chon Fook Kam 1970 A C 942 and referring to the judgment of Scott L J in Dumbell v Roberts 1944 1 All E R 326 the Garda should satisfy himself that there do in fact exist reasonable grounds for suspicion albeit that this is a limited requirement What a Garda must do to satisfy himself will depend entirely on the nature of the information before him Hearsay information would normally appear to require a Garda to consider both the source and nature of the information Further these may often be interrelated in inverse proportion The more credible the source the less particularity may be required in the information provided to ground a reasonable suspicion Where as in this instance the source is anonymous it would seem that there would have to be sufficient particularity in the information itself to permit a Garda to form the view that irrespective of its source it constitutes a reasonable suspicion of one of the matters specified in section 34 1 of the Act of 1996 To put it a slightly different way where a third party complaint is communicated to a member of An Garda Síochána via a credible person i e a D S P C A Inspector it is not open to a member of An Garda Síochána to exercise the powers conferred by section 34 1 simply because the third party complaint is communicated by a D S P C A Inspector who considers the complaint credible The Garda must be given sufficient particularity of the complaint and its source such as the Garda can make his or her own assessment as to whether the information provided to him or her constitutes reasonable grounds to suspect that an offence has been committed or a horse has been harmed or mistreated The learned trial judge then applied the law to the facts as follows Notwithstanding the low threshold for a reasonable suspicion on the authorities cited above I have concluded that as the source was anonymous the lack of particularity or facts in the complaint as communicated to the Gardai fell short of what may constitute reasonable grounds upon which a Garda could have cause to suspect either that an offence was being committed or that a horse was being harmed or mistreated at the premises known as The Piggery The more specific information was that given to Garda O Connor However even it did not include any facts given by the complainant in support of the assertion that a horse was stabled in The Piggery and therefore the allegation was entirely dependant on the reliability of the source which was anonymous Accordingly the learned trial judge answered the reformulated question in the negative Notices of Appeal and Cross Appeal The appellant s grounds of appeal as argued in this court may be summarised as follows The learned High Court judge erred in law and in fact or on a mixed question of law and fact 1 In finding that it was not open to the District judge on the evidence to find that both Garda O Mahony and Garda O Connor or either of them had reasonable cause to suspect the commission of an offence under the Control of Horses Act 1996 2 In finding that there was insufficient information regarding the complaint both as to the source and the particulars of the same to enable the Garda Síochána to have reasonable cause to suspect the commission of an offence under the Control of Horses Act 1996 3 In finding that the allegation was entirely reliant on the reliability of the source which was anonymous The respondent s cross appeal raises two grounds which may be summarised as follows The learned trial judge erred in law or in fact or on a mixed question of law and fact 1 In finding that the statutory power conferred by section 34 1 of the Control of Horses act 1996 was not a power which was intended to be used or exercised only in circumstances where an element of urgency existed such as would negate the practicality of obtaining a warrant pursuant to section 35 of the Control of Horses Act 1996 from a District Court judge 2 In finding that the power conferred under section 34 1 of the Control of Horses Act 1996 is a power which cannot be exercised in relation to a dwelling Discussion and Conclusion It is convenient to deal first with the cross appeal The respondent s first submission to the High Court in short was that the Control of Horses Act 1996 sections 34 and 35 should be construed together in the like manner as the Criminal Justice Drug Trafficking Act 1996 section 82 and the Misuse of Drugs Act 1977 section 26 were construed in Director of Public Prosecutions v Byrne 2003 4 I R 423 The Misuse of Drugs Act 1977 section 26 provides as follows 26 1 If a Justice of the District Court or a Peace Commissioner is satisfied by information on oath of a member of the Garda Siochána that there is reasonable ground for suspecting that a a person is in possession in contravention of this Act on any premises of a controlled drug a forged prescription or a duly issued prescription which has been wrongfully altered and that such drug or prescription is on a particular premises or b a document directly or indirectly relating to or connected with a transaction or dealing which was or an intended transaction or dealing which would if carried out be an offence under this Act or in the case of a transaction or dealing carried out or intended to be carried out in a place outside the State an offence against a provision of a corresponding law within the meaning of section 20 of this Act and in force in that place is in the possession of a person on any premises such Justice or Commissioner may issue a search warrant mentioned in subsection 2 of this section The Criminal Justice Drug Trafficking Act 1996 section 8 2 provides as follows 8 2 A member of the Gárda Síochána not below the rank of Superintendent shall not issue a search warrant under the said section 26 unless he or she is satisfied a that the warrant is necessary for the proper investigation of a drug trafficking offence and b that circumstances of urgency giving rise to the need for the immediate issue of the search warrant would render it impracticable to apply to a judge of the District Court or a Peace Commissioner under the said section 26 for the issue of the warrant In Director of Public Prosecutions v Byrne the Gárda Siochána without making any enquiries or attempt to locate a District Court judge or a Peace Commissioner for the purposes of obtaining a warrant under the Misuse of Drugs Act 1977 section 26 obtained a warrant under the Criminal Justice Drug Trafficking Act 1996 section 82 from a Chief Superintendent The Court of Criminal Appeal in its judgment expressed the view although it was unnecessary so to find that section 8 2 of the 1996 Act could only be availed of if the very limited circumstances which permit such application are present As the Misuse of Drugs Act 1977 and the Criminal Justice Drug Trafficking Act 1996 are in pari materia they should be construed together However section 34 of the Control of Horses Act 1996 does not contain the limitation as to circumstances of urgency contained in the Criminal Justice Drug Trafficking Act 1996 section 82 I can see no basis upon which such a limitation should be read into section 34 This is particularly so as section 34 does not empower entry into a dwelling and so does not impinge on the constitutional protection given to a dwelling Where it is intended to carry out a search of a dwelling a warrant must be obtained under section 35 of the Act of 1996 For these reasons I would dismiss the cross appeal on this ground As to the second ground in the cross appeal it is only necessary to refer to the express terms of section 34 3 of the Control of Horses Act 1996 which expressly provides that the Gárda Siochána shall not other than with the consent of the occupier enter a dwelling unless a search warrant from the District Court under section 35 of the Act is obtained authorising such entry I would dismiss the cross appeal on this ground also The issues on the appeal which I have summarised in essence are aspects of a single issue which can be further summarised thus On the evidence before the District Court was it open to the District Court judge to find that the Garda Síochána had the requisite reasonable cause to suspect for the purposes of section 34 of the Control of Horses Act 1946 The written submissions filed on behalf of the appellant summarise the relevant case law as follows 1 The reasonable cause to suspect must be fair and reasonable and honestly held on the basis of information available to a member of An Garda Síochána at the relevant time 2 The reasonable cause to suspect must be referable to facts or information which would satisfy an objective observer it is an objective test 3 The objective test requires that the basis for the reasonable cause to suspect be examined by reference to the time and the circumstances in which the power was exercised 4 The facts or information grounding the reasonable cause to suspect may be either what the member of the Garda Síochána has observed or information that he has received The information acted on by the member need not be based on his own observations since he is entitled to have a reasonable cause to suspect based on what he is told 5 The reasonable cause to suspect may be based on information from any source including an anonymous source Since it is only the information that is in the mind of the member of An Garda Síochána that is relevant it is unnecessary to investigate what was known to an informant or whether the information is true If the information grounding the reasonable cause to suspect turns out to be ill founded the lawfulness of the entry will not be impugned What is relevant is the information available to the member of the Garda Síochána at the relevant time 6 Material grounding a reasonable cause to suspect need not satisfy the same threshold as is required to lay a charge nor is it necessary that it constituted admissible evidence In the course of the hearing counsel for the respondent did not dispute the correctness of these propositions and I am indeed satisfied that they are correct In Director of Public Prosecutions v Reddan 1995 3 I R 560 an issue arose as to whether a member in charge in a Garda Station had reasonable grounds to detain a person The member in charge had been told by a Garda that he had been told by a Garda Sergeant who had arrested the person that he had confidential information that she had been involved in the offence The Court of Criminal Appeal was satisfied that the information so received was sufficient to constitute reasonable grounds for the detention Accordingly hearsay and in this case hearsay upon hearsay of the existence in a person of a belief the grounds for which were not disclosed may be sufficient to establish reasonable grounds Director of Public Prosecutions v Finnegan 2009 1 I R 49 concerned an arrest under section 49 8 of the Road Traffic Act 1961 as inserted by section 10 of the Road Traffic Act 1994 which provides A member of An Garda Síochána may arrest without warrant a person who in the members opinion is committing or has committed an offence under this section In the High Court Clarke J held that for an arrest under the section to be lawful it was necessary that the opinion be genuinely and reasonably held at the time must result from an honest belief and that it is not relevant that the opinion subsequently transpires not to be factually accurate Thus the relevant time is the time when the statutory power is exercised and it is immaterial if the basis for exercising that power subsequently transpires to have been correct or incorrect and mistaken See also Director of Public Prosecutions v Penny 2006 3 I R 553 The circumstances in Director of Public Prosecutions v Farrell 2009 I E H C 368 were as follows The accused was arrested under section 23 of the Misuse of Drugs Act 1977 as amended which provides that a member of the Garda Síochána who had reasonable cause suspects that a person is in possession in contravention of the Act of a controlled drug may without a warrant conduct a search of that person and any vehicle in which he suspects that such drug may be found The accused s car was stopped by a Garda who was on patrol duty in a marked patrol car and engaged in general observation of activity in an area where to his knowledge there was a drugs problem His reason for stopping the accused s car was the general suspicion which he held of a drugs problem in the area He gave

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  • appropriate analogy to the present case having regard to the relationship between the applicant and his former partner was the absence through death of a spouse who could have testified in the defence of allegations of crime alleged to have taken place in a family home on two occasions at times and days unspecified and indeterminate He held para 30 that The denial that these incidents occurred as alleged is central So too is the question of location and opportunity The deceased was a partner of the applicant and lived in the same house as him at a time when the offences were alleged to have occurred It is not controverted that the former partner travelled to and from work with the applicant It has not been established or even asserted that the former partner would have been in any less control of or had less access to the premises than the applicant The learned trial Judge concluded There is here sufficient gravity and proximity to discharge the onus of proof in circumstances where warnings or directions could be of little assistance in obviating General findings Two further findings which appear to be in the nature of conclusions drawn from the learned trial judge s summary of the evidence oral and written which was available to him should also be referred to At paragraph 26 using the language of J B v DPP Reference the learned trial Judge found It cannot be gainsaid however that if a trial had taken place in a timely manner the applicant might well have been in a better position to address the charges Furthermore at para 36 dealing with the question of prosecutorial delay he held Nothing has been established in the course of this case to controvert the conclusion formed in the case of a co accused with similar facts as far as the investigation was concerned That there has been inordinate delay in this investigation While for the best of motives the gardaí may have allowed the complainant to dictate the pace of the statements this is hardly a sufficient justification to allow a drip feed of statements over a period of two years from the 4 th April 2002 to the 19 th June 2004 While the motivations may have been for the best the very gradual provision of evidence by an important single witness to crime over a period of two years is hardly a situation which would be countenanced in the investigation of other serious offences generally These observations must however be balanced by the reasons which were furnished by the gardaí involved as to their reluctance to press the matter further and in the context of the risks which they saw of the complainant withdrawing his complaints altogether On the latter point this court would observe that there are obvious difficulties when a complainant comes forward many years after an alleged event making allegations against multiple persons on a drip feed basis These difficulties maybe compounded if the investigating gardai think that the complainant may if pressed withdraw his allegations altogether But any difficulties arising from this state of affairs cannot in my opinion affect the standards of fairness and expedition to which the defendant is entitled Many years had elapsed when the complainant came forward in the first place there is a heavy burden on the gardai to make every effort to expedite their enquiries at that stage when they are positively aware that a very long period of time has already elapsed since the alleged offences It must also be recorded that the period of inordinate delay which the learned trial judge found to have taken place appears to have coincided with the period when the partner who cohabited with the applicant in Ailesbury Mews became critically sick and eventually died on the very day after the applicant swore his affidavit In the course of the very large number of very long delayed cases of a sexual nature with which the courts have been concerned the question of the effect of a missing spouse or spousal figure has already been considered The context of this consideration in the case of JOC v DPP 2000 480 was of abuse alleged to have happened over a period of time in the defendant s house During the very long delay before the allegations were put to the defendant his wife of many years standing had unfortunately died The State contended as they did in this case that that circumstance cannot avail a defendant unless he can prove what the deceased spouse would have said had he or she been available But that it seems to me is a ludicrous and self defeating proposal where a spouse dies or becomes moribund or disabled before any allegation whatever is made much less any detail given it is plainly impossible to demonstrate what he or she would have said But in making the contentions summarised above the prosecution are contending for a test which a defendant must in every case fail to satisfy In the case mentioned above I said Where constant visits to an accused s home by a child neighbour forms an essential part of the background ordinary experience suggests that a housewife working at home will have much to say about the circumstances of the visits if they happened as alleged Still more so where the prosecution cases involves frequent and regular visits to a particular part of the house by the complainant and the accused alone Nor can it be fairly said that her evidence would add nothing to the accused s own And the wife may very well be able to say more than the accused whether the child called when he was not there what he or she did in the house whether visits to the alleged location of the crimes occurred in other contexts whether she herself would have been absent or otherwise engaged often enough and long enough to allow the husband to behave

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  • caused and so declared However the statutory tenant also sought damages for the unreasonable and wrongful withholding of consent and the learned Circuit Court judge dealt with the issue of damages as follows As a matter of principle where there is a breach of statutory duty damages can be recovered for injury resulting thereform Feeney v W G T Pollexfen and Co Ltd 1931 I R 589 and if the plaintiff if this case had proved loss I see no reason why he should not be entitled to damages No damages were however awarded as the statutory tenant failed to establish loss It will be immediately clear that Kelly v Cussen Cussen is not directly in point it being concerned with the Rent Restrictions Acts and being concerned with a covenant implied and which in its terms differs significantly from the covenant in issue in the present proceedings as affected by the Landlord and Tenant Amendment Act 1980 section 66 Nevertheless the learned Circuit Court judge there held that where the landlord withheld consent to assignment of a statutory tenancy in breach of the deemed condition the statutory tenant had an entitlement to damages Apart from damages a Lessee has the following remedies where a Lessor unreasonably refuses consent to assign An application can be made to the court for a declaration that consent has been unreasonably withheld in which case the Lessee will be entitled to assign without consent Treloar v Bigge 1874 L R 9 Exch 151 Alternatively following the repeal of Deasy s Act section 10 by the Landlord and Tenant Ground Rents Act 1967 section 35 1 the lessee can assign and the lessee and any assignee of the lease can raise as a defence to any proceedings taken by the lessor for breach of the covenant against alienation the unreasonable refusal of consent Finally an assignee of a lease without consent consent having been refused may seek a declaration that consent was unreasonably refused and in proceedings taken by the lessor can raise the unreasonable withholding of consent by way of defence In assigning without consent there is the risk that ultimately the withholding of consent may be held not to have been unreasonable however in such an event since the repeal of Deasy s Act section 10 and the amendment of the Conveyancing Act 1881 section 14 by the Landlord and Tenant Ground Rents Act 1967 section 35 1 relief against forfeiture may be obtained The entitlement of a Lessee to damages for the unreasonable refusal of consent is dealt with in The Law of Landlord and Tenant Deale at page 184 as follows An unreasonable refusal of consent may entitle the Lessee to damages Kelly v Cussen and Cussen but see Rendell v Roberts and Stacey to the contrary Landlord and Tenant Law Wylie does not deal with Kelly v Cussen and Cussen or with the issue of damages for unreasonable refusal of consent In Rendell v Roberts and Stacey Limited the Lease contained the following covenant by the Lessee The Lessee will not assign transfer underlet or part with the possession of the said premises or any part thereof without the previous consent in writing of the Lessors and of the superior Lessors but so that such consent shall not be unreasonably withheld to an assignment of the whole of the demised premises to a respectable and responsible person or limited company to the reasonable approval of the Lessors who shall in the case of an assignment enter into a direct covenant with the Lessors to pay the rent and perform the covenants and conditions and obligations herein contained The defendant lessor refused consent to assignment and it was accepted at the hearing that the refusal of consent was unreasonable The issue on the hearing was whether the defendant s refusal of consent amounted to a breach of covenant on their part which would make them liable for damages The plaintiff lessee contended that the covenant was a covenant by the lessee not to assign without consent but that it amounted also to a positive covenant by the lessor that he would not withhold consent unreasonably the lessor being in breach of that covenant the lessee claimed an entitlement to damages The lessor contended that the covenant was a covenant by the lessee not to assign without consent with the qualification that the consent should not be unreasonably withheld the effect of the covenant it was submitted was that if the consent should be withheld unreasonably the lessee would be entitled to assign without consent but that the covenant did not entitle the lessee to damages The learned trial judge in that case referred to Ideal Film Renting Company Limited v Nielsen 1921 1 Ch 575 where the covenant read as follows The plaintiffs covenant with the defendant that they will not assign underlet or part with the possession of the said premises or any part thereof without the previous consent in writing of the Lessor but the Lessor covenants with the company not unreasonably to withhold such consent in the case of a respectable and responsible assignee or under tenant He noted that in that case there was an express covenant by the Lessor not unreasonably to withhold consent in the case of a respectable and responsible assignee In giving judgment in that case Eve J said It is established beyond controversy that if the covenant on the part of the lessee not to assign without consent is merely qualified by a proviso that the consent of the lessor is not to be unreasonably withheld there is no implied covenant by the lessor that he will not unreasonably withhold his consent and in the absence of an express covenant to that effect no action will lie against him for unreasonably withholding it In giving judgment in Rendall v Roberts Stacey Limited Salmon J having quoted as above went on to say Eve J was stating what has been clear law since

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  • address of the issuing judicial authority c evidence of an enforceable judgment an arrest warrant or any other enforceable judicial decision having the same effect coming within the scope of Articles 1 and 2 d the nature and legal classification of the offence particularly in respect of Article 2 e a description of the circumstances in which the offence was committed including the time place and degree of participation in the offence by the requested person f the penalty imposed if there is a final judgment or the prescribed scale of penalties for the offence under the law of the issuing Member State g if possible other consequences of the offence Emphasis added 10 The European arrest warrant form in the annex to the Framework Decision states in the relevant portion as follows Description of the circumstances in which the offence s was were committed including the time place and degree of participation in the offence s by the requested person Statute law 11 The Act of 2003 makes provision for the form and content of a European arrest warrant as to the circumstances of the offence or alleged offence Section 11 1 as amended by s 72 of the Criminal Justice Terrorist Offences Act 2005 provides that A European arrest warrant shall in so far as is practicable be in the form set out in the Annex to the Framework Decision Section 1A provides that Subject to subsection 2A a European arrest warrant shall specify f the circumstances in which the offence was committed or is alleged to have been committed including the time and place of its commission or alleged commission and the degree of involvement or alleged degree of involvement of the person in the commission of the offence Section 2A provided If it is not practicable for any of the information to which subsection 1A inserted by section 72 a of the Criminal Justice Terrorist Offences Act 2005 applies to be specified in the European arrest warrant it may be specified in a separate document In fact section 2A has been amended under Part 2 of the Criminal Justice Miscellaneous Provisions Act 2009 which came into operation on the 25th day of August 2009 However the amendment of 2009 does not apply to this appeal Decision Heading on Warrant 12 First the technical point as to the heading in the warrant The heading in the warrant states Description of the circumstances in which the offence s was were committed including the time and place they were committed by the requested person It does not include the words degree of participation degree of involvement I am satisfied that while it would be better practice if such words were in the title it is not a matter which nullifies the warrant It is for the court to consider the facts on the warrant to determine whether they meet the requirements of the Act of 2003 The omission of these words on the heading in the warrant is not a flaw which goes to the validity of the warrant Consequently I would dismiss this ground of appeal Offences 13 Secondly Counsel submitted that the material on the warrants does not support a finding that offences were committed In relation to this submission it is necessary to consider the facts stated in the European arrest warrant It contains the following information Statement I am satisfied that a Crown Prosecutor in the Crown Prosecution Service whose function is to decide whether or not to prosecute an individual for the alleged commission of a criminal offence has decided to charge the person named herein and to try him for the offences specified above and for which this warrant is issued Description of the circumstances in which the offence s was were committed including the time and place they were committed by the requested person At the time of Alleged Offence 1 Martin STAFFORD Mr STAFFORD and David Lee Goodall Mr Goodall were living in Parker House Hostel 25 Parker Street London WC2 This is a hostel for the homeless On 25 July 2004 at about 2 30 am Mr Goodall was trying to sleep when he heard banging on his door He told the person banging that he was trying to sleep and to leave The banging continued so he got up and answered the door On opening it he saw a male he knew by the name of Martin Mr STAFFORD Mr STAFFORD pushed past Mr Goodall into the room and shut the door behind him He threatened Mr Goodall Mr STAFFORD told Mr Goodall to take off his gold ring and give it to him He also pointed at a number of other things including the television Mr STAFFORD pulled out a knife and said if Mr Goodall didn t give it to him he would get his brothers and the IRA on to him Mr STAFFORD then unzipped his Mr STAFFORD s trousers and pulled out his penis Mr STAFFORD then urinated in a cup Mr STAFFORD said Suck my cock Mr Goodall refused and Mr STAFFORD lunged at him with the knife Mr Goodall grabbed the knife but sustained a badly cut right hand Members of the staff came Mr Gary Smith an assistant manager at the hostel knocked on the door which was opened by Mr STAFFORD who said nothing was going on Mr Smith saw Mr Goodall mouthing the words Help me help me Mr STAFFORD said the injury to Mr Goodall s hand was an accident He then slammed the door Mr Smith heard Mr STAFFORD say If you grass me up for this I m going to kill you I mean that The door was then unlocked by Mr STAFFORD and Mr Smith and a colleague managed to get Mr STAFFORD out Mr Goodall received a 5 curved full thickness cut between the right thumb and the index finger He required stitches The knife was recovered by Mr Smith from under a car in

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  • under which the procuring of a miscarriage was a crime In that context it is notorious that in public debate the strength or efficacy of that prohibition as argued by some involved in the debate had been weakened by a decision in a case before the English courts in 1939 namely R v Bourne 1939 1 KB 687 The dictum in that case was never followed in this country but nonetheless was apparently used to raise concerns as to how the statutory law might be interpreted in this country If the objective at the time had been to just address some perceived statutory frailties that could have been achieved more readily and easily by the adoption of legislation But the public debate transcended that and the object obviously was as the result demonstrates to place in the Constitution a protection for human life before birth Of course it is also notorious that another important part of the public debate was provoked by the decision of the Supreme Court in the United States in the case of Roe v Wade 410 US 113 1973 which found that in certain circumstances a pregnant woman had the right to have an abortion The fear on one side of the debate was that the courts in this country and specifically this Court might at some point in the future decide that such a right resided in our Constitution In any event the response to the wide ranging debate which took place at the time transcended legislative considerations and the issues were addressed at constitutional level Having regard to the terms of Article 40 3 3 I do not consider that the Act of 1861 or any possible interpretation of it is particularly important for the interpretation of that Article What is important in this context is not so much the mischief that was being addressed as the manner in which it has been addressed in the terms of the constitutional provision in issue Article 40 3 3 is not prescriptive or prohibitive in its terms A prescriptive and prohibitive form of amendment could have been opted for There was already a parallel for that in the Constitution concerning the prohibition since deleted on divorce which provided No law shall be enacted providing for the grant of dissolution of marriage Instead of addressing abortion as such by a prohibitive amendment such as no law shall be enacted permitting an abortion to be performed or the like reference to the specific mischief so to speak was omitted and the provision turned to focus on the positive protection of human life before birth In my view the provision of the Constitution was intended to embrace human life before birth without exception and to extend to it in express positive terms the constitutional protections available to life after birth already provided for in Article 40 3 1 cited above Of course the issue of abortion is a very controversial subject in Ireland and in many countries not only on whether it should be permitted at all but if permitted the circumstances and time when that may be allowed Article 40 3 3 as adopted by the people in a referendum is what applies in this country The really important question remains namely as to whether the frozen embryos in this case must be considered by this Court as constituting human life within the meaning of the provision In the course of the appeal it was suggested that Article 40 3 3 was not intended and it should not be interpreted as applying to the frozen embryos in this case by reason of the fact that the Article only contemplated life in the womb Accordingly before going on to address the fundamental question as to whether the frozen embryos can be determined by this Court to have the qualities of human life within the meaning of Article 40 3 3 I propose to address this discrete point In support of that argument reference was made to the proviso in the article namely with due regard to the right to life of the mother Of course the gestation and birth of a child is inextricably and humanly linked to the mother and its development in the womb In vitro fertilisation and the creation of embryos fertilised ova outside the womb was probably not contemplated at the time It is another notorious fact that part of the public debate on these matters as indeed it had often been in the past included concern as to whether the right to life of the unborn might in certain circumstances take precedence over the right to life of the mother The kind of question posed was whether a doctor faced with a specific constitutional protection for the life of the unborn would be entitled to give appropriate treatment for a life threatening condition of the mother when that would result in the death of the foetus Obviously having regard to the terms of the provision all human life is considered of equal value Absent any specific reference in the Constitution to the right to life of the mother even though her right to life as well as all other persons are covered by the general provisions of Article 40 3 1 and 2 the proviso in subsection 3 serves to make a clear statement that the right to life of the mother cannot be treated as having a lesser value than that of the foetus It had in my view no other purpose It is still of course the case even with in vitro fertilisation that if that statement concerning the right to life of the mother was desirable or necessary then it is equally so now Even with in vitro fertilisation and the associated processes the evolution post implantation of the embryo to the birth of a child remains inextricably linked with the mother as indeed it is in the normal process of conception implantation and birth As Hederman J stated in Attorney

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  • relates to the relationship in this context between the doctors and the husband It also states that he understands that he will become the legal father of any resulting child There is no question of a contractual relationship being established by this document between the plaintiff and her husband There is no offer or acceptance nor consideration nor intention to create legal relations It is a medical consent form signed by the husband and it is relevant to his relationship with the medical programmes and personnel 20 5 Also on the 29th January 2002 the plaintiff and her husband signed a third document This was a consent to embryo freezing The document states as follows Medical Programmes directed by ANTHONY WALSH MD MRCOG MRCPI DAVID WALSH MD MRCOG CONSENT TO EMBRYO FREEZING Full names of couple Mary Thomas Roche Address short address is given We consent to the cryopreservation freezing of our embryos and take full responsibility on an on going basis for these cryopreserved embryos Patients Signatures Date Date The plaintiff and the husband signed the document and dated it 29 01 02 Doctor s signature Date There is a signature which is indecipherable and it is dated 29 01 02 21 This is another consent form Neither this form nor the two previous forms are documents drawn up and establishing a legal agreement between the plaintiff and her husband They are consent forms presented by the Clinic to the plaintiff and to her husband and they relate to consent to actions taken by the Clinic They are signed by the plaintiff and her husband as medical consent forms They were formulated to protect and assist the Clinic and the second and third named defendants in the treatment programme 22 The plaintiff and the husband underwent the treatment with the hope that they might have a child The process resulted in six embryos Three of the six embryos were implanted in the plaintiff s uterus and subsequently a child was born to them The remaining three embryos were frozen It is the three surplus embryos which have given rise to these proceedings The position of these three embryos was not addressed in the documents except in the consent to embryo freezing form 23 When the treatment commenced it would not have been known how many eggs would be fertilised and the consent to embryo freezing related to any surplus embryos The document is simply that a consent to embryo freezing It provided for the situation where as in fact happened in this case surplus embryos were produced None of the documents are contracts creating or evidencing an agreement between the plaintiff and her husband expressing consent to the implantation of these three surplus embryos in the plaintiff s uterus I am satisfied that the fact that the husband consented to the treatment and to the freezing does not establish a consent so as to enable the plaintiff to avail of the surplus frozen embryos for implantation 24 The consent given by the husband was to the treatment then planned for the I V F and to the freezing of any surplus embryos 25 The documents are forms which were provided by the Clinic to the plaintiff and her husband to obtain their consent to the procedures They are in line with the guidelines of the Medical Council 26 In A Guide to Ethical Conduct and Behaviour the Guide approved and published by the Medical Council in 2004 on the issue of informed consent it was stated in paragraph 17 1 It is accepted that consent is implied in many circumstances by the very fact that the patient has come to the doctor for medical care There are however situations where verbal and if appropriate written consent is necessary for investigation and treatment Informed consent can only be obtained by a doctor who has sufficient training and experience to be able to explain the intervention the risks and benefits and the alternatives 27 In the section of the Guide relating to reproductive medicine paragraph 24 5 was headed In Vitro Fertilisation I V F and stated Techniques such as I V F should only be used after thorough investigation has failed to reveal a treatable cause for the infertility Prior to fertilisation of an ovum extensive discussion and counselling is essential Any fertilised ovum must be used for normal implantation and must not be deliberately destroyed If couples have validly decided they do not wish to make use of their own fertilised ova the potential for voluntary donation to other recipients may be considered The documents in this case are consistent with those guidelines which envisaged that there should not be intentional destruction of embryos In the 7th Edition 2009 Guide to Professional Conduct and Ethics for Registered Medical Practitioners published recently by the Medical Council on the matter of assisted human reproduction the guidelines state 20 1 Assisted human reproduction treatments such as In Vitro Fertilisation IVF should only be used after thorough investigation has shown that no other treatment is likely to be effective You should ensure that appropriate counselling has been offered to the patient and that the patient has given informed consent before receiving any treatment 20 2 Assisted reproduction services should only be provided by suitably qualified professionals in appropriate facilities and according to international best practice Regular clinical audit and follow up of outcomes should be the norm 20 3 If you offer donor programmes to patients you must consider the biological difficulties involved and pay particular attention to the source of the donated material Such donations should be altruistic and non commercial You should keep accurate records for future reference Thus there is a change in these new guidelines in relation to the fertilised ovum This illustrates the lack of regulation in the area The situation in this case has arisen because of the creation of the three surplus embryos These circumstances arise in other jurisdictions also Some states have taken steps to prohibit the keeping of surplus embryos Other states make specific provision in legislation for surplus embryos There is no legislation in Ireland on the issue nor any other form of regulation on assisted human reproduction 28 The Report of the Commission on Assisted Human Reproduction 2005 at p XI stated that The surplus embryos not used for immediate transfer may be preserved in a frozen state cryopreservation for further use by the couple who produced them thereby avoiding the necessity of repeating the risky and uncomfortable procedure of ovarian stimulation Sperm may also be reserved in a frozen state At present ova are not routinely frozen If frozen embryos still remain after the couple has completed their treatment the available options include donation to another couple donation for research and being allowed to perish The Commission recommended that a regulatory body should be established by an Act of the Oireachtas to regulate assisted human reproduction and that appropriate guidelines should be put in place Clearly it is a matter for the Oireachtas to regulate the sensitive and important area of reproductive medicine 29 I am satisfied that the consent of the husband to the I V F treatment and to the freezing of embryos was not an agreement to the implantation years later of the surplus frozen embryos There was no agreement between the plaintiff and the husband as to the surplus embryos 30 The absence of an express agreement and the absence of regulation in the circumstances of the case lead to the issue of an implied agreement being raised by counsel for the plaintiff Implied Agreement 31 I am satisfied that the facts of the case do not establish that there was an implied consent by the husband to the use the implantation of the surplus frozen embryos Without going into the evidence in detail in this judgment two extracts illustrate the situation On Day 2 the plaintiff gave the following evidence Q Can you tell the Court when do you recall the first discussion taking place about the embryos between yourself and your husband A It was before he left the second time I asked him What are we going to do with our frozen embryos and his initial reaction was at the time We will destroy them and I said We can t do that the clinic don t allow that We didn t speak of it again Later it transpired from the plaintiff s evidence that they had a further discussion on the frozen embryos in 2005 In her evidence on Day 2 the plaintiff was asked and answered as follows Q Did you have any discussion with your husband about seeking to recover the embryos yourself with a view to having them transferred and for the purposes of implantation A I did bring up the question again I think it was in 2005 We were at a mediation session regarding an issue and I brought it up again I asked him what are we going to do with our three frozen embryos and his reply was that we would donate them and the money that we would get from the donation we would give it to a children s charity My reply to him was You want to sell our children He said You don t get any money when you donate frozen embryos and that was the last discussion I had with him It is clear that there was at no time an implied agreement or consent by the husband to the implantation of the surplus frozen embryos Estoppel 32 Counsel submitted that once one had regard to the sequence of events the consent forms the implantation of three embryos the freezing of the three surplus embryos in a situation where the husband knew that there may be surplus embryos that the husband is precluded by his conduct from refusing to give consent to the implantation of the three surplus embryos in the plaintiff s uterus 33 This submission is made in relation to a situation where I am satisfied there was neither an express nor an implied consent or intent to have the three surplus embryos implanted There was no intent or advance decision in relation to any surplus embryos There is no question therefore of enforcing any earlier expressions of choice As there was no decision on the matter there is no issue of withdrawal of consent arising for consideration 34 The facts of a case are critical to any analysis of estoppel In this case there was the I V F treatment the implantation of three embryos and the successful birth of a daughter This was the plaintiff and her husband s second child a son having been born to them earlier There was consent to freezing surplus embryos but there was no agreement or choice made as to what was to be done with any surplus embryos There was no agreement between the plaintiff and her husband The plaintiff and her husband are now separated The plaintiff wishes to have the surplus embryos implanted while her husband does not wish them to be implanted In the circumstances of this case on the facts and the law no issue of estoppel arises 35 The finding set out later in this judgment on the meaning of the term the unborn in Article 40 3 3 with reference to the three frozen embryos is relevant to this analysis I have been mindful of that finding in my decision 36 There being no agreement between the parties another approach advocated was that of the contemporaneous mutual consent test The Court s attention was drawn to In Re the Marriage of Witten III 672 N W 2M 768 Iowa 2003 a decision of the Iowa Supreme Court where frozen embryos had been created by the parties with consent However the marriage broke down and then the wife wished to use the embryos but the husband did not The Court held That brings us then to the dilemma presented when one or both partners change their minds and the parties cannot reach a mutual decision on disposition We have already explained the grave public policy concerns we have with the balancing test which simply substitutes the court as decision maker However this approach is not relevant to nor should it be applied in this case as there was no initial agreement as to what should happen to the surplus embryos other than that they be frozen Consequently no issue of change of mind arises However it is of interest to note the test applied by that Court It held A better principle to apply we think is the requirement of contemporaneous mutual consent Under that model no transfer release disposition or use of the embryos can occur without the signed authorization of both donors If a stalemate results the status quo would be maintained The practical effect will be that the embryos are stored indefinitely unless both parties can agree to destroy the fertilised eggs Thus any expense associated with maintaining the status quo should logically be borne by the person opposing destruction Turning to the present case we find a situation in which one party no longer concurs in the parties prior agreement with respect to the disposition of their frozen embryos but the parties have been unable to reach a new agreement that is mutually satisfactory Based on this fact under the principles we have set forth today we hold that there can be no use or disposition of the Wittens embryos unless Trip the husband and Tamera the appellant reach an agreement That test does not arise in the circumstances of this case as the parties did not make an agreement as to the surplus frozen embryos However the mutuality required in the test is noteworthy 37 A different test was applied in Davis v Davis 842 S W 2d 588 597 Tenn 1992 where the Tennessee Supreme Court addressed the issue of disputes as to frozen embryos between divorcing couples It stated at paragraph 112 In summary we hold that disputes involving the Disposition of preembryos produced by in vitro fertilization should be resolved first by looking to the preferences of the progenitors If their wishes cannot be ascertained or if there is dispute then their prior agreement concerning Disposition should be carried out If no prior agreement exists then the relative interests of the parties in using or not using the preembryos must be weighed Ordinarily the party wishing to avoid procreation should prevail assuming that the other party has a reasonable possibility of achieving parenthood by means other than use of the preembryos in question If no other reasonable alternatives exist then the argument in favour of using the preembryos to achieve pregnancy should be considered However if the party seeking control of the preembryos intends merely to donate them to another couple the objecting party obviously has the greater interest and should prevail 38 As indicated earlier I am satisfied that there was no prior agreement in this case to the implantation of the surplus frozen embryos However even if the husband had made such agreement which he did not I would not regard it as irrevocable All the circumstances would have to be considered carefully If a party had no children and had no other opportunity of having a child that would be a relevant factor for consideration In this case the plaintiff and her husband already have two children It is also relevant that they are now separated Another important factor is that the husband does not wish to have further children with the plaintiff If the embryos were implanted he would be the father of any subsequent children with constitutional rights and duties 39 The right to procreate was recognised in Murray v Ireland 1991 1 I L R M 465 There is an equal and opposite right not to procreate In the circumstances of this case while the plaintiff and her husband have family rights the exercise of a right not to procreate by the husband is a proportionate interference in all the circumstances of the case to the right of the plaintiff to procreate Conclusion on civil issue 40 Each case requires to be considered on its own facts I conclude on the civil issue that there was no agreement express or implied as to the use of the three surplus frozen embryos Even if there was an agreement which I am satisfied there was not I consider that it would not be irrevocable Further in the circumstances the principle of estoppel does not apply to estopp the husband from refusing to give his consent to the implantation of the frozen embryos 41 I would dismiss the plaintiff s appeal on all the grounds raised in relation to the private law issue Constitutional Issue the unborn 42 For the purpose of analysing the constitutional issue I shall recap shortly the basic facts The plaintiff and her husband experienced fertility difficulties With treatment the plaintiff became pregnant and the couple had a son born to them in 1997 The plaintiff wished to have further children and she attended the Clinic for I V F treatment in 2001 In January 2002 the plaintiff and her husband signed the documents set out earlier in this judgment Six viable embryos were created in the Clinic following the mixing of the plaintiff s eggs with the husband s sperm Three of the embryos were implanted in the plaintiff s uterus she became pregnant and a daughter was born in 2002 The plaintiff and her husband have had marital difficulties and are now separated At issue in this case are the three surplus embryos which were frozen and stored at the Clinic 43 The plaintiff submits that the three surplus embryos constitute the unborn for the purposes of Article 40 3 3 of the Constitution and that the State which includes the Court is obliged to facilitate the implantation

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