THE HIGH COURT
JUDICIAL REVIEW
No. 2000 JR 64
BETWEEN
MICHAEL GRIMES
APPLICANT
AND

CENSORSHIP OF PUBLICATIONS BOARD IRELAND AND THE ATTORNEY GENERAL

NOTE OF EX TEMPORE

JUDGMENT of Mr. T. C. Smyth delivered 22nd February 2000.

This is an application for leave to issue proceedings by way of Judicial Review by the Applicant in person. Order 84, r.21 of the Rules of the Superior Courts provides that “An application for leave for Judicial Review should be made promptly and in any event within three months from the date when grounds for the application first arose, or six months where the relief sought is Certiorari, unless the Court considers there is good reason for extending the period within which the application shall be made.” The Court may decline to deal with the application in circumstances where it has not being brought promptly even though it was brought within the time stipulated (see DPP -v- District Justice McDonald, High Court, 1 October, 1990, unreported, and DPP -v- Johnson [1998] ILRM 747.)

Before making a decision in this matter it is necessary first to consider the factual basis upon which the matter comes before the Court. In the course of the application Mr. Grimes referred me to certain events that had taken place in 1999 in connection with a magazine called “In Dublin” and some activity of the Respondents, Censorship of

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Publications Board of Ireland. The background to that case can be stated very shortly. In or about the month of July, 1999 the Board apparently made an Order for Prohibition, generally referred to as a ban, impounding or effectively putting out of circulation a magazine entitled “In Dublin” for three months, which led to some controversy which became public and the matter came before O’Donovan J. in the High Court during, the long vacation of that year and it attracted a great deal of public attention. In that case the publication “In Dublin” had been prohibited from continuing in publication without having been given a hearing by the Censorship of Publications Board before the Order of Prohibition. However, not to be outdone in these matters Mr. Grimes felt that he also was entitled to bring proceedings, such as he has now brought before me. He avers that he noted certain advertisements in the Cork Examiner, advertising, “sex for sale and seeking to employ prostitutes”. He obtained copies of the Cork Examiner of 22nd, 26th and 27th of July 1999, which he has exhibited as exhibit A in his Affidavit and he has drawn my attention to specific matters arising therein. It is unnecessary to go through these and recite all that is in the Affidavit, suffice it to say that basically the gravamen of his complaint is in regard to these advertisements for “Massage”; he swears that “Adult Massage means provision of sex by a girl to a man either in or outside a brothel”. I found this latter part of the statement about extracurricular activities conducted on an extramural basis somewhat perplexing in the light of the fact that he referred to the logic of governments having failed for over 2000 years to prohibit this type of activity without success. No authority was quoted and I do not feel at liberty to ascribe the source of information to the Institutes of Justinian or the Satires of Juvenal. However, be that as it may, the position is that the various matters that he complains of, brought themselves down to one or two basic issues; in the course of his Affidavit, and I do this, not in any way diminish the gravity of what he has said, but merely to try and gather together the main strands of his case:-

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(a) In paragraph A of his Affidavit he avers:-

“I beg to refer to one ad under the heading ‘New Taboo Massage’ in which it advises people to be sinful. Cork is a very Catholic city and sin inter alia means any form of sex which is enjoyed. It is an order to have sex once a year in Cork when married provided one does not take pleasure in it.”

I find some difficulty in understanding the concept, but nonetheless that is what is stated. He proceeds then to deal with a range of matters in the course of his Affidavit and somehow or other seems to draw some distinction between the cities of Cork and Dublin in this regard.

(b) In paragraph 25 of his Affidavit Mr. Grimes avers:-
“Accordingly, on the 17th of September, 1999 a mere six weeks or so after the terrible ads had appeared and I had time to get the required copies required by me by the Statute, I sent to the Board the required 3 copies of recent issues and demanded that “The Examiner” be banned.”

That is stated against a background in which in the course of his Affidavit Mr. Grimes regarded the Board as having been, I think either stupid or foolish or ill advised or otherwise wrong headed in the decision they made about the magazine “In Dublin” and effectively provoked or challenged them to a position to do the same about “The Examiner” and felt that this might very well not happen because in some way it was considered that the Act would be applied in different ways to different people. He then went on to refer to other correspondence he had in the course of the period of time and various complaints in the Affidavit about the Board and their ability and inability or activity or more particularly their inactivity and he refers to them in paragraph 46 as “a bunch of prudes otherwise known as the Censorship of Publications Board.” He proceeds then to matters pertaining to the grounds of

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application and I think it is appropriate that I refer to the correspondence for it begins with a letter of the 17th of September, 1999 which encloses three copies of The Examiner dated July 22nd, 26th and 27th and the Applicant states in complaining that their contents are obscene and promote the sale of sex. He proceeds to give certain information about particular phone numbers and he asserts that the cost of complete sexual congress is bad value. Neither in the Affidavit or letters does Mr. Grimes indicate any source of information and belief. I think it therefore reasonable to assume that these were matters within the Applicant’s own personal knowledge.

In dealing with the controversy “In Dublin” the Applicant addresses the Board thus:
“To help concentrate your minds you have until October 4th, 1999 to ban the newspaper failing which and without notice to you I will apply to the High Court on Monday, October 11th for leave to judicially review your refusal to do so and I joke not. I will also apply for an Mandamus directing you to ban it so you will have to think up some pretty good reasons why not. Among non-acceptable excuses are the fact that the paper has stopped running the ads. If you do not confirm by October 4th that you have taken such action then such failure to respond would be taken as a refusal to ban and the Court would be so notified. Anyhow its going to be a fun Court case, as the way I see it you are on a hiding to nothing, no matter what you do, and my betting is that you will have no guts and will do nothing. See you in Court.” “P.S. Isn’t it fun what the costs of all these Court cases is going to do to your budget?”

This is followed by a further letter of October 26th, 1999 in which (inter alia) Mr. Grimes is addressing the Board Chairman in the following terms,
“I was informed and correct me if I got the wrong impression, that the next meeting

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of the Board has not been scheduled. I take this to be stalling tactics. You will meet when I want you to, not when you want. If you do not confirm a meeting day to me within the next seven days and I am happy with it, then I will be in Court on November 8th. I have given you more than enough time. No more monkey business. You simply are stalling, not that I blame you! You are afraid to ban The Examiner and that is the bottom line. We all know the reality of the situation. You would not dare! You are a statutory body and it is not good enough that you cannot be all got together at the same time. That is not my problem, it is yours. I want that newspaper banned by November 8th or I will apply to the Court to do it for me, Please date, or seconds out and on to the four gold mines.”

In a response from the Board of 29th October, 1999 there is an acknowledgement of the earlier letter of the 26th of October, 1999 and an indication that the matter will be placed on the agenda of a Board meeting to be held ‘shortly’.

A letter of 10th November, 1999 from Mr. Grimes again to the Chairman of the Board effectively deals with the number of matters not least of which is the question of deciding the matter in private and his desire or wish that he be entitled to attend to cross examine any person making proposals, which he asserted natural justice so requires. The penultimate paragraph of his letter reads as follows:-
“Please confirm immediately the date of the hearing, and that it would be held in public and I would be entitled to attend and make representations. If I do not receive a reply before the hearing or within 72 hours of receipt of this fax, I will take the failure to reply as a refusal and then I will immediately and without further notice apply to the High Court for a Judicial Review of your

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actions mainly on the grounds that natural justice does not allow you to have a private cover-up otherwise known as a whitewash. It is my bet that if you have a private meeting you will refuse to ban the paper.”

That eventually was followed by a response letter from the Board of 8th November, 1999 which may or may not have crossed with that particular fax from Mr. Grimes and reads as follows:-
“Dear Mr. Grimes, The Board met on 6th November, 1999 and considered your complaint in relation to The Examiner/Cork Examiner. Section 9(1) of the Censorship of Publications Act, 1946 states that the Board, “shall examine the issues recently theretofore published of every periodical publication…..” (Our emphasis added). Statutory instrument 292 of 1980 - Censorship of Publications Regulations - sets down the manner in which a complaint should be properly made to the Board. 5(D) of the above regulations requires that a complaint shall ‘be accompanied by a copy of each of not less than 3 recent issues of the periodical publication ‘(Our emphasis added). Your complaint which is dated 17th September, 1999 was received in this office on 21st September and was accompanied 3 issues of The Examiner dated 22nd, 26th and 27th July, 1999. In view of the above your complaint does not comply with the requirements Section 9(1) or the Censorship of Publications Act, 1946 or Regulation 5(D) of Statutory instrument 292 of 1980 re: recent publications. If you will forward re: recent issues (bearing in mind that this is a daily publication) the Board will consider any further complaint you may have.”

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There is a formal acknowledgement of Mr. Grimes fax on 14th November and there the matter ended until it came before me yesterday by way of ex parte application in which a number of relief’s were sought including Orders of Certiorari, Mandamus, Declaration and other ancillary relief’s touching upon matters which are appropriate to the Constitution.

The Examiner is a daily newspaper and 3 recent issues, I think must be taken in the context of that fact. It is unnecessary to cite the provisions of Order 84 Rule 18 of the Rules of the Superior Court, indeed Rule 21 of the same Order sets out time limits in regard to the applications. It is quite clear from the Affidavit altogether from Mr. Grimes knowledge of the Courts and the working of the Courts that he is quite aware of the matters provided for in the Rules because of the contents of paragraph 40 of his Affidavit wherein he states 
“The word ‘recent’ is not defined in the Act but in my submission means within three months and possible six months being the time limit for a Certiorari application. The act requires reasonable time to elapse and what’s good enough for Certiorari should be good enough for the Censorship Board.”

There was clearly an appreciation of the time limits by Mr. Grimes. In the case of Cahill -v- Sutton [1980] IR 269 at 281, the Judgment of Henchy J. states as follows:-
“The general approach to the question of standing that has been adopted in other jurisdictions was described as follows in the Judgment of this Court in the East Donegal Co-operative case at p. 338 of that report;-”

“With regard to the locus standi of the Plaintiffs the question raised has been determined in different ways and Countries which have constitutional provisions similar to our own. It is unnecessary here to go into this matter in detail beyond stating that at one end of the spectrum of opinions on this topic

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one finds the contention that there exists a right of action akin to an actio popularis which will entitle any person, whether he is directly affected by the act or not, to maintain proceedings and challenge the validity of any act passed by the Parliament of the country in which he is a citizen or to whose laws he is subject by residing in that country. At the other end of the spectrum is the contention that no one can maintain such an action unless he can show that not merely do the provisions of the act in question apply to activities in which he is currently engaged but their application has actually affected his activities adversely. The Court rejects the latter contention and does not find it necessary in the circumstance of this case to express any view upon the former.”

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

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challenge is assessed judicially in the light of the application of the impugned position to the challengers own circumstances.

The Judgment of Judge Henchy proceeds with the consideration of Ryan -v- The Attorney General [1970] IR and proceeds at page 283 of the report:-

“While a cogent theoretical argument might be made for allowing any citizen, regardless of personal interest or injury, to bring proceedings to have a particular statutory provision declared unconstitutional, there are contravening considerations which make such an approach generally undesirable and not in the public interest. To allow one litigant to present and argue what is essentially another persons case would not be conducive to the administration of justice as a general rule. Without concrete personal circumstances pointing to a wrong suffered or threatened, a case tends to lack the force and urgency of reality. There is also the risk that the person whose case has been put forward unsuccessfully by another may be left with a grievance that his claim was wrongly or inadvertently presented.”

Notwithstanding the provisions of Order 84 facilitating a party affected by any case in which leave is given to apply for Judicial Review, in my view such should not be used to bring such person(s) simply to deal with matters he, a litigant, feels he wants to litigate without the other requirements of a personal interest referred to by Henchy J. who deals with the matter in extenso in the Judgment aforesaid. Mr. Grimes submitted that the Censorship of Publications Board was an emendation of the state, if so the observations of Henchy J are particularly apposite. The Judgment of O’Higgins C.J. in 

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The State (Abenglen Properties Limited) -.v - The Right Honourable The Lord Mayor Alderman and Burgesses of Dublin [1982] ILRM 590 at 597 deal with the question of the remedy of Certiorari. Having set out its historical background, the Chief Justice said that:-

“in the vast majority of cases however, a person whose legal rights have been infringed may be awarded Certiorari ex debito justitiae, if he can establish any of the recognised grounds for quashing; but the Court retains a discretion to refuse his application if his conduct has been such as to disentitle him to relief or, I may add, if the relief is not necessary for the protection of those rights. For the Court to act otherwise, almost as of course, once an irregularity or defect is established in the impugned proceedings, would be to debase this great remedy.”

I am well aware of the difference of standard of proof required in this jurisdiction from our own neighbouring jurisdiction at the application for leave stage in Judicial Review proceedings. Notwithstanding that, having regard to the cases to which I have referred, the provisions of the Rules and the elements of time, it seems to be a case in which the application must be refused. The application has not been brought promptly, even if it could be argued to be within time. There is an air of unreality about the application. The complaint of action or inaction is not positively averred to as actually adversely affecting the Applicant’s life or activities. There is no error on the face of the record of the Respondent. I would debase the remedy of Certiorari to grant an Order in this case. Accordingly I dismiss the application.