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Constitutional Rights Equality Notes

BCL Law Notes > Constitutional Rights Notes

This is an extract of our Constitutional Rights Equality document, which we sell as part of our Constitutional Rights Notes collection written by the top tier of University College Dublin students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Constitutional Rights Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:


• Art. 40.1 > all citizens shall, as human persons, be held equal.

• The state shall have due regard to 'differences of capacity, physical and moral, and of social function.
McMahon v Leahy 1875
A group of men escaped from jail in NI. They crossed the border and their crimes were 'political offences'. Legislation allowed for a minister or HC
judge to exempt someone from extradition if their crime is a political offence. Extradition is being deprived of liberty, in essence. The SC refused to allow extradition of P to NI as numerous people in the same circumstances where not extradited as they claimed the exemption. In those cases their exemption was not challenged. Court held
- Contesting a similar claim in Ps case and allowing it in the others is contravening guarantee of liberty
This applies in criminal sentencing too (DPP v Patrick Duffy & Anor)

• Scope extends to
A) rules of law that can be rendered invalid if they make distinctions which violate article 40
B) application of such rules with same effect - if like cases aren't treated in a like manner

• even if rule is valid and applies as it stands, still may violate art.40.1


• Reasoning? It is quite clear that you could pass laws which might deal with the position of judges, but which would not apply to those who were not exercising that particular social function …' Eamon De Valera

1) Is there discrimination?
2) If yes, is it a human attribute inherent in one of the people? Or an activity?
3) Is it legitimate therefore?

O'Q v Judge Buttimer
It was found that - A judge's notes not being discoverable is not a violation due to their particular 'social function'.
This rule relates to their position under the constitution
Philip Clarke case
P taken to Garda station and detained and a medical official recommended him to Grange Gorman on application of the Garda. Not a violation due to the exceptions named in the const.
'differences of capacity, physical and moral…social function'
- Mentally ill fall under exceptions mentioned

Necessary as people of unsound mind =
- danger to themselves and others.
Perfectly reasonable that they should be brought before medical examiners.
De Burca v AG
Juries act from 1920s could potentially render men ineligible to be included in jury depending on their land holdings. It also excluded women. This was held by SC to be a violation.
- excluding women from juries violated art.40
- property qualification for men also a violation.
It is the property qualification that is the violation here. it is suggesting that men of a certain land possession are more qualified to part-take in a jury?
Implying that their assets suggest that they are less impartial, less intelligent,
less honest.
- Wealth alone - no difference in social function
O'Brien v Keogh
Statute of limitations imposes 3y limit from age 21 for PI on disabled people meaning actually disabled or an infant- unless in custody of parent when the event happened. It extended this period to 6 yrs. Argued this differentiates disabled infant with adults and ones without.? - Art.40 'does not require identical treatment…without recognition in relevant circumstances'
'invidious discrimination' = differences accepted by law because human equality demands them to be ignored in the context
In fact, there to establish equality between the two groups.

C(P) v Minister for Social Protection
Refusing to pay a prisoner a contributory state pension not discrimination as his basic needs are being looked after alternatively by the state
Argued different extradition arrangements for diff. countries = discrimination.
Held that
- Diversity in arrangements not discrimination
Adoption order granted under adoption act without notifying the father -
only required the mothers consent. The child was born in England but order was made in Ireland - illegitimate.
It was held that this was
- Legitimate discrimination
- All children have equal natural rights but state may discriminate in legal rights.
Court said the law acknowledges human equality.

• Inequality may result from some special needs or abilities.
- Art 40.1 doesn't guarantee equal measure in all things to every person as to do so, regardless of special needs and abilities would be inequality.
Murphy v AG
Greater tax liability of married couples living together than unmarried couples under income tax act. No violation.
- Inequality may be 'reasonably justified' by facts.

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