DPP said ban on condoms would not be upheld in court

CONTRACEPTION:THE DIRECTOR of Public Prosecutions would not have taken a case against university students for selling condoms because courts would likely have found the contraceptive ban unconstitutional, a letter from the DPP to the attorney general reveals.

The first contraceptive vending machine in the State was installed in University College Dublin, Belfield, in January 1979 by the students’ union. A pack of four condoms cost 50p. It proved popular selling 160 condoms a day.

However, after little over a week, the machine was removed by college authorities.

The State paper reveals that the DPP and attorney general had discussed whether there should be prosecutions against UCD and a Dublin shop, Contraceptives Unlimited, under the Criminal Law Amendment Act 1935 which made it illegal to sell condoms.

In a letter, the DPP said the people involved in the trade clearly wished to provoke a prosecution to challenge it in the High Court. He said the law banning contraception would stand “little or no chance of being upheld”.

It would not be “consistent with normal prosecution ethics and proper administrative standards to prosecute” on the basis of a law enacted before 1937 (the Constitution) and which appeared “clearly unconstitutional”.

Contraceptives had been sold for several years “under the pretence of free distribution and the acceptance of donation” and those running the condom machine and shop were just “being more forthright about the true nature of their activity”, he wrote.

Minister for health Charles Haughey introduced the Family Planning Bill in late February 1979 to make contraception available by prescription. He called this an Irish solution to an Irish problem.

The DPP was also concerned about the use of courts for the advocacy of matters of public controversy.