The High Court has rejected a challenge by a Mass card distributor to a law requiring sellers to have an arrangement with a recognised Roman Catholic bishop or religious order provincial.
In a judgment dated 17 December 2009, Mr Justice John MacMenamin dismissed Thomas McNally’s claims that section 99 of the Charities Act 2009 breached EU competition and product rules and several provisions of the Constitution. His sister, Marie Reilly, was also a plaintiff, but the judge said she did not testify and dismissed her claim.
Section 99 makes it an offence to sell a Mass card without the required arrangement. The court heard that Mr McNally’s business, MCC, distributed unsigned cards and cheaper pre-signed cards. The judgment described evidence of bogus cards in the wider market, including cards bearing signatures attributed to deceased or misidentified priests. The judge said consumers could be misled about whether a Mass would be celebrated for the intention stated.
The judgment examined MCC’s arrangements with priests, its advertising and its card procedures. It found that the arrangements described in evidence did not accord with canon law and that the presentation of cards could lead ordinary consumers to believe they were buying authentic cards. The court expressly refrained, however, from deciding whether Mr McNally had complied with section 99. That question was not the purpose of the case.
The judge rejected the EU competition claims because they were not supported by substantive evidence. He also rejected the argument that the law imposed a technical specification on an industrial product, finding that it regulated who could sell the cards rather than the cards themselves.
On the constitutional challenge, the court found that Mr McNally had not established standing to claim interference with religious practice or discrimination on religious grounds. It held that the statutory arrangement requirement was a consumer protection measure and did not amount to a religious establishment. The court also upheld the reverse burden in section 99 as proportionate, given that the existence of an arrangement would be particularly within a seller’s knowledge and difficult for a prosecutor to disprove.
A separate challenge to the possible maximum penalties was premature: Mr McNally had not been prosecuted, and the court said it could not assume a prosecution on indictment or the imposition of the maximum penalty. The claims concerning livelihood and freedom of expression were not pursued. The judge concluded that the challenge failed under all headings.