Bita v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice Richard Humphreys |
| Judgment Date | 12 May 2016 |
| Neutral Citation | [2016] IEHC 288 |
| Court | High Court |
| Docket Number | [2016 No. 63 J.R.] |
| Date | 12 May 2016 |
AND
[2016] IEHC 288
[2016 No. 63 J.R.]
THE HIGH COURT
JUDICIAL REVIEW
Constitution – Crime & Sentencing – Constitutionality of S. 5 of the Summary Jurisdiction (Ireland) Amendment Act, 1871 – Public indecency – Leave to seek prohibition – Ex-tempore ruling – O. 86A, r. 9(3) of the Rules of the Superior Courts 1986 – Judicial review – Dismissal
Facts: Following the arrest of the applicant for two different charges, one of them being an offence of indecent exposure contrary to s. 5 of the Act of 1871 and refusal of the High Court to grant the applicant an ex parte leave to seek an order of prohibition of the trial on the ground that the said section was unconstitutional, the applicant appealed to the Court of Appeal against the order of the High Court. Since the said decision of the High Court was an ex-tempore decision, the applicant now came back for a written decision from the High Court as the matter before the Court of Appeal had been adjourned on the basis of lack of an approved note as required under o. 86A, r. 9(3) of the Rules of the Superior Courts 1986.
Mr. Justice Richard Humphreys denied the applicant to avail leave to seek an order of prohibition. The Court observed that the applicant was likely to be acquitted for the offence as there was an absence of indecency and the act of applicant was not prohibited under s. 5 of the 1871 Act. The Court held that it would be unjustified to permit the applicant to ask the Court to strike down a duly enacted law. The court cited with the approval the principle laid down in G. v. D.P.P. [1994] 1 I.R. 374 that the Court was permitted to refuse to grant leave where a more convenient remedy was available to the applicant. The Court held that an applicant should generally exhaust his or her criminal remedies before bringing an application for judicial review especially in matters of enquiry into constitutionality of a duly enacted law which could put the statute in suspension. The Court held that prohibition could only be granted where there was a risk of assured unfairness and there were only certain exceptions which did not include a challenge to legislation. The Court observed that in the present case, there was no risk of unfairness to the applicant as the applicant was likely to be acquitted in the criminal proceeding and thus there was no need to grant the applicant the desired relief.
At around 3.45 am on 27th August, 2015, it is alleged that the applicant parked his car at Old Nangor Road, Clondalkin, Dublin 22 and proceeded to relieve himself in bushes. This was said to have been witnessed by a member of An Garda Síochána, who arrested the applicant. Following a search in custody the applicant was allegedly found to be in possession of a small amount of cocaine.
He was charged with two offences; an offence contrary to s. 3 of the Misuse of Drugs Act 1977 and the offence of indecent exposure, contrary to s. 5 of the Summary Jurisdiction (Ireland) Amendment Act 1871.
The applicant was, at one point, also charged with an offence contrary to s. 38 of the Road Traffic Act 1961 but this charge was subsequently withdrawn.
Mr. Keith Spencer B.L., for the applicant, in a very able submission, applied to me ex parte for leave to seek prohibition of his trial, on the grounds that s. 5 is unconstitutional.
I refused the application in an ex tempore decision on 1st February, 2016. The applicant then appealed the refusal to the Court of Appeal, and when the matter was listed for hearing on 18th March, 2016, I am told that that court only had before it a note of the ruling taken by the applicant's lawyers rather than an approved note.
As the applicant will no doubt now be aware, O. 86A, r. 9(3) of the Rules of the Superior Courts 1986 as substituted by the Rules of the Superior Courts ( Court of Appeal Act 2014) 2014 ( S.I. No. 485 of 2014) requires an appellant, in an expedited appeal (as here), to lodge a note of an ex tempore ruling ' authenticated by the Judge of the court below'. (The same procedure applies under O. 86A, r. 13(3) for ordinary appeals.) Obviously this was inadvertently overlooked by the applicant in this case.
The Court of Appeal adjourned the matter to allow this to be rectified and Mr. Spencer then applied to me for a written decision. In view of how that matter arose I explored with him whether he wished to have a pretty much verbatim note of the original Digital Audio Recording or a more detailed reserved decision setting out more full reasons, and he expressed openness to either option. Given all of the circumstances, including the difficulty with the papers before the Court of Appeal, it would seem that the latter would probably be the course that would be most helpful for the applicant and that is what I now do.
The essential ground of challenge against s. 5 was unconstitutional vagueness, in reliance on the judgments of Hogan J. in Douglas v. D.P.P. [2013] 1 I.R. 510 and McInerney v. D.P.P. and Curtis v. D.P.P. [2014] 1 I.R. 536. It is also submitted that the section lacks principles and policies: Cityview Press v. An Chomhairle Oiliúna [1980] I.R. 381.
In G. v. D.P.P. [1994] 1 I.R. 374 at 377 to 378, Finlay C.J. set out the criteria for the grant of an ex parte application for leave. In some previous leave decisions (e.g., M.McK. v. Minister for Justice and Equality [2016] IEHC 208 (Unreported, High Court, 25th April, 2016)), I have attempted to summarise these requirements. As developed by subsequent changes to the rules of court, and subsequent caselaw, the criteria can be summarised as follows:-
(i) That the applicant ' has a sufficient interest in the matter to which the application relates' (p. 377);
(ii) That 'an arguable case in law can be made that the applicant is entitled to the relief which he seeks' (p. 378) on the basis of facts averred to by the applicant. Of course in particular circumstances a higher threshold than arguability applies, such as where legislation requires substantial grounds, or where the grant of leave would itself be likely to determine the event ( Agrama v. Minister for Justice and Equality [2016] IECA 72 (Unreported, Court of Appeal, 22nd February, 2016) per Birmingham J. at para. 32);
(iii) That the application has been made within the appropriate time limit or that the Court is satisfied that it should extend the time limit in accordance with the applicable rules of court or legislation;
(iv) That ' the only effective remedy, on the facts established by the applicant, which the applicant could obtain would be an order by way of judicial review or, if there be an alternative remedy, that the application by way of judicial review is, on all the facts of the case, a more appropriate method of procedure' (p. 378);
(v) That there are no other grounds to warrant the refusal of leave. 'These conditions or proofs are not intended to be exclusive and the court has a general discretion, since judicial review in many instances is an entirely discretionary remedy which may well include, amongst other things, consideration of whether the matter concerned is one of importance or of triviality and also as to whether the applicant has shown good faith in the making of an ex parte application' (p. 378).
It is now therefore necessary to assess the present application under the headings that are in issue in this case, in particular alternative remedies and discretion.
Section 5 of the Act of 1871 creates an offence committed by ' [a]ny person who within the limits of the police district of Dublin Metropolis, in any thoroughfare or public place, shall wilfully and indecently expose his person or commit any act contrary to public decency'. As far as males are concerned, ' person' in this context means penis (see Cox v. D.P.P. [2015] IEHC 642 (Unreported, High Court, 20th October, 2015) per McDermott J. at paras. 29 to 30, dealing with s. 4 of the Vagrancy Act 1824). The offence can be construed in a gender-neutral manner; a woman exposing her vulva should also be regarded as thereby exposing her person (see Evans v. Ewels [1972] 1 W.L.R. 671). In any event, confining the discussion to males for present purposes, mere exposure of the penis is insufficient. The defendant must do so ' indecently', or do another act ' contrary to public decency'.
That point is crucial. Merely exposing one's penis in a public place does not necessarily constitute an offence under s. 5. There are many possible counter-examples where to do so is manifestly not indecent: urination in a public lavatory; use of certain bathing places; discreet 'skinny-dipping' more generally; certain saunas; exposure for the purposes of theatre; avant-garde performance art; discreet artistic photography; and so on. Such life-affirming activities are not contrary to contemporary community standards and therefore could not legitimately be the a priori object of criminal punishment, whether based on decency considerations or otherwise.
I would remark in passing that contrary to what might be an expansive interpretation of Douglas and McInerney, a court sitting without a jury is not necessarily to be precluded from forming a view as to contemporary community standards. Juries provide a crucial (and under our system, essential) safeguard in non-minor, non-special criminal cases, but there is no constitutional requirement that that safeguard is required in any and every form of proceedings where contemporary community standards come into play.
Is public urination one of the examples of ' expos...
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