Bita v DPP
| Jurisdiction | Ireland |
| Court | High Court |
| Judge | Ms. Justice Ní |
| Judgment Date | 25 June 2018 |
| Neutral Citation | [2018] IEHC 385 |
| Docket Number | Record No. 2016/63 J.R. |
| Date | 25 June 2018 |
[2018] IEHC 385
THE HIGH COURT
JUDICIAL REVIEW
Ní Raifeartaigh J.
Record No. 2016/63 J.R.
and
and
Judicial review – Committing an act in any thoroughfare or public place contrary to public decency – Excessive vagueness – Applicant seeking judicial review – Whether the summary offence of committing an act in any thoroughfare or public place contrary to public decency is inconsistent with the Constitution by reason of being excessively vague
Facts: The applicant, Mr Bita, was charged with the summary offence of committing an act in any thoroughfare or public place contrary to public decency, as provided for by s. 5 of the Summary Jurisdiction (Ireland) Amendment Act 1871. The applicant applied to the High Court for leave to bring judicial review proceedings and by order dated the 1st February, 2016, leave was refused. The applicant appealed this refusal to the Court of Appeal. By order dated the 25th October, 2016, the Court of Appeal allowed the appeal and granted leave. The matter came on for hearing in the High Court. The net question in this case was whether the summary offence is inconsistent with the Constitution by reason of being excessively vague.
Held by the Court that the act of public urination may in some circumstances amount to an act contrary to public decency and that in other circumstances it may not. This did not, however, in the Court's view, lead to the conclusion that the offence committing an act contrary to public decency is impermissibly vague.
The Court held that it would refuse the relief sought.
Relief refused.
The net question in this case is whether the summary offence of committing an act in any thoroughfare or public place 'contrary to public decency', as provided for by s. 5 of the Summary Jurisdiction (Ireland) Amendment Act 1871, is inconsistent with the Constitution by reason of being excessively vague.
The applicant was charged with the above offence (together with an offence contrary to s. 3 of the Misuse of Drugs Act 1977). It appears that, in broad terms, the factual background alleged is that in the early hours of the morning on the 27th August, 2015, the applicant urinated on a public footpath, having parked his car and exited it in order to do so. This was witnessed by a member of An Garda Síochána. There was some discrepancy within the evidence as to where precisely in relation to the footpath and some nearby bushes the applicant did this.
The applicant applied to the High Court for leave to bring judicial review proceedings and by order dated the 1st February, 2016, leave was refused by Humphreys J.
The applicant appealed this refusal to the Court of Appeal and the matter was adjourned in order to allow for the lodging of a note authenticated by Humphreys J. The latter in fact produced a detailed written judgment dated the 12th May, 2016 in which he fully explained his reasons for having refused leave. The appeal then proceeded. By order dated the 25th October, 2016, the Court of Appeal allowed the appeal and granted leave. The Court delivered a written ex tempore judgment on the same date.
The matter came on for hearing in the High Court before me in due course and I reserved judgment.
In allowing the appeal against the refusal of Humphreys J. to grant leave in the present case, the Court of Appeal took the view that the State's prematurity argument did not sit easily with decisions such as Curtis v. Ireland [1985] IR 458, Osmanovic v. DPP [2006] 3 IR 504, and S.M. v. Ireland [2007] 4 IR 369. These authorities were cases in which the High Court entertained constitutional challenges to offences at a stage when the applicant in the judicial review proceedings stood charged with criminal offences but had not yet come to trial. The Court went on to say that its decision to grant leave did not preclude the respondent from arguing at the substantive judicial review hearing that the relief had been sought at an inappropriate stage. It also commented that 'phrases such as a "sledgehammer to crack a nut" come to mind' with regard to bringing judicial review proceedings in the circumstances.
The applicants contended that they did have locus standi by reason of the above-cited and certain other authorities. The respondent relied on the usual authorities concerning locus standi but in particular on those in which an applicant unsuccessfully sought to rely upon hypothetical factual scenarios which were not relevant to his own factual circumstances, including A v. Governor of Arbour Hill Prison [2006] 4 IR 88 (Hardiman J. at pp 164-5) and Maloney v. Ireland [2009] IEHC 291. They further sought to distinguish cases such as Douglas and McInerney on the basis that the locus standi issue was intimately connected with the very vagueness that was found to exist within the impugned offences, and which, it was argued, did not exist with regard to the offence in issue in the present proceedings.
In my view, the applicant has locus standi to bring these proceedings. He has been charged with the offence and says, on the basis of the facts (urination on a public footpath, whatever the precise location), that the offence was so vague that he could not have known in advance that what he did fell within this offence. While part of the argument and submission involved hypothetical scenarios (such as an argument advanced on the basis of freedom of expression, such as where urination might constitute part of some artistic expression of nudity), the core of his submission, as I understand it, was based on his own factual circumstances.
However, I agree with the views of both the Court of Appeal and Humphreys J. as to the disproportionality between the use of judicial review proceedings to achieve a result which might, through a potential acquittal, be achieved much more speedily and at much less expense, in the District Court.
The issue of whether a criminal offence is "void for vagueness" has arisen in a number of Irish authorities. Of these, undoubtedly the most celebrated is King v. AG [1981] IR 233 which concerned the 'loitering' offence under the Vagrancy Act, 1824 and clearly established the principle that the trial in respect of an offence of which the ingredients are vague and uncertain is not a trial in accordance with Article 38.1 of the Constitution. More recently, in Dokie v. DPP [2011] 1 IR 805, Kearns P. held inconsistent with the Constitution the offence contrary to s.12 of the Immigration Act 2004 by reason of its lack of clarity and precision. Additional constitutional reasons for holding invalid offences which are too vague, including the "principles and policies" doctrine set out in City View Press Ltd. V. AnCO [1980] IR 381, were identified by Hogan J. in Douglas v. DPP [2014] 1 IR 510 at paragraphs 27-33.
In recent years, there has been a flurry of challenges to both common law and statutory offences in the area of what might loosely be described as offences of 'indecency'. Two of these challenges were successful on the ground of vagueness, while certain others were not. In Douglas [2014] 1 IR 510, the High Court (Hogan J.) held inconsistent with the Constitution a portion of the statutory offence contained in s.18 of the Criminal Law Amendment Act 1935, namely the offence of committing in public an act in such a way as to 'cause scandal or injure the morals of the community'. In Curtis and McInerney v DPP [2014] 1 IR 536, the High Court (Hogan J.) also held inconsistent with the Constitution the remaining portion of the same statutory provision (s.18), namely committing an act in public in such a way 'as to offend modesty'.
The remaining challenges to a variety of offences in what might be described as this general area have been unsuccessful. In Cox v. DPP [2015] IEHC 642, the High Court rejected a challenge to the offence of 'wilfully, openly and lewdly' exposing one's 'person' in a public place with intent to insult a female, provided for by s.4 of the Vagrancy Act 1824 as applied and amended by subsequent legislation. McDermott J. was satisfied that the provisions created an offence which had a definite and precise meaning, namely that a male should not wilfully and open expose his penis in a public place with intent to insult a female. In P.P. v. Judges of the Circuit Court, the High Court (Moriarty J.) unreported October 2015, and subsequently the Court of Appeal [2017] IECA 82, rejected a constitutional challenge to the offence of gross indecency contrary to common law and as provided for by s.11 of the Criminal Law Amendment Act 1885. In Douglas (No.2) [2017] IEHC 248, the High Court (McDermott J.) rejected a challenge to the common law offence of 'outraging public decency' on the basis that the offence as it continues to exist in this jurisdiction was in reality one of 'committing an act of public indecency' and that this was not excessively vague.
Essentially, having regard to the above authorities, the applicant in the present case seeks to persuade the Court that the offence in issue in the present proceedings is more akin to the Douglas-McInerney type of case than to the other cases and therefore falls on the wrong side of the line separating overly vague offences from offences expressed in language of sufficient particularity.
It is clear from the authorities in the area, many of which were cited to me and which include the above, and indeed certain American and European Court of Human Rights authorities which have sometimes featured in the Irish judgments referred to, that there is a distinction between (1) an offence the ingredients of which are expressed in excessively...
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Bita v DPP
...of the said s. 5 of the 1871 Act. The High Court (Ní Raifeartaigh J.) refused all relief sought in a judgment reported at Bita v. DPP [2018] IEHC 385. 2 At the Old Nangor Road, Dublin at approximately 3:45am on the 27th August, 2015 the appellant exited his vehicle and urinated. After an e......