Bita v DPP

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 13 March 2020
• Neutral Citation: [2020] IECA 69
• Court: Court of Appeal (Ireland)
• Docket Number: Record No: 2018/325,[C.A. No. 325 of 2018]
• Date: 13 March 2020

BETWEEN/

TEZAUR BITA

APPLICANT/APPELLANT

- AND -

THE DIRECTOR OF PUBLIC PROSECUTIONS,

THE ATTORNEY GENERAL

AND

IRELAND

RESPONDENTS

[2020] IECA 69

President

McCarthy J.

Donnelly J.

Record No: 2018/325

THE COURT OF APPEAL

Prosecution – Unconstitutionality – Summary Jurisdiction (Ireland) Amendment Act 1871 s. 5 – Appellant seeking an order preventing his further prosecution and a declaration of unconstitutionality – Whether the manner in which the legislature has chosen to legislate for a particularly type of impugned immorality is too wide to permit a clear understanding by the public of what acts are in fact prohibited under s. 5 of the Summary Jurisdiction (Ireland) Amendment Act 1871

Facts: The appellant, Mr Bita, appealed to the Court of Appeal against the High Court’s refusal to grant the appellant relief arising from his prosecution under s. 5 of the Summary Jurisdiction (Ireland) Amendment Act 1871. Among the reliefs he claimed was an order preventing his further prosecution on that charge and a declaration of unconstitutionality of the said s. 5 of the 1871 Act. The core of the appellant’s submissions was that “contrary to public decency” was a term inextricably linked to the concept of immorality and that “immorality” as a concept is impermissibly vague. The appellant relied upon decisions in DPP v Douglas (No.2) [2017] IEHC 248 and DPP v McInerney [2014] 1 I.R. 536 as authorities for the proposition that legislating for immorality is “hopelessly and irredeemably vague”. The issue in the case was whether the manner in which the legislature has chosen to legislate for this particularly type of impugned immorality, i.e., criminalising acts contrary to public decency, is too wide to permit a clear understanding by the public of what acts are in fact prohibited under this section.

Held by the Court that there is not direct analogy with the offences in DPP v Douglas (No. 2) and in DPP v McInerney. The Court noted that the impugned provisions in those cases explicitly referred to the standard of immorality such as scandal and “injuring the morals of the community”. The Court found that this section, however, is not so legally uninvolved and vague; it refers to “decency”, a term the Court accepted to be interchangeable with “indecency”. The Court held that indecency is a term which is very familiar to the legal profession and indeed, a trier of fact has on many occasions to decide whether a particular act, usually indecent assault, has the element of indecency so as to categorise it into that class of offence. Further, the Court noted that the Court of Appeal in PP v Judges of the Circuit Court [2017] IECA 82, the High Court in DPP v Douglas (No. 2) and the High Court proceedings, accepted that the term of “indecency” is a concept well recognised in Irish Criminal Law. Like the trial judge, the Court saw no difference in effect with the word “decency”. The Court did not accept that the criminal law only applied the term “indecent” to an otherwise criminal offence. The Court noted that the offence of “gross indecency” is an example whereby neither of the terms, “gross” or “indecent”, are a crime in and of themselves; another example is that of the offence of sending indecent telephone communications. The Court held that the appellant’s contention that the standard of decency is that of the 1871 standard of decency is an incorrect understanding of the principle of statutory interpretation. The Court noted that s. 6 of the Interpretation Act 2005 explicitly permits the judiciary to interpret legislation in a way that is in line with contemporary standards. The Court held that a concept such as indecency may evolve to incorporate contemporary understanding; indeed, even without s. 6, judges have refined the meaning of certain words in statutes as society’s understanding of the concepts change.

The Court held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of Ms. Justice Donnelly delivered on the 13th day of March, 2020

1 This is an appeal of the High Court's refusal to grant the applicant/appellant (“the appellant”) relief arising from his prosecution under s.5 of the Summary Jurisdiction (Ireland) Amendment Act, 1871 (hereinafter, “the 1871 Act”). Among the reliefs he claimed was an order preventing his further prosecution on that charge and a declaration of unconstitutionality 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 exchange with a member of An Garda Síochána, the appellant was arrested under s.107 of the Road Traffic Act, 1961. Following a search in custody, he was found to be in possession of a small amount of cocaine.

3 The appellant was subsequently charged with an offence contrary to s. 3 of the Misuse of Drugs Act, 1977 which is not relevant to these proceedings, and an offence contrary to s.5 of the 1871 Act. The particulars of the s. 5 charge were that he “committed an act contrary to public decency to wit: urinating in public”. The appellant highlights the discrepancy between the précis of evidence compiled by a member of An Garda Síochána, in which it is stated that he began to “urinate in bushes” and that same member's affidavit in which he stated that the appellant urinated on the footpath.

4 Section 5 of the 1871 Act provides:-

“Any 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, shall be liable, on conviction before any justice or justices sitting in any court within the police district of Dublin Metropolis, a fine not exceeding five pounds, or, at the discretion of such justice or justices, to be imprisoned for any period not exceeding two calendar months.”

5 The appellant sought leave to apply for judicial review, seeking a prohibition of his trial on the grounds that s.5 of the 1871 Act was unconstitutional. Leave was refused by order dated the 1st February, 2016 by Humphreys J., primarily on locus standi grounds and prematurity.

6 The appellant appealed that refusal to the Court of Appeal. The appeal was adjourned to allow for the lodging of a note authenticated by Humphreys J. who provided a written judgment outlining his reasons for refusing leave cited as Bita v. DPP [2016] IEHC 288.

7 On the 25th October, 2016, the Court of Appeal, delivering an ex tempore judgment allowed the appeal and granted leave. The matter then came on for substantive hearing in the High Court before Ní Raifeartaigh J.

The Judgment of the High Court

8 The first issue was a procedural one as to whether the appellant had locus standi to bring the proceedings by way of judicial review. The trial judge in holding that the appellant had locus standi to bring the proceedings, stated that the appellant's case was not based on hypothetical scenarios but rather, on the basis of the facts before the court, his argument was that the offence was so vague that the appellant could not have known in advance that his actions fell within the remit of the s.5 offence. She did remark that there was a disproportionality in bringing judicial review proceedings to achieve a result which might be achieved more speedily and at much less expense in the District Court.

9 The substantive issue before the High Court was whether s.5 of the 1871 Act is inconsistent with the Constitution by reason of being excessively vague. In considering that question, the trial judge found that the core issue before her was whether there is an essential difference between the term “indecent” as it appears in indictable offences of this nature and the phrase “contrary to public decency” as it appears in the s.5 offence. The trial judge held that in effect these were the same concepts of decency or indecency in other criminal offences, the constitutionality of which, has been upheld in Douglas v. DPP (No.2) [2017] IEHC 248 and PP v. Judges of the Circuit Court [2017] IECA 82. The trial judge held that she could not see a difference of substance between “indecent” and “contrary to decency”. Moreover, the inclusion of the word “public” within the phrase “contrary to public decency” did not make any difference. The trial judge stated, that the word “indecent” in offences such as indecent assault is interpreted to mean indecent by the standards of an ordinary or reasonable member of the public. She emphasised that this is intended to import an objective standard into the offence. Accordingly, the High Court refused the reliefs sought by the appellant and held that s.5 of the 1871 Act was not repugnant to the Constitution.

Grounds of Appeal

10 The appellant lodged five grounds of appeal, however it was clear from the oral submissions, that the issue before this Court is whether “contrary to public decency” is unconstitutional by reason of being too vague and within that framework, whether decency in and of itself is merely the converse to indecency, a well-defined term within the legal field. Although the finding that the appellant had locus standi was not cross-appealed, the respondent maintained in submissions that the appellant must advance his appeal on the basis of his own factual circumstances and may not seek to impugn the provision by reference to the alleged effect on other third parties. The respondent submitted that by virtue of the jus tertii rule, a plaintiff cannot seek a general review of the legislation under attack but may only rely upon such arguments as bear on his own personal circumstances.

The Appeal

11 In putting forward the argument that s.5 of the 1871 Act is unconstitutional for being too vague, the appellant referred to general principles...