Douglas v DPP

JurisdictionIreland
JudgeMr. Justice McDermott
Judgment Date07 April 2017
Neutral Citation[2017] IEHC 248
CourtHigh Court
Docket Number[2014 No. 248 JR.]
Date07 April 2017
BETWEEN
DAVID DOUGLAS
APPLICANT
AND
DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND, THE ATTORNEY GENERAL

AND

JUDGE JAMES FAUGHAN
RESPONDENTS

[2017] IEHC 248

McDermott J.

[2014 No. 248 JR.]

THE HIGH COURT

JUDICIAL REVIEW

Constitution – Crime & Sentencing – S.6 of the Criminal Justice (Public Order) Act, 1994 – Outraging public decency contrary to common law – S. 18 of the Criminal Law Amendment Act, 1935 as amended by s. 18 of Criminal Law (Rape) (Amendment) Act 1990 – Autrefois acquit or autrefois convict – European Convention on Human Rights

Facts: The applicant sought an order of certiorari for quashing the order of the fourth respondent who refused to strike out the specific charge sheet. The applicant also sought an order of prohibition for preventing his further prosecution in relation to that charge sheet. The applicant argued that the offence of "outraging public decency contrary to common law" with which he was charged was inconsistent with art. 15, art. 40.1 and art. 40.4.1 of the Constitution. The applicant contended that since he had already been charged in relation to the said offence and the previous charge sheet was quashed by the order of the High Court, his prosecution on the basis of the same incident would be contrary to the rule of autrefois acquit or autrefois convict.

Mr. Justice McDermott granted an order of prohibition for restraining further prosecution of the applicant in relation to the offence of "outraging public decency contrary to common law." The Court held that the said offence did not exist in Ireland. The Court found that the offence with which the applicant could have been charged was the "committal of an indecent act in public," which was consistent with the Constitution of Ireland. The Court found that in order to indict the applicant under the offence of "committing an indecent act in public," the prosecution must establish that the applicant committed a shocking act intentionally in the presence of the members of the public. The Court held that it was the discretion of the Prosecution to charge the applicant for the offence of committing an indecent act in public. The Court directed that the future behaviour of the applicant was subject to prosecution under s. 5 and s. 45 of the Criminal Law (Sexual Offences) Act, 2017. The Court held that the rule of autrefois acquit or autrefois convict had no application in the present case as there was no trial of the applicant in relation to the first charge sheet though it pertained to the same incident. The Court held that the Prosecution was vested with the discretion to charge the applicant with a different offence even if it arose out of the same set of circumstances subject to the condition that it was the lawful charge. The Court observed that the offence of "committing an indecent act in public" under the Irish law met the legal certainty test laid down under arts. 5 and 7 of the European Convention of Human Rights. The Court noted that the offence of "outraging public decency contrary to common law" was an offence under the English common law. The Court held that it was difficult to precisely define the constituent elements of "outraging public decency," which led to the introduction of uncertainty and subjectivity in its application, and thus, it was in violation of the Constitution of Ireland.

JUDGMENT of Mr. Justice McDermott delivered on the 7th day of April, 2017
1

The applicant was granted leave to apply for judicial review on 21st July 2014 (Hedigan J.) and seeks an order of certiorari quashing an order made by the fourth named respondent on the 17th June 2013 refusing to strike out charge sheet number 14852617 and remanding the applicant on bail, and quashing the same charge sheet. In the alternative, the applicant seeks an order of prohibition preventing the further prosecution of the applicant in respect of the same charge sheet. The applicant also seeks orders of certiorari quashing the recognisance set in respect of the charge sheet and quashing the decision of the Director of Public Prosecution to charge the applicant with the indictable offence of outraging public decency. The applicant also seeks a declaration that the offence of outraging public decency is inconsistent with the provisions of Bunreacht na hÉireann and did not survive its enactment by reason of its inconsistency with Articles 15.2.1, 15.5.1, 38.1, 40.1, and 40.4.1 thereof.

Background
2

The incident, the subject matter of the charge challenged in these proceedings, is alleged to have occurred on 3rd January 2013.

3

The factual circumstances in which the charge was brought are set out in the statement of proposed evidence of Garda Alan Murphy made on 28th August 2013. He states that on the 3rd January 2013 he had reason to follow Mr. Douglas because of suspicious activity which he observed in Dublin city centre. In Fleet Street Mr. Douglas allegedly stopped outside the Hard Rock Café. Garda Murphy alleges that Mr. Douglas was watching a family which included a man and a woman and two children, a boy and a girl all of whom were seated inside the café at a window. It is alleged that Mr. Douglas then sat down outside the café in front of the window and positioned himself so that he was facing the young girl who was aged approximately nine years. It is then alleged that he placed his right hand into his pocket and was masturbating his penis under his trousers. The garda states that he observed this activity from a position some five feet away from Mr. Douglas. He alleged that Mr. Douglas was looking directly at the young girl and that after about ten minutes he stood and walked through Temple Bar to the Oliver St. John Gogarty public house on the corner of Fleet Street and Anglesea Street. Garda Murphy followed Mr. Douglas and having identified himself as a garda arrested him for an offence contrary to s. 6 of the Criminal Justice (Public Order) Act, 1994. Garda Murphy conveyed Mr. Douglas to Store Street Garda Station where he was informed that he would be charged with 'indecency' and that he would be bailed to appear in court at a future date. Mr. Douglas was asked whether he understood this and was reminded that he was under caution. Mr. Douglas stated:

'I was sitting outside the Hard Rock Café and I observed a family sitting inside. Three or four people were sitting. I had consumed a lot of alcohol, I had wine in my bottle and I observed a family, bad thoughts were coming into my mind, I had my hand in my pocket. I was thinking about masturbating but it didn't happen to the point of ejaculation.'

This response was noted by Garda Murphy in his notebook, read over to Mr. Douglas and signed by him. He was then charged on charge sheet number 13417459 and released on his own bail to appear at Court 3 in the Criminal Courts of Justice (CCJ) on the 23rd of January 2013.

The Immodesty Charge
4

Charge sheet number 13417459 set out a charge that on the 3rd January 2013 at the Hard Rock Café, Fleet Street, Dublin 2 at or near and in sight of a place along which the public habitually pass as of right or by permission, Mr. Douglas committed an act to wit 'masturbated in such a way as to offend modesty' contrary to s. 18 of the Criminal Law Amendment Act, 1935 as amended by s. 18 Criminal Law (Rape) (Amendment) Act 1990 which provided that:

'Every person who shall commit, at or near and in sight of any place along which the public habitually pass as of right or by permission, any act in such a way as to offend modesty or cause scandal or injure the morals of the community shall be guilty of an offence under this section and shall on summary conviction thereof be liable to a fine not exceeding [IR £500] or, at the discretion of the court, to imprisonment for any term not exceeding [six months].'

Section 18 provides for the summary disposal of the offence and there is no entitlement to jury trial.

5

This applicant had previously been charged with two offences based on similar facts under s. 18 in 2009 in relation to actions said to have caused scandal and injured the morals of the community. He challenged the constitutional validity of the provisions of section 18. In Douglas v. The Director of Public Prosecutions and Ireland [2013] IEHC 343 Hogan J. held that the offences of 'causing scandal' and 'injuring the morals of the community' were inconsistent with the Constitution as they were 'hopelessly vague and subjective in character and they intrinsically lend themselves to arbitrary and inconsistent application'. The learned judge held that the plaintiff in that case had no standing to challenge the offence of offending modesty under s. 18 since that offence is capable of having a distinct and independent existence from the two offences with which he had been charged. Hogan J. was satisfied that the offending words could be severed from s. 18 of the 1935 Act.

6

The applicant was granted bail in respect of charge sheet 13417459 on 3rd January on condition that he should give 48 hours notice if he intended to travel to the State as he had been residing in Northern Ireland. Due to a breach of this bail condition the applicant's bail was revoked on 25th July 2013.

7

The applicant was readmitted to bail on 26th July 2013 and remanded to appear on 10th September. In the meantime, he was taken into custody on 14th August 2013 in Northern Ireland in respect of unrelated matters. Subsequently, the applicant was further remanded in his absence to 17th December 2013. He was during this period detained in a Northern Ireland prison.

8

The applicant sought and was granted leave to apply for judicial review on 3rd February 2014 seeking an order of certiorari quashing charge sheet number 13417459 on the grounds that the offence of offending modesty contrary to s. 18 of the Criminal Law Amendment Act, 1935 as amended was inconsistent with the provisions of the Constitution. He...

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    ...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......
  • Bita v DPP
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    ...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 ......
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