Douglas v DPP and Others

JurisdictionIreland
JudgeMr. Justice Hogan
Judgment Date26 July 2013
Neutral Citation[2013] IEHC 343
CourtHigh Court
Docket Number[2010 No. 4603 P]
Date26 July 2013
Douglas v DPP & Ors

BETWEEN

DAVID DOUGLAS
PLAINTIFF

AND

DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND AND THE ATTORNEY GENERAL
DEFENDANTS

[2013] IEHC 343

[No. 4603 P/2010]

THE HIGH COURT

CONSTITUTIONAL LAW

Legislation

Challenge to constitutionality of Criminal Law (Amendment) Act 1935, s 18 - Whether offence sufficiently precise and certain as to meet test for legal certainty in criminal matters - Charge of causing scandal and injuring morals of community - Clothed genital massage in public area - Provision of pre-Constitution statute amended by post-Constitution statute - Whether provision enjoyed presumption of constitutionality - Whether amendment of pre-Constitution provision by post-Constitution statute confers presumption of validity on pre-Constitution provision - Whether provision inconsistent with Constitution and not carried over by Article 50.1 of Constitution - Locus standi - Entitlement of plaintiff to know nature of offence charged - Exclusive legislative powers of Oireachtas - Duty of Oireachtas to articulate principles and policies defining contours of offence - Prohibition of retrospective creation of criminal offence - Prohibition of retrospective imposition of criminal liability - Distinction between summary and indictable offences where community standards to be measured - Existence of objective and ascertainable standard indicated where jury arbiter of violation of community standards - Whether offences under provision so vague as to lead to inconsistent and arbitrary application - Whether principles and policies enumerated to define scope - Whether possible to sever impugned offences from remainder of provision - Gormley v Electricity Supply Board [1985] IR 129 and King v Attorney General [1981] IR 23 applied - R v Rimmington [2005] UKHL 63, [2006] 1 AC 459 and Dokie v DPP [2011] IEHC 110, [2011] 1 IR 805 followed - S(Z) v DPP [2011] IESC 49, (Unrep, SC, 21/12/2011); C(C) v Ireland [2005] IESC 48, [2006] 4 IR 1; Osmanovic v DPP [2006] IESC 50, [2006] 3 IR 504; Cahill v Sutton [1980] IR 269; Maloney v Ireland [2009] IEHC 291, (Unrep, Laffoy J, 25/6/2009); Salaja v Minister for Justice [2011] IEHC 51, (Unrep, Hogan J, 10/2/2011); People (DPP) v Cagney [2007] IESC 46, [2008] 2 IR 111; Kokkinakis v Greece (1993) 17 EHRR 397; W(S) v United Kingdom (1995) 21 EHRR 363; Sunday Times v United Kingdom (1979) 2 EHRR 245; G v Federal Republic of Germany (1989) 60 DR 256; X v United Kingdom (1982) 28 DR 77; City View Press Ltd v AnCO [1980] IR 381; McGowan v Labour Court [2013] IESC 21, (Unrep, SC, 9/5/2013); Grayned v City of Rockford 408 US 104; Evans v Ewals [1972] 2 All ER 22; Doolan v DPP [1993] ILRM 387; R v Rolfe (1952) 36 Crim App Rep 4; Chorherr v Austria (App 13308/87) (Unrep, ECtHR, 25/8/1993); Hashman v United Kingdom [1999] ECHR 133; Percy v DPP [1995] 1 WLR 1382; Steel v United Kingdom (App 24838/94) (Unrep, ECtHR, 23/9/1998); Kershaw v Ireland [2009] IEHC 166, (Unrep, O Néill J, 27/3/2009); R v Lunderbech [1991] Crim LR 784; Attorney General (SPUC) v Open Door Counselling Ltd [1986] IR 593 and Maher v Attorney General [1973] IR 140 considered - Criminal Law Amendment Act 1935 (No 6), s 18 - Criminal Law (Rape)(Amendment) Act 1990 (No 32), s 18 - Constitution of Ireland 1937, Arts 5, 15.2.1 , 15.5.1 , 38.1, 40.1, 40.4.1 and 50.1 - Declaration of inconsistency with Constitution granted (2010/4603P - Hogan J - 26/7/2013) [2013] IEHC 343

Douglas v DPP

Facts: The plaintiff had been charged with offences pursuant to s. 18 Criminal Law (Amendment) Act 1935, as amended for the offence of causing scandal and injuring the morals of the community. He had been observed performing specific acts in a public place to warrant the charge. He challenged the constitutionality of the section on the basis of equality and due process before the law. The Court considered whether the presumption of constitutionality attached to the section, whether he had standing to challenge it and its severability.

Held by Hogan J. the offence offended the guarantee of trial in due course of law, equality before the law and personal liberty. The section did not enjoy any formal presumption. The Court was of the opinion that the section could be severed. The plaintiff did not have standing to challenge the constitutionality of the offence of offending modesty. The Court would declare the offences in s. 18 unconstitutional and inconsistent with Article 50.1 of the Constitution.

KING v AG & DPP 1981 IR 233

CRIMINAL LAW (AMDT) ACT 1935 S18

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S18

S (Z) v DPP UNREP SUPREME 21.12.2011 2011 IESC 49

GORMLEY v ESB 1985 IR 129 1985 ILRM 494

CRIMINAL LAW (AMDT) ACT 1935 S2

CRIMINAL LAW ACT 1997 S13

C (C) v IRELAND (NO 1) 2006 4 IR 1 2006 2 ILRM 161 2006/9/1721 2006 IESC 33

CRIMINAL LAW ACT 1997 S1

CRIMINAL LAW (AMDT) ACT 1935 S2(1)

CONSTITUTION ART 50.1

CRIMINAL LAW (AMDT) ACT 1935 S1

CONSTITUTION ART 15.4

CONSTITUTION ART 34.3.2

OSMANOVIC v DPP & ORS 2006 3 IR 504 2006/47/10113 2006 IESC 50

CAHILL v SUTTON 1980 IR 269

MALONEY v IRELAND & ORS UNREP LAFFOY 25.6.2009 2009/38/9356 2009 IEHC 291

OFFENCES AGAINST THE STATE ACT 1939 S30(1)

SALAJA v MIN FOR JUSTICE & ORS UNREP HOGAN 10.2.2011 2011/45/12823 2011 IEHC 51

CONSTITUTION ART 38.1

DPP v CAGNEY 2008 2 IR 111 2007/8/1544 2007 IESC 46

R v RIMMINGTON 2006 2 AER 257 2006 1 AC 459 2005 UKHL 63

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 7

CONSTITUTION ART 15.5.1

CONSTITUTION ART 40.4.1

CONSTITUTION ART 15.2.1

CITYVIEW PRESS LTD & FOGARTY v CHOMHAIRLE OILIUNA & ORS 1980 IR 381

MCGOWAN v LABOUR COURT UNREP SUPREME 9.5.2013 2013 IESC 21

GRAYNED v CITY OF ROCKFORD 1972 408 US 104

CONSTITUTION ART 40.1

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1861 S13 (UK)

DOKIE v DPP 2011 1 IR 805 2011/14/3372 2011 IEHC 110

CONSTITUTION ART 40.3.1

IMMIGRATION ACT 2004 S12

O'MALLEY SEXUAL OFFENCES LAW POLICY & PRACTICE 1996 164-166

1936 70 IRISH LAW TIMES & SOLICITORS JOURNAL 70

1937 71 IRISH LAW TIMES & SOLICITORS JOURNAL 298-299

VAGRANCY ACT 1824 S4 (UK)

EVANS v EWALS 1972 2 AER 22 1972 1 WLR 671

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S2(1)

DOOLAN v DPP 1992 2 IR 399 1993 ILRM 387 1992/11/3455

R v ROLFE 1952 36 CR APP R 4

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S5(1)

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S5(3)

HASHMAN & HARRUP v UK 1999 30 EHRR 241

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 10(2)

KERSHAW v IRELAND UNREP O'NEILL 27.3.2009 2009/31/7688 2009 IEHC 166

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S6

O'MALLEY SEXUAL OFFENCES LAW POLICY & PRACTICE 1996 159

R v LUNDERBECH 1991 CRIM LR 784

AG (SPUC) v OPEN DOOR COUNSELLING LTD 1988 IR 593 1989 ILRM 19

MAHER v AG 1973 IR 140

1

1. Is a statutory offence of causing scandal or injuring the morals of the community sufficiently precise and certain as to meet the test for legal certainty in criminal matters articulated by the Supreme Court in King v. Attorney General [1981] I.R. 233? This, is essence, is the issue which is raised in these proceedings in which the plaintiff challenges the constitutionality of s. 18 of the Criminal Law (Amendment) Act 1935 ("the 1935 Act"), as amended by s. 18 of the Criminal Law (Rape)(Amendment) Act 1990 ("the 1990 Act"). Section 18 of the 1935 Act provides:-

"Every person who shall commit, at or near and inside 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]."

There words in square brackets were inserted by s. 18 of the 1990 Act. It is also important to note at the outset that s. 18 provides for summary disposal only and that there is no entitlement at all to jury trial.

2

2. The plaintiff has been charged with the latter two offences created by s. 18 of the 1935 Act, i.e., causing scandal and injuring the morals of the community. The case against him is that on two separate days in January 2009 he was observed by security staff stroking and massaging his penis through his clothes in a café attached to a shopping centre in Dublin city centre. It is important to stress that it has never been alleged that the plaintiff had ever exposed his penis. The prosecution contend, however, that the conduct was done in a public place and that on both occasions he was seated just a few metres from adult females and teenage girls, although there is no suggestion that they witnessed or were even aware of this conduct. It is also contended that the plaintiff either desisted from these activities or disguised them when others approached. Nor has it been suggested that the plaintiff massaged his penis through his clothes to the point of sexual climax.

3

3. The specific charge is that on the days and place in question:

"at or near and in sight of a place along which the public habitually pass as of right or by permission, did commit an act, to wit, massage your genital area in such a way as to cause scandal and injure the morals of the community."

4

4. There is no question but that the shopping centre café is a "place along which the public habitually pass as of right or by permission" within the meaning of the section. The only question, therefore, for the present purposes is whether the offences of causing scandal or injuring the morals of the community contain sufficiently clear criteria for the purposes of this constitutional challenge. It is also important to recall that the plaintiff has not been charged with any offence against modesty within the meaning of the section, a fact...

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    ...that the act must be “public,” this still does not cure it from being too vague. 21 The appellant relied on Douglas v. DPP [2014] 1 I.R. 510 and McInerney v. DPP [2014] 1 I.R. 536 which held the offences outlined in s.18 of the Criminal Law Amendment Act, 1935, namely an act which is “dee......
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