Kevin Mcinerney v DPP and Others

JurisdictionIreland
JudgeMr. Justice Hogan
Judgment Date09 April 2014
Neutral Citation[2014] IEHC 181
CourtHigh Court
Docket Number[2013 Nos. 1741 & 627 JR]
Date09 April 2014
McInerney v DPP & Ors

BETWEEN

KEVIN McINERNEY
APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS, DISTRICT JUDGE COUGHLAN, IRELAND, ATTORNEY GENERAL AND JUDGE RAYMOND GROARKE
RESPONDENTS
BRENDAN CURTIS

AND

DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND, ATTORNEY GENERAL AND DISTRICT JUDGE VICTOR BLAKE
RESPONDENTS

[2014] IEHC 181

[No. 1741JR/2013]
[No. 627JR/2013]

THE HIGH COURT

Constitutional Law – Judicial Review – Criminal Law – Offending Modesty – Subjectivity – Vagueness – Locus Standi – Criminal Law (Amendment) Act 1935 s. 18 – Constitution of Ireland 1937

Facts: Section 18 Criminal Law (Amendment) Act 1935 initially made it an offence to offend modesty, cause scandal or injure the morals of the community. However, after a previous judgment given by Hogan J, the offences of causing scandal and injuring the morals of the community were severed for being unconstitutional so that the only offence remaining under that section was offending modesty. Both applicants who had been charged with offences under s. 18 brought applications for judicial review in order to have the section declared unconstitutional.

Held by Hogan J, after finding that both applicants had locus standi and s. 18 of the Criminal Law (Amendment) Act 1935 did not enjoy a presumption of constitutionality, that this section was inconsistent with the Constitution. This was on the basis that the offence of "offending modesty" was extremely vague and as a result could lead to arbitrary and subjective interpretations by judges especially as the offence was not triable on indictment. In addition this vagueness was inconsistent with the duty of the Oireachtas to ensure that legislation and policies are clear and precise.

Given that Hogan J had already ordered the severance of the other two component offences under this section in a previous decision, it remained only to declare the whole section unconstitutional.

CRIMINAL LAW AMDT ACT 1935 S18

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S18

DOUGLAS v DPP & ORS 2013 2 ILRM 324 2013 IEHC 343

KING v AG & DPP 1981 IR 233

CONSTITUTION ART 15.2.1

CONSTITUTION ART 15.5.1

CONSTITUTION ART 38.1

CONSTITUTION ART 40.1

CONSTITUTION ART 40.4.1

ELECTRICITY SUPPLY BOARD v GORMLEY 1985 IR 129

DPP v CAGNEY & MCGRATH 2008 2 IR 111 2008 2 ILRM 293 2007/8/1515 2007 IESC 46

CONSTITUTION ART 5

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

MCGOWAN & ORS v LABOUR COURT & ORS 2013 2 ILRM 276 2013 24 ELR 293 2013 IESC 21

COLLINS v MIN FOR FINANCE & ORS UNREP HIGH 26.11.2013 2013 IEHC 530

GRAYNED v CITY OF ROCKFORD 1972 408 US 104

ROAD TRAFFIC ACT 1961 S53(1)

CONSTITUTION ART 40.6.1

CONSTITUTION ART 40.6.1.i

CORWAY v INDEPENDENT NEWSPAPERS (IRL) LTD & ORS 1999 4 IR 484

VAGRANCY ACT 1824 S4 (UK)

EVANS v EWELS 1972 1 WLR 671 1972 2 AER 22 1972 56 CR APP R 377

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)

CHORHERR v AUSTRIA 1994 17 EHRR 358 1993 ECHR 36

HASHMAN & HARRUP v UNITED KINGDOM 2000 30 EHRR 241 8 BHRC 104 1999 ECHR 133

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

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

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S6

DOUGLAS?ÇëV DPP & THE CONSTITUTIONAL REQUIREMENT FOR CERTAINTY IN CRIMINAL LAW 2013 49(2) IJNS 235

DOKIE v DPP (GARDA MORLEY) 2011 1 IR 805 2011/14/3372 2011 IEHC 110

CONSTITUTION ART 50.1

1

1. In these two judicial review applications the applicants seek a declaration that the remaining portion 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") is unconstitutional and did not survive the enactment of the Constitution. As originally enacted, s. 18 of the 1935 Act created three separate, if overlapping, offences, namely, offending modesty, causing scandal or injuring the morals of the community.

2

2. In a judgment delivered by me on 26 th July 2013, Douglas v. Director of Public Prosecutions [2013] IEHC 343, [2013] 2 I.L.R.M. 324, I held that the other component offences of that section as enacted {"cause scandal or injure the morals of the community") were hopelessly and irremediably vague and did not meet the test for legal certainty in criminal matters articulated by the Supreme Court in King v. Attorney General [1981] I.R. 233. It was in those circumstances that I concluded those particular provisions of s.18 of the 1935 Act were manifestly unconstitutional and were inconsistent with Article 15.2.1, Article 15.5.1, Article 38.1, Article 40.1 and Article 40.4.1 of the Constitution.

3

3. I also held that these two offences could be severed from the other offence, namely, that of offending modesty. There was no appeal against this decision. In these proceedings, therefore, the applicants challenge the constitutionality of the only offence created by s. 18 remaining after the decision in Douglas, namely, that of offending modesty.

4

4. As the law stood immediately prior to the decision in Douglas, s. 18 of the 1935 Act (as amended) had provided:-

"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." (emphasis supplied)

5

5. The italicised words were held by me to be unconstitutional in Douglas, In the wake of that decision s. 18 of the 1935 Act then read:

"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 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]."

6

6. The words in square brackets had been previously 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.

7

7. It is against this general background that the facts of the present applications can be considered. In essence, however, these applications can be regarded really as the merely the sequels to my earlier decision in Douglas and this present judgment should accordingly be read in conjunction with that earlier decision.

The case against the applicants
8

8. In considering the background facts to this application, I will take the cases in reverse order. The second applicant, Mr. Curtis, is charged with the offence of offending modesty under s. 18(1) of the 1935 Act. The case against him is that on 26 th May 2013 at Camden Place in Dublin city centre he removed his penis from his trousers as groups of females walked past him. The charge against him under s. 18(1) was adjourned by District Judge Blake pending the outcome of the present proceedings.

9

9. The first applicant, Mr. McInerney, was originally charged with all three offences under s. 18, i.e., offending modesty, causing scandal and injuring the morals of the community. The case against him is that on 3 rd September 2011 while sitting in his car at Rathfarnham Shopping Centre in Dublin he was observed masturbating while members of the public passed by. The specific charge against him is that:

"on 3 rd September 2011 at Rathfarnham Shopping Centre. Butterfield. Dublin 14....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, masturbate in such a way as to offend modesty/cause scandal/injure the morals of the community."

10

10. The first applicant was convicted of this offence by the District Court in February 2013 and he received a sentence of three months" imprisonment. The Circuit Court heard an appeal from this decision on 8 th October 2013, i.e., a few months after the decision in Douglas had been delivered. On that day, the President of the Circuit Court, Mr. Justice Groarke, permitted the prosecution to amend the summons by deleting the words "cause scandal" and "injure public morals", so that the remaining particulars of the charge was that the accused had "offended modesty." On the suggestion of the prosecution (or so I have been informed), it was agreed that the appeal would stand adjourned pending the outcome of the present challenge to the constitutionality of the remaining part of s. 18( 1) of the 1935 Act.

11

11. There is no question but that the shopping centre cark park 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 offence of offending modesty contains sufficiently clear criteria for the purposes of this constitutional challenge.

12

12. Before considering the possible merits of any challenge to the constitutionality of s. 18 of the 1935 Act, it is necessary first to address the questions of locus standi and the presumption of constitutionality.

Whether the applicants have the requisite locus standi to challenge the constitutionality of s. 18 of the 1935 Act in the light of Douglas?
13

13. In Douglas, I held that the plaintiff had the requisite standing to challenge the constitutionality of the relevant offences because he had actually been charged with...

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