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High Court, by way of judicial review, grants an order of prohibition for restraining further prosecution of the applicant in relation to the offence of “outraging public decency contrary to common law”, after it was alleged that the applicant sat down outside a café in front of a window and masturbated as he was facing a young girl who was aged approximately nine years, on the grounds that: 1) the offence did not exist in Ireland, though it was an offence under the English common law; 2) 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; and 3) 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.
Criminal law – judicial review – application to quash District Court order refusing to strike out criminal proceedings – declaration that the offence of outraging public decency is inconsistent with the provisions of Bunreacht na hÉireann – alleged that Mr. Douglas sat down outside a café in front of a window and masturbated as he was facing a young girl who was aged approximately nine years – offence contrary to s. 6 of the Criminal Justice (Public Order) Act, 1994 – the immodesty charge – s. 18 of the Criminal Law Amendment Act, 1935 as amended by s. 18 Criminal Law (Rape) (Amendment) Act 1990 – offences of “causing scandal” and “injuring the morals of the community” were previously held to be inconsistent with the Constitution – charge of Outraging Public Decency – abuse of process – no stay or prohibition placed on the Director of Public Prosecutions in relation to the further charging of the applicant with a separate offence of outraging public decency based on the same facts alleged to have occurred – locus standi – whether the offence charged exists at common law – does the offence exist in Ireland – Gabbett’s “Treatise on Criminal Law” – O’Connor’s Irish Justices of the Peace (Vol. 2, 2nd Ed.(1915) – Russell “A Treatise on Crimes and Misdemeanours” (1909) Vol. 1 – Archbold Criminal Pleading Evidence Practice for 1910 (24th Ed.) – Criminal Law of Ireland (outlined) (3rd Ed.,(1940)) – Law Reform Commission in its “Report on Vagrancy and Related Offences (LRC 11-1985) (1985) – Law Reform Commission consultation paper Inchoate Offences (LRC CP 48-2008) – Criminal Law (Charleton, McDermott, Bolger, Butterworths, 1999) – O’Malley “Sexual Offences” (2nd Ed.) 2013 – mens rea – actus reus – criminalised acts considered to be offensive to public decency or morality – and certainty required in the framing of the offence is provided by the case-law – European Convention on Human Rights – further prosecution of the offence of “outraging public decency” restrained.
Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.
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