On July 26th, Mr. Justice Gerard Hogan ruled offences against David Douglas, charged under section 18 of the Criminal Law Act 1935 were unconstitutional due to being insufficiently precise and lacking any ‘clear principles and policies’ in relation to defining the scope of the prohibited conduct.
The case against Mr. Douglas, observed massaging his penis through his clothing in a Dublin City centre café on two consecutive days, cannot proceed after Mr. Justice Hogan ruled the offences of causing scandal and injuring the morals of the community are unconstitutional.
The charges related to separate incidents at the café in January 2009.
Mr. Justice Hogan stressed the importance that there was no allegation that Mr. Douglas had exposed himself. It was also contended Mr. Douglas either desisted or disguised his activities when other people approached.
Counsel for Mr. Douglas argued the offences breached the rights of Mr. Douglas under the constitution, including the right to equality before the law and protection of personal liberty. The Criminal Law Act 1935, section 18 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].
Mr. Justice Hogan ruled the words ‘or cause scandal or injure the morals of the community’ in section 18 of the 1935 Act were ‘hopelessly’ and ‘irremediably’ vague and lacked any real principles and policies in relation to the scope of the prohibited conduct.
However, Mr. Justice Hogan emphasised that the ruling does not prevent the Oireachtas legislating to create new offences which would address conduct of this nature, but any new laws must contain adequate principles and policies.
