The Court of Appeal has dismissed Tezaur Bita’s appeal against the refusal to strike down a Dublin public-decency offence as unconstitutionally vague. The court held that the offence’s reference to an act “contrary to public decency” could be understood by reference to the established legal concept of indecency.
Bita was charged under section 5 of the Summary Jurisdiction (Ireland) Amendment Act 1871 after an incident on Old Nangor Road, Dublin, at about 3.45am on 27 August 2015. The charge alleged that he committed an act contrary to public decency by urinating in public. He also faced a separate drugs charge, which was not relevant to this constitutional challenge.
The High Court had refused his request for relief, including a declaration that section 5 was unconstitutional. On appeal, Bita argued that “public decency” could capture a broad range of conduct based on subjective judgments about morality and was too uncertain to support criminal liability. The Director of Public Prosecutions argued that the provision could be read as covering acts of public indecency, assessed by an objective standard.
Justice Donnelly said the appeal had to be considered in light of Bita’s own circumstances. Following the Supreme Court’s decision in another case, his standing did not allow him to challenge the law by relying on how it might affect other people or hypothetical conduct such as breastfeeding in public or spitting. The court also rejected his argument that the section gave gardaí an arbitrary power of arrest: Bita had been arrested under road traffic legislation, and the court said section 5 did not confer a power of arrest.
The judgment said the prosecution was not based on public urination alone. It contended that the circumstances made the alleged conduct objectively indecent by the standard of an ordinary or reasonable member of the public. The judgment said public urination was not inherently indecent and that whether the alleged circumstances met that standard was a matter for the trial.
There was a discrepancy in the Garda account: a précis of evidence said Bita began to urinate in bushes, while an affidavit said he urinated on the footpath. The Court of Appeal said that discrepancy had to be resolved at trial; it did not determine the underlying facts or guilt.
The court concluded that “decency” in section 5 could be interpreted consistently with the legal concept of “indecency”, which it considered sufficiently familiar to provide an adequate standard. It dismissed the appeal, leaving the prosecution to proceed.