The High Court refused leave for Tezaur Bita to seek an order prohibiting his trial on an indecent-exposure charge, holding that the challenge to the law should generally wait until the criminal process had concluded.
The judgment, delivered by Mr Justice Richard Humphreys on 12 May 2016, concerned an application to challenge the constitutionality of section 5 of the Summary Jurisdiction (Ireland) Amendment Act 1871. The court had refused leave ex tempore on 1 February. After the Court of Appeal adjourned Bita’s appeal to allow an authenticated note of that ruling to be provided, the High Court issued a fuller written decision.
The judgment recounts allegations that at about 3.45am on 27 August 2015, Bita parked on Old Nangor Road, Clondalkin, and urinated in bushes. A garda was said to have witnessed this and arrested him. A search in custody allegedly found a small amount of cocaine. Bita was charged with an offence under the Misuse of Drugs Act 1977 and indecent exposure. A separate Road Traffic Act charge was later withdrawn. These were allegations; the judgment did not determine the criminal charges.
For Bita, counsel argued that the 1871 offence was unconstitutionally vague and lacked principles and policies defining the prohibited conduct. The judge observed that public urination was not necessarily indecent: context and manner mattered. He said discreet urination in bushes while answering an urgent call of nature could fall outside the offence. But, based on the submissions, there was a reasonable possibility Bita would be acquitted at trial, making a constitutional challenge at that stage premature.
The judge said the criminal trial could establish the relevant facts and allow the trial court to address legal issues as needed. If Bita were convicted, he could pursue an appeal and, if necessary, later raise constitutional grounds. The judgment also relied on the principle that constitutional questions should generally be considered only when necessary, and that prohibition in criminal cases should be reserved for exceptional circumstances. The judge concluded this was not such an exceptional case.
The court cited additional grounds: the application relied on an affidavit from Bita’s solicitor rather than Bita personally, and the affidavit did not sufficiently set out his account of events. The judge said these were independent grounds for refusal, though he did not need to explore whether they could be corrected because the application was being refused on other grounds.
The order was limited to refusing leave to seek prohibition. The judgment did not decide whether Bita committed either charged offence or rule on the constitutional validity of section 5.