The High Court has restrained the prosecution of David Douglas on a charge of outraging public decency, ruling that the offence as framed under English common law was not an offence known to Irish common law.
Mr Justice Michael McDermott found that Irish common law does recognise an indictable offence of committing an indecent act in public. He said a prosecution for that offence must establish that the act was indecent and committed intentionally or recklessly, and that it took place in public in circumstances where two or more people could have seen it. The accused must also have intended the act to occur in public or been reckless as to that.
The case arose from an alleged incident on 3 January 2013 outside the Hard Rock Café on Fleet Street in Dublin. Garda evidence set out in the judgment alleged that Mr Douglas sat outside the café, facing a young girl inside with her family, and masturbated under his trousers. The judgment records that Mr Douglas told gardaí he had consumed alcohol, had his hand in his pocket and had been thinking about masturbating, but said it had not reached ejaculation. These were allegations and recorded statements, not findings made after a trial.
Mr Douglas was first charged under section 18 of the Criminal Law Amendment Act 1935 with an offence of offending modesty. That charge was later quashed after earlier High Court rulings found the section unconstitutional. He was subsequently charged with outraging public decency at common law, based on the same alleged incident, and challenged that prosecution by judicial review.
The court rejected his argument that the second prosecution breached a stay imposed in the earlier proceedings or exposed him to double jeopardy. The stay applied only to the earlier charge sheet, and Mr Douglas had not been tried and acquitted or convicted of the new charge.
However, the judge concluded that the charge against Mr Douglas used the broader English formulation of outraging public decency, which he said was not part of Irish common law. He distinguished it from the narrower Irish offence of committing an indecent act in public, which he held was consistent with the Constitution. The court did not determine whether the alleged conduct occurred or whether it met the elements of that Irish offence.
The judgment restrained further prosecution on the charge as laid. It left the Director of Public Prosecutions to consider whether a prosecution for the Irish offence could proceed and what steps might be appropriate. The judge did not decide other issues raised about bail or extradition.