The High Court has declared unconstitutional two offences under the Criminal Law (Amendment) Act 1935, finding that prohibitions on causing scandal and injuring the morals of the community were too vague to provide clear standards of criminal conduct.
In a judgment delivered on 26 July 2013, Mr Justice Hogan ruled that the words creating those offences did not survive the Constitution’s enactment. He ordered that they be severed from the section. The decision did not address the constitutionality of the section’s separate offence of offending modesty, which the plaintiff had not been charged with and had no standing to challenge.
The case arose after David Douglas was charged over two incidents in January 2009 at a café attached to a shopping centre in Dublin city centre. The prosecution alleged that security staff saw him stroking and massaging his penis through his clothes. The judgment stressed that he was not alleged to have exposed himself, that there was no suggestion nearby women or teenage girls had seen or noticed the conduct, and that he stopped or disguised it when others approached. These were allegations in the criminal case, not findings by Hogan J.
Douglas challenged the constitutionality of the offences, arguing that their scope was uncertain. Hogan J held that being charged gave him standing to challenge the provisions, but only those directly affecting his interests. He also concluded that amendments to the section’s penalties in 1990 had not effectively re-enacted it as a post-Constitution statute. The section therefore had no formal presumption of constitutionality, though the plaintiff still bore the burden of establishing its invalidity.
The judge found that “scandal” and “morals of the community” had no clear legal meaning or objective test. Their application could depend on subjective judgments, creating a risk of arbitrary and inconsistent enforcement. He held that the offences failed constitutional requirements concerning the Oireachtas’s role in defining criminal law, legal certainty, equality before the law and personal liberty.
The declaration applies to the words “or cause scandal or injure the morals of the community”. Hogan J said the remaining modesty offence could operate independently. He did not decide whether Douglas was guilty of any offence, and the judgment does not report the outcome of his criminal charge. The judge said the Oireachtas could legislate for conduct of this kind, provided any new offences set out clear principles and objectively ascertainable standards.