The High Court has declared the remaining part of section 18 of the Criminal Law (Amendment) Act 1935 unconstitutional, finding that the offence of “offending modesty” lacked clear legal standards and could be applied arbitrarily.
In a judgment delivered on 9 April 2014, Mr Justice Hogan ruled that the offence breached constitutional guarantees concerning lawmaking, trial in due course of law, equality before the law and personal liberty. He also found that the Oireachtas had failed to define clearly what conduct the offence prohibited. The court declared under Article 50.1 that the remainder of section 18 was inconsistent with the Constitution. As a result, the entire section did not survive the enactment of the Constitution.
The ruling arose from judicial review applications by Kevin McInerney and Brendan Curtis, both of whom had been charged under the section. The judgment said Curtis was charged over an allegation that he exposed himself as women walked past him on Camden Place in Dublin city centre on 26 May 2013. His charge had been adjourned pending the outcome of the constitutional challenge.
McInerney had been convicted in the District Court in February 2013 after being accused of masturbating in his car at Rathfarnham Shopping Centre while members of the public passed. He received a three-month prison sentence. On appeal, the Circuit Court allowed the prosecution to remove the charges relating to causing scandal and injuring public morals. The appeal was then adjourned pending the High Court challenge.
The High Court had already ruled in Douglas v Director of Public Prosecutions in 2013 that the “causing scandal” and “injuring the morals of the community” offences in section 18 were unconstitutionally vague. The present applications concerned the only offence left in the section: offending modesty.
Justice Hogan said the terms “offend” and “modesty” did not set out a definite criminal-law standard. The offence was tried summarily, without a jury, and the legislation did not identify objective criteria for deciding what behaviour crossed the line. The judgment said the provision could therefore invite inconsistent and subjective decisions.
The court noted that the Oireachtas could legislate for offences addressing such conduct in public, provided any new law set out adequate principles and policies and used objectively ascertainable standards. The judgment did not determine the applicants’ underlying criminal cases or rule on whether their alleged conduct could be prosecuted under another offence.