Judgment Title: Douglas -v- DPP & Ors
Neutral Citation:  IEHC 343
High Court Record Number: 2010 4603 P
Date of Delivery: 26/07/2013
Court: High Court
Composition of Court:
Judgment by: Hogan J.
Status of Judgment: Approved
Neutral Citation Number:  IEHC 343
THE HIGH COURT
[2010 No. 4603 P]
DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND
AND THE ATTORNEY GENERAL
JUDGMENT of Mr. Justice Hogan delivered on 26th July, 2013
1. Is a statutory offence of causing scandal or injuring the morals of the community sufficiently precise and certain as to meet the test for legal certainty in criminal matters articulated by the Supreme Court in King v. Attorney General  I.R. 233? This, is essence, is the issue which is raised in these proceedings in which the plaintiff challenges the constitutionality of s. 18 of the Criminal Law (Amendment) Act 1935 (“the 1935 Act”), as amended by s. 18 of the Criminal Law (Rape)(Amendment) Act 1990 (“the 1990 Act”). Section 18 of the 1935 Act provides:-
2. The plaintiff has been charged with the latter two offences created by s. 18 of the 1935 Act, i.e., causing scandal and injuring the morals of the community. The case against him is that on two separate days in January 2009 he was observed by security staff stroking and massaging his penis through his clothes in a café attached to a shopping centre in Dublin city centre. It is important to stress that it has never been alleged that the plaintiff had ever exposed his penis. The prosecution contend, however, that the conduct was done in a public place and that on both occasions he was seated just a few metres from adult females and teenage girls, although there is no suggestion that they witnessed or were even aware of this conduct. It is also contended that the plaintiff either desisted from these activities or disguised them when others approached. Nor has it been suggested that the plaintiff massaged his penis through his clothes to the point of sexual climax.
3. The specific charge is that on the days and place in question:
Does S. 18 of the 1935 Act enjoy the presumption of constitutionality?
6. Given that it is common case that the onus of proof to demonstrate constitutional incompatibility rests with the plaintiff irrespective of whether the statute is treated as being a pre- or post-Constitution enactment, I am not convinced that this issue is really of fundamental importance, at least so far as the issues in this case are concerned. At most, some marginally higher burden may attach itself to a post-1937 statute (or, at least, a statute deemed to have been effectively re-enacted after date), since such legislation would be enacted by the very Oireachtas which was familiar with the terms of the Constitution itself. In this respect, the present case is very different from ZS v. Director of Public Prosecutions  IESC 49. This, however, was a case with exceptional facts and circumstances and where, as we shall shortly see, the existence of the presumption of constitutionality was dispositive in those very special circumstances.
7. It is clear from the decision of the Supreme Court in Gormley v. Electricity Supply Board  I.R. 129 that the mere fact that a pre-1937 statute is incidentally amended by a post-1937 statute will not in itself “give to that pre-Constitution statute a presumption of validity”: see  I.R. 129, 147, per Finlay C.J. If, on the other hand, the nature of the amendment provided for by the post-1937 amendment statute is such that it extends and expands the scope of the original pre-1937 statute, then as the judgment of Finlay C.J. in Gormley makes clear, the legislation must be deemed to have been effectively re-enacted as post-1937 statute.
8. This issue was considered in some detail by the Supreme Court in ZS v. Director of Public Prosecutions  IESC 49. As it happens, this case concerned the constitutionality of another provision of the 1935 Act, namely, s. 2. As originally enacted the 1935 created what was in essence the absolute offence of unlawful carnal knowledge of young females between 15 and 17. That offence was itself amended by s. 13 of the Criminal Law Act 1997 which deleted the requirement that the girl be over 15 years of age. As thus amended, s. 2 then created the offence of unlawful carnal knowledge with any female under 17.
9. In CC v. Ireland (No.1)  4 IR 1 the Supreme Court held that the parallel section, s. 1, which created the absolute offence of unlawful carnal knowledge with a female under 15 was unconstitutional by reason of the fact that it excluded the defence of mens rea. In ZS the argument was whether the amendments effected by the 1997 Act had significantly changed the scope of the parallel offence so, that, in particular, it should be presumed that the Oireachtas had not intended to negative the defence of mens rea.
10. A majority of the Supreme Court (with Denham C.J. and Murray J. dissenting) held that in these circumstances the amendments effected by the 1997 Act had not substantially re-enacted s. 2(1) of the 1935 Act. It followed, therefore, that the sub-section could not be treated as if it were a post-Constitution statute and in those circumstances the issue was whether this pre-Constitution statute was carried over by Article 50.1 of the Constitution.
11. As Fennelly J. explained:
This is, of course, a highly unusual, even unique, situation. It is the consequence of the existence at this point in time of a judgment of this Court declaring inconsistent with the Constitution a materially identical provision. The decision in C.C. v Ireland is crucial. The situation is quite different from the legislative provision at issue in ESB v Gormley, cited above. In that case, there were two provisions in force, which were amended in a way which the Court found to amount to effective re-enactment.
Section 2(1) of the Act of 1935 was, for the same reason as was held in relation to s. 1(1) in C.C., inconsistent with the Constitution. It did not survive the entry into force of the Constitution. It was not in force in 1997 and could not be amended by the Criminal Law Act of that year.”
13. The question accordingly remains whether the amendments effected by the 1990 Act can be regarded as so material that the original section was effectively re-enacted. Here the test has been most helpfully enunciated by Finlay C.J. in Gormley:
15. In these circumstances, the statute must be treated as a pre-1937 statute which does not enjoy any formal presumption of constitutionality. The plaintiff must nonetheless establish and prove that the section is inconsistent with the Constitution and was thus not carried over by Article 50.1 of the Constitution. As I have already hinted, one must however doubt whether the onus of proof which rests on the plaintiff in such cases is materially different even if the case falls to be treated for constitutional consistency under Article 50.1 (in the case of a pre-1937 statute) as distinct from Article 15.4 and Article 34.3.2 (in the case of a post-1937 statute).
Does the plaintiff have standing to challenge the constitutionality of the section?
17. It is equally clear that the plaintiff does not have standing to challenge the constitutionality of the offending modesty offence in respect of which he has not been charged. This conclusion can be justified on the basis that he is not imminently prejudiced by the operation of that part of the section: see, e.g., Cahill v. Sutton  I.R. 269, 282 per Henchy J. Or one can just as easily defend that restriction on the basis that the plaintiff would in essence be here advancing on a hypothetical basis the right of a putative third party who might be so charged with the offence of offending modesty: see again Cahill v. Sutton  I.R. 269, 282-283, per Henchy J. It was on this basis that, for example, Laffoy J. held in Maloney v. Ireland  IEHC 291 that the plaintiff in that case – who had been arrested under s. 30(1) of the Offences against the State Act 1939 on the basis that he was suspected of having committed a scheduled offence – had no standing to challenge the constitutionality of that sub-section inasmuch as it allows for the arrest of persons “merely suspected of being in possession of information relating to the commission or intended commission of an offence”.
18. So much of this is not really in dispute between the parties. The defendant contends, however, the plaintiff does not have standing to challenge the constitutionality of the section because, irrespective of any vagueness or uncertainty which attaches to the section, the conduct of the plaintiff necessarily fits into any definition of the offence of causing scandal or injuring the morals of the community. For my part, however, I would reject that argument for two principal reasons.
19. First, there is no doubt but that any conduct of an overt sexual nature in public is liable to cause considerable offence and annoyance and, depending on the precise circumstances and the nature of the conduct in question, perhaps even shock and disgust to the average member of the public. But it does not necessarily follow that no matter how objectionable or even reprehensible such conduct would be regarded by the average member of the public that it would be necessarily regarded as the equivalent of causing scandal or as injuring the morals of the community. This is really a function of the inherent vagueness of the offences. After all, a scandal is generally a much publicized event involving moral turpitude which exercises members of the community generally, although in practice it often is regarded as effectively synonymous with objectionable conduct. Moreover, how could the question of whether the morals of the community have in fact been injured be objectively ascertained?
20. Second, the plaintiff is, in any event, entitled to know the nature of the offence (as distinct from the nature of the conduct alleged) with which he has been charged. This is perhaps just another way of saying that the plaintiff has a constitutional entitlement to legal certainty in the sphere of criminal offences. If, however, the offences are themselves so hopelessly vague that they cease to have any real meaning, then it matters not that the conduct alleged would be regarded by most as quite deplorable or that it should otherwise come within the scope of the criminal law.
21. Here it must be recalled that the standing rules are but rules of practice designed to conserve the exercise of the power of judicial review of legislation and guard against the improvident exercise of that power. If I might venture to repeat what I said on the related topic of mootness in Salaja v. Minister for Justice  IEHC 51:
23. Here it is perhaps sufficient to say that the plaintiff’s constitutional entitlements – one of which is the right to legal certainty in the sphere of criminal law – is actually or potentially affected by the operation of the relevant parts of s. 18 simply by reason of the fact that he has been charged with these offences. This is in itself enough to confer upon him the standing to challenge the constitutionality of these statutory offences.
Legal certainty and the operation of the criminal law
The importance of Article 5 and Article 15.2.1
29. There is, accordingly, a clear connection between the duty of the Oireachtas to articulate such principles and policies in legislation creating criminal offences in order to satisfy the requirements of Article 15.2.1 and the vagueness doctrine. A vague law “impermissibly delegates basic policy matters to policemen, judges and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application”: Grayned v. City of Rockford 408 US 104, per Marshall J. But, of course, as the judgment of O’Donnell J. in McGowan itself powerfully illustrates, this is precisely what the Oireachtas may not do. It is rather the duty of the legislative branch to articulate clear standards in legislation which will lend themselves to the fair, consistent and even-handed application of the law. Rigorous adherence to this requirement is especially important in the context of the criminal law, not least given that the subjective, arbitrary and inconsistent application of that law represents the very antithesis of Article 40.1 and its commitment to fundamental equality of all before the law.
The relevance of Article 15.5.1
32. The Supreme Court’s decision in Cagney provides a good illustration of these difficulties. Here the accused had been charged with the new offence of endangerment provided for by s. 13 of the Non-Fatal Offences against the Person Act 1861:
In the present case, there was no root and branch attack on the section by suggesting that it was inconsistent with the Constitution, and it is, of course, entitled to the benefit of a presumption of constitutionality. Nevertheless the obvious potential for conflict with the fundamental value that crimes must be defined with precision and without ambiguity so that the criminal law is “certain and specific” require that this notably open ended section be carefully, and indeed strictly, construed in accordance with fundamental principles of law and of construction.”
The constitutionality of s. 18
37. The decision of Kearns P. in Dokie is in much the same vein. In this case the applicant successfully challenged, on King grounds, the constitutionality of s. 12 of the Immigration Act 2004. This section provided that:
(b) in case he or she is registered or deemed to be registered under this Act, his or her registration certificate.
39. As has again been already noted, the reference to “morals of the community” is equally unclear. How are these to be determined and by whom? Even if, moreover, these community morals could be ascertained, how could one determine whether they have been injured?
40. There is furthermore no doubt but that, as O’Malley has pointed out in his great work, Sexual Offences: Law, Policy and Punishment (Dublin, 1996)(at 164-166), even by the early days of the section it had become clear that it was susceptible to a variety of differing, inconsistent and arbitrary applications throughout the State. A correspondent writing in the Irish Law Times and Solicitors’ Journal presciently commented shortly after the enactment of the section ((1936) 70 I.L.T.S.J. 70) that s. 18 was:
42. Even if the crusading zeal which underlies these early prosecutions under s. 18 of the 1935 Act would be regarded by later generations with incredulity and astonishment, the fact remains that these early prosecutions graphically show the potential for arbitrariness, subjective application and the downright unfairness which is inherent in the section.
No true analogy between s. 18 of the 1935 Act and other sexual offences
44. An example of the former category of statutory provision is provided by s. 4 of the Vagrancy Act 1824 which provides that it is an offence for any male “openly and lewdly” to expose his person to a female with the intent of insulting her. In Evans v. Ewals  2 All E.R. 22 the accused exposed part of “bare skin low down on his stomach” close to his pubic hair and was convicted of the offence by magistrates. The English High Court quashed the conviction, rejecting the argument that the offence referred to any part of the male body other than the penis. Ashworth J. said that ( 2 All E.R. 22, 24):
46. As O’Hanlon J. explained in Doolan v. Director of Public Prosecutions  I.L.R.M. 387, 391:
48. The offence of offensive conduct in a public place created by s. 5(1) of the Criminal Justice (Public Order) Act 1994 (“the 1994 Act”) may be regarded as an example of a provision which is couched in general terms but which still articulates clear and objective standards, as the term "offensive conduct" is defined by s. 5(3) as meaning:
50. In Chorherr v. Austria (1993) the applicant and a friend distributed leaflets at a military parade calling for a referendum on the planned purchased by Austria of fighter jets. He was arrested for the administrative offence of causing a “breach of the peace by conduct likely to cause annoyance”. The legality of this arrest was upheld by the European Court on the ground that this prescribed a sufficiently objective standard which was measured by the impact of the conduct on others.
51. This point was further elaborated upon by the European Court in Hashman and Harrup v. United Kingdom  ECHR 133, (2000) 30 EHRR 241. In this case the applicants had sought to sabotage a hunt by blowing hunting horns and by bellowing at hounds in order to distract them. The Crown Court found that no violence had been used by the applicants, so no question of a breach of the peace arose. It did find, however, that the applicants would repeat their behaviour unless checked by some form of sanction. They were bound over to keep the peace and to be of good behaviour (contra bonos mores). The European Court of Human Rights held that the contra bonos mores requirement did not satisfy the requirements of legal certainty for the purposes of accepting any restriction on the right of free speech must be prescribed by law for the purposes of Article 10(2) ECHR:
Nor can the Court agree that the Government’s other examples of behaviour which is defined by reference to the standards expected by the majority of contemporary opinion are similar to conduct contra bonos mores as in each case cited by the Government the example given is but one element of a more comprehensive definition of the proscribed behaviour.
With specific reference to the facts of the present case, the Court does not accept that it must have been evident to the applicants what they were being ordered not do for the period of their binding over. Whilst in the case of Steel v. United Kingdom (1998) the applicants had been found to have breached the peace, and the Court found that it was apparent that the binding over related to similar behaviour, the present applicants did not breach the peace, and given the lack of precision referred to above, it cannot be said that what they were being bound over not to do must have been apparent to them.”
53. One might add that, in line with the reasoning of the ECHR in Hashman, the conduct prohibited by s. 6 of the 1994 Act is measured by reference to the likely effect of such conduct on others, a key consideration in ensuring that the offence prescribed an objective and ascertainable standard.
54. Nor can any true comparison be drawn between s. 18 of the 1935 and the common law offence of outraging public decency which is an indictable misdemeanour at common law. This offence has been defined by O’Malley (Sexual Offences, at 159) as consisting of the performance of an act which is (i) lewd, obscene and disgusting; (ii) an outrage to public decency and (iii) in public. Based on the authority of cases such as R. v. Lunderbech  Crim LR 784 the plaintiff might well have been accused of this offence. In Lunderbeck the accused masturbated himself while watching children playing in a public park. Even though there was no evidence that the children saw or noticed anything irregular and even though his genital area was covered by a cloth, the accused’s conviction following jury trial of the common law offence of outraging public decency was upheld by the English Court of Appeal (Criminal Division).
55. The critical feature of this offence, however, so far as the present case is concerned is that it is indictable, so that the determination of whether community standard have been outrageously violated will be determined by a jury. As Hamilton P. noted in Attorney General (Society for the Protection of Unborn Children Ltd.) v. Open Door Counselling Ltd.  I.R. 593, 615 in respect of an offence of this kind :
Conclusions on the constitutional issue
58. For good measure, I would add that the section also fails the Cityview Press test inasmuch as the Oireachtas has failed to articulate clear principles and policies which mark out that conduct which is prohibited and that which is not. To that extent, therefore, I would hold that the relevant offences contravene Article 15.2.1 and, for that matter, Article 15.5.1.
59. None of this is to suggest for a moment that the Oireachtas could not legislate to create new offences which would address conduct of this nature in public. What is, however, required is that any such new legislation contains adequate principles and policies in order to meet the requirements of Article 15.2.1 on the one hand and articulates prohibitions by reference to objectively ascertainable standards in order to meet the requirements of Article 38.1 on the other.
62. First, the plaintiff has standing to challenge the constitutionality of the section. It matters not that the conduct in question might be criminalised under some new version of the statute which the Oireachtas might enact at some point in the future or indeed that he might have been charged with a different offence in respect of this conduct. The plaintiff is entitled to object to legislation which is unconstitutionally vague and lacks clear principles and policies.
63. Second, the plaintiff can, however, only challenge those provisions of the section which directly affect his interests. Accordingly, since he has been charged only with the offences of causing scandal or injuring the morals of the community, he has no standing to challenge the constitutionality of the offence of offending modesty in s. 18 of the 1935 Act.
64. Third, the changes effected to the penalty provisions of s. 18 of the 1935 Act by s. 18 of the 1990 Act do not have the effect of re-enacting s. 18 of the 1935 Act as it were a post-1937 statute. It follows, therefore, that the section enjoys no formal presumption of constitutionality, although the onus of proof in relation to establishing the invalidity of the section rests with the plaintiff.
65. Fourth, the offences of causing scandal and injuring the morals of the community are hopelessly vague and subjective in character and they intrinsically lend themselves to arbitrary and inconsistent application. No clear standard of the conduct which is prohibited by law is articulated thereby and s. 18 does not contain any clear principles and policies. In this respect the relevant provisions of s. 18 are manifestly unconstitutional and are inconsistent with Article 15.2.1, Article 15.5.1, Article 38.1, Article 40.1 and Article 40.4.1 of the Constitution.
66. Fifth, since the plaintiff has no standing to challenge the offence of offending modesty and since that offence is capable of having a distinct and independent existence from the offences of causing scandal and injuring the morals of the community, it is possible to sever the offending words from s. 18 of the 1935 Act.
67. Sixth, I will accordingly declare in accordance with Article 50.1 of the Constitution that the words “or cause scandal or injure the morals of the community” contained in s. 18 of the 1935 Act are inconsistent with the Constitution and that these two offences thereby created by that section did not survive its enactment.
68. Seventh, none of this is to suggest that the Oireachtas could not legislate to create new offences which would address conduct of this nature in public. What is, however, required is that any such new legislation contains adequate principles and policies in order to meet the requirements of Article 15.2.1 on the one hand and articulates prohibitions by reference to objectively ascertainable standards in order to meet the requirements of Article 38.1 on the other.