DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND, THE ATTORNEY GENERAL AND JUDGE JAMES FAUGHAN
JUDGMENT of Mr. Justice McDermott delivered on the 7th day of April, 2017
1. The applicant was granted leave to apply for judicial review on 21st July 2014 (Hedigan J.) and seeks an order of certiorari quashing an order made by the fourth named respondent on the 17th June 2013 refusing to strike out charge sheet number 14852617 and remanding the applicant on bail, and quashing the same charge sheet. In the alternative, the applicant seeks an order of prohibition preventing the further prosecution of the applicant in respect of the same charge sheet. The applicant also seeks orders of certiorari quashing the recognisance set in respect of the charge sheet and quashing the decision of the Director of Public Prosecution to charge the applicant with the indictable offence of outraging public decency. The applicant also seeks a declaration that the offence of outraging public decency is inconsistent with the provisions of Bunreacht na hÉireann and did not survive its enactment by reason of its inconsistency with Articles 15.2.1, 15.5.1, 38.1, 40.1, and 40.4.1 thereof.
2. The incident, the subject matter of the charge challenged in these proceedings, is alleged to have occurred on 3rd January 2013.
3. The factual circumstances in which the charge was brought are set out in the statement of proposed evidence of Garda Alan Murphy made on 28th August 2013. He states that on the 3rd January 2013 he had reason to follow Mr. Douglas because of suspicious activity which he observed in Dublin city centre. In Fleet Street Mr. Douglas allegedly stopped outside the Hard Rock Café. Garda Murphy alleges that Mr. Douglas was watching a family which included a man and a woman and two children, a boy and a girl all of whom were seated inside the café at a window. It is alleged that Mr. Douglas then sat down outside the café in front of the window and positioned himself so that he was facing the young girl who was aged approximately nine years. It is then alleged that he placed his right hand into his pocket and was masturbating his penis under his trousers. The garda states that he observed this activity from a position some five feet away from Mr. Douglas. He alleged that Mr. Douglas was looking directly at the young girl and that after about ten minutes he stood and walked through Temple Bar to the Oliver St. John Gogarty public house on the corner of Fleet Street and Anglesea Street. Garda Murphy followed Mr. Douglas and having identified himself as a garda arrested him for an offence contrary to s. 6 of the Criminal Justice (Public Order) Act, 1994. Garda Murphy conveyed Mr. Douglas to Store Street Garda Station where he was informed that he would be charged with “indecency” and that he would be bailed to appear in court at a future date. Mr. Douglas was asked whether he understood this and was reminded that he was under caution. Mr. Douglas stated:
“I was sitting outside the Hard Rock Café and I observed a family sitting inside. Three or four people were sitting. I had consumed a lot of alcohol, I had wine in my bottle and I observed a family, bad thoughts were coming into my mind, I had my hand in my pocket. I was thinking about masturbating but it didn’t happen to the point of ejaculation.”
This response was noted by Garda Murphy in his notebook, read over to Mr. Douglas and signed by him. He was then charged on charge sheet number 13417459 and released on his own bail to appear at Court 3 in the Criminal Courts of Justice (CCJ) on the 23rd of January 2013.
The Immodesty Charge
4. Charge sheet number 13417459 set out a charge that on the 3rd January 2013 at the Hard Rock Café, Fleet Street, Dublin 2 at or near and in sight of a place along which the public habitually pass as of right or by permission, Mr. Douglas committed an act to wit “masturbated in such a way as to offend modesty” contrary to s. 18 of the Criminal Law Amendment Act, 1935 as amended by s. 18 Criminal Law (Rape) (Amendment) Act 1990 which provided that:
“Every person who shall commit, at or near and in sight of any place along which the public habitually pass as of right or by permission, any act in such a way as to offend modesty or cause scandal or injure the morals of the community shall be guilty of an offence under this section and shall on summary conviction thereof be liable to a fine not exceeding [IR £500] or, at the discretion of the court, to imprisonment for any term not exceeding [six months].”
Section 18 provides for the summary disposal of the offence and there is no entitlement to jury trial.
5. This applicant had previously been charged with two offences based on similar facts under s. 18 in 2009 in relation to actions said to have caused scandal and injured the morals of the community. He challenged the constitutional validity of the provisions of section 18. In Douglas v. The Director of Public Prosecutions and Ireland IEHC 343 Hogan J. held that the offences of “causing scandal” and “injuring the morals of the community” were inconsistent with the Constitution as they were “hopelessly vague and subjective in character and they intrinsically lend themselves to arbitrary and inconsistent application”. The learned judge held that the plaintiff in that case had no standing to challenge the offence of offending modesty under s. 18 since that offence is capable of having a distinct and independent existence from the two offences with which he had been charged. Hogan J. was satisfied that the offending words could be severed from s. 18 of the 1935 Act.
6. The applicant was granted bail in respect of charge sheet 13417459 on 3rd January on condition that he should give 48 hours notice if he intended to travel to the State as he had been residing in Northern Ireland. Due to a breach of this bail condition the applicant’s bail was revoked on 25th July 2013.
7. The applicant was readmitted to bail on 26th July 2013 and remanded to appear on 10th September. In the meantime, he was taken into custody on 14th August 2013 in Northern Ireland in respect of unrelated matters. Subsequently, the applicant was further remanded in his absence to 17th December 2013. He was during this period detained in a Northern Ireland prison.
8. The applicant sought and was granted leave to apply for judicial review on 3rd February 2014 seeking an order of certiorari quashing charge sheet number 13417459 on the grounds that the offence of offending modesty contrary to s. 18 of the Criminal Law Amendment Act, 1935 as amended was inconsistent with the provisions of the Constitution. He also sought leave in respect of an application to quash the warrant which had been issued directing his arrest on 17th December.
9. In McInerney v. Director of Public Prosecutions IEHC 181 Hogan J. held that the offence of “offending” modesty was hopelessly vague and subjective in character and intrinsically invited arbitrary and inconsistent applications. There was no clear standard of conduct which was prohibited by law articulated under the section nor did it contain any clear principles or policies. The remaining provision of s. 18 was found to be “manifestly” unconstitutional and inconsistent with Articles 15.2.1, 15.5.1, 38.1, 40.1 and 40.4.1 of the Constitution. The effect of the decision was that s. 18 of the 1935 Act as amended was also found to be inconsistent with the Constitution in its entirety.
10. The prosecution of the applicant on foot of charge sheet number 13417459 had been stayed pursuant to the order granting leave on 3rd February 2014
“pending the determination of these proceedings … until further order in the meantime or until such time as the stay should have lapsed by virtue of the applicant’s failure to issue and serve the necessary papers within the time provided”.
11. On 28th October 2014 the High Court (Kearns P.) granted an order of certiorari in respect of charge sheet number 13417459 and the bench warrant which was issued on 17th December 2013 as a result of the McInerney case.
The Charge of Outraging Public Decency
12. In the meantime following the receipt of instructions from the Director of Public Prosecutions an application was made on 8th January 2014 to the District Court by Garda Murphy for a warrant to arrest the applicant on foot of a complaint that he had on 3rd January 2013 been observed outside the Hard Rock café, Fleet Street, Dublin rubbing his penis under his trousers to the point of erection while watching a young girl approximately nine years old who was sitting inside the restaurant with her family. The offence in respect of which the warrant was sought was “outraging public decency contrary to common law”.
13. On 22nd January 2014 the High Court (Edwards J.) issued a European Arrest Warrant (EAW) seeking the surrender of the applicant from the United Kingdom. The warrant expressly sought the applicant’s surrender for the purpose of prosecuting him for an offence of outraging public decency contrary to common law and was issued expressly upon the basis of the arrest warrant issued on 8th January 2014.
14. On 16th June 2014 Garda Murphy arrested and charged the applicant with the offence of outraging public decency contrary to common law on charge sheet number 14852617 which alleged that:
“On 03/01/2013 at Hard Rock Café, Fleet Street, Dublin 2 in the said District Court area of Dublin Metropolitan District, (the applicant) committed an act of a lewd, obscene and disgusting nature and outraging public decency, by behaving in an indecent manner to wit David Douglas was observed by Garda Alan Murphy outside the Hard Rock Café in Fleet Street Dublin 2 a public place, rubbing his penis under his trousers to the point of erection while watching a young girl approximately nine years of age who was sitting inside the restaurant with her family to the great disgust and annoyance of divers persons within whose purview such act was committed.”
This charge clearly relates to the same incident that occurred on 3rd of January 2013 which was the subject of charge sheet 13417459, later quashed.
15. On 21st July 2014 leave was granted in these proceedings to apply by way of judicial review for orders of certiorari quashing charge sheet number 14852617, prohibiting or preventing the further prosecution of the applicant on foot of the said charge sheet, quashing the recognisance associated with that charge and quashing the decision of the Director of Public Prosecution to charge the applicant with the indictable offence of outraging public decency. A number of declarations were also sought to the effect that the offence of outraging public decency was inconsistent with the provisions of Bunreacht na hÉireann and in particular Articles 15.1.1, 15.2.1, 38.1, 40.1, and 40.4.1, and was not carried over and did not survive its enactment by reason of Article 50.1 thereof. Leave was granted at a time when the applicant’s earlier application in respect of the s. 18 offence (2014/76 J.R.) had yet to be determined. A final order in respect of those proceedings was made on 28th October. In addition, an order was made staying the further prosecution of the applicant in respect of charge sheet number 14852617 pending the determination of these proceedings. Leave was also granted to challenge the decision of the District Court said to have been made on 17th June 2013 refusing to strike out the charge sheet number.
Abuse of Process - Grounds (i), (ii), (iii), (vii), (xii), (xiv) and (xv)
16. The applicant submits that his continued prosecution in respect of the fresh charge of outraging public decency constitutes an abuse of process because it relates to the same incident which was the subject of charge sheet number 13417459 which was ultimately quashed and in respect of which there was a stay placed by the High Court upon the further prosecution of the applicant. It is submitted that the effect of the stay granted in respect of that charge sheet was to stay the trial of any offence or the laying of further charges relating to the incident that occurred on 3rd January 2013, at least until the determination of the judicial review. Thus at the very least there was a prohibition on initiating a prosecution of any other charge relating to that incident between the 6th June 2014 and 28th October 2014 when the previous judicial review proceedings were concluded. It was submitted that a new charge could not be preferred while that stay continued. Counsel relied upon the decision of the Supreme Court in Michael Farrell (aka Regan) v. The Governor of St. Patrick’s Institution IESC 30 in which Denham C.J. stated:
“61. It is clear that a stay order is not an order terminating proceedings. It is an order staying, postponing, and suspending the proceedings. It is an order maintaining the status quo. Thus, the proceedings being stayed, in this case the proceedings in the District Court, are to be maintained in a holding pattern, the status quo, until the determination of the application for judicial review.”
It is claimed that in preferring the charge of outraging public decency the Director of Public Prosecutions had “subverted” the order of the High Court granting the stay. I am not satisfied that this is so.
17. The stay granted by the High Court in respect of charge sheet 13417459 applies to that charge sheet alone. There was no general stay on the prosecution of the applicant relating to the events of the 3rd February 2014 nor was there any basis for such a stay.
18. The applicant originally relied upon a suggestion that the European Arrest Warrant had been issued in respect of the s. 18 offence charged in charge sheet 13417459. It was submitted therefore that the European Arrest Warrant was the subject of a challenge in the first judicial review and was consequently, the subject of a stay. This was clearly not the case. It was accepted that the averment linking the European Arrest Warrant to the s. 18 charge was made in error in the course of these proceedings. It is clear that the stay granted by Peart J. on 3rd February 2014 in the first judicial review proceedings was confined to the prosecution of the applicant pursuant to charge sheet number 13417459 and the bench warrant arising therefrom which issued on 17th December 2013. Though one of the reliefs claimed was an order of certiorari quashing the European Arrest Warrant which had by that stage issued, that application was based on the mistaken apprehension that the warrant related to surrender sought in respect of a s. 18 offence.
19. I am therefore satisfied that there was no stay or prohibition placed on the Director of Public Prosecutions in relation to the further charging of the applicant with a separate offence of outraging public decency based on the same facts alleged to have occurred on 3rd January 2013. It was open to the Director of Public Prosecutions in the exercise of her discretion and in the knowledge that a challenge was already pending in respect of the constitutionality of the s. 18 offence, to direct that the applicant be charged with a different offence if that were appropriate to the facts alleged. I do not accept this discretion was in any way fettered in this case by the earlier charging of the applicant with the s. 18 offence if the charge laid is otherwise lawful.
20. The applicant also claims that his further prosecution for outraging public decency exposed him to a risk of double jeopardy. The rule of autrefois acquit or autrefois convict requires that if an accused has been duly tried by a court of competent jurisdiction acting within jurisdiction for an offence now charged and that he was acquitted or convicted of that charge, a second trial for that offence may not take place. The applicant was not in jeopardy in the sense contemplated in the rule (see The People (Director of Public Prosecutions) v. O’Shea  I.R. 384 at 406 and the People (Attorney General) v. O’Brien  I.R. 92). I am not satisfied that these principles have any application to this case.
The Offence of Outraging Public Decency-Grounds (vi),(ix),(x),(xi) and(xviii)
21. It is submitted that the offence of outraging public decency does not exist under Irish common law or that if it does it is inconsistent with the provisions of the constitution and in particular Articles 15.2.1, 15.5.1, 38.1, 40.1 and 40.4.1 thereof and did not survive the enactment of the constitution. The applicant is alleged to have committed “an act of a lewd, obscene and disgusting nature and outraging public decency by behaving in an indecent manner” contrary to common law. The particulars of the offence are clearly set out and allege that he rubbed his penis under his trousers to the point of erection while watching a young girl who was approximately nine years old and sitting inside a restaurant with her family “to the great disgust and annoyance of divers persons within whose purview such act was committed”.
22. The court has considered the respondents’ submissions that the applicant has no locus standi to mount this challenge on the grounds that the offence of outraging public decency could be applied to behaviour that is borderline in nature. It is submitted that the behaviour alleged against the applicant is specific. There is nothing vague or uncertain about it. That is correct. However, the applicant has raised the issue whether the offence of “outraging public decency ” is an offence under Irish common law at all. That raises questions about the existence of the offence but also, if it exists, its constituent elements. In addition, a finding that the offence as charged and on foot of which the applicant was extradited to this jurisdiction, is not known to Irish law or, at least, is not an offence having all the constituent elements of the offence as defined in the United Kingdom, may have implications for the continued prosecution of the offence in this jurisdiction. Consequently, the court is satisfied that the applicant has locus standi to seek the relief claimed. Clearly, if the offence is not known to the law he may not be further prosecuted. The court is satisfied that this approach is in accordance with the leading authorities on the matter (see Cahill v. Sutton  I.R. 269; King v. Attorney General (cited below); Norris v Attorney General IR 36; A v. Governor of Arbour Hill Prison  I.R.88 and Maloney v. Ireland IEHC 291).
23. The court will first consider whether the offence charged exists at common law.
Recent English Cases
24. The charge as framed is based on the offence of outraging public decency as developed under recent English common law. Though the offence is said to be based on a number of old authorities, its modern manifestation in English case-law begins with Regina v. Mayling  2 Q.B. 717 in which an indictment was preferred against the defendant against whom two police officers gave evidence. They saw him follow a man into a public toilet. A young man who then entered the lavatory came out at once, looking disgusted and annoyed. The policeman stated that on entering the lavatory they saw the defendant committing an indecent act with another man but they did not say that they had felt disgusted or annoyed. The defence was a complete denial of the offence and the state of the lavatory was relied upon to explain the alleged look of disgust on the young man’s face. The young man was not called to give evidence at the trial. The accused was convicted. He had been charged on an indictment containing one count set out in the usual modern form. Under “Statement of Offence” the alleged offence was stated to be “committing an act outraging public decency”. Under “Particulars of Offence” it was alleged that the defendant had committed:
“an act of a lewd obscene and disgusting nature and outraging public decency by acting in an indecent manner … to the great disgust and annoyance of divers of Her Majesty’s subjects within whose purview such behaviour was committed.”
25. In delivering the judgment of the Court of Criminal Appeal Ashworth J. stated:
“it is convenient first to consider the offence alleged to have been committed by the defendant. It is described in the indictment as “committing an act outraging public decency” and it arises at common law and not out of any statute. In the judgment of this Court, it is now well established that an offence so described is punishable at common law and, indeed, it was not contended on behalf of the defendant that no such offence existed. It is equally well established that the act complained of must be committed in public if it is to constitute the offence and, in many of the reported cases, the main issue is the question what had to be proved in order to show that the act was committed in public.”
The court was satisfied that more than one person at least must have been able to see the act complained of if the charge was to be made out. It was necessary for the prosecution to establish that the act complained of was an act of indecency or to use the words of the indictment an act “outraging public decency”. The court was also satisfied that on the evidence of the police officers of the defendant’s behaviour as accepted by the jury, this requirement was plainly satisfied.
26. It was also submitted on behalf of the defendant that the prosecution had to establish that the act of indecency in fact disgusted and annoyed the persons within whose purview the behaviour was committed. The court rejected this argument:
“The words now under consideration ‘to the great disgust and annoyance of divers of Her Majesty’s subjects’ appear in the precedent set out in Archbold’s Criminal Pleading, Evidence and Practice, 35th Ed., para. 2994, but it is interesting to note that, so far as can be ascertained from the reports of the cases cited in argument, such words were not included in the indictments then being considered. Nor is there anything in the judgments to indicate that the actual effect of the indecent act on the mind of the observer is a relevant consideration: the essentials are that the act should be indecent and that it should be committed in public, in the sense already discussed.”
The court relied upon Rex v. Crunden (1809) 2 Camp. 89 in which M’Donald C.B. said that he had no doubt that a defendant, by exposing his naked person when going to bathe naked in the sea at Brighton, was guilty of the misdemeanour regardless of his intention since “the necessary tendency of his conduct was to outrage decency and corrupt the public morals”.
27. Ashworth J. also noted:
“… that, in the particulars of offence, the act was described as ‘of a lewd obscene and disgusting nature and outraging public decency’ and it was incumbent upon the prosecution to satisfy the jury not merely that the defendant did the act and did it in public, but also that the act was of the description alleged. The operative words, i.e., ‘of a lewd obscene and disgusting nature and outraging public decency’ may be paraphrased without altering their effect as ‘such an act of a lewd obscene or disgusting nature as constitutes an outrage to public decency involving great disgust and annoyance of divers of Her Majesty’s subjects.’ If the jury were so satisfied, the offence was proved and, in the judgment of this Court, it was not necessary for the prosecution to go further and prove actual disgust or annoyance on the part of any observer.”
This wording is the same as that adopted in the charge laid in charge sheet 14852617.
28. The history of the offence was further considered by the English House of Lords in Knuller v. Director of Public Prosecutions  A.C. 435. The appellants were directors of a company which published a magazine containing advertisements which invited readers to meet the advertisers “for the purpose of homosexual practices”. They were convicted of two counts, one of conspiracy to corrupt public morals and the second conspiracy to outrage public decency. The appellants submitted, inter alia, that an agreement to insert the advertisements described in the magazine for the purpose of facilitating homosexual acts between consenting adults in private did not constitute an offence of conspiracy to outrage public decency and furthermore, that the trial judge had failed to direct the jury that in order to constitute the offence the agreement must envisage that something of a public exhibition was indicated.
29. In Knuller, a majority of the House of Lords was satisfied that the offence of “committing an act of outraging public decency” was an offence under English common law (citing Regina v. Mayling). Lord Simon of Glaisdale noted in respect of the offence that “it does not seem to me to be exorbitant to demand of the law that reasonable people should be able to venture into public without their sense of decency being outraged”. Lord Simon’s conclusion that the offence existed was derived from traditional common law principles whereby the common law “proceeds generally by distilling from the particular case the legal principles on which it is decided and that legal principle is then generally applied to the circumstances of other cases to which the principle is relevant as they come before the courts”. He cited with approval the exposition of the principle by Parke B. in Mirehouse v. Rennell (1833) 1 Cl. and F. 527 at 546:
“Our common law systems consists in applying to new combinations of circumstances those rules of law which we derive from legal principles and judicial precedents; and for the sake of obtaining uniformity, consistency and certainty, we must apply those rules where they are not plainly unreasonable or inconvenient to all cases which arise; and we are not at liberty to reject them, and to abandon all analogy to them, in those to which they have not yet been judicially applied, because we think that the rules are not as convenient and reasonable as we are ourselves could have devised”.
30. Lord Reid, dissenting, was not satisfied that the offence of outraging public decency was one known to the law. While accepting that there were a number of particular offences well known to the law which involved public indecency in its various forms, none of them covered the facts of the case in Knuller. The offence as charged had never been brought in respect of printed matter on sale to the public. He noted that the recognised offence with regard to the advertisement was based on its being so obscene a publication that it was likely to corrupt or deprave. He stated that the basis of the new offence was quite different in that it applied where ordinary decent minded people who are not likely to become corrupted or depraved could be outraged or utterly disgusted by what they read. Lord Reid stated (at p. 458):
“There are at present three well known offences of general application which involve indecency; indecent exposure of the person, keeping a disorderly house, and exposure or exhibit in public of indecent things or acts. The first two are far removed from sale of indecent literature and I can see no real analogy with the third.
Indecent exhibitions in public have been widely interpreted. Indecency is not confined to sexual indecency; indeed, it is difficult to find any limit short of saying that it includes anything which an ordinary decent man or woman would find to be shocking, disgusting and revolting. And “in public” also has a wide meaning. It appears to cover exhibitions in all places to which the public have access either as a right or gratis or on payment. There is authority to the effect that two or more members of the public must be able to see the exhibition at the same time, but I doubt whether that applies in all cases. We were not referred to any case where the exhibition consisted of written or printed matter but it may well be that public exhibition of an indecent notice or advertisement would be punishable.”
Lord Reid rejected the existence of what he referred to as “this new generalised crime”. In particular, he stated that apart from some statutory offences of limited application there was neither precedent nor authority of any kind for punishing the publication of written or printed matter on the ground that it was indecent as distinct from being obscene. He said:
“To say that published matter offends against public decency adds nothing to saying that it is indecent. To say, as is said in this charge, that it outrages public decency adds no new factor: it seems to me to mean no more than that the degree of indecency is such that decent members of the public who read the material will not merely feel shocked or disgusted but will feel outrage. If this charge is an attempt to introduce something new into the criminal law it cannot be saved because it is limited to what a jury might think to be a high degree of indecency.”
31. Lord Reid was not satisfied to extend the established categories of offences involving indecency to an overall category of outraging public decency which would embrace a publication such as this. To do so would be to recognise a new crime. The opinion of Lord Reid highlights elements of the offence of outraging public decency which take it beyond the scope of the recognised categories of public indecency. However, it is also clear that Lord Reid was satisfied that the authorities also established that other indecent acts carried out in public other than those definable as “indecent exposure” were indictable at common law.
32. Lord Simon was satisfied that the general common law offence of outraging public decency derived from the principles established over the centuries in a number of decided cases. These included cases in respect of indecent exposure, indecent works, disinterring a corpse, selling a wife, exhibiting deformed children, exhibiting a picture of sores, and procuring a girl apprentice to be taken out of the custody of her master for the purpose of prostitution. Though Lord Simon accepted that these cases could “look odd standing on their own”, nevertheless, he was satisfied that they were ‘particular applications of a general rule whereby conduct which outrages public decency is a common law offence’ (p. 493).
33. The ingredients of the offence of outraging public decency were again considered in Regina v. Hamilton EWCA Crim 2062 by the English Court of Appeal (Criminal Division). The appellant was convicted of a number of counts of outraging public decency contrary to common law in that it was alleged that he had surreptitiously filmed up a number of women’s skirts at a check-out counter in a supermarket. None of the women involved had seen him filming and none of the adults filmed had been identified. The store security personnel had not noticed what he was doing nor had anybody else. The offences were only discovered when the police found twenty hours of film on video cassettes at his home following a search. It was clear that his camera had been secretly placed at the check-out in a rucksack in a position most likely to procure the footage which he required.
34. Thomas LJ. in delivering the judgment of the court stated that the issues raised in the appeal gave rise not only to questions concerning the elements of the offence but also the way in which the principles derived from the previous cases were to be applied to contemporary standards of behaviour. Having considered the history of the case law including the decision of the Court of Appeal in Ireland in Regina v. Farrell (1862) 9 Cox C.C.446, the learned judge summarised the elements required to prove the offence of outraging public decency as follows:
i) The act was of such a lewd character as to outrage public decency; this element constituted the nature of the act which had to be proved before the offence could be established.
ii) It took place in a public place and must have been capable of being seen by two or more persons who were actually present, even if they had not actually seen it. This constituted the public element of the offence which had to be proved. As the cases to which we will refer show, there was still some uncertainty as to what was required. In all the cases the act had in fact been seen by one person, but Elliot and White left open the point summarised by Weightman J. which we have set out.”
35. The latter reference was to Regina v. Elliot and White (1861) Le & Ca 103 in which the defendants were convicted of exposing themselves on Wandsworth Common in the “sight and view” of divers others. There was evidence that a couple had sexual intercourse on the common but there was no evidence that it was seen by anyone other than a single witness. The act could have been seen by others on the common or a public footway but there was no evidence that there were persons there. The jury was directed that they could convict if the acts could be seen without difficulty by others. The case depended on the following question as posed by Weightman J. “Could the parties be convicted if no one saw them, as for instance, upon their own confession merely?”. In fact, no judgment was ever delivered on this point and a note in the report observed that the case left the law uncertain as to this aspect. However, the Farrell case in Ireland determined that indecent exposure seen by one person only and only capable of being seen by that person was not an offence.
36. Thomas LJ. accepted that the main elements of the offence were settled by a series of cases in the middle of the nineteenth century summarised in the Mayling case. The learned judge cited with approval the judgment of Ashworth J. that the offence of outraging public decency was punishable at common law and that the act complained of must have been committed in public in order to constitute the offence: in many of the reported cases the main issue was the question of what had to be proven in order to show that the act was committed in public.
37. Thomas LJ. summarised the position at para. 24 as follows:
“Although some reference was made to the nineteenth century cases that established the offence of outraging public decency in Shaw v DPP  AC 220, it was the decision of the House of Lords in R v. Knuller (Publishing, Printing and Promotions) Ltd.  AC 435 which not only confirmed the continuing existence of the offence but which clarified elements of the offence. It is only necessary to refer to what Lord Simon of Glaisdale categorised at p. 494 as the requirement of publicity: he first summarised the decision in R v. Mayling… which showed:
‘that the substantive offence (and therefore the conduct the subject of the conspiracy) must be committed in public, in the sense that the circumstances must be such that the alleged outrageously indecent matter could have been seen by more than one person, even though in fact no more than one did see it. If it is capable of being seen by one person only, no offence is committed.’
He then answered the prosecution argument that it was immaterial that the act alleged to outrage public decency took place in public provided the public’s sense of decency was outraged [in Knuller at pp.494-495]:
‘…The authorities establish that the word ‘public’ has a different connotation in the respective offences of conspiracy to corrupt public morals and conduct calculated to, or conspiracy to, outrage public decency. In the first it refers to certain fundamental rules regarded as essential social control which yet lack the force of law: when applicable to individuals, in other words, ‘public’ refers to persons in society. In the latter offences, however, ‘public’ refers to the place in which the offence is committed. This is borne out by the way the rule was framed by my noble and learned friend, Lord Reid, in Shaw v DPP  AC 220 in the passage which I have just cited. It is also borne out by what is presumably the purpose of the legal rule - namely, that reasonable people may venture out in public without the risk of outrage to certain minimum accepted standards of decency.
On the other hand, I do not think that it would necessarily negative the offence, that the act or exhibit is superficially hid from view, if the public is expressly or impliedly invited to penetrate the cover. Thus, the public touting for an outrageously indecent exhibition in private would not escape: see Reg. v. Saunders, 1 Q.B.D. 15.’”
38. Thomas LJ. elaborated upon the two elements of the offence set out at para. 21 of his judgment quoted above. The first element related to the nature of the act which had to be proved:
“30. … It has to be proved both that the act is of such a lewd, obscene or disgusting character that it outrages public decency.
i) An obscene act is an act which offends against recognised standards of propriety and which is at a higher level of impropriety than indecency; see R v. Stanley  2 Q.B. 327. A disgusting act is one “which fills the onlooker with loathing or extreme distaste or causes annoyance”; R v. Choi  EWCA CRIM 1279. It is clear that the act done by the appellant was capable of being judged by a jury to be a lewd, obscene or disgusting act. It is the nature of the act that the jury had to consider and it was clear in our view that the jury were entitled to find that it was lewd, obscene or disgusting, even if no one saw him doing it.
ii) It is not enough that the act is lewd, obscene or disgusting and that it might shock people; it must, as Lord Simon of Glaisdale made clear in R v. Knuller… be of such a character that it outrages minimum standards of public decency as judged by the jury in contemporary society. As was pointed out, ‘outrages’ is a strong word. It is not necessary to establish that any particular member of the public is outraged, as this court said in R v. Mayling… and R v. Choi…; and it must follow that this requirement does not mean that anyone has to see the act whilst it is being carried out.” (emphasis supplied)
This clearly suggests that the act must transcend that which is extremely disturbing annoying or otherwise shocking or obscene: it must be an “outrage” to public decency. I regard this as an additional element that must be established under English common law on the older authorities and appears to require a higher degree of public offence in respect of the indecency to be established than heretofore.
39. The learned judge also noted that the application of the second element of the offence described as the “public element” or “two-person rule” was the principal issue discussed in most of the cases:
“(i) We accept that the public element first requires that the act be done in a place to which the public has access or in a place, as set out in R v. Walker (Steven)  1 Cr App R 111 where what is done is capable of public view. The filming by the appellant was done in a supermarket - a place to which the public had access - and in a place where what was done was capable of being seen. On either basis this part of the public element was satisfied.
(ii) The public element is not, however, satisfied unless the act is capable of being seen by two or more persons who are actually present, even if they do not actually see it (what is conveniently described by Rook and Ward on Sexual Offences as the two-person rule). It was the scope of the two-person rule that was the subject to which the submissions in this appeal were principally directed.
39. In our view it is necessary to have regard to the purpose of the two-person rule; it goes solely to the necessity that there be a public element in the sense of more than one being present and capable of being affected by it. There is in our view no reason to confine the requirement more restrictively and require actual sight or sound of the nature of the act. The public element in the offence is satisfied if the act is done where persons are present and the nature of what is being done is capable of being seen; the principle is that the public are to be protected from acts of a lewd, obscene or disgusting act which are of a nature that outrages public decency and which are capable of being seen in public. … Looking therefore at the purpose of the two-person rule, it can, in our view, be satisfied if there are two or more persons present who are capable of seeing the nature of the act, even if they did not actually see it. Moreover, the purpose of the requirement that the act be of such a kind that it outrages public decency goes, as we have said, to setting a standard which the jury must judge by reference to contemporary standards; it does not in fact require someone in fact saw the act and was outraged. In most cases, there will be no evidence against a defendant unless the act is seen by someone; but that does not mean that where an act is in fact done which is lewd, obscene or disgusting and is of a nature that outrages public decency and is done where it is proved that people are present and capable of seeing its nature, it is not an offence.”
40. The mens rea of this modern manifestation of the offence was considered in Regina v. Gibson  2 Q.B. 619. The appellants exhibited a model of a head and attached an earring made from a freeze dried human foetus of three to four months gestation to each earlobe as a work of art. They were prosecuted on a charge of outraging public decency. It was submitted that for the prosecution to succeed a specific form of mens rea must be established namely, that the prosecution must prove intent to outrage public decency or at least an appreciation on the part of the defendant that there was a risk of such outrage coupled with a determination nevertheless to run that risk. Lord Lane CJ stated at p. 629:
“Where the charge is one of outraging public decency, there is no requirement that the prosecution should prove an intention to outrage or such recklessness as is submitted by Mr. Robertson. If the publication takes place, and if it is deliberate, there is, in the words of Lord Russell … ‘no justification for holding that there is no offence when the publisher is incapable for some reason particular to himself of agreeing with the jury on the true nature of the publication.’
Although that presumption which I have just mentioned no longer of course exists, nevertheless where one has a display of, such as, foetal earrings in the instant case, once the outrage is established to the satisfaction of the jury, the defendant is scarcely likely to be believed if he said that he was not aware of the danger he was running of causing offence and outrage to the public. Indeed, had the judge in the present case directed a jury along the lines as suggested he should have directed them, there can be no doubt in our minds that in the case of each appellant the result would have been the same and conviction would have been recorded.”
I am not persuaded that the prosecution should be relieved of the obligation to prove intention or recklessness as to the nature of the act in prosecuting such an offence. I do not accept that the principle as formulated in Gibson applies to the Irish offence of committing an indecent act in public discussed below. As acknowledged in the second paragraph quoted above, a jury on the same evidence would likely have found beyond a reasonable doubt that the intention or recklessness had been established, whether such was denied or not. Furthermore, the question remains very relevant to the holding of exhibitions or mounting art installations. If it is to be alleged that exhibitions or installations are criminal acts of public indecency the right to freedom of expression must also be considered under Article 46.6.1, discussed below. That of course, does not arise on the facts of this case. However, it is abundantly clear from the above authorities that the English courts regard the offence of outraging public decency as therein defined as well established at common law.
Does the Offence exist in Ireland?
41. The question arises as to whether the offence as declared and crystallised in the more modern English authorities exists in this jurisdiction or existed at the time of the enactment of the Irish Free State Constitution in 1922 and continued to be recognised thereafter. There are no decided cases concerning the offence post 1922. It is also clear that much of the analysis relied upon in the modern English cases is based on cases decided in the 19th century which applied in Ireland and older cases going back many centuries.
42. In Regina v. Farrell (1862) 9 Cox C.C. 446 (C.C.A.Ir.), which appears to be the only Irish reported case on the matter, the accused was tried for indecent exposure of his person. The indictment alleged that the prisoner
“being a scandalous and evilly disposed person and devising, contriving and intending the morals of diverse liege subjects to debauch and corrupt, on…a public and common highway situated at Rathgar Road…in the presence of diverse liege subjects and within sight and view of diverse other liege subjects through and on the said highway and in their passing, unlawfully did expose his person.”
The indictment was quashed on the grounds that the accused was seen only by one person. The court held:
“…all that we can say is that an exposure seen by one person only and being capable of being seen by one person only, is not an offence at common law. If there had been others in such a situation as that they could have seen the prisoner, there would have been a criminal offence.”
43. There is, however, ample authority to indicate that similar acts characterised as “nuisances” were regarded as indictable misdemeanours at common law. In Gabbett’s “Treatise on Criminal Law” (1835 Book 1: Chapter 39 page 744) the learned author states:
“The word ‘Nuisance’ in its abstract sense, means annoyance; or anything that worketh hurt, inconvenience, or damage; but as applied to the offences which are of criminal cognizance, it is to be confined to such common nuisances as offend against the public order and economical regimen of the state, but which do not amount to an actual disturbance of the public peace; being either the doing of a thing to the annoyance of all the king’s subjects, or the neglecting to do a thing which the common good requires…
We have already seen (ante chapter 18) that all disorderly inns or alehouses, bawdy houses, gaming houses, unlicensed or improperly conducted play houses, booths and stages for rope-dancers mountebanks and the like are public nuisances either by reason of their endangering the public peace, or as they affect public morals; or perhaps as being productive of idleness, or attended with public inconvenience; and from the cases already referred to in our sixteenth chapter, it seems to be equally clear that any thing which will endanger the public health, as by exposing persons infected with contagious disorders in places of public resort, is a public nuisance and indictable as such. All scandalous indecencies or open breaches of morality, exhibited in the face of the people, may be here also mentioned as nuisances of an odious and noxious description. And in the case of Sir Charles Sedley, who was indicted for showing himself naked from a balcony in Covent Garden to a great multitude of people, he was sentenced to pay a fine of two thousand marks, to be imprisoned a week, and to give security for his good behaviour for three years. And in a late case where the defendant Crunden was indicted for indecently exposing his naked person when bathing in the sea at Brighton, at a part of the cliff where he might be seen from the windows of the houses though there was no evidence of his having been guilty of any wanton indecency, or having exposed his person beyond what was necessary for the purpose of bathing, yet it was ruled by M’Donald C.B. that as the necessary tendency of his conduct was to outrage decency, and to corrupt the public morals, he was guilty of a misdemeanour: and with reference to the fact relied on for the defendant that whole regiments of soldiers used to bathe there, before the houses were built, he observed that ‘whatever place becomes the habitation of civilized man, there the laws of decency must be enforced.’
Exposing obscure prints or pictures to public view is an offence of a similar description: and not only exhibitions which offend against common decency, but those also which are revolting to public feeling, are the objects of an indictment.”
The existence of a series of offences against decency or morality continued to be recognised in an extensive body of 19th century cases which were summarised in a number of works in the early 20th century.
44. In Halsbury’s Laws of England (1910) (Vol. 9) under the heading “Criminal Law and Procedure” concerning “offences against public order” and under a further subheading Part XI, s.3 “offences against decency and morality - indecent exposure” it is stated:
“1085. The public exhibition of the naked person or any other act of open and notorious lewdness is an indictable misdemeanour in common law. Similar exposure even though in a place of public resort, is not indictable in common law, if it is only visible by one person. The exposure is indictable although the place be not one of public resort, if the place be such that a number of persons can and do see the act.
Bathing in a state of nudity in a place near to which persons frequently pass is indictable.
The punishment for this offence is a fine and imprisonment with or without hard labour.
1086. It is a common law misdemeanour to keep a booth for the purpose of holding indecent exhibitions which persons are invited to come in and see or to show in the public highway a picture or exhibition which, although not indecent in the ordinary sense is nevertheless disgusting and offensive.”
The passage relies on a number of well-known cases such as R v. Sedley (1663) 1 Sid. 168 (also cited in Gabbett) and the Irish case of R. v. Farrell.
45. In O’Connor’s Irish Justices of the Peace (Vol. 2, 2nd Ed.(1915)) at pages 242 to 243), the learned author describes any act done in public in such a way as to offend modesty or cause scandal or injure the morals of the community as a misdemeanour at common law and notes that such acts include the wilful exposure of the naked person, bathing unclothed near and in sight of any place along which the public habitually pass and keeping indecent or disgusting exhibitions which the public can see or are invited to enter.
46. In Russell “A Treatise on Crimes and Misdemeanours” (1909) Vol. 1 under the heading of “Indecent Exposure” at p. 1883 it was stated that any unlawful indecent exposure of the human body in a public place and in the view of several persons of either sex is an indictable misdemeanour punishable by fine or imprisonment with or without hard labour. The author noted that the offence was “in substance only a form of public nuisance by indecent exhibition”. Various authorities in relation to bathing naked in a public place and the Sedley case were cited in support of the existence of the offence and it was noted that much of the discussion in the case law centred on the definition of “public place”.
47. In the editions of Archbold Criminal Pleading Evidence Practice for 1910 (24th Ed.), 1918 (25th Ed.) and 1922 (26th Ed.) offences of this kind were considered under the heading “acts injurious to public decency, morals or order, open and notorious lewdness”. Each edition repeats that it is a misdemeanour indictable at common law to expose the naked person publicly. The authors rely on R. v. Sedley as the starting point of the discussion. They also note the considerable focus in the case-law on what constitutes a “public place” for the purpose of the offence. It is also instructive that the authors under separate headings of indecent exhibitions or obscenity outline the authorities which support the proposition that exhibitions of an obscene, indecent or grossly offensive and disgusting character are regarded as indictable misdemeanours. These authorities are extensively relied upon in the more modern English cases as underpinning the offence of outraging public decency.
48. It is also instructive to note a change in the older editions of Archbold in respect of the framing of the sample indictment. In respect of exposing the naked person as an act injurious to public decency the sample indictment proposed in the 1910 edition is very similar to that set out in the judgment in R v. Farrell quoted above. There is an additional element in that draft which states that the act was done
“to the great scandal of the said liege subjects of our said lady the queen, to
the manifest corruption of their morals, in contempt of our said lady the queen
and her laws, to the evil example of all others in the like case offending, and
against the peace of our lady the queen her crown and dignity.”
The form of indictment proposed in the 1918 and 1922 editions follows the introduction of the Indictments Act 1915. It provides for a “Statement of Offence” which is said to be “exposing the person” and the “Particulars of Offence” are in a rather more simplified form and allege that the accused on a particular date “unlawfully, wilfully and publicly exposed his naked person”. Ashworth J. in Mayling noted that the offence of outraging public decency was included as a sample “Statement of Offence” in the 35th Edition (1962) of Archbold. Though the rules of indictment now applicable in Ireland since the Criminal Justice (Administration) Act 1924 are substantially the same as those applicable under the indictment rules in the 1915 Act in the United Kingdom there is no reported case in which the “Statement of Offence” of “outraging public decency” has been laid in an indictment in this jurisdiction.
49. In Criminal Law of Ireland (outlined) (3rd Ed.,(1940)) the learned author P.A. O’Síocháin S.C. considered the issue of public indecency at p. 103 as follows:
All acts of an indecent nature committed at or near or in sight of any place along which the public habitually pass as of right or by permission are offences under s. 18 of the Criminal Law Amendment Act, 1935. Such acts as indecent exposure of the person where deliberate as to females or when bathing, fall within this section. An act is indecent if it offends modesty, causes scandal or injures the morals of the community. The act must have, however, been visible to more than one person. (R. v. Farrell (1862) (Ir.), 9 Cox. cc 446).
It would appear however that this rule requiring that the indecent act, which, incidentally may be committed by a female as well as by a male person and which need involve an act or indecent exposure of the person, must have been visible to more than one person does not apply to the offence under s. 18 of the Criminal Law Amendment Act 1935 or under s.4 of the Vagrancy Act 1824 (which is confined to indecent exposure by a male person).
Any other offence against public indecency which does not fall within the statutory provisions is still a misdemeanour at common law.
The statutory punishment is a fine not exceeding £2 or imprisonment not exceeding one month or both.
This offence was formerly a misdemeanour at the common law.
The holding of an exhibition of any kind which is indecent is a misdemeanour at the common law.”
It is clear therefore that the learned author considered that indecent acts (including indecent exposure of the person and indecent exhibitions) constituted a misdemeanour at common law in Ireland, a view also shared by the author in O’Connor’s Irish Justices of the Peace quoted above. It is clear also that the learned authors in the early editions of Russell and Archbold considered that acts of indecency whether addressed under the headings of indecent exposure, exhibition or act, which were obscene, grossly offensive, disgusting, repulsive or lewd gave rise to criminal liability as misdemeanours at common law.
50. The Law Reform Commission in its “Report on Vagrancy and Related Offences (LRC 11-1985) (1985) considered the offence of “Indecent Exposure” in Chapter 8. Having reviewed various statutory offences including s. 4 of the Vagrancy Act 1824, the position in relation to the offence was set out as follows:
“8.3 The (statutory) offences considered in the preceding two paragraphs may in general be said to be directed at the sexually motivated male exhibitionist. This is not the only kind of sexual behaviour or exposure of the body in public that comes within the definition of the criminal law. There is also a wider offence of indecent exposure at common law. It is a misdemeanour at common law to do any act in public in such a way as to offend modesty or cause scandal or injure the morals of the community. Following recent cases, the tendency in England now is to express the conduct covered by this misdemeanour as being to commit an act in public which outrages public decency. Smith and Hogan put the matter thus:
“it is a common law misdemeanour to commit an act outraging
public decency in public and in such a way that more than one
person sees, or is at least able to see, the act. The most
common way of committing this offence is by indecently
exposing the body.”
Acts covered by the offence include the following:
exposure of the naked body or the sexual organs, bathing in the nude, sexual intercourse in public and homosexual conduct in public. An indecent exposure seen by one person only and capable of being seen by one person only, is not an offence at common law. It is not clear whether two persons must actually have seen the act or whether it is sufficient that the act was done in a place where two or more persons might have been expected to pass by and see it. The requirement that the act occurs in public has been given a wide interpretation. It has been held, for example, that an act committed in a field out of sight of a public footpath was covered because the place in question was one to which the public habitually went without hindrance although they had no strict legal right to do so. The common law offence is not confined to exposure by males and it is not necessary that the exposure be to a person of the opposite sex or any intention to insult or annoy. Smith and Hogan submits that it must at least be proved that the defendant intended that, or was reckless whether, the exposure might be seen by two or more persons who do not consent to see it.”
The report relies upon most of the 19th century and earlier authorities cited with approval in the Mayling, Knuller and Hamilton cases including the Farrell case.
51. It was recommended in the report that “streaking” and “toplessness” (by females) and other instances of nudity in public should continue to constitute offences as such nudity was offensive to the great majority of people as being contrary to public decency and order. Arguments that such activities are harmless as being mere unconventional behaviour or little more than a prank, were found not to be convincing.
52. It is clear that attitudes to nudity or partial nakedness have varied over the years in different jurisdictions. For example, in Canada, in Jacob (1997) 112 CCC (3d) 1, a young woman was prosecuted for committing an indecent act by walking topless along several city streets on a hot summers day. The Ontario Court of Appeal overturned a conviction on the grounds that there was no evidence of harm that was more than grossly speculative. It found that there was nothing degrading or dehumanising in what the accused did as the scope of her activity was limited and entirely non-commercial. It was noted that no one who was offended was forced to continue looking at her and that her conduct did not exceed the community standard of tolerance when all of the relevant circumstances were taken into account.
53. In Ireland in June 2008, approximately 2,500 people undressed fully at the South Wall, Dublin for the taking of a photograph by celebrated photographic artist, Spencer Tunick. Earlier that month 1,100 people undressed fully for a similar photograph at Blarney Castle, Co. Cork. It does not appear that anybody was prosecuted for outraging public decency though they might have been prosecuted under Crunden (1809) for indecent exposure.
54. In the same year, the Law Reform Commission published a consultation paper Inchoate Offences (LRC CP 48-2008) which considered the offence of conspiracy to outrage public decency. It noted that in Knuller the House of Lords inferred from a number of discrete precedents such as keeping a disorderly house, indecent exhibition and others, the existence of a general common law offence of outraging public decency which had an ancillary inchoate offence of conspiracy to outrage public decency. The report states that there does not appear to be any Irish judicial recognition of this offence and added “there would be a question mark over the constitutionality of an Irish court engaging in a similar enterprise to what the House of Lords did in Knuller - a process of induction where a general offence is extracted from a number of specific offences.”
55. In 2010 the Law Reform Commission published a Report on Inchoate Offences (LRC 99-2010). It noted that it had previously in its consultation paper provisionally recommended the abolition of the offence of conspiracy to outrage public decency and regarded the argument for so doing as compelling. In this report it confirmed its recommendation. It also recommended the abolition of the offences of conspiracy to corrupt public morals and conspiracy to commit a public mischief. In its discussion and evaluation of the specific common law conspiracies it stated:
3.91 These offences pose serious difficulties in terms of legality. Not only do they have the extraordinary function of rendering criminal quite lawful activity merely because two or more agree to pursue it, there is also a great uncertainty as to what constitutes, for example the corruption of public morals. The Commission notes that the two-fold vagueness here: uncertainty as to what “to corrupt” means and uncertainty regarding the ambit of “public morals” and the method for ascertaining public morals. Similar comments can be said about effecting a public mischief and outraging public decency. The problem is that precedent is of little guidance because of the shifting nature of public morals and public decency. In 1973, in Knuller v. DPP the UK House of Lords held that activity designed to promote contact between homosexual men was against public morality. Even if this decision might, at one time, have been followed in Ireland, this could hardly be the case now, particularly in the light of the enactment by the Oireachtas of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 which provides for the recognition in law of the status of civil partnership between same-sex couples. Indeed, if the Knuller case was to be applied, it is at least arguable that quite a number of publications in Ireland and the UK, not to mention social website operators, conspire every day to corrupt public morals.
3.92 The Commission notes that conspiracy to corrupt public morals was recognised as a valid offence by the High Court in 1986. In 1999, however, Geoghegan J stated in the High Court that he was “impressed by the argument that certain types of vague conspiracies which might have been regarded as an offence under the old common law might now be regarded as too uncertain to render them triable under the Constitution.” The Commission suggests that Geoghegan J may have had in mind conspiracy to corrupt public morals, to effect a public mischief, or to outrage public decency. The UK House of Lords, applying the common law, said there was no offence of conspiracy to effect a public mischief but have recognised conspiracy to outrage public decency. These offences are not used in Ireland. Only conspiracy to defraud has any genuine claim to be a useful offence currently in Ireland and the Commission addresses this separately below. The abolition of the common law conspiracies to corrupt public morals, to effect a public mischief, and to outrage public decency would therefore be no loss to the criminal law. Abolition would also, the Commission considers, bring the very welcome development from the point of view of the legality principle by removing doubt about the availability of these exceptionally vague offences. The Commission therefore recommends the abolition of the common law conspiracies to corrupt public morals, to effect a public mischief, and to outrage public decency.”
56. In Criminal Law (Charleton, McDermott, Bolger, Butterworths, 1999), para. 8.233, under the heading “indecency offences”, the learned authors set out a number of offences relating to indecency at common law many of which they state are “out of date and over vague” including the offence of outraging public decency in which the defendant commits an act which is lewd, obscene and disgusting, an outrage to public decency and in public citing the cases of R v. May  91 Cr. App. R. 157 and R v. Gibson  2 Q.B. 619.
57. A more extensive discussion of the offence of outraging public decency is to be found in O’Malley “Sexual Offences” (2nd Ed.) 2013 at paras. 10-08 to 10-17. The learned author poses the question whether the offence was known to Irish law and states as follows:
“10-17 Outraging public decency as a generalised offence was first recognised in R. v. Mayling and later by a majority of the House of Lords in Knuller v. DPP. The English Law Commission recommended its abolition in 1976, a few years after Knuller was decided. Its main reason for so recommending was the unacceptable vagueness of the offence. There is a more fundamental question whether the offence is known to Irish law, given that Knuller is certainly not binding on Irish courts. Lord Reid, who dissented in Knuller on the question whether an offence of outraging public decency existed, said that there were already three well established common law offences covering this broad area: indecent exposure of the person, keeping a disorderly house and the public exhibition of indecent things or acts. Most of the older cases involve one or other of these charges. In the Irish case of R. v. Farrell, which is often quoted in connection with the public dimension of outraging public decency, the charge was actually one of indecent exposure. In R. v. Webb (1848) 3 Cox C.C. 183, which also involved indecent exposure, the charge seems to have been one of public nuisance. …”
O’Malley then outlines the passage from O’Connor’s Irish Justices of the Peace quoted above but notes that the author did not refer specifically to an offence of outraging public decency. He continued:
“All three of the particular offences mentioned by Lord Reid in Knuller are better defined and more readily comprehensible than outraging public decency - though the offence of holding an indecent exhibition or performance is also quite vague. However, taking account of the principle of legality as trebly protected by the common law, the Constitution of Ireland and the European Convention on Human Rights, it is strongly arguable that a generalised offence about outraging public decency is not now recognised by Irish law, if it ever was. Other common law and statutory offences should be adequate to cover all of the conduct that might possibly constitute an outrage on public decency.”
58. I am persuaded on the authorities and the materials set out above that there is under Irish common law a well established indictable offence of intentionally or recklessly committing an indecent act in public. The offence was formerly a misdemeanour at common law and could be prosecuted on indictment. I consider that the offence of indecent exposure is but one type of indecent act that may be prosecuted at common law. Its origin lies in the category of “nuisance offences” as discussed in the textbooks and authorities previously cited. Its purpose is to ensure that people may venture into public without the apprehension that they or their children will be subjected to acts of indecency. It is a reasonable and legitimate goal of the criminal law that a little girl should not be subjected to the sight of a male masturbating in front of her while she is eating her lunch. Indeed, it might be thought that there was a serious lacuna in the criminal law if such behaviour were not to be categorised as criminal. I am satisfied that such indecent acts have been so categorised at common law since at least the beginning of the 19th century in Ireland. The distinction between misdemeanours and felonies has been abolished but the offence is still indictable at common law and is subject to a maximum penalty of imprisonment for two years under ss. 3 and 10 of the Criminal Law Act 1997. However, I am not satisfied that that there is a more wide-ranging or general common law offence under Irish law of outraging public decency as defined in Mayling, Knuller and Hamilton though the offence there defined embraces indecent acts carried out in public. Indeed, the facts of this case are similar to those which resulted in a successful prosecution for outraging public decency in R v. Lunderbech  Crim LR 784 and R v. Read  EWCA Crim 2260. The Irish offence is of more limited scope than the English one.
Committing an Indecent Act in Public
59. The mens rea required to establish the offence of committing an indecent act in public was considered in respect of its subset offence of indecent exposure by Smith and Hogan (3rd Ed., pp. 355-6) who state that that the offence did not require proof of any sexual motive.
“In Crunden D was convicted when he undressed and swam (presumably naked) opposite the East Cliff at Brighton in view of a row of houses. It was held irrelevant that his object was to procure health and enjoy a favourite recreation, not to outrage public decency or corrupt public morals.
It is submitted that it must at least be proved that D intended that, or was reckless whether, the exposure might be seen by two or more persons who do not consent to see it. In Bunyan and Morgan (1884) 1 Cox C.C.74 the recorder seems to have held that negligence would suffice and that, although D had been seeking privacy, it was enough that there was a reasonable probability of his being discovered. This seems to be contrary to principle.”
In R v. Gibson discussed above, the English Court of Appeal decided that in respect of the offence of outraging public decency, there was no need for proof of an intention to do so or that the accused was reckless as to whether he did so. The argument that to require intention or recklessness would enable a man to escape liability “by the very baseness of his own standards” in my view fails to have due regard for the nature and extent of the admissible evidence that may be adduced at trial. It is for a jury to determine from all proven facts, including the surrounding circumstances concerning the accused’s acts, whether an intention or recklessness is established beyond reasonable doubt. I am therefore satisfied that in order to establish the offence of committing an indecent act in public in this jurisdiction, it must be proven that the accused intended to commit the indecent act and to commit it in public or that he was reckless as to those facts. I find some support for this approach in the judgment of the Supreme Court in Corway v. Independent Newspapers (Ireland) Ltd.  4 IR 484. Barrington J. in considering the mens rea that might attach to the crime of blasphemy rejected the view expressed by Lord Scarman (expressing the view of the majority in the House of Lords) in R v. Lemon  A.C. 617 that it was only necessary to prove an intention to publish a blasphemy to establish guilt but that it was not necessary to prove any intention to blaspheme. Under Article 40.6.i of the Constitution the publication of blasphemous, seditious or indecent matter is an offence punishable by law. The learned judge stated that it would be difficult to reconcile Lord Scarman’s approach with the provisions of the Constitution which guaranteed freedom of conscience and religion. It seems to me that the same principle must inform the definition of an offence to publish, utter or exhibit allegedly indecent matter or by analogy the criminalisation of an act as indecent, and more especially if it is sought to prosecute what may be presented as an art exhibit or installation.
60. Indecency as the constituent element of a criminal offence is a concept well-known in the framing of criminal offences. Indecent assault, indecent exposure, offences of gross indecency and others have produced an extensive body of case law. The word “indecent” defines the nature of the act committed. A number of synonyms have been employed to define its meaning in the criminal law and in sample indictments produced in various text-books as already seen. The charge of outraging public decency, in this case reproduces some of those terms in that the applicant was charged with committing an “act of a lewd, obscene and disgusting nature and outraging public decency” by behaving in the manner described. According to the Shorter Oxford English Dictionary (2002) (2nd Ed.) “indecent” means “obscene, lewd, licentious, immodest, vulgar, offensive to acceptable standards of decency, suggesting or tending towards obscenity”; “lewd” means “lascivious, unchaste, indecent, obscene”; “obscene” means “highly offensive, morally repugnant, repulsive, foul, loathsome”: “outrage” means “arouse fierce anger or indignation or deeply offend”. There is very little discernible difference in the nature of the conduct described by these words; their meaning is plain. As Lord Reid noted in his dissenting judgment in Knuller, it does not add very much to the description of an act as indecent to say that it is “offensive”, “repugnant” or “an outrage” to public decency. It may be that some such acts are viewed as more serious than others because their nature or location is such as to cause more offence. This may be reflected in sentencing post conviction if, for example, the offence was one of public exposure in a playground in the presence of children. However, it is submitted that the scope of the offence (if it exists) and in particular, the concept of indecency is too vague and uncertain to be consistent with the provisions of the Constitution.
61. In P.P. v. The Judges of the Circuit Court & Ors (unreported High Court, Moriarty J., 31st July 2015) the applicant challenged the constitutional consistency of s.11 of the Offences Against the Person Act, 1861 on the ground, inter alia, that the term “gross indecency” which defined the offence was impermissibly vague and was not susceptible to definition. Moriarty J. in upholding the section stated:
“38. … I have come to the conclusion that the inherent problems of formulating a precise and comprehensive definition of gross indecency, taking into account changes in social attitudes and the multiplicity of situations of potential relevance that could arise, are such that it was not incumbent upon legislatures to devise such a definition. Like the other instances propounded by Professor O’Malley in his submissions, I believe the concept of gross indecency is neither susceptible to nor requires a discursive definition…
39. …. The code of sexual offences, whether Statutory or Common Law, in its entirety must necessarily make provision for a wide range of possible crimes, some, like heterosexual rape, necessarily gender specific. Whether, in relation to alleged perpetrator or victim, a “one gender fits all” concept is at all feasible must be viewed as in the vast preponderance of instances an inoperable and unrealistic aspiration…”
The learned judge emphasised the State’s legitimate interest in prohibiting indecent conduct, particularly when directed against young people and the well established principle stated by Hardiman J. (delivering the judgment of the Supreme Court) in The People (D.P.P.) v. Cagney 2 IR 111:
“34. From a legal and constitutional point of view it is a fundamental value, that a citizen should know, or at least be able to find out, with some considerable measure of certainty, what precisely is prohibited and what is lawful.”
62. The judgment of Moriarty J was upheld by the Court of Appeal  IECA 82. Birmingham J., delivering the judgment of the court stated:
“39. … the concept of indecency is one that is long familiar to the criminal law. The standard charge delivered by judges to juries every day of the week tells them that the offence of sexual assault was previously known as indecent assault, and defined as an assault accompanied by circumstances of indecency being a matter for them as jurors…
42. The nature of the conduct alleged does not provide scope for significant disagreement as to what is indecent. Right thinking people generally are unlikely to have any real doubt but that the alleged conduct, if it occurred, was grossly indecent. If the trial proceeds, the jury is unlikely to be troubled greatly by whether the acts amounted to gross indecency, rather the issue is likely to be whether the prosecution has proved beyond reasonable doubt that the facts alleged actually occurred.
43. While it may be possible to conceive of borderline or marginal cases, and such cases can safely be left to the good sense of juries if prosecuted, in the great majority of cases jurors would have no difficulty in determining what is grossly indecent.”
63. The indecent act must be committed in public. The offence is not established if seen by one person only. The act must have been seen or capable of being seen by two or more persons. It must be committed in a public place or a place to which the public have access or in a place where what is done is capable of public view. It is not necessary to establish that the act was seen by two or more persons actually present as long as it was capable of being seen.
64. I am satisfied that the offence of committing an act of public indecency does not fail the test of legal certainty because of difficulties surrounding its definition. Its parameters are sufficiently precise: the concept of indecency is well known and it will be for a jury to determine whether the acts alleged were indecent. However, it does not seem to me that the definition of the offence of “outraging” public decency as described in the English cases is so confined. It attempts to consolidate a body of authority in respect of a number of offences into one offence and also appears to criminalise other acts, beyond the scope of those offences and the Irish offence identified above. I am persuaded that Lord Reid’s view is correct and that the adoption in this jurisdiction of the offence of outraging public decency as set out in Knuller would amount to the creation of a new offence, albeit that some of its elements are to be found in previously recognised forms of the offence. The court is satisfied that the offence of outraging public decency as described in the English case-law is very widely drawn and is not known to Irish law. The acts which he allegedly committed, however, fall clearly within the ambit of the Irish common law offence of committing an indecent act in public.
65. I am also satisfied that a declaration by this court of the existence of the offence of committing an act of outraging public decency at common law to cover significantly different and additional circumstances would be contrary to the spirit and express wording of Article 15.2 of the Constitution which vests the sole and exclusive power of making laws for the State in the Oireachtas. The court should be very sparing in the use of common law principles to expand the scope of the criminal law by declaring the existence of criminal offences. The separation of powers under the constitution, the modern democratic process and nature of the State and informed debate concerning law reform instigated by the Oireachtas by the creation of the Law Reform Commission, render the court’s intervention to expand or declare the criminal law less appropriate than it may have been in the 18th and 19th centuries. I do not therefore consider that it would, for example, be appropriate to extend the common law as the House of Lords did in Knuller to cover a publication such as that which was the subject of the Knuller prosecution. It seems to me that it is for the Oireachtas to determine whether publications of this kind should be the subject of criminal sanction having regard to the provisions of Article 15 when considered with Article 40.6.i of the Constitution (see Barrington J. in Corway at p. 502).
66. As already noted by the Law Reform Commission, the changing social and legal understanding and acceptance of same-sex relationships has changed radically over the last thirty to forty years in Ireland. This underlines the importance of judicial restraint in extending the criminal law into an area of personal life and rights in which the legislature has effected change and with which the decision in Knuller is, in my view, inconsistent. The Criminal Law (Sexual Offences) Act 1993 decriminalised homosexual activity. Civil partnerships between same sex couples were recognised in the 2010 Act to which reference has already been made. The People in passing the 34th Amendment to the Constitution accepted that a marriage could be contracted by two persons of the same sex. There is no reported Irish case in respect of the offence of outraging public decency since the foundation of the State. Against that background, it would be straining the limits of judicial authority to declare the existence of an offence derived from numerous old cases arising from disparate facts on the basis of an English decision that might properly be regarded as inconsistent with the Constitution. Those older authorities clearly establish that there is a limited well-defined common law offence in Ireland of committing an act of public indecency with an identifiable rationale. The offence has already been recognised and has been the subject of enforcement over many years. It does not require the declaration of a new offence in order to be enforced effectively. The older cases should not be used as a vehicle for the expansion of criminal liability by the courts.
Statutory Offences: Conformity with the Constitution
67. A number of statutes have been enacted which criminalised acts considered to be offensive to public decency or morality. The offence of indecent exposure was addressed in a number of 19th century statutes. These include s. 4 of the Vagrancy Act, 1824 which created a summary offence of indecent public exposure by a male of his person (meaning “penis” but not any other part of the body: Evans v. Ewel  2 All.E.R.22) to a female. Section 5 of the Summary Jurisdiction (Ireland) (Amendment)(Act) 1871, s. 28 of the Town Police Causes Act 1847 and s.72 of the Towns Improvement (Ireland) Act 1854 created summary offences of indecent exposure in a public place with low penalties.
68. Section 18 of the Criminal Law Amendment Act 1935 (“the 1935 Act”) as amended by s.18 of the Criminal Law (Rape) (Amendment) Act 1990 created a summary offence of public indecency. This was an attempt to modernise and to some degree codify the law in respect of public indecency. The Oireachtas was exercising its law making power in this difficult area. Its subsequent history provides further discouragement to judicial declarations of common law offences. It provided:
“Every person who shall commit, at or near and inside of any place along which the public habitually pass as of right or by permission any act in such a way as to offend modesty or cause scandal or injure the morals of the community shall be guilty of an offence under this section and shall on summary conviction be liable to a fine not exceeding (£500), or at the discretion of the court to imprisonment for any term not exceeding (six months).”
69. The attempt was unsuccessful. The Oireachtas attempted to deal with offences against public decency by criminalising public acts which “offend modesty”, “cause scandal” or “injure the morals” of the community. As already stated, the section was declared invalid having regard to the provisions of the constitution in a series of cases by Hogan J. The learned judge concluded in Douglas v. Director of Public Prosecutions IEHC 343 that the offences of causing scandal and injuring the morals of the community were “hopelessly and irremediably vague” and lacked any clear principles and policies in respect of the scope of the conduct prohibited. He found that they lent themselves to arbitrary and inconsistent application. They failed to distinguish conduct which was prohibited from that which was not. In McInerney and Curtis v. Director of Public Prosecutions IEHC 181 Hogan J. held that the remaining element of the offence under s.18 was also constitutionally invalid.
70. Hogan J. discussed and contrasted the provisions of the offence of “outraging public decency” as defined by the English authorities with s. 18 in the Douglas case but found no true analogy between the two. It is clear that the existence of the common law offence was clearly presumed in the course of argument and the judgment but I do not consider that the case is authority for the proposition that the Knuller construct of the offence of outraging public decency was definitively determined to exist under Irish common law nor does that issue appear to have been argued. However, the learned judge stated the following concerning the offence:
“55. The critical feature of this offence…. so far as the present case is concerned is that it is indictable, so that the determination of whether community standard has been outrageously violated will be determined by a jury. As Hamilton P. noted in Attorney General (Society for the Protection of the Unborn Child Ltd) v. Open Door Counselling Ltd  I.R. 593, 615 in respect of an offence of this kind:
‘When a case turns on public morals or standards, the question is for the jury though, of course, the judge rules whether there is evidence upon which they can find the case proved.’
56. The fact, therefore, that the jury is the ultimate judge in such cases of whether community standards have been so violated is itself a factor which points towards the existence of an objective and ascertainable standard. That protection is noticeably absent here since by contrast, the offence created by s.18 is only triable summarily, so that the accused has no right to opt for jury trial”
71. The learned judge revisited the issue in the McInerney and Curtis case and acknowledged that this aspect of his judgment may have to be re-examined in that it might be he may have been
“altogether too optimistic regarding the prospects of that particular common law offence surviving an appropriate constitutional challenge or the fact that in that example a jury would determine whether community standards had been violated pointed towards the existence of an objective or ascertainable standard.”
72. There are however, as is clear from numerous authorities, including most recently PP quoted above, many offences which may be committed in widely differing ways. These do not always lend themselves to very precise definition which might, if insisted upon, preclude the criminalisation of obnoxious public behaviour to an extent that would bring the criminal law into disrepute with the community for whom its protection exists. As Kearns P. pointed out in Director of Public Prosecutions v. Fitzsimons IEHC 403 there are certain types of conduct which are “self evidently and … notoriously criminal in nature”. In that case the accused refused a request by a garda to desist from engaging in an offence by pulling down his trousers and underwear and exposing himself to passing members of the public. It was submitted that the prosecution must fail because it was a legal requirement of the garda to indicate in a basic way that she was making a lawful demand which would be followed by probable consequences for committing an offence if there were a failure to comply. Kearns P. stated:
“… the behaviour of the defendant in exposing himself in a public place, presumably with the intention of humiliating two female members of An Garda Síochána in front of his companions, can only be regarded as conduct malum in se. Indeed such behaviour could have attracted other more serious charges for indecent exposure. The Court would venture to suggest that, from time immemorial, such conduct and behaviour has been regarded as disgraceful, offensive and criminal in countries of common law jurisdiction.”
The court was satisfied that the conduct of the defendant was so evidently and notoriously criminal in nature that no warning was required in the context of the events of the night.
73. I am satisfied that the alleged behaviour of the applicant is of a similar type to that discussed in Fitzsimons and may be regarded as malum in se. It is prima facie the type of lewd, obscene and disgusting behaviour for which this offence was conceived and developed by the judges at common law. The behaviour to which the offence is directed remains of as much concern in the twenty first century as it was in the seventeenth to nineteenth centuries, if not more so, having regard to the fact that the particular object of the alleged behaviour was a nine year old child in a public restaurant in the company of her family. The rationale for the existence of the offence that reasonable people should be able to venture into public without their sense of decency being offended remains the same. Although the offence of committing an indecent act in public may be committed in different ways I am satisfied that the acts constituting the offence are easily identifiable and understood. Indeed in this case it is clear from the interview conducted by the investigating garda with the applicant that he fully understood the wrongfulness of his behaviour. It cannot be realistically argued that the applicant in this case did not, or that any other reasonable person would not know or anticipate that the behaviour alleged was indecent lewd, obscene or disgusting, was so regarded by reasonable people and was criminal. It has been considered to be so for centuries.
74. I am therefore satisfied that the constitutional flaws identified by Hogan J. in s. 18 do not arise in respect of the common law offence of committing an indecent act in public. The offence is defined by well-established precedent based on readily identifiable facts and circumstances. This is one of those instances when it becomes necessary because of the wide-ranging nature of human behaviour to define an offence with a lesser degree of certainty than might be appropriate in other types of behaviour but that does not necessarily give rise to constitutional infirmity.
75. I am satisfied that this case is distinguishable from the provisions of section 4 of the Vagrancy Act 1824 which were found to be inconsistent with the provisions of the constitution in King v. Attorney General  I.R. 233. Kenny J stated the applicable principle as follows at pp 263-264 citing The People (Attorney General) v. Edge  I.R. 155 and The Attorney General v. Cunningham  I.R. 28 :
“It is a fundamental feature of our system of government by law (and not by decree or diktat) that citizens may be convicted only of offences which have been specified with precision by the judges who made the common law, or of offences, which created by statute are expressed without ambiguity….There is Irish authority for the proposition that a person may be convicted of a criminal offence only if the ingredients of and the acts constituting, the offence are specified with precision and clarity”
I am satisfied that the Irish common law offence is in accordance with this principle.
76. The principle was applied by O’Neill J in Kershaw v. Ireland & Others  IEHC 166 in rejecting the submission that s.6 of the Criminal Justice (Public Order) Act 1994 was so vague an offence as to be in breach of Article 38.1 of the Constitution. Section 6 provides that it is an offence for any person in a public place “to use or engage in any threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or being reckless to whether a breach of the peace may be occasioned”. The learned judge was satisfied that these words gave to the section “a certainty and precision which… excludes the kind of vagueness which could lead to innocent behaviour being criminalised” such as arose in the s.4 offence of loitering with intent (see also Cox v. Director of Public Prosecutions IEHC 642).
77. I am satisfied that the offence of committing an indecent act in public was part of the common law of Ireland in 1922 and has full force and effect by reason of Article 50.1 of the Constitution and is not inconsistent with Articles 15, 38.1, 40.1, or 40.4.1 thereof. The clarity and certainty required in the framing of the offence is provided by the case-law by which it was declared and established by the judiciary over the centuries.
European Convention on Human Rights
78. The principle of legal certainty is essential to the rights guaranteed under the European Convention on Human Rights in Articles 5 and 7. In particular, Article 7(1) provides that no one shall be held guilty of any criminal offence on account of any act or omission which does not constitute a criminal offence under national or international law at the time when it was committed. This has been found by the European Court of Human Rights to embody the principle that only law may define a crime and prescribe a penalty from which it follows that an offence must be clearly defined. In The Sunday Times v. United Kingdom (No. 1) [1979-80] 2 EHRR 245 at para. 59 the court recognised that this rule was not inflexible. The court stated:
“… whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep apace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice.”
79. In Steel and others v. United Kingdom (1998) 28 EHRR 603 the court considered the lawfulness of the arrest of a number of demonstrators for breach of the peace. The court rejected the argument that it was unclear what conduct would trigger an order to be bound over to keep the peace and be of good behaviour and secondly what conduct would amount to a breach of such an order. It was submitted that the grounds for the binding over were vague. The court stated:
“54. … it is essential that the applicable national law meet the standard of “lawfulness” set by the Convention, which requires that all law, whether written or unwritten, be sufficiently precise to allow the citizen … if need be, with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.
55. In this connection, the court observes that the concept of breach of the peace has been clarified by the English courts over the last two decades, to the extent that it is now sufficiently established that a breach of the peace is committed only when an individual causes harm, or appears likely to cause harm, to persons or property or acts in a manner the natural consequence of which would be to provoke others to violence. It is also clear that a person may be arrested for causing a breach of the peace or where it is reasonably apprehended that he or she is likely to cause a breach of the peace.
Accordingly, the court considers that the relevant legal rules provided sufficient guidance and were formulated with the degree of precision required by the Convention.”
The court was satisfied that English law was sufficiently clear and established that where magistrates were satisfied on the basis of admissible evidence, that an individual has committed a breach of the peace and that there is a real risk that he or she will do so again, the accused may be required to enter into recognizances to keep the peace or be of good behaviour. It was also clear that if the accused refused to comply with the order he or she might be committed to prison for up to six months. The court was satisfied that the applicants could reasonably have foreseen that if they acted in a manner the natural consequence of which would be to provoke others to violence they might be ordered to be bound over to keep the peace and that if they refused they might be committed to prison. The court was also satisfied that the orders binding over the accused were expressed in rather vague and general terms and the expression “to be of good behaviour” was particularly imprecise and offered little guidance to the person bound over as to the type of conduct which would amount to a breach of the order. However, the court also accepted that the binding-over order was imposed after a finding that the accused had committed a breach of the peace. In all the circumstances, the court was satisfied that it was made sufficiently clear that the applicants were being requested to agree to refrain from causing further, similar breaches of the peace during the ensuing twelve months.
80. The issue was further considered in Hashman and Harrup v. United Kingdom(2000) 30 EHRR 241. The court considered whether an order binding over defendants to be “of good behaviour” was a lawful interference with their right to freedom of expression under Article 10 of the Convention. The court held that the conditions of the binding over failed to satisfy the certainty requirement. It stated at para. 38:
“The court next notes that conduct contra bonos mores is defined as behaviour which is ‘wrong rather than right in the judgment of the majority of contemporary fellow citizens’. It cannot agree with the government that this definition has the same objective element as conduct ‘likely to cause annoyance’, which was at issue in the case of Chorherr. The court considers that the question of whether conduct is ‘likely to cause annoyance’ is a question which goes to the very heart of the nature of the conduct proscribed: it is conduct whose likely consequence is the annoyance of others. Similarly, the definition of breach of the peace given in the case of Percy v. Director of Public Prosecutions  1 WLR 1382 - that it includes conduct the natural consequences of which would be to provoke others to violence - also describes behaviour by reference to its effects. Conduct which is ‘wrong rather than right in the judgment of the majority of contemporary fellow citizens’, by contrast, is conduct which is not described at all, but merely expressed to be ‘wrong’ in the opinion of a majority of citizens.”
The binding over order was therefore held to be too vague to be categorised as “law” because it failed to indicate a description of the conduct to which it applied.
81. It should be noted that in Chorherr v. Austria(1994) 17 EHRR 358 (referred to by the court) the applicant had been arrested and fined for an offence of causing a breach of the peace “by conduct likely to cause annoyance” when mounting a demonstration during a military ceremony. The court in deciding whether there had been a breach of Article 5 or justifiable interference with right to freedom of expression under Article 10 stated:
“The court reiterates that the level of precision required of the domestic legislation - which cannot in any case provide for every eventuality - depends to a considerable degree on the content of the instrument considered, the field it is designed to cover and the number and status of those to whom it is addressed.”
In that case it was concluded that the applicant was in a position to foresee to a reasonable extent the risks inherent in his conduct when he refused to comply with the police request to stop distributing leaflets.
“The court reiterates that the relevant national law must be formulated with sufficient precision to enable the persons concerned - if need be with appropriate legal advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Whilst certainty is highly desirable, it may entail excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are a question of practice.”
83. I am satisfied that the offence of committing an indecent act in public under Irish law meets the legal certainty test for Articles 5 and 7 of the Convention as interpreted in the jurisprudence of the European Court of Human Rights. The ingredients of the offence as outlined above provide a sufficient warning as to further conduct. The jurisprudence of the Irish courts and the European Court of Human Rights recognise the simple reality that mathematical certainty is not either required or possible in respect of the framing of the offence. As is clear from much of the case law, the core concept of indecency is one which is well understood but it is not possible to define every conceivable act or omission that is prohibited by the offence. However, I am satisfied that it is possible to ascertain with a reasonable degree of certainty what is permitted and what is not. As noted by Hogan J. in Douglas at par.26:
“It must be here acknowledged, … that in a common law system such as ours, absolute precision is not possible. One may therefore have perfectly general laws which can be adapted to new sets of facts within certain defined parameters, provided that the laws themselves articulate clear and objective standards. …
84. I am not satisfied that the offence of “outraging public decency contrary to common law” as formulated by the English courts in the mid to late twentieth century is an offence known under Irish common law. The formulation of the charge laid in this case was based on the definition which evolved in the English courts. It is an offence that was not the subject of any reported decision in this jurisdiction since the foundation of the State.
85. The court is satisfied that an offence exists at common law in Ireland of “committing an indecent act in public”. The constituent elements of the offence are that the prosecution in order to succeed must establish that:
(a) the accused committed an indecent act;
(b) the indecent act was committed intentionally or recklessly;
(c) the act was committed in public i.e. the act must have been seen or capable of being seen by two or more persons and committed in a public place or a place to which the public have access or in a place where what is done is capable of public view. It is not necessary to establish that the act was seen by two or more persons actually present as long as it was capable of being seen;
(d) the accused intended to commit the act or was reckless as to whether the act was committed, in public.
The offence is an indictable offence at common law.
86. The court is satisfied that this offence differs from the English common law offence of outraging public decency in that:
(a) it does not require proof of an additional element of “outraging” public decency;
(b) the English common law offence does not require the prosecution to establish that the accused intended or was reckless as to whether the act was indecent; and
(c) the English offence seeks to expand the scope of offending to acts not hitherto contemplated such as publications as in Knuller whereas the Irish offence is confined to indecent acts rooted in pre-1922 case law and including acts of indecent exposure or exhibition.
87. The Irish common law offence as defined above is consistent with the provisions of the constitution and in particular articles 15, 38.1, 40.1 and 40.4.1 thereof. Therefore, the court is satisfied that it should restrain the further prosecution of the offence of “outraging public decency” laid against the applicant in the District Court.
88. I do not consider it necessary or appropriate to consider the other issues raised in argument for example, in respect of the applicant’s bail terms or his extradition pursuant to the European Arrest Warrants Act 2003. The offence charged may not proceed. It is a matter for the Director of Public Prosecutions to consider whether to prosecute the applicant for the offence of committing an indecent act in public or whether that is now possible and to take such steps in that regard as she may think appropriate. Future behaviour of the type alleged against the applicant in this case may of course, be subject to prosecution under ss. 5 and 45 of the Criminal Law (Sexual Offences) Act, 2017.