Man who allegedly masturbated in front of a family having lunch wins High Court order halting prosecution
A MAN accused of masturbating in front of a family having lunch in a Dublin restaurant has won a High Court order halting his prosecution for "outraging public decency".
However, Mr Justice Paul McDermott said David Douglas could be charged with the offence of "committing an indecent act in public" which, like the outraging decency charge, can be tried on indictment.
This means it could go before a jury in the Circuit Court where penalties are heavier.
Douglas, with an address at Vale View Lawn, the Park, Cabinteely, Co Dublin, was charged with committing the offence outside the Hard Rock Café, Temple Bar, on January 3, 2013.
It is alleged a garda saw him watching a family of four, including a nine year old girl and a boy, who were sitting at the window in the restaurant.
He allegedly positioned himself facing the girl and began masturbating under his trousers.
He was arrested, charged with offending modesty in public and bailed.
He brought a legal challenge against that charge on grounds that it had been ruled unconstitutional in a separate but similar case decided in 2013.
Later, in October 2013, that charge was quashed by the High Court.
In the meantime, the DPP had instructed a new charge of "outraging public decency" be brought. Douglas was in Northern Ireland by this stage and after securing his extradition back here, the new charge was brought against him in June 2014.
He then brought a further High Court challenge seeking orders prohibiting his prosecution primarily on grounds that the offence of outraging public decency, which arose out of English common law, did not survive the enactment of our Constitution in 1937.
He also claimed it was an abuse of process as it related to the earlier indecency charge which he was challenging and which was ultimately quashed in October 2014.
Mr Justice McDermott ruled the offence of outraging public decency was based on a definition which evolved in the English courts but it was not the subject of any reported decision here since the foundation of the State.
He was satisfied to restrain his prosecution on the "outraging" charge.
However, he was also satisfied an indictable offence of committing an indecent act in public exists in common law in Ireland. It differs from the English outraging public decency offence in that it does not require an additional element of "outraging" decency, he said.
It was now a matter for the DPP to consider whether to prosecute him for the offence of committing an indecent act in public "or whether it is now possible to take such steps in that regard as she may think appropriate".
He noted future behaviour of this type may be subject to the new 2017 Criminal Law (Sexual Offences) Act.
Earlier, the judge said there is under Irish law a well established indictable offence of intentionally or recklessly committing an indecent act in public.
Its purpose is to ensure people may venture into public without the apprehension that they or their children may 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", he said.
He was however satisfied that for the court to declare the existence of an "outraging of public decency" offence to cover significantly different and additional circumstances would be contrary to Article 15.2 of the Constitution which vests sole law making powers in the Oireachtas.