Thursday 23 November 2017

Prosecutions for men accused of 'exposing themselves' will not go ahead following High Court ruling

Ouachek was arrested in Germany on February 19, 2013, and was extradited back to Ireland the following month
Ouachek was arrested in Germany on February 19, 2013, and was extradited back to Ireland the following month

Aodhan O'Faolain

PROSECUTIONS against men for exposing themselves in public will not go ahead after the High Court struck down as unconstitutional the criminal offence of "offending modesty".

Mr Justice Gerard Hogan has ruled that part of the Criminal Law (Amendment) Act 1935  as amended by the Criminal Law (Rape)(Amendment Act) 1990,  which created the "offending modesty" offence is unconstitutional.

The Judge said the offence, under Section 18 of the Act, was "hopelessly vague" and uncertain. The section contained no clear standard of conduct prohibited by law and lacked "any clear principles and policies," he said.

The judge made his ruling in relation to two separate actions brought against the DPP and the State by Kevin McInerney and Brendan Curtis.

Both were charged with the offence of offending modesty, which carries a maximum of six months in prison and a fine not exceeding €640.

Mr Curtis, Martry, Kells, Co Meath, was awaiting trial before the District Court for allegedly removing his penis from his trousers as groups of females walked past him at Camden Place, Dublin, on May 26 last.

Mr McInerney, of Whitechurch View, Ballyboden, Rathfarnham, Dublin, is awaiting an appeal in the Circuit Court of his conviction for the same offence after he alleged to have been observed masturbating while sitting in his car at Rathfarnham Shopping Centre on September 3, 2011, while members of the public passed by.

In their High Court proceedings, both men claimed the charges against them should be struck out on the grounds including that Mr Justice Hogan had previously ruled that other portions of section 18 of the Act, namely that the offences of causing scandal or injuring the morals of the community, were unconstitutional.

In that case, the judge ruled the offences challenged were "hopelessly and irremediably vague," and lacked any clear principles and policies" in relation to the scope of what conduct is prohibited.

As a follow on from the judge's decision they argued the offence of offending modesty was vague and uncertain in its application and was contrary to fundamental principle of legal certainty in criminal matters.

The State had opposed the men's applications arguing that in contrast to the offences of causing scandal and injuring the morals of the community the offence of offending modesty contained clear and recognisable standards.

In his judgment Mr Justice Hogan agreed with lawyers for the two men and held the the remaining offence under section 18 "must now fall in its entirety as unconstitutional."

The offence of offending modesty he said was also "hopelessly vague," "subjective in character" and "invited arbitrary and inconsistent application."

The judge said his decision was not to suggest that the Oireachtas could not legislate to create new offences which would address the alleged conduct of the two men. 

What is required, he added, was that any new legislation must contain adequate principles and policies that meet the different requirements of the Constitution.

Irish Independent

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