A man charged with urinating in public has been granted leave to challenge the constitutionality of the offence of indecent exposure.
Tezaur Bita is alleged to have parked his car on the Old Nangor Road in the early hours of August 27th, 2015, and relieved himself in bushes. This, it was claimed, was witnessed by a garda who arrested him.
He was charged with committing an act contrary to public decency under section 5 of the Summary Jurisdiction (Ireland) Amendment Act 1871.
Lawyers for Mr Bita, of Belgard Road, Tallaght, Dublin 24, applied to the High Court to have his District Court trial on the charge of indecent exposure prohibited.
Counsel for Mr Bita, Conor Devally SC, argued that the “Victorian” 1871 offence was unconstitutional because it was too vague and uncertain.
The offence Mr Bita is charged with is similar to the offence of causing scandal and injuring the morals of the community, which had previously been struck down and deemed unconstitutional by the courts, counsel had submitted in the High Court.
Dismissed
Mr Bita’s bid to seek prohibition was dismissed by the High Court in May. He successfully appealed that decision on Tuesday and the case was made returnable to the High Court in December.
Granting relief in the Court of Appeal, Mr Justice George Birmingham said the substantive ground which was sought to be canvassed – that the section is impermissibly vague and uncertain and therefor unconstitutional – "is one that is arguable".
Mr Justice Birmingham said the fact that he was minded to grant leave did not preclude the responding authorities from arguing at the hearing that the relief sought was disproportionate or sought at an inappropriate stage.
It may be that the judge was influenced by a belief that the proceedings were disproportionate and without merit, Mr Justice Birmingham said.
“I would share a sense of unease... Phrases such as ‘sledgehammer to crack a nut’ come to mind.”
Mr Justice Garrett Sheehan and Mr Justice Alan Mahon agreed with Mr Justice Birmingham's judgment.
‘Overkill’
Previously in the High Court, Mr Justice Richard Humphreys said he was not prepared to grant Mr Bita permission to bring his challenge on grounds including that he had not exhausted all the remedies open to him.
The judge said it would be “overkill” to ask the court to strike down a law in circumstances where Mr Bita may well not be convicted under the law.
He said Mr Bita’s defence is that he was answering an urgent call of nature, discretely, by availing of the bushes.
But merely exposing oneself in a public place does not constitute an offence, Mr Justice Humphreys had said. There were many counter examples where to do so is manifestly not indecent – discrete skinny dipping, certain saunas, exposure for the purposes of theatre, and so on.
However, public urination is capable of being indecent if carried out in an indiscreet manner. There is quite a difference between a person “who urinates in the bushes” and “one who does on to the public roadway”, the judge said.
While the discreet public urinator is a world away from the category of those accused of flashing and public masturbation, it can be in certain circumstances an anti-social act.