A PROTEST IS being planned today outside the offices of the DPP in relation to the ongoing use of graphic abortion imagery at Irish hospitals and elsewhere.

The imagery has been displayed by a group called the Irish Centre for Bio-Ethical Reform (ICBR) and was criticised by both sides during the referendum campaign.

Activist group Radical Queers Resist has been organising counter protests against the ICBR and has been attempting to block the imagery from public view.

As part of these efforts, Radical Queers Resists is today protesting outside the Director of Public Prosecutions saying that the use of such imagery is a crime and should be prevented by gardaí.

“It is disgusting that the people of this island are subject to this retraumatisation and exposed to such distressingly obscene imagery, while An Garda Síochána are told by the DPP that they cannot remove the images because they are “inoffensive” and to just ensure no physical violence breaks out,” the group said in a statement ahead of today’s protest.

So what is the legal situation with regards to the use of such imagery?

Those who have been calling for gardaí to intervene and remove the imagery have pointed to Section 7 of the Criminal Justice (Public Order) Act, saying that it could be used.

This is what the section states:

(1) It shall be an offence for any person in a public place to distribute or display any writing, sign or visible representation which is threatening, abusive, insulting or obscene with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace may be occasioned.(2) A person who is guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding £500 or to imprisonment for a term not exceeding three months or to both.

Subsection (1) above raises a number of questions in relation to the abortion imagery.

The first is whether such imagery could be construed as “threatening, abusive, insulting or obscene”.

The ICBR has repeatedly defended the use of the imagery but it itself accepts that the images are “horrific”, insisting that it represents “the reality of abortion”.

Whether or not the images are “obscene”, however, is the question.

In a factsheet about public order offences, the Citizens Information Board pointed out that determining something as “obscene” may be difficult.

“The main difficulty which arises in Section 7 is the fact that while something may be obscene to one person it might be thought to be quite normal by another person,” the board states.

Despite this, courts are able to decide whether an image is perceived as obscene by the average person.

The Citizens Information Board goes on to describe how the issue of sensitivity was dealt with by the European Court of Human Rights in the 1991 case of Muller v. Switzerland:

That case considered a conviction in Switzerland against Mr Muller for displaying obscene paintings. The paintings depicted, in a crude manner, sexual relations between men and animals. The court held that the paintings were liable or likely to grossly offend the sense of sexual propriety of persons of ordinary sensitivity. It can therefore be said that the courts will apply the “ordinary man” test when deciding if the distribution or display of material is obscene or not.

Whether or not the courts were to determine that the abortion imagery was indeed obscene, there is a second question raised by the text of the Public Order Act.

This is whether or not the individual intended to provoke a breach of the peace, or whether they were “reckless as to whether a breach of the peace may be occasioned”.

The ICBR maintains that it is not its intention to provoke a breach of the peace, but is it possible to argue that they were reckless in their actions?

Recklessness is a complicated concept in but legal blog Irish Law summarises it as being when an individual engages in “conduct that involves taking an unjustifiable risk of causing harm to others”.

It notes that it in deciding on whether something is justifiable, a court may consider the “social utility of the activity involved”.

Take it down

Aside from the possibility of conviction under Section 7 of the act, Section 8 sets out that a member of An Garda Síochana may direct an individual to desist from an activity if they suspect that the activity may be in breach of the Public Order Act.

Failure to comply with the direction of the garda is an offence under Section 8.

A garda may make this direction if they suspect “with reasonable cause” that the individual is in breach of Section 7.

Today’s protest outside the office’s of the DPP by Radical Queers Resist is due to begin at 2pm today.

In response to queries by TheJournal.ie, the office of the DPP had no comment to make about the protest or the use of Section 7 in relation to abortion imagery.