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 27 August 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, to wit urinating in public under section 5 of the Summary Jurisdiction (Ireland) Amendment Act 1871.
Lawyers for Bita, of Tallaght, Dublin 24, applied to the High Court to have his District Court trial on the charge of indecent exposure prohibited.
Counsel for Bita, Conor Devally SC, argued that the “Victorian” 1871 offence was unconstitutional because it was too vague and uncertain.
The offence 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.
Bita’s bid to seek prohibition was dismissed by the High Court in May. He successfully appealed that decision today and the case was made returnable to the High Court in December.
Relief granted
Granting relief in the Court of Appeal today, Mr Justice George Birmingham said the substantive ground which was sought to be canvassed – that the section is impermissibly vague and uncertain and therefore unconstitutional – “is one that is arguable”.
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, Justice Birmingham said.
“I would share a sense of unease… phrases such as ‘sledgehammer to crack a nut’ come to mind.”
The initiation of unnecessary and disproportionate proceedings should not be encouraged, he added.
Mr Justice Garrett Sheehan and Mr Justice Alan Mahon stated their agreement with Justice Birmingham’s judgement that leave should be granted.
In the High Court, Mr Justice Richard Humphreys said he was not prepared to grant 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 Bita may well not be convicted under the law.
Call of nature
The judge said that Mr Bita’s defence is that he was answering an urgent call of nature, discreetly, by availing of the bushes.
But merely exposing oneself in a public place does not constitute an offence, Justice Humphreys had said. There were many counter examples where to do so is manifestly not indecent.
These “life affirming activities” include use of certain bathing places, discrete skinny dipping, certain saunas, exposure for the purposes of theatre, avant-garde performance art, discreet artistic photography and so on, the judge had said.
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 onto 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 antisocial act.
The person who urinates in public because they “cannot be bothered to avail of a reasonable alternative is engaging in anti-social behaviour” and could be committing a criminal offence. It all depends on the circumstances, the judge said.
Mr Justice Humphreys had said leave to seek prohibition was not appropriate, a decision which was reversed by the Court of Appeal today.
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