Charges against a man allegedly observed massaging his penis through his clothing in a Dublin city centre cafe on two consecutive days cannot proceed after a High Court judge ruled the offences of causing scandal and injuring the morals of the community are unconstitutional.
Mr Justice Gerard Hogan ruled the offences alleged against David Douglas were unconstitutional due to being insufficiently precise and lacking any "clear principles and policies" in relation to defining the scope of the prohibited conduct.
Mr Douglas, Vale View Lawn, The Park, Cabinteely, Dublin, was charged under section 18 of the 1935 Criminal Law Act with massaging his genital area in a way that would “cause scandal and injure the morals of the community”.
The charges related to separate alleged incidents at the cafe on January 20th and 21st, 2009.
Mr Justice Hogan said it was important to stress there was no allegation Mr Douglas had exposed himself. It was also contended he either desisted or disguised his alleged activities when others approached.
Lawyers for Mr Douglas had argued the offences breached his rights under the Constitution, including to equality before the law and protection of personal liberty. Section 18 provides any persons who act in such a way as “to offend modesty or cause scandal or injure the morals of the community” shall be guilty of an offence under the section.
Mr Justice Hogan ruled the words “or cause scandal or injure the morals of the community” in section 18 were “hopelessly” and “irremediably” vague and lacked any real principles and policies in relation to the scope of the prohibited conduct.
His decision did not prevent the Oireachtas legislating to create new offences which would address conduct of this nature in public, he said. Any such new laws must contain adequate principles and policies.