Court rejects appeal comparing urinating in public to breastfeeding

A man charged with urinating in public has had his challenge to the constitutionality of the offence dismissed by the Court of Appeal.

Ms Justice Aileen Donnelly, delivering the judgment of the three-judge court, found the man’s comparison of urinating in public to breastfeeding in public to be an “extraordinary comparison”.

Ms Justice Donnelly also found his arguments about whether spitting, removing one’s shirt, amorously embracing and displaying risqué tattoos would be covered by the same section of legislation under which he has been charged to be “not relevant”.

Tezaur Bita is alleged to have exited his car on the Old Nangor Road, Dublin at around 3.45am on August 27th, 2015 and relieved himself. This, it was claimed, was witnessed by a garda who later 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 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. He argued that it was so vague that Mr Bita could not have known in advance that what he did fell within Section 5 of the act.

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.

However, Mr Bita’s bid to seek prohibition was dismissed by the High Court in May. He went on to appeal this High Court decision in the Court of Appeal and on Friday, the court dismissed this challenge.

In a 31-page written judgment handed down today, Ms Justice Donnelly rejected the arguments made by Mr Bita.

She wrote: “The arguments that [MR BITA]made in the present appeal concerning issues such as whether breastfeeding in public, spitting, removing one’s shirt, amorously embracing and displaying risqué tattoos would be covered by the section are not relevant to this court’s consideration as to whether Section 5 is so vague or so uncertain that he could not have known, even with the benefit of legal advice, that urinating in the manner in which it is alleged that he did was an offence contrary to the section.”

Ms Justice Donnelly also noted that, in his appeal, Mr Bita argued that “a man, even with the benefit of the finest legal advice, would not more know that urinating at the side of the road is captured by the section than a woman contemplating breastfeeding in public”.

Lawyers for Bita argued: “For many, neither act would be considered to be an act contract to public decency... whereas for others, perhaps fewer in 2017 in the case of breastfeeding, it may well remain contrary to public decency.”

In response to the specific argument about breastfeeding, Ms Justice Donnelly found: “To equate urinating in public view with breastfeeding in public appears an extraordinary comparison. I will not say any more in relation to this, because it is not an act upon which [MR BITA]can rely to advance his case.”

The judge also rejected Mr Bita’s argument that the section is “arbitrary” and “confers too great a power” on gardai. She noted that Mr Bita was not arrested for urinating in public but for “failing to respond to the request for identification”.

Ms Justice Donnelly added that he is “not being tried simply because he urinated in public. He is being tried because of the circumstances in which that public urination occurred and in circumstances where the respondents have expressly contended that it is indecent”.