The High Court has dismissed a bid by a man allegedly caught relieving himself in bushes to have the offence of indecent exposure deemed unconstitutional.

The action was brought by Tezaur Bita, who is charged with the offence of indecent exposure, contrary to section 5 of the Summary Jurisdiction (Ireland) Act 1871.

The charge related to an incident in the early hours of the morning at the Old Nangor Road, Clondalkin, Dublin, on August 27th, 2015 where it is alleged Mr Bita parked his car and proceeded to relieve himself in the bushes.

This, it is claimed, was witnessed by a garda, who arrested Mr Bita.

Lawyers for Mr Bita, of Belgard Road, Tallaght, Dublin 24, applied to the High Court to have his trial before the District Court on the indecent exposure charge prohibited.

His barrister, Keith Spencer, argued the indecent exposure offence under the 1871 Act is unconstitutional because it is too vague, and the section lacks principles and policies.

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 submitted.

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 matter should proceed to be heard by the District Court.

‘Overkill’

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.

The judge said Mr Bita’s defence is that he was answering an urgent call of nature, discreetly, by availing of the bushes.

In his decision, the judge said merely exposing oneself in a public place does not constitute an offence. There were many counter-examples where to do so is manifestly not indecent.

These “life-affirming activities” include use of certain bathing places, discreet skinny dipping, certain saunas, exposure for the purposes of theatre, avant-garde performance art, discreet artistic photography and so on, the judge 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 anti-social 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.

However, in the case before the court, it was well possible Mr Bita could be acquitted because of the absence of any circumstances of indecency.