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Legal Opinion Given To The INA

Legal Opinion

This is the full text of a legal opinion given by the INA's legal advisors: DATE 30/01/1995/

Note: This opinion predates the striking down by the High Court of Section 18 of the Criminal Law Amendment Act 1935.

We refer to matters which you have asked us to address, namely

  • 1. The general law in relation to public nudity; and
  • 2. The position of Local Authorities vis-à-vis the Association's request for clothing optional beaches, and advise as follows:-


With regard to No.1 above, the position is that the occasion of nudity in public in this jurisdiction is quite likely to give rise to the commission of the offence of public indecency. This offence arises in a number of ways, both under statute and at common law. The statutory offences include:-


(a) The Vagrancy Act 1824, Section 4:

This section provides that "any person wilfully openly, lewdly and obscenely exposing his person with intent to insult any female shall be deemed a rogue and a vagabond."
The section only applies to men exposing their "person." Mere indecency without aggravating factors is insufficient and the Courts have held that the words "indecent" and "obscene" are not synonymous. The exposure must be accompanied by the specific intent to insult a female; carelessness, thoughtlessness or insensitivity will not suffice. The difficulty lies with what a local Judge would regard as obscene and it would be no defence for him, the man charged with the offence, to argue that his motive was not to insult females. But the prosecution would have to show that the effect of his behaviour should have been obvious or that he was reckless as to the possibility.

It should be noted that this offence may be committed in a private garden or house, that is, where the exposure is on private land and seen from a public place or a private place. Further, Section 4 is subject to jurisdictional limitations. A person swimming or standing in the sea will usually be outside the county boundaries and therefore be in the normal jurisdiction of a local Court. He would, however, have to cover up before coming out of the water and could even then be indicted for indecent exposure at common law.


(b) Towns Improvement (Ireland) Act 1854, Section 72:

This section provides that it is an offence to wilfully and indecently expose his "person", or commit any act contrary to public decency. This offence also applies to men only, exposing their "person".
Having made enquiries, it appears that the above statutory provisions are not invoked on a regular basis however, it is important that you are aware that these provisions are still in force. The principal statutory provision is contained in:


(c) the Criminal Law (Amendment) Act 1935, Section 18:

This section creates the offence of public indecency and provides that "every person who shall commit at or near and in the sight of any place along which the public habitually pass as of right or by permission, any 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...." If found guilty, on summary conviction, the offender is liable to a fine of €500.00 or, at the discretion of the Court, to imprisonment for any term not exceeding six months or to both.

Note: This opinion predates the striking down by the High Court of Section 18 of the Criminal Law Amendment Act 1935.

The features of this offence are that
(1) the act can occur in a place that is private or public;
(2) trespassers are not included among "the public"; referred to above whereas they are at common law;
(3) the act must be done in such a way as to cause offence and
(4) it is a summary offence, that is, the case must be tried in a Court of summary jurisdiction, usually a District Court, within a certain period of time, usually six months.

Given the wide-ranging effect of the Criminal Justice (Public Order) Act 1994, it may well be that nudity in public could come within a number of the offences provided for in the Act, namely: #8212;


(d) Criminal Justice (Public Order) Act 1994, Section 5:
This section provides that it shall be an offence for any person in a public place to engage in offensive conduct. In this section "offensive conduct" means "any unreasonable behaviour which, having regard to all the circumstances, is likely to cause serious offence or serious annoyance to any person who is, or might reasonably be expected to be, aware of such behaviour." It is an offence for any person in a public place to engage in offensive conduct (i) between the hours of 12.00 o'clock midnight and 7.00 o'clock in the morning next following or (ii) at any time, having been requested by a member of the Garda Síochana to desist.


A person who is guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding €500.00.


Section 6 of the 1994 Act provides that it shall be an offence for any person in a public place to use or engage in any threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace may be occasioned. A person who is guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding €500.00 or to imprisonment for a term not exceeding three months or to both.
Section 8 of the Act provides that where a person is or has been acting in a manner contrary to the provisions of the 1994 Act referred to above and fails to comply with a direction of a member of the Garda Siochana, they are guilty of an offence and liable on summary conviction to a fine not exceeding €500.00 or to imprisonment for a term not exceeding six months or to both.
We turn now to the common law and the offence of indecent exposure.


(e) This is an indictable offence, that is, tried before a Judge and jury, and it applies to men and women. The exposure must be "indecent". This has been described by the English Courts as offending against recognised standards of propriety. The main difficulty is to decide which parts of the body can be exposed without the risk of prosecution. The question has to be asked what a jury would regard as improper.
The common law offence of indecent exposure is one aspect of the wider crime of outraging public decency or a public nuisance. The offence must be committed "in public". This means that two or more people must actually see or be able to see the exposure. A place is public if the exposure is on private land seen from a public place or a private place, even where witnesses are trespassers. This means that private beaches and gardens are not immune.


There is no need to show any sexual motive nor any intention to insult or annoy; mere negligence is sufficient.


The position of Local Authorities vis-à-vis your application for clothing optional beaches is essentially as follows.


Local Authorities are empowered to make Bye-Laws in relation to the use, etc. of any lands under the control of the Local Authority however, they cannot make Bye-Laws allowing an act to take place which said act offends or contravenes general law. Bye-Laws of themselves cannot, and do not, legalise what would otherwise be unlawful.


The Foreshore Acts 1933-1992 empowers the Minister for Industry & Commerce (and now Minister for the Marine) to make leases of the foreshore subject to payment or not (if in the public interest) to a maximum of €10.00. The lease shall contain such covenants, conditions and agreements as the Minister shall consider proper or desirable in the public interest. Where an application for the grant of a licence is being made, a public enquiry may be held, at the Minister's discretion.


Section 8 of the 1933 Act empowers the Minister to make regulations in respect of the public use of the foreshore and specifically provides that "the Minister may ... make regulations prohibiting, restricting, regulating or controlling the entry of the public on or the use by the public of the foreshore" belonging to Saorstat Eireann. An offence is committed if there is a breach of the regulation.
The Minister may hold a public enquiry if he or she decides to make a regulation and the Act sets out the procedure to be followed in.


A breach of a regulation, made under the Foreshore Acts, is a summary offence which may be prosecuted by either the Minister for the Marine or by the relevant Local Authority. It should be pointed out that where an offence has been committed by a body corporate, an officer of the body corporate would be held liable for the breach.


The legislation which allows Local Authorities to make Bye-Laws is the Local Government legislation, the most recent being the Local Government Act of 1994. Section 37 of the 1994 Act provides that a Local Authority may make a Bye-Law for or in relation to the use, operation, protection, regulation or management of any land, services or any other thing whatsoever provided by or under the control or management of the Local Authority or in relation to any matter connected therewith.


The section goes on to provide that a Local Authority may make a Bye-Law for the purpose of regulating or controlling an activity or suppressing or controlling a nuisance where in its opinion it is desirous in the interests of the common good. Bye-Laws may include such provisions as the Local Authority considers appropriate for its effective operation including, the prohibition of any activity, matter or thing and the conduct of persons at specified places or in specified circumstances. This section also provides that Local Authorities may make Bye-Laws in relation to the foreshore and coastal waters.


Section 38 of the 1994 Act sets out the procedure for making a Bye-Law and provides, inter alia, that the Local Authority shall consider any submissions made to it in this regard.


Section 40 of the Act provides that a person who contravenes a provision of a Bye-Law shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €1,000.00. If the contravention of a provision of a Bye-Law is continued after conviction, the person causing the contravention shall be guilty of a further offence and shall be liable on summary conviction to a fine not exceeding €100.00 per day. The section also provides that the person contravening the Bye-Law can be arrested without a warrant by the Gardai, if the Garda is of the opinion that that person is committing or has committed an offence under Section 40.


In conclusion, the law in relation to public nudity in this country is such that it can be an offence, both under statute and at common law, for a man or a woman to expose himself or herself in a public place, including private lands seen from a public place. Local Authorities are not empowered to make Bye-Laws which legalise what would otherwise be unlawful. Whereas Local Authorities can pass Bye-Laws forbidding certain activities, they are not empowered to make Bye-Laws allowing for activities which are otherwise prohibited. Accordingly, it would appear that given the general position regarding public nudity, the Local Authorities are not in a position to accede to the Association's request You may consider making an application for a licence of the foreshore, as referred to above, or request that a public enquiry be held, as provided for, however, as advised, the Minister or the Local Authority cannot allow an act to take place which said act contravenes the general law. The only way in which this situation can be changed is by amending legislation or preferably legislation specifically providing for naturist facilities.

 

 

 


Note: Emphasis added for clarification purposes.

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