So in order to be prosecuted under this provision it need to be shown a) that I displayed an obscene image and b) that I displayed it with intent or was reckless as to whether it would cause a breach of the peace.
Well you can take it that I did not intend to cause a breach of the peace and that leaves recklessness; it is outside the scope of this post for me to explain the law behind recklessness but suffice to say it could be argued that I was reckless. However, the Court, in a case taken against anti-abortion campaigners for displaying pictures of foetuses, dismissed the defendant because they did not intend to cause a breach of the peace so does this mean that the recklessness element is not used in practice?
So this leaves the question is my t-shirt obscene? This question is material to all the other laws that I might be charged under like s3 Indecent Advertisements Act, 1889. There is not Constitutional or statutory definition of ‘obscene’ however, in the 1868 case of R v. Hicklin the Court gave a definition of obscene. It said that obscene meant that if the stuff that was said to be obscene was to deprave those whose minds are open to such immoral influences and into whose hands the publication might fall. As you can see this definition doesn’t really give much in way of help as to deciding if my t-shirt is obscene.
It seems even that under the European Convention of Human Rights Art10 that a large what is called ‘margin of appection’ is given to states to decide what is moral.
So I guess that it is very unlikely that I could be successfully prosecuted but still perhaps possible I think that is a very sad thing in a democratic society.
2 Irish Times, 13th December 1995
3 R. V. Hicklin (1868) 3 QB 360
4 (1991) 13 EHRR 212