Deputy Brendan Howlin:

We have had some discussion on every section of this Bill. However, if people look back to the original Bill I proposed, in section 5, relating to the sending of threatening messages, was based, as the Minister indicated, on section 13 of the Post Office (Amendment) Act 1951, which goes back a long way. The 1951 provision related to a person committing an offence by sending any message by telephone which was grossly offensive, indecent, obscene or menacing. This was restated in the Communications Regulation (Amendment) Act 2007. I sought to incorporate that and replace it with this section of the Bill. This is one area where the Minister's proposals are probably considerably lesser than the proposals in the original Bill, probably - if I recall - for reasons of ease of prosecution. The Minister's version stipulates that an offence is committed only where a person distributes or publishes threatening or grossly offensive communication with another person or sends any threatening or grossly offensive communication to that person with intent to cause harm, where that person intentionally seriously interferes with the other person's peace and privacy, causing alarm and distress to the other person. In other words, the issue of intent in the original Bill was as per the previous section, which refers to being reckless as to whether alarm, distress or harm is caused by the action. It is quite a big move to prove that the intention to cause harm was deliberate.

The formulation now before the committee, in the Minister's version, is that a defendant would not be guilty of an offence if the prosecution could not prove that that person set about to cause harm intentionally, as opposed to being reckless as to whether or not harm was caused. My concern is that this would be difficult to prove. The subsection states that the accused person is presumed to have intended the natural and probable consequences. This section would be a saver clause under the Criminal Justice Act. I mentioned to the Minister that if this were to be inserted into the Bill and if there were a presumption that the natural consequences did in effect cause harm, this would be presumed to be the intent of the perpetrator. If we could put that saver clause in the Bill, which is, as I said, taken from the Criminal Justice Act 1964, I think it would make this section more robust in prosecutorial terms.