Thursday, 17 December 2020
Harassment, Harmful Communications and Related Offences Bill 2017: Report and Final Stages
I move amendment No. 15:
In page 4, to delete lines 35 to 38, and in page 5, to delete lines 1 to 7 and substitute the following:
"4. (1) A person is guilty of an offence where he or she, by any means— (a) distributes or publishes any threatening or grossly offensive communication about another person, or
(b) sends any threatening or grossly offensive communication to another person, with intent to cause serious interference with the other person’s peace and privacy or to cause alarm or distress to the other person.
(2) For the purposes of subsection (1), a person is presumed to have intended the natural and probable consequences of his or her acts, but this presumption may be rebutted.".
This amendment deals with an issue we discussed on Committee Stage, namely, the question of intent. I was concerned that this would be a difficult point to prosecute and might prove to be an obstacle we did not envisage in the original drafting. I have proposed, as I indicated I would, a phrase from a different offence. The proposed subsection 4(2), as inserted by my amendment No. 15, states: "For the purposes of subsection (1), a person is presumed to have intended the natural and probable consequences of his or her acts, but this presumption may be rebutted." In other words, where somebody is grievously harmed, that natural and probable consequence of a particular action should have been known to the individual who caused the terrible harm.
The advice from our legal adviser is that this provision strengthens the section by addressing the issue of a person being able to defend against doing somebody terrible harm because it was not intended or because the person did not mean to cause, or did not realise he or she was causing, such terrible harm. That would not be an acceptable defence in that it would now be up to the person to rebut the consequences of what he or she did to an individual and there would be a presumption that he or she should have understood the probable consequences of taking that action.