Thursday, 17 December 2020
Harassment, Harmful Communications and Related Offences Bill 2017: Report and Final Stages
The only amendment that would require a potential delay is the amendment to the amendment that Deputy Howlin proposed, as opposed to the published amendments. It is the only one that would cause a particular difficulty. I hope the legislation will proceed to the Seanad tomorrow. Senators will have an opportunity to submit amendments tonight if they believe they are necessary.
With regard to the definition of intent in criminal law, a person is presumed to intend the natural and probable consequences of his or her actions. Therefore, I am not concerned that not including Deputy Howlin's amendment would in any way have an impact on the prosecution of somebody for intent. It is not possible to know somebody's mind. One can never conclusively establish what somebody intended but it is presumed that he or she intends the natural and probable consequences of his or her actions. That is well established within our criminal law. I have practised criminal law for about 12 years so I am very much aware of it. Deputy Howlin may have been trying to add a belt and braces and to offer clarification. That is why I would have had no difficulty accepting the amendment. It simply restates the existing law.
Amendment No. 16, which proposes a new section 5, seeks to include a new offence of harassment in the Bill. I draw the Deputy's attention to section 11 of the Bill, which amends the current offence of harassment contained in section 10 of the Non-Fatal Offences against the Person Act 1997. On Committee Stage, the Minister agreed with the extension of the offence of harassment to include persistent communications with a person rather than simply communications with another person. This is considered completely appropriate in the social media age, and the proposed amendment to the existing harassment offence will retain this idea.
The proposed harassment offence in amendment No. 16 does not include other powers for a court that are currently provided for in subsections (3) to (5) of section 10 of the 1997 Act, providing that a court may impose an order on a defendant compelling him or her not to communicate with or approach the victim. This can be imposed regardless of whether a person has been convicted of the offence of harassment. It is an offence not to comply with such an order. It is considered that these provisions are extremely valuable.
Section 11 of this Bill inserts a new subsection (c) into section 10 to include communications about another person as an element of that offence by simply amending the existing harassment offence, as was agreed on Committee Stage, and the additional orders mentioned in subsections (3) to (5) remain as options for a sentencing judge. This is extremely important as orders can be proposed with or without a conviction. Furthermore, the aggregating factor in regard to the fact that the victim and the defendant are, or were, in an intimate relationship is required, with section 40 of the Domestic Violence Act also having effect. Therefore, I will be opposing amendment No. 16.