Dermot Ahern (Louth, Fianna Fail)

The Senator wishes to ensure that offences that cause emotional distress to the victim are included in section 5(1) in addition to the types of offences already specified. I had hoped to introduce an amendment on Report Stage but I am not ready to do so because we require more time to define in clear terms the type of impact and the scope of the offence that might give rise to such an impact. I propose to introduce an amendment in this respect in the other House and then obviously report that amendment back to this House.

We must have certainty as regards the offences to which this section applies. We can achieve this either on the basis of an objective test or by reference to specific offences. The objective test criterion can be achieved fairly readily in cases where violence in the sense of physical violence is used. However, emotional distress is less amenable to an objective determination. The level of distress will vary greatly from one victim to the next and from one circumstance to the next. Basing an entitlement on a very subjective criterion could lead to a legal argument at sentencing hearing as to whether section 5 applies in a particular case. Such a development would not be in anyone's interest, least of all the victim.

It seems unlikely that we shall be able to find some reasonable objective test that can specify the degree of emotional distress to be endured by a victim before an entitlement to make a statement arises. Therefore, the best approach is to identify certain specific offences where physical violence may not always arise, but which can be said with a high degree of certainty to cause emotional distress. My amendment will probably adopt that type of approach. By way of example, the offence of harassment in section 10 of the 1997 Act would very likely be included, as would other such offences under the Non-Fatal Offences Against the Person Act.

I accept that the Senator's amendment offers the certainty that I believe is required. However, as I outlined on Committee Stage, many of the offences in the 1997 Act already come within the category of offences, including violence or threat of violence, to which section 5 already applies, thus creating duplication and making the amendment unsuitable for acceptance as is. I agree in principle and shall introduce an amendment in the other House.