Friday, 18 December 2020
Harassment, Harmful Communications and Related Offences Bill 2017: Committee and Remaining Stages
I speak on amendment No. 11, which proposes to substitute a new paragraph (b) in subsection (1). I like this amendment and I think it sets up exactly the type of test a court should conduct. The amendment would see the section essentially stating that, subject to subsection (2), a person is guilty of an offence where he or she has been responsible for the distribution or publication of an intimate image and “(b) that his or her acts are such that a reasonable person would realise that the acts would interfere with the other person’s peace and privacy or cause alarm or distress to the other person.”.
Quite separate from the issue I raised in an earlier section regarding the possibility of merely causing alarm or distress, here we have a situation where we setting up for the court, be that a judge in a summary matter, or the jury in an indictable matter, exactly the kind of test we want this Bill to do. I refer to asking people to look into the mind of the person accused and to assess if a reasonable person in that position would have realised that what he or she was doing would have had the implications that nobody desired and which ultimately resulted from what he or she did. I like the provision drafted here, therefore, because it sets this matter out clearly.
One of the great difficulties with this type of legislation is looking into the mind of the alleged offender and deciding, in the case of non-strict liability offences, whether he or she intended the results of what he or she did. This amendment, however, sets out exactly what a judge or jury should be doing in that regard, namely, looking at what a "reasonable" person would do. We often talk about reasonable people in respect of the law, when, in fact, few of us act as reasonable people in real terms. This is, however, the test that is applied currently in so many criminal matters and it is an appropriate one. It would allow the judge of fact, be that a judge or jury, to decide, by looking into the circumstances of the person concerned, whether a reasonable person in the same circumstances would have understood the consequences of his or her action. This proposed amendment, therefore, adds to the Bill and it would be a fine addition to section 3(1).