Friday, 18 December 2020
Harassment, Harmful Communications and Related Offences Bill 2017: Committee and Remaining Stages
Amendment No. 16 seeks to include a new offence of harassment in the Bill. I draw the attention of Senators to section 10 of the Bill which amends the existing offence of harassment contained in section 10 of the Non-Fatal Offences against the Person Act 1997. As the Minister, Deputy McEntee, mentioned in the Dáil, she agreed with the extension of the offence of harassment to include persistent communications about a person rather than simply communications with another person. This is considered appropriate in the age of social media, where so much online comment is often about a person. 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 available to a court that are currently provided for in section 10 of the 1997 Act. Subsections (3) to (5), inclusive, of the existing harassment offence provide that a court may impose an order on a defendant compelling him or her not to communicate with or approach the victim. Such an order can be imposed, regardless of whether the person has been convicted of the offence of harassment. It is an offence not to comply with such an order. I have been advised that these provisions are extremely valuable.
Section 10 of the Bill inserts a new subsection into section 10(1) of the 1997 Act to include communications about another person as an element of that offence. By simply amending the existing harassment offence, as agreed by Dáil Éireann, the additional orders mentioned in subsections (3) to (5), inclusive, remain as options for a sentencing judge. This is extremely important as orders can be imposed with or without a conviction. Furthermore, the aggravating factor of the victim and defendant being or having been in an intimate relationship as provided for in section 40 of the Domestic Violence Act 2018 also has effect.
Amendment No. 17 proposes to introduce an offence of stalking. The amendment is very similar in style to the stalking offence proposed by the Law Reform Commission. The Government too intended to introduce an amendment to create a distinct offence of stalking and this issue was thoroughly examined in my Department. Following consultations with various stakeholders in the criminal justice system and an in-depth examination of the existing offence of harassment, it was clear that the behaviour outlined in the amendment is already encompassed in the current offence under section 10 of the Non-Fatal Offences against the Person Act 1997.
Neither of the proposed amendments include the element of persistence. This would reduce harassment to an offence to address one-off instances, whereas, traditionally, harassment has had a requirement for persistence. I believe the removal of the persistence element would diminish the offence and possibly require a lower maximum sentence. Instead, the Government is proposing a higher maximum sentence of ten years for the most serious forms of harassment. The difference between the existing offence of harassment and that in the proposed amendments is the effect of the behaviour insofar as persistent communication, watching, besetting and pestering would have to cause the victim harm, alarm or distress and interfere with his or her peace and privacy. This would make the offence more difficult to prosecute than the current offence of harassment as the prosecutor would have to prove both elements, rather than one of them, in order to secure a conviction. On that basis, I cannot support the amendments as proposed.