Friday, 18 December 2020
Harassment, Harmful Communications and Related Offences Bill 2017: Committee and Remaining Stages
Amendments Nos. 19 to 21, inclusive, put forward by Senator Ruane are alternate to each other. I like the provisions of section 21. I have grave misgivings about the notion that we would extend the Statute of Limitations to seven years. However, my interpretation is that this can only apply in respect of summary prosecutions, that is, prosecutions in the District Court. In circumstances where something is prosecuted on indictment in the Circuit Court, the Petty Sessions (Ireland) Act does not apply. We are talking about the lower end of the scale in terms of offences under the Bill.
As the Senator is undoubtedly aware, at the moment we have a provision whereby summary matters cannot be prosecuted after six months. That would apply to standard speeding fines and minor matters and so on. The Senator identifies an important issue insofar as the offence could be committed today and the person in the intimate image might not find out for several years or until some friend or colleague sees it online. That could in 18 months' time or even three years' time. If that were the case, then the two-year period in the Bill has already passed and there is no opportunity to prosecute someone if it is a minor infraction. I believe this is an issue.
In civil law we have the concept of the date of accrual of knowledge. In personal injury actions it is only when the person who has been injured becomes aware of the injury that the clock starts ticking in respect of the limitation period during which the person can take the action. That is essentially what amendment No. 21 does. The Senator referred to a period within two years from the date on which the person against whom the offence was committed became aware of, or should reasonably have become aware of, the offence. I believe that is a reasonable accommodation. For example, if someone who might be totally unaware that an image of her is floating around the Internet becomes aware of it three years after the image was shared but could not reasonably have been expected to see it because it was not brought to her attention, then that person still has a two-year period from the time it was brought to her attention. That is reasonable. Notwithstanding the fact that section 7 only applies to summary applications and prosecution of summary matters, these are nonetheless important offences. It may well be that the prosecutorial authorities take the view this is not something that should be prosecuted on indictment.
As currently drafted, it means a person who is a victim and who suffers grossly by the fact that the image is posted, but perhaps not at a level that warrants a jury trial or trial on indictment, is still a victim and is still grossly prejudiced by the fact that the image is out there. The provisions of section 7 further compound this injury by providing that although the person did not know the image was posted - perhaps it happened three years ago - and there was no way the person could have known about it, since it happened and was posted three years ago it is tough cheese and the matter cannot be prosecuted. Since it is not an indictable matter, that is the end of it. There seems to be a fundamental injustice in that proposal. Senator Ruane's amendment No. 21 addressees it comprehensively.