Friday, 18 December 2020
Harassment, Harmful Communications and Related Offences Bill 2017: Committee and Remaining Stages
With regard to this section, I welcome what is being proposed to broaden the scope of section 10 of the Non-Fatal Offences Against the Person Act 1997. I am fully in agreement with what the Minister of State is proposing to do in section 10(a) of this Bill with regard to subsection (1) of the Non-Fatal Offences Against the Person Act, which essentially creates the offence of harassment. Section 10(3) of the Non-Fatal Offences Against the Person Act 1997 creates a power for the court to prohibit a convicted person from communicating with the victim. That is the subject of an amendment to section 10(b) of this Bill. Currently, section 10(3) of the 1997 Act states, and I am paraphrasing, that where a person is convicted of harassment, the court may, in addition to or as an alternative to any other penalty, order that the person shall not communicate by any means with the other person, being the victim of the offence of harassment. Section 10(b) of this Bill proposes to change section 10(3) of the 1997 Act so that it reads, and again I am paraphrasing, that where a person is guilty of the offence of harassment, the court may, in addition to or as an alternative to any other penalty, order that the person shall not communicate by any means with or about the other person. It strikes me that if the court were to make an order that the person may not by any means communicate about another person, the mere utterance of the latter's name or, perhaps more cogently, if the former were asked about the offence or asked what happened and then described what happened, that would constitute a communication about the latter for which the former would be liable under section 10(c) of this Bill to a sentence of up to ten years. That applies more to the offence of harassment but the person will be liable to a criminal conviction, potentially of up to ten years, because the penalty provisions in section 10 currently apply to any offence under that section, which would include a breach of the court's order in respect of not communicating with the other person but, under this proposed change, about the other person.
If the Minister of State sticks by the provisions of section 10(b), he is saying that where a person convicted of harassment under the 1997 Act who is also the subject of an order under section 10(3) merely utters the name of the person he or she harassed or describes the circumstances, even without uttering that person's name, and thereby communicates about that person, the perpetrator - he or she is a convicted perpetrator at that stage - commits a further offence for which he or she attracts a liability of up to ten years' imprisonment. I wonder if that is disproportionate. I agree with the expansion of the definition of harassment in subsection (1), and I can see that essentially the same thing is done in section 10(b), but the latter applies to the order the court might make. I am concerned that it takes that section 10(3) offence in the 1997 Act out of the realms of what might reasonably be considered a criminal offence that attracts a liability of ten years in prison.