Helen McEntee (Meath East, Fine Gael) | Oireachtas source

I also welcome our guests to the Seanad.

I thank the Senator for her amendments. I understand where she is coming from in this regard, and some of the NGOs have raised this as well. Amendments Nos. 6 to 9, inclusive, propose to alter the definition of "stalking" to separate the element of the offence that refers to substantial adverse impact on day-to-day activities from the causing of serious harm and distress. As the Senator rightly said, there are a range of different ways in which we could approach stalking. This is something that went back and forth quite a lot between my office and the Office of the Attorney General. When looking at the best way to approach this, we tried to take into account all possible scenarios in which people could find themselves, not just where there is persistent behaviour, but where there might be a once-off incident that could be equally terrifying and could have the same impact.

We can solely focus on conduct, the mentality of the perpetrator and whether there is obsessive behaviour, or we can focus on the consequences. This is where we have landed. This is the best advice I have received. The latter approach is what we have adopted for the main criminal offence. This is then complemented by the civil orders that we are also bringing forward as part of the legislation. This looks at the conduct. It does not look at whether it had an impact or whether there was an intent. It looks at the actual conduct itself. We have tried to balance the stalking legislation with the civil orders to make sure that there are various different bars and thresholds so that people can get that protection when they need it. This can be immediate or, if they want to take a criminal trial, there can be a prosecution at the end of the day.

People are guilty of a stalking offence under this legislation if they either put another person in fear of violence or causes serious alarm and distress that has a substantial impact on day-to-day activities. Again, this can be done by any conduct. We have not stressed in the Bill what kind of conduct that needs to be. The offending conduct can be done intentionally or recklessly. To put it another way, the perpetrator does not necessarily need to want to cause distress as long as he or she realises that there was a real risk that the behaviour they were doing will actually result in those consequences. This definition, causing a fear of violence or a serious adverse effect on a victim's day-to-day life, captures the essential harms caused by stalking. It is defined in terms of the serious consequences it causes. Again, the requirement for persistence is something that was not there initially. This takes out the need for something to be happening on a continuous basis and acknowledges that a once-off incident can be equally distressing. The risk of expanding it in the way that the Senator sets out is that it would refer to any conduct that causes serious distress. That would essentially put in place an offence for causing alarm or distress, whereas we are trying to focus on stalking and the severity of it. It would become a catch-all offence that could cover just a single incident that causes distress. It is a matter of finding the balance where we do not say that absolutely anything that any person does that might cause distress can be construed as stalking. That in itself might be a different type of offence but, for the purpose of this Bill, it is not stalking. Then, there is the civil order which, as I have said, allows a person to look at the conduct of the perpetrator in question to essentially ask a judge if it is likely that type of conduct would cause somebody harm or distress, even if this was not meant to happen. That is the lower bar we have set here. It is about making sure that we address the seriousness of stalking, that we have other members in place to try to prevent these types of behaviours from happening in the first instance, and that we do not breach it out into something else that could capture a number of other scenarios that already covered by particular types of offences.

There is also the issue of harassment, which is being addressed in this Bill. This covers not just the stalking offence, but could for example include neighbour-to-neighbour contact, where somebody consistently shouts abuse over a hedge, cuts down trees or causes a person alarm or distress so that they cannot go out to their back gardens.There are a number of ways in which we have tried to address the different scenarios in which people might find themselves. The outcome of the amendment proposed would be to broaden it out so much that any one incident could be deemed a stalking, which I do not think it what we are trying to achieve.