This Bill is an important element in the process of law reform on which the Minister has embarked since taking office and which she has been actively pursuing in bringing forward new legislation to strengthen the law on crime and to ensure the fullest and most effective protection to society. The Non-Fatal Offences Against the Person Bill, 1997, will replace offences which lie at the core of criminal law with provisions more responsive to modern needs, including provisions aimed at new forms of criminal misconduct which have become manifest in recent years.
The present law on non-fatal offences against the person is contained in the Offences Against the Person Act, 1861. The 1861 Act has been the subject of much criticism over the years and it has been described as a "ragbag of offences". In February 1994 the Law Reform Commission submitted a report containing recommendations for the a repeal and replacement of those provisions which deal with non-fatal offences against the person. That report was taken into account in the preparation of this Bill which will repeal the greater part of the 1861 Act and will codify in statutory form and in modern language the law dealing with non-fatal offences against the person. The Law Reform Commission is at present reviewing the law on homicide. When its report on that subject is received, it will be acted upon.
This Bill restates the law relating to various forms of assault, threats to kill or cause serious harm, poisoning, false imprisonment and abduction of children as well as providing for certain new offences. The Bill includes provision to deal with the scourge of syringe attacks as well as creating a new offence of harassment which is aimed at behaviour commonly known as "stalking". Among the other new offences provided for in the Bill are the offence of abduction out of the State of a child by a parent in a tug of love situation and the offence of endangerment where a person intentionally or recklessly engages in conduct which creates a substantial risk of death or serious harm to another.
The first substantive section in this Bill is section 2. This section replaces the common law offences of assault and battery, usually referred to as common assault, with the new offence of assault, which combines in one offence the element of inflicting personal violence, as in battery, and the element of causing another to apprehend the immediate inflication of personal violence, as in assault. This offence will cover most minor assaults and the penalty on, summary conviction will be a fine not exceeding £1,500 or imprisonment for up to six months or both.
Section 3 deals with the more serious offence of assault causing harm. This new offence replaces the offence of assault causing actual bodily harm contained in section 47 of the 1861 Act. This section provides a maximum penalty of five years for this offence, which is the same as the existing penalty. Under the present law consent cannot be a defence to a charge of causing actual bodily harm. The Law Reform Commission recommended that such a rule is no longer appropriate and the Minister has accepted that view. Since section 3 is framed by reference to an assault and consent is a defence to simple assault, it will also be a defence where actual bodily harm is caused. We are not talking of cases of serious harm covered by the next section.
Section 4 creates the offence of causing serious harm. This offence will replace the offences of wounding or causing or inflicting grievous bodily harm in sections 18 and 20 of the 1861 Act.
Consent will not be a defence to a charge of causing serious harm, but section 22 provides that existing common law defences will continue to apply. Accordingly, the common law rules concerning bodily harm arising in the course of sports, dangerous exhibitions or medical treatments will apply, where appropriate, to exempt the action from criminal liability. The Minister has provided that a person convicted of this offence on indictment will be liable to life imprisonment, which is the present maximum penalty for the offence of causing grievous bodily harm and which is being replaced by section 4.
Section 5 updates section 16 of the 1861 Act, which makes it an offence to threaten in writing to kill or murder another. Instead, this section provides for a broader offence which covers threats by any means and extends to threats to cause serious injury as well as to threats to kill. It also provides for a maximum punishment of ten years imprisonment for this offence.
Sections 6, 7 and 8 create a range of new offences relating to criminal conduct involving syringes. Section 6 deals with syringe attacks, section 7 deals with possession offences and section 8 deals with abandoning of syringes. Section 6 provides for the following offences: injuring another by piercing the skin of that other with a syringe or threatening to do so with the intention of or where there is a likelihood of causing the other person to believe that he or she may become infected with disease; spraying or pouring or putting onto another blood or any fluid or substance resembling blood or threatening to do so with the intention of or where there is a likelihood of causing the other person to believe that he or she may become infected with disease; injuring a third person in either of these ways even where the person was not the intended target.
The Bill provides for a maximum penalty of ten years imprisonment for these offences. In doing so, the Minister is conscious that the offence may result in great suffering for victims who have, for example, been wounded with a syringe and must face a long and agonising wait until he or she knows if he or she has contracted a life threatening disease.
In the same section provision is made for what is one of the most important of the syringe offences, that is, the offence of intentionally injuring another by piercing his or her skin with a syringe which contains or has on it contaminated blood or contaminated fluid. Similarly, the Bill makes it an offence to intentionally spray, pour or put on to another contaminated blood. The Bill also makes it an offence to injure a third person in this way, even where that person was not the intended target. As all of these offences could result in the infliction of life threatening injuries, the Minister is providing that this crime will be punishable by up to life imprisonment.
Section 7 deals with possession offences. It provides that a person who has in any place a syringe or any blood in a container intended to cause or threaten injury to or to intimidate another will commit an offence. Some concern has been expressed that this, provision could make innocent possession of a syringe a criminal offence. I assure people who carry syringes for legitimate purposes — for example, people who are diabetic — that the provision does not criminalise mere possession. The section criminalises possession with the intention of causing or threatening injury or of intimidating another. The maximum punishment for these offences will be seven years imprisonment.
Section 8 deals with the serious problem caused by people who, perhaps intentionally or otherwise, leave or abandon syringes in places so that they injure or are likely to injure, cause a threat to or frighten others. This is particularly abhorrent behaviour and the people who engage in it may do so to get a sadistic pleasure out of the wounding of an unsuspecting garda or prison officer or, indeed, a member of the public who, for example, sits down in a café or cinema or on a bus or train and finds too late that a syringe has been left on his or her seat. It is important, therefore, to ensure that the prescribed punishment fully fits the seriousness of the conduct involved. In this respect the Minister accepted a suggestion in the other House to increase the maximum penalty for this offence to seven years imprisonment.
I would draw the attention of this House to the fact that the Minister is also providing for the more serious offence of intentionaly placing a contaminated syringe in such a way that it injures another. Such behaviour is very near to attempted murder and the Minister had no hesitation in providing that it will be punishable by the highest possible penalty, which is life imprisonment.
Section 10 provides for the very important new offence of harassment, which is aimed at what is commonly called "stalking". We are all aware of high profile cases of stalking, but of course such behaviour is not necessarily peculiar to people in the spotlight. It can unfortunately occur in everyday life when a person, usually a woman, becomes the object of the stalker's affection — perhaps "obsession" is a better word — and that person is subjected to sustained harassment and intimidation in a perverted attempt by the stalker to gain the attention or affection of the unfortunate person concerned. This harassment can have a profoundly detrimental effect on the life of the victim. The Bill provides that a person will be guilty of this offence if he or she, by any means, harasses another by persistently following, watching, pestering, besetting or communicating with him or her. Provision is being made for a definition of what constitutes harassment, the basic element of which is that the offender intentionally or recklessly seriously interferes with the peace and privacy of another person or causes them alarm, distress or harm and his or her acts are such that a reasonable person would realise that they would have such an effect.
The penalty provision for this offence in the Bill as published was five years. However, given the very serious detrimental effects stalking can have on the life of the victim, given that the harassment can extend over many years, that in most cases the woman victim will live with a growing fear of personal violence from the stalker and given that some cases have resulted in personal violence, the Minister took on board a suggestion during the passage of this Bill through the other House to increase the maximum penalty and, accordingly, provided for a maximum penalty of seven years imprisonment. Because this behaviour can be such a serious and distressing interference with the person's privacy, provision is also made to empower the court, in addition to imposing a penalty and even where it decides not to convict, to order the stalker not to communicate in any way with the victim for such period as may be specified by the court or to approach within a specified distance of the victim's residence or place of employment. Breach of such an order will be an offence and the maximum penalty here also will be seven years.
Section 11 provides for a particular type of harassment, associated with demands for payment of a debt. The Minister is making it an offence, punishable by a fine of £1,500, for a person to subject a debtor to demands which, by reason of their frequency, causes the person or his or her family alarm, distress or humiliation.
Section 12 replaces the offence of administering poison with intent to injure, aggrieve or annoy contained in the 1861 Act with a new offence of poisoning. The offence can incur a three year sentence. If the poisoning results in serious harm or death, more serious charges would, of course, lie.
Sections 13 and 14 deal with endangerment offences. Section 13 provides for a general endangerment offence where a person either intentionally or recklessly engages in conduct which creates a substantial risk of death or serious harm. This offence is punishable by a maximum sentence of seven years imprisonment. While we have many endangerment offences in our law dealing with specific behaviour, such as dangerous driving and dangerous parking, a general endangerment offence of this nature is new. The essence of the offence is the creation of a dangerous situation which may result in death or serious injury. The actual causing of death or injury is not necessary. Where death or serious harm results, other more serious charges would arise.
Section 14 deals with the specific offence of endangering traffic. The offence relates to traffic on land and water and is intended to replace sections 32 and 33 of the 1861 Act, which are endangerment offences related to railways. This section creates an offence where any person intentionally puts a dangerous obstruction in a railway, street, road, etc., or interferes with any device for the control or direction of traffic or throws anything at any conveyance being aware that injury to the person or damage to property may be caused or is reckless in that regard. The Minister is proposing to make this offence punishable by up to seven years imprisonment. This conduct can have very serious results. We have all, I imagine, heard of instances where objects are thrown from motorway bridges at moving traffic with disastrous consequences.
Section 15 gives statutory expression to the common law offence of false imprisonment but also extends the offence to cover cases where the false imprisonment is brought about by deception, causing the victim to believe that he or she is under legal compulsion to consent. As this is obviously a very serious offence, it will be punishable, as at present, by up to life imprisonment.
Section 16 creates a new offence of abduction of a child by his or her parent or guardian. Ireland has, of course, already ratified and put into law the provisions of the Hague Convention on International Child Abduction and the Council of Europe Convention on recognition and enforcement of child custody decisions. However, the Minister is now proposing that we go one step further and make it an offence for a parent to abduct a child out of the jurisdiction in defiance of a court order or without the other parent's consent or to arrange to have a child so abducted. If the child is not taken out of the country, the Minister felt it better not to involve the criminal law, but to leave the matter to be dealt with in the usual custody proceedings. The Minister proposes that this offence should be punishable by up to seven years imprisonment.
In section 17, the Minister is providing for the separate offence of abduction of a child by other persons. This section replaces sections 55 and 56 of the 1861 Act which deal, respectively, with the abduction of a girl under 16 years and the stealing of a child. The new abduction offence will be punishable by up to seven years imprisonment.
Sections 18, 19 and 20 give statutory expression to what are understood to be the existing rules governing the use of force in public or private defence. The existing law in this respect is governed by the common law and the Criminal Damage Act 1991.
Section 21 amends section 6(2) of the Criminal Damage Act, 1991, so that the test in respect of damaging property is the same as the test set out in section 18, namely, that the conduct of the defendant must be reasonable, given the circumstances he or she believed to exist. Section 22 preserves defences available under the common law or statute law in relation to acts which might otherwise attract criminal sanctions under the Bill.
Section 23 provides that a minor who has attained the age of 16 can give effective consent to surgical, medical or dental treatment which, without consent, would be a trespass. At present the effectiveness of a consent by a minor to medical treatment is dependent on whether the minor understands the purpose and implications of the treatment. The purpose of this provision is to bring an element of greater certainty in the case of older minors.
Section 24 abolished the common law rule in respect of immunity of teachers from criminal liability in respect of physical chastisement of pupils. The provision will serve to reinforce the Department of Education's policy on the prohibition of corporal punishment in schools. The use of force by teachers, following the enactment of the Bill, will be governed, as in the case of other people, by the rules set out in sections 18 and 19.
The House will appreciate that the Bill is a very comprehensive proposal and, as already stated, it deals with a wide range of offences which are central to our criminal law. It is in keeping with the Minister's strong commitment to update and modernise our criminal law that I present the Bill to the House. I believe that, when enacted, it will provide an effective and modern legal instrument to deal with attacks upon the person. Accordingly, I commend the Bill to the House.