Amendments Nos. 1 to 4, inclusive, are related. Amendments Nos. 3 and 4 are physical alternatives to amendment No. 2. Amendments Nos. 1 to 4, inclusive, may be discussed together by agreement. Is that agreed to? Agreed.
Harassment, Harmful Communications and Related Offences Bill 2017: Committee and Remaining Stages
I move amendment No. 1:
1. In page 3, to delete lines 19 to 27, and substitute the following:
“ “intimate image” means a visual recording of a person made, with or without the consent, by any means including a photographic, film or video recording (whether or not the image of the person has been altered in any way)—
(a) (i) of his or her genital organs or anal region or her breasts (whether covered by underwear or bare),
(ii) in which the person is nude, is exposing his or her genital organs or anal region or her breasts, or
(iii) in which the person is engaged in sexual activity,
(b) in respect of which, if it was recorded with consent, at the time of the recording and afterwards, there were circumstances that gave rise to a reasonable expectation of privacy,
(c) any facsimile image, whether generated by computer graphics or in any other way, purporting to be the genital organs, anal region or breasts of the person or to be an image of the person engaged in any sexual activity, or
(d) any photographic or video-recorded image of the person, or any other person, manipulated so as to appear to be an image of the person’s genital organs, anal region or, in the case of a female, her breasts or of the person engaged in any sexual activity;”.
First, I want to thank the individual campaigners and organisations which have supported Deputies and Senators over the past number of weeks in strengthening this Bill with suggested amendments arising from their lived experience of supporting women and men affected by the issues in this Bill, particularly the Rape Crisis Network Ireland, RCNI, Safe Ireland, the National Observatory on Violence against Women and the Domestic Violence Advocacy Service.
Amendment No. 1 is a comprehensive rewriting of the definition of intimate image in the Bill and I thank the RCNI for its assistance in drafting it. This definition is key as it sets the parameters for the kinds of images and related offences that will be covered by this legislation. It is the definition on which this entire Bill is founded and on which its successful implementation will depend. I know that issues were raised with the previous definition and whether it was comprehensive enough in applying to so-called deep fakes, where an individual may have their image altered and superimposed onto sexual images of other bodies. These may not be intimate images of the individual, per se, but the distressing effect is obviously the same and indeed could potentially be worse.
I welcome that the Minister of State accepted an amendment to this section from Deputy O’Callaghan which resolves the deep fake issue. However, in my amendment, which is an edited version of one submitted by Deputies Pringle, Collins and Connolly, I am concerned that there is no explicit recognition in the definition of the principle of consent and that whether the image was taken with or without an individual’s consent is immaterial in defining it as an intimate image, which is why I have specifically included an additional clause of with or without consent in my proposed amendment.
Amendment No. 2 is also a rewording of a similar amendment tabled by Deputy Pringle. That amendment sought to expand and clarify that section 2, which is the principal section relating to the distribution of intimate images and would apply to various other related actions, including advertising, transmitting, and selling such images. The Minister of State, in responding to the amendment in the Dáil last night, said he believed that all such activities were adequately covered by the current wording with the exception of the “make available” clause. I am, therefore, proposing that such a clause be inserted into the section 2 offence.
Amendments Nos. 3 and 4 relate to additional and specific offences that have been called for by the various NGOs which advocate and provide services in this area. Amendment No. 3 would add a specific provision on making the recording of an intimate image with attempt to cause harm an offence. This was a provision that was contained in Deputy Howlin’s Bill, as initiated, but was removed during the Dáil debate. The Rape Crisis Network Ireland has called for the offence to be retained, stating in a submission made to all Senators that, "The fact of recording or the threat to record intimate images is every bit as capable of causing harm as their threatened or actual distribution or publication." I ask the Minister of State to comment on why such an important offence has been dropped and to consider reinstating it.
Amendment No. 4 relates to a specific additional offence of retaining intimate images. This was the specific wording asked for by Safe Ireland in their commentary on the Dáil Report Stage amendments circulated yesterday. If a person is holding or keeping intimate images with the intention of causing harm and distress, this should also be a criminal offence along with the distribution of images.
Section 2, which creates a new offence, reads:
(1) A person who distributes, publishes or threatens to distribute or publish an intimate image of another person—
(a) without that other person’s consent, and
(b) with intent to cause harm to, or being reckless as to whether or not harm is caused to, the other person,
is guilty of an offence.
I note that the maximum penalty for an offence under section 2 on conviction on indictment is seven years. I simply question by referring to the related piece of legislation-----
My apologies, Senator, but I believe we are on amendments to section 1 at the moment.
I thought Senator Ruane had gone on to section 2.
No. We were looking at the amendments Nos. 1 to 4, inclusive, which are to section 1.
My apologies, Acting Chairman.
Do any other Senators wish to speak to the amendments to section 1? I call Senator Ward.
I have great sympathy with the proposal Senator Ruane has put forward. I know she has recognised that there is a certain reality to the proposal being put but the definition of these offences is a very difficult issue to grapple with and is technical, and the notion that one has to cover every eventuality is very difficult because one has to imagine offences that have not even been committed yet or things that we may wish to make into offences. The definition is difficult.
Both section 1 itself, in the definition of intimate image, and amendment No. 1 contain, for example, a reference to something that purports to be a person's genitals, buttocks or anal region and in the case of a female, her breasts. That, in itself is problematic. There is similar terminology used in the Child Trafficking and Pornography Act which deals with child pornography and it has had knock-on effects in terms of the prosecution for offences under these matters that go beyond what the Oireachtas ever intended. The significance of that word "purports" is that if anyone, for example, were to draw a doodle - imagine a child in school drawing a doodle of his or her classmate - that that would constitute such an image. That could be done innocently or maliciously. I know that later sections which deal with the distribution of intimate images specifically provide for the necessity that there would be an element of intent, sequelae or consequences from that.
One of the difficulties I have, both with the proposed amendment and the definition, is that an intimate image is currently defined as follows:
“intimate image”, in relation to a person, means any visual representation (including any accompanying sound or document) made by any means including any photographic, film, video or digital representation-
(a) of what is, or purports to be the person’s.
I doubt that the framers of the Bill intended for the definition to be quite as wide. I rely entirely on the prosecutorial discretion of our prosecutory authorities be it the Garda at summary level or the Director of Public Prosecutions, DPP, at the indictable level. I am concerned that if we frame the definition too broadly one will bring into the scope of serious criminal matters people who really should not be there, never intended to be there and never had the intention to commit an offence.
Later, I will talk about section 8 and the prosecution of individuals of a certain age. There is a danger of criminalising children in a way that we never intended to. All parties have discussed the provisions of the Bill on Second Stage. Of course we need to deal with people who genuinely intend to cause harm, are causing harm and even those who are unintentionally causing harm. As the Minister of State said when he wrapped up on Second Stage, the message must go out that this is not acceptable. The passing of this legislation will afford teachers, parents and other people who deal with children in a supervisory capacity the opportunity to say, "Do not do that as you are breaking the law and are liable to prosecution". At the same time, I have great sympathy with what Senator Ruane has put forward but we need to consider not having overly broad definitions that end up criminalising people who we never intended to criminalise.
I do not propose to speak at length on any amendments but just want to make a point on this group. To follow on from what the Minister of State said at the end of Second Stage, he was right to emphasise that the Bill is not flawed and does not require amendment. That is the view of the Labour Party which initiated this Bill and in the view of my colleague, Deputy Brendan Howlin, who steered through First and Second Stages through the Dáil. Second Stage was taken in the Dáil three years ago. I have his original draft with me. Deputy Howlin and the Labour Party group drew up the legislation on the basis of the report produced by the Law Reform Commission. There had already been extensive deliberation by the Law Reform Commission. The definition of an intimate image that was used in the initial version was then subject to redrafting in consultation with the Office of the Attorney General and the officials in the Department of Justice, whom I thank, and in consultation with Deputy Howlin who is the instigator of the Bill. It is on that basis that the Bill comes before us. I am conscious that Committee Stage was debated in the Dáil on 1 December and that Report Stage was debated yesterday.
There has been a good deal of debate on the definition of an intimate image and those offences are dealt with in sections 2 and 3. Obviously the intimate image definition is central to those offences but not to the later provisions in sections 4 and 10 on the more general points on the new offences of online harassment and abuse. The definition has been debated and has evolved over the course of the parliamentary process. All of us are conscious that it is a difficult area to get the balance right. There is clearly a concern about potential over reach. There is also a concern that we all have about ensuring that we legislate sufficiently to cover all relevant abusive behaviour. We must also be mindful that this Bill cannot do everything. It does not regulate online content more generally. It does not address the civil law aspect which requires a separate legislation. The report by the Law Reform Commission dealt with both criminal and civil aspects. This Bill only deals with the criminal aspects and it does not address other issues around the spread of misinformation by online communication. It does not address hate speech. We know there is separate legislation. Again, it is difficult to strike a balance around that or child sexual abuse imagery about which we already have legislation. I am cognisant of all that when debating these and other amendments.
The Labour Party and Deputy Howlin are happy with the Bill as it stands. As Deputy Howlin said, we recognise this is an evolving area and technology moves on. We are happy that there is a three-year review built into section 12. That should offer reassurance to colleagues and the NGOs which have concerns and which engaged so constructively with all of us. I have already paid tribute to the work of Women's Aid, Safe Ireland and others. With all of that in mind, we are happy to see the definition of intimate image in section 1. We are also happy with the provisions on the offences in sections 2 to 4, inclusive, and 10, and with the safeguards that are built in.
I do not propose to speak on individual amendments or groupings but I have make a general and crucial point about the amendment. We want to see a robust legal framework put in place before Christmas and I think that is what the NGOs want. It is certainly what Jackie Fox wants and what the campaigners who we have dealt with would like to see, and what my colleague, Deputy Howlin, has sought.
Other colleagues have made important points about the role social media platforms should play and the need to ensure there is a stricter regulation of their behaviour, and that they need to be doing more in this area. We are all cognisant of the importance of protecting victims against image-based sexual abuse, and against online bullying and harassment, both of which this Bill seeks to do. The Labour Party is happy with the Bill as it stands.
When I looked around the Chamber earlier, I thought that I was outnumbered by legal experts and barristers and I probably still am so I bow to some of the eloquent language used by my learned colleagues. Using normal language, I fully support amendment No. 1 and I do not believe that means I am saying the Bill is flawed. I do not think the Bill is flawed at all but Bills can be enhanced. The one part of the Bill I have a little bit of a difficulty with, and it is not a criticism, is that I think a three-year review is too long away. We are going to very quickly realise the ugly reality of Ireland today and waiting three years to conduct a review is a little bit too far away. I encourage Senators to submit a miscellaneous provisions Bill in the next couple of months. There absolutely will be one. The Minister of State will tell Senators that the Department has ambitions in respect of hate speech and stuff like that. There is definitely a forum for Senators to address some of the concerns they have raised in their very worthwhile amendments and I encourage them to do so.
I agree with Senator Doherty that three years is too long to wait for a review. We need to find ourselves in uncomfortable place as legislators. Once we are dealing with a legislative topic that is online and involves evolving technology then we will have to have an inbuilt review within a much shorter timeframe. I believe we should have annual review in order to anticipate and get ahead of the new forms of abuse and uses. Technology moves ahead of us all of the time. Every time I think I have mastered various platforms and gained knowledge about the different areas, ways and means of communications and abuse something else comes up. I look forward to the day when my daughter is old enough to educate me about what else is going on out there. One must adapt by keeping one's head in different generations and learn different ways and means of communication all the time. At one of the cyberbullying information forums I facilitated, as a councillor, we said that one must peruse the App download to see what young people are downloading so one can stay ahead of how they communicate with each other.
On Second Stage there was talk about a moral basis. We have got to somehow put in an ethical framework that reflects the best of public policy. However, in light of the fact that technology constantly evolves and changes, we need to sit in our discomfort and decide to review this to make it better all of the time and to respond at least on an annual basis. I will very much welcome a miscellaneous provisions Bill in the next couple of months.
The online safety and media regulation Bill will pick up some of these issues and some of the overarching framework and guidelines that are required.
I thank the Minister of State for taking on board what purports to be a very important amendment in the Dáil. I support that, but I think it will be difficult and we will always be living with that tension from now on in some of these areas of law. It is a new place for us to be in. We would like to sign off on something and feel it is done and dusted, but it is not going to be, and that is unfortunate.
I thank Senators for their contributions. Amendment No. 1 relates to the definition of an intimate image for the purposes of the offences at sections 2 and 3. A number of amendments on Report Stage in the Dáil yesterday sought to ensure that this definition included images that have been altered or doctored, commonly referred to as deep fakes. While I outlined to Deputies in the Dáil yesterday that I was confident that the original definition did in fact cover such alterations, I did understand their concerns and the concerns raised by others. Therefore, I accepted an amendment to include the words "what is, or purports to be" into paragraph (a) of the definition, to allay those concerns. On that basis, I will not be supporting this amendment, as I believe the matter has been addressed in the Dáil.
Amendment No. 2 seeks to include the words "makes available" into section 2(1), which would mean that it would be a criminal offence to make an intimate image available. There are some concerns about the definition of what this may be and that perhaps the vagueness of it might give rise to certain difficulties in the prosecution of a criminal offence. The lack of clarity is causing problems so, unfortunately, I will be opposing amendment No. 2.
Regarding amendment No. 3, Senators will note that the recording of an intimate image without consent is provided for in section 3. I appreciate that recording an intimate image without consent is a very serious matter and one which can cause harm to the victim of such an offence. I do not consider that it is as serious as distributing or publishing such an image or threatening to do so. Furthermore, proving an intention to cause harm related to the recording of an image would be quite difficult as this type of behaviour is often done for voyeuristic reasons. I therefore feel that its inclusion in section 3 is more appropriate, given the fact that there is no need to prove an intention to cause harm and there is a more proportionate penalty therein.
Regarding amendment No.4, I outlined my position on the retention of images in the Dáil yesterday. I believe that criminalising the retention of intimate images could give rise to serious unintended consequences and this concern was echoed by other Deputies. There are offences to deal with the distribution and publication of intimate images or threatening to do so, and this is considered appropriate. I cannot accept the amendment to provide for the retention of images, in particular where there are no safeguards put in place in respect of this matter.
Regarding keeping the legislation under review, there is a three-year review built into the system. All Bills are kept under constant review but there is a requirement to complete a report, post-enactment, of all Bills passed by the House. We are going to report after one year and a full review will be carried out after three years. The one-year review has been criticised on the basis that it takes time, especially with criminal offences, for the first offences to work their way through the courts system and if there are issues, perhaps they may not arise after one year. For that reason, a report after one year and then a three-year review are required and that should catch any issues. I do not believe there will be.
The word "representation" was deliberately chosen to cover images ordered by any means. The offences are all based on intent or harm and, therefore, the view was taken that it is not too broad, because one will have to show both an intent to harm and to actually cause harm as well. Sufficient protections have been included on that aspect of the Bill.
In putting forward these amendments, as I outlined on Second Stage, it is in no way to put out the message that the Bill is flawed or does not fulfil its intentions. It is always good for legislators to have an opportunity to engage with the legislation and to at least signal our future intentions on how we feel the legislation should be improved. The fact is that there will be a review within three years and we can examine the evolution of the Bill within that time. We must also acknowledge that even since the body of work done by the Law Reform Commission, LRC, in 2016, there has been a significant amount of change. The initial body of work does not always stand up in every sense. I will not press the amendments. It is more the case that I wish to put on the record that when the other legislation comes in, these are the areas I feel need to be improved. I will withdraw the amendment.
Amendments Nos. 5 to 8, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 5:
In page 4, line 5, to delete “and” and substitute “or”.
On the surface, amendments Nos. 5 to 8, inclusive, all relate to small changes to the wording of section 2 on the distribution of intimate images. However, they are important in that the overall intent is to make the legal threshold at which distribution becomes a crime more accessible and easier to prove for the victims of these offences. I am grateful to the National Observatory on Violence Against Women for calling for these important changes. As the Minister of State will be aware, we are currently in the process of reviewing many State processes and laws, as they relate to sexual offences, in particular the experience of victims moving through the justice system and how they are treated as individuals and on a system-wide basis. The most prominent example of this has been the recent publication of the report by the Department of Justice's working group chaired by Tom O'Malley, which has made a number of very significant recommendations and proposals for reform to improve the deficiencies identified, in particular in how victims of sexual assault are treated in the courtroom. I welcome these moves, as they are important. These amendments are tabled in that same spirit. I am concerned that every time an offence provision is qualified with a largely subjective word like "seriously", we are shifting the legal burden of proof from the perpetrator of the offence to the victim. I hope that we would have learnt from the O'Malley process and our obligations under the Istanbul Convention that this is bad practice and all legislation must be drafted in cognisance of the fact. I propose amendments Nos. 6 and 8 to rectify the issue in the Bill.
Amendment No. 5 would replace the word "and" with the word "or" to create two distinct offences, first for the publishing of an intimate image without the person's consent and, second, doing so with the intent to cause harm. I believe that requiring a victim to simultaneously demonstrate both offences is too high a legal bar and they should be decoupled from each other. Amendments Nos. 7 and 10 would have a similar effect.
Section 2 is a relatively measured section, but I still think there are issues in terms of the manner in which it was drafted. I raise the same issues that I did in respect of the definition section, that there may be scope, in particular in subsection 2(a), for example, to overly broadly create an offence.
Subsection (2) states:
For the purposes of subsection (1), [which deals with the offence of distributing, publishing or threatening to distribute an intimate image] a person causes harm to another person where—
(a) he or she, by his or her acts, intentionally or recklessly seriously interferes with the other person’s peace and privacy or causes alarm or distress to the other person ...".
The small concern I have about it is that it should not be a criminal offence to cause distress or alarm. That could be done in a perfectly lawful way. It is the manner in which it is done that should be criminalised. It is the intention underpinning it that needs to be criminalised. There is definitely an interpretation of that section with reference to the words “intentionally or recklessly” which, arguably, covers that base but I wonder if the absence of a comma there could suggest at a later date that somebody charged with this offence under section 2 could use the wording to bend the way the section was intended. I understand from where Senator Ruane is coming with these amendments but I do not agree with her on this. She said they are small changes but they would make a substantial difference to the way the section would operate. The word "seriously" would be removed from subsection (2)(a) and the word "and" would be changed to the word "or" in subsection (1)(a). That means the offence of distributing, publishing or threatening to distribute or publish an intimate image either without the person’s consent or with the intent to cause harm would be an offence if the amendment were accepted, which would mean doing it without the consent in and of itself would be an offence. I do not have a difficulty with that but I have a difficulty with the maximum sentence for that being seven years imprisonment. That puts it beyond the proportionality measure. I do not have a difficulty with creating an offence of distributing, publishing or threatening to distribute an image without the person’s consent; that is a serious breach of ordinary civil behaviour. We are criminalising it in this section and I have no difficulty with that.
Amendment No. 5 proposes "and" would be changed to "or" and would make doing that without the person’s consent in and of itself an offence. Subsection (3)(b) provides that a person who does that would be liable to seven years imprisonment. I think fault would be found with that by the superior courts in terms of the proportionality of the offence with the penalty that is provided for it. A similar issue arises in respect of amendment No. 7, which proposes changing the word "and" to the word "or". That would create an either-or dichotomy which would allow a prosecutor who was less sensitive to the balancing of these things to create a small offence out of something that in and of itself should be an offence, which I do not dispute, but the person would then be subject to a very substantial penalty. That is the difficulty I have with the amendments, notwithstanding from where the Senator was coming in tabling them.
I welcome any amendments. Irrespective of whether they are accepted, they play an important part in testing the legislation and making it more robust. Legislation should always be a challenged. Once a Bill has been tested by way of amendments and passes through this House, we can be more confident of it. Any comment about broadness within the Bill was more directed at one or two Senators who were making a few criticisms of the Bill.
Amendments Nos. 5 to 8, inclusive, relate to section 2. Amendment No. 5 seeks to delete the word "and" substitute the word "or" in subsection (1). This small change would have very serious implications in the context of the offence by providing that an intimate image could be distributed or published either without consent or with intent to cause harm, which would have the effect of making this offence a strict liability offence as it would remove the requirement to prove intention altogether. As Senators will be aware, intention is a fundamental element of the law regarding criminal offences. Offences without a requirement of some form of intention, more commonly referred to as strict liability offences, are the exception rather than the rule in legislation. Strict liability offences are generally dealt with by way of a summary prosecution and do not attract very high penalties to reflect the fact that they can be committed with no intention or even knowledge on the part of the defendant and this offence carries a maximum penalty of an unlimited fine and—or seven years imprisonment. Therefore, unfortunately, I cannot accept the amendment that would make this a strict liability offence. I would have strong concerns that such an offence would be open to constitutional challenge.
Amendment No. 7 also proposes to delete the word "and" and substitute the word "or" in subsection (2). I appreciate the intention behind the amendment. A similar issue arises with this amendment, as with amendment No. 6. The purpose of paragraph (a) is to include a requirement that the acts complained off seriously interfere with the peace and privacy of the victim or cause them harm, alarm or distress. Paragraph (b) includes a requirement that a reasonable person would realise the harmful effects of those acts. A reasonable person test is common in legislation where intention to cause harm is an element of the offence to avoid a situation where behaviour that would not reasonably cause harm is sufficient to meet the offence.
Amendments Nos. 6 and 8 seek to remove the requirement that the behaviour referred to in the offence seriously interfered with the peace and privacy of the victim of the offence. I appreciate Senators may be concerned that the requirement to prove a serious interference could be an onerous burden in a prosecution. This word is included in the offence for a good reason. If it was sufficient to prove that the behaviour simply interfered with the peace and privacy of a person I would have a very real concern that the bar is set too low in terms of the penalties for the offence. This formula is used in the offence of harassment and I am not aware of any onerous requirements on a prosecution on proving the impact of the offence on the victim. I am satisfied this section should not amended in this way.
Does any Senator wish to come in?
While I accept the Minister’s position, there is something in the "or" element of the amendment. I ask that it be borne in mind for future legislation. Perhaps a lesser offence needs to be created in future legislation. If we say it always must be inextricably linked with intent we are providing almost a defence of, for example, a person claiming they were not in control of their phone. There is also the issue of fraping on Facebook and the excuse is given by the person concerned that it was not them, that they did not do it. That has been used in house-----
The claim of Russian hackers has been used a few times.
Yes, exactly. Given that these offences occur on mobile devices and the person claims their device was hacked or someone knew their password, if a person is in an intimate relationship with someone and has their image on their mobile phone, the person has a responsibility to protect that image or to delete it if the person is no longer in that relationship or whatever may be the reason the person came into possession of that image. There is something here in that when we always must have intent we are removing responsibility for what is held. In civil law we would be talking about intellectual property, with the image being the intellectual property. If a sportsperson's image is used, they can sue on that basis. We are now creating a criminal offence but, by always inextricably linking it with intent, we cannot remove the responsibility, once a person is in possession and control of the image of somebody else, particularly a vulnerable image, that if the person did not have an intent that would give them an excuse. There may be a need for a lesser offence to be created on the basis of a strict liability offence that is justified if for no other reason than to create a deterrent that once a person has and is in control of someone image, the person has a responsibility and a duty always to protect that image and what happens to it. I support Senator Ruane in that respect.
Senator Ward was correct in what he said regarding proportionality. I did not have the time to rewrite a section between the Bill being passed in the Dáil on Thursday and being taken in the House today. I will get that little dig in there. As Senator Seery Kearney said, I would look forward to amending the legislation through miscellaneous provisions to provide for lesser offences where we could decouple some of that language.
Regarding what the Minister of State said concerning "seriously" and "causing offence" versus "seriously causing offence", that issue will come up again in respect of the harassment element; however, in my recent experience, it would be very hard to prove that receiving a postcard or someone sending me a bunch of flowers is causing me serious offence or harm, although it may be part of a larger continued pattern of behaviour. My point, therefore, concerns how we can begin to pick up those patterns of behaviour over time, and how difficult it is for a woman to be able to present this information in a way that shows such behaviour is serious, because it may not look serious on the surface when trying to explain it. For that reason, there are several provisions throughout the Bill where we must remove the onus and burden on the victims to try to prove what "serious" looks like.
I hope in cases of lesser offences, where intent is not needed, that many of the concerns raised by the Senators would be covered by section 3, which is a strict liability offence and intent is not required.
I thank the Minister of State for that clarification. Do any other Senators wish to speak? If not, does Senator Ruane wish to press this amendment?
I withdraw the amendment.
Amendments Nos. 9 to 13, inclusive, are related and amendment No. 12 is a physical alternative to amendment No. 11. Amendments Nos. 9 to 13, inclusive, may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 9:
In page 4, line 23, after “records,” to insert “retains,”.
Amendments Nos. 9 and 12 relate to a specific additional offence of retaining intimate images in a similar vein to amendment No. 4. Amendment No. 11 is again an amendment that was raised with me by the National Observatory on Violence Against Women regarding concerns in respect of section 3 and the offence concerning the recording of an intimate image without consent. The current offence sets a disproportionately high legal bar, in that such a recording must represent a serious interference in the life and privacy of the victim. Our concern here is that the wording again places the burden on the victim to justify the nature of the abuse that has been suffered, rather than placing the focus fairly on the perpetrator. My suggested wording of amendment No. 11 would refocus the offence so that the balance is more fairly distributed between the perpetrator and the victim.
Regarding amendment No. 13, I apologise for the fact that due to the tight deadline following the Dáil debate to submit amendments, my office got the line references wrong. The amendment is intended to apply to section 4 rather than this section. I am going to proceed in the context of how I intended the amendment, instead of how it is tabled. The amendment will be familiar to the Minister of State anyway, as it is just a restatement of similar amendments tabled by Deputy Howlin in the Dáil last night. This amendment would strengthen section 4 by ensuring that where someone has distributed a threatening or offensive communication, it shall be presumed, when that communication has a negative effect, that the perpetrator knew what "the consequences of his or her acts" would be. It was this amendment the Minister of State referred to earlier regarding assuming, in respect of the Jackie Griffin video, that it would be covered in section 4. It is that part of the Bill the amendment seeks to further strengthen.
I speak on amendment No. 11, which proposes to substitute a new paragraph (b) in subsection (1). I like this amendment and I think it sets up exactly the type of test a court should conduct. The amendment would see the section essentially stating that, subject to subsection (2), a person is guilty of an offence where he or she has been responsible for the distribution or publication of an intimate image and “(b) that his or her acts are such that a reasonable person would realise that the acts would interfere with the other person’s peace and privacy or cause alarm or distress to the other person.”.
Quite separate from the issue I raised in an earlier section regarding the possibility of merely causing alarm or distress, here we have a situation where we setting up for the court, be that a judge in a summary matter, or the jury in an indictable matter, exactly the kind of test we want this Bill to do. I refer to asking people to look into the mind of the person accused and to assess if a reasonable person in that position would have realised that what he or she was doing would have had the implications that nobody desired and which ultimately resulted from what he or she did. I like the provision drafted here, therefore, because it sets this matter out clearly.
One of the great difficulties with this type of legislation is looking into the mind of the alleged offender and deciding, in the case of non-strict liability offences, whether he or she intended the results of what he or she did. This amendment, however, sets out exactly what a judge or jury should be doing in that regard, namely, looking at what a "reasonable" person would do. We often talk about reasonable people in respect of the law, when, in fact, few of us act as reasonable people in real terms. This is, however, the test that is applied currently in so many criminal matters and it is an appropriate one. It would allow the judge of fact, be that a judge or jury, to decide, by looking into the circumstances of the person concerned, whether a reasonable person in the same circumstances would have understood the consequences of his or her action. This proposed amendment, therefore, adds to the Bill and it would be a fine addition to section 3(1).
I agree with Senator Ward. Whether someone intends to cause hurt, mild or egregious, to someone else is irrelevant, because it is not necessarily the intent but the outcome that matters. If a person is hurt, then he or she is hurt. I like the idea, therefore, of being able to be in the position of someone else judging whether a person's act is reasonable or not. On too many occasions, which we see this frequently in the world of politics, we get apologies after the fact from someone stating that he or she did not intend to cause any hurt, and that should make it okay. It does not make it okay.
I refer to the Senator and others who have suffered harassment. The stuff being said or done, in itself, might not necessarily be untrue or overly hurtful in isolation; but when it is persistent, either daily or on multiple occasions daily, over months and years, then such behaviour absolutely becomes egregious and harmful. It does not matter whether the person responsible can stand up at the end of the day and say that he or she is sorry and did not realise that he or she was causing hurt. That is irrelevant. The hurt and the outcome is the issue, regardless of the intent and whether someone meant it. It is the outcome that is important, and I again encourage the Minister of State to bring this back at the earliest possible intervention.
Regarding the Minister of State's reply, I believe that the word "and" between section 3(1)(a) and section 3(1)(b) neutralises the strict liability potential that could have had. Inextricably linking the "recording, distributing or publishing" of an intimate image with the serious interference with another's person's peace, again, still gives a reason for no responsibility. Concerning a person holding an intimate image or seeking to record an intimate image of another person, why, to try to understand that mindset, would a person want to record an image of another person? In respect of distributing or publishing the image, there should be a full stop after consent. Once it has been done without the person's consent, that in itself should be sufficient. To have that as the lesser offence, therefore, would have been sufficient.
I concur with Senator Ruane's view on that bar of "seriously", and that people have to have privacy and should not have to be caused alarm, distress or harm. There should be a level of ethic in our law that states that it is not okay to record an intimate image of a person without the person's consent. It should not go beyond that. I think this is great legislation and I am delighted it is happening, but I believe it does not go far enough in that respect.
Amendments Nos. 9 and 12 relate to the issue of the retention of images. I have already outlined, in discussions on earlier amendments, the reasons that I am opposing amendments of this nature. I point out that the inclusion of retention in section 3 would arguably be more dangerous than in section 2, as there is no requirement in section 3 to prove any intention in respect of the offence. I am not satisfied that this would be appropriate and therefore cannot support these amendments.
On amendment No. 10, I do not wish to remove the requirement from this offence that it must be proven that the behaviour referred to seriously interferes with the peace and privacy of the other person or caused the person harm, alarm and distress. The Law Reform Commission recommended that elements of this offence should include harm. I am satisfied that this is appropriate in all the circumstances.
Amendment No. 11 seeks to replace the requirements regarding the impact on the victim with a reasonable person test. I reiterate to Senators that this offence is one of strict liability. No intention is required. As such, it needs to be clear in scope. For this reason, I will oppose the amendment. Intention is irrelevant to this section.
Amendment No. 13 attempts to insert a provision to include a rebuttable presumption, that the person who commits an offence under section 3 intended the natural and probable consequences of his or her actions. This is unnecessary, as there is no requirement to prove any intention on the part of the defendant under this section. It simply does not fit with the offence. I appreciate Senator Ruane's comments on another section, but within criminal law, a person is presumed to have intended the natural, probable consequences of his or her actions. That is the test in criminal law because it is impossible to prove what was going on in a person's mind and his or her actual intention. The natural, probable consequence is well-established in criminal law. I would be concerned about including it when it is not included in other criminal offences and that it may be used to try to distinguish this offence from other criminal offences, which is not intended.
I completely accept that. However, while the intention of the perpetrator is irrelevant to the offence, the experience of the victim is a necessary element. That is where it becomes too complicated. It should not be about that. I appreciate that I have not tabled an amendment, which I probably should have. The very recording of an intimate image, even before distributing or publishing it, should not be about whether I find it acceptable or not. It should not happen. There should not be a recording of an intimate image of another person. It should not take place.
I come back to Senator Ruane's very valid point. I think the Law Reform Commission is fantastic. Its consolidation of legislation is amazing and it has always been a great resource to me, but its report in this regard is a couple of years out of date, and we have moved on as a society. What is permissible and acceptable regarding privacy and interference with privacy, and the threshold of what is now the assertion of privacy, is in a different place after a couple of months, let alone a couple of years. We need to come back to look at that at a later stage. Maybe that will be in the context of the review a couple of years from now, although for charges and arrivals to court for criminal offences, a year might be too soon. We need to have a threshold of what is okay in our society and we have an opportunity to do that in the future.
As with the other amendments, I will not press these amendments, but I look forward to working with the Department to move matters forward.
I endorse what Senator Seery Kearney said. I was speaking to a female colleague in the Dáil, who has two relatively young female staff in her office. She indicated to me that it is a routine matter that they receive fairly offensive and profane images by email in her office every day. One of the points she was making was exactly what Senator Seery Kearney said, that in a strange way, as part of this Bill, she has to be offended. Even though the behaviour by its nature is offensive and should be illegal, she has to be offended or somehow upset by it, and must concede that upset, and thereby concede something to the person who is sending the images in. As Senator Seery Kearney said, we should certainly look at whether we can update this law to make it more about the offender's behaviour than the reaction of the victim.
Section 3(2) has an important saver for the prosecutor. It states, "Subsection (1) shall not apply to a person who distributes or publishes an intimate image for the purpose of the prevention, investigation or prosecution of an offence under this section." That is an important provision. I remember the impeachment proceedings against a Circuit Court judge in 2004, when a Member of this House, who was Minister for Justice, Equality and Law Reform at the time, brought impeachment proceedings in respect of a particular individual who had been accused, and acquitted, of the possession of certain images. A special Act of the Oireachtas had to be passed to allow the Oireachtas committee that was considering the impeachment to view the images involved. It was a tremendously cumbersome instrument that is bypassed by this saver in section 3(2). It represents some forethought and heading the problem off at the pass when this Bill was drafted, and is worth remarking on.
Amendments Nos. 14 and 15 are related and may be discussed together.
I move amendment No. 14:
In page 4, line 37, after “threatening” to insert “, private”.
Amendments Nos. 14 and 15 are attempts to legislate for a criminal offence for the practice known as doxing, where an abuser will publish private information such as home addresses or bank account details publicly on the Internet to terrorise their victims. The amendments have been tabled on the advice of the National Observatory on Violence Against Women and I would appreciate if the Minister of State could comment on this practice and whether it is covered adequately by the Bill.
Amendments Nos. 14 and 15 seek to include private messages within the ambit of the offence under section 4. Senators will understand the difficulty in seeking to legislate in the area of communications, speech and private interactions. It is imperative that any such offences do not interfere unduly with the constitutional right to the freedom of speech and that they are proportionate.
Extensive consultations were held with relevant justice stakeholders to develop this offence and the main concerns were that a very broad provision in relation to messaging and communications could see a lot of online posts or communications between persons coming within the remit of the offence. The inclusion of the word "private", particularly as it appears undefined, could broaden the scope of this offence in an undesirable way. It is not clear whether the word "private" relates to personal information or, for example, private information that could be reasonably communicated in the public interest. For those reasons, unfortunately, I cannot I cannot accept the amendment.
Can the Minister of State comment whether it is an offence under the legislation?
What is it called?
I believe under this legislation, it probably is not.
It is important issue regarding a tool of abuse and is something that could be looked at. It is one of the ever-evolving things we encounter that can be used in the absence of the more normal ways in which to abuse or engage in harmful communications. I will withdraw the amendment but I hope that the Department will consider an amendment to make it an offence in some way.
I appreciate the amendment is being withdrawn but I have a query for the Minister of State. He said the reason the Department was not minded to include it is because the sharing of private information might be in the common good. I do not know how that can be a good thing. Every single one of us is entitled to our privacy. The information that I have at home, for instance, bank accounts, is my private business. Sharing it is not in anyone's interest or common good; it is my private business. Particularly in the context of the amendments as they relate to coercive control, and we are talking about men using power over women to control them, how in God's name could that be in the common good? Will the Minister of State expand on what he means? I can appreciate that it may not be suitable for this particular Bill but if it is not a criminal offence, and the Minister of State has told us it is not, why not? There is way that people being able to share private information to control and manipulate us is in anyone's good, let alone the common good.
To be clear, no one is suggesting that this would be in the common good. Where any private information is shared, where that is intended to be harassing, is unacceptable, wrong and something that should be addressed. Speaking on this section of the Bill, it does not seek to make doxxing a criminal offence. That is not to say that it is not wrong or that it should not be a criminal offence but it simply is not being dealt with within this Bill. I do not suggest that doxxing or anything similar can be done in the common good but there may be instances in the common good where private information needs to be shared. I cannot get into every possible instance where that may be the case but we have to be very careful that there are not unintended consequences. The word "private" is not defined in the amendment and therefore, putting such a word into a Bill like this without a definition could have serious unintended consequences. To give an example, some of my personal details are shared by the Standards in Public Office Commission, SIPO, and that is both allowed and in the common good. Were we to start making any sharing of private information a criminal offence, it could have very serious unintended consequences. It would have to be very clearly defined and thought out where there might be unintended consequences and safeguards put in place. I appreciate where Senator Ruane is coming from. The issues she is talking about are very serious and it is something I have seen myself but it is not something that can be put into this section by way of simply inserting the word "private".
We might explore this in the context of general data protection regulation, GDPR, and data protection legislation. We probably have another piece of work to do about putting it into a criminal justice context. My home address is on the public record because it went on a ballot paper at one point. Things like that are known and the big poster in the front garden was the giveaway. There are contexts in which the publication of that information is appropriate. It was appropriate for South Dublin County Council to publish it, it was appropriate for it to go on a ballot paper. However, it is different if someone goes to the trouble of putting up my address for a reason that is not appropriate, because the handing over of my home address was for one purpose and for the processing of my personal data in a particular context and for a particular purpose. Doxxing is for a harassment purpose. It is to mobilise people to protest outside one's door. In that context, we need to consider broadening the definition for a criminal justice purpose of what is a data controller. The minute one assumes a processing role on personal data for a purpose other than that for which those data were surrendered and puts them on a social media platform, then I think there is something we can probably do in future to address doxxing. I appreciate there is a challenge in the wording when we have to define what is "private", but there is probably another way of going around it that would be very beneficial.
I am sorry to be picky but I understand from the Minister of State's response is that it is not appropriate to this section of this Bill because we did not define "private". But it probably is appropriate to this section of this Bill. If all that was wrong was a definition of "private", that could have been easily fixed or it could easily be stated now that if we bring back a definition of "private" in the context of something that is entirely different - say, me giving my information to SIPO with consent for it to publish because I have no choice, or my giving my information freely to anyone else to publish - to someone manipulatively using private information of mine for the purposes of controlling me or for controlling other groups to come and harass me directly. It is entirely different. Will the Minister of State clarify that he did not mean that it was not appropriate in this section per se but that it was not appropriate because the definition of "private" was not included? I am just curious.
Yesterday I brought a Bill to the Dáil which will be before the Seanad in the new year, the Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Bill. It has requirements that banks will have to share personal information with State bodies. I also refer to other areas dealing with whistleblowing, for example. Consequently, any potential unintended consequences around the word "privacy" must be guarded against. Unfortunately, the word is not defined here and in those circumstances I cannot accept the amendment. I certainly agree with Senator Ruane's intentions and her concerns around the issue of doxxing, which is very serious. I have no difficulty addressing it in future legislation, if that is what needs to be done. I am simply saying that in the context here, the word "private", were we to accept it here today, would potentially have serious unintended consequences.
This points to why a review in three years is probably too far away. I am happy to withdraw the amendments in the hope of having continued conversations around the practice of the practice or abuse of doxxing.
I wish to raise a matter. The Minister of State referred to the importance of the Constitution's freedom of speech provisions and the protection of same. I have a concern about the way section 4 is phrased in that it is overly broad. This matter was raised on Second Stage. The section reads:
(1) A person who—
(a) by any means—
(ii) sends any threatening or grossly offensive communication to another person,
(b) with intent by so distributing, publishing or sending to cause harm,
is guilty of an offence.
Harm is defined in subsection (2) as where "a person intends to cause harm where he or she, by his or her acts, intentionally seriously interferes with the other person’s peace and privacy or causes alarm or distress to the other person." I can think of a number of examples where, in an entirely lawful way, a person might write a letter or send a communication that qualifies under subparagraph (1)(a)(ii) as being threatening and also satisfies the requirement of harm under paragraph (1)(b), being that it causes alarm. The first one that springs to mind is legal proceedings. Another might be a summons to court, a speeding fine or a warning notice from a local authority. Those are official communications, but what about, from neighbour to neighbour, notifying of an encroachment onto the property of one or, in terms of farming, livestock gets from one field into another and one farmer sends what could be described as a "threatening" letter to another, which is 100% designed to cause alarm and thereby achieve results? There is a notion of comparing that scenario to the reality of what we mean by this Bill in terms of the serious intent of individuals to infringe upon people's enjoyment of life, mental health and so on, but the two are not related.
Perhaps there is something I do not see, but I am concerned at the manner in which subsection (1) is drafted and the definition of "harm" in subsection (2). A perfectly reasonable and lawful, albeit unpleasant, communication between two individuals would satisfy the requirements of the section to commit an offence, which would carry with it, on indictment, a penalty of up to two years in prison. In light of the freedom of speech provisions that the Minister of State mentioned, I identify that there is a possible difficulty in this regard.
Something that the Bill probably does not do, particularly in section 4, is differentiate between the intentional action of an individual to cause gross offence and attack someone by means of an electronic or other communication and a person who might take offence in a particular way. These are two different scenarios. If the section does not distinguish between them, it creates an offence in respect of one that is unreasonable and disproportionate.
This conversation interests me. I understand the Senator's point about something that is done lawfully causing distress, but there are also situations where someone uses lawful measures as a tool to abuse. On Second Stage, I mentioned two people on whose radar I am. One of them has used the courts in a vexatious way to continue abusing me and has tried to summons me to court. He is lawfully sending me summonses but I have never met him. I have had to avoid taking leaflets from people on the streets because, since I do not even know what he looks like, I think he will jump out an hand me something. The Garda has tried to get me an image of him. He has been very threatening.
How does one make the distinction the Senator mentioned when something is lawful but also abusive? That is another conversation because the intent is not to use the law in the way it was intended but as a form of abuse. This happens in children's courts all the time in terms of guardianship. A parent will continue to take a woman to court and will be given guardianship with a nod of the head but will not pay maintenance, take the child or so on. The guardianship is a tool of control, in that the other parent would still have a say regardless of whether he or she wanted to co-parent. We need to examine how, in some situations, abusers can use the law as a tool to continue to control.
Subsection (2) goes to the definition of "intent" as opposed to defining what "harm" is. Under subsection (1), there is a requirement that it must be a threatening or grossly offensive communication to another person. The Attorney General and the DPP are satisfied that there are no concerns that legitimate communications could be covered by this. As Senator Ruane points out, legitimate communication can be used for illegitimate purposes. We must ensure that the use of those types of communication is covered when they are abused. We are satisfied that this section does what is intended.
I read this section and took great comfort from it. Every now and again, I get letters that challenge me for daring to have a double-barrelled surname. I am confident that the Deputies Healy-Rae never get similar letters. The challenge is designed on the fact of my gender and the letters are grossly offensive and make all sorts of assumptions because my husband and I decided to take each other's name. In that light, I read this section as possibly putting manners on some of these people, who think they were entitled to write in with their full opinion and so on, which is irrelevant to me carrying out my job. I hear Senator Ward's concerns, but this provision would in practice be constrained to where it was intentional to cause harm. From that point of view, it is a great section.
Amendments Nos. 16 and 17 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 16:
In page 5, between lines 12 and 13, to insert the following:
5. (1) A person who, without lawful authority or reasonable excuse—
(a) intentionally or recklessly—
(i) follows, watches, pesters or besets another person,
(ii) communicates with another person, or
(iii) communicates with a third person about another person,
(b) by those acts seriously interferes with the peace and privacy of the other person or causes alarm, distress or harm to the other person,
is guilty of the offence of harassment.
(2) A person guilty of harassment is liable—
(a) on summary conviction to a class A fine or to imprisonment for a term not exceeding 12 months or to both, or
(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding seven years or to both.
(3) Where, in proceedings for an offence under this section, the court is satisfied that the defendant by his or her acts both—
(a) intentionally or recklessly interfered with another person’s peace and privacy, and
(b) caused alarm, distress or harm to the other person,
the court may take that fact into account as an aggravating factor in determining any sentence to be imposed on the defendant for the offence.
(4) Where, in proceedings for an offence under this section, the court is satisfied that in the course of or for the purposes of committing the offence the defendant—
(a) made use of personal information about the other person, being information that would, in the ordinary course of events, be known only to the other person or members of the family, or friends, of the other person, or
(b) made use of any electronic device or software in order to monitor, observe, listen to or make a recording of the other person or his or her movements, activities and communications, without the other person’s knowledge and consent,
the court may take that fact into account as an aggravating factor in determining any sentence to be imposed on the defendant for the offence.”.
This introduces an amended version of the section on harassment that was included in the Bill as initiated by Deputy Howlin. The section was deleted in the Dáil despite calls from NGOs for a specific section and offences to be included. The Bill is titled, "Harassment, Harmful and Communications and Related Offences Bill", but since this section was deleted, there is no specific harassment section in the Bill that the Minister of State is proposing to enact, which is of concern. The Government is making amendments relating to harassment offences in the Non-Fatal Offences against the Person Act 1997. I have concerns about those and we will discuss them shortly, but I am still concerned that we do not have a section in the Bill articulating and codifying a strong harassment offence.
My amendment would make a number of statutory changes. Most notably, I have dropped the words "persistently" and "seriously" to lower the legal bar for victims. I would appreciate the Minister of State's comments on these changes.
The National Observatory on Violence against Women has called for a specific stalking offence, which is the subject matter of amendment No. 17.
I again find myself agreeing with my colleague. The irony is probably not lost on anyone that the Bill, which we will all call Coco's Law, is about harmful and harassing communications but the section on harassment has been removed. I am sure others will be able to attest to their own experiences, but this is disappointing personally.
I spent two years being harassed daily, if not multiple times daily, by a lady who is a very large supporter of a political party and subsequently went on to be an elected representative of a political party. At breaking point after two years, I went to the Garda and attempted to take a case against her for that harassment under the very much outdated 23-year-old legislation. I did so because I was at breaking point and the harassment was having such a massive impact on my daily life, well-being, mental health and the peace that each of us should enjoy in our lives. The Garda investigated and spoke to the lady, who suggested that she would never do it again. Rather than not doing it again, she brought about a significant pile-on accusing me of actually harassing her by going to the Garda in the first place. That was four years ago. I dealt with it and got over it but there are thousands of people in Ireland today suffering harassment on various levels. The fact that we have an opportunity to do something now about it and that we are losing and missing that opportunity is a real shame and pity.
The section has been removed even though it was debated at length yesterday and last week. It will not be reinserted today. As such, what plans do the Department, the Minister of State, Deputy James Browne, who is present, and the Minister for Justice, Deputy McEntee, have to address the issue of harassment as very eloquently detailed in sections 16 and 17 of the Bill as originally initiated by Deputy Howlin?
This is the first time I have spoken today on the Bill. I very much welcome the legislation. To follow up on the comments of my colleagues, the legislation that is being brought before the House is unique; there has been nothing like it before. It is fantastic to see it being brought in to tackle the current problems with image-based sexual violence and the sharing of intimate images. The Minister of State mentioned that a report will be compiled after one year and a review will be carried out after three years. As has been pointed out, the section relating to harassment has been removed from the Bill. Harassment comes in many different forms. Unfortunately, many of those present have had to deal with some of the consequences of harassment. I have listened to the stories of my colleagues. I echo the call of the Leader for feedback on what will be done in terms of harassment and what the Minister may be able to bring to us.
Like my colleagues, I too have a query on why the entire section dealing with harassment has been removed from the Bill. The Title of the Bill includes the word "harassment". I speak as one whose family suffered harassment and had to go the Garda. Luckily, the Director of Public Prosecutions took a case and it was successful. The person in question is not harassing my family anymore. Public representatives regularly get harassed online and offline because of our political allegiances. What plans are there for legislation to deal with harassment? As Senator Dolan stated, it comes in numerous forms and it needs to be dealt with.
I echo the comments of other Senators regarding the need to tighten up the law on harassment. The threshold for harassment needs to be significantly lower than it is currently because when the offence of harassment was put in place, there was not the same access to digital and other technology that there is now. There was not the same means of getting into someone's space that there is now. The legislation needs to be updated rapidly. This is a very fine amendment and it is regrettable that it is not part of the Bill. I would welcome knowing when we will have that update.
This is the first time I have contributed to this discussion today. I was not in the Chamber until now. What is happening here is very welcome but the discussion of the issues involved is very important. I agree with Senator Seery Kearney and other Senators regarding tightening up the area relating to harassment. It is well known that I went through this experience. I am thankful to the journalists who highlighted it. In the context of an issue that, unfortunately, arose with regard to eviction, people were clearly told on social media how to burn my car with acid and to shout at my wife and kids. That is fine with me to a degree, although it should not be. It is about how it affects the people around one. It is about one's children, wife, partner, mother, brothers or sisters, who all worry about this. I have campaigned quite strongly on this issue and I am very glad to see things happening now.
Public representatives across the line are hard workers generally. The try to take people's problems on board and improve things. We need to set standards. Harassment is totally unacceptable behaviour no matter who perpetrates it. Members may be aware of certain events when the Leader, Senator Doherty, was a Minister. We must ensure that the legislation relating to harassment is tightened up. I do welcome what is happening here and the commitment of the Minister of State to it. I am not trying to make this about me but it is very difficult for one's family to be affected and one's relatively young kids to have to text at 12 o'clock at night to ask if one is okay, whether one is at home or where one is. Many of my colleagues have had that experience; not just me.
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.
I wish to come back in on the issue of persistence. Removing the word "persistence" does not mean the offence only applies to once-off events. Rather, it allows us to begin to account for sporadic communication.
In my experience, both my own experience and in supporting other women, sometimes abusive communication and harassment can be seasonal, for want of a better term. It can happen for a period of a few weeks on two or three occasions a year, and it heightens, then drops off and then heightens again.
Currently, the person has to produce hard evidence of continued and persistent phone calls over a period of time. The word “persistence” sets the bar way too high. I do not think simply amending the 1997 Act achieves any sort of protection for people experiencing harassment. It is probably too old-school in terms of understanding how harassment is actually carried out. In my own experience over the last five years, the communication I have received has been concentrated in particular parts of the year, and then it goes away. It does not meet the current requirement for harassment and I would have to take a private injunction. I might be in a position now to have colleagues who work in the legal profession pursue that, or I might be able to pay for it. However, if it does not reach the level of “persistent” in the terms set out here, and if a person cannot pay to have a private injunction, that person will not be protected under the current harassment definitions within this legislation.
It is a real pity, given this legislation was drafted and first presented three years ago, that we are now updating a whole section on harassment, which is absolutely pertinent and should be done now, by changing a law that is 23 years old and that we all know does not actually do what it says on the tin. That is an enormous pity and is a huge missed opportunity, particularly given the Law Reform Commission and Deputy Brendan Howlin practically wrote the sections we so desperately need.
The section which, in the opinion of the Minister of State and the Department, replaces the need for this section 5, states at section 10(a): “in subsection (1), the substitution of “communicating with or about him or her” for “communicating with him or her”". Does that mean that if somebody was communicating about me persistently, it is not going to be considered harassment any more? It is the same with regard to section 10(b), which states: “in subsection (3), the substitution of “communicate by any means with or about the other person” for “communicate by any means with the other person”". Therefore, no longer is harassment going to be defined as somebody saying things about a him or a her, but a person will only be harassing somebody if the person is saying it to him or her. Is that what this section is implying?
I want to raise a point that Senator Murphy's contribution brought to mind. My husband has had the experience of being discussed on Facebook in the context of him carrying out his job in employment law, and prosecuting through the Workplace Relations Commission, which, in the grand scale of all that is possible, one would imagine to be most innocuous. However, that context resulted in a conversation on Facebook that would emerge every couple of months as to “Where would we procure bullets?”, “What would we do?” or “How would we...?”, and this discussion was about and around him. We complained to Facebook and Facebook took it down, but the Garda did not have enough to be able to pursue it in that context.
My question is similar to that of Senator Doherty. That was a conversation about my husband, not with him. Consequently, is there no way of it being covered? It is a lost opportunity, given how technology has moved on and the possibilities of harassment have moved on.
I am conscious the debate has been going for over three hours. It is a very good and important debate but the Minister of State has been here for all of that time, as have many Members. I ask the Leader to call a suspension for 15 minutes.
We will suspend the House for 15 minutes.
We are on section 5. Amendments Nos. 16 and 17 are related and are being discussed together with the agreement of the House.
The views taken with the amendments to the Bill is that the 1997 Act, albeit a bit old, contains flaws identified by the LRC which will be addressed by these amendments. A one-year report and a three-year review will be carried out on the Bill, if passed. This amendment is extending the remit of the Bill. At the moment, harassment under the existing law is only to the person. This extends the law to where it is about the person. Perhaps I misspoke but I wish to make it clear that this extends it to where it is not only to the person but about the person. It will make the law broader in that respect. The view taken on this side of the House is that the amendments are sufficient to address the current concerns around the 1997 Act.
I am showing my ignorance but can the Minister of State explain that to me in English? Did I read it the wrong way around? I read it as saying that we are taking out "communicating with or about him or her" and putting in "communicating with him or her". It is the other way around. I thank the Minister of State. That is good to know.
Is Senator Ruane pressing the amendment?
I withdraw it.
I move amendment No. 18:
18. In page 5, between lines 22 and 23, to insert the following:
“(2) Notwithstanding subsection (1), the alleged victim of the offence may make an application to the Circuit Court for the purpose of waiving their anonymity under this section.”.
Important provisions are contained in section 5 of the Bill related to the anonymity of the victim such offences. This is important but we cannot allow such provisions to silence victims who may wish to speak out and identify themselves. Amendment No. 18 would allow them to apply for a court order waiving their anonymity under this section. Will the Minister of State comment on that?
The amendment specifically refers to proceedings in the Circuit Court. The offences in the Act can be tried summarily or on indictment. Therefore, it seems to me that this amendment precludes the action intended from applying to summary proceedings in the District Court. The basis on which somebody might wish to make his or her name public in that court is just as strong.
I am surprised by the provisions of the Bill generally in relation to section 5. I speak to the section rather than the amendment but it seems strange that it is a matter for the judge as to whether the person waives his or her anonymity or not. That is my reading of the section and I think that is something the victim or alleged victim should be entitled to do himself or herself. Under the section as currently drafted, it would almost be an offence for that person to waive his or her anonymity without the permission of the court or the judge. That is a difficulty I have.
On amendment No. 18, I do not understand why it is not "the court", rather than "the Circuit Court".
The Senator is right. It is a mistake.
Amendment No. 18, proposed by Senators in relation to the waiving of anonymity of a victim, is not considered necessary. The Minister, Deputy McEntee, took the concerns of Deputies and Senators into consideration and introduced an amendment into section 5(2) in the Dáil providing that there is an obligation on a judge to take into account the views of the alleged victim of an offence under section 5. The aim of these provisions is to protect the victim from being identified, not the perpetrator. As such, the wishes of the victim must be considered. Therefore, I ask the Senator not to press the amendment.
I will not press the amendment. There is a mistake in it anyway.
On subsection 5(2), the Minister of State has mentioned in his reply on amendment No. 18 the fact that the judge in proceedings is obliged to take into account the view of the alleged victim of the offence before making a direction under subsection (2). I have mentioned that I find it confusing that a victim is, on the face of it in the Bill, precluded from going public with his or her situation and what he or she may have suffered. Specifically in relation to section 5(2), the fact the judge is obliged to take into account or make the order having taken into account the views of the alleged victim of the offence creates two difficulties, both involving the victim not giving his or her view. If, for example, a judge asks for the views of the alleged victim and that person declines to give a view, is not present or for whatever reason does not give a view, the judge cannot take into account the views of the victim. Does that preclude the judge from making a direction under this section?
More importantly and germanely, given that this is Coco's Law, in circumstances where the victim is deceased there is clearly no provision for the victim to give his or her view on a direction being made or there being any privacy or restrictions on reporting. If the victim is deceased and the view cannot be given, is the judge precluded from making a direction under this section or have I misread it? Does the Minister of State have a view on it?
The line relating to taking the victim's view into consideration is standard across all legislation. It comes from two issues. One is that it is about not fettering judicial discretion, so that section is included. However, the courts and our Constitution always lean towards law being practised in public. That is the starting point. If a victim states to the judge that he or she wants the information to be put into the public domain, it is something the court must take into consideration, as well as other matters whereby these issues should be dealt with in public. They are being done in camera here to protect privacy or to protect the victim, in most cases. It expects the judge will use his or her discretion in the interests of the victims. My understanding is that under current law where a deceased person is involved, the person can be identified. Currently, there is an issue in that regard in respect of children that arose quite recently and the Minister, Deputy McEntee, has undertaken to address that in forthcoming legislation.
I welcome the provisions of section 6. They create a liability for the directors and officers of corporate bodies. I have two questions for the Minister of State. There was much discussion during the debate on Second Stage about the need for regulation of social media platforms, many of which essentially provide the base on which much of the abuse, harassment and so forth take place. Is there provision in this section to allow us to enforce certain actions by social media platforms? For example, offences under this legislation are described in subsection (1), but if the facilitation of such an offence is created by a social media platform, whichever one it might be, is it therefore corporately guilty of an offence?
I also wish to refer to a proposal I put forward. Although it is not part of this Bill, when we had statements on these issues a week or two ago, one of the matters I discussed was copyright issues. In the Dáil the Government removed the provision relating to civil restraint orders. The Department takes the view that this is a criminal statute and, therefore, civil remedies should be removed from it. I make no comment on that, but that is the reason I have not proposed any amendments relating to the copyright proposal I made during the statements. I was suggesting that where intimate images along the lines of those defined in the Bill were published without consent, in the same way that is described in many of the offences that will be created by this Bill, the person who is the subject of that image would automatically assume the copyright of the image. The reason that is important is that the social media platforms and the IT corporations around the world sit up and listen when copyright is on the agenda.
If a significant musical artist approaches YouTube and says there is a post on the platform that infringes on the artist's copyright of song X, YouTube is very quick to react to that. On the other side of the coin, in Ireland when somebody contacts Facebook, Twitter or the like to say there is an image of the person on the platform with which the person is unhappy or that is in contravention of whatever it might be, not only are those platforms slow to take it down but, more often than not, they do not take it down and take no action. One of the reasons corporations respond to copyright issues is the strong legislation in the United States in respect of copyright infringement protection, so they must have regard to it. They are transnational corporations so it is not even the case that we must put similar legislation in place because the infringement takes place across the world and, therefore, can be enforced through US legislation.
My idea is that if somebody is the subject of an intimate image, or the purported representations we discussed earlier in the definition section, and owns the copyright of that image, if the person goes to X social media platform and tells it that it is infringing the copyright, there is a greater likelihood it will take what the person says on board and take action on it. The reality is that when such an image is put on a platform, the damage is done. It is exacerbated every time it is shared or every time somebody sees it and so forth, but the damage is done and one cannot put the genie back in the bottle. The best approximation we have to putting the genie back in the bottle is by stopping the further sharing of that image, by ensuring that the platforms that facilitate its sharing take it down every time it goes up. At present, that is not happening.
With regard to section 6, are there offences in it that can be used to impress upon the social media platforms, many of which have head offices and a significant corporate presence in this jurisdiction, that action will be taken if they facilitate the offences this Bill creates? The second issue is a general question about copyright. I did not table an amendment and this is not the appropriate Bill for it, but is there anything we can do in respect of either ascribing copyright to individuals or enforcing copyright infringements in respect of social media platforms?
With regard to the issues involving the regulation of social media, it is not a matter for the Department of Justice and does not come under this Bill. It would lie with the new Department of Environment, Climate and Communications. I understand the Minister, Deputy Eamon Ryan, has published a scheme for an updated Bill on the issues of online safety and media regulation. There are commitments in the programme for Government in that regard and on the establishment of a digital safety commissioner, which will certainly help.
Similarly, copyright law is not under the remit of the Department of Justice. Copyright can be a very powerful tool. Unfortunately, many people are not aware of the power of that law and how one can use it. When I was doing my masters in law, one of the issues that arose was the case law on it at the time where, perhaps, when there had been a bereavement in a shocking manner and newspapers wanted a photograph of the child or family member. A newspaper would somehow get it, possibly surreptitiously. However, it would then start charging other newspapers for using that image, even though it had no copyright over it and no right to do it. We are going off on a tangent, but the point is that I know copyright law can be a very powerful weapon. Its potential is probably not understood and it is certainly something that must be understood more and should be more accessible to the ordinary person. The Senator is right that if people had access to copyright law and could use it as a tool, it could be even more effective in terms of getting quick action taken by relevant social media bodies.
Amendments Nos. 19 to 21, inclusive, are related. Amendments Nos. 20 and 21 are alternatives to amendment No. 19. Amendments Nos. 19 to 21, inclusive, may be discussed together by agreement.
I move amendment No. 19:
In page 6, line 22, to delete “within 2 years” and substitute “within seven years”.
Amendments Nos. 19 to 21, inclusive, relate to time limits under which summary proceedings can be taken under this Bill. I am concerned that two years since the offence was committed is too short, especially given the nature of these offences and the psychological distress and resulting delays in reporting that can occur. I am proposing three alternatives, that the time limit would be extended to seven years, that the clock would start from when the victim became aware of the crime or that it would start when the victim could have reasonably been expected to become aware of the crime.
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.
I believe amendment No. 21 should be considered for the future and should be put in. Otherwise we are creating a situation where there is an obligation on me to constantly google myself and search to ensure that I am in control of any images that are or may be posted about me. I believe that puts an obligation on everyone to be vigilant of their own concern and it creates a duty of care about themselves rather than the situation of providing for when the person becomes aware that something happened. We have had instances where media campaigns have been sufficient to put people on notice of the time limit for applying for some statutory funding and so on. How do we determine when someone could reasonably have become aware? We have to mind that. We have some work to do in defining what that means, especially when we are talking about social media platforms. At the same time, we need it not to be from the date that it got posted. There needs to be some latitude to extend that out. Otherwise we create an environment of paranoia where we are all obliged to be paranoid about our images or else we may be negligent or we may remove the opportunity to have an offence prosecuted.
Will the Minister of State explain to me what the legislation means by the words "anytime within two years from the date on which the offence was committed"? On the face of it, I agree with amendment No. 21, if my understanding is that the date the offence was committed is the date that someone sold an image to Pornhub rather than the date I found out my image was on Pornhub. In the view of the Minister of State and the Department, is the law based on when is the date the offence was committed? It is easy for us to define this from an image posting perspective. When is the date? We now understand that someone can be harassing me but in this new law what if I do not know about it until I do know about it? When is the date of the criminal offence? Is it the date when the person posts about me on Twitter, Facebook, Snapchat or TikTok? Is it the day that I find out and it causes the harm, psychologically or otherwise, to me?
I thank the Senators for their contributions. Section 7 refers to summary offences only or where someone is charged summarily. Section 10(1) of the Petty Sessions (Ireland) Act 1851 provides that summary prosecutions must be initiated within a time limit of six months. The time limits provided for in law for summary offences reflect the fact that an individual should not have a relatively minor offence that is summary in nature hanging over that person for a disproportionate period. Section 7 already extends the time limit for the bringing of a summary prosecution from six months to two years. I support this as I appreciate that there may be difficulties in investigating offences that may occur entirely online, as recognised by the Law Reform Commission. However, I am also mindful that this extension is also an exception to the normal rules relating to bringing prosecutions and should be treated as such. As I pointed out in the Dáil yesterday, this section only applies to summary offences under the Bill and not to indictable offences that attract higher penalties. There is no time limit for the prosecution of indictable offences in Ireland.
While I appreciate the intention behind the Senator's proposals in amendments Nos. 19 to 21, inclusive, I do not believe it is appropriate to extend the time limit for the bringing of summary proceedings beyond the significant extension being provided for in the Bill already. Amendments Nos. 20 and 21 in particular could have the effect of extending the time limit for summary prosecutions to any point in the future that would mean it could be treated the same as an indictable offence. This is not desirable in practice and could be considered to interfere with the right to a fair trial guaranteed under the Constitution. As we know, summary offences are treated in the absence of a jury. We have to be careful about what we put in and treat as a summary offence. If we start blurring the lines between what is a summary offence and what can come under an indictable offences, we are at risk of seeing the summary offence being struck down because it is not seen to be a fair procedure or the right to a fair trial guaranteed under the Constitution. That is the concern around it.
I wish to clarify as well that the relevant date is from the date of distribution. We should bear in mind that if there is redistribution or if someone reposts at any stage or posts on to another person, then every post is another offence. I wish to clarify that point.
I have nothing to add. I will withdraw the amendment.
I am unsure whether I understand the reference to the Children Act. I wish to make a drafting point in respect of section 8. It begins "notwithstanding section 52(4) of the Children Act 2001". Section 52 was substituted for a new section 52 by section 129 of the Criminal Justice Act 2006. The reason I make the point is that one of the difficulties I have with the way we are passing legislation is that it is absolutely unnavigable for people who are not acquainted with the system.
A person who googles section 52(4) of the Children Act 2001 will get section 52 as it was passed in 2001, which does not contain a subsection (4). They would need to know what they are doing to find out that five years later the 2006 Act introduced a new one. That is perhaps by the way. However, I would have thought that there was room in this section to explain either that there was a new section or that section 52(4) was substituted by section 129 of the 2006 Act, as it might be helpful to people.
My main point is that section 52(4) provides that children under the age 14 cannot be prosecuted without the consent of the Director of Public Prosecutions. This section raises that age for the purposes of the offences created by the Bill to 17. I do not know why we have inserted "Notwithstanding section 52(4) of the Children Act 2001". What is the benefit does the addition of "Notwithstanding section 52(4) of the Children Act 2001" bring to the section? If those words were taken out, would the section not act in the same way or have I missed the import of what is involved?
I understand where Senator Ward is coming from. The Office of the Parliamentary Counsel recommended using this wording to ensure there was absolutely no conflict between that Act and this one, because of the difference in the ages between the two sections.
I move amendment No. 22:
In page 6, between lines 28 and 29, to insert the following:
"Civil restraint orders
9. (1) A Court may, upon an application to it in that behalf, make an order, having regard to the evidence presented and if the court is satisfied that it is in the interests of justices to do, that a person (in this section referred to as the respondent) shall not, for such period as the court may specify—
(a) communicate by any means of communication with or about a named person, or
(b) that the respondent shall not approach, within such distance as the court shall specify, the place of residence or employment of a named person.
(2) If the court accepts that in the interests of the safety and welfare of the applicant and the applicant’s constitutional right to privacy and peaceful enjoyment of their dwelling requires that the address of the applicant be withheld from the court order against the accused, the court may so order that the address of the applicant shall be that of the District Court Clerk.
(3) An emergency civil restraint order may be made ex parte where having regard to the circumstances of the particular case, the court considers it necessary or expedient to do so in the interests of justice.
(4) Where an application for an emergency civil restraint order is made ex parte, the application shall be grounded on an affidavit or information sworn by the applicant.
(5) If an emergency civil restraint order is made ex parte—
(a) a note of evidence given by the applicant shall be prepared forthwith—
(i) by the judge,
(ii) by the applicant or the applicant’s solicitor and approved by the judge, or
(iii) as otherwise directed by the judge,
(b) a copy of the emergency civil restraint order, affidavit or information sworn under subsection (4) and note of evidence shall be served on the respondent as soon as practicable.
(6) A person who fails to comply with the terms of an order under subsection (1) is guilty of an offence and is liable—
(a) on summary conviction to a class A fine or to imprisonment for a term not exceeding six months or to both, or
(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding two years or to both.”.
The new section proposed in this amendment would reinstate the section allowing applications for civil restraint in respect of perpetrators. This section was deleted in the Dáil and is crucial in the suite of measures needed to combat these kinds of crimes. I have also made a number of changes to the section originally contained in Deputy Howlin's Bill, including the opportunity for emergency ex parte orders when needed. I recognise that the Minister of State plans to introduce additional justice legislation on the issue in the new year, which is why the section was removed from the Bill. Therefore, I would appreciate some information on the status of that legislation. Have the heads been drafted? Has it gone to Cabinet? Is it largely identical to Deputy Howlin's section or is the Department making changes? Most crucially, will the Minister of State give a commitment on when he intends to introduce the Bill to the Oireachtas? As a member of the Oireachtas Joint Committee on Justice, I assure him that he will have our full support in the speedy progression of that Bill. I would appreciate as much detail on that Bill as he can provide today.
I believe all Members have been contacted by Safe Ireland, which expressed disappointment that the section was removed yesterday. This year has been unprecedented in so many ways, but particularly for the victims of domestic violence. The Garda, Safe Ireland and other agencies have done a sterling job, as has the Government in the context of tweaking schemes to ensure that we try to look after people. The Department of Justice has also had ongoing campaigns. We have stepped up to try to ensure that not only are the people who are presenting minded but also that we make people aware of the societal issue and particularly the growth in the issue this year.
It is weird that we would be given the opportunity to fix a glaring problem and that we are not taking it. What are the Department's plans for the new legislation? When will we see it? When will pre-legislative scrutiny take place? Why has this opportunity been missed?
I agree with what the other Senators said. I spoke at length with Deputy Howlin after one of the recent meetings of the Joint Committee on Justice about this matter. I understand that the Department believes that civil and criminal remedies should not be mixed. I do not agree with that. There are many statutes in Ireland that have both criminal offences and civil aspects to them. I agree with Senators Ruane and Doherty that this is a missed opportunity.
These civil orders are much more accessible to many people and do not involve the rigamarole, the proofs and the hoops though which the Garda and the prosecution need to jump to establish criminal convictions. Even as interim measures, these are as important an aspect of the Bill as the criminal offences it creates. If we truly want to pass legislation to address this behaviour and deal with the people who are behaving in this way, this is a tool that should not be denied to the victims of these crimes.
I agree with what Senator Doherty said about Safe Ireland. I suspect it has contacted all Senators. Other organisations mentioned in today's debate have identified that is the case. It is regrettable that what is an administrative decision rather than a justice-based decision has been made that his should not be included in the Bill. I agree with Senator Ruane that if there is to be new legislation, let us bring it forward quickly. We will facilitate it in whatever way we can. Removing these restraints represents a missed opportunity.
I appreciate and understand the Senators' concern on the issue. I want to see civil restraint orders happen. Section 13 of the Bill as initiated provided for civil restraint orders. On Report Stage in the Dáil, it was agreed to delete the civil restraint orders provisions from the Bill. I understand that the Minister, Deputy McEntee, and the sponsor of the Bill, Deputy Howlin, had agreed that they would support the deletion at this time. Amendment No. 22 now seeks to introduce such provisions. The Minister gave a commitment to examine the issue in further detail in the context of another Bill that will be progressed in 2021. Orders of this nature are complex. I understand there are issues with the amendment, including, for example, not specifying the categories of persons who could apply for such an order and within what parameters. The Minister will seek to introduce orders of this nature in another legislative vehicle, following further consideration and consultation with relevant stakeholders. I therefore ask the Senators not to press the amendment.
In the new year, the Minister intends to introduce a miscellaneous provisions criminal procedures Bill. I am also working on introducing a civil procedures (miscellaneous provisions) Bill. I hope these issues can be addressed in that legislation. I also want to introduce amendments needed in section 117 of the Succession Act and more importantly section 120 of the Succession Act to address the issue of benefit under joint tenancy where one person murders their partner. Several important civil amendments are needed. I am working with the Minister to introduce the Bill to which I refer in the new year. I hope these two Bills will tackle the many important issues that do not need to be dealt with by means of stand-alone legislation but that need to be addressed as quickly as possible.
My main questions were on the timeline. The Minister of State has suggested that it has not begun but that there will be a consultation process. Does that apply to both Bills he mentioned? Is there a timeline for the consultation? For example, it is hoped to have it in the first quarter of the new year?
I cannot give a specific timeline now. However, when we come back in January, I expect to be able to give a more definitive timeline on both Bills.
Section 9 amends the Schedule to the Bail Act to list the offences under this Bill as being serious offences for the purposes of section 2. Sometimes there is a political rush to suggest that people should not get bail. I am aware of Private Members' Bills that have come before the Houses providing that on the third strike people should not be allowed to get bail, which to my view is patently unconstitutional. As Members will know, section 2 of the Bill provides that bail can be refused solely on the basis that there is an apprehensible risk that the person will commit another offence while on bail. It was approved by the people in a referendum in 1996. There is a coterie of allegations relating to certain offences to which that specifically applies in a very important way. The kinds of harassment, bullying and abuse offences contained in the Bill are in that ballpark.
It is very important that the persons who are victims or alleged victims of the offences described earlier in the Bill would be able to avail of the option to bring evidence before the court to suggest that the person is likely to commit an offence. In order to do that or to rely on that, it is necessary to make the offences in this Bill scheduled offences under section 2 of the Bail Act. This section introduces a very important provision in the protection of persons who are the victims of these offences.
Amendments Nos. 23 to 25, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 23:
In page 7, line 2, after "her" to insert "and the deletion of "persistently" ".
These amendments all relate to proposed changes to the harassment offence contained in section 10 of the Non-Fatal Offences Against the Person Act 1997. I am delighted the Minister of State is making these changes. I have had my concerns about the operation of that section and the harassment offence for some time. However, I am concerned at the relatively limited scope of the changes the Minister is proposing. I would take the view if we are reviewing that section and making changes, why not do as comprehensive a job as possible. This is the intent of these amendments. Amendment No. 23 would delete the word "persistently" as a qualifier on the harassment offence. Amendment No. 24 would delete the word "seriously" as a qualifier on the offence. Finally, amendment No. 25 would include additional factors in determining sentence length.
I appreciate the Minister of State may be of the view that this Bill cannot contain a specific harassment offence as there are already statutory provisions in this area. I would therefore urge him to ensure that the 1997 Act is fit for purpose in this regard.
I thank the Senator for bringing forward these amendments. Amendments Nos. 23 to 25, inclusive, all refer to the amendment to section 10 of the Non-Fatal Offences Against the Person Act 1997. My officials have considered this issue in detail and had extensive consultations with stakeholders in the criminal justice system. There was broad support for the existing harassment offence as one that works and I would caution against changing it too much.
Amendment No. 23 appears to be technically flawed insofar as it is adding text to the phrase that is to be deleted. That being said, I think I understand what the Senators are aiming to do. I would disagree with removing the persistence element of the harassment offence. Taking the persistence element out of the harassment offence would possibly set the bar too low in terms of a conviction and it would be a significantly lesser offence.
Also, I note the Law Reform Commission had supported the retention of the concept of persistence because the conduct criminalised would otherwise be lawful. It only becomes harassment where there is persistence. I would also note that we are introducing three separate offences to deal with one-off harmful behaviour in this Bill.
Amendment No. 24 proposes to change the existing offence where it requires seriously interfering with a person's peace or privacy and to replace it with merely interfering with a person's peace or privacy. This would also represent a lessening of the offence of harassment. Similar to amendment No. 23, it may lower the bar in terms of securing a conviction but it also makes it a lesser offence. In accordance with the harm principle, only the most serious behaviours should be the subject of criminal law. For that reason, I cannot support amendment No. 24.
The section 10 harassment offence is regarded by many stakeholders in the criminal justice system as an effective offence that works. The 2016 Law Reform Commission, LRC, report listed many examples of cases that resulted in convictions under section 10. Rather than dilute it, the Government is proposing to bolster it with an increased maximum sentence of ten years and by extending it to include communications about another person.
Amendment No. 25 is also technically flawed insofar as it is proposing to insert a new subsection (5) into section 10 of the Non-Fatal Offences Against the Person Act 1997. Section 10 already has a subsection (5). Leaving that aside, I am also not entirely convinced that these two elements represent an aggravating factor for the purpose of sentencing. Looking at the first element on its own, making use of personal information about the other person that would ordinarily be known only to the other person or members of the family, or friends, of the other person, it would strike me that this could be a regular feature in many harassment cases. Accordingly, I am not convinced that this should be an aggravating factor for sentencing purposes. Senators may be aware that there is already an aggravating factor that is relevant to the existing harassment offence where the perpetrator is the spouse or civil partner of the victim or is or was in an intimate relationship with the other person. This was provided for in section 40 of the Domestic Violence Act 2018 and it is difficult to see how amendment No. 25 would improve on the current aggravating factor. Consequently, I cannot support the amendment.
On how one defines what "seriously" means, I understand having to qualify particular things in terms of meeting a certain requirement for a certain offence. I do not necessarily think that removing the word "seriously" makes the offence a lesser offence. I am saying the word "seriously" is so arbitrary that not many people understand within the justice system what serious is. My problem is not that it lessens the offence whatsoever. It is that there is a real problem understanding and interpreting what types of abuse are serious and what are not, and it is too arbitrary. On making sure somebody is not in court for a lesser offence because we change wording, there has to be some other way to pick up on all those other types of abuse that some people within the justice system, whether it be within their interpretation of the law or within the judgments, believe are not serious and do not meet a particular requirement when in most cases for many women who try to use the harassment law it is very serious but for some reason it does not meet the Director of Public Prosecution's, DPP's, definition of "seriously". There is some disconnect between what people experience and the qualifiers that are set out for people to be able to take successful cases in the courts.
I suppose it will always be a matter for the courts to interpret, and in judicial discretion to assess, whether the event is or is not serious. However, as I say, the concern is that if one does not have that word there, the bar would be set extremely low and could bring in many issues as a criminal offence that it may not be intended to do so.
Does one know then, if it is up to the court to interpret whether the offence against me is serious, whether it might be a different level of seriousness as for Senator Ruane? Is there a definition of serious or is it that each case is taken on its merits and that the people who happen to receive the information on a Monday determine what serious is on a Monday while different sets of people, or judges, might interpret it differently in a different case on a Thursday?
To be clear, it is not the behaviour of the perpetrator that is considered serious; it is the effect on the victim. It is if it seriously interferes with the victim's peace or privacy. It is from the perspective of the victim as to whether or not it could be considered "seriously". As I read it, the victim's voice is what is relevant in determining whether something has been serious or not.
On that, my difficulty would be that the more resilient one is, the more one is liable to have to tolerate interference and harassment. Therefore, we have this sliding scale that if one is resilient then it has not had a serious effect. That is a little arbitrary and unfair.
There is also a reasonable person-test then applied to that. One could have somebody who might think something is serious that simply is not. On the other hand, the Senator is correct that just because that person is a little more robust should not mean that somebody can get away with something more there as well. The courts have to take into account what they consider to be a reasonable person. There is much case law around that as well. It can be, I suppose, if one is simply taking the word on its own, a question of what it means but there is much case law around that as well once one applies the reasonable person test as well. All of those have to be taken into consideration.
The problem happens with "persistently". Something that is deemed not persistent, in terms of it happening daily and weekly, undermines seriousness because it seems that something has to be persistent to be serious. Leaving the word "serious" and looking at the work "persistent", persistence could be even setting the bar too high in terms of people thinking that it has to be daily and nightly, and not concentrated on different times of the year. If it is not deemed persistent, it is not deemed serious. If, for instance, only three events happen every year, they are so serious on the person's well-being but they are not seen as persistent because it has only happened three times a year. Already, we know that if something is not happening regularly or every day, its seriousness is diluted somehow. That does not seem to make sense.
My understanding is that the courts have interpreted persistent as being effectively two or more events. It should not require daily or weekly occurrence, or anything like that. The Senator is certainly correct that harassment can be seasonal with the perpetrator acting in waves, and where one is dealing with it on and off.
As I understand it, however, the courts have interpreted "persistence" as being on two or more occasions. That should covered under that section.
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.
With regard to these conditions, the section extends it the definition to include "about", which can be quite a serious extension. Judicial discretion does not have to apply in this matter. If, however, judges apply discretion, they can attach conditions. If that is the case, I expect that counsel for the person who has been convicted will apply for conditions to be attached. If there were specific circumstances that required that to be done, counsel could appeal to the judge to apply his or her discretion to the effect that it would now apply in certain circumstances. It might be somewhat unwieldy but the interest here is to protect the victims and therefore it is a worthy measure.
I move amendment No. 27:
In page 7, to delete lines 21 and 22 and substitute the following:
“(1) The Minister shall, not later than three years after the commencement of this Act, carry out a review of the operation of this Act.
(2) Without prejudice to the generality of the foregoing, the Minister, as part of the review, shall:
(a) concurrently review all enactments relating to harassment and related offences,
(b) the extent to which such enactments comprehensively address the relevant issues,
(c) the extent to which the State is complying with relevant obligations under the Council of Europe Convention on Preventing and Combatting Violence against Women and Domestic Violence, and
(d) whether further legislation is required to address issues arising under paragraphs (b)and (c).
(3) The Minister shall, not later than 12 months after the commencement of the review under subsection (1), make a report to each House of the Oireachtas on the findings of that review.”.
I welcome that this Bill, when enacted, will be reviewed. I am glad an amendment from Deputy Cairns was accepted on Committee Stage. My amendment seeks to put more detail on the shape of that review. It would require the Minister to ensure that all of our laws relating to harassment would be reviewed and strengthening legislative amendments would be considered. Concerns have also been raised with me that the significant changes made to this Bill mean that, unfortunately, it may not fully comply with the Istanbul Convention on combating violence against women. This review would also ensure that such compliance would be checked and determined. This is an important direction to be giving in the review process. I would appreciate if the Minister of State could confirm that it is his intention to address all these issues in the review of the Act.
To wait three years before a review would be done is far too long.
Senators will be aware that the requirement to review the Act within three years of its commencement, in section 12 of the Bill, was introduced by way of an amendment on Committee Stage in the Dáil. While there is already a requirement under Standing Orders to carry out a post-enactment report in respect of all new legislation within one year from the date of its passing, I appreciate that this is not always enough time to gather clear data on the impact of the new legislation. It was agreed, therefore, that the Bill would be reviewed within three years. It is not necessary or desirable that such a review should encompass a review of all legislation relating to harassment or related offences or the requirements of the Istanbul Convention. The requirement to review the Bill is sufficient and will naturally encompass other issues surrounding the Bill.
My Department engages in regular consultation with other justice stakeholders and interested groups regarding the operation of the criminal law and where gaps or issues are identified, they are reviewed and addressed as appropriate. I am satisfied that, for these reasons, the amendment is not necessary. Unfortunately, I cannot support it.
When is it proposed to take the next Stage?
When is it proposed to take the next Stage?
When is it proposed to sit again?
At 2.30 p.m. on Tuesday, 19 January 2021 in the Seanad Chamber.