I move amendment No. 31:
In page 6, between lines 10 and 11, to insert the following:
"Anonymity of victim of offence under section 4* or 5**
6. (1) Where a person is charged with an offence under section 4* or 5**, any person who publishes or broadcasts—
(a) any information,
(b) a photograph of, or a photograph that includes a depiction of, the alleged victim of the offence, or
(c) any other representation of the physical likeness, or any representation that includes a depiction of the physical likeness, of the alleged victim of the offence,
that is likely to enable the identification of the alleged victim of the offence, is, subject to any direction under subsection (2), guilty of an offence.
(2) Where a judge of the court in which proceedings for an offence under section 4* or 5**, as the case may be, are brought considers that the interests of justice so require, he or she may direct that such information, photograph or representation referred to in subsection (1) as he or she specifies may be published or broadcast in such manner and subject to such conditions (if any) as he or she specifies in the direction.
(3) A direction given under subsection (2) shall be in writing.
(4) A person who contravenes a direction given under subsection (2), including a condition in such a direction, is guilty of an offence.
(5) A person who is guilty of an offence under subsection (1) or (4) is liable—
(a) on summary conviction to a class B fine or to imprisonment for a term not exceeding 12 months, or both, or
(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding 3 years, or both.
(6) It shall be a defence for a person who is charged with an offence under subsection (1) or (4) to prove that at the time of the alleged offence the person was not aware, and neither suspected nor had reason to suspect—
(a) in the case of an offence under subsection (1), that the information, photograph or other representation published or broadcast was information, a photograph or other representation referred to in that subsection, or
(b) in the case of an offence under subsection (4), that the information, photograph or other representation was published or broadcast in contravention of a direction given under subsection (2), including a condition in such a direction.".
This amendment deals with the anonymity of victims under the Bill. Section 11 of the Bill, as initiated, provides for restrictions on reporting akin to those provided for in section 7 of the Criminal Law (Rape) Act 1981, as amended, which would prevent the publication of information with regard to a person against whom an offence has been committed. Any exception to this must be authorised by the court.
It is considered that section 11, as drafted, is overly cumbersome. It is proposed to introduce an "interests of justice" test for a judge to consider whether he or she would lift the requirement not to publish or broadcast information likely to identify a victim.
Furthermore, if we look at the categories of persons who may be guilty of an offence, under subsection 7 it is considered to be unnecessary and it would be unfavourable to punish anybody who publishes or broadcasts, as defined, information in contravention of the provisions of the Bill. It also accommodates the changes to the definitions of "publish" and "broadcast" in the interpretation section.
My amendment proposes to cover the image-based offence under the Bill only. Deputies will agree that any restriction on reporting with regard to criminal matters should be proportionate and, obviously, not taken lightly. While I am of the view that the anonymity of a victim of an offence relating to the distribution of intimate images should be protected, I am not entirely convinced these restrictions on reporting are justified with regard to the offence of harassment. This offence encompasses many types of behaviours and scenarios, not all of which justify any restriction on reporting. This is obviously within the power of a judge in terms of restricting reporting in any criminal trial where he or she feels it is necessary to do so.
I know this is an area we discussed in terms of having harassment included with sections 4 and 5 as part of the anonymity element. We need to do a little bit more work and we gave Deputy Howlin a commitment to come back. We are still working on it but I hope it is something we can address by the time we get to Report Stage. It is something on which we are working and with which I have no issue. I suppose we just need to clarify the legality or the implications of it.