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Indirect communication could be sufficient to constitute the offence of ‘harassment’

By: Mark Tottenham BL

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Supreme Court dismisses appeal from the Court of Appeal, and affirms a jury conviction of the offence of harassment, where the accused had engaged in a campaign of e-mails and leafletting concerning the victim, on the grounds that such 'indirect' communication comprised harassment if it was such as to interfere with the victim's peace and privacy or cause alarm, distress or harm to the victim.

Charleton J (majority decision): Criminal law - harassment - s 10 of the Non-Fatal Offences Against the Person Act 1997 - whether communications to other people came within the scope of harassment - meaning of 'besetting' - jury conviction - victim working within the justice system of the State - formerly in a relationship with the accused - belief of accused that victim had 'stymied' a criminal case - campaign of communication - leaflets - e-mails - communications to third parties - 18-month campaign - reference to victim's children - whether 'besetting' required physical watching or a 'watchful menacing presence' - whether indirect communication could be communication for the purposes of the offence - interference with peace or privacy or causing alarm distress or harm - 'communication with' - besetting.

"The victim’s name was distorted so that, using an example divorced from the facts, Smith became distorted into the word for excrement; she was called or described as a hag, pompous, arrogant, responsible for the breakup of her marriage, a bad mother to her offspring, two-faced, a queen bee, corrupt, evil, a dwarf, a friend of drug dealers, a person sponging off the justice system while drawing a substantial salary for little work due to protection by a supposedly influential relation, an individual living in ill-deserved luxury and a promoter of cronyism. This diatribe was liberally garnished with filthy language."

"Criminal statutes are not set out in neat divisions between the mental element which serious criminal offences carry and the definition of what is forbidden, or the external element of the crime. In all modern statutes a mental element is specified, if not ... it may be necessary to imply a state of culpability, be it intention or knowledge or recklessness or negligence, but often the actual wrong prescribed can be informed from the nature of what purpose is regarded as wrong. Harassment, a word which in ordinary speech carries a connotation of unpleasant annoyance or harrying of a person can be done by persistent communication to that person but under the mental element definition, a sense informs that external element that the wrong is that of undermining the confidence, peace or stability of the victim."

"An email blitz was anonymously directed by the accused, as the jury’s verdict makes clear, whereby the most nasty and derogatory things were said about the victim. This was not casual gossip with a friend whereby some unpleasant secret about someone, true or not, was shared quietly, sympathetically or not. It was a deliberate campaign. Furthermore, the single instance even of leafleting an entire neighbourhood was of itself a persistent interference with the human right of the victim to be left in peace. By that activity it could not rationally be said that even if the victim drove past the leaflets and did not see them, perhaps because of the ordinary preoccupations of the day, that where these communications were not immediately binned, some people because of absence from their homes or not using their cars or not bothering, would leave them in place."

O'Malley J (partially dissenting): Indirect communication - meaning of term 'besetting' - whether 'beset' meant to 'trouble persistently' - whether 'beset' required a physical presence - figurative use of term 'beset' -

"m. Given the structure of the section, it must be possible to carry out any of the specified actions on its own, although in any given case there may be a combination of actions. Ifthat is correct, the definition of “besetting” cannot be satisfied simply by proof of another of the specified actions where that action is shown to have brought about the statutorily-defined consequences. There has to be, at least in theory, a way of “besetting” a person that might not involve following, watching, pestering or communication."

"To say of someone that they are beset by dangers, or troubles, or problems is to use language figuratively. Figurative language is not an appropriate basis for a criminal offence."

"I consider that the word as used in the section requires a physical action that is carried out by the accused, that can be described as “besetting” and that has the results described in subs.(2) ... I would suggest, therefore, that a victim may be beset by someone who stations themselves, with hostile intent, around them or the place where they are. I believe that the presence of the accused is necessary ..."

O'Donnell J (partially dissenting): Definition of besetting - history of the legislation -

"The 1875 Act comes from an unhappy period in the common law when Victorian courtsin the United Kingdom (including,at that time,Ireland) reacted to the activities of the nascent trade union movement by tending to find that union activities were in breach of both civil and criminal law. A range of decisions during that era gave rise to the ingrained suspicion inthe Trade Union movement of courts, which was slow to dissipate."

"Here, what is alleged (whether formulated actively or passively) is besetting in a physical and not figurative or metaphorical sense by the doing of certain things and,in this case, by the sending of a letter directly to the victim with further letters to her employers and others, and by posting offensive leaflets in the victim’s neighbourhood. There is no doubt that if, for example, the accused had stood in front of the victim’s house or place of work, holding placards containing the same offensive messages as were pasted on to lamp posts in the victim’s area, that such conduct could constitute besetting if the other aspects of the offence were established."

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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