Harassment & Stalking

2020 Legislation

The Harassment, Harmful Communications and Related Offences Act 2020 creates new offences in relation to harassment and harmful communications, both online and offline. The Act provides for two new offences to deal with the recording, distribution or publication of intimate images without consent and provides for the anonymity of victims of those offences.

The Act also provides for an offence involving the distribution, publication or sending of threatening or grossly offensive communications or messages with intent to cause harm without a requirement for persistence.

The offence of harassment was amended to deal with persistent communications about a person. The maximum penalty for that offence is increased from 7 years’ imprisonment to 10 years’ imprisonment to reflect the most serious forms of harassment.

Harassment

The Harassment, Harmful Communications and Related Offences Act 2020 amends the Non-Fatal Offences Against the Person Act 1997 with the intention of strengthening the offence of harassment contained therein. The amendment provides that harassment may be as a result of persistent communication with a person but also persistent communication about a person.

The maximum penalty for harassment was increased from 7 years’ imprisonment to 10 years’ imprisonment to reflect the serious nature of harassment and the wide range of behaviours it represents.

The Minister for Justice is obliged to carry out a review of the operation of the Act within three years of the commencement. The 2023 Act provides that a person shall be guilty of the offence of harassment where—

• the person, without lawful authority or reasonable excuse, persistently, by his or her acts, intentionally or recklessly, at the time when the acts occur or when the other becomes aware of them seriously interferes with another’s peace and privacy, or causes alarm, distress or harm to the other, and
• the person’s acts are such that a reasonable person would realise that the acts would seriously interfere with the other’s peace and privacy or cause alarm, distress or harm to the other, at the time when the acts occurred or when the other becomes aware of the

Stalking 2023 Act

A person shall be guilty of the offence of stalking where—

• the person, without lawful authority or reasonable excuse, by his or her acts, intentionally or recklessly causes another, at the time when the acts occur or when the other becomes aware of the to fear that violence will be used against him or her or another person connected to him or her, or serious alarm or distress that has a substantial adverse impact on his or her usual day-to-day activities, and
• the person’s acts are such that a reasonable person would realise that the acts would cause the other, at the time when the acts occur or when the other becomes aware of them, to fear that violence will be used against him or her or another person connected to him or her, or serious alarm or distress that has a substantial adverse impact on his or her usual day-to-day activities.

Indicative Elements

The acts referred to include the following:

• following, watching, monitoring, tracking or spying upon a person;
• pestering a person;
• impersonating a person;
• communicating with or about a person;
• purporting to act or communicate on behalf of a person;
• disclosing to other persons private information in respect of a person;
• interfering with the property (including pets) of a person;
• loitering in the vicinity of a person;
• causing, without the consent of the person, an electronic communication or information system operated by a person to function in a particular way;
• breaching a court order made pursuant to this section or Part 5 of the Criminal Justice (Miscellaneous Provisions) Act 2023, or ) otherwise restraining the person from communicating with or about the other person or, within such distance as is specified in the order, approaching the other or the place of residence, education or employment of the other person.

Restraining Order

Where a person is guilty of an offence the court may, in addition to or as an alternative to any other penalty, order that the person shall not, for such period as the court may specify, communicate by any means with or about the other person or that the person shall not approach within such distance as the court shall specify of the place of residence, education or employment of the other person.

An order above shall be in writing. A copy of an order  shall be given to—

• the person against whom the order is made (‘the subject of the order’),
• the other person
• the member of the Garda Síochána in charge of the Garda Síochána station for the area in which the other person resides, and
• if the subject of the order is sentenced to a period of imprisonment, the person for the time being in charge of the place where the subject of the order is, or is to be, imprisoned.

The validity of an order shall not be affected by non-compliance with these requirements.

A person who fails to comply with the terms of an restraining order under the 2023 Act shall be guilty of an offence. A person guilty of an offence above shall be liable—

• on summary conviction to a class A fine or to imprisonment for a term not exceeding 12 months, or to both, or
• on conviction on indictment to a fine or a term of imprisonment not exceeding 10 years, or to both.

A court shall, in determining the sentence to be imposed on a person for an offence under this section, treat as an aggravating factor the fact that the person has previously been convicted of an offence against the other person or a person connected with the other person. In this case the court shall impose a sentence which is greater than that which would have been imposed in the absence of such factor. This does not apply where the court considers that there are exceptional circumstances justifying it not applying that subsection.

The sentence imposed shall not be greater than the maximum sentence permissible for the offence concerned.  A  reference  to an offence against a person includes a reference to an offence involving damage of the property of the person.”.

Prohibition on publication or broadcast of certain material

A person (other than the alleged victim) who, where a person is charged with an offence of stalking publishes or broadcasts identifying material shall be guilty of an offence. This does this not apply where the alleged victim consents in court to being identified.

The court in which proceedings for the offence are brought may, where satisfied that it is in the interests of justice to do so, direct that such information, photograph, depiction or other representation as the court may specify may be published or broadcast in such manner, and subject to such conditions, as may be specified in the direction.  Before giving a direction , the court shall take into account—

• the views of the alleged victim, and
• the nature or circumstances of the case, and in particular the effect of the publication or broadcast concerned on the alleged victim.

A person who contravenes the terms of a direction given shall be guilty of an offence.  A person who is guilty of an offence is liable—

• on summary conviction to a class B fine or to imprisonment for a term not exceeding 12 months, or both, or
• on conviction on indictment to a fine or to imprisonment for a term not exceeding three years, or both.

It shall be a defence for a person who is charged with an offence to prove that at the time of the alleged offence the person was not aware, and neither suspected nor had reason to suspect—

• that the information, photograph, depiction or other representation published or broadcast was identifying information, or
• that the information, photograph, depiction or other representation was published or broadcast in contravention of the terms of a direction given.

‘identifying material’, in relation to an offence for stalking  means information, or  a photograph, depiction or other representation of the physical likeness of the alleged victim, that is likely to enable the identification of the alleged victim;

Evidence

In any proceedings for an offence alleging the causing of harm or serious harm to a person, the production of a certificate purporting to be signed by a registered medical practitioner and relating to—

• an examination of that person by the registered medical practitioner,
• an examination of that person by another person who was acting under the supervision, or was otherwise subject to the authority, of the registered medical practitioner, or
• the medical assessment by the registered medical practitioner of the medical records relating to an examination of that person,

shall, unless the contrary is proved, be evidence of any fact or opinion (including an opinion in relation to the source or effect of, or a prognosis in respect of, harm or serious harm to the person) thereby certified without proof of any signature thereon or that any such signature is that of such registered medical practitioner.

A certificate shall include a statement as to which paragraph of that subsection applies to the registered medical practitioner who signs the certificate.

Civil restraint orders

Section 9 provides for civil restraint orders which provides that the Circuit Court may order, where it is in the interests of justice to do so, that a person shall not communicate with, or approach the place or residence or employment of the applicant.

It is an offence to fail to comply with such an order. The maximum penalty for conviction on indictment for an offence under this section is 2 years’ imprisonment and/or an unlimited fine.

See the separate Article on the 2023 provisions.