research of the report published by the Law Reform Commission in relation to
Harmful Communications and Digital Safety1,
it was clear to me that Section 10 of the Non-Fatal Offences Against the
Persons Act is out dated and does require reform. The origin of this Section derives
from the 1994 report published by the Commission in relation to Non-Fatal
Offences Against the Person2.
Throughout the course of this essay I am going to take you through Section 10,
beginning with the origins and finishing with the criticism it faces. I will
speak about not only this jurisdiction, I shall be using British and American
law to highlight exactly where our legislation may need reform.
origin and concept of harassment, in present day law, first came to light in
the early 90’s. The British courts saw it come to light in 1993 when a woman
called Evonne Leonora Von Heussen started the National Anti-Stalking and
Harassment Support Association3.
Evonne, being a victim of stalking herself, sought to change the law and became
an advocate for this change. At this time in Britain if a case of harassment or
stalking was to arise it was charged and tried under the Public Order Act 19864. Section
5 of this act was specific to harassment and outlined;
A person is guilty of an offence if he—
threatening or abusive words or behaviour, or disorderly behaviour, or
any writing, sign or other visible representation which is threatening or
abusive, within the hearing or sight of a person likely to be caused
harassment, alarm or distress thereby5”
it is clear to see this legislation was very loosely worded and for someone
like Ms. Heusssen who encountered a major case of stalking and harassment for
16 years it was quite frustrating. The section went onto say that an offence could
occur in a public or private place. “Except that no offence is committed where
the words or behaviour are used, or the writing, sign or other visible
representation is displayed, by a person inside a dwelling and the other person
is also inside that or another dwelling.6”
The section also states that a person found guilty of such offence was liable
on a summary conviction for a fine that would not exceed level 3 on the
standard scale7. An amendment was brought about
which saw the penalty rise to a discretionary sentence, a £5000 fine or both. This
indicates the primary origin of harassment and stalking as an offence in
in Ireland harassment came into question around 1994 when the Law Reform
Commission issued a report on the Non-Fatal Offences against the Person8. It
was established that the Offences Against the Person Act 18619
was primarily concerned with protecting an individual’s constitutional right to
safety and it was for this reason that they sought an amendment to this act and
the creation of the Non-Fatal Offences Against the Person Act 1997. The report goes
on to speak about laws in many other jurisdictions, it outlines the British law
as I have mentioned above adding a few minor changes in favour of broadening
the protection under the legislation. Something they were keen to outline in
the report is the power of arrest relating to this area of law. It is stated
that arrest can occur once the person has already been given a warning in
relation to their conduct, however they continue10. The
report also pays attention to the words used in the Public Order Act 198611,
words such as ‘abusive’ and ‘threatening’. Another jurisdiction that the report
considers is the United States. The laws of the United States are primarily
based around violence, the likelihood of this violence is tested objectively12.
The report concluded that:
recommend that a person who, without lawful authority or reasonable excuse,
harasses another by persistently following, watching or besetting him or her in
any place, by use of the telephone or otherwise, should be guilty of an
offence. A person would harass another when his or her acts seriously
interfered with another’s peace and privacy”13
the recommendations advised in the report can now be found in Section 10 of the
Non-Fatal Offences Against the Persons Act 199714.
is important to note that British law changed again in 1997 when the Protection
from Harassment Act15
was introduced. Evonne Van Heussen, who I have previously mentioned, was once
again an advocate for this change. It was the likes of Evonne with her National
Anti-Stalking and Harassment Campaign along with many similar organisations
that saw the introduction of anti-stalking laws. Initially an anti-stalking
bill was introduced to parliament in 1996 but was dismissed. Eventually in late
1996 it did succeed, and British government introduced the act16
relating to anti-stalking laws17. This
is ideally how Irish law should be, incorporating separate legislation for
stalking. This is primarily what The Law Reform Commission has suggested in
their most recent report on harassment18.
present-day law, namely section 10 was drafted and brought into law in 1997. The
wording of section 10 is quite important to note, the use of the word “persistently”
is vital when making trial decisions. A case which hung on such word was that
of The Director of Public Prosecutions (O’
Dowd) v Lynch19.
The accused in this case had admitted to 4 counts of exposing himself to
two young children aged 11 and 14. These events had taken place on the same day
at the children’s home. It is suspected the acts occurred between a 2 to 3 hour
time frame and this is where the issue arises. Could this warrant a conviction
under section 10 which requires an element of persisting? The English case of Kelly v Director of
Public Prosecutions20 lay on the similar principles, the
events in this case occurred between 2.57am and 3.02am. It was then up to the
Magistrates court to decide if this was a sufficient course of conduct. Burton
J concluded in this case that there must be at least two separate incidents,
but they can occur immediately after each other. So, in this case with the
three phone calls there is no issue relating to the course of conduct. Using the
Kelly case, along with others as a basis for decision the High Court found Mr.
Lynch guilty of harassment. “The requirement of persistence is fulfilled by incidents
which are separated by intervening lapses of time21”
of section 10(3) and 10(5) of the Non-Fatal Offences Against the Persons Act
were both displayed in a case of O’Raithbheartaigh
v District Court Judge McNamara.22 In this case the accused
was being charged under Section 10(1) for harassment however the accused sought
a dismissal. The trial judge, namely Patricia McNamara, dismissed the charge on
the grounds that under Section 24 of the Criminal Justice (Public Order) Act 199423
the evidence was inadmissible. Following this decision an application under
Section 10(5) of the Non-Fatal Offences Against the Person Act24
was made by the solicitor acting on behalf of the DPP. Subsection 5 outlines
the procedure that may follow when a person is found not guilty of an offence
under Section10(1). It refers to subsection 3 that states;
Where a person is guilty of an offence under subsection (1), 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 the other person or that the person shall not approach within such
distance as the court shall specify of the place of residence or employment of
the other person.”25
J granted the restraining order, preventing communication for a period of 3
years and preventing approach from within a half mile of any place of residence
or employment of the complainant. This decision was later challenged by Peart J
in July 2012. Peart J sought for the decision to be squashed since, there are
namely two primary grounds on which relief can be sought, one being that there is
a breach of fair procedures and secondly that the order is made without evidential
basis26. It is important to note that a restraint
under subsection 3 is not penal in nature but penal sanctions may follow if the
order is breached. The judge concluded that the grounds for a fair and proper
procedure was not met as the accused did not take the opportunity to test any
of the evidence provided. However, had he have known that a section 10(3)
application was going to be made he more than likely would have tested
evidence. This case displays clearly what may follow when a person is found not
guilty of harassment under Section 10(1) of the Non-Fatal Offences Against the
we now look at a British case involving the Protection from Harassment Act
1997, it will clearly distinguish how much easier court decisions can be with
the use of separate anti-stalking laws. The case is R v Danevska (Sandra)27, the facts of
this case were based around stalking that Ms. Danevska committed over a period
of three years beginning in 2013. There were three victims of the stalking, one
in particular got the brunt of the attack. Ms. Danevska would watch Mr. Baric’s
home and kept a very detailed account of his every movement, she monitored all
his online activity and even stole his rubbish. She went on to make several
phone calls to the victim. Another form of stalking that Ms. Danevska engaged
in was setting up fake social media profiles. She used these accounts to send
threatening and abusive messages to the victims along with their friends and
family. The stalking was amplified when the accused made online police reports
that highlighted Mr. Baric as a rapist. Section 4A of the Protection from
Harassment Act highlights “stalking involving fear of violence or serious alarm
or distress”28 and it was in fact this
section that the trail judge based his decision around. The judgement reads “On
29th June 2016 at the Crown Court at Isleworth, this appellant was convicted of
three offences of stalking causing serious alarm or distress, contrary to
section 4A(1)(B)(ii) of the Protection from Harassment Act 1997.”29
The act itself is very in depth in nature with this particular section
outlining defences that may arise, however in this case none were applicable.
The accused was sentenced to five years, which is only half the maximum
sentence permitted under Section 4A(5)(a).30
changes needed in Irish law have not gone unnoticed by many organisations. A
report I found while doing my research was the Report of the Internet Content
Governance Advisory Group31.
This report backed up my findings clearly, with statistics proving
cyberbullying is on the rise. The report states “Several consultation
submissions called attention to the role of anonymity in online bullying,
arguing that anonymity in an online context should be regulated, controlled or
even banned.”32 This quote clearly shows
the Internet Content Governance Advisory Group along with others, are of the
same beliefs as the Law Reform Commission, that online bullying and attacks
need to be regulated. Another report namely the Sixth Report of the Special
Rapporteur on Child Protection33
mentions how little cases there have been in relation to cyberbullying. The
report states that this could be due to reluctance from the public to take such
cases as the laws are so outdated. The report which was issued back in 2013 was
one of the reasons for the report by the Law Reform Commission34
as the then Minister believed legislation did not require change.
conclude my essay, I would like to summarise my findings. As of 1997 Britain
had introduced a Protection from Harassment Act. The introduction of this act
came about due to many anti-stalking organisations calling out for change. The
act itself comprises of 21 sections which outlines both harassment and stalking
exclusively. British caselaw which relies on this act shows exactly how
beneficial it is to have such clear and distinct legislation on both harassment
and stalking. Similarly, in 1997 Ireland introduced a new piece of legislation.
The Non-Fatal Offences Against the Person Act35
was brought in with Section 10 being specific to harassment. Initially the act
did seem beneficial however it soon became victim to a lot of criticism. The
report on Harmful Communications and Digital Safety36
clearly outlined what change was required. After my research I can positively
say that I agree with the proposed changes given in the report. The definition
of harassment needs to be broadened and needs to specify digital and online
communications. I would also agree that indirect forms of communications need
to be addressed. The English case of R v Danevska37
deals primarily with the setting up of fake social media profiles. The law
reform commission suggested that Irish law should incorporate certain rulings
for such conduct. In my opinion Ireland needs to make a close evaluation of
this case and the appropriate legislation which governs it.
I would like to agree with the fact that stalking needs to be addressed in
Irish law. As legislation stands now there is a lot of ambiguity in relation to
such offence. Previous Irish caselaw backs up the fact that there is a lack of
legislation regarding stalking. It would be my advice that Ireland take a close
look at both British and American law to implement a distinct stalking act.
1Law Reform Commission (2016). Harmful Communications and Digital Safety.
Law Reform Commission (1994). Non-Fatal
Offences Against the Person.
E. (1995). Harassed relentlessly by a stranger, Evonne von Heussen formed an
anti- stalking group. Independent. online Available at:
Accessed 14 Dec. 2017.
Order Act 1986.
Order Act 1986.Section 5 (1).
Public Order Act 1986. Section 5(2)
Public Order Act 1986. Section 5(6).
Reform Commission (1994). Non-Fatal
Offences Against the Person.
Offences Against the Person Act 1861.
10 Law Reform Commission (1994). Non-Fatal Offences Against the Person.
Public Order Act 1986.
Reform Commission (1994). Non-Fatal Offences Against the Person. Pg.212-213
Reform Commission (1994). Non-Fatal Offences Against the Person. Pg.258
Non-Fatal Offences Against the Person Act 1997. Section 7.
Protection from Harassment Act 1997.
Protection from Harassment Act 1997.
Guardian. (2017). A-Z of legislation: Protection from Harassment Act 1997.
online Available at:
Accessed 18 Dec. 2017.
Reform Commission (2016). Harmful
Communications and Digital Safety.
2010 3 IR 434.
2002 EWHC 1428, 2003 Crim.
The Director of Public Prosecutions (O’Dowd) v Lynch 2010 3 IR 434
2014 IEHC 406
Section 24 Criminal Justice (Public Order) Act 1994
Section 10(5) Non-Fatal Offences Against the Persons Act 1997
Section 10(3) Non-Fatal Offences Against the Persons Act 1997
O’Raithbheartaigh v District Court Judge McNamara 2014 IEHC 406
EWCA Crim 1084
Section 4A Protection from Harassment Act 1997
v Danevska (Sandra) 2017 EWCA Crim 1084
Section 4A(5)(a) Protection from Harassment Act 1997
31 Department of Communications, Energy and
Natural Resources (2014) Report of the
Internet Content Governance Advisory Group. Pg. 34-48. https://www.dccae.gov.ie/en-ie/communications/publications/Documents/70/InternetContentGovernanceAdvisoryGroupReport.pdf
32 Department of Communications, Energy and
Natural Resources (2014) Report of the
Internet Content Governance Advisory Group. Pg.37.
Dr Geoffrey. (2013). Sixth Report of the
Special Rapporteur on Child Protection. Department of Children and Youth
Reform Commission (2016). Harmful
Communications and Digital Safety
Non-Fatal Offences Against the Person Act 1997
Reform Commission (2016). Harmful Communications and Digital Safety
EWCA Crim 1084