The Gazette 1996

L A W B R I E F

Telephone Assault

by Dr Eamonn Hall*

of a menacing character or sends a message which that person knows to be false or persistently makes use of the telephone for the purpose of causing annoyance, inconvenience or needless anxiety to another, is guilty of an offence. Under section 4 of the Postal and Telecommunications Services Act, 1983 such a person is liable on summary conviction to a fine nót exceeding £800 or, at the discretion of the court, to imprisonment to a term not exceeding 12 months or to both the fine and imprisonment. On conviction on indictment, a person is liable to a fine not exceeding £50,000 or, at the discretion of the court, to imprisonment to a term not exceeding five years or to both the fine and imprisonment. The proofs in relation to nuisance calls (assault on the senses) under the 1951 Act are relatively uncomplicated, assuming the prosecution can prove a link to the telephonic perpetrator. The prosecutor needs to prove that the person was causing annoyance, inconvenience or needless anxiety to another by means of the telephone. Accordingly, silent telephone calls to a person would fall into this category if the intention was to cause annoyance, inconvenience or needless anxiety. Silent calls over a period of time would constitute a persistent use of the telephone. Scholars have debated whether psychological damage comes within the term "bodily harm" in section 47 of the Offences Against the Person Act, 1861. According to Lynskey J in Miller [19541 2QB 282: "There was a time when shock was not regarded as bodily hurt, but the day has gone by when that could be said. It seems to me now that, if a Assault on the senses Psychological damage

In 1908, the Irish Post Office directed its telephone operators to adopt American standard expressions such as "I am sorry that line is busy". Concern had been expressed about discourteous service that generated bad language. The Irish Times in 1908 welcomed the standard expressions with their liberal requirements of "please" and "thank you", yet considered that the telephone instrument itself was to blame for discourtesy. Each generation of communication facilities has its admirers and critics. Each new generation considers it is under greater stress than the previous generation. For example, The Times, before it installed its own telephone, commented that it was a common complaint that the conditions of modern life in the later half of the last century had been rendered "well-nigh intolerable by the telegraph". The Times noted that, with the addition of the telephone, the situation would surely be much worse. It was noted that in times past a man of business could arrange his daily affairs after delivery of the morning post but the perpetual arrival of telegrams had added new "stings to existence". The telephone would result in the banker and lawyer being liable to perpetual interruptions. "But there are limits to human endurance and those who are threatened by such an evil [interruptions from the telephonel will probably discover some means of keeping it within reasonable bounds". The Times concluded. For some, the telephone may become an instrument - a tyrant. And in some cases, the use of the telephone could constitute an assault.

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crimes with penalties prescribed by statute. Section 42 of the Offences Against the Person Act, 1861 as amended by Section 11 of the Criminal Justice Act, 1951 provides that a person convicted on summary trial of either common assault or battery is liable to a fine of £50 and/or six months' imprisonment. Pursuant to section 47 of the 1861 Act, the punishment on indictment for a common assault is one year's imprisonment. Section 47 of the Offences Against the Person Act, 1861 has the practical effect of creating a new statutory offence of assault occasioning actual bodily harm. This offence is punishable with a maximum penalty on indictment of five years' imprisonment. Pursuant to the Criminal Justice Act, 1951 , with the consent of the accused, the offence may be dealt with summarily in the district court. Under the Post Office (Amendment) Act, 1951, as amended by the Postal and Telecommunications Services Act, 1983, any person who sends by means of a telecommunications system operated by Telecom Eireann any message which is

Criminal sanctions

Assault and battery are common law