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L A W B R I E F
Telephone Assault
by Dr Eamonn Hall*
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.
Criminal sanctions
Assault and battery are common law
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
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.
Assault on the senses
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.
Psychological damage
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
rhe chairman says
we're going to