The Gazette 1995

GAZETTE

JANUARY/FEBRUARY 1995

H wuinniiín (itanífiiiiiiiil

Dr. Eamonn G. Hall, Solicitor

Grievous Bodily Harm by

Telephone

Not too long ago, some lawyers

arranged to have themselves called to

the telephone while lunching with

clients. It was a desire for recognition,

a desire to demonstrate how much the

lawyer's services were in demand.

Today the desire for power and status

has not changed. Some lawyers

(relatively few Irish lawyers I

surmise) make frenzied calls over the

Atlantic from the Concorde. Some

(non-lawyers, of course!) "yap"

constantly into tiny 'phones they keep

in their pockets; judges have

threatened lawyers, litigants and

witnesses with contempt of court

when mobile 'phones buzz in their

court. Some have become obsessed

with the telephone and there are

people who, when they are not on the

'phone, have nothing to say to the

people in direct physical contact

with them.

This introduction has touched on one

sad fact of life today: obsession with

the telephone by persons intent on

causing injury - psychological or

physical to others. This phenomenon

is on the increase.

The specific law in Ireland regulating

"nuisance" telephone calls is specified

in section 13 (1) of the

Post Office

(Amendment) Act 1951

as amended by

section 8 of the

Postal and

Telecommunications

Services Act,

1983.

A person who sends any

message or other matter (eg text by

facsimile) which is grossly offensive

or of an indecent, obscene, or

menacing character, or uses the

telecommunications system of

Telecom Eireann for the purpose of

causing annoyance, inconvenience or

needless anxiety to another, or sends a

message which a person knows to be

false, or persistently makes use of the

telecommunication system of Telecom

Eireann for the purpose of causing

annoyance or inconvenience is liable

on summary conviction to a fine of

£800 and imprisonment for one year.

On indictment, such a person is liable

to a fine of £50,000 or 5 years

imprisonment.

"Not too long ago, some lawyers

arranged to have themselves called to

the telephone while lunching with

clients. It was a desire for recognition "

Recently in England, hoax callers and

persons making "nuisance" 'phone

calls have been charged with causing

grievous bodily harm in a rare use of

the law on assault to cover

psychological rather than physical

injury. Assault occasioning actual

bodily harm is a misdemeanour in

Ireland punishable on indictment

pursuant to section 47 of the

Offences

Against the Person Act, 1861

summarily (sections 42 - 46,

Offences

Against the Person Act 1861

and the

Criminal Justice Act 1951).

There

have been no prosecutions in Ireland

in the context of nuisance calls under

the

Offences Against the Person Act,

1861.

Many persons have been

prosecuted successfully under the

1951 Act.

Some examples of telephonic

harassment include the sending of a

hearse with a coffin to collect the

body of a person who was very much

alive. Most cases fall into the sexual

category. Boyfriends, girlfriends, and

professional persons of all

backgrounds "blight" themselves over

the telephone with obsessional

revenge.

In December 1994

(The Times

December 16, 1994) in the case of

DPP

Gelder

a bank clerk, who had

made legal history when he was

jailed for causing grievous bodily

harm by making obscene telephone

calls, had his conviction quashed by

the Court of Criminal Appeal. The

conviction was quashed because of an

error by the trial judge. He had spent

five months in jail for subjecting his

victim to a psychological battering.

The anonymous calls to a customer

of his bank involved sexual

suggestions and remarks about her

job, car, age, clothing and new

hairstyle. The Lord Chief Justice,

Lord Taylor, said that because the

appeal was allowed on the grounds of

the judge's misdirection, there was

no need to consider a separate ground

of appeal in which the appellant

claimed it was impossible to inflict

grievous bodily harm over the

telephone constituting an offence

under the

Offences Against the Person

Act, 1861.

In Ireland, persons who receive

"nuisance" calls - a term used to

cover telephone calls of an obscene,

menacing or similar character - must

first make a complaint to the Gardai.

The Gardai, pursuant to section 98 of

the

Postal and

Telecommunications

Services Act 1983

request Telecom

Eireann engineers to initiate a

surveillance and interception process.

Prosecutions then follow.

There are civil remedies available

and these will be covered in a

subsequent note.