The Supreme Court dismissed Eve Doherty’s appeal against the Court of Appeal decision upholding her conviction, in a judgment delivered on 24 July 2020. Chief Justice O’Donnell said the jury could find, on the evidence and the way it was instructed, that her conduct amounted to communication with the victim under section 10 of the Non-Fatal Offences Against the Person Act 1997.
O’Donnell said that conclusion was enough to dismiss the appeal. He therefore did not need to reach a concluded view on whether the conduct also amounted to “besetting”, a term in section 10 that was discussed differently by the other judges. He noted that the majority view, set out by Justice O’Malley, was that a victim is beset by someone who stations themselves with hostile intent around the victim or a place where they may be.
The judgment describes the prosecution’s case as involving a letter sent directly to the victim, further letters sent to her employers and others, and offensive leaflets posted in her neighbourhood. These are described as allegations in the judgment; O’Donnell’s discussion of possible examples of besetting was not a finding that each act independently met that definition.
O’Donnell agreed that describing a victim as beset by dangers or difficulties was too figurative to establish the offence. He also said physical action was necessary. But he was reluctant to conclude that the accused must always be physically present around the victim or a place where the victim lived, worked or might be. He said conduct taking effect near or around the victim might be sufficient, provided the offence’s persistence and other subjective and objective requirements were met.
He discussed the history of “watching or besetting” in the Conspiracy and Protection of Property Act 1875, which the 1997 Act repealed in part, and said the older law was an unsteady basis for interpreting section 10. In his view, section 10 applies the concept in a different setting from the earlier provision.
The judgment also called for the law to be reviewed and updated to address changes in communications and technology. The source provided is O’Donnell J.’s judgment and does not set out the full terms of the Supreme Court’s order beyond his agreement that the appeal should be dismissed.