The Supreme Court dismissed Eve Doherty’s appeal against her harassment conviction, with Justice Iseult O’Malley agreeing that letters, leaflets and emails could be treated as communications with the complainant. O’Malley said the prosecution had focused on “besetting”, but the trial judge had told the jury it could reach a verdict based on the letters and leaflets.
In a judgment delivered on 24 July 2020, O’Malley said those communications were matters bound to come to the complainant’s attention. They included a “To whom it may concern” letter sent to the complainant’s workplace, leaflets distributed in the neighbourhood of her home, and emails.
O’Malley’s comments on the meaning of “besetting” were not necessary to the outcome because she agreed with the court’s conclusion on communication. She noted that Supreme Court judges had not reached a unanimous view on the word’s meaning and described it as ambiguous in the legislation creating the harassment offence.
The Court of Appeal had endorsed the trial judge’s definition of “beset” as “to trouble persistently”. O’Malley disagreed with that approach. She said the interpretation risked making “besetting” indistinguishable from the consequences of harassment itself and argued that a criminal offence must be defined with sufficient clarity.
In her view, “besetting” under the Non-Fatal Offences Against the Person Act 1997 required a physical action by the accused. Drawing on the Act’s separate coercion offence and a dictionary meaning involving surrounding a person or place with hostile intent, she said the accused’s presence was necessary. She suggested that a jury should be directed to consider whether the accused was persistently in or close to a place where the complainant was, without lawful authority or reasonable excuse, and whether that presence had the effects set out in the statute.
O’Malley stressed that her proposed direction was not a script and would need to be adapted to the facts of each case. She also said “hostile” did not require proof of angry or violent intent, as the offence could be committed recklessly. She agreed that “besetting” was an archaic and potentially unclear word in criminal legislation, and said updating the statute was highly desirable.