All mobile phones, including the Cathaoirleach's, need to be switched off as they cause interference with the recording equipment. This meeting has been convened to consider Committee Stage of the Domestic Violence Bill 2017. On behalf of the Select Committee on Justice and Equality, I welcome the Minister for Justice and Equality, Deputy Charles Flanagan, and his officials. I invite the Minister to make any opening remarks he may wish to make. If not, we will proceed to address the amendments.
Domestic Violence Bill 2017 [Seanad]: Committee Stage
I am pleased to be here this morning to address this important reforming legislation, the Domestic Violence Bill. Members will be aware that there was considerable debate on this Bill in the Upper House, following which a number of amendments were made. Members will be aware of the fact that this Bill has been the subject of debate for some time, published as it was in February of last year. I would hope that we could have constructive engagement. We do not have too many amendments. I acknowledge the co-operation of members of the committee and the input of its members on Second Stage. I hope that we might be in a position to conclude matters this morning. I wish to assure Members of my consideration of any points made. I would like if we could move matters in such a way that we could report progress in a couple of hours or perhaps even complete the Bill.
I thank the Minister. Before moving on to the business, just as I noted the Minister's hope for constructive engagement, I would like him, members of the committee and anyone else who is interested to note that we always conduct our legislative business in a constructive fashion. There have been no exceptions to that at any time.
Are you sure you are the Chair, now? I thought Deputy John McGuinness was.
There you are. There is no end of people who might covet the role. We will proceed to section 1 of the Bill. There are no amendments on section 1.
Amendment No. 1 is grouped with amendments Nos. 15 and 16 and they will be discussed together. Amendment No. 1 is in the Minister's name.
I move amendment No. 1:
In page 6, between lines 25 and 26, to insert the following:
“ “civil proceedings under this Act” means—
(a) proceedings relating to an application for the making, variation or discharge of a safety order, a barring order or an emergency barring order,
(b) proceedings, consequent on the making of an application for a barring order, for the making, variation or discharge of an interim barring order which relates to the application,
(c) proceedings, consequent on the making of an application for a safety order or a barring order, for the making, variation or discharge of a protection order which relates to the application,
(d) proceedings by way of appeal or case stated which are related to proceedings to which paragraph (a), (b) or (c) applies;”.
For the record, I am not one of those who covets the Chairman's role. I had it 20 years ago. I enjoyed it and I wish him well for the remainder of his term here. Amendment No. 1 is a technical amendment to section 2. It provides for a definition of civil proceedings under the Act, which is a term used throughout the Bill. This was the definition that was included in the Act of 20 years ago when I was Chair of the committee. It was inadvertently omitted from section 2 of the Bill, as published, and this amendment merely proposes to reinstate it. Amendments Nos. 15 and 16 are technical amendments which improve the clarity of sections 25 and 27 which relate to civil proceedings under the Bill.
If nobody has a contribution regarding the Minister's proposal or amendments Nos. 15 and 16, which are also in his name, I will proceed to a decision on amendment No. 1.
Amendment No. 2 is grouped with amendments Nos. 3 to 5, inclusive, 19 and 20. These are all in the Minister's name and I invite him to address this grouping.
I move amendment No. 2:
In page 7, between lines 29 and 30, to insert the following:
“(3) For the avoidance of doubt, a relationship does not cease to be an intimate relationship for the purposes of this Act by reason only that it is no longer sexual in nature.”.
Deputies will recall that on Second Stage in the House and during the Seanad debates, certain issues were raised about the use of the term "intimate and committed relationship" in the provisions that specify who may apply for orders under the Bill. I also know that groups such as Women's Aid have expressed concerns about the issue in a formal submission on the Bill. The background to the matter is that section 60 of the Civil Law (Miscellaneous Provisions) Act 2011 introduced access to domestic violence orders for persons living together in intimate and committed relationships, replacing the provisions of the Domestic Violence Act 1996 that applied to persons living together as husband and wife. The intention was that same-sex couples who were not civil partners would have the same access to the protections under the 1996 Act as opposite-sex unmarried couples. The wording was taken from the definition of cohabitant in section 172 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. The term "intimate and committed relationship" was framed to provide a threshold to which the court must have regard in deciding whether to make an order. While concerns raised by voluntary sector groups about the suitability of the wording were given careful consideration, it was decided to proceed with the amendment unchanged.
I have considered this matter further in consultation with the Office of the Attorney General. I am of the view that it would not be in the interest of victims of domestic violence if perpetrators could try to avoid having orders made against them by arguing that the relationship was not committed, for example, because of their sexual activity with a third party, or because the victim of the violence had previously sought to end the relationship. This is particularly relevant to safety orders now that section 6(1)(a) of the Bill will remove the cohabitation requirement for couples who are not married or, indeed, couples who may not be in a civil partnership. Amendments Nos. 3 to 5, inclusive, 19 and 20 provide that the term "intimate and committed relationship", where it applies in the Bill, will be amended to delete the words "and committed". To ensure protection for victims of domestic violence who are or were in an intimate relationship which is no longer sexual in nature, amendment No. 2 proposes to make clear that a relationship does not cease to be an intimate relationship for the purposes of the Bill merely because it is no longer sexual in nature. The text of the amendment is drawn from section 172(3) of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.
I support and welcome that change in the definition. It was raised at length in the Seanad, and I commend the Minister and the Department for taking it on board. My colleague, Senator Rose Conway-Walsh, raised it on a number of occasions during the debate, and I want to acknowledge that. Returning to a point I made on Second Stage, I acknowledge that the engagement of numerous organisations, in particular SAFE Ireland, Women's Aid Ireland and the National Women's Council of Ireland, has been very successful in improving this Bill considerably and I commend them for that. This is a further example of the efforts of those organisations. It is an appropriate change to the definition, one that is required and improves protections.
I, too, want to acknowledge the points raised on this issue by Members of the Upper House and by the groups mentioned. In particular, I acknowledge the support of Deputy Ó Laoghaire.
I move amendment No. 3:
In page 9, line 21, to delete “and committed”.
I move amendment No. 4:
In page 11, line 25, to delete “and committed”.
I move amendment No. 5:
In page 16, line 12, to delete “and committed”.
Amendments Nos. 6 and 7 are related may will be discussed together.
I move amendment No. 6:
In page 16, to delete lines 16 and 17 and substitute the following:
“(2) The court may only make an order under this section in respect of a place where an applicant or a dependent person resides and where—”.
The purpose of these amendments is merely to improve the clarity of the provisions of section 9 in the matter of applications for emergency barring orders. They are self-explanatory and I do not intend to say anything further.
I move amendment No. 7:
In page 16, line 22, to delete “Where the court, on application to it under subsection (2), is of the opinion” and substitute “Subject to subsection (2), where the court, on application to it, is of the opinion”.
Amendments Nos. 8, 9 and 14 are related and may be discussed together. I should point out that an amendment in the Minister's name proposes to delete the section to which amendments Nos. 8 and 9, in the names of Deputy Mick Wallace and Deputy Clare Daly, respectively, apply. I do not know whether the Minister's position regarding section 10 has a particular impact on the positions of Deputy Wallace or Deputy Daly regarding same.
We will make a few points and consider where we are.
I move amendment No. 8:
In page 18, line 23, after “communicating” to insert “by telephone or secure electronic means”.
The two amendments tabled by Deputy Wallace and I try to do the same thing. They attempt to provide a remedy for women in situations where they need an emergency barring order in the evening or late at night when the courts are closed. Obviously, we can envisage such scenarios and we want to avoid a situation where somebody could effectively be driven out of their home in the middle of the night and have no recourse and nowhere to go. This was discussed at length in the Seanad, and the Government said it would look at it again. The Minister's proposal is the Government's re-examination of the matter, and I welcome that there has been some movement on it. By deleting the section, the Minister's proposal provides for special sittings of the District Court to issue emergency or interim barring orders after hours. We welcome that. The point we are trying to highlight, however, is that there are practical problems associated with that.
First, there is the issue of cost. There is a call-out charge payable to judges on each occasion where there is an out-of-hours hearing, and obviously there are costs related to opening the court, staffing it, closing it afterwards, etc. Having consulted with members of domestic violence support services, the opinion of SAFE Ireland is that actually these hearings are rarely convened, for whatever reason. I suppose it is speculating that it is for reason of cost. Why is it that these hearings are rarely convened or rarely happen?
Other practical issues arise around a woman's ability to make her way to an emergency court sitting in the middle of the night when she lacks child care and so on. I appreciate the Government is trying to address these problems. I am not sure that our answer is the right one either. However, these issues need to be looked at. We have obligations under the Istanbul Convention.
The worry is that the Government's proposal might make it appear that there is a provision for out-of-hours emergency barring orders, but the practical reality would be that they would be out of reach to women. Our amendments allow for a garda to make application for an order by telephone in an emergency situation. The woman can then appear and swear an affidavit the next day and the issue can be dealt with that way. I do not think it is a brilliant solution, but it is an attempt to overcome that problem.
My amendment is quite similar. It is clear that there is no perfect solution. We are trying to avoid a situation where the victim is obliged to stay in the house with a possible abuser, and that for various reasons there is no quick remedy. I am not so sure. I would like to hear from the Minister.
As amendment No. 14 may address it, let us see what the Minister has to say.
What we are providing for is that in the absence of the hearing, a Garda could ring or email an out-of-hours judge and get the emergency barring order instead of the hearing that is being sought the next day or afterwards.
I now invite the Minister to address this grouping.
I acknowledge the importance of the points raised by Deputies Wallace and Clare Daly. I know where they are coming from and am familiar with the issue. Unfortunately, it is an issue that arises from time to time and does present difficulties. I acknowledge the Seanad amendments, particularly those in the name of Senators Ruane and Black. I do not see how I can go along in its entirety with the point raised by the Deputies for reasons that are not only obvious but appropriate. The section provides that on request from a garda attending a domestic violence incident, a garda of appropriate rank can authorise communicating with an on-call judge to apply for an out-of-hours barring order. There is always an on-call judge. That is not an issue. Judges are rostered and are on call to expect appropriate calls for sittings and action. My officials, in consultation with the Courts Service, the Garda and the Office of the Parliamentary Counsel, have examined section 10 to see what improvements and adjustments may be needed to the text. Amendment No. 14 proposes a new section 25, as referred to by Deputy Wallace, to provide for the arrangement of the out-of-hours sitting. The new section will apply to applications for interim barring orders, protection orders and emergency barring orders but would be limited to cases where a garda actually attended an incident. It is broad enough to include cases where a victim of domestic violence walks into a Garda station to immediately seek assistance or to seek immediate assistance. I am proposing that this new section, which has been drafted by the Office of the Parliamentary Counsel, would replace the current section 10. To my mind, the new section is legally clearer and will be workable on the part of An Garda Síochána and the Courts Service.
I have a problem with amendments Nos. 8 and 9. The interests of justice demand that the court has an opportunity to assess the case fully and the demeanour of the applicant for any order on a face-to-face basis. This is where I have a difficulty in respect of telephone calls, emails or what might be regarded as a less regular point of view. We must remember that these applications are being made on an ex parte basis and only one side is being heard. The respondent may not even be around and will not be on notice. Consequently, I do not believe it appropriate or proportionate to allow for a telephone call or an email application for a barring order from anyone, given the serious consequences for the respondent and the likelihood that this person would be immediately barred from the property. Allowing applications to be made by telephone - allowing applications that might be made in a rather casual manner where it would be really difficult to verify the identity of the applicant - would give rise to serious problems. I also believe there could well be applications of a mischievous nature or even worse, applications of a malicious nature by parties with an involvement here. The sections of the Bill that provide for different orders do not provide for applications for such orders to be made by An Garda Síochána. Applications are to be made by the person who will be the subject matter of the order and who will ultimately benefit from the order except in certain cases where the Child and Family Agency may make an emergency application as provided for in section 12. I have a concern that even if the amendments were to be accepted, which I am not minded to do, they do not set out any criteria or threshold for a court to determine that a telephone call or electronic application would be appropriate in a particular case. In conclusion, where there are cases in which there is an immediate risk of harm, the new section 25 proposed to be inserted by amendment No. 14, which provides for the special court sitting on an emergency basis, will resolve the fundamental issue for victims of domestic violence, which is really quick access to court and a speedy hearing all, of course, in exceptional circumstances having regard to the fact that we are dealing with an emergency application in the first instance.
I find it difficult to understand section 10 as it is drafted. It talks about a garda of appropriate rank. It does not specify or define what appropriate rank is. It then talks about how such a garda can authorise communicating with a on-call judge. As it does not say who they authorise, I do not understand the purpose behind it. If an applicant wishes to make an application to a judge, they can do so on an emergency basis. I think section 10 as drafted is a bad piece of drafting.
Deputy Wallace's amendment aims to limit the communication to telephone or secure electronic means. On a lot of previous occasions, people would just call to a judge's house and get an ex parte order, which has happened previously, so I would be concerned. While section 10 is badly drafted and should be deleted, the amendment would limit the communication even more because communication includes telephone or secure electronic means but it would limit it to these means were Deputy Wallace's amendment to be accepted.
I have the same concerns about Deputy Clare Daly's amendment because it provides it "may be made by telephone or other secure electronic means, subject to the applicant’s undertaking to swear a grounding affidavit". Obviously, the situation with which people are dealing here arises is the middle of the night when there is an issue and the Garda is called. If the members of the Garda believe the husband has assaulted the wife, they should and can arrest him for a criminal offence. That is what should happen. I share the Minister's concerns about people being able to simply apply easily for an ex parte order to get a barring order to get somebody out of the house in the middle of the night. Obviously, if there is any evidence of violence, the Garda should intervene and arrest the person suspected of violence but aside from that, section 10 confuses the whole issue. I would take it out.
What we are both trying to deal with is a situation similar to the powers the Garda has relating to children who are at risk, which we discussed at length in this committee, whereby the Garda is given exceptional powers to intervene in an immediate situation. This was similar, although I take Deputy O'Callaghan's point that the Garda could simply arrest the person. However, there may not have been the level of violence that would warrant an arrest. I am not sure. The Minister said that anyone could ring up and it could be malicious or vexatious. I find myself in the unusual position where I am in staunch defence of the members of An Garda Síochána. We are not talking about just anybody ringing up. We are talking about a call made by a garda who is on the scene, who has assessed the situation and who believes there is a requirement to remove the violent party from the home dwelling. Rather than requiring a sitting of the District Court, we propose that such a garda be authorised to simply get the permission of the judge in the immediate situation by phone or email. It was certainly not our intention to preclude members of the Garda from calling out to the judge if that is what they wanted to do instead. Our intention was to ward off the idea of cost or logistics preventing the special sitting of the court referred to by the Minister.
Maybe we have not got the wording right and we might need to look at it again on Report Stage. I agree there are issues. I am a little uncomfortable with emergency barring orders being issued ex parte and in the physical absence of the applicant. If the Government could give a commitment to ensure the out-of-hours sittings for emergency barring orders either do not incur a cost or that the cost would be covered, that would give some reassurance to overcome the deficit with which we are trying to deal.
SAFE Ireland raised this point. What happens if there are children involved? How long might it take for the court to sit on the matter? What are the costs involved? If gardaí at an incident see an unsavoury situation, they should arrest the man involved. However, that generally does not happen and there are reasons for that too. There is no easy solution to it. I will not press the amendment.
We need to look at the redrafted version with the section deleted and the other amendment inserted. I acknowledge there has been some movement since the Seanad debated this issue. We will look at it again on Report Stage.
I am anxious to meet the concerns portrayed by the Deputies. However, I need to do so in a clear and proportionate manner. I take Deputy O'Callaghan's point about section 10. I and the Office of the Parliamentary Counsel are on the same page on this and want to ensure that adjustments are made to bring about improvement to the text. I will examine it again because what we need is clarity, particularly in emergency situations, which are often in the middle of the night involving a tense atmosphere.
We must also ensure we do not blur the distinction between the role of the Garda Síochána and the role of the judge in these cases, as well as the need to separate entirely the judgment call of the Garda Síochána in terms of the urgency of the situation and the role of the member of the Judiciary in deciding a case on certain circumstances. I will examine the wording of section 10 again to ensure there is clarity.
As far as costs are concerned, I do not see that as an issue. There is a roster of duty judges for emergency situations. These are not hearings which take much time. They can be dealt with speedily having regard to the circumstances, urgency and importance of the cases involved. Often they are heard at short notice in the residence of the district judge. Costs are not really an issue and I would not like it to be portrayed that emergency court hearings are in some way not accommodated because of financial considerations.
These are serious and emergency issues. Unfortunately, they are becoming more frequent. The law must respond to the needs of the citizens and the public. That is why my feeling on section 10 is that it needs considerable improvement. We must see what we can do between now and Report Stage, particularly in the area of clarity.
The Minister proposes to delete section 10. In his amendment No. 14, which involves a replacement section, he proposes a member of the Garda Síochána not below the rank of sergeant may request the Courts Service to arrange a special sitting of the District Court. In an ideal world, we might have a sergeant in every Garda station but we do not, which might limit this proposal. Section 10 does not contain such a threshold. Will the Minister clarify this?
I would not like to see a situation develop where a garda at an emergency situation feels he or she is not of an appropriate rank to make a call or the Garda rank required is not on duty and the case goes unattended. It is a valid point and we will look at it. It is important, however, that the attending officer is of sufficient rank to be in a position to make this call. I will re-examine the areas of the garda attending or a garda with sufficient knowledge to be in a position to exercise that call before Report Stage.
Deputy Jack Chambers made a good point. It goes back to the training and education of gardaí. We are well aware that matters could be better in that area. Any garda attending such a scene should be trained to deal with it in a good way. That is not rocket science.
Yes, I suspect the Chair will not allow me to digress into discussing Garda resources but there is a sum of €1.6 billion. I agree training and expertise are issues. There are ongoing retraining programmes to ensure we have best practice.
It is unfortunate, however, that the guy heading Templemore college is subject to two inquiries.
We are digressing now. For the record, we are always interested in the resourcing of An Garda Síochána.
I move amendment No. 9:
In page 18, line 24, after "order" to insert the following:
"and, where necessary, out of hours where the applicant and any dependent children are at risk of immediate harm. If the order is not made in this way, such an application may be made by telephone or other secure electronic means, subject to the applicant's undertaking to swear a grounding affidavit or information before the next available ordinary sitting of the court".
Amendments Nos. 10 and 11 are related and will be discussed together.
I move amendment No. 10:
In page 24, to delete lines 14 to 17.
Section 20 of the Bill provides for copies of the orders under the Act to be given to various persons, including the respondent, by the court. These provisions are included in section 20. Order 59, rule 10, of the District Court rules provides that the clerk of the court shall give a copy of the order under the Domestic Violence Act to the respondent or send it to him or her by prepaid post. This is set out in the District Court domestic violence rules in SI 202 of 2005. It should be noted that if a respondent is present in the court when an order is made he or she will have been notified of the order. This is provided for in section 19 of the Bill, which replaces section 10 of the 1996 Act.
A new subsection (3) was inserted into section 19 on Committee Stage in the Seanad, on foot of an amendment tabled by Senator David Norris and others. The new subsection provides for the service of orders by An Garda Síochána. My officials, in consultation with the Courts Service, the Garda Síochána and the Office of the Parliamentary Counsel, have examined section 19(3) to see what further improvements and adjustments might be needed by the text. Amendment No. 11 proposes to insert a new subsection (5) into section 19, to provide that a court may direct personal service of an order by An Garda Síochána. This will apply in cases where the respondent was not present, where the order was made in the absence of the respondent and where there are reasonable grounds for believing he or she may evade service, or where there is a good and sufficient reason to direct that an order be served by a garda. I propose the new subsection (5), which has been drafted by the Office of the Parliamentary Counsel, would replace the current subsection (3). Amendment No. 10, therefore, proposes the deletion of the current subsection (3).
Are we dealing with amendment No. 11 also?
Yes please, it is in the grouping.
The points I have made cover amendment No. 11.
Would any member like to make an observation or question anything in relation to this grouping? There are no takers, and the Minister has nothing further to add.
I take the silence as support.
The Minister takes the silence as assent.
I rarely get it.
The Minister should be careful what he wishes for.
I thank the Cathaoirleach.
This is the justice and equality committee.
I will not say any more.
I move amendment No. 11:
In page 24, between lines 20 and 21, to insert the following:
"(5) A court may direct that a relevant order be served personally by a member of the Garda Síochána on a respondent who is not present at a sitting of the court at which the order is made in any case where—
(a) there are reasonable grounds for believing that the respondent may evade service of the order, or
(b) there is any other good and sufficient reason to so direct.".
Amendments Nos. 12 and 13 are related and will be discussed together.
I move amendment No. 12:
In page 27, lines 4 to 11, to delete all words from and including "The" in line 4 down to and including line 11 and substitute the following:
"The jurisdiction of the court in respect of civil proceedings under this Act may be exercised—
(a) as regards the Circuit Court, by the judge of the Circuit Court within whose circuit, and
(b) as regards the District Court, by a judge of the District Court for the time being assigned to the district court district within which,
the applicant resides or, if the application is for a barring order or an emergency barring order, the place, in relation to which that application was made, is situated.".
Amendment No. 12 is a technical amendment to improve the clarity of section 23(1) of the Bill, which provides for the geographical jurisdiction of the District Court and Circuit Court in civil proceedings under the Bill. The proposed new text of section 23(1) makes it clear that jurisdiction of the District Court under the Bill can be exercised by any judge who is assigned to the relevant district. As regards amendment No. 13, I am advised that deletion of section 23(2) is necessary to ensure compliance with the principle that the District Court exercises jurisdiction by reference to districts. This principle has been the subject of case law in the Supreme Court since the 1996 Act was enacted.
Would any member like to offer an opinion or comment?
I was a bit unclear as to why it was proposed. Originally the provision stated if a District Court judge was not available people could go to any District Court, but now we are saying they cannot and there is a legal impediment as to why this is the case. I could not understand why the change was being made.
This is something we need to look at in the longer term. I have been discussing the whole basis of the jurisdiction of the District Court under current divisions and whether we might update and modernise District Court jurisdiction to allow for a broader jurisdiction. At present, the judge of the District Court is the person who is assigned to the appropriate district. If that person is not available there is an issue to ensure the temporary assignee has an association with that district. It has been enshrined in our courts legislation for many decades. Obviously, we want to ensure there is full compliance and there are not any legal or jurisdictional issues. This is why the amendments are necessary, to avoid any doubt or legal uncertainty that might arise in the context of an application made or having been made, or a consequent or subsequent judicial review or action.
Before going back to Deputy Clare Daly, the Minister has indicated this is something he has been considering, and he suggested in the long term. Is he looking at it in the context of this legislation?
No, I am not. I am looking at it in the context of the broader District Court and its jurisdiction in the State.
It is not something the Minister will necessarily-----
It is not peculiar to this legislation.
-----close on in this legislation.
I thought that would be informative.
I get it. It is part of a bigger problem. I thought it was peculiar.
Does any other member wish to comment? Does the Minister have anything further to add before we go to a decision on these amendments?
It is a mere technical amendment to ensure certainty.
I move amendment No. 13:
In page 27, to delete lines 15 to 17.
I move amendment No. 14:
In page 27, after line 36, to insert the following:
"Special sitting of District Court
25. (1) A member of the Garda Síochána not below the rank of sergeant may request the Courts Service to arrange a special sitting of the District Court for the purposes specified in subsection (2)—
(a) where a person has informed the member that he or she wishes to make an application referred to in paragraph (a) of that subsection, and
(b) at the time the person so informs the member, there is no District Court sitting in the district court district in which that person would make such an application if that court was sitting.
(2) The purposes referred to in subsection (1) are—
(a) to facilitate the making and determination of an application for an interim barring order, an emergency barring order or a protection order, and
(b) where necessary for the purposes of an application referred to in paragraph (a), to facilitate the making of an application for a safety order or a barring order.
(3) The Courts Service may, with the consent of a judge of the District Court exercising jurisdiction in accordance with section 23, arrange such special sittings of the District Court in the district court district referred to in subsection (1)(b) as may be necessary for the purposes specified in subsection (2).
(4) In this section, "special sitting" means a sitting of the District Court at a place and time not standing appointed for the time being under section 26 of the Courts of Justice Act 1953 or section 40 or 42 of the Courts (Supplemental Provisions) Act 1961 for the transaction of the business of the District Court.".
I move amendment No. 15:
In page 28, lines 2 and 3, to delete "In an application for a safety order, a barring order, an interim barring order, an emergency barring order or a protection order," and substitute "In civil proceedings under this Act,".
I move amendment No. 16:
In page 28, line 35, to delete “In proceedings under this Act, other than proceedings for” and substitute “In civil proceedings under this Act, other than proceedings for the making of”.
I move amendment No. 17:
In page 31, to delete lines 11 and 12 and substitute the following:“commits an offence and is liable—
(i) on summary conviction, to a class A fine or to imprisonment for a term not exceeding 12 months, or both, or
(ii) on conviction on indictment to a fine not exceeding €10,000 or to imprisonment for a term not exceeding 5 years, or both.”.
Generally when there is a breach of a court order the remedy is for the applicant or the person affected to bring an application for attachment and committal. That obviously places a lot of obligations and burdens on the applicants. The fact that it is specified in section 33 that it is an offence to contravene a safety order, a barring order or the other orders set out in the legislation is to be welcomed.
This amendment is probably unusual. It seeks to make the offence of breach of a court order not just a summary offence but also an indictable offence, based on the serious nature of the breach. If it is an offence that is prosecuted on indictment there would be a further penalty. I am conscious of the fact that breaches of court orders are not offences, so I welcome the fact this is being made an offence without prejudice to the fact that contempt of court jurisprudence will still operate. I am interested in what the Minister has to say in response to the proposal that it be an offence prosecutable on indictment as well as summarily.
Deputy O'Callaghan acknowledges that his amendment is somewhat unusual. I am somewhat concerned that there might be unintended consequences detrimental to victims if an offence of breaching a domestic violence order was triable on indictment and punishable by imprisonment of up to five years. There would be adverse consequences for the availability of these orders. Orders granted under the Bill will be civil orders. The threshold of proof in these cases is the balance of probabilities. This is not as onerous a threshold as for criminal cases, where the threshold is beyond all reasonable doubt. In addition, orders are granted in most cases in the summary jurisdiction of the District Court. There is concern that if a breach of an order attracts a punishment of up to five years imprisonment, it could have a very distinct chilling effect in relation to the granting of orders. Respondents would be expected to contest the cases in a more vigorous manner and in the interests of justice the courts might, in certain circumstances, be less inclined to grant the orders. I have no doubt that this would be to the disadvantage and detriment of victims and those seeking redress.
These concerns were highlighted by the Law Reform Commission in its report of 2013 entitled, Aspects of Domestic Violence. The commission expressed concern that increasing the possible punishment for breach of a domestic violence order to five years imprisonment might well lead the courts to a conclusion that ex parte orders should no longer be permissible. Of course, if that was the case it would really undermine the efficacy of the legislation. The Law Reform Commission pointed out in its report that the purpose of criminalising a breach of a domestic violence order is primarily to deter respondents from acting in breach of the order, and also to punish respondents who are in breach of the order.
Making the breach of a domestic violence order a crime does not replace other criminal offences, such as assault, or indeed the issues referred to by Deputy O'Callaghan in a discussion on an earlier amendment where he cited An Garda Síochána's ability to arrest a respondent for a criminal offence. If an offence of assault or criminal damage is committed by a person acting in breach of an order, the other offence should be prosecuted as an additional charge. I see that happening on a regular basis.
Criminalising the breach of a domestic violence order would not have the effect of punishing serious misconduct, such as assault causing harm. I am concerned about unintended consequences or unintended practices that might arise. Deputy O'Callaghan is seeking to underline the seriousness of the issue, but I do not propose to accept the amendment.
In light of the concerns expressed by the Minister and the unusual nature of the amendment I will withdraw it.
The Minister made good points. On the face of it, it appears to give an indication of how seriously we take breaches of safety and protection orders, which is good, but we can see how the idea of a chilling effect might play out. While it looks good, it goes against what I believe in terms of reducing incarceration. I do not believe we should go in the direction of mandatory minimum sentences either. I am glad the amendment has been withdrawn.
Section 34 provides that the provisions of Part III of the Criminal Evidence Act 1992, which relate to the giving of evidence in criminal proceedings by television link or through an intermediary, will also apply to proceedings for an offence under section 33 of the Bill of breaching a domestic violence order. Deputies will be familiar with section 30 of the Criminal Justice (Victims of Crime) Act 2017, which was enacted after the publication of this Bill. That Bill, in the form of section 30 of the Criminal Justice (Victims of Crime) Act 2017, provides for a substantial amendment of Part III of the Criminal Evidence Act of 1992. It would be simpler and clearer to make provision in this Bill for specific amendments to section 12 of the Criminal Evidence Act which defines the relevant offences to which Part III of that Act applies. These amendments, which have been provided for in amendment No. 21, will ensure that the full protections of Part III of the Criminal Evidence Act 1992 will apply to victims of offences for breaches of domestic violence orders. It also applies to the issues of control and forced marriage.
As section 34 of the Bill will no longer be necessary if amendment No. 21 is accepted, it is appropriate that it be deleted in its entirety.
I move amendment No. 18:
In page 34, between lines 15 and 16, to insert the following:
“(9) Where a person has been acquitted of an offence in a place other than the State, he or she shall not be proceeded against for an offence under this section consisting of the alleged act or acts constituting the first-mentioned offence.
(10) Where a person has been convicted of an offence in a place other than the State, he or she shall not be proceeded against for an offence under this section consisting of the act or acts constituting the first-mentioned offence.”.
Section 39 provides for a new offence of forced marriage. The section will allow criminal proceedings to be brought in Ireland for forced marriage offences committed by Irish citizens or residents anywhere outside the State, subject to a requirement known as "dual criminality", that is, that the act must also be an offence in the place where it was committed. Offences committed outside the State on Irish registered ships or aircraft can also be prosecuted here in Ireland. The purpose of this amendment is merely to ensure that criminal proceedings may not be brought in the State for a forced marriage offence where criminal proceedings have already been determined in another country in respect of the same act. This is a standard provision in legislation where provision is made for jurisdiction for offences that may be committed outside the State.
I move amendment No. 19:
In page 35, line 13, to delete “and committed”.
I move amendment No. 20:
In page 36, line 10, to delete “and committed”.
I move amendment No. 21:
In page 37, between lines 17 and 18, to insert the following:
“Amendment of section 12 of Criminal Evidence Act 1992
45. Section 12(1) (amended by section 30 of the Criminal Justice (Victims of Crime) Act 2017) of the Criminal Evidence Act 1992 is amended in the definition of “relevant offence”—
(a) by the insertion of the following paragraph after paragraph (d):
“(da) an offence under section 33, 39 or 40 of the Domestic Violence Act 2018;”,
(b) in paragraph (e), by the substitution of “(c), (d) or (da)” for “(c) or (d)”.”.
This amendment was discussed when we discussed the deletion of section 34. I am happy to leave it at that.
As the Minister is happy, that is fine. He is quite correct, we have, of course, reflected on it. Is he happy to leave it at that?
If the members are, I am.
There is no member wishing to further address this issue.
I wish to comment on section 51. These sections, as members will see, are in Part 4 of the Bill which provides for replacement of the reference to the Domestic Violence Act 1996 in existing legislation with reference to the corresponding provisions in this Bill. Since this Bill was published last year, a number of Acts, for example, the Criminal Justice (Victims of Crime) Act 2017 and the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016, have been enacted. They contain reference to the Domestic Violence Act 1996, so on Report Stage I intend bringing forward some technical amendments to provide for the updated references. I merely make this point now in order to facilitate this on Report Stage.
It is a cross-referencing situation that will present on Report Stage.
I presume the Minister's points refer to each of these sections and not just section 51.
They refer to Part 4 of the Bill.
As the Bill has now completed Committee Stage, it is recommended that members submit amendments to the Bills Office without delay as Report Stage may be taken at short notice.
In response to Deputy Clare Daly, who raised the ratification of the Istanbul Convention, as soon as this Bill is enacted, one legislative Act will be required to enable that ratification. That Act is on the matter of extraterritorial jurisdiction for certain offences. It is my intention that that Bill will be published within the next couple of months and it will follow the enactment of this Bill.
I thank everybody for their constructive proposals and engagement. I have taken careful note of a couple of points raised and I hope we can get to Report Stage as soon as practicable after the Easter vacation.
I thank the Minister for his acknowledgment of the constructive engagement. The words I would add are "at all times".
I again thank the Minister and his officials for attending today.
I want to flag an important meeting to members before we all leave. I remind members of our informal engagement with members of the Commission on the Future of Policing in Ireland. It will take place at 11 a.m. tomorrow with Ms Kathleen O'Toole and others in room A in LH2000. These off-committee informal meetings have tended to leave the Chair very much isolated and alone.
Tomorrow, that is not on. I need your attendance and participation, otherwise we will not get the full value out of the engagement with Ms O'Toole and her colleagues. It is at 11 a.m. tomorrow in room A.
The select committee will adjourn until 10.15 a.m. on Wednesday, 18 April, when we will have the Minister back with the 2018 Estimates. We will meet first privately in joint committee at 9 a.m. It just remains for me to wish you all a very happy Easter. Enjoy the break.