Charles Flanagan (Laois, Fine Gael) | Oireachtas source

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 amendments.