Helen McEntee (Meath East, Fine Gael) | Oireachtas source

I move: "That the Bill be now read a Second Time."

I welcome the opportunity to introduce the Criminal Justice (Miscellaneous Provisions) Bill 2022. It brings several improvements to our criminal law, including important provisions to help us to combat domestic, sexual and gender-based violence and to tackle organised crime. It includes new measures to address stalking and harassment, a new stand-alone offence of non-fatal strangulation, and an increase in the maximum penalty or sentence for conspiracy to murder from ten years to life. I intend to bring further measures on Committee Stage. Most significantly, I will propose an increase to the maximum penalty for the offence of assault causing harm from five years to ten years' imprisonment.

We have seen cases where victims have been stabbed, their bones have been broken, they have had boiling water and sugar poured on them while pregnant and they have been left with serious mental and physical damage but the sentences imposed on the abusers have been, quite simply, too low. That is why this Bill will double the maximum sentence for assault causing harm, which is one of the most common offences in domestic violence cases, from five years to ten years. I hope new stand-alone offences will encourage victims to report what has happened to them. That is why I am proposing new stand-alone offences for stalking and non-fatal strangulation.

We know that stalking ruins lives. I thank Una Ring and Eve McDowell, a close friend of mine, who used their own experiences to drive a brave campaign to bring about reform. Under this Bill, anyone convicted of our new stalking offence will face up to ten years in prison.

Strangling in domestic abuse is often a predictor of even more serious violence or death. Abusers convicted of our new offence of non-fatal strangulation will also face up to ten years in prison and potentially life in the most serious cases. These reforms will help us achieve zero tolerance and to build stronger, safer communities. Earlier this year, I launched our Zero Tolerance plan, the third national strategy on domestic, sexual and gender-based violence. Its aim is to bring about changes in attitudes and also in systems to ensure there is zero tolerance in Irish society for such violence. Part of achieving this is ensuring that our criminal law is fit for purpose with the right offences in place to reflect the crimes that are sadly commonplace in our society, with perpetrators punished in a way that reflects the harm their actions cause, and with appropriate protections in place to protect and support victims and to prevent escalation.

I will begin with stalking and harassment, which are addressed in Parts 4 and 5 of the Bill. Stalking is an extremely serious and intrusive crime that can cause devastating psychological distress. It may also be a precursor to acts of direct physical violence. While stalking can currently be prosecuted as harassment under the Non-Fatal Offences Against the Person Act 1997, the evidence in other countries shows that having a specific and stand-alone offence of stalking leads to greater awareness, an increase in the number of victims coming forward and an increase in the number of prosecutions. This is ultimately what we want.

We want to create a system that victims know will support them and will protect them. That system needs clear and robust legislation that recognises what was done to them as a serious crime. As I have already mentioned Members will be familiar with the exceptional work done by Stalking Ireland, in particular its cofounders, Eve McDowell and Una Ring. Eve and Una have shown incredible bravery in recounting what happened to them and sharing their experiences, supporting others who have been affected and pursuing their campaign tirelessly to bring these issues to the fore. I do not believe they expected so many people to come forward who had been affected by stalking and harassment. The fact that so many have come forward illustrates why laws like this are needed. The lived experience of these courageous victims and survivors have helped us to identify how our laws need to be strengthened. I also acknowledge the work of Senator Lisa Chambers on this issue. I was pleased to work with her to bring about this reform.

This Bill puts in place several important changes. It will establish in Irish law a stand-alone offence of stalking. This offence will cover any conduct that puts someone in fear of violence or causes serious alarm and distress such as to have an adverse effect on the person's day-to-day life. The conduct in question is illustrated by a wide list of possible behaviours, such as following, spying upon, communicating with or about and impersonating. This list is not exhaustive. This open approach is important. We know, sadly, that stalkers constantly identify new and novel ways of invading victims' lives, so the law needs to be flexible enough to recognise this. Conduct does not necessarily need to be persistent to fall under the offence. A single incident may constitute stalking situations where a victim is not actually aware of the stalking behaviour at the time it occurs but discovers it later. It carries a maximum sentence of ten years' imprisonment. Courts are required to treat as an aggravating factor that a person has been convicted of other offences against the victim.

The Bill will significantly widen the existing harassment offence. This offence will remain important, covering harassment behaviours that are broader than stalking. It is committed where the perpetrator's persistent conduct seriously interferes with another's peace and privacy, or causes alarm, distress or harm. The same open list of possible behaviours will apply to this as it does to stalking.

It will introduce a new system of civil orders restraining stalking behaviours. These are vital additions to the law which will allow earlier intervention and do not require a criminal prosecution, which often prevents people from coming forward. They go significantly further than what is possible under domestic violence laws. I believe their availability will encourage victims to come forward and engage with supports at an earlier stage. An order may be sought by either an affected person or by the gardaí on his or her behalf. The court may make an order where there are reasonable grounds for believing that a respondent has engaged in relevant conduct, and the making of the order is necessary and proportionate to protect the safety and welfare of the applicant. It is important to emphasise that while the definitions used in the order are aligned with the new stalking offence, the standard for obtaining the order is very different from that required to obtain a criminal conviction for stalking. To get an order it must be shown simply that the respondent has engaged in stalking behaviour and that it is necessary and proportionate to grant the order. Intent on behalf of the respondent does not need to be shown nor does it have to be shown that the applicant has actually been placed in fear or was caused serious alarm and distress, only that the conduct is likely to have that effect. I believe that this approach will ensure that orders are available where they are needed.

The procedural protections in place for domestic violence orders will also apply to the civil order procedure. These include that evidence may be given by video-link, that proceedings will take place in private and that limitations are placed on cross-examination by the respondent in person. Breach of the civil order is of course in itself a criminal offence. It may also form part of the basis for a prosecution for stalking or harassment.

While this Bill is progressing through the House it is important to emphasise that stalking is already a crime. It can be and it is being prosecuted. For those who are now suffering there is support available. Offences already carry potential sentences of up to ten years. While this Bill will certainly improve the law, perpetrators should not in any way believe that they can act with impunity. I want to make that very clear. While improvements to the law are a first step, they must be supported by practical training. That is a key element of Supporting a Victim's Journey, my plan to improve the criminal justice system for vulnerable victims and witnesses. It includes training for gardaí separate from the training for those in the divisional protective service units that are now in every Garda division. It also includes training for solicitors, barristers and the Judiciary. It is vital that when people come forward they know that the law is on their side and that they will be treated respectfully by everyone they engage with. I am considering further procedural enhancements to the regime both in respect of criminal offences and civil procedure and I will propose amendments on Committee Stage.

I will move to the provisions in respect of non-fatal strangulation, which are provided for in sections 11 and 12. Non-fatal strangulation unfortunately is a common feature of domestic abuse and a strong predictor of even more serious violence. It is overwhelmingly perpetrated by men against women. While the existing assault offences, which are under sections 2, 3 and 4 of the 1997 Act, cover strangulation, strong arguments have been made for the introduction of a stand-alone offence. Research has suggested that a history of strangulation presents a seven-fold increase in the risk of death. Internationally, after stabbing, strangulation is the second most common method of killing in adult female homicides. Research also highlights that non-fatal strangulation is frequently used as a tool of coercion often accompanied by threats to kill. The long-term physical and mental health effects of strangulation are also serious. Studies report that even where there is little to no visible injury longer term physical effects have been identified including internal bleeding, dizziness, loss of memory and other neurological effects. There is also an increased risk of miscarriage. Psychological outcomes identified include depression, anxiety, suicidality, post traumatic stress disorder, PTSD, and dissociation. The undercharging of strangulation and asphyxiation has been identified as a problem in several countries. The lack of observable injuries means that the offender's conduct may be minimised and the offender may be charged as equivalent to the least serious assault in Ireland. In recognition of these issues new offences of non-fatal strangulation have been introduced in New Zealand, the UK and the US. The Garda Commissioner in one of the first meetings I had with him requested the introduction of such an offence in Ireland and we have been working on this.

The Bill would establish two new offences, under sections 3A and 4A of the 1997 Act, aligned in terms of penalties with the offences of assault causing harm, section 3, and causing serious harm, section 4, respectively. These new offences will establish the seriousness of strangulation and ensure that strangulation convictions are identifiable as such to support further court and care actions. The effect of adding section 3A is that any strangulation or suffocation will be treated as an offence of similar seriousness to an assault causing harm regardless of whether observable harm or injury is caused or indeed proven. Where the strangulation causes serious harm the second offence under section 4A aligns with the existing section 4 offence of causing serious harm, which carries a maximum penalty of life imprisonment. The section 3A offence is subject to a defence of showing that the other person consented to the strangulation or suffocation. This reflects the alignment of the offence with the existing assault offence for which an absence of consent must be proven. Unlike sections 2 and 3 an evidential burden is placed on the defendant to raise this as a defence. This defence is not available in cases where serious harm is caused.

In regard to assaults causing harm, these assaults may fall under either section 3 or section 4 of the 1997 Act. Section 3 currently carries a maximum penalty of five years' imprisonment. Section 4 carries a maximum penalty of life imprisonment and applies in cases of serious harm. Serious harm is relatively narrowly defined and therefore section 3 covers a wide range of assaults which although falling short of causing the most serious harm, may nonetheless be of significant gravity. I mentioned many of them earlier. Prosecutions under this section have included attacks involving stabbing or broken bones, multiple perpetrators, deliberate infliction of severe pain, attacks against vulnerable persons and attacks causing long-term mental and physical detriment. The Office of the DPP and others have raised concerns that the five-year maximum penalty is too low given the gravity of the harm caused. I think we would all agree with that. It is apparent that the maximum sentence has been used repeatedly by the courts as a starting point for calculating a sentence before mitigating factors are taken into account. This is unusual compared with other offences where the maximum sentence is reserved for the most exceptional cases. For the more serious offences falling under section 3 the five-year maximum penalty is lower than would apply in other jurisdictions and lower than comparable Irish theft and criminal damage offences, both of which carry maximum penalties of ten years. I am not sure what that tells us, perhaps that property is more important than we women are. On this basis I am satisfied that the existing maximum penalty is not commensurate with the gravity of the offences. The Government has approved the introduction of an amendment which will increase this maximum penalty to ten years and I intend to bring this forward on Committee Stage. I will emphasise that the purpose of this change is not to increase every sentence under section 3. Courts will of course continue to weigh the gravity of the offence and the appropriate aggravating and mitigating factors but I believe that they will have a more appropriate and wide range of sentences available. As I noted the section 3A the non-fatal strangulation offence is aligned with section 3 and I intend that both offences will have a ten-year maximum penalty.

Part 2 of this Bill provides for an increase in the penalty for conspiracy to murder from ten years to life.

An Garda Síochána has struck many serious blows against organised crime. It has built international law enforcement coalitions to relentlessly pursue these gangs across the world. As Minister for Justice, I will always ensure that An Garda Síochána and our courts have the tools, resources and technology that they need to take firm and decisive action.

That includes strong laws to put those who try to spread murder and misery behind bars. The offence of conspiracy to murder is vital in tackling gangland thugs. These murders are not committed by individuals acting alone. Even though the good work of the Garda often prevents murder before it happens, the intent and plan to murder was still there. That is why I am increasing the maximum sentence for conspiracy to murder from ten years to life imprisonment. We cannot and will not allow these gangs to take hold as we build our strong, safe communities.

Part 3 of the Bill contains amendments in respect of firearms. Section 8 amends the offence provisions of the Firearms Act 1925. The effect of the section is to ensure that forensic analysts do not commit a firearms offence by being in possession, using or carrying firearms in the performance of their functions. Section 9 is a technical amendment that ensures there is consistency in the meaning of the term “firearm” across our legislation in this area.

I will be bringing a number of amendments on Committee Stage in relation to firearms. These will include a similar provision as proposed in section 8, exempting Garda civilian staff from firearms offences, a cap on the licensing of semi-automatic centre-fire rifles and the regulation of firing ranges. The overall aim is to ensure that our legislation in this area continues to support public safety.

Part 6 of the Bill provides for miscellaneous amendments to a number of other enactments. Apart from those that I have already referred to, I would mention in particular section 36, which amends section 23A of the Criminal Justice (Public Order) Act 1994 to apply the fixed charge offence regime to section 21, which is on the control of access to certain events, and section 22, which is on the surrender and seizure of intoxicating liquor.

Section 41 provides for the repeal of Part 4 of the Prisons Act 2007, which relates to the planning process for large prison developments to bring this in line with other EU legal requirements.

I have also referred to several amendments that I expect to be introduced on Committee Stage, but I expect to introduce perhaps some more on the following matters. Witness anonymity, for example, in respect of at-risk witnesses or undercover police officers, is currently addressed on a non-statutory basis. The Court of Appeal has highlighted the importance of having a clear legal basis for determining whether and under what conditions anonymous evidence should be admitted. My Department has been engaging with the Office of the Attorney General to develop such a legal basis and I expect to introduce this on Committee Stage.

Section 25 of the 1997 Act provides that evidence may be given by certificate by a doctor to give evidence of harm and that it would be provided without the doctor attending court. This avoids unnecessary barriers and delays to the conduct of criminal trials and also ensures that doctors are not diverted from their work to attend in person at criminal trials. The Supreme Court has identified limitations in the current approach and I expect to bring forward changes to allow it to be used under a much wider range of circumstances.

I also intend to extend section 10 of the Misuse of Drugs Act to allow certificate evidence to be provided under a wider range of circumstances.

Further amendments are intended in respect of: the Criminal Law (Insanity) Act 2006, to allow for situations where the chair of the Mental Health Board may be temporarily incapacitated; the Criminal Justice (Mutual Assistance) Act 2008, to facilitate the return of confiscated financial assets to the requesting state; the Criminal Justice (Corruption Offences) Act 2018, to remove certain dual criminality requirements; and the Criminal Justice (Public Order) Act 1994, in respect of interference with or disruption of court proceedings.

As all colleagues will agree, this Bill is wide-ranging. However, in conclusion, I wish to bring the House back to the key elements and to express my gratitude and profound respect for the work not just of Una Ring and Eve McDowell, but for all victims and survivors of domestic violence.

Zero tolerance means that we do not turn a blind eye to abuse in the many forms that it comes. We will support victims with compassion and give them the unstinting backing of our laws.

I commend the Bill to the House.

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