Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

I will get on to that now.

There is also an attempt to capture coercive and controlling behaviours, including those with a psychological element. I have no ideological difficulty with defining domestic violence or creating an offence of coercive control. I have no ideological resistance to that whatever. The key question is will it be effective and is it going to be supportive of victims in the real world, namely, in the courts? That is the question we have to ask and we need to be sure that the answer is "Yes".

I will go through some of the detail with Senators because it is important that I am very comprehensive about this. If the latter proves to be the case, we will achieve the best result. Consideration was given to establishing an offence of domestic violence during the drafting process. We also looked at coercive control. Senators will appreciate from the amendment that what constitutes domestic violence encompasses a very wide currency and spectrum of behaviours. We all recognise that. The question is how does one match that with what happens in the courts in terms of prosecuting these cases. As Senator Norris said, it is extremely difficult to come up with an exhaustive list and, for obvious reasons, we all recognise that. It is a complex issue and the amendment, as proposed, demonstrates how problematic it is to define it in statute. Behaviours in a domestic setting which involve emotional abuse, humiliation and fear, are clearly detrimental and an abuse of the trust associated with an intimate relationship but the key is that effective legislation needs to be enforceable. That is the criterion against which we must measure this. Is it enforceable in the courts? Is it going to make it easier or be helpful in taking these cases?

Many instances of domestic violence take place in private. The difficulties in obtaining evidence of non-physical behaviours and the harm they cause in order to satisfy a criminal standard of proof that is beyond reasonable doubt and secure conviction are obvious. All the agencies represented here today - Safe Ireland, Women's Aid, the National Women's Council and Barnardos - will be very familiar with the problems relating to this issue. The difficulties in securing convictions in respect of relatively simple offences - and I use that term in context - such as assault, could potentially be compounded in the case of an offence of domestic violence. That is something for which we must watch out. When we considered this issue, we had very wide consultations across the criminal justice agencies, by which I mean people with a keen interest in this matter who would be prosecuting in the courts. I will now outline the advice I received.

There is not a gap in the range of offences that can be prosecuted in domestic violence cases, primarily under the Non-Fatal Offences Against the Person Act 1997. Acts of physical violence, such as assault, assault causing harm and sexual violence, are already offences, as is the threat of violence. Non-violent abuse is also captured by the harassment and coercion provisions contained in the 1997 Act. Likewise, causing damage to property, animals and so on is an existing offence. Prosecuting an offence of domestic violence in addition to other existing criminal offences could make prosecutions more complicated and could create a further burden on victims. That is the advice I have from the people taking these cases in the courts and who observe how they are prosecuted now and how they go through the courts. That is their view.

As matters stand, the courts can take into account the fact that such acts took place in a domestic setting when sentencing an offender. Senators will recognise that there are lots of overlaps with existing criminal offences and duplicating offences in the amendment that is being put forward. That is a fact. To summarise, the reason it is not there is because the issue regarding the exhaustive list and the crime of violence and other crimes I mentioned are already captured in legislation and as a result of the concern that proving a crime as complex as that encompassed by the proposed definition would be very onerous. The downside of putting a very complex offence on the Statute Book is that it will not be prosecuted, while assault and the other crimes I mentioned may be prosecuted in a domestic violence context. If the former proved to be the case, a message would be sent out to the effect that the offence of domestic violence would not be prosecuted. That is not what any of us wants because it would be misleading and would not reflect the seriousness of the situation.

I wish to make a few more points on both the overall situation and the international position. Amendment No. 53 would have the effect of moving operational independence in respect of investigations away from An Garda Síochána and into the political arena. It is a long-standing principle that the Minister for Justice and Equality has no role in respect of the conduct of Garda investigations. I ask Senators to consider that because I do not think it would be good to move away from that principle now. We make a point of the Minister for Justice and Equality being separate from operational decision-making regarding investigations and I would be concerned about changing the position in that regard.

In March 2017 the Scottish Government published the Domestic Abuse (Scotland) Bill, which defines abusive behaviour as including psychological abuse. The legislation is still before the Scottish Parliament. There has been an offence of coercive control in the UK since December 2015, as Senator Bacik mentioned. UK media reports from August 2016 indicate that since the offence of coercive control was introduced, there have been more than 22,000 prosecutions for general domestic violence. Recent research has found that since its introduction, 202 people have been charged with the offence of coercive control. Senator Bacik did mention some information in respect of this matter. However, there is little enough available regarding successful prosecutions. The first person convicted of coercive control was jailed in September 2016 and that conviction was in addition to convictions for serious physical assault which led to the victim suffering permanent disability.That can demonstrate some of the potential difficulties associated with successfully prosecuting such an offence on its own.

What I hope I have done is outline the reasons a particular approach was taken regarding the Bill - the complexities of the definition. I have been struck by what the NGOs and Senators have said. What I would like to suggest is that I take account of the points that have been made here today, that I consult again with the Attorney General and the Parliamentary Counsel, and I examine, if possible, taking account of the points that I have made, if there would be benefit in trying to move forward on the points that have been made by Senators today. I certainly want to make absolutely sure that anything we do, and I think Senators will agree, is in the interests of victims and ensures that we can strengthen the legislation and make it easier, if at all possible, to take prosecutions but, equally, not do anything to damage prosecutions that might be taken under other legislation. I would propose asking Senators that I would have time to examine this matter and come back on Report Stage. That would be my suggestion regarding this matter. I have had a preliminary discussion with the Attorney General on it.