David Stanton (Cork East, Fine Gael) | Oireachtas source

Much of that work is reflected in the Bill and in the contributions from Senators both on the last occasion and today. The previous Minister for Justice and Equality spoke on these matters, and the Minister is in consultation with the Attorney General and the Parliamentary Counsel about them.

A number of Senators asked about the progress. I listened carefully to what was said and I am cognisant of other work that has been done and of the proposals put forward by various NGOs on this matter. Officials have begun drafting and they are in ongoing consultation with officials in the Office of the Attorney General. It behoves all of us to examine and test both sides of every argument, which is why today's debate is so good.

I appreciate what Senators are attempting to do in these amendments.They seek to provide a definition of domestic violence and to provide for a specific offence of coercive control. I am very sympathetic to that, as I was when the report was published in 2014. Senator Norris read a long list of definitions of domestic violence and said there is one more but it was not on the list. We have to be careful about having a circumscribed list because other things might or might not occur to us. If they are not on the list is there a risk to people who might be suffering domestic violence? The list is endless and a definition cannot be endless. This is the challenge. If the item is not on the list is there a risk that the perpetrator would go unpunished? We have to be cognisant of this. I have a very open mind on this. I welcome this debate and interaction.

The court in granting an order to a victim has already a wide discretion wherever there are reasonable grounds for believing that the safety and welfare of an applicant or a dependent person so requires. It would be unfortunate if a definition of a crime of domestic violence were to circumscribe this broad definition in any way. I will be interested in Senators' reaction to that comment. I am not opposing the amendment; I am debating it.

The awareness campaign was mentioned. The former Minister for Justice and Equality secured €1 million for 2016 and another for 2017, the first two years of a six-year national awareness campaign. The first three years concern domestic violence and the next three, sexual violence. I am concerned that Senators are not aware of the awareness campaign. We need to publicise it more. What the Senator says is very useful. The next phase of the campaign will be at the end of August into September.

Section 2 appears to be confined to defining domestic violence. This is a technical issue which I am sure can be overcome. The definition is not linked to any subsequent provision in the Bill. This is a technical legal problem with amendment No. 1 which we must work on. There is no 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 violence but I have concerns in case it is detrimental to victims. We have to reflect more on that. We do not put something into legislation that could be detrimental. We are all on the same page in that respect. If we can do it we will but we need to reflect more and get more advice on it from the Office of the Attorney General. That is happening as we speak.

What constitutes domestic violence has a wide currency and covers a broad spectrum of behaviours. It is a very complex issue and the amendment is proposed to demonstrate just how problematic it is to define in statute. I accept that behaviours in a domestic setting that involve emotional abuse, humiliation and fear are extremely detrimental as they are an abuse of the trust associated with an intimate relationship. However, effective legislation needs to be enforceable. Most instances of domestic violence take place in private. The difficulties of obtaining evidence of non-physical behaviour, and the harm it causes, to satisfy a criminal standard of proof, that it is beyond reasonable doubt, in order to secure a conviction, are obvious.

The difficulties in securing convictions for relatively simple offences will be compounded in the case of an offence of domestic violence. In considering the issue the Department consulted with relevant criminal justice agencies, which advised that in general there is no 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 and 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 of the 1997 Act. Likewise, damaging property and animal cruelty are existing offences. Prosecuting an offence of domestic violence in addition to other existing criminal offences would inevitably make prosecuting more complicated and create further burdens for victims. That is another concern and we have to be careful about that. As it stands the court can take into account the fact that such acts occur in a domestic setting when sentencing an offender. The provision proposed significantly overlaps with existing criminal offences and duplicates existing offences as well. I would like Senators to consider these issues and would welcome their advice on them later on Report Stage. I am willing to examine further the text of the amendments and the valid points made by Senators during this debate. We are in consultation with the Attorney General and the Parliamentary Counsel on these matters and where possible and appropriate I will bring forward amendments on Report Stage. If that does not seem possible I will explain why.

Amendment No. 53 would have the effect of moving operational independence for investigations away from An Garda Síochána into the political arena. It is a longstanding principle that the Minister for Justice and Equality has no role in the conduct of Garda investigations and the advice is not to depart from that at this time.

In March of this year, the Scottish Parliament published the Domestic Abuse (Scotland) Bill which defines abusive behaviour as including psychological abuse. The legislation is still before the Scottish Parliament and it is too early to determine whether this will have a positive impact. I am advised it might be more appropriate to observe the developments in Scotland, to determine how this offence will work and identify any unintended consequences. We are working in parallel. While there is no offence of domestic violence in England and Wales there has been an offence of coercive control since December 2015. Official data on the impact of this offence will become available this autumn, which will be interesting. UK media reports from last August indicate that since the offence of coercive control was introduced, there have been more than 20,000 prosecutions for domestic violence and research has found that since its introduction, 202 people have been charged with the offence of coercive control. Little information on successful prosecutions is available although I think I got some information on the way in here from Senator Bacik, which I must reflect on and study.

In September 2016 it was reported that the first convicted person was jailed for an offence of coercive control. However, the conviction was in addition to convictions for serious physical assaults on the victim, which unfortunately led to the person's permanent disability. This demonstrates the potential difficulties associated with successfully prosecuting such an offence on its own.

I have listened very carefully to the points made by Senators. They are valid and sincere but we need to do some more work on this. I would like their permission to report on that work on Report Stage, having listened carefully to what they had to say today and having had a chance to reflect on the other work that has been done by the committee and other bodies. I have an open mind on this but I would like to wait for the advice from the Office of the Attorney General and the Parliamentary Counsel.