Vincent P Martin (Green Party) | Oireachtas source

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

Cuirim fáilte roimh an Aire Stáit. I thank all of the Senators who co-sponsored this legislative initiative, along with my own Green Party grouping and Senator Garvey, the Green Party leader, for ensuring this Bill received the priority listing I believe it deserves and merits in our rare Private Members' business slot.

I know the Members have read the legislation and it is great to have the Minister in the Chamber to respond to it. It is a short piece of legislation, but it is an important piece. I will get some of the technical stuff out of the way at the outset. It includes the background. Section 14(c) of the Criminal Evidence Act 1992 is inserted in the Criminal Law (Sexual Offences) Act 2017. I believe the genesis comes from this. It provides that in a criminal trial an accused person shall not cross-examine in person any witness who is under the age of 18 in respect of certain serious sexual offences. The said 2017 Act also provides that the court may preclude an accused person from personally cross-examining a complainant victim who has attained the age of 18 years in such cases. The court may prohibit such cross-examination unless it is of the opinion that the interests of justice require the accused to conduct a cross-examination in person. Where the accused is prohibited from conducting that cross-examination in person, the court must allow the accused an opportunity to secure legal representation.

We submit that it strikes an important balance to not contravene the Constitution, to guarantee a fair trial with everyone equal before the courts and with a presumption of innocence. If, for whatever reason, no such representation is obtained, the court may, if it considers it in the interests of justice to do so, select an appointed legal representative to conduct the cross-examination. When an accused person is prevented from conducting the cross-examination of a witness in person, the Legal Aid Board shall grant a legal aid certificate to the accused person for the purposes of being represented.

The purpose of the Bill before the House is to extend and provide a very similar statutory provision and protection to apply to criminal court trial hearings dealing with the offence of coercive control. The new offence of coercive control was enacted on the Statute Book a year after that very significant legislative amendment in 2017, to which I have referred. This is done by a simple amendment to the Domestic Violence Act 2018, which included the new offence of coercive control under section 39, by simply putting in a further provision and qualification that would replicate the protection that a witness or a victim enjoys, or is afforded in respect of certain serious sexual offences. When the first Bill for serious sexual offences, which I believe was groundbreaking, came before the Seanad on 1 March 2017, the then Minister for Justice and Equality, Deputy Frances Fitzgerald, said, "Tackling domestic violence has been a priority for me throughout my career, going back to my days as a social worker in inner city Dublin and London".

What was true then is true now. Domestic violence is a pernicious evil that has devastating physical, emotional and financial consequences for victims as well as society as a whole. It is not acceptable that anyone in Ireland is subjected to abuse, fear and intimidation. In respect of coercive control, the person deemed relevant under the Act is someone who either past or present is the civil partner, spouse, boyfriend or girlfriend of the person being accused of inflicting coercive control.

It is also interesting, as I found in my research, that many years ago the campaigner Caitriona Gleeson said that by minimising the tactics used in coercive control relationships, current laws in Ireland also miss many of the most devastating effects. Coercive control needs to be treated as a serious criminal offence, at a similar threshold to repeated false imprisonment or hostage keeping. For many women in Ireland, this domestic terrorism, the persistent deprivation of liberty and safety continues to demonstrate a lacuna in the law for these destructive and life changing crimes. I agree with that, but this is a step in the right direction. It improves the position of those who find themselves on the receiving end of such abuse.

I will now turn to a current Senator, Alice-Mary Higgins, and I believe the Seanad deserves great credit for getting the offence of coercive control on the Statute Book.Senator Higgins said when she was campaigning for this during a Committee Stage debate on 4 July 2017 that her proposal and support for amendment No. 52, as it was, establishes very clearly an offence of controlling and coercive behaviour. The arguments we have heard against the introduction of this very necessary offence have been inadequate.

Senators have talked about the complexity but all law comes with complexities. I am delighted to say that as a result of a proud day for the Seanad, the offence of coercive control was included in the Statute Book.

I will refer briefly next to the offence we are talking about before we talk about the protection we will afford victims. The offence is to be found in section 39 of that legislation the Seanad was so instrumental in getting over the line back in 2018, and the legislation before us is an amendment to that legislation.

The offence of coercive control, which many Members may be aware of, is where:

(1) A person commits an offence where he or she knowingly and persistently engages in behaviour that—

(a) is controlling or coercive,

(b) has a serious effect on a relevant person, [which I will define shortly] and

(c) a reasonable person would consider likely to have a serious effect on a relevant person.

The legislation states:

(2) For the purposes of subsection (1), a person’s behaviour has a serious effect on a relevant person if the behaviour causes the relevant person—

(a) to fear that violence will be used against him or her, or

(b) serious alarm or distress that has a substantial adverse impact on his or her usual day-to-day activities.

(3) A person who commits an offence...

The legislation then continues to detail how the offence is punishable together with the sentencing parameters, which I believe, on a separate point, should be looked at again, and revised upwardly. Perhaps that is for another day but it is something that the Green Party is very aware of.

The legislation then continues to define a “relevant person”, as applicable under this provision, as a "spouse or civil partner of that other person, or ... is not the spouse or civil partner of that other person and is not related to that other person within a prohibited degree of relationship but is or was in an intimate relationship with that other person."

Section 40 of the originating Act is very interesting in that it discusses how there is an aggravating dimension to coercive control. It basically states, in section 40(1) of the legislation, that:

Where a court is determining the sentence to be imposed on a person for a relevant offence, the fact that the offence was committed by the person against a relevant person shall be treated, for the purpose of determining the sentence, as an aggravating factor.

In coercive control, due to the very nature of the definition I have outlined to the House, the fact of an intimate relationship being past or present is an aggravating circumstance. If we bring that into a trial where the person who may theoretically do the cross examination has knowledge of the triggering points, or of too much information about the person they are cross-examining, this may be utterly counter-productive.

There is also the possibility that a cross-examination could be adjourned and resumed overnight. We could have a situation where the person conducting the cross-examination and the person being cross-examined might be living in the same house. This provision would stamp that out and eradicate it but it strikes the balance, where all children under the age of 18 will not face this, but for persons over the age of 18, as emerged from the 2018 legislation, this may not happen.

One needs to be very careful to strike the balance. We must be ultra-careful in this field of law because we are dealing with people and the last thing that one wants to happen for legislation in this sphere is for it ever to be thrown out and found repugnant to the Constitution, or to have it reversed in the courts. That would be a retrograde step.

The originating provision, which my statutory provision amendment very much reflects, was very carefully considered by the Legislature of the day and will hopefully withstand any constitutional challenge.

I also want to thank Senator Norris, the father of the House, who was one of my early co-sponsors of this, and others who did not have the opportunity to sign the Bill.Senator Norris, however, was on the record a long time ago talking about domestic violence. He quoted and referred to President Putin in this House in 2017 with reference to legislation which was enacted in Russia, whereby the definition of domestic violence in Russia is that there has to be proof of a broken bone. We have come a long way with regard to how we treat domestic violence in the different ways we do that.

I have just realised that I must share time with Senator Garvey, which is a pleasure to do. I will conclude by saying that the danger of domestic violence in Ireland is stark. According to Women’s Aid one in four persons in Ireland has been subjected to domestic violence and abuse. It is essential that we have a more victim-centred approach to such criminal prosecutions. Affording an injured party more consideration and protection in coercive control prosecution cases is needed. Curtailing or restricting the right of an accused to cross-examine personally the victim will be a very positive protective step. I will hand over to the Green Party Seanad group leader, Senator Garvey.