Vincent P Martin (Green Party) | Oireachtas source

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

Cuirim fáilte roimh an Aire inniu go dtí an seomra dlí don Dara Léamh ar mo Bhille, ar a dtugtar an Bille um Fhoréigean Baile (Leasú), 2024. Ag an bpointe seo, ba mhaith liom mo bhuíochas a ghabháil le mo chomh-Sheanadóirí a thacaigh leis an mBille, ina measc an t-iarSheanadóir, David Norris. Faoi láthair, má sháraíonn duine ordú cosanta i dtaca le foréigean teaghlaigh, ní féidir é a chúiseamh ach i mbealach achomair agus dá bharr sin, níl i ndán don té atá cúisithe ach bannaí nach bhfuil ródhian. Má ghlactar le mo Bhille, beidh an deis ann an té a chúiseamh ar díotáil.

As well as thanking the co-sponsors of this cross-party Bill, I also put on the record that Senators Wall, Seery Kearney and O'Loughlin came forward to support it after it was submitted. The context and need for legislative change proposed in this area is important. This context was succinctly pointed out today by solicitor, Keith Walsh, senior counsel, and co-author with Sonya Dixon BL, of the upcoming book Domestic Violence: Law and Practice in Ireland. He informed legislators that in 2022 more than 10,000 domestic violence protective orders were made. Some 5,000 of these orders were breached, but we currently have a one size fits all approach. My Bill proposes a hybrid approach to this important area of concern. I also note there were only 500 convictions on foot of breaches of protective orders. Last year there were 54,000 domestic violence-related Garda callouts.

Sarah Benson, CEO of Women's Aid, spoke to legislators from both Houses today and reminded us that there are situations of multiple breaches of these orders. To summarise, a person who is currently charged with breaching a domestic violence protective order of any kind can only be prosecuted in summary fashion. As such a breach can have potentially serious consequences for the victim of the breach, my proposed legislative changes seek to extend the discretion of the prosecution to bring, when appropriate, an indictable charge, which of course is a more serious charge.

Given the nature of these crimes, a victim can also be at risk pending trial because bail, crucially, can only be refused in quite limited circumstances in summary cases. If appropriate, the court would have greater power to refuse bail to a person charged with an indictable offence, and take other charges against the accused into account. An offence contrary to section 33 of the Domestic Violence Act 2018 - breach of domestic order - currently attracts a maximum sentence of 12 months' imprisonment.

It is a summary offence only and therefore the current lawful objection to bail in respect of an offence or offences under section 33 is pursuant to the well-known dicta laid down in the case of the AG v. O'Callaghan 1966, which inter aliadeals with the interference alleged within the course of justice. There were two limbs to the objections that could be raised. The first was the likelihood of interfering with prosecution witnesses or evidence, and the other was the likelihood of absconding or evasion. However, section 2 of the Bail Act 1997, which was introduced after a constitutional referendum was carried, permits the court to refuse bail in certain additional circumstances to prevent the commission of serious offences by the accused. In considering an objection pursuant to section 2 of the Bail Act 1997, the court may have regard to other offences in respect to which the accused person is charged and awaiting trial. Section 1(1) of the Bail Act 1997 states that a serious offence is an offence specified in the Schedule for which a person of full capacity and not previously convicted may be punished by imprisonment for a term of five years, or by a more severe penalty.

It is not enough that an offence may attract a penalty of five years or more if the offence is not listed in the Schedule to the Bail Act, as bail cannot be refused unless it is in that Schedule of 1997. My Bill proposes to do that. It would extend grounds for refusing bail to include preventing a person from committing further offences - the likelihood to reoffend while free on bail.

Commonly prosecuted offences before the District Court routinely attract objections from An Garda Síochána pursuant to section 2 of the Bail Act 1997. These include theft - section 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001; possession of knives - section 9 of the Firearms and Offensive Weapons Act 1990; and criminal damage - section 2 of the Criminal Damage Act 1991.At present, such objections do not extend or apply to a person who is charged with breaching a domestic violence protective order. The present position is that an incident occurs prompting a person to apply for a domestic order. Separately, An Garda Síochána arrests and charges the perpetrator. However, as there may be no domestic order originally in place, the accused is usually granted station bail or brought before the District Court for a bail application in respect of the offence. Having regard to the important presumption of innocence and the presumption in favour of bail, the accused is usually granted bail, almost invariably subject to conditions which may or may not include a provision to stay away from the injured party. The domestic court order is then served on the offender by An Garda Síochána. Habitually, some offenders persistently breach the domestic order after that, and accumulate further charges. When charged with breaching a domestic order, the current legal position is that the only lawful objection that can be made in such cases is restricted to concerning the likelihood of evading justice or a likelihood of interfering with prosecution witnesses or evidence, and not in respect of any domestic breach or offence that the accused person has already been charged with and for which they are awaiting trial. That would be deemed inadmissible evidence.

Ordinarily, many domestic violence perpetrators tend not to have significant histories of previous convictions or bench warrants. Thus, the first limb set out in the O'Callaghan bail test is often inapplicable. In those circumstances, An Garda Síochána or the DPP are forced to call victims of domestic abuse or complainants to give evidence in the bail application. The evidence of complainants routinely fails to meet the necessary applicable threshold as laid down in the current applicable legal precedent, AG v.O'Callaghan. Under current legislation, there is no such discretion afforded for breaches of domestic violence orders. Most significantly, the objections made in a court bail application will be strengthened if this Bill is enacted, by providing for the possibility of preventative detention being made permissible on the grounds of fear of further serious offending.

The most significant influence on the Domestic Violence Act 2018 is the Istanbul Convention on preventing and combating violence against women and domestic violence. Ireland signed the convention on 5 November 2015 and ratified it on 8 March 2019, following the introduction of the Domestic Violence Act 2018. The Istanbul Convention and the Domestic Violence Act 2018 reflected a welcome sea change in the attitude towards domestic violence, which up to then may have been considered by some as less serious. The convention mandates the Irish State, under Article 1(a), to "protect women against all forms of violence, and prevent, prosecute and eliminate violence against women and domestic violence". I should point out that of course, not all victims of domestic violence are female. That is a reality and people should know that.

The range of behaviour which may cause a breach of a domestic violence order under the Domestic Violence Act 2018 may vary. Therefore, while it is appropriate to have and retain a scope for a lesser breach to be prosecuted summarily, and we are not abolishing that scope and option, provision should also be made for a serious breach to be prosecuted when appropriate on indictment, carrying the penalty of five years' imprisonment. In circumstances where a victim of domestic violence obtains an order protecting him or her from domestic violence and this order is breached, under current law it cannot be considered what we in law call a serious offence. This informs the victim that the breach of the domestic violence order is not serious and only has minor consequences for the offending party in the criminal justice system. It also undermines the victim's confidence in the entire domestic violence legislative process if domestic violence orders can be breached on numerous occasions or in a dangerous manner. Yet, it never constitutes the categorisation of it being a serious offence. Moreover, unlike other offences, people who breach a domestic violence order have already been ordered by the court not do again that which they have done already. I believe any such repeated breaches of a court order should be admissible in the evidence that can be adduced in court as a right. The failure to afford victims of serious breaches of domestic violence orders the protection afforded to victims of other serious crimes is in breach of the spirit and specific sections of the Istanbul Convention. It fails the victims of domestic violence and their children, who suffer further abuse, fear, violence or worse.

I am opposed to the current one-size-fits-all regime. That approach is out of time and outdated. Considering the data we have on how serious this issue is, which I highlighted at the outset, there is a need for latitude, discretion and for a more modern, meaningful and legally impactful legislative regime. I am hoping that the Minister, who is a reforming Minister and has a good track record in legislation, gives this due consideration. I will now refer to my Green Party colleague to finish our allotted time and to formally second the motion.