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

I am pleased to be here today to speak on Second Stage of the Domestic Violence (Amendment) Bill 2024. As the Senators have set out, this is a short Bill that seeks to amend section 33 of the Domestic Violence Act 2018 to make provision for an indictable offence under that section. It will make the breach of an order a hybrid offence which could be triable either summarily or on indictment, with a maximum penalty on indictment of five years' imprisonment. This change will enable an offence under section 33 of the Act to be added to the Schedule of the Bail Act 1997.

Section 33 of the Domestic Violence Act provides for an offence for breach of any civil domestic order that can be imposed under that Act. These are safety orders, barring orders, protection orders, interim barring orders and emergency barring orders. As we know, the penalty for the offence is a class B fine currently set at a maximum of €4,000, one year imprisonment, or both, on summary conviction.Section 2, as Senator Martin outlined, permits a court to refuse bail to a person charged with a serious offence in certain circumstances in order to prevent the commission of a serious offence by the accused person. As such, this offence, under the Domestic Violence Act, does not come under the definition of a serious offence in the Bail Act 1997 because it does not have punishment by a term of imprisonment for a term of five years or more, or a more severe penalty. I fully agree that breach of any type of domestic violence order is a very serious offence and needs to be treated as such. As Senator Martin stated, these changes would give the DPP and the courts discretion and latitude in prosecuting the section 33 offence on indictment for particularly serious conduct or persistent offenders.

We are not opposing the Bill. Senator Martin outlined the merits for extending section 33 to a hybrid offence. The offence approach would make provision for more serious conduct to be addressed with corresponding bail restrictions and a strengthened protection regime would be put in place. However, as Members are aware, I must outline the challenges that have been raised and brought to my attention. These are challenges that have arisen before, particularly when the Domestic Violence Act was being put in place. This is not the first time the issue has been looked at. However, I am supportive of what the Senator is trying to achieve. I am outlining the challenges so that we can work together to see how we can work around them or find a way to make it work.

There are some concerns. The main concern is that there may be adverse consequences for the availability of domestic violence orders if the offence of breaching an order is made triable on indictment and with an increased punishment. Particular concerns relate to the barring orders, emergency barring orders and protection orders, those which can be granted ex-parte, namely, where only one applicant has to be there or heard in court and outside the usual court sittings.

Section 33 covers a breach of multiple different types of domestic violence orders, namely, safety orders, barring orders and, as I mentioned, interim emergency protection orders. These orders are very different and very detailed and finely balanced statutory provisions govern how they are granted at present. Making a breach of all domestic violence orders a possible serious offence means that it might become harder to successfully persuade a court to grant any of them. Respondents would be expected to contest the case in a more vigorous manner. In the interests of justice the court might, in certain circumstances, be less inclined to grant orders, in particular those ex-parteorders where only one person is present. Of course, the whole point of getting a domestic violence or barring order at weekends or quickly or perhaps with only the victim there is that it can be accessed as quickly as possible. By putting a higher bar here there is potential - I am not saying it would be the case - that it might not be granted because the person who is being accused should be given a right potentially to defend themselves in a way they would not at the moment.

The case law of the Supreme Court has set the threshold of severity for respondents' conduct to be considered in the making of a domestic violence order. Given the potential criminal consequences of breaching at such a threshold would possibly be raised further if section 33 was made a serious offence, this is making sure we do not do something which would potentially make it more difficult for victims of domestic violence to obtain these civil law protection orders. Like many others here, I am well aware that these orders are not working for all victims. That is not to say they do not work for some but the issue has been brought to my attention time and again, particularly with repeat offenders, when victims feel the system is not working for them. I believe we should do something to try to improve it.

In addition, sometimes it may be difficult to establish when and how precisely such orders are breached. This could potentially give rise to problems both for An Garda Síochána and the persons who are subject just such orders. They could be subject to increased penalties in situations where they are not fully aware that a breach has occurred. These issues have been considered before, as I mentioned, particularly in drafting the passage of the 2018 Act and earlier in the 2013 report of the Law Reform Commission, LRC, which reported on aspects of domestic violence. It considered the specific question of whether, when a person is charged with the offence of breaching a domestic violence order, it should be made possible to refuse bail on the basis that the person might commit another offence while on bail. The report recommended that the offence of breach of a domestic violence order should not be changed into an offence that could carry five years' imprisonment on conviction. Among the reasons for this was that any such change may not be in keeping with the general purpose of the Domestic Violence Act, to ensure a person can get access to effective protection through barring orders and safety orders as quickly as possible. The LRC expressed concern that making breach of domestic violence order a serious offence could potentially lead the courts to conclude that ex-parte orders, that is orders with only one party present, should no longer be permissible and that this would undermine the efficacy of the legislation.

We also need to be cognisant that the offence of breaching a domestic violence order does not replace the other criminal offence. If an offence of assault or criminal damage is committed by a person acting in breach of an order, that other offence should be prosecuted as an additional charge. If conduct that breaches the domestic violence order is in itself a serious offence, such as an assault causing harm or criminal damage, the person can be charged with that offence and bail can be refused under section 2 of the Bail Act where necessary.

Aside from the Bail Act is the power to refuse bail for any offence, including section 33, where the court is satisfied that the accused person is likely to interfere with the witness. The possibility that the accused person could commit further acts of violence against the victim would constitute a likelihood of interfering with witnesses, and bail could be refused on that basis. The law on bail also allows the court to impose conditions that prohibit a person from making contact with the person who has applied for a barring order or safety order. If the accused person breaks any such condition, bail can be revoked.

I outlined these issues because they have come up time and again and the law has not changed. In saying that, I believe there is a problem here. I absolutely believe that some people are not being protected by the structures and systems that are there. That is not to say that people, either in our courts or in our legal professions, are not following the laws and applying them in the way that they should. However, I believe that some victims are not being protected in the way that they should be. That is why I am not opposing the Bill.

Also, we cannot predict whether the concerns highlighted would ever be realised. Sometimes, therefore, we have to be brave and take a chance. If the concerns are realised then obviously we respond to that as quickly as we can. At the same time, as policymakers, we have to be cautious and make sure that victims are not unintentionally disadvantaged by decisions we take.

As Members know, I will have to leave now, unfortunately. I am committed, as is every person in this House, to tackling domestic, sexual and gender-based violence. In the Seanad and the Dáil, we have worked constructively on Government, Opposition and multi-party proposals and on Private Members' Bills and Government legislation. There have been changes to the law in recent years. I look forward to working constructively with the Senators on this to try to find a way forward in which we can provide more protection to victims while making sure the law is on their side and supports them and that it does not in any way disadvantage them. These are concerns that have been raised by some. I look forward to working with the Senators on this Bill and I thank them for bringing it forward.