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Ability to prove barring orders served ‘patchy’

Proving that a barring order has been served on a respondent is an ongoing issue in the prosecution of breaches of domestic-violence protection orders. That’s according to Helena Kiely, Chief Prosecution Solicitor in the Office of the Director of Public Prosecutions.

Speaking to participants in the Law Society’s Family Law Update 2023 webinar on 1 December, she advised solicitors assisting with applications of this nature to make sure that the serving of them could be proved in some way.

In 2019, High Court judge Mr Justice Garrett Simons ruled in DPP v RK that it was not sufficient that an accused be merely made aware that a barring order had been made.

That person must be given a copy of the order, so that they were aware of the precise nature of the order, and the consequences of not adhering to it, he stated.

‘Patchy’ scenario

“Despite this ruling, the ability to prove that barring orders have been served is still patchy, to say the least,” said Kiely.

“The gardaí are strangers to the application for such orders. Some are served by ordinary post, so there’s no proof of service, and sometimes applicants are even asked to serve the orders themselves on spouses or partners.”

The problem had been somewhat alleviated by courts putting stamps on barring orders if the respondent was present in court, she added.

Keith Walsh SC (principal at Keith Walsh Solicitors, small picture) told the webinar that it was “really important” to include the penal endorsement in these orders – as its absence could potentially be used as a defence if there was an alleged breach.

“Not alone should the order tell the respondent what they cannot do, but also warn them of what will happen if there are breaches. I find that those warnings are always on District Court orders, but rarely on Circuit Court or High Court orders,” he said.

2018 act ‘didn’t change much’

Both Kiely and Walsh noted in the webinar that the Domestic Violence Act 2018, which came into effect on 1 January 2019, had not really changed the prosecution for the breach of a domestic-violence order in terms of its form or penalties.

“The 2018 act was intended to be a consolidation of existing law, but it didn’t really change much, apart from the new criminal provisions for forced marriage and coercive control, and the introduction of an emergency barring order,” said Walsh.

“In addition, most of the change was not imposed from an Irish point of view, but rather because of international obligations under the Istanbul Convention. We could do with looking at this in detail.”

Keith Walsh alerted participants of the family-law webinar to the dramatic rise in the number of applications for domestic-violence protection orders in the District Court, where most of these orders take place. This has gone up from 11,700 in 1998 to 23,500 in 2022.

Considering this high number, Walsh is concerned that the implementation of the Family Courts Bill 2022, as it is currently drafted, would present “a serious challenge” for those suffering from domestic abuse.

“The plan within the bill to transfer separation and divorce cases down from the Circuit Court to District Court would cause chaos in the District Court. This would be visited, in particular, on domestic-violence applications. These are the cases most likely to be squeezed, as there are so many of them,” he said.

Potential reforms

Walsh has worked on domestic-violence cases in the District Court for many of his 20 years of domestic practice, and recently completed a book entitled, Domestic Violence: Law and Practice in Ireland, which he co-authored with Sonya Dixon.

“The book involved a lot of research, which made me rethink the way in which domestic violence is dealt with by the courts and [to] look at potential reforms to the 2018 act,” he said.

One of the things he believes should be addressed is whether 12 months is a long-enough penalty for breaching a barring order: “This sentence doesn’t send out the message that the offence is sufficiently serious, especially when you compare it with a lot of other offences, such as assault, which are indictable and subject to a maximum of five years in prison,” he said.

“The Law Reform Commission looked at this very point ten years ago and decided it wasn’t an issue. I believe there is a case to be made for increasing penalties for breaching a barring order, as we are in a very different space now in terms of our tolerance of domestic violence in the courts.”

A statutory offence?

Walsh also raised the idea of making domestic violence a statutory offence in itself, which has happened in neighbouring jurisdictions.

“At the moment, the onus is on the applicant to get an order to prevent domestic violence from happening. Is there any reason why these people could not make a complaint directly to the gardaí?” he asked.

Kiely outlined her practical concerns about this suggestion to webinar attendees: “With any prosecution, it is very important to particularise the offence in terms of the time, date and location. If you’re relying on only one charge involving multiple incidents, it can be difficult to convey a coherent story to the jury and court,” she said.

“You’re going to have to prove every element to prove the overall charge. If one element or incident is undermined – and any good defence lawyer will pick up on that – it will create a doubt, and the proof must be beyond reasonable doubt,” she stated.