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Legal knock-on of stalled stalking provisions

The Criminal Justice (Miscellaneous Provisions) Act 2023 was enacted in July of this year, writes Eithne Reid O'Doherty BL.

Part 4 provides for the offence of stalking, updates harassment, and provides for non-fatal strangulation and suffocation as amendments to the Non-Fatal Offences against the Person Act 1997.  

Part 5 provides for the relevant restraining orders.

SI No 391 of 2023 commenced some parts and sections of the act, but, significantly, not Parts 4 and 5 above.

The Part 5 provisions provide for a prior restraining order on proof of the impugned conduct having taken place.

Late amendment

The minister amended the bill at the final stage, to provide for an emergency restraining order of eight days on an ex parte application, where there is an immediate risk to the safety and welfare of the applicant.

Commencement of these provisions afford protection to complainants who have not been in an intimate relationship.

Currently, section 10 of the Non-Fatal Offences Against the Person Act 1997 provides for restraining orders only after conviction or a hearing, which means anything from a two to four-year time lapse, depending on the circuit for hearing.

Northern Ireland situation

The comparable Northern Ireland offence of stalking is applicable since 27 April 2022, under the Protection from Stalking Act (Northern Ireland) 2022.

As matters stand, a crime of stalking that took place in a cross-border context could be prosecuted in Northern Ireland, but not Ireland or, if committed wholly in Ireland, prosecuted under section 3 of the Northern Ireland act if the offender is habitually resident in Northern Ireland.

Intimate relationships

Those in intimate relationships, or who have been in an intimate relationship, currently have some protection under the Domestic Violence Act 2018.

Recently, District Court Judge Alec Gabbett granted a three-year safety order to a complainant whose former boyfriend shared and threatened to share intimate images.

This conduct would also constitute stalking and attract a criminal penalty, as well as a restraining order, if prosecuted under the amended section 10 of the Non-Fatal Offences Against the Person Act 1997 as amended by the Criminal Justice (Miscellaneous Provisions) Act 2023.

One must question the legal implications of the delay in commencing Parts 4 and 5, and the administration of justice with respect to the Constitution.