The adoption of EU measures in Ireland for the rights of victims: not quite the full package. Dr Andrea Ryan

The ‘Legislative Package’ Directive on the European Protection Order (EPO) (2011) Directive on establishing minimum standards on the rights, support and protection of victims of crime (The Victims Directive) (2012) Regulation on mutual recognition of protection measures in civil matters (2013)

‘protection measure’ means a decision in criminal matters adopted in the issuing State in accordance with its national law and procedures by which one or more of the prohibitions or restrictions are imposed on a person causing danger in order to protect a protected person. Prohibitions: Entering localities etc where the protected person resides Prohibition of contact Prohibition on approaching protected person

Upon receipt of a European protection order transmitted in accordance with Article 8, the competent authority of the executing State shall, without undue delay, recognise that order and take a decision adopting any measure that would be available under its national law in a similar case in order to ensure the protection of the protected person. In the event of a breach of the measures taken by the executing State, it shall be competent to: impose criminal penalties and take any other measure as a consequence of the breach, if that breach amounts to a criminal offence under the law of the executing State;

Regulation on mutual recognition of protection measures in civil matters This Regulation applies only to protection measures ordered in civil matters. Prohibitions: Entering localities etc where the protected person resides Prohibition of contact Prohibition on approaching protected person

FD Supervision of probation measures and alternative sanctions Issues only where sentenced person has returned or wants to return to a MS where they ordinarily reside/ or on request from sentenced person, to go to a different MS Prohibitions: obligation not to enter certain localities, places or defined areas in the issuing or executing State; instructions relating to behaviour; residence; obligation to avoid contact with specific persons.

Very Insular Approach Taken to the EPO BUT THAT’S NOT THE WAY WE DO IT HERE!

’Irish victims of violence not protected when abroad!’ Ireland will not be opting into this Directive as it only concerns Orders obtained under criminal law. In Ireland, these are normally granted under civil law.” Labour MEP for Ireland South, Phil Prendergast, 13 Dec 2011 European Protection Order

APPROACH TO DOMESTIC VIOLENCE IN Ireland: CIVIL LAW PROCEDURE - Family Law Court DOMESTIC VIOLENCE ACT 1996 Safety order prohibits the person against whom the order is made from engaging in violence or threats of violence. It does not oblige that person to leave the family home. If the person does not normally live in the family home, it prohibits them from watching or being in the vicinity of where the person applying for the order (the applicant) and dependent children lives. A safety order can be made for up to five years.

Barring order A barring order requires the respondent to leave the family home and stay away from the family home of the applicant and/or dependent children. It may also include terms prohibiting the respondent from using or threatening to use violence. A barring order can be made for up to three years.

Interim Orders Protection order This is a temporary safety order. It gives protection to the applicant until the court decides on a safety or barring order application. It is intended to last until the case is heard and a decision made. It does not oblige the respondent to leave the family home. Interim barring order The Court must be of the opinion that there are reasonable grounds for believing there is an immediate risk of significant harm to the applicant or any dependent person if the order is not made immediately and the granting of a protection order would not be sufficient to protect the applicant or any dependent person. Urgent interim applications are dealt with immediately (next sitting of court – District Court sits daily)

‘The court office will notify the Gardaí of the making of the order by sending a copy to the local Garda station by post. To avoid any delay in notifying the Gardaí you should call to the Garda station immediately after the order has been made, tell them of the making of the order and leave a copy with them.’

Criminal law provisions re Domestic Violence A breach of civil order under the domestic violence legislation is a criminal offence. The Gardaí may arrest and charge a person who breaches such an order. The Non-Fatal Offences Against the Person Act, 1997 contains a number of offences which may be committed in the course of a domestic dispute: assault; assault causing harm; causing serious harm; threat to kill or cause serious harm; Coercion; Harrassment.

Latter two ideally suited to situations of domestic violence: Coercion aimed at behaviour that prevents another person doing any act they have a lawful right to do – eg reporting an offence, proceeding with a complaint Behaviour encompasses using violence or intimidation, watching, besetting, following; Harrassment: ‘ persistently following, watching, pestering, besetting or communicating with him or her”.

‘PROTECTION MEASURES’ AVAILABLE IN IRELAND IN CRIMINAL MATTERS S 10 Harassment offence empowers criminal court to impose an order prohibiting approach of a victim on a person, even where they have not been convicted of the harassment charge; the order under s 10 was described in DPP v Ramachachadran [2000] 2 IR 307 as ‘an order in the nature of an injunction’. A PROTECTION MEASURE ADOPTED IN CRIMINAL MATTERS

Criminal Justice Act 2006 s 101 Restriction of Movement orders Apply where X convicted of public order offences or of Non-fatal offences – may be applied as alternative to imprisonment – (b) requiring the offender not to be in such place or places, or such class or classes of place or places, at such time or during such periods, as may be specified. (3) A restriction on movement order may be made for any period of not more than 6 months and, during that period, the offender shall keep the peace and be of good behaviour. Order notified to Gardaí by Court A PROTECTION MEASURE ADOPTED IN CRIMINAL MATTERS

Monitoring orders and protection of persons orders : Criminal Justice Act 2007 s 26 (5) The court may provide in a protection of persons order that the offender is prohibited from engaging in any behaviour that, in the opinion of the court, would be likely to cause the victim of the offence concerned or any other person named in the order fear, distress or alarm or would be likely to amount to intimidation of any such person. (6) A protection of persons order may be made for such period, not exceeding 7 years, as the court considers appropriate. A PROTECTION MEASURE ADOPTED IN CRIMINAL MATTERS

SO Ireland DOES have a range of ‘protection measures adopted in criminal matters’ Clearly shortsighted decision by Ireland not to opt in to EPO No Possibility for a victim in such criminal proceedings in Ireland to obtain EPO – They would have to follow the civil law procedure to obtain protection measures.

WHAT ABOUT THOSE COMING TO IRELAND FROM OTHER JURISDICTIONS??

In Poland, protection measures related to threat or violence are imposed almost exclusively within criminal proceedings. (‘Mapping the legislation and assessing the impact of protection orders in the European Member States’ POEMS project, Report 2015) Polish are 2 nd largest population in Ireland (2011 Census)

If presenting a Standard Form Certificate for protection order in Civil matters – Gardaí can arrest But if coming from Poland, more likely to have European Protection Order – no legal basis in Ireland to enforce. Terminology - Confusion may arise: Protection Order under EPO v Protection Order under Irish DV Act could lead to situations of unlawful arrest Ironically could be endangering rather than protecting the victim!

DOES THE EPO OFFER STRONGER PROTECTION THAN THE REGULATION?? EPO Only applies where protected person seeks the order But once sought, Directly transmitted to Authorities v Regulation Protected person takes certificate and presents to authorities Greater Risk of attrition / failure to report?? But offers victims a choice of whether to pursue civil rather than criminal route (where both available)

EPO Superfluous? FD probation sufficient? Value of Regulation v Domestic Civil Orders?

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