This article was originally published on the School of Law blog https://criminaljusticeinireland.wordpress.com.
Dr Andrea Ryan, Director, Centre for Crime Justice and Victim Studies, School of Law, UL // original post
There have been many developments in the field of European Criminal Justice, but it is not a much-discussed topic in Ireland. The European Arrest Warrant, which is used extensively in Ireland, is well known. But there are other less known criminal justice measures: procedural rights for defendants; rights for victims, and many others driven by concerns of law enforcement and security. In this series of blogs I will discuss some of these developments, and look at the response of Ireland to the various measures. This first blog looks at the European measures concerning victims. There appears to be a reasonable level of public awareness of the Victims Directive, and that will be discussed in a later blog; the main focus of this one is on the lesser-known aspects of the victim legislative package that relate to domestic violence.
Domestic Violence in European Criminal Justice
The European Council’s Stockholm Programme called for improvements to Member State’s laws and practices regarding victims of crime. The Commission’s response was the Directive on the European Protection Order (in criminal matters) (Directive 2011/99/EU) the EPO; Directive on establishing minimum standards on the rights, support and protection of victims of crime (The Victims Directive, 2012/29/EU) and the Regulation on mutual recognition of Protection Measures in civil matters (No.606/2013 EU). Through this ‘Legislative Package’, the EU is seeking to strengthen the rights of victims in the criminal process.
Under the Lisbon Treaty, Ireland and UK have the choice in relation to any legislative proposals falling under Title V of the TFEU (Area of Freedom, Security and Justice) to opt in to any proposed measure. Where they do not opt in, any legislative instruments adopted under Title V will not be binding on them.
With regards to the Victims Directive, both UK and Ireland chose to opt in. Both opted into the Regulation on mutual recognition of protection measures in civil matters. However, with regards to the Directive on the European Protection Order (EPO), the UK opted in but Ireland chose not to do so, therefore the EPO Directive does not apply and therefore cannot be enforced here.
The EPO allows a judicial (or equivalent) authority in a Member State, in which a protection measure has been adopted with a view to protecting a person against a criminal act by another person that may endanger his/her life, physical or psychological integrity, dignity, personal liberty or sexual integrity, to issue a European Protection Order enabling a competent authority in another Member State to continue the protection of the person in the territory of that other Member State, following criminal conduct, or alleged criminal conduct. A ‘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 prohibitions or restrictions are imposed on a person causing danger in order to protect a ‘protected person’. The prohibitions include: Entering localities etc. where the protected person resides; Prohibition of contact; Prohibition on approaching the protected person.
The EPO is sent by the court/issuing authority directly to the authorities of the other Member State – the protected person does not carry it with them personally. Upon receipt of a EPO, ‘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’.
An EPO may only be issued when a protection measure has been previously adopted in the issuing State. So if, during a criminal proceeding, such as a bail decision, a measure has been ordered by the court, that is made with the view to protecting the victim during the release from custody of the person who may cause them danger, or at a sentencing procedure which involves the same type of orders being made, the person needing protection may then apply for a European Protection Order, so that when they go to another Member State in Europe, the order is recognised and enforceable, without the victim having to start fresh proceedings to get a domestic order. The protection travels with them.
The other measure, the Regulation on mutual recognition of protection measures in civil matters applies only to protection measures ordered in civil matters. The prohibitions it contains are identical to those issued in the EPO, the principal difference is the fact that it has been generated through the civil law rather than through the criminal law process. Once a protection measure has been ordered in the civil court/competent authority, the protected person may apply for a Certificate, and then bring the Certificate with them to another Member State where it can then be enforced in the event of a breach. Note that there is no direct communication between the authorities of the issuing state and executing state. The Certificate has a limited life- it lasts only for 12 months from the time it was issued.
Very Insular Approach Taken by Ireland to the EPO
The reason why Ireland chose not to opt in to the EPO was, according to Labour MEP for Ireland South, Phil Prendergast, because “it only concerns Orders obtained under criminal law. In Ireland, these are normally granted under civil law.” It is true that the response to domestic violence in Ireland is principally through civil law procedures in the Family Law Court, as provided for by the Domestic Violence Act 1996. That Act provides for two main orders to protect the victim from danger:
(1) a 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.
(2) 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. It may take some time for these applications to come to trial, and the Act also provides for interim orders. They are:
(i) 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.
(ii) 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.
These urgent interim applications are dealt with immediately (next sitting of court – the District Court mainly sits daily). Once any of these orders have been made, the Gardaí are notified by the court. However, in addition to orders made through the civil procedure, there are a number of orders made for the protection of victims relating to domestic violence through the criminal process. Firstly, a breach of the orders 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; harassment. The latter two are ideally suited to situations of domestic violence: coercion is aimed at behaviour that prevents another person doing any act they have a lawful right to do – e.g. reporting an offence, proceeding with a complaint. Such behaviour encompasses using violence or intimidation, watching, besetting, following. Harassment prohibits the following behaviour: “persistently following, watching, pestering, besetting or communicating with him or her”.
Where a person is charged with the harassment offence, the court is empowered to impose an order prohibiting the defendant approaching a victim even where they have not been convicted of the harassment charge; the order under s 10 was described in DPP v Ramachachadran  2 IR 307 as ‘an order in the nature of an injunction’. Nonetheless, it is clearly a ‘protection measure adopted in criminal matters’, that which is covered by the EPO, but not the by the Regulation.
A further protection measure adopted in criminal matters is the Restriction of Movement order under s 101 of the Criminal Justice Act 2006. These orders may be applied as alternative to imprisonment where a person has been convicted of public order offences or of certain non-fatal offences. The order requires ‘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.’
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.’ Once the restriction on movement order has been made, it is notified to the Gardaí by the Court.
Finally, there are Monitoring Orders and Protection of Persons Orders that are provided under section 26 of the Criminal Justice Act 2007 where a person has been convicted of various serious offences:
‘(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.’
So Ireland DOES have a range of ‘protection measures adopted in criminal matters’. The approach taken by Ireland in choosing not to opt in to the EPO is a badly thought through and short-sighted decision. As a result, in a trial of any of the above criminal offences in Ireland where the court makes an order, a victim would be unable to seek an EPO since the Directive does not apply here. If they wish to have an order recognised in another Member State, they would need to get a civil order under the domestic violence legislation in Ireland and then get the Certificate under the Regulation to take with them if they want to go to another Member State.
The approach to the EPO is completely insular because it has not taken account of those coming TO Ireland from other jurisdictions. Take for example, persons coming from Poland. According to the last Census, 2011, Polish are the 2nd largest population in Ireland. In Poland, protection measures related to threat or violence are imposed almost exclusively within criminal proceedings. Therefore, a victim of domestic violence coming from Poland would be more likely to have a European Protection Order than a Certificate issued under civil proceeding. Given that the EPO does not apply here, the Polish victim would not be protected because the Gardaí would have no legal basis to enforce the order in case of breach. Such a person would have to commence new proceedings in Ireland to obtain an order under the national domestic violence legislation, precisely the opposite of what the EPO seeks to achieve. Such a situation also brings an increased risk of attrition – which is a major problem in cases of domestic violence.
Finally, because of the terminology used in the orders, confusion may arise: under both the EPO and the DV Act, we have ‘Protection Orders’. A scenario could (not inconceivably) arise where a Garda responding to a domestic violence incident asks the caller if they have a court order – the caller responds yes! I have a protection order. The Gardaí then arrests for breach of a protection order under the DV Act where in fact the caller was referring to an EPO. This could then result in the arrest being unlawful (if the sole basis for the arrest) since the Gardaí have no power to arrest for a breach of a European Protection Order. The offender would have to be released. Ironically the Gardaí could be further endangering rather than protecting the victim!
To be continued…..
Dr Andrea Ryan, Director, Centre for Crime Justice and Victim Studies, School of Law, UL