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Family Law Solicitors

No to bail changes in domestic violence

Monday, 9 December 2013

The Irish Times

The Law Reform Commission has advised against changing domestic violence law so as to allow for refusal of bail for preventative reasons.

In a report published last week, the commission looked at whether, when a person is charged under the Domestic Violence Act 1996 with breaching a barring order or safety order, it should be possible to refuse bail on the basis that the person might commit another offence while on bail.

The Constitution allows bail to be refused on this ground if a person is charged with a “serious offence” and where it is reasonably considered necessary to prevent the commission of another serious offence by that person while on bail. Under the Bail Act 1997, a “serious offence” is one that carries at least five years imprisonment, whereas breach of a domestic order currently carries a maximum sentence of 12 months in jail.

However, the commission recommended that the current law should be retained and that breach of a domestic violence order should not become an offence that could carry a five-year sentence.

It argued that such a change would not be in keeping with the general purpose of the Domestic Violence Act 1996, which is to ensure that victims of domestic violence can get access to effective protection through barring order and safety orders. This could be put at risk if breach of an order was made a very serious criminal offence, it said.

The report also noted that the current law on bail allows a court to impose conditions that prohibit a person from making contact with the person who has applied for a barring or safety order and that if the accused breaks any such condition their bail can be revoked.

Separately, the commission considered whether the offence of harassment in the Non-Fatal Offences Against the Person Act 1997 addresses sufficiently the problem of stalking in domestic violence cases.

The report noted that most prosecutions for harassment involve domestic cases, and usually involves stalking by former spouses and partners. The current law requires that the harassment must involve “following, watching, pestering, besetting or communicating” and must be done “persistently”.

The report points out that the requirement of “persistence” means that a person can be convicted of harassment where stalking involves a single long episode of continuous following or pestering. By contrast, under English law the harassment or stalking must involve at least two separate types of conduct.

The commission concluded that the current requirements in the 1997 Act imposed appropriate legal thresholds and standards that should be met in order to convict a person of stalking.