Domestic violence victims can seek a range of orders under the Domestic Violence Act 1996 which, it is hoped, give additional protection from violence. Like all family law cases in Ireland, domestic violence applications are held in camera and the public is excluded from the courtroom. However, if a domestic violence order is breached, a criminal prosecution is brought and held in public. Anyone can attend the hearing and the media can report on it. After years of this unacceptable position being tolerated, it appears that situation will change.
I can find no policy justification for the existing law and it appears to be a loophole: no-one thought to say, by the way, if an order is breached the prosecution should take place in camera. Because of the risk of publicity, it is unsurprising that victims of domestic violence often do not wish to appear as a witness for the prosecution. In a worst case scenario, the very mention of potential media publicity can discourage a victim from even seeking an order in the first place.
It is entirely unsatisfactory for victims of domestic violence to be put in the position where they will not participate in a prosecution or report a breach due to fear of adverse publicity. Publicity does not only affect the victim but also children, who are often involved in episodes of domestic violence. Even if they are not involved the victim is likely to be conscious that the children may be old enough to learn of case reports in the local paper. Victims, rightly or wrongly, may still wish to protect an abuser’s reputation for the good of the wider family and the publicity involved in prosecutions will discourage them from reporting a breach or appearing as a witness.
Despite the fact that newspapers can report breach prosecutions, reports rarely appear. I don’t have statistics on prosecutions, but they seem to result from only a small fraction of the number of domestic violence orders granted. It is hard to avoid concluding that the risk of publicity is a factor. I recently reviewed the available statistics on domestic violence orders since 2001 and was struck by the following:
- from 2001 to 2010 there was a decrease of approx 24% in numbers applying for orders under the 1996 Act;
- the greatest reduction in applications was for barring and interim barring orders, down approx 39% and 54% respectively.
The 2011 annual report of the Courts Service shows an increase in applications for domestic violence orders in that year as compared with 2010 but the overall trend over the past 10 years has been downward. There may be many reasons for the dramatic decline in applications under the 1996 Act but the reluctance to prosecute breaches must be having a knock-on effect on the willingness of victims to go to court for an order in the first place.
In August, I wrote to the Minister for Justice asking if this loophole would be closed. Today I received a reply: it will.
[The 2010-2014 National Strategy on Domestic, Sexual and Gender-based Violence National Strategy] addresses the improvement of legislative provisions to protect victims of domestic violence. Among the proposed improvements is an amendment to s.17 of the Domestic Violence Act 1996 to provide for the anonymity of parties to proceedings for breaches of orders made under the Act. The proposed amendment is expected to be included in a Criminal Justice (Miscellaneous Provisions) Bill which is presently with the Attorney General’s Office.
The National Strategy mentioned improvements to domestic violence legislation, as did the Fine Gael manifesto and the Programme for Government, but neither explicitly refer to closing the publicity loophole.
It is good news that the Government is now doing so.