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Address by Alan Shatter T.D., Minister for Justice, Equality and Defence at the Council of the Bar of Ireland and the Law Society of Ireland co-hosted Conference on Sexual and Domestic Violence – Questions for 21st Century Justice

Chairperson, Members of the Judiciary, other distinguished guests, members

of the Bar, members of the Law Society, ladies and gentlemen,

I am very pleased to open this unique conference on sexual and domestic

violence, held jointly by the Council of the Bar of Ireland and the Law

Society of Ireland. I would like to thank both bodies for affording me

this opportunity to address you on these areas of law and on the wider

issues relating to these forms of violence. These are issues which have

long been of particular interest to me, not only as a parliamentarian but

also as a legal practitioner and author.

Themes to be explored today include: relevant processes of the justice

system; policy and legislative developments; impacts on individuals

affected by domestic/sexual violence, and on their families; training and

awareness-raising among legal practitioners; difficulties in relation to

successful prosecution of cases; and meeting the expectation of victims of

domestic and sexual violence.

At first glance, the issues of sexual and domestic violence would appear to

be very different. There is a general misconception that sexual violence

is mainly carried out by sexual predators attacking vulnerable strangers.

However, as you will be aware, all too often sexual assaults are inflicted

by a person who is well known to the victim. In many cases it is a partner

or former partner or a relative or close acquaintance who is the assailant.

These too are the relationships within which domestic violence occurs.

Common factors which bind these horrific experiences are the intimate

nature of the offences and the psychological effect on the victim and her

family. I will tend to refer to the victim as a woman in my comments here

as the majority of victims of sexual violence and serious domestic violence

are women. However, I also acknowledge that men are also affected by these

offences and that the effects of the violence for these men may be just as

distressing as for women.

The issues which make these forms of violence particularly difficult to

resolve successfully in the eyes of the victim are also often very similar.

These may include:

Ø the wish of the principal witness to protect her privacy and that of

her family

Ø the lack of other witnesses to the actual acts complained of

Ø the perception of society in general and even the victim themselves

that they contributed to their assault by their own behaviour

Ø the emotional attachment of the victim to her assailant in many cases

and

Ø family or community pressure to withdraw the complaint.

There are other factors which can make women even more vulnerable and are

common to both forms of abuse, such as:

Ø being reliant on the abuser in the case of children or elderly people

Ø a disability – mental or physical

Ø isolation from the general community – a Traveller, an immigrant, or

living in rural location, and

Ø economic dependence on the perpetrator.

Many of these issues cannot be addressed through law alone. These are

matters which society in general must help address in order to protect

those who need our help. However, the legal professions can and do have a

major role in assisting individuals and our communities in combating and

preventing these despicable crimes. One of the roles which both the Law

Society and the Bar Council have undertaken is in relation to advice on

legal issues, administrative practice and legislation, through a

sub-committee of the National Steering Committee on Violence against Women.

I know that the contribution of your representatives - Kathleen Noctor,

Pauline Walley and Joan O’Malley - is greatly valued in that forum as was

the input of the President of the District Court, Judge Rosemary Horgan, a

former member of the committee. I commend your important input. Our

professions also have a long and proud tradition of providing services pro

bono to many voluntary organisations around the country. I am aware of a

number of national and regional support organisations who have greatly

benefited from advice in relation to the law and in the operation of the

courts in the production of guides to the legal process. These guides can

assist victims and their friends and families who support them. Such

service also provides benefits to the practitioner in that it provides a

good grounding in real life cases on the difficulties which face a person

seeking to deal with all the issues which arise - legal, physical,

psychological and practical. Such experience can also assist in developing

training or information modules for the legal professions where practical

experience can be married to legal studies.

I would like to mention some developments which should assist victims,

other witnesses and their families in their interactions with the justice

system.

I was delighted to have secured approval for Ireland to opt-in to the

negotiation of a European Union Directive establishing minimum standards on

the rights, support and protection of victims of crime. The draft

Directive provides a wide range of measures to support victims of crime and

I welcome its comprehensive nature. Its imminent adoption at EU level and

its subsequent transposition will mark a step change in the level of

service to victims which will be required of the criminal justice agencies

in this country.

Ireland will also participate in the proposal for a Regulation on Mutual

Recognition of Protection Measures in Civil Matters. The key aim of this

particular measure is to ensure that a victim who obtains a protection

measure - such as a safety order or a barring order, for example - can have

that protection extended to other EU member states. So, if the victim moves

to another member state, he or she can be confident that the protection

conferred by that order can easily be recognised in that member state. This

sends an important signal that domestic violence, harassment and

intimidation are unacceptable throughout the EU.

The introduction of the pilot “reasons” scheme by the Office of the DPP in

October 2008 was a welcome development. The scheme provides that the Office

of the DPP will, on request by the victim’s family, legal representative or

social workers acting on their behalf, give reasons for a decision not to

prosecute in an alleged offence where a death has occurred. I would hope

that the scheme would be extended in due course to victims of rape and

other serious sexual assault.

My Department, with the Garda Síochána and the Probation Service, is

working on developing the use of evidence based risk assessment tools to

identify the higher risk sex offenders and to focus efforts on them in line

with best practice identified internationally. This will entail a through

care approach to the management of sex offenders from conviction, through

imprisonment and out into the community with a view to protecting the

public and reducing the risk of reoffending by appropriate rehabilitative

interventions combined with a more active supervision and monitoring of

higher risk sex offenders after their release from prison by local risk

management committees involving the Gardaí and the Probation Service.

My Department has also been conducting a wide-ranging review of the law on

sexual offences and I expect to bring a General Scheme to Government for

approval shortly. The General Scheme will address the recommendations of

two Oireachtas committees and further protect vulnerable persons against

sexual exploitation and abuse. The latter measures will facilitate full

compliance with a number of international instruments, including the EU

Directive on sexual exploitation and abuse adopted in December, 2011. The

legislation will also reform the law on incest and amend the Sex Offenders

Act 2001 to enhance risk assessment and notification requirements.

As part of the commitment in the Programme for Government to reforming the

law on domestic violence, some changes have already been made to the

Domestic Violence Acts, 1996 and 2002. Provisions which allowed opposite

sex couples to avail of the protections available under the code were

extended to same sex cohabiting couples by means of amendments made in the

Civil Law (Miscellaneous Provisions) Act 2011. Restrictions requiring a

minimum recent period of cohabitation in order to apply for a safety order

were also removed under the 2011 Act. Probably the single most important

amendment made in that Act was to allow an applicant who has a child in

common with a respondent apply for a safety order even if the couple have

never cohabited. This new category extended protection to a category of

applicant who had never before been able to use the civil protections of

the Domestic Violence code even though issues around custody of and access

to children can, sadly, be triggers for violent and aggressive behaviour.

I have been pleased to note that these recent changes have been broadly

welcomed in permitting greater access to the protections afforded by the

Act. I am very pleased to have had the opportunity to bring these

amendments forward and to see that they have been utilised. I am also

pleased to say that, in line with the Programme for Government, I have

instructed Cosc and other officials in my department to develop proposals

to amend the law further in respect of domestic violence. It is my

intention during the period in office of the Government to publish a Bill

containing further necessary reforms and consolidating our domestic

violence law in a single Act of the Oireachtas.

The Courts Service has been endeavouring to make our courts a less

intimidating place for victims and witnesses and I fully support their work

in this regard. Accommodation provided for victims by the criminal justice

system has been improved with victims’ waiting rooms now available in over

50 refurbished courthouses and a dedicated victims’ suite available within

the Criminal Courts of Justice.

In this respect I should also mention the website of the Office of the

Director of Public Prosecutions which also provides extensive information

for potential witnesses in an easily understood format. The information is

available in English, Irish and in 10 other languages as well as in audio

format and Braille.

The Court Service website has also been greatly improved in providing

information for all persons who need to attend court. The information on

domestic violence is particularly useful but there is also general

information provided about attending a court.

The in camera rule in family law and child care cases is, of course, long

standing and is intended to ensure the privacy of parties in such

proceedings and their anonymity is protected and that fear of publicity

does not act as a barrier to those whose circumstances require that they

apply to our courts for appropriate orders in family law proceedings. The

in camera rule, as you know, applies to domestic violence proceedings as

well as to the broad arrange of family law matters and child care

proceedings. The side effect of the in camera rule has meant that, not

only are family cases not generally reported but also that the general

public, including legislators, are not aware of how the law is being

applied in practice in our courts at different levels. This is

particularly so in respect of the District Court in which a written

judgement is rarely delivered and in the Circuit Court where such

judgements are only occasionally delivered. There is also little public

understanding or awareness of the nature of the court hearings that take

place and the approach taken in such hearings by members of the judiciary.

Whilst there is a general public understanding of the need for privacy

there is also a perception, by some, that undue secrecy is attached to the

administration of justice in this area of our law and that there is a lack

of uniformity and consistency in the manner in which it is administered. It

is part of the Programme for Government that there be reform in the area of

family law and I am progressing the preparation of legislation, which

amongst other matters, will make court proceedings in family law and child

care cases more transparent. The intended legislation will allow media

access to the courts in family and child care proceedings subject to a

strict prohibition on the publication of any material which would lead to

the identification of parties or any children involved and care will be

taken to ensure that the best interests of children are protected. We

already have similar provisions in place with regard to the reporting of

trials in which individuals are charged with rape and other serious sexual

offences.

Of particular note in the Courts Service is the development of a very

successful drop-in Support and Referral Service in the Dublin District

Family Law Court at Dolphin House for those experiencing domestic violence.

This free and confidential service is managed by Women’s Aid and staffed by

domestic violence support workers from Women’s Aid, the Dublin 12 Domestic

Violence Service and the Inchicore Outreach Centre. AMEN, the group that

assists men experiencing domestic violence, also has a presence at Dolphin

House on one morning per week and offers support through their telephone

service at other times. I welcome and encourage this initiative and I am

hopeful that the service can be expanded to other court houses in time as

resources allow.

In conjunction with the Chief Justice, in her capacity as Chair of the

Courts Service Board, I have established a Working Group on efficiency

measures in the Circuit and District Court. Efficiencies across the

criminal justice system are being designed to speed up the system and

eliminate waste. This should ensure that many of the delays which often

contribute to further trauma and uncertainty to both victims and accused

persons will be kept to a minimum while ensuring that the constitutional

rights of defendants to a fair trial are fully protected. The contribution

of the representatives of the Bar Council and the Law Society, as well as

the Criminal Law Practitioners’ Organisation, is appreciated.

An important initiative of the Working Group has been the establishment of

a pilot pre-trial procedure commencing in both the Dublin and Midlands

Circuit Criminal Courts. This measure has the potential to contribute to

the speedier and more efficient processing of cases through the criminal

justice system as it requires both the prosecution and the defence sides to

update the court on the state of play in the particular case and on any

potential difficulties with its progress. The pre-trial procedure will

reduce the number of mention dates and will facilitate an assessment of the

readiness of cases on an earlier date than at present. By improving how the

criminal justice system functions, we increase its capacity to meet the

needs of victims, something for which I have long advocated.

As many of you here will also know I have, for many years, advocated the

need for a separate, unified and integrated structure of family courts. In

July of this year I announced that, in implementation of the Programme for

Government, the Government approved, in principle, a future referendum on

Article 34 of the Constitution which envisages amongst other reforms, the

establishment of a unified structure of family courts to hear and determine

family law disputes, including proceedings relating to domestic violence

and also child care cases. It is also envisaged that the required

referendum will facilitate the establishment of a Civil Court of Appeal and

work is underway with the aspiration of holding the required referendum in

the Autumn of 2013. It is my intention that my Department holds a seminar

on these and related initiatives in the first quarter of 2013 and I hope

that many of you who are here this morning will attend and participate in

that event.

This day next week voting will take place on the Childrens Rights

Amendment. In recognising and affirming the natural and imprescriptible

rights of all children the State is also required under the terms of that

amendment “as far as is practicable, by its laws (to) protect and

vindicate those rights”. Where a child is a victim of sexual or physical

violence within the family home the amendment provides the constitutional

bedrock for the State to intervene by “proportionate means” to protect a

child’s safety or welfare. In the context of any such State intervention,

the amendment importantly prescribes that in the resolution of “all

proceedings” brought by the State for the purpose of preventing the safety

and welfare of any child from being prejudicially affected, the best

interests of the child shall be the paramount consideration. This important

constitutional affirmation of the “best interests principle” also applies

to the resolution of proceedings relating to the guardianship, or custody

of, or access to any child. It is worth noting in the context of today’s

conference that such proceedings frequently go hand in hand with domestic

violence proceedings and that the constitutional provisions give important

recognition to the need to ensure that the best interests of the child is

the paramount consideration in the resolution of guardianship, custody and

access proceedings where there are background allegations of domestic

violence directed against a parent. Moreover, in the context of such

proceedings, the constitutional proposal seeks to ensure that “in respect

of any child who is capable of forming his or her own views, the views of

the child shall be ascertained and given due weight having regard to the

age and maturity of the child”. I know all of you here understand the

importance of this proposed constitutional amendment and of voting this day

next week. I hope that the historical nature of this referendum and its

fundamental importance in providing a new constitutional architecture with

regard to children will result in a substantial majority Yes vote in favour

of constitutional change.

In conclusion, I know you will benefit today from the insights of many

knowledgeable contributors regarding the multiple facets of the important

issues being addressed at this conference. I am sure that their

presentations will engender much informed discussion. I am hopeful that

your debates will result in suggestions for change - whether they be

legislative, administrative or practice based. Some of what you learn today

may help to better protect our friends, our neighbours or even our own

family members from these forms of violence. Our ultimate aim, however,

must be to end such violence.

Finally, may I once again commend both the Council of the Bar of Ireland

and the Law Society of Ireland for organising today's joint conference. I

wish all of you well in your discussions today.