New civil restraint orders to protect victims of harassment and stalking introduced
ARTICLE ON NEW civil court orders to protect for victims of stalking and unwelcome conduct introduced CIVIL RESTRAINT ORDERS as published in Law Society of Ireland Gazette in October 2024 p34-37 by Keith Walsh Solicitor, SC
However the lower standard of proof for civil orders, rather than the criminal standard, may permit earlier intervention by those affected by the behaviour.
Additional protection is provided by permitting applications for civil orders at the same time that a court is hearing applications under the Domestic Violence Act 2018 without the necessity for the institution of proceedings. This link with the Domestic Violence Act 2018 is likely to provide greater protection to victims of domestic violence as it broadens the remedies available to them to include civil orders. The relevant District Court Rules came into operation on 2nd September 2024 in S.I. 364/2024 and insert and insert a new Order 96C into the District Court Rules and created new District Court forms.
Part 5 of the Criminal Justice (Miscellaneous Provisions) Act 2023 Act which was commenced on 2nd September 2024 introduced Civil Orders against relevant conduct. As these new civil orders are contained in section 28 of the Criminal Justice (Miscellaneous Provisions) Act 2023 they are referred to as Section 28 Orders. They have also been referred to as Civil Restraint Orders or Civil Orders against relevant conduct.
- Who can apply for a Section 28 Order ?
These orders can be applied for by any person or a member of the Garda Siochana on behalf of an applicant against another person. S28(1). There is no requirement for any pre-existing relationship or connection between the applicant and the respondent unlike applications under the Domestic Violence Act 2018.
- What are the grounds for a Section 28 Order?
A Court may make a Section 28 Order where it is of the opinion that:
(i) there are reasonable grounds for believing that the respondent has engaged in relevant conduct towards the applicant or, where relevant, a person connected to the applicant, and
(ii) the making of the order is, in all of the circumstances, necessary for, and proportionate to, the purpose of protecting the safety and welfare of the applicant. S28(3)
- What is relevant conduct ?
Relevant conduct means conduct engaged in, without lawful authority or reasonable excuse, by the respondent towards the applicant or, where relevant, a person connected to the applicant, that would reasonably be considered likely to cause the applicant—
(a) to fear that violence will be used against the applicant or person, or
(b) serious alarm or distress that has a substantial adverse impact on his or her usual day-to-day activities. S27(2)
Relevant conduct also includes, without prejudice to the generality of (a) and (b) in the previous paragraph, the following: (a) following, watching, monitoring, tracking or spying upon a person; (b) pestering a person (c) impersonating a person; (d) communicating with or about a person; (e) purporting to act or communicate on behalf of a person; (f) disclosing to other persons private information in respect of a person; (g) interfering with the property (including pets) of a person; (h) loitering in the vicinity of a person; (i) causing, without the consent of the person, an electronic communication or information system operated by a person to function in a particular way. S27(3)
It should be noted that the examples of relevant conduct set out in section 27(3)(a)-(i) are non exhaustive.
The grounds and the relevant conduct to be taken into account by Judge in considering whether to grant a civil order mirror the grounds and relevant conduct to be considered by a Judge in relation to the offence of stalking as set out in section 10(2) and 10(3) of the Non-Fatal Offences Against the Person Act 1997. This new standalone offence of stalking was inserted into the Non-Fatal Offences Against the Person Act 1997 by section 23 of the Criminal Justice (Miscellaneous Provisions) Act 2023 and the pre-existing offence of harassment was amended in the same section.
In its 2013 Report on Aspects of Domestic Violence, para 2.17, the Law Reform Commission stated that the majority of section 10 offences for harassment under the Non-Fatal Offences Against the Person Act 1997 prosecutions arose in a domestic violence context and typically involved a person being harassed by a former partner where he or she persistently waited outside the complainant’s home or place of work.
- What is the effect of a Section 28 Order
A Section 28 Order may prohibit the respondent from doing any or all of the following in respect of the applicant or, where relevant, a person connected to the applicant:
(a) using or threatening to use violence against, molesting or putting in fear the person;
(b) following or communicating by any means with or about the person;
(c) approaching, within such distance as the court shall specify, the place of residence, education or employment of the person;
(d) engaging in such other forms of relevant conduct as the court specifies.[1]S28(4)
The Section 28 Order may be subject to such exceptions and conditions as the court specifies.S28(5)
- How long can a Section 28 Order last for ?
For a period of up to 5 years.S28(6)
- In what circumstances could a Section 28 Order be made ex parte ?
An ex parte application for a Section 28 Order can be made provided it is grounded on an affidavit or information sworn by the applicant. S28(7).
The grounds for making a Civil Order on an ex parte application are where the Court, “having regard to the particular circumstances of the case, is of the opinion that there are reasonable grounds for believing that there is an immediate risk to the safety and welfare of the applicant” S28(8).
An Section 28 Order made ex parte, may last for up to 8 days or such shorter time as may be specified in the order. S28(9).
Where an ex parte Section 28 Order is made, a note of the evidence given by the applicant must be prepared forthwith by the judge, by the applicant or by the applicant’s solicitor and approved by the judge or as otherwise directed by the judge and a copy of the order, the affidavit or information sworn to ground the ex parte application and a the note of the evidence must be served on the respondent as soon as practicable. S28(10).
The court must also ensure that a copy of the order is given or sent to the applicant, and to the relevant member or members in charge of the Garda Siochana station for the area or areas the court considers appropriate as soon as practicable. S28(14)
- In what circumstances can an Interim Section 28 Order be made?
An Interim Section 28 Order can be made on an application for a Section 28 Order on notice to the respondent, or at any time between the making of that application and its determination “where it is of the opinion that it is necessary and proportionate to do so for the purpose of protecting the safety and welfare of the applicant”.S28(8). The interim order ceases to have effect on the determination by the court of the substantive application for a section 28 Order. Order 96C rule 14 of the District Court Rules provide that an Interim Section 28 Order may be made on or in the course of the hearing of an application for a Section 28 Order or may be made by motion on notice to the respondent, grounded on affidavit or information sworn by the applicant with a minimum of two clear days service.
Where an Interim Section 28 Order is made, the court must ensure that a copy of the order is given or sent to the applicant, to the respondent and to the relevant member or members in charge of the Garda Siochana station for the area or areas the court considers appropriate. The order must be given or sent by the court “as soon as practicable”. S28(14)
The Interim Section 28 Order ceases to have effect on the determination by the court of the Section 28 Order. S28(13).
While section 28(16) states that the validity of the Interim Section 28 Order will not be affected by non-compliance with the requirements for service of the Order, this will depend on the circumstances of the case and any non- compliance with notification of the respondent with a copy of the Interim Section 28 Order (or any Order made under Section 28) where the respondent was not aware of the making of the Order is likely to cause significant difficulties see DPP v R.K. [2019] IEHC 852. In this case Simmons J. held that “it is an essential proof in a prosecution for an alleged brief of a barring order to establish that the accused person had been given notification of the making of the barring order. It would not be sufficient that the accused person had been merely given notification of the fact that a barring order has been made, rather he or she must have been furnished with a copy of the barring order. The only exception to this is where the accused person had been present at a sitting of the court at which the barring order was made.”
Section 34(1) states that “a relevant order shall take effect on notification of the making of the order concerned being given to the respondent.”
- Procedural elements of Section 28 Orders
The procedural elements of Civil Orders made under the 2023 Act appear to be based on similar measures contained in the Domestic Violence Act 2018. The 2023 Act contains similar provisions to the 2018 Act in relation to variation or discharge of Civil Orders,S29, protection against cross examination by applicant or respondent, S32, requirement for the Court to give reasons for certain decisions, S33, taking effect of Civil Orders and requirements for copies of orders to be given to certain persons, S35, exercise of jurisdiction being District or Circuit Court, S36, hearing of proceedings to be in camera, S37, provision for special sittings of District Court, S38, evidence to be permitted through television link for civil proceedings in certain circumstances, S39, right to be accompanied in certain circumstances, S40.
- Breach of a Section 28 Order, arrest without warrant and prohibition on publication or broadcast of certain materials
It is a criminal offence to breach a Section 28 Order which carries a penalty, on summary conviction to a class B fine or to imprisonment for a term not exceeding 12 months, S44. The powers of arrest without warrant granted to a member of the Garda Siochana where they have reasonable cause for believing that an offence is being or has been committed and following a complaint being made to them for or on behalf of the applicant, are also similar to those provided for under section 35 the Domestic Violence Act 2018. The prohibition on publication or broadcast of certain material relating to the offence created as well as the penalties for such a breach are set out in section 46 of the Criminal Justice (Miscellaneous Provisions) Act 2023 and are also similar to the prohibitions and penalties contained in section 36 and 37 of the Domestic Violence Act.
10. Hearing of applications for Section 28 orders with applications under the Domestic Violence Act 2018
Section 15 of the Domestic Violence Act 2018 currently permits the Court when hearing an application under the 2018 Act, to hear related matters, namely applications under section 11 of the Guardianship of Infants Act 1964, sections 5 , 5A, 5B, 6 , 7 or 21A of the Family Law (Maintenance of Spouses and Children) Act 1976, section 5 or 9 of the Family Home Protection Act of 1976, the Child Care Act of 1991 or section 30, 34 or 45 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 without the necessity for institution of proceedings.
To this list of related matters is now added applications under Part 5 of the Criminal Justice (Miscellaneous Provisions) Act 2023 ie applications for a Section 28 Order. This provides further additional civil law options for victims of domestic violence and offers more opportunities for Section 28 Orders to be made. Section 82(a) of the 2023 Act commenced on 2 September 2024 and amends section 15(2) of the Domestic Violence Act 1996 by permitting the court, where an application is made to it for an order under the Domestic Violence Act 2018, to make an order under Part 5 of the Criminal Justice (Miscellaneous Provisions) Act 2023, without the institution of proceedings under the 2023 Act.
This greatly increases the discretion of the District Court Judge dealing with an application for an order under the Domestic Violence Act 2018 to make a Section 28 Order where appropriate.
Conclusion
The introduction of these new Section 28 Orders will afford additional protection to those suffering unwanted behaviour. They will provide greater protection for victims of domestic violence as they complement the orders which can be made under the Domestic Violence Act 2018. However it must be acknowledged that the creation of additional remedies will place an additional burden on an already overworked and under resourced Court and it is essential if other cases are not to be displaced that the judicial and staff resources promised in the Judicial Planning Review Group Report are introduced.
Keith Walsh SC is a family law solicitor practising in Dublin and author with Sonya Dixon B.L. of Domestic Violence: Law and Practice in Ireland, Bloomsbury, 2024, Irish Law Book of the Year
LOOK IT UP
Part V Civil Orders against relevant conduct of the Criminal Justice (Miscellaneous Provisions) Act 2023, sections 27-47, section 82 of the Criminal Justice (Miscellaneous Provisions) Act 2023 which amends section 15 of the Domestic Violence Act 2018
Section 10 of the Non-Fatal Offences Against the Person Act 1997 as inserted by section 23 of the Criminal Justice (Miscellaneous Provisions) Act 2023
NEW DISTRICT COURT RULES - S.I. No. 364/2024 - District Court (Civil Restraining and Behaviour Orders) Rules 2024 – which set out the new District Court Rules for Section 28 Orders