A cork study on 'domestic' violence and the criminal process: tentative conclusions from the policing perspective

AuthorCaroline Fennell - Andrea Ryan
PositionB.C.L., LL.M. (Osgoode Hall), B.L., Ph.D. (University of Wales), Professor of Law, Dean of the Faculty and Head of Department of Law, University College Cork - B.A., Dip. Phil., B.C.L., LL.M. (N.U.I.), Junior Lecturer, School of Law, University of Limerick
The Supreme Court has recently ruled that the provisions of the
Domestic Violence Act, 1996, which provide for the granting of
interim barring orders, are unconstitutional.1The Court found that
section 4(3) “in failing to prescribe a fixed period of relatively short
duration during which an interim barring order made ex parte is to
continue in force deprive the respondents to such applications of the
protection of the principle of audi alteram partem in a manner and
to an extent which is disproportionate, unreasonable and
unnecessary”.2This ruling provoked media comment to the effect
that the lives of women and children could be at serious risk as a
result of the Supreme Court’s finding.3The reference to danger to
lives might suggest a criminal context, yet the Court was addressing
acivil, as opposed to a criminal, piece of legislation. This serves to
remind us of the apparent preference of those affected by domestic
violence to seek redress through the civil route, which is not itself so
often the subject of comment, so much as the inadequacy of those
civil remedies. Hence, methods of improving the legal response have
centred on broadening those civil remedies which are available.4This
2004] 79
ACork Study on ‘Domestic’ Violence and
the Criminal Process
*B.C.L., LL.M. (Osgoode Hall), B.L., Ph.D. (University of Wales), Professor of Law, Dean of
the Faculty and Head of Department of Law,University College Cork.
B.A., Dip. Phil., B.C.L., LL.M. (N.U.I.), Junior Lecturer,School of Law,University of
1D.K. v.Judge Timothy Crowley and the Attorney General,Supreme Court, unreported, 9
October 2002.
2D.K. v.Judge Timothy Crowley and the Attorney General,Supreme Court, unreported, 9
October 2002, at p. 32 of the unreported judgment.
3Breslin, J., “Barring order ruling ‘threat to lives of women” in The Irish Examiner,10
October 2002, p. 1.
4See Casey, M., Domestic Violence Against Women: the Women’s Perspective (University
College Dublin, 1987); Lyons, M., Ruddle, H. and O’Connor,J., Seeking a Refuge from
Violence: the Adapt Experience (Policy Research Centre, National College of Industrial
Relations, 1992); Browne, D. and Connolly,R., Domestic Violence - The Response of the
Legal System (Coolock Community Law Centre, Dublin, 1995); Kelleher Associates and
O’Connor, M., Making the Links (Women’s Aid, Dublin, 1995); Report of the Task Force on
Violence Against Women (Stationary Office, Dublin, 1997).
is so despite the fact that most acts which occur in the course of a
domestic violence incident do constitute criminal offences. This begs
the question as to why it is that the primary remedies have been
offered through civil law and whether the criminal justice system is
capable of offering an effective response? Given the recent difficulties
caused by the Supreme Court decision regarding aspects of the civil
remedy, the time may be apposite to focus on what does happen
when the criminal law route - as opposed to the civil law route - is
followed. This question was addressed in the context of an empirical
study on domestic violence conducted by the writers in Cork. The
focus of the study was the manner in which the criminal justice
system currently processes complaints of domestic violence. Such an
examination would give an insight into how that process, when
invoked, responded to this type of violation, as well as if, and how,
it might require improvement. The study was confined to the Cork
region and the relevant agencies and courts in that district, and took
place over the time period 1998 to August 2000.5While the study as
awhole included the perspective of victims who report incidents of
domestic violence to the Gardaí and, through a number of case
studies, the response of the criminal courts to the prosecution of
those charges which related to domestic violence, this article focuses
on what was discovered regarding the policing response. It is, after
all, the intervention or role of the police which is the hallmark of the
criminal justice regime. This may provide a valuable yardstick for
assessment of existent structures, and the viability of the future use
of the criminal model in domestic abuse scenarios. That the search
for remedies and avenues of redress should be both within and
outside the civil law process is self-evident. That the latter has to date
formed the mainstay of redress, should not preclude consideration of
other - including criminal law - responses, all the more urgent in the
aftermath of the Supreme Court’s ruling.
80 [4:1Judicial Studies Institute Journal
5The authors would wish to acknowledge the co-operation of the domestic violence agencies
and Gardaí, courtofficials, and members of the judiciaryinvolved. The study was funded by
agrant received from the Royal Irish Academy which is gratefully acknowledged.

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