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

• Author: Caroline Fennell - Andrea Ryan
• Position: 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 Limerick
• Pages: 79-107

ACORK STUDY ON 'DOMESTIC' VIOLENCE AND

THE CRIMINAL PROCESS: TENTATIVE

CONCLUSIONS FROM THE POLICING PERSPECTIVE

CAROLINE FENNELL* AND ANDREA RYAN†

I. INTRODUCTION

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

Limerick

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.

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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.