Man challenges ‘blanket’ Garda policy of refusing station bail for any domestic violence charge

A man detained for one night in custody in a Garda station after being charged with breaching an interim barring order has challenged the lawfulness of a “blanket” Garda policy of refusing station bail for any domestic violence offence.

The man denies he breached an interim barring order, dating back to 2017, by allegedly banging on the window of his ex-wife’s car on April 15th last when she was sitting inside it. In an affidavit, he said there was no aggression on his part and he tapped on the window to ask about one of their children.

Gardaí contacted him on May 3rd last asking him to attend at a specified Garda station “forthwith” to be charged with alleged breach of the order.

Having obtained legal advice, the man asked could he attend at the station the following morning to be charged which would mean he could be brought directly to the District Court to seek bail.

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It is claimed the Garda told the man’s solicitor, Margaret McEvilly, that he (the garda) was not working the next morning and, if the man did not come down that night, the garda had a power of arrest and “would go and get him in front of his housemates”.

Ms McEvilly asked, if the matter was so urgent, why had her client not been arrested in the three weeks since the alleged breach. It is claimed the garda responded he had been looking for the man and did not have his phone number. The garda confirmed there would be no objection to [District Court] bail for the man and he would be released the next day.

The man went to the station and, in his affidavit, said there was no consideration given to whether his ex-wife’s allegation was frivolous or vexatious. He said he feared he could end up spending more nights in a cell any time she makes such allegations against him.

His night in custody caused him fear and upset, he said. “I was very frightened by the experience and have since had feelings of shame and severe stress and anxiety.”

On Monday, Mr Justice Charles Meenan granted leave to Patrick Gageby SC, with Brendan Hennessy BL, for the man, to bring judicial review proceedings against the Garda Commissioner.

A number of similar challenges over the same Garda policy were previously initiated but none have so far proceeded to hearing. It is believed some have been settled.

In his affidavit, the man said his ex -wife took judicial separation proceedings after unhappy differences arose between them in 2015. He said he was advised in 2017 to consent to her application for the interim barring order on the understanding it would be short term until the finalisation of matters between them but, five years later, the order is still in force.

For “the most part”, he has a “very good” relationship with his ex-wife but there was sometimes a breakdown of that, he said. She had made “numerous” allegations of breaches of the order, most of which were dismissed at hearing, he said. His most recent conviction for breach of the order was some two months ago over his singing Happy Birthday to her over the phone.

When contacted on May 3rd last about the alleged breach in April, he said he had no idea what the garda was referring to. Gardaí were fully aware where he lived and he was “certain” they had his phone number, he added.

In his challenge, it is claimed the Criminal Procedure Act (CPA) provides a person brought in custody to a Garda station may be released on station bail pending a District Court appearance. The CPA excludes specified offences from station bail but those do not include alleged breaches of the Domestic Violence Act (DVA) 2018, it is claimed.

Section 6 of the Garda Domestic Abuse Intervention Policy 2017 states that an order granted under the DVA “is a direction of the court to bring a person who contravenes the order to court, therefore, station bail cannot be granted”. That policy, the man claims, is applied to all alleged breaches of the DVA 2018.

The man wants various orders and declarations, including that the 2017 “blanket” policy is in excess of the CPA and breaches his rights under the Constitution and the European Convention on Human Rights, including to liberty and fair procedures. He also wants damages.