Barring order must be ‘produced’ to person accused of breaching it, High Court rule

A High Court judge has ruled that persons accused of breaching a barring order must be furnished with a copy of the order and it is not sufficient, as the DPP had argued, to show they are aware of the order.

Mr Justice Garrett Simons was addressing legal issues referred to him by the District Court arising from a man’s prosecution for allegedly failing to comply with a barring order granted to his wife under the Domestic Violence Act 1996.

The District Judge will now decide the man’s case in line with the findings of the High Court. Those included it would have been “unsafe” to convict the man on the evidence before the District Court concerning notification of the order.

The wife had obtained a barring order in April 2018 which directed the man to leave the family home and prohibited him returning for some three years. It was alleged he entered the family home on a date in 2018 contrary to the order.

His lawyers argued the District Judge should find he had no case to answer because there was no evidence he had been furnished with a copy of the barring order.

The DPP asked the District Judge to state a case to the High Court to decide legal issues.

The High Court was told two pieces of evidence were potentially relevant to the question of notification.

These were that a Garda who had attended at the family home gave evidence of speaking with the accused and asking him “was he aware that there was a barring order in force and he said that he was”.

The Garda said he then cautioned the accused and arrested him under section 18 of the 1996 Act.

Court stamp

The Garda said he was aware there was a court stamp on the barring order for the gardaí to serve the order, and the gardaí could provide an escort to the wife, but the Garda was not aware if either of those actions were undertaken.

The wife stated in evidence, in apparent response to a question from the District Judge in respect of the endorsement for the gardaí to serve that order, “the police were alert to that and came up and issued a barring order”.

The District Judge found as a fact the husband was both aware of the existence of the barring order and that his presence in the family home was prohibited by that order. She found “sufficient notification” of the order, in accordance with section 10.2 of the 1996 Act, was therefore proven.

Section 10.1 provides for notification of an order on it being given to the respondent and section 10.2 provides for notification via “oral communication to the respondent”, which, “together with production of a copy of the order. . .”, shall be, without prejudice to the sufficiency of any other form of notification, taken to be “sufficient notification”.

Mr Justice Simons found the District Court was not correct in finding, based on the evidence, the prosecution had proven the barring order had taken effect within the meaning of section 10.1 and 10.2.

‘Essential proof’

He also held the District Court was not correct in interpreting the wording in section 10.2, namely “without prejudice to the sufficiency of any other form of notification”, as expressly providing for other forms of notification to be deemed satisfactory by a court, taking into account the evidence in each case.

It is an “essential proof” to establish the accused had been given notification of the making of the order, he said. It would not be sufficient for an accused to be merely notified of the fact an order was made, they must be furnished with a copy of it, unless they were in court when it was made.

A barring order can be furnished via prepaid post or by personal service effected by the applicant or by gardaí, he said. In urgent cases, a copy of the order might be provided electronically.

The “”essential requirement” is that a copy of the order must be produced to the respondent.

It would have been unsafe to convict this accused on the basis of the evidence before the District Court, he held.

The Garda evidence established, “at the very most”, the accused may have been aware of the “fact” a barring order was made which was not sufficient notification and the wife’s evidence the police came up and “issued” a barring order was “ambiguous”.

The onus is on the prosecutor to establish a copy of the barring order had been produced to the accused, he said.