The High Court ruled that, in a prosecution for breaching a barring order, it must be established that the accused received a copy of the order, unless they were present when it was made. Awareness that an order exists is not enough.
Mr Justice Garrett Simons delivered the judgment on 13 December 2019 in a consultative case stated from the District Court. It concerned an alleged offence under the Domestic Violence Act 1996, which was in force when the alleged conduct occurred.
The District Court had made a barring order in April 2018 directing the accused, identified as R.K., to leave the family home at a redacted address and prohibiting entry until a date in April 2021. The order also contained ancillary restrictions. The accused was charged with entering the home on a specified date in 2018.
At the close of the prosecution case, the defence sought a direction of “no case to answer”, arguing there was no evidence that the accused had been given a copy of the order. The District Court judge found that the accused knew a barring order was in force and that his presence at the address was prohibited. She considered notification sufficient under section 10 and stated two questions of law for the High Court.
The evidence on notification included a Garda’s account that the accused said he knew a barring order was in force. The Garda could not confirm whether service had taken place. The applicant spouse said that “the Police were alert to that and came up and issued a barring order”, but the High Court found this statement ambiguous and insufficient to establish that a copy was served.
Mr Justice Simons held that the statutory notification scheme requires actual or constructive notice of the order’s precise terms and its prescribed warning about the consequences of breach. That is achieved by furnishing a copy, including by post or personal service, or by the respondent’s presence in court when the order is made. The words “without prejudice to the sufficiency of any other form of notification” do not create a separate route that dispenses with those requirements.
The High Court answered “No” to both questions. It found the prosecution had not proved that the order took effect on the evidence summarised in the case stated, and rejected the District Court’s interpretation of the statutory wording. The judge said it would have been unsafe to convict on that evidence. The judgment determined the legal questions and the sufficiency of the evidence described; it did not state that the accused was convicted or acquitted.