Mr. Tom O'Malley:

Essentially, when it comes to an ordinary criminal case the Director of Public Prosecutions is obliged - as a matter of law and, perhaps, as a matter of constitutional law - to hand over to the defence all relevant material in their possession. That is uncontroversial. The issue that arises here, and the reason we have put it on our agenda, is that for the past decade or more a problem has arisen - not exclusively, but in particular - whereby somebody who is charged with a sexual offence perhaps against a child, or a person who was a child many years ago when the offence was allegedly committed, may seek discovery of material relating to the complainant which is not in the possession of the DPP but is in the possession of a health board, a doctor, a rape crisis centre or a counsellor. As Mr. Justice Quirke has said, it is a sensitive issue because there are a number of competing interests at stake. There is the right of the accused person to a fair trial, which would point to the discovery or disclosure of the material. However, the material which they are seeking to have disclosed will often be of a deeply personal and private nature. There may be content in that material which is not strictly relevant or necessary.

This is something that the High Court and the Supreme Court have almost had the opportunity to deal with on several occasions over the past decade. It always so happened, however, that some settlement was reached prior to the date on which the case was due to be heard. The last occasion was a case that came before the Supreme Court a few years ago involving this kind of issue, as it happens in a manslaughter case, but the matter was settled.

The reason we think this is something that would be uniquely suited to being considered by the Law Reform Commission - and I gather the Department of Justice and Equality may also be considering it - is that there are so many different constituencies that need to be heard. They include, for example, people in the medical, caring and legal professions as well as victim support groups. All their voices need to be heard. There are a few useful models from Canada, Australia and elsewhere which are probably quite readily adaptable in this country but it is just a question of deciding which one is the best.