Ms Aoife O'Leary:

Specifically on the proposed amendment of section 19A, the warning about the diversion of judicial resources was in relation to the result of the proposed amendment being that a hearing would be required in every case where the judge would have to review the record and determine whether it would be disclosed.

That would divert judicial resources into conducting those hearings when that judge might be presiding over the trial itself. Our suggestion is that consideration be give to the provision of the independent advice to the complainant, who then can give informed consent, where she or he wishes to, to the disclosure of the record.

We have confined our submission to the proposal contained in the Bill but it is important to say there may be a certain level of misapprehension among members as to how counselling records may be used and what their status would be. It is not the position that, where a counselling record or portion of a counselling record is disclosed, it becomes evidence in the case automatically. It is not the position that the entirety of a counselling record would be disclosed. The judge presiding over a section 19A hearing would have to look at the particular portion of the record that it was proposed to disclose and determine whether there was a compelling basis for the disclosure of a portion of the record. It may then be that the defence may seek to ask a complainant a question arising from that. All of that is subject to the trial judge who is presiding over the trial and ensuring it is fair, preventing any oppressive questioning of the complainant. Ultimately, the complainant's answers in relation to any questions about the record would be the evidence, not the record - the piece of paper itself - that was presented. I just wanted to say that in case there was some level of misapprehension about the status of a counselling record and its use in the court.

Effectively, we are saying that if there is the provision of independent legal advice outside of the courtroom and if the complainant is fully advised on all aspects of the counselling record and what is proposed to be disclosed, and if having received that advice the complainant wants to stand in his or her absolute right to have the section 19A hearing, then she or he can, but if the complainant is satisfied to consent to the disclosure of the particular record, she or he can do so. The independent legal adviser could then come into the court, inform the trial judge that legal advice has been given and that the complainant has given the indication she or he has.