Mr. Michael Hourigan:

I am grateful to Dr. Leahy for the invitation to add to what she has said. Arising from the provisions of section 19A, the prosecution is under an obligation to disclose the existence of counselling records to the defence in these cases. It does not then disclose them without the leave of the court. Obviously, as the committee is aware, there is a process by which disclosure takes place or not.

As Ms O'Leary has said, we have come here recognising the de facto position, which is that the Oireachtas and the courts have recognised there will be instances where it is considered that disclosure should occur. It is very difficult. I am aware of the contributions made by various members of the committee on this issue at various stages. I know the Minister said, in the context of one discussion, that one of the most difficult things to do was to resolve competing constitutional rights. To bring it back to the query the Cathaoirleach raised as to how a subjective view taken on something that was said could be relevant, just to be clear, it would not be the view of the counsellor that was of relevance but rather, perhaps, another account that a complainant had given that the court might think was appropriate to be disclosed.

I should also say that not only in relation to section 19A, but also arising from the Supreme Court's decision in AM, there has been very much an evolving sense that the rights of an accused person have to be balanced against those of a complainant. As has already been referred to by Mr. Herrick, Mr. Justice Collins in the Supreme Court spoke about very limited situations in which this disclosure should be made. His specific words were that it would need to be shown that the records were likely to have real forensic value to the accused's defence.