Frances Fitzgerald (Dublin Mid West, Fine Gael)
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I move amendment No. 37:

In page 25, lines 16 and 17, to delete “or to the competence of the complainant or a witness to testify”.

Amendment No. 37 removes the reference to the competence of the complainant or witness to testify from the new section 19A(3)(b) of the Criminal Evidence Act 1992 as inserted by section 38 of this Bill. Competence to testify in law is a matter for capacity and age and I agree with those who raised concerns regarding this aspect of subsection (3), and who felt that counselling records were not relevant to either capacity or age.

Amendment No. 38 deletes subsection (4) from the proposed section 19A. This is the list of assertions which may not be sufficient to establish that a record is relevant to an issue at trial. The aim of the provision is to prevent spurious or without-foundation disclosure applications being made. However, it became apparent from a number of submissions received by myself and my Department, from amendments proposed to this Bill and from discussions with interested groups that this provision was a cause of confusion. In particular, difficulties in the operability of the subsection were identified. I also got legal advice and that raised concerns that the wording of the subsection could cause difficulty. Advices also found that the provision would add little to the protection of the complainant and they recommend that the subsection should be removed. It is therefore proposed to delete subsection (4). I acknowledge that Deputies O'Callaghan and O'Brien have also proposed the deletion of subsection (4).

Amendment No. 40 is a consequential renumbering on foot of the deletion of subsection (4). Amendment No. 42 is to subsection (5). That subsection requires the accused to notify the complainant, and the person in possession and control of the records, of his or her intention to make an application for the disclosure of the record. The amendment adds the prosecutor to the persons who must be notified by the accused.

Amendments Nos. 44, 46, 50, 53, 55 and 57 are just renumbering amendments, following the changes and cross-references on foot of the deletion.

Amendment No. 58, proposed by Deputy Jim O'Callaghan, would amend section 19A(9) which sets out the factors to be taken into account by a court in determining whether the record should be disclosed. The amendment would require the court to take into consideration that not one or more of the factors asserted shall be sufficient to establish whether the contents of the record should be disclosed. These are not factors which are asserted as being definitive. They are rather factors for the court to take into account when determining the disclosure of the record. They are intended to balance the competing rights of the accused, the complainant and the public interest. They include factors relating to the expectation of privacy, including that of the complainant, and public interest concerns. Equally, one of the factors is the probative value of the record. The question is whether the Deputy would consider that a court which determines that a record has probative value should then not disclose the record. These are matters for the court and whether one or more factors should cause the court to decide on the disclosure or otherwise of a particular record is for the court to determine in the context of the hearing for disclosure. I would be interested in the Deputy's views on that.