Alan Shatter (Dublin South, Fine Gael) | Oireachtas source

When this important issue was raised in the Seanad, I lent my support to the view that this matter should be dealt with as speedily as possible. I pointed out, however, that the issue is complex and requires careful consideration to ensure any proposal in this regard correctly balances the constitutional right of the accused to due process with the privacy rights of the complainant. The Attorney General has advised me that a detailed examination is required to identify and provide precisely for the rights concerned.

It is intended to complete passage of the Courts and Civil Law (Miscellaneous Provisions) Bill before the House rises for the summer recess. I have decided that in such circumstances, there is not enough time to address this issue comprehensively with the careful consideration required in the timeframe available. I have come to this conclusion because I believe that further consultation is necessary with interested parties to bring forward a robust and workable solution. In particular, I want to allow time for full consultation with the Director of Public Prosecutions to ensure any proposal put forward will work in practice to protect the rights concerned, ensure the effectiveness of the prosecution process and, in the future, not jeopardise in any way the efficacy of prosecutions taken. I am also concerned that any proposal in this regard should be comprehensive and should address the rights of adult as well as child complainants. It could create a particular anomaly if it were confined to children alone.

The examination and consultation on this subject proposed by the Law Reform Commission would be a suitable way of examining such a complex issue. However, I am conscious that the timeframe for such an examination is not appropriate and that more immediate action is required. I have therefore decided that this issue will be addressed in the forthcoming sexual offences Bill, which is at an advanced stage of preparation in my Department. I believe this is the correct approach to ensure a suitable legislative solution is found as soon as possible to resolve this issue.

I hope the House will understand that I cannot accept this amendment, not because I reject its purpose or value but because this subject demands a fuller and very careful examination than is possible in the context of an amendment to this Bill. I am particularly concerned that it is confined to children and does not extend to adults. The same area of difficulty can also arise in respect of adults.

In addition to the reasons I have just given, there are a number of difficulties with the actual drafting of the amendment. For example, the proposed section states where a person under the age of 18 gives evidence as a witness in any criminal proceedings, evidence disclosing the content of communications made by the witness in confidence in the course of sexual assault counselling should not be admissible save by order of the court. The section is based on an assumption that the person who is the victim will either already have given evidence or be in the course of giving evidence, because it mentions a person who gives evidence and does not refer to the victim or the alleged victim. There is no provision for pre-trial procedures. It would be very unsatisfactory in the context of a criminal trial that this issue would only be addressed during the course of someone giving evidence, except in exceptional circumstances.

If there were to be an issue as to whether this type of report would be disclosed, it would preferably be dealt with in a pre-trial procedure, whereby the case is made in a pre-trial application as to why it should be disclosed and why it should not be disclosed. It may well be that in determining whether it should or should not be disclosed, a judge would have access on a preliminary basis to the documentation concerned and would himself or herself determine its relevance, or not, to any issues in dispute, or likely to be in dispute, in the criminal proceedings.

The manner in which this amendment is framed could create a very real problem and could result in a trial being unnecessarily prolonged or adjourned, to the detriment of the victim who, having gone through the trauma of attending court, could find the hearing is adjourned for a period of days or weeks while an issue is addressed in this context. This is a problem not only of a merely technical nature, but of a substantive nature as to how it could effectively impact on trials.

With regard to the provision in the proposed new section, there would have to be clarity as to the persons with whom communications should be regarded as confidential. In the context of this particular provision, reference is made to a person who has undertaken training or study. This does not mean the person is actually qualified, for example, to provide counselling to an individual - be they a child or an adult who has been the victim of a sexual assault. What if someone begins training or study, but does not obtain a professional qualification? Does this make the person an individual with whom one can have a privileged conversation? This raises a very important issue. It also refers to a person who has experience which is relevant to the process of counselling persons. This wording is extremely wide and therefore it is not clear what it means.

A conversation between the victim of an alleged sexual assault in the hours following that alleged assault with any person claiming to know something about the process of counselling could suddenly become a privileged conversation. The nature of the conversation which the victim had, the victim's appearance, conduct and substantive detail of what he or she said to that individual in the immediate aftermath of the alleged assault, particularly where the individual was not someone engaged in counselling, could be of specific relevance in determining the credibility of an allegation made and determination of whether an individual charged was innocent or guilty.

While there are problems with the drafting of the amendment, it is a well-intended provision. There is a real problem in this area in terms of attempts to trawl, in the context of criminal trials, notes of counsellors which are of no real relevance to the outcome of the hearing. I am anxious to ensure victims of sexual assault who need support and counselling do not fear that if they reveal confidential information about their lives to a counsellor that is of no relevance in real terms to the allegation made or determination of guilt or innocence. that information will be unnecessarily put into the public domain, causing them additional stress. This is a real issue which we need to address. However, it must be addressed carefully. Also, in addressing it we should not discriminate between children and adults, although children can be particularly vulnerable. The sad and tragic reality is that sexual assault or rape is a sensitive matter and what occurs is very traumatic for the individual. We must approach these matters with particular care.

See this speech in context