Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

I move amendment No. 28:

In page 26, between lines 19 and 20, to insert the following:“(5) Where no disclosure application has been made by the accused in respect of a counselling record under subsection (3) and the prosecutor believes that it is in the interests of justice that the record should be disclosed, the prosecutor may make a disclosure application in writing to the court.

(6) Where the prosecutor intends to make a disclosure application under subsection (5), he or she shall, not later than the beginning of such period as may be prescribed in rules of court, notify the person who has possession or control of the relevant record, the complainant, the accused and any other person to whom the prosecutor believes the counselling record relates of his or her intention to make the application.”.

This amendment inserts two new subsections to section 38 of the Bill, which makes provision for the regulation of the disclosure of counselling records by providing for pre-trial hearings whereby the relevance of a record to an issue at trial can be determined by a judge. Currently under the proposed section the hearing will occur where an accused makes an application for the disclosure of the records in question. The amendments I am now proposing will also allow for the prosecutor to make the application for the disclosure of the records. This, however, will arise only where the accused, whether by omission or for any other reason, fails to make the application for disclosure and the prosecutor has in his or her possession, or has knowledge of, records which he or she believes should in the interests of justice be disclosed. It is effectively a safety mechanism to ensure that the integrity of the criminal process is maintained. Some renumbering is needed as a result and the other amendments are technical amendments to that effect.

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