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

I remind Deputy Coppinger that the prosecution receives these records as part of the criminal investigation when it is making a decision on whether prosecution should take place. The concern that an accused may seek to delay a trial by not making an application is something that needs to be considered as well.

One of the concerns I have with Deputy Shortall's amendment No. 50 relates to its potential to undermine the independent rights of individuals in these cases to make their own decisions on whether records relating to them can be disclosed. The application process is being introduced to ensure relevant records only are disclosed. Obviously, this should not undermine each individual's right to allow disclosure outside that process or to give rise to legal argument on whether a statutory requirement has been met. I recognise that amendment No. 50 merely seeks to afford the opportunity to obtain advice. I am also aware that there is concern that victims might be pressurised to waive consent. A number of processes and procedures will need to be put in place prior to the commencement of section 38. In that context, I have asked for consideration to be given to the information that is to be provided to victims with respect to the disclosure of counselling records. This information should include information on the right of a victim to seek legal advice prior to waiving his or her consent. I can build that into the processes and procedures prior to the commencement of section 38.

The second aspect of amendment No. 50 concerns child complainants. I fully agree that child complainants warrant the fullest protection possible. I am satisfied that the provisions contained in subsection (8) of the Bill offer adequate protection without the need for the further provision that has been proposed. As Deputy O'Callaghan has suggested, this further provision would bring some unnecessary confusion to the process. I remind the House that I introduced an amendment to subsection (8) on Committee Stage to require the court to take account of "the likelihood that disclosing, or requiring the disclosure of, the record will cause harm to the complainant". This will apply to all complainants and not just to children, although the fact that a complainant is a child will be of relevance in determining the likelihood of harm.

Amendment No. 51, in the name of Deputy Jonathan O'Brien, seeks to remove counselling records from any assessment under the new provision. The purpose of section 38 is to regulate the disclosure of counselling records and to determine their relevance to the issue at trial. This process will be undertaken by a judge as part of a pre-trial process. The entire removal of counselling records from the process could give rise to a real risk of an unfair trial and could be open to legal and constitutional challenge.

I think I have made the main points I wanted to make on the various amendments. I hope the Deputies can support the amendments in my name. They will ensure that if an individual fails to make an application for disclosure, and the prosecutor is aware that there are records which are likely to be relevant to the issue at trial, the prosecutor may make an application for a pre-trial hearing. The disclosure or otherwise of the records, and the conditions attached to any such disclosure, will remain a matter for the court. I think I have dealt with Deputy Shortall's point by suggesting a way of approaching it.

I am also proposing amendment No. 42, which proposes to replace the word "trial" with the words "criminal proceedings for which the record has been disclosed" in subsection 12(b) of this section. The purpose of this amendment is to ensure any records used at a trial would also be available for any additional criminal proceedings for which the record was initially disclosed; for instance, if the case were to be appealed.

Finally, I would like to make a technical point with regard to Deputy Coppinger's amendment. She has not included the subsequent changes that are needed. This would have an impact on the ability to commence the section. It is a technical point.

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