Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

I thank the Deputy for her question. One of the most difficult things I have to do as Minister for Justice, and indeed, that the House has to do, is to resolve issues around balancing conflicting constitutional rights. This is an issue where there are conflicting constitutional rights that need to be balanced but, as the Deputy indicated, that balance needs to be shifted legislatively in the near future. The balance of rights is twofold. On one hand, there is the right to privacy that people have in counselling notes when they go to a counsellor or psychologist and provide private information about their lives to that counsellor or psychologist. At first principles, we all assume that information will be kept private. On the other hand, there is the right of individuals to a fair trial if they are being prosecuted for a serious criminal offence that could result in them losing their liberty. We tried to balance these two rights in respect of the disclosure of counselling notes in 2017 in the sexual offences Act enacted then. Unfortunately, that Act did not achieve what we had wished to achieve. I want to amend section 19A of the legislation, and obviously it is up to the House as to whether that should happen, through the removal of subsection 17, which gives an entitlement to a complainant to waive their entitlement to object to the disclosure of counselling notes. I also wish, subject to advice from the Attorney General, to amend subsection 11 of section 19A by removing paragraph (a). The effect of these changes would be very beneficial. It would mean that if a person accused on an offence wanted access to counselling notes there would have to be a hearing in advance of the trial to determine whether he or she was entitled to them. The judge would have to look at them. There would not be an opportunity for a complainant to say that he or she would waive their right to objection. A judge would also only say that the notes had to be disclosed to an accused in circumstances where the judge thought a fair trial would not be possible if they were not disclosed.

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