Christopher O'Sullivan (Cork South-West, Fianna Fail)

I move amendment No. 1:

To delete all words after "That" and substitute the following:

"Dáil Éireann resolves that the Criminal Law (Prohibition of the Disclosure of Counselling Records) Bill 2025, be deemed to be read a second time this day twelve months, to allow for consideration by the Minister for Justice, Home Affairs and Migration to consider and bring forward provisions relating to Counselling Records.".

I know Deputy Coppinger is disappointed that this is the approach the Government has taken. I will explain the rationale behind it because she has set out eloquently and represented the voices of victims and professionals in terms of the difficulties that are experienced when it comes to counselling notes and their use in court. She has pointed out the distress, anxiety and severe trauma that has caused to women in particular who have experienced gender-based violence. I commend her on that and on raising the issue, bringing it before the Dáil and ensuring it is discussed.

The reason we are taking this decision is based on the advice that the Bill, as it stands, is unlikely to withstand a constitutional challenge. When a Minister is given that advice, he or she has to act on it and be guided by it. That is why we are going with the 12-month amendment. We do not want a situation where, unintentionally, we cause the balance to come down on the side of the accused. I certainly do not believe that would be an appropriate measure.

I will set out the approach that the Minister, Deputy O'Callaghan, is taking. He is taking the matter seriously. It is something that he is already working on in terms of trying to find a method or solution to ensure that victims do not experience that trauma, as the Deputy has rightly pointed out.

The Criminal Law (Prohibition of the Disclosure of Counselling Records) Bill 2025 aims to delete subsection 19A of the Criminal Evidence Act 1992 and replace it with measures providing that the content of counselling records shall not be disclosed in criminal proceedings for a relevant offence; a competent person shall not disclose counselling records in criminal proceedings for a relevant offence; neither the existing nor content of counselling records shall be requested for disclosure in criminal proceedings for a relevant offence. A relevant offence comprises sexual offences, coercive control offences and offences involving the physical, emotional, sexual or mental abuse of one person by another within a close, intimate or family relationship.

The Minister, Deputy O’Callaghan, and I are fully aware of the distress and revictimisation that disclosure of personal records, including counselling records, can have on survivors of sexual violence. One of the most difficult things that this House has to do is to resolve issues around conflicting constitutional rights. The disclosure of counselling records is a complex and highly sensitive balancing of individuals' rights. On the one hand, there is the victim’s right to personal privacy and, on the other, the accused person’s right to a fair trial. It is our duty to ensure that these constitutional rights are appropriately balanced.

This Bill, in its current form, seeks to prohibit the disclosure of counselling records in criminal proceedings. However, in the criminal domain, the prosecution has a general duty of advanced disclosure that is based on the common law, Article 38.1 of the Constitution, Article 47 of the Charter of Fundamental Rights of the European Union and Article 6 of the European Convention on Human Rights. It is essential for the purpose of a fair trial that the prosecution disclose all relevant material within its possession, power or procurement to the defence. A blanket ban on the disclosure of counselling records is not compatible with the Constitution and is unlikely to withstand a constitutional challenge, as I have already pointed out.

The Attorney General’s office points out that the constitutional right to trial in due course of law entails a duty upon the prosecution authorities to ensure that appropriate disclosure takes place of matters that may help the defence or damage the prosecution in any criminal prosecution, meaning that appropriate disclosure is a bedrock of a procedurally fair and just process of prosecution. The Attorney General’s office advises that this Bill creates an absolute carve-out for counselling records, which almost inevitably breaches Article 38.1. Elevating the rights of a victim of an alleged sexual offence in this way inevitably comes at the cost of defence rights and trial in due course of law. In the event of such a challenge, it appears highly probable that this proposed amendment would result in a finding of constitutional invalidity.

I reassure the Deputy that the Government intends to address the serious issues raised in the House. For this reason, we are tabling a timed amendment to this Private Members' business.

The law in this area was substantially reformed in 2017 by the insertion of section 19A into the Criminal Evidence Act 1992, which was drafted with the intention of ensuring an appropriate balance between an accused person's rights to a fair trial and a complainant's rights to privacy. Section 19A permits an accused person to make an application to the court for the disclosure of counselling records but it also allows the victim to object to the disclosure of those counselling records. If a victim objects to the disclosure, the judge will examine the counselling records and decide whether there is relevant information to be disclosed to the defence. The victim is legally represented at this disclosure hearing and, under the law, is entitled to have a solicitor or barrister, engaged by the Legal Aid Board, to act on the victim's behalf.

Even where a court orders disclosure, it may impose any condition it considers necessary in the interest of justice and to protect the privacy of any person. These include a condition that part of the record be redacted; that the record not be disclosed to any other person without leave of the court; that no copies be made of it; that the record be viewed only at the offices of the court; that the record be returned to the holder; and that it be used solely for the purposes of the criminal proceedings.

Similarly, if a victim does not object to the disclosure of counselling records, the disclosure is still made under strict conditions. The prosecution requires undertakings from the defence as to how the records will be held and used. For example, the records may not be occupied or distributed to any anybody else, they may be consulted only in certain settings and they must all be returned to the Office of the Director of Public Prosecutions.

Regrettably, it appears that section 19A has not operated in practice as intended. Victims have felt compelled to agree to waive the disclosure hearing in order not to put a successful prosecution at risk or risk delaying their trials, and their records are routinely being released. This is not good enough and we are taking steps to address it.

As the Deputies will be aware, the Minister, Deputy O'Callaghan, recently secured Government approval for the drafting of the general scheme of the criminal law and civil law (miscellaneous provisions) Bill 2025. The general scheme includes measures to amend section 19A by requiring that a disclosure hearing take place in all cases, removing the provision that allows for this to be waived. This will ensure that the original intention of the legislation will apply, mandating the court to assess the relevance of any counselling record through a judicial process.

Consideration is also being given to further strengthening section 19A by amending it to provide that disclosure of counselling records shall only be made where there would otherwise be a real risk of an unfair trial.

The effect of these changes would be very beneficial. It would mean that if a person accused of 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 object. 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. This approach is a targeted recalibration of the existing legislation, enhancing protections for victims while protecting the accused’s constitutional right to a fair trial.

I would like to conclude by reiterating this Government’s commitment to protecting vulnerable victims and to assure the Deputies of our dedication to this objective. Combatting domestic, sexual, and gender-based violence is a core priority for this Government. At the heart of our efforts is the zero tolerance strategy, a comprehensive plan to shift societal attitudes, strengthen protections, and ensure survivors receive the justice and support they deserve. The Government is fully committed to implementing this strategy for 2022 to 2026, with a new national strategy set for 2027 to 2030. Zero tolerance means no form of abuse - physical, emotional, sexual, or coercive - will ever be ignored, excused, or accepted. It is about real change, not just in our laws but in our attitudes, institutions, and communities.

One of our key priorities is guaranteeing safe refuge and accommodation in every region of the country. The zero tolerance strategy commits to doubling the number of refuge spaces by the end of 2026. No one should ever feel they have nowhere to turn. Survivors deserve safe, supportive environments where they can rebuild their lives. Cuan, the statutory DSGBV agency, is working closely with front-line service providers, local authorities, the Department of housing, and the Housing Agency to accelerate the delivery of domestic violence refuges. We are investing in services to ensure that survivors can access the help they need, when and where they need it.

Under budget 2025, funding to tackle DSGBV has increased to €70 million. Since 2020, funding for these services has tripled. The Government has also increased funding for Cuan to almost €67 million, strengthening the resources needed to implement the zero tolerance strategy effectively. We recognise that DSGBV has a profound impact on children. That is why the Cabinet has approved legislation that will remove guardianship rights from those convicted of killing their partner or the other parent of their child. This should not be treated as a private legal dispute, it is a child protection issue that belongs firmly in the realm of public law. This legislation delivers on the programme for Government commitment to review guardianship rights in such cases and aligns with key recommendations from the study on familicide and domestic and family violence death reviews.

Our work to protect survivors does not stop here. We are working with An Garda Síochána to ensure that individuals can be informed of serious risks if their new partner has a history of domestic violence. This is about protecting individuals from harm, a matter that requires a careful, comprehensive legal approach to balance privacy with protection. We are dedicated to working with all relevant stakeholders to develop practical and effective solutions. While responding to violence is essential, prevention is equally critical. We must build a society based on respect, equality, and mutual understanding, starting with education. We are introducing new, age-appropriate educational programmes in schools focused on respect, consent, and healthy relationships. Young people must understand acceptable behaviour and feel empowered to challenge harmful attitudes.

Engaging men and boys is also crucial. We are working to challenge harmful gender stereotypes and promote positive models of masculinity to help break cycles of violence. We have made important strides in raising awareness. The responsibility for leading this work has moved to Cuan, who are at the forefront of these efforts. Their "Hardest Stories" campaign was recently launched, a powerful initiative breaking the silence around DSGBV and ensuring survivors feel heard, valued, and believed. Moving forward, we will continue to support these campaigns and ensure our work aligns with the Government’s broader priorities. We are fully committed to implementing practical, effective solutions that provide real protection and support for those who need it most. A zero-tolerance approach to DSGBV means addressing not just the violence itself, but the conditions that enable it. However, the work is far from over. We will not stop until every survivor has the safety, support, and justice they deserve.

I reiterate to Deputy Coppinger that there is broad agreement on what her Bill is trying to achieve. The Minister has received legal advice that this Bill would not withstand a constitutional challenge. That is something the Minister has to take seriously. He is working on a method and solution to address this serious and worthy issue.

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