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

I thank the Senator for proposing the amendment, which has given rise to the very important discussion that is taking place. The amendment was only made available a few days ago. I make no complaint about that because we have subjected the House to many amendments in the past where there has only been a short time to consider them. This is an issue in which I share the views expressed by Senator van Turnhout and other Members of the House. It is of major importance in criminal trials of all description, including criminal trials involving allegations of sexual assault that the rights of the accused are protected, that anything of evidential value with regard to a prosecution taking place is made available and that the books of evidence are provided to the accused and his or her lawyers so they are in a position to prepare for trial and deal with issues.

It is also important that we try to protect as best we can individuals, children in particular, who have been the victims of sexual assault so that, to take the words of Senator van Turnhout, they are not revictimised and do not believe the legal system is abusive of them also.

The Senator spoke very ably on the need to balance the rights in articles 8 and 6 of the European convention and on some of the background case law. I understand the Law Reform Commission will examine this issue as part of its fourth programme, which I expect to be announced shortly. On foot of the amendment tabled by the Senator we consulted with the Office of the Attorney General which has advised me, and I must relate this advice, that a very detailed examination of this issue is required because of the need to balance the constitutional right to due process against the right to privacy. This is a very complex matter and I am entirely happy that we leave it to be dealt with by the Law Reform Commission, for no reason other than the timeframe involved. The Law Reform Commission is very well equipped to deal with this matter and with the point raised by the Senator, which is the need in the State for sustained analysis on this issue. Much of the material is from outside the State. I am personally aware of the concerns of the Rape Crisis Centre and it seems that in recent years those defending accused have been more actively seeking these reports. It is an inhibiting factor for those counselling an individual as to how they approach these matters and it is of concern to an individual who may disclose information that is necessary in the context of counselling which has no direct relevance to their credibility in a court hearing, or of no direct relevance to any issue in dispute at a trial, but may be a cause of embarrassment to the individual if the information is disclosed. The problem is how to achieve a balance.

I cannot accept the Senator's amendment and I want to point out some of the technical reasons. This is not to raise technical reasons to in any way put down the Senator, because it is a very serious issue. 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 being in the witness box except in exceptional circumstances, and there are exceptional circumstances in criminal trials where issues may arise. If there was to be an issue as to whether this type of report would be disclosed, it would be better dealt with in a pre-trial procedure, whereby the case is made in a pre-trial procedure as to why it should be disclosed and why it should not be disclosed. It may well be that in determining whether it should be disclosed, a judge would have access on a preliminary basis to the documentation and would himself or herself determine its relevance or not to any issues in dispute in the criminal proceedings.

The manner in which this 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 while an issue is addressed in this context. If documentation was furnished which the defendant's solicitor was of the view might well raise new issues it could result in an application being made to set aside the trial and for a new trial to be held while how to deal with the information was being considered. At the very start of this there is a problem not only of a merely technical nature, but of a substantive nature as to how it could impact on trials.

We could discuss issues regarding subsection (2) and the matters to which the court should have regard, but I do not want to delay the House and I will not go into it in detail. With regard to the provision in the proposed section 31, there is a difficulty as to what should be confidential in the context of the person to whom it is communicated. Should it only be confidential if one is being seen by a qualified psychiatrist or a qualified psychologist? Others are engaged in counselling who may have specific training in counselling individuals who have been the victims of a sexual assault but they may not be formally psychiatrists or psychologists. There would have to be clarity as to with whom communications should be regarded as confidential. In the context of this particular revision, reference is made to a person who has undertaken training or study. This does not mean the person is actually qualified. What if someone has undertaken training or study and is so poor he or she does not obtain a professional qualification? Does this make the person an individual with whom one can have a privileged conversation? It also refers to a person who has experience which is relevant to the process of counselling persons. This is an extremely loose wording and I am not quite sure what this is.