Aodhán Ó Ríordáin (Dublin North Central, Labour) | Oireachtas source

Section 33 regulates the disclosure of the content of third-party counselling or therapy records in sexual offence trials. The disclosure of counselling or therapy records in the context of criminal proceedings, especially with regard to sexual violence, touches on several sensitive issues and balancing of rights. The right to a fair trial for an accused must be respected. However, so too does the right of the victim not to feel further violated in the criminal justice process. This section establishes a process for the disclosure of such records, where appropriate.

Since the publication of the Bill, the Minister for Justice and Equality has received several submissions proposing changes to this section. Notably, submissions from the Ombudsman for Children, Rape Crisis Network Ireland and Q4, representing the child sexual assault units in Temple Street and Crumlin children’s hospitals, are being considered by officials in the Department of Justice and Equality. The necessary balancing of fundamental rights involved in the disclosure of sensitive personal records requires careful consideration from both a legal and operational perspective. The Minister expects to be in a position to address several concerns raised about this section by way of amendment as the Bill progresses through the Houses. For example, the Minister intends to accept one proposal raised in the submissions of Q4 and Rape Crisis Network Ireland, namely the removal of all references to the competence of the complainant or witness to testify, as she is persuaded that counselling records are not relevant to competence.

With regard to the specific amendments proposed, I thank the Senators van Turnhout, O’Donovan, Cullinane, Ó Clochartaigh and Reilly for their amendments. The Minister fully appreciates the points they have made.

Senator van Turnhout’s amendments Nos. 35 and 43 propose a separate disclosure regime to apply to children. The Minister is concerned that difficulties would arise in applying two regimes simultaneously but will consider the particular protections applying to children as part of the review of this section.

As to amendment No. 36, there are several difficulties with the definition of “relevant record” proposed. The proposed amendment deletes the reference to the prosecutor having sight or knowledge of the record, making it almost impossible to identify which records would be subject to a disclosure application and pre-trial hearing. Requiring, by definition, that the record has some probative or evidential value also raises the question of how this can be determined in advance of a pre-trial hearing and may create a presumption in favour of the disclosure of the record at a hearing. These are matters appropriate to the hearing.

Amendments Nos. 37 to 41, inclusive, seek changes to the list of assertions in section 33(4) which, on their own, will not establish the relevance of a record, and the factors in section 33(9) which the court must consider in determining whether to disclose a record. These are issues which have also been raised in the submissions the Minister has received and the two subsections in particular are being reviewed.

The Minister is minded to take on board some of the changes proposed. However, it is important to emphasise again that a careful balancing of rights is involved to ensure the disclosure provisions are constitutionally sound.