Diarmuid Wilson (Fianna Fail) | Oireachtas source

Amendment No. 41 is similar to amendment No. 39 which Senator van Turnhout so eloquently outlined her reasoning for putting down. This amendment stipulates that a victim's consent to a waiver only counts if he or she has had an opportunity to seek and consider independent legal advice first. Otherwise, it is not properly informed consent.

On behalf of my colleague, Senator O'Donovan, for whom I am taking this and who is unfortunately indisposed at present, I thank Ms Caroline Counihan, the legal policy director of the Rape Crisis Network in Ireland, for the information that she gave us on this amendment. If the Cathaoirleach does not mind, I will refer to what she has stated about it. She states that there is no statutory entitlement to legal advice for complainants before a prosecution has been started, as Senator van Turnhout has already alluded to. She states, for example, and most importantly, at the critical and, for many, traumatic stage that a victim gives his or her formal statement of complaint to An Garda Síochána, it routinely happens that the investigating member of An Garda Síochána puts a form of consent to disclosure of all personal documents, including medical reports and notes, as well as counselling notes, in front of the complainant for signing. Ms Counihan adds that if the complainant has not taken legal advice at her or his own expense or contacted a rape crisis centre and asked for legal advice pro bonothrough the centre, or is not accompanied by a support person, she or he is unlikely to provide the consent at this stage which is fully informed as to the consequences of each option. While it is entirely fair and correct to state that most gardaí go to great lengths to ensure that the complainant understands each set of consequences, it is the view of Ms Counihan that such advice is not and cannot of its nature be entirely independent. Therefore, when down the line the man comes in for the counselling notes the complainant generally finds that this consent is used as justification for the hand-over of confidential counselling notes although it was signed in a situation where the attention of the complainant was entirely elsewhere, which is understandable, and where she or he may not have been given to understand that it was possible to ask for time to reflect and seek independent legal advice on whether or not to sign the consent forms.

I would ask the Minister to look favourably upon this amendment and amendment No. 39 of my colleague, Senator van Turnhout, for the reasons I outlined.