Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

It is my intention, for the purpose of clarity and on foot of legal advice received, to rename the records falling within the scope of this section as "counselling records" rather than "relevant records," but otherwise to retain the existing definition of the records. The point of the definition is to ensure that any "counselling record" of which the prosecutor is aware and which the accused seeks to have disclosed is protected by the statutory disclosure regime.

I will be proposing the deletion of subsection (4). This would be one of a number of amendments with the aim of clarifying and simplifying the scheme in general and, in particular, the test in subsections (9) and (10) under which a counselling record may be disclosed.

As currently drafted, the test is twofold within subsections (9) and (10). The list of factors that must be considered make it clear that the pertinent issues are not merely relevance but rather the probative value of the record and the extent to which the record is necessary for the accused to defend himself or herself. This is a much higher threshold than relevance and is only confused by the inclusion of relevance as a determinative part of the test. These factors must be weighed against the complainant's right to privacy and the public interest in encouraging victims to come forward to seek counselling and report sexual offences. I intend to add to these factors the risk of harm to the complainant, as was proposed in amendments Nos. 38 and 39.

Under this simplified procedure, the court will be required to consider the factors set out in subsection (9) and on that basis to disclose the records only where it is in the interests of justice to do so. As an additional safeguard, to ensure the constitutionality of the scheme and protect convictions from challenge, a record must be disclosed if failure to do would result in a real risk of an unfair trial. I am hopeful that a stronger, clearer procedure, along the lines I have outlined, will better protect the rights of victims while respecting the fundamental right of an accused person to defend himself or herself. It is clear that considerable thought has gone into the submissions I have received, and I will take a number of them on board.

Amendment No. 39, about which Senator van Turnhout in particular spoke, proposes a separate disclosure regime to apply to children. I appreciate the aim of the Senator's amendment, which is to provide an enhanced level of protection for child victims of sexual offences when it comes to the disclosure of their personal records. However, I am not convinced that the amendment is necessary.

The amendment adds three additional criteria to the factors in subsection (9) which the court must take into account in determining whether to disclose a record. When weighing the relevance of various factors, I do not think it is necessary to differentiate between "probative value" and "substantial probative value," as weighing the extent of the probative value is inherent in the exercise.

The second additional factor relates to the availability of other evidence rendering the record unnecessary, which, as I see it, is already covered by subsection (9)(a), which refers to "the extent to which the record is necessary for the accused to defend the charges against him or her."

The third additional factor proposed by the Senator relates to the risk of harm to the complainant. As I have said, I intend to include this factor for all complainants. For these reasons, I do not believe the proposed amendment is necessary to meet objective she described. The existing provision, when amended, will establish this level of protection for all complainants, which obviously includes children.

Amendments Nos. 40 and 41 refer to legal advice. I have referred this issue to advisory counsel and I will consider it further when I get that advice. A complainant has the right to have his or her own independent agency respected and recognised. The waiver provision in subsection (17) is supportive of a victim who has no difficulty with the disclosure of his or her records. There will obviously be people in that situation. This provision prevents a victim from having to attend an additional hearing on the disclosure of records which he or she is willing to disclose anyway.

A requirement to offer free legal advice to a complainant before he or she can consent to disclose could be seen as an unnecessary intervention in the right of a person to disclose a record relating to them if they wish to do so. If a complainant has no objection to certain of his or her records being disclosed, for expediency or any other reason, the complainant should have the right to do so. They would be some caveats I would enter in response to the Senator's point about getting legal advice before the disclosure of any records.

In any event, I am not convinced that including a requirement to offer legal advice before these rights could be waived would materially alter a person's right to consent to disclose the record. A victim could still disclose the record him- or herself in the absence of legal advice, or agree at any court hearing to the disclosure. I have referred this issue to advisory counsel.