Barry Heneghan (Dublin Bay North, Independent)
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462. To ask the Tánaiste and Minister for Justice and Equality how trials involving allegations of sexual abuse, including cases concerning children, were conducted prior to the introduction of section 19A of the Criminal Evidence Act 1992, which allows access to private counselling or therapy records of victims by the accused; if he has a view on the differences in trial practice before and after the enactment of section 19A; and if he will make a statement on the matter. [28562/25]

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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In a criminal trial, all relevant evidence must be disclosed to the defence. The Supreme Court has held that “the prosecution are under a duty to disclose to the defence any material which may be relevant to the case, which could either help the defence or damage the prosecution, and that if there is such material which is in their possession, they are under a constitutional duty to make that available to the defence”. Therefore the general rules of disclosure cover the release of counselling notes.

An effective disclosure regime is an essential element of a fair system of criminal justice. The need for disclosure is also recognised by the European Court of Human Rights as a fundamental aspect of the right to a fair trial. The disclosure of counselling records is a complex and highly sensitive balancing of individuals' rights, the victim’s right to personal privacy and the accused person’s right to a fair trial.

In 2017, in light of the risk of re-traumatisation of victims of sexual offences, the law was reformed by the insertion of section 19A into the Criminal Evidence Act 1992. This was enacted to strike a balance between conflicting rights, by creating a new process whereby a victim can consent or object to the disclosure of their counselling notes. In instances where the victim objects to disclosure, the trial judge decides whether the records should be released. In doing so, the judge must take into account the right of the victim to privacy and the risk of re-traumatisation, while ensuring the constitutional right of an accused person to a fair trial, including access to any material of evidentiary value, is upheld.

Regrettably, this provision has not operated in practice as intended. I have therefore secured Government approval for legislative measures to ensure that counselling records are only released where the Court decides that they contain material relevant to legal proceedings. The General Scheme of the Criminal Law and Civil Law (Miscellaneous Provisions) Bill 2025 provides for the amendment of the existing legislation by requiring that a disclosure hearing takes place in all cases, removing the provision that allows for this to be waived. The amendment will ensure that the original intention of the legislation will apply, mandating courts to assess the relevance of any counselling records through a judicial process.