Paul Murphy (Dublin South West, Solidarity)
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54. To ask the Tánaiste and Minister for Justice and Equality if he will amend the Criminal Law and Civil Law (Miscellaneous Provisions) Bill 2025 to provide for a complete ban on the use of counselling notes as evidence in criminal trials. [54200/25]

Paul Murphy (Dublin South West, Solidarity)
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77. To ask the Tánaiste and Minister for Justice and Equality if he is concerned that the potential continued use of counselling notes in criminal trials under The Criminal Law and Civil Law (Miscellaneous Provisions) Bill 2025 will deter victims of sexual violence from accessing counselling; and if he will make a statement on the matter. [54201/25]

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I propose to take Questions Nos. 54 and 77 together.

I am advancing provisions to ensure that a victim’s counselling records can only be disclosed in court under very specific circumstances.

The disclosure of counselling records is a complex and highly sensitive balancing of individuals' rights, and I am committed to ensuring that legislative provisions balance the victim’s right to personal privacy and the accused person’s right to a fair trial.

In May, I secured Cabinet approval for the drafting of the General Scheme of the Criminal Law and Civil Law (Miscellaneous Provisions) Bill 2025. The General Scheme was before the Oireachtas Committee on Justice, Home Affairs and Migration for pre-legislative scrutiny on the 30th of September where the proposed amendments to the current legislative framework governing the disclosure of counselling records in criminal trials was extensively discussed, together with other provisions. Once the Committee’s report has been received, work on finalising the Bill will be prioritised.

The proposed legislation includes measures to ensure that counselling records are only disclosed where a court decides that not releasing them will result in an unfair trial, taking into account the rights of victims. To achieve this, it amends the existing legislation by requiring that a disclosure hearing takes place in all cases, removing the provision that allows for this vital judicial oversight to be waived.

Victims and survivors have made clear that they have felt compelled to agree to waive the disclosure hearing because of fears that not doing so would undermine their credibility as witnesses, and would delay the prosecution of the case.

Therefore, 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.

In each case, a judicial determination will be required before a counselling record can be disclosed. This will take into account factors such as whether this step is actually necessary for the accused to defend the charges against them in the particular case, as well as the need to protect the privacy of victims and to vindicate the public interest in encouraging victims of sexual offences to seek counselling.

The balancing of the right to a fair trial and the right to privacy in this context is necessary and has been acknowledged in recent Supreme Court judgments. The Attorney General has also advised that a total blanket ban on disclosure of counselling records risks infringing the constitutional right to a fair trial and likely lead to legal challenges, with convictions potentially being quashed as a result.

Once enacted, the operation of the legislation will be kept under review, as is the case with all criminal legislation, to ensure that it is achieving its intended purpose.