Protecting and supporting victims of sexual violence is a priority for me and my Department and I am keenly aware of the devastating physical and emotional consequences such crimes have on victims.
The issue of the disclosure of counselling records is a complex one. On the one hand, there is the victim’s right to personal privacy and on the other the accused person’s right to a fair trial. The accused’s right to a fair trial entails a right to disclosure of any material that may strengthen the defendant's case or weaken that of the prosecution. Counselling records might well contain such material. The accused’s right to a fair trial also places the onus on the prosecution to disclose all relevant information.
To strike a balance between these conflicting rights section 19A of the Criminal Evidence Act 1992 was enacted. Whilst section 19A permits an accused person to make an application to the court for the disclosure of counselling records, it also allows the victim to object to the disclosure of their counselling records. If a victim objects to the disclosure, the judge will examine the counselling records and decide if there is relevant information to be disclosed to the defence. The victim will be legally represented at a disclosure hearing and is entitled to have a solicitor or barrister engaged by the Legal Aid Board to act on their behalf.
Even where a court orders disclosure, it may impose any condition it considers necessary in the interests of justice and to protect the privacy of any person. These include a condition that part of the record be redacted, that the record not be disclosed to any other person without leave of the court, that no copies be made of it, that the record be viewed only at the offices of the court, that the record be returned to the holder, and that it be used solely for the purpose of the criminal proceedings.
Similarly, if a victim does not object to the disclosure of their counselling records, the disclosure is still made under strict conditions. The prosecution requires undertakings from the defence as to how the records will be held and used. For example, the records may not be copied or distributed to anybody else, they may be consulted only in certain settings, and they must all be returned to the Office of Director of Public Prosecutions.
The O’Malley Review of Protections for Vulnerable Witnesses, completed in 2020, did not recommend any changes to section 19A . It recommended that the existence of section 19A be brought to the attention of victims and any persons advising them so that victims are aware of their right to object to the disclosure of counselling records. Relevant statutory agencies are complying fully with this recommendation.
Further work is underway in my Department to support and protect victims of sexual crimes. I intend to publish the Criminal Law (Sexual Offences and Human Trafficking) Bill this month which will implement more O’Malley Review recommendations, including:
- Extending victim anonymity to further categories of victims
- Exclusion of the public from sexual offences trials
- Repealing provisions for sentences to be delivered in public
- Extending legal representation for victims.
