I move:
That leave be granted to introduce a Bill entitled an Act to amend the Criminal Evidence Act 1992 in the interests of balancing the right to privacy, the right to healthcare and the functioning of the criminal justice system, to prohibit the disclosure of counselling records in criminal proceedings in criminal trials for sexual offences; and to provide for related matters.
I welcome survivors, therapists and relatives of victims to the Gallery to hear this.
Sexual violence and abuse are deeply traumatic for victims and survivors. The impact can be wide-ranging and life-changing. It can be a root cause of mental health problems, eating disorders, self-harm and suicidality. It can affect family and personal relationships, the ability to work and long-term educational attainment. For many, counselling and therapy provide a vital means of working through the trauma, supporting to find a route to regain control of their lives. It is therefore bizarre that we have to table a Bill to eliminate something which is potentially preventing people from seeking counselling, namely the therapy records of a plaintiff who goes to court being accessed by the defendant and their legal team.
The context of this is that we have an epidemic of gender-based violence, acknowledged by the WHO, the UN and so many other agencies as being the biggest threat to women, girls and the LGBTQI community, yet it is the lowest reported and prosecuted crime. Among the reasons is the brutal misogynistic courts system we have, a patriarchal system that is full of victim blaming, rape myths and so on. Survivors tell us that the retraumatising nature of the courts is a real problem, and we have to listen. That their private thoughts and feelings could be used against them is just incredible.
Sarah, a long-time campaigner on this issue and a survivor of an incredibly violent attack, said that in many ways she found her trial more traumatic than the attack. Can Members imagine saying that? She said she would take the attack again before having to set foot in a courtroom. The most heart-breaking obstacle of all, she said, was the seizure of her counselling records. After her body being violated, our courts of justice are allowing a second violation. In fact, they ordered a second violation of her mind. Another survivor, Hazel, said her thoughts, her fears, her shame, her turmoil, shared during the safety of her counselling sessions, could be shared with the person who did that to her. Another survivor, Paula, asked of these sessions that are supposed to be confidential, had he not done enough? He attacked her that night. He invaded her body. She tried to take her life. He is reading this. If he went to counselling, his notes would not be requested.
A therapist supporting this Bill made the point the policy of note sharing can discourage the healing journey of survivors and make note taking a defensive process for therapists rather than keeping a clinical purpose. Now is the time to change this. We cannot delay any longer. A survivor of gender-based violence who is very well known but whom I do not want to name in this case said even the thought of having these notes accessed by her abuser was enough to cause trauma. We do not want survivors fighting on a case-by-case basis to have their notes excluded. This needs to be made privileged. We need to adopt privilege and protection for counselling because this malevolent tactic is being used more and more since 2018. The onus is now being put on victims to give their notes. If they do not, they are told their trials will be delayed.
What evidence is actually being procured from a therapy note? None whatsoever. They are third-party notes. They are not even from the person. They are made by a therapist. They should not even be inadmissible. What about privacy and what about healthcare? Article 38.1 of our Constitution talks about the right to "due course of law", so a fair trial is very important. I argue nobody has ever pointed out anything of evidential value taken from a counselling note. This is misogyny, it is medieval and it has to stop.
Now is the time for this. Last year, the then Minister for Justice said she would deal with it. She said she wanted this changed and that "I don’t want this to be a feature in court cases", but here we are a year later. We have also had Simon Harris, Micheál Martin and so many others saying it, but the most recent is the DPP, who made a very encouraging and important statement welcoming a Supreme Court judgment that rejected the idea disclosure must be given when evidence is "potentially relevant". This is not required for a fair trial. We need to adopt this Bill and we need to do it now so more women, more victims, do not have to go through this trauma.
