Dáil Éireann Debate, Tuesday - 21 March 2023
1044. Deputy Bríd Smith asked the Minister for Justice if he can clarify when and if Ireland will ratify the UNCRC second optional protocol on children, child prostitution and child pornography; when and if the State will act on Article 19A, the provision dealing private counselling therapy records in relation to a victim of sexual abuse; if these are made available to the accused abuser; and if he will make a statement on the matter. [12326/23]
Amharc ar fhreagraThe Government is firmly committed to ratification of the Second Optional Protocol to the UN Convention on the Rights of the Child.
In consultation with the Office of the Attorney General, several legislative measures have been implemented which were necessary to ensure that Ireland is in compliance with the obligations of the Optional Protocol. Enactment of the Criminal Law (Sexual Offences) Act 2017 and the Criminal Justice (Victims of Crime) Act 2017 were significant steps on the pathway to the ratification of the Optional Protocol.
Further smaller legislative amendments relating to the extra-territorial jurisdiction requirements under Article 3.1 will ensure that the State is in compliance with certain outstanding aspects of the Protocol. These amendments are included in the General Scheme of the Criminal Justice (Sexual Offences and Human Trafficking) Bill 2022, which underwent pre-legislative scrutiny in December. The Report on Pre-Legislative Scrutiny by the Oireachtas Joint Committee on Justice was published on 8 March and can be found at www.oireachtas.ie/en/committees/33/justice/. The Report is being reviewed by the Department and all recommendations therein are being carefully considered as drafting of the text of the Bill is finalised.
I hope to secure government approval to publish the text of the Bill in the coming months after which it will be introduced into the Oireachtas. Once enacted, Ireland should be in a position to ratify the Second Optional Protocol.
Protecting and supporting victims of sexual violence is a key 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 was addressed as part of the O’Malley Review of Protections for Vulnerable Witnesses in the Investigation and Prosecution of Sexual Offences. The review recognises the complex legal challenge of striking an appropriate balance between ensuring an accused person’s right to a fair trial and the victim’s right to personal privacy in respect of counselling records.
The O'Malley review notes that this issue has been addressed in Ireland by Section 39 of the Criminal Law (Sexual Offences) Act 2017, which inserted a new section, 19A into the Criminal Evidence Act 1992. This new section which entered into force on 30 May 2018, permits an accused person (or, in certain circumstances, the prosecutor) to make an application to the trial court for the disclosure of counselling records and it sets out the criteria according to which the court should reach a decision on the matter.
The O’Malley review recommends that the existence of this legislation 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.
Recommendation 5.6 of Supporting a Victim's Journey, which is a detailed roadmap for giving effect to the O'Malley recommendations, states that 'it is important that victims should be aware of their right to object to the disclosure of counselling records and this will be brought to the attention of victims and any persons who are advising them by the DPP (including via NGOs) An Garda Síochána and the Legal Aid Board. I am assured that the relevant statutory agencies are complying fully with this recommendation.
In addition, the legislation on preliminary trial hearings, the Criminal Procedure Act 2021, was signed into law by the President on 24 May 2021 and have been available since Feb 2022 in the Central Criminal Court. Objections to disclosure of counselling records at preliminary trial hearings stage will significantly improve the trial process for sexual offences so that victims are less likely to be subject to stressful delays after preparing themselves mentally for trial.
There are two more relevant actions contained in Supporting a Victims Journey, namely recommendations 5.7 and 5.8. Giving effect to these recommendations will require changes to existing legislation, as do a number of other recommendations.
The Criminal Justice (Sexual Offences and Human Trafficking) Bill which will be published later this year will implement the O’ Malley review recommendations on:
- Extending victim anonymity to further categories of victims
- Providing for extended anonymity for accused persons
- Updating the definitions of ‘published’ and ‘broadcast’
- Exclusion of the public
- Repealing provisions for sentences to be delivered in public
- Legal representation for victims
On the issue of disclosure, that is a matter for the courts which are, of course, independent in the exercise of their function.
