Dáil Éireann Debate, Wednesday - 3 May 2023
297. Deputy Bríd Smith asked the Minister for Justice if he has plans to amend Article 19A of the Criminal Law (Sexual Offences) Act 2017, which allows for the provision of counselling therapy records of a victim of sexual abuse to be made available to the accused abuser; and if he will make a statement on the matter. [20609/23]
Amharc ar fhreagraProtecting and supporting victims of sexual violence is a key priority for me and for my Department and I am keenly aware of the devastating physical and emotional consequences such crimes have on victims.
The Department of Health is leading on a review of the issue of disclosing counselling records on foot of an action in the Third National Strategy on Domestic, Sexual and Gender Based Violence (DSGBV).
The issue is a complex one and the purpose of the Health-led review is to look afresh at whether the legislation strikes the right balance or whether there is a case for strengthening the victim’s right to privacy.
The accused’s right to a fair trial entails a right to disclosure of any material that may strengthen their case or weaken that of the prosecution. Counselling records might contain such material, and on that basis it would not be legally possible to exclude counselling records from release in all cases. The accused’s right to a fair trial also places the onus on the prosecution to disclose all relevant information.
The Health-led review will look at whether or not the correct balance is struck between these conflicting rights, and, as part of that, will consider if a judge should examine the counselling records in all cases to decide if there is relevant information of evidential value that should to be disclosed to the defence.
The Deputy may be aware that the O’Malley Review of Protections for Vulnerable Witnesses 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.
To further support and protect victims of sexual crimes, other work is underway. The Criminal Law (Sexual Offences and Human Trafficking) Bill, which will be published later this year, will implement other legislation-related recommendations arising from the O’Malley Review, 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
The Deputy may also be aware that the Criminal Procedure Act 2021 introduced Preliminary Trial Hearings to address certain matters before a trial begins, such as the disclosure of counselling records. The use of Preliminary Trial Hearings will help ensure a more efficient court process for sexual offences victims.
