2026-05-14

8. Deputy Ruth Coppinger asked the Minister for Justice, Home Affairs and Migration considering the rights of victims and survivors of sexual offences, if he will consider a ban on the use of counselling records as evidence in criminal trials; and if he will make a statement on the matter. [35579/26]

As the Minister knows, the issue of counselling notes being used in gender-based violence trials has been a massive issue for survivors. Even the Group of Experts on Action against Violence against Women and Domestic Violence, GREVIO, has talked about this being an instrument of secondary victimisation. The Minister was forced to amend his own amendments to legislation in this regard because he came back with something that just was not satisfactory. I have only caught sight of the amendments he is proposing, which will be a hearing on a real risk of an unfair trial in the interests of justice or where it is relevant to an issue in a trial. There will still be the chilling effect for survivors and raw records being passed on to judges and defence teams.

I thank the Deputy very much for her question. I am committed to trying to ensure that the situation that operates at present, where counselling notes are routinely provided to the legal team of an accused, comes to an end. I brought forward proposals to the version of the miscellaneous provisions Bill on Second Stage and I am going to come forward with even further amendments in terms of that legislation. I have listened to what people in this House and some of the important stakeholders have said, and I am going to introduce a statutory form of non-disclosure for counselling notes. The Deputy’s question asks that I should ban them completely. In listening to people, be they in this House or stakeholders, I also have to listen to the Attorney General and the advice I have received. The unambiguous advice I have received from the Attorney General and the advice that important stakeholders in this area have received is that a total ban on counselling notes would be unconstitutional. It would be very detrimental to the interests of survivors of sexual abuse if I was to introduce legislation that got me some plaudits here but was struck down by the courts within a year as being unconstitutional, so I will not do that. However, the proposals I am bringing forward will create a statutory form of privilege that will ensure that the only time information or documentation evidencing a counselling note is provided is if that note evidences something that is in the interests of justice and without it, there would be an unfair trial. I cannot categorise a group of evidence and say we can never look at that, which is what a total ban would effectively do. That would be unconstitutional. What I am introducing is that there will have to be a hearing and a judge will have to look at it. The only time that information will be disclosed is if a judge, having looked at it, says that is relevant to the guilt or innocence of the accused.

I appreciate that the Minister had to go further than he was originally intending. He says he listened but he did not listen, for example, to the Dublin Rape Crisis Centre. I spoke to its representatives yesterday and cannot believe that the Minister had not even met them before tabling his amendments. This is the front-line organisation dealing with survivors and it did a huge amount of work and put forward a very detailed proposal. In that context, I cannot accept the suggestion that the Minister listened. The Minister says that it would be unconstitutional but we could argue that point because there are other constitutional rights that do not seem to be taken into consideration here, such as the right to privacy, to healthcare and so on. If our Constitution allows the damaging and harming of survivors, then there is something wrong and the Minister should come forward with a proposal for a referendum. In Tasmania, for example, they have managed to outlaw this practice and notes can only be handed over with the person's consent. This takes into account the fact that some people may want to use their counselling notes. It can be done if there is a will. What the Minister is bringing in is similar to what is in Canada and it has not really reduced requests for access to counselling notes.

What I have to do here and what the House has to do, ultimately, is weigh up an area where there are conflicting rights. On the one hand, there is the right to privacy, which is an absolutely essential right, and on the other hand there is the right to a fair trial, which is also an essential right. Neither right is absolute but I have to ensure that I balance both of them. The legislation I am bringing forward and the amendments I have tabled will significantly tilt in favour of the right to privacy but it cannot make it absolute. I hear what the Deputy is saying with regard to the Dublin Rape Crisis Centre. It sent a submission to me, which I did consider. I have engaged with people across the board but, ultimately, I have to do what I believe is in the best interests of the public and survivors while also recognising that there has to be protection for a fair trial. The proposals I am bringing forward will achieve that and, if this legislation is enacted, we will be in a position a year or two later where it will be much more seldom that counselling notes are disclosed in criminal trials.

The right to a fair trial includes the complainant as well. Does the Minister agree? I am assuming he does but that is never factored in. Gender-based violence is becoming a completely unpunished offence in this and other countries. That is the reality. Only 5% of people disclose to anyone or report it to gardaí. Why does the Minister think that is the case? It is because things like this remain on the books and are routinely used in our courts. The Minister said he listened but one would think he would at least meet the group to discuss its proposal, into which it put a lot of work. Has he listened, for example, to the therapist who had her front door knocked on by four gardaí looking for counselling notes? How is this in any way just? The Minister used the phrase "best interests" of survivors. He could have laid down a much higher bar than he did. For example, it is very broad to say "interests of justice" or "an issue in a trial". That can be interpreted in so many ways and it is not dealing with the central issue, which is that people are having to choose between therapy and a trial. Nothing is going to change with this proposal.

I disagree with the Deputy when she says that sexual offences are unpunished offences.

They are.

That is not correct.

Only 5% report.

Every day of the week we read in our newspapers about people - men - being convicted of rape and serious sexual offences. That is happening consistently within the criminal justice system. Part of the consequence of that is that it should provide, and I hope it does, strength to other survivors and victims of sexual offences to know that if they come forward, they will get justice. I also know that An Garda Síochána is much more effective now in dealing with these complaints than it was ten or 15 years ago. My job is to ensure that I provide as much support as possible for individuals to travel through the criminal justice process. I also have to take into account, however, the requirements of a fair trial. I agree that a trial requires consideration of interests. Of course, the interests of survivors, victims or complainants in a trial must be prioritised but I cannot completely negate somebody who is being accused. If there was a person whose political views Deputy Coppinger agreed with-----

The Minister obviously does not understand the importance of this issue.

-----who was being prosecuted, she would be the first to criticise conditions that made a fair trial not possible.