A complete ban on the use of counselling notes in criminal trials would be unconstitutional but under new legislation their non-disclosure would be the “default position”, according to the Minister for Justice.
Jim O’Callaghan acknowledged calls for an outright ban on the use of counselling records in trials. This was “well-intentioned”, he said. “And I fully sympathise with victims and survivors who have deeply-felt views in this matter.”
However, he said the Attorney General’s Office had advised a blanket ban on the disclosure of counselling records “is not compatible with the Constitution. I cannot seek to introduce legislation that ignores this fundamental reality.”
Current legislation has resulted in complainants in cases of sexual crime being put under pressure to waive their right to a disclosure hearing when defendants seek access to their counselling records.
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As a result, records are “routinely released without judicial oversight”. The Criminal Law and Civil Law (Miscellaneous Provisions) Bill, which Mr O’Callaghan introduced in the Dáil, deletes the waiver provision.
“This means there will be a hearing in all cases, where the complainant is legally represented, and where the defence must make a compelling case that disclosure is required,” he said.
He will introduce a presumption of non-disclosure. “The default position will be that counselling notes are not to be disclosed.”
The provision is one of a wide range of measures in the Bill including: allowing prison officers use pepper spray; remote court hearings; obliging courts to consider community service orders instead of prison sentences of up to two years; a permanent regulatory system for outdoor seating for pubs and restaurants; and a ban on “sex for rent”.
The Minister will also, at committee stage, introduce an amendment to expunge convictions for same-sex activity handed down before homosexuality was decriminalised in 1993.
The Opposition sharply criticised the inclusion of such a diverse range of issues. Sinn Féin justice spokesman Matt Carthy said Miscellaneous Bills should be used “for limited and technical changes rather than a large range of complex issues”.
Mr Carthy, chairman of the Oireachtas justice committee which scrutinised the Bill, including the provision on counselling notes, said they had listened to victims and survivors of sexual crime.
The committee called for a complete ban on the use of counselling notes and professional mental health bodies also called for an end to the practice.
“We all know it is wrong and unacceptable to add to the trauma of victims and survivors,” Mr Carthy said.
Labour justice spokesman Alan Kelly said bringing a tool like pepper spray into the prison service is not good practice and is “creating a huge amount of risk”. There had been no analysis in the form of risk assessment and Mr Kelly said the Minister was not dealing with the prison issue. “The conditions of the prisons in our country are an absolute disgrace to successive governments.”
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Fianna Fáil TD Paul McAuliffe defended the legislation and said “a Bill of this nature is often about trying to get provisions into law as quickly as possible”.
Social Democrats spokesman Gary Gannon criticised the Minister’s plan to introduce a committee stage amendment to grant An Garda Síochána power to oblige people to remove face coverings in public.
He said gardaí already have extensive powers to deal with “threatening, intimidating and abusive behaviour” and the question was whether such powers are “necessary, proportionate and legally sound”.
Solidarity People Before Profit TD Ruth Coppinger hit out at the provisions on the use of counselling notes. She said “priests are not compelled to outline at trials what has been said to them in the confessional. There is Cabinet confidentiality, and journalists’ sources are confidential. I realise a person might not have full privilege, but there is full or partial privilege in all of these cases.”
Ms Coppinger said the Minister talked about balance. “There is no balance. Sexual violence is nearly an unprosecuted crime. That is the reality.”
