The Attorney General has advised that a total blanket ban on disclosure of counselling records risks infringing the constitutional right to a fair trial and would likely lead to legal challenges, with convictions potentially being quashed as a result.
That said, I am advancing provisions to ensure that a victim’s counselling records can only be disclosed in court under very specific circumstances, ensuring that criminal proceedings take into account the victim’s constitutional right to personal privacy, acknowledging the important role of counselling in victims and survivors’ recovery, and not only the accused person’s constitutional right to a fair trial.
The law in this area was substantially reformed in 2017 by the insertion of section 19A of the Criminal Evidence Act 1992, creating a process designed to strike this balance by limiting disclosure to cases where the court finds that the evidential value in the record is such that the interests of justice require its disclosure. However, it appears that in practice this provision has not operated as intended.
In May, I secured Cabinet approval for the drafting of the General Scheme of the Criminal Law and Civil Law (Miscellaneous Provisions) Bill 2025. The General Scheme was before the Oireachtas Committee on Justice, Home Affairs and Migration for pre-legislative scrutiny on the 30th of September, where the proposed amendments to the current legislative framework governing the disclosure of counselling records in criminal trials was extensively discussed, together with other provisions. The Committee’s Report was published on 13 November, and on 16 December, I secured Government approval to publish the Bill and introduce it to the Houses of the Oireachtas.
The proposed legislation includes measures to ensure that counselling records are only disclosed where a court decides that they contain material that is genuinely relevant to the trial, taking into account the rights of victims. To achieve this, it amends the existing legislation by requiring that a disclosure hearing takes place in all cases, removing the provision that allows for this vital judicial oversight to be waived.
In each case, a judicial determination will be required before counselling records can be disclosed, which will take into account factors such as whether this step is actually necessary for the accused to defend the charges against them in the particular case, as well as the need to protect the privacy of victims and to vindicate the public interest in encouraging victims of sexual offences to seek counselling.
The deletion of subsection (17) will ensure that the framework under section 19A operates as originally intended, striking a balance between the victim’s rights and the accused person’s right to a fair trial. It is anticipated that this reform will copper-fasten the central role of judicial oversight in ensuring that counselling notes will be disclosed only in cases where the interests of justice require it, taking into account the rights of the victim and the crucial importance of counselling and therapy as part of a victim’s process of recovery.
Once enacted, the operation of the legislation will be kept under review, as is the case with all criminal legislation, to ensure that it is achieving its intended purpose. Additional changes to the current legislative framework around disclosure of counselling notes are also under consideration within my Department and will be brought forward at the earliest possible opportunity.