307. Deputy Ruth Coppinger asked the Minister for Justice, Home Affairs and Migration if he will publish the advice that he has received in relation to the constitutionality of the ban of a use of counselling notes in a criminal trial as evidence; if the rights of complainants were considered in a balance with the rights to a fair trial; and if he will make a statement on the matter. [53925/26]

The issue of the disclosure of counselling records is a complex and highly sensitive balancing of individuals' rights.

On the one hand, there is the victim’s right to personal privacy and on the other, the accused person’s right to a fair trial. The accused’s right to a fair trial entails a right to disclosure of any material that may strengthen the defendant's case or weaken that of the prosecution. It also places the onus on the prosecution to disclose all relevant information. If the accused’s right to a fair trial is breached, then the prosecution may be compromised or the conviction quashed.

The law in this area was substantially reformed in 2017 by the insertion of section 19A of the Criminal Evidence Act 1992: revisedacts.lawreform.ie/eli/1992/act/12/section/19A/revised/en/html

This was enacted to strike a balance between conflicting rights, by creating a new process whereby a victim could consent or object to the disclosure of their counselling notes. In instances where the victim objects to disclosure, a disclosure hearing is held, at which s/he is legally represented by a solicitor or barrister engaged by the Legal Aid Board.

At the hearing, the trial judge decides whether the records should be released. In doing so, the judge must take into account the right of the victim to privacy and the risk of re-traumatisation, while ensuring the constitutional right of an accused person to a fair trial, including access to any material of evidentiary value, is upheld.

Despite the intention of the legislation to provide for a procedure that balances both rights, it appears that in practice this provision did not operate as intended and records have been routinely disclosed.

My Department has engaged in extensive stakeholder consultation on this issue, including with the Office of the Director of Public Prosecutions, An Garda Síochána, the HSE, Tusla and civil society organisations including Dublin Rape Crisis Centre and Rape Crisis Ireland. There was consensus from stakeholders that large volumes of often irrelevant personal material have routinely been sought in sexual offence trials, to the significant detriment of a victim’s right to privacy.

Legal advice has been clear that a blanket ban on counselling records would not be compatible with the Constitution. Accordingly, the policy rationale underpinning the proposed amendments is to restrict the disclosure of counselling records and other categories of records containing sensitive personal information to the maximum extent possible within constitutional parameters, cognisant in particular of fair trial rights under Article 38.

Regarding the publication of the legal advice on the constitutionality of the ban on counselling notes, any legal advice provided by the Attorney General’s Office is subject to legal privilege and therefore cannot be disclosed.

The Criminal Law, Civil Law and Defence (Miscellaneous Provisions) Bill 2026 completed all Seanad stages on 2 July.