Jim O'Callaghan
Dublin Bay South · Fianna Fáil · Ireland
“This relates to section 69 of the Bill as passed by Dáil Éireann, which amends Schedule 5 to the Social Welfare Consolidation Act 2005 to add the Courts Service to the Schedule.”
“The first four amendments in this group are minor drafting corrections. They corrected the wording in four places so that the Bill reads consistently. It is changing the word "references" to "a reference". They make no change to the substance or effect of the Bill.”
“The ARP scheme was introduced in July 2022 to recognise the generosity of members of the public who opened their houses, whether in their entirety or through the provision of a room, at their own expense to provide shelter to people displaced by the Ukraine war. The Department of Social Protection administers the scheme on my behalf.”
“I have no doubt it will be challenged, and I have to be able to convince a court, if it is being challenged, that this legislation weighs up conflicting interests and recognises there is a mechanism for somebody who has reformed himself to get off the register.”
“The scheme has been a lifeline for people from Ukraine displaced by the conflict, given high rental market rates and scarcity of rental accommodation.”
“I thank the Leas-Cheann Comhairle in the first instance for presiding over these Stages of the legislation. I am very pleased that this legislation has been enacted. I want to thank a few people very briefly. I thank Deputy McAuliffe for introducing me to Jason Poole. I thank Senator O'Loughlin for her work on this issue in the Seanad.”
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“However, you could be convicted of a similarly serious offence by the Circuit Court in a courthouse down the country and, because there is no journalist in the courthouse, nobody would know about it. Senator Ruane has suggested that the section be amended to expressly refer to "safety, and the best interests of a child". However, the Bill already includes within it the determining factor, that is, whether it is in the interests of justice. When considering whether the interests of justice require the omission of a residential address, I have no doubt that the judge will weigh up all of the factors of the particular case. This will necessarily include the circumstances of the convicted person, of the victim and of any children connected to the case.”
“In many instances, the addresses are published and people are aware of them. I am not aware of incidences of people being subject to vigilantism, to use the Senator's words. I do understand that could happen but it could happen as things are at present. One of the motivating factors behind the legislation is the recognition of the inconsistency that operates in respect of certain offences being reported and other offences not being reported. It is certainly the case that if you are a well-known person, your case will be reported on. It is also the case that if your case is tried and your conviction takes place in the Criminal Courts of Justice in Dublin, there is a greater likelihood of it being reported because of the constant presence of journalists there.”
“I thank Senator Ruane for putting down the amendment. Consideration has obviously been given to the extent to which the address of the offender, the convicted person, should be published. That is why it is contained within a separate subsection, namely the proposed section 40A(6). As the Senator can see, the court is to be given a discretionary power to omit the residential address. The factor to be taken into account in determining whether to include or omit the residential address is the interests of justice. On the issues Senator Ruane has highlighted, we have to consider the situation at present if there is a journalistic report in a newspaper of a person being convicted of a very serious criminal offence against an intimate partner. At present, there is no preclusion or prohibition on the publication of the address.”
“I therefore believe that the register as currently structured strikes an appropriate balance between ensuring effective identification of offenders and safeguarding personal data while also remaining fully capable of achieving its intended objectives. I will obviously keep it under review, however. If it needs to be expanded after enactment, I will certainly give consideration to other factors.”
“4, which proposes to include the court record number associated with the proceedings, I am not persuaded that this information would materially assist in identifying an offender. Court record numbers are highly specific administrative references and are unlikely to be readily available or known to members of the public who are seeking to verify an individual's identity through the register. While I will obviously keep this under review, overall, I am satisfied that the combination of the offender's name, age and, where appropriate, residential address, together with the other information necessarily contained in the written judgment, will provide sufficient information to identify an offender accurately.”
“Ultimately, I left it as the age of the person as opposed to putting in the specific date of birth because the departmental officials and I had concerns about the inclusion of a full date of birth, particularly when combined with other personal details such as, potentially, a residential address. The fear was that this could significantly increase the risk of misuse of personal data, including via identity theft, because somebody would have access to a person's name, potentially his or her address and his or her date of birth. I have decided that the person's age will be included. That is very much an identifying factor. It is probably equally as identifying a factor as a date of birth since most people are not aware of individuals' date of birth. On amendment No.”
“We see people covering their faces coming out of court. There is a mechanism whereby they are identifiable. Sometimes, it is in the context of the victims identifying themselves. It is the case that there is a mechanism to ensure that people are known – who they are and what they have been convicted of. It is the case in Ireland that many people share the same name and there are such people from the same townland. I did give consideration to what is being proposed by Senator Harmon – to include the date of birth of the convicted person. At present, what is required is the name, age and residential address, subject to subsection (6), of the convicted person and other particulars of the offence for which the convicted person was convicted, as well as the penalty imposed on the convicted person.”
“I thank Senators Harmon and Cosgrove for putting forward both of these amendments. The purpose of the amendments is to try to ensure that the person who is referred to in the judgment that is published is identifiable. If we look at how things operate at present, it can be quite instructive as to how we should approach this. Part of the reason I am introducing this legislation is because people can be convicted of serious indictable offences in the Circuit Criminal Court or the Central Criminal Court yet nobody is aware of it unless there happens to be a journalist in court. If we take the example, however, where there is a journalist in court, we can see that information is frequently published in newspapers about reports of convictions. The person is identified. Sometimes, their photograph is not available.”
“The purpose of this legislation is to ensure that in circumstances where the unincorporated entity will not give a representative's name or will not nominate an individual to be a representative defendant, the court should step in by directing an individual who will be the nominated representative and defendant. The reason that is a form of justice is that justice does provide that damages are a remedy that are to be payable by a wrongdoer in respect of the offences that were committed by that wrongdoer or for which that entity is responsible for. I will conclude by recognising the important role that survivors play in terms of legislation. I have no doubt that this legislation was inspired by the narrative of survivors. I will be back here considering these matter in the Houses in due course.”
“Where there are circumstances which are apparent that the unincorporated body is aware of the actions of the individual or has reports made to them about the dangerous actions of the individual and they do nothing about it, or, even worse, they move the person elsewhere in the knowledge that these serious allegations have been made, in that context, there is a liability before the civil courts that will fall upon the unincorporated body. In those instances, victims who come before the civil courts who want to institute proceedings should be able to institute those proceedings in a readily accessible manner.”
“That is why, in many instances, it is necessary and appropriate for people to institute proceedings in the civil courts against unincorporated bodies that have a responsibility and liability for the actions of an individual. I know Deputy Bacik is not saying this, but there are many times when people do things on their own and the entity has no responsibility for it. If a member of a political party does something on their own without anyone within the political party being aware of it, the political party should not have responsibility for it.”
“That is the mechanism that this legislation seeks to engage with. Even though an individual may be criminally responsible for the heinous act of sexual assault or rape, there may also be others associated with that individual who have a broader responsibility and a fiduciary duty that results in them have a liability for the actions of that person. That is why, in so many instances, in situations that arise where people are abused and assaulted by persons who are part of an institution, that institution can be held liable if it can be established that the institution did not take the necessary steps to protect individuals who are vulnerable, such as schoolchildren, who are within the responsibility of the person who carried out the criminal act.”
“That is the primary way that liability and criminal responsibility is apportioned and individuals can be held liable before criminal courts for their heinous crimes and attacks upon survivors. In order for that to occur, however, it involves a significant amount of effort on the part of the person who makes the complaint and proceeds and pursues the claim through the courts. We all saw it recently in terms of what happened in another jurisdiction north of the Border recently when you look at the process that had to be gone through in order for the complainants in that trial to achieve justice before the criminal courts. The criminal courts are where justice is provided in terms of the apportionment of criminal liability. However, justice can be delivered and administered through the civil courts.”
“I apologise, as I had to step out for a number of minutes to meet a group that I had a long-standing arrangement with. I thank Deputy Bacik again for putting forward this legislation. As I indicated earlier on, it is important legislation that aligns with Government policy but there are areas in respect of it that I need to give consideration to. I also want to speak in general about how we get justice. It is important from the point of view of survivors that we emphasise and recognise that justice in Ireland can only be delivered through the courts. The courts are there to deliver justice. In the first instance, when people are survivors of sexual abuse or rape, the first port of call, hopefully, is a criminal court where the perpetrator of the heinous crime can be held to account.”
“I recognise its importance. Although this measure may only be necessary in limited circumstances, it is nonetheless a statutory provision that should be in place to enable people to bring proceedings.”
“I was the person who proposed at government on Tuesday that we have a timed amendment. In general, as colleagues will know, timed amendments generally operate for a period of a year but I sought six months in this instance. Having that time period will enable me to get the necessary advice that I require. I assure Deputy Bacik that if there are mechanisms to advance her legislation, I will have no difficulty in advancing them or adopting the Bill and trying to reformulate it if some changes are needed. I conclude by saying that I brought the memorandum to Government seeking approval for this Bill be read a Second Time on this day six months to allow for consideration of the legal and policy implications of provisions of the Bill. I confirm this was endorsed by Cabinet. I thank Deputy Bacik and commend her on the legislation.”
“For the purpose of individuals in the Gallery, a timed amendment means there is a vote on the Second Stage of the Bill, and I am proposing a timed amendment of six months. The effect of that will mean that the legislation will pass Second Stage on the 25 December 2026. It puts a time period on it and ensures that Second Stage will be passed. While that time will pass quickly, it provides my Department and the Office of the Attorney General with an opportunity to consider the complex legal issues identified here. I know Deputy Bacik will be anxious to ensure that this legislation proceeds promptly. Certainly, it will pass Second Stage by the end of the year. During that period, I will have an opportunity to secure further advice from the Office of the Attorney General and internally within my Department.”
“In effect, one of the complicating and complex issues raised and provided for in Deputy Bacik’s Bill is that cases that are, at present, statute-barred would no longer be statute-barred in certain circumstances because of this one-year extension provided to the statute, pursuant to the terms of this Bill. As Deputy Bacik will appreciate, this is a complex legal and constitutional issue. Given the legal policy and constitutional complexity of the issues contained in the Bill and those currently being examined by the interdepartmental subgroup, the views of the Office of the Attorney General were sought again. It indicated that there are significant and complex policy and legal issues that require further in-depth analysis. Deputy Bacik inquired what the reason is for a six-month timed amendment.”
“It is also important to point out, however, as I mentioned earlier, that the Bill raises practical and legal concerns regarding prospective knowledge of awards of damages and issues in relation to the retrospective effect of the legislation, including for cases already initiated and live before the courts. More importantly, the Bill proposes a one-year window outside the limitation period provided for in the Statute of Limitations to enable any proceedings to which the Bill applies to be brought within 12 months of its enactment. It would also appear to revive expired causes of action. Reform of the Statute of Limitations would have implications for the State, not just the cohort identified in the Bill.”
“However, the difficultly that arises, which is inspiring Deputy Bacik’s Bill, is when it comes to an identity such as a religious order. To be frank, it is implausible to try to institute proceedings against every single member of that religious order, particularly when there is a requirement for the purpose of proceedings that court papers, whether plenary summons or statements of claim, are served on each defendant. It is clearly the case that there is a huge advantage in having a statutory mechanism available that allows the court to nominate an appropriate individual as the nominated defendant.”
“The Bill provides for the nomination of a proper defendant by an unincorporated body or, if no such nomination is forthcoming for the court, to appoint a proper defendant. The apportionment of direct liability on individuals, who have no knowledge of an allegation or may not have been associated with the relevant body at the time of the alleged harm, raises serious issues regarding constitutionality and fair procedures that must be thoroughly examined. It is easier in circumstances where a partnership is being sued. While it itself is an unincorporated identity, if a partnership of solicitors or accountants needs to be sued, the appropriate mechanism is to name all of the partners. There can only be a limited number.”
“It places a litigant who wants to institute proceedings in a difficult position if they are not given a representative name that can be used as the representative defendant in any proceedings. The effect is that people’s proceedings are delayed and they may have to go through a complicated court application based on no statutory regime to grant them authority from the court to issue proceedings against an individual who may be identified by the court. The advantage of Deputy Bacik’s Bill, if enacted, is that there would be a statutory mechanism that sets out a procedure for how the court can nominate or identify a person who will be the nominated defendant for the purpose of proceedings.”
“The Bill provides for the nomination of a proper defendant by an unincorporated body or, if no such nomination is forthcoming, for the court to appoint a proper defendant. The reason Deputy Bacik has included this is that if there is a legal person who can be sued, whether it is a corporate identity or an individual, that is the appropriate way to go. Unfortunately, in the case of an unincorporated body or a loose association of people, it is difficult to sue that identity unless a representative name is provided. In most instances, as I said, unincorporated bodies that are defendants or intended defendants will provide a representative name. However, as Deputy Bacik is aware, that is not always the case.”
“By way of illustration, the Bill raises complex issues in respect of the apportionment of liability on unincorporated bodies, measures regarding the associated trusts of unincorporated bodies and trusts formerly associated with an unincorporated body. The area of unincorporated bodies and associations is exceptionally complex in law. To that end, in 2022 the Law Reform Commission published a consultation paper entitled Liability of Clubs, Societies and other Unincorporated Associations. It sought submissions from the public. The report of the Law Reform Commission will be important to the development of the law in this area. To give the House a sense of how complex the issues regarding unincorporated bodies are, my Department understands that the Law Reform Commission’s report will not be published before early 2028.”
“It also includes examination of international approaches to redress, including models in Ireland, other common law and EU jurisdictions. The underlying aims of Deputy Bacik's Bill align in part with the matters currently being considered by the interdepartmental subgroup. Many of these complex legal, policy and operational considerations are relevant to those contained in the Bill. Given the intricate and challenging nature of these issues, many aspects of this Bill raise legal and constitutional considerations which must be thoroughly examined and approved by the Office of the Attorney General.”
“The purpose of the work of this group is to examine and evaluate key legal and other potential measures to require that those responsible for schools where sexual abuse occurred meet their redress obligations to survivors. This is with a view to informing Government of its findings on possible mechanisms for redress. The subgroup aims to report to the Minister for Education and Youth, and subsequently Government, by May 2027. As Deputies can imagine, the issues to be considered in this area are extremely difficult and time-consuming. This work includes consideration of complicated administrative, legal, financial and other mechanisms, including how any potential scheme might be appropriately funded by those responsible.”
“Not only was that recommendation given consideration by Government but we abided by it and followed it and as a result we have the commission of investigation in place. The interdepartmental group recognised consideration of a redress scheme may have far-reaching implications and advised a further phase of more detailed work was required to ensure Government is fully informed in any decision it may take. In considering this recommendation, an interdepartmental subgroup of the interdepartmental group was set up in November 2025 to examine the complex issues in establishing such a scheme, including how it might be funded. This subgroup comprises representatives from several Government Departments, State agencies and representatives from the Office of the Attorney General.”
“Four commissioners have been appointed to join the chair in leading the work of the commission, namely, Ms Justice Mary Ellen Ring, Mr. Roddy Bourke, Ms Michele Clarke and Mr. Kieran McGrath. The report of the interdepartmental group established to advise the Minister and the Government on the recommendations of the scoping inquiry was published in July 2025. This report was cognisant of the views of survivors in relation to redress as a measure of accountability. Recommendation 2 of that scoping inquiry stated consideration should be given by the Government to establishing a redress scheme for survivors of historical sexual abuse in day and boarding schools run by the religious orders.”
“A commission of investigation into the handling of historical child sexual abuse in schools has been established following the publication of the report of a scoping inquiry by Mary O’Toole SC in September 2024. That is an example of the impact survivors have had on policy-making because it was as a result of the documentary made by RTÉ, inspired by the experience of David and the late Mark Ryan, that the aforementioned scoping inquiry was established, leading in turn to the establishment of a commission of investigation. The commission, which is chaired by Mr. Justice Michael MacGrath, is independent in the performance of its functions and is currently in its establishment phase undertaking essential preparatory work. The task of the inquiry is huge.”
“The refusal of some religious orders, or, indeed, any unincorporated bodies, to co-operate with or contribute to previous redress schemes is a matter of considerable trauma and distress for survivors of sexual abuse and their families. It is a difficult and concerning aspect of this awful legacy. I assure the House the Government and I share the dissatisfaction expressed by the Deputy about this issue and I also wish to inform the House this Government is actively looking at possible avenues to ensure those responsible for the running of the schools where sexual abuse occurred are accountable. In that regard, I will give a brief overview of the work currently being undertaken in this area.”
“It also seeks - and this is a more complicated provision - to provide for a one-year window outside the normal limitation period provided for in the Statute of Limitations to enable any proceedings to which the Bill would apply to be brought within 12 months, if enacted. That latter provision is a significant one, as I am sure the Deputy appreciates, and is part of the reason there is a necessity for me to seek a six-month adjournment prior to the Bill moving to the next Stage. In fairness to the Deputy, I think she acknowledges most religious orders select a nominee to represent them in child sexual abuse cases but, unfortunately, this is not always the case.”
“Sometimes I do not think survivors and victims of crime recognise the impact and influence they have. They may not realise how influential they are when it comes to the consequences of their narratives but Deputy Bacik will agree with me when I say it is hugely influential from the point of view of legislators. I assure them also that from the point of view of a Minister, policy is very much affected by the narratives I hear from victims of crime and survivors of sexual abuse. As Deputy Bacik indicated, her Bill seeks to facilitate civil proceedings in respect of child sexual abuse cases against unincorpororated bodies, such as religious orders, and to facilitate the recovery of damages awarded from any such body, including from any trusts associated with it.”
“I move amendment No. 1: To delete all words after "That" and substitute the following: "Dáil Éireann resolves that the Civil Liability (Child Sexual Abuse Proceedings Against Unincorporated Bodies of Persons) Bill 2025 be deemed to be read a second time this day six months, to allow for the consideration of the legal and policy implications of the Bill's provisions to be undertaken.". I thank Deputy Bacik for introducing this Bill. Like her I welcome to the Public Gallery William Gorry, David Ryan and Deirdre Kenny. At the end of her contribution, Deputy Bacik referred to survivors and it is appropriate we, as legislators, recognise the very significant impact survivors can have on policy and legislation through their bravery in coming forward and providing further information in respect of the trauma they went through.”
“We all have a responsibility to try to emphasise again and again that discrimination, harassment or criminal attacks upon individuals because of inherent characteristics, such as their sexuality, is wholly unacceptable. Once that is explained to people, and it should be repeatedly explained to them because they need to be educated about it, there will be a positive response. I assure the Deputy that there is a vigilant legislative and policing response to these heinous crimes.”
“It is difficult to determine the best way to reduce and respond to ignorance and prejudice in any society. The criminal justice system obviously plays a necessary role and I believe by having the hate offences legislation in place, we have that criminal justice response. The policing response is also necessary. When you look at the fact that we have 666 diversity officers, and the Garda takes these offences extremely seriously, it shows there is a policing response to it. Ultimately, the most significant response will be ensuring that people who are drowned in prejudice realise their prejudice emanates from a position and a place of ignorance.”
“I thank the Deputy. It is worthwhile having this debate and discussion. My own view, as Minister for justice, is that An Garda Síochána, which is responsible for investigating the types of criminal offences to which the Deputy referred, is vigilant and aware of ensuring thorough investigations in respect of crimes that are motivated by hate. We see that in respect of people who are gay. We see it in respect of people because of their race. Once somebody assaults another person or commits a crime against that person, there must be an absolute commitment by An Garda Síochána to ensure that the crime is thoroughly investigated. I regret to say that many crimes such as these in Ireland are motivated by the ignorance and prejudice of the attacker.”
“The Deputy also mentioned hate speech. We have incitement to hatred legislation in place and I believe it is sufficient. I also believe, however, that the origin of this prejudice and discrimination is ignorance. We need to educate people more about the inappropriateness of condemning, criticising or abusing people because of an inherent characteristic such as their human sexuality. There is a broader body of work that needs to be done outside of the criminal justice system, as I am sure the Deputy appreciates.”
“The Deputy will be aware that we are seeing circumstances where the hate factor is being taken into account by the courts or during the course of the prosecutions. That is one thing that is being done. More important than that is the resources of An Garda Síochána. Historically, the Garda, like many other police forces around the world, may not have been sufficiently sensitive to these types of offences or may not have recognised that they are offences that are motivated by hate. I must say that has now changed. The Garda now has approximately 666 diversity officers. They are very well informed. They recognise the need to ensure there is greater protection for individuals, such as gay people, who find themselves being subjected to a criminal assault. I am satisfied with the resources that are in place.”
“In terms of the laws that are in place, however, the primary focus of concern the Deputy has raised is around what laws are there and whether I am satisfied with what the Department and the Garda can do where that abuse becomes physically threatening, incites violence or leads to the commission of violence. As the Deputy knows, in 2024, the Criminal Justice (Hate Offences) Act was commenced. It was commenced at the end of 2024 and has put in place a separate statutory provision which provides that if somebody is convicted of an offence such as assault which is motivated by hate, as in the instance of somebody being assaulted because they were gay, that will result in an increased tariff that can be imposed by the court when that person is being sentenced. I very much welcome that legislation. We need to give it time to bed in.”
“It included, as the Deputy knows, and because he spoke very much in favour of it, a disregard scheme that is going to disregard historic convictions made against persons because of their sexuality. It is shocking that any previous generation or the current generation would seek to discriminate against a person because of an inherent characteristic, whether it is their race or religion, or, in this context, their sexual orientation. Not just from what the Deputy has said but from gay friends speaking to me, I am concerned about the fact that we seem to be regressing when it comes to abusive comments being made about individuals who are gay. In many instances, that emanates from individuals who are youths or children. As the Deputy and I know, it is founded upon ignorance and prejudice.”
“I thank Deputy Ward for raising this issue. It is appropriate that he raises it during Pride week. Part of the reason we have Pride week is not just for the purpose of people being able openly to celebrate their sexuality, but also to recognise that historically people who were gay were suppressed and were not able to express their sexuality within society in the way that other people could do. It is therefore very appropriate that Deputy Ward has raised this issue. I should also inform the House that I have just come from the Seanad, where I am very pleased to say that Committee Stage of the Criminal Law, Civil Law and Defence (Miscellaneous Provisions) Bill 2026 has passed.”
“If I am going to retain a statutory provision that provides for a waiver, we are going to have the same problem as we had before. What is happening now will put more pressure on the prosecution and, indeed, on the defence. There will have to be a hearing in respect of the applicable records. A judge will look at these and will only decide to disclose them where there is something relevant for the purposes of ensuring a fair trial and in the interests of justice. It will reduce the number of applications. The statutory scheme will make it much fairer.”
“The reason the 2017 statutory regime did not work is because it provided for a waiver. Senator Higgins refers to it as me now removing agency, but the reason the waiver made the scheme non-workable was because many people - complainants in sexual abuse or rape trials - were told they did not want to go through an interlocutory preliminary hearing to have an assessment as to whether the counselling notes should be handed over and that they should just hand them over. There is a provision under the legislation. I think it was subsection (19), whereby someone could just waive their rights and the notes could be handed over. What was happening, understandably, was that people who wanted to get their trials on as quickly as possible decided that they would hand them over. Unfortunately, I cannot do both.”
“The proposal I have put forward is the most satisfactory one. I always listen carefully to Senator Higgins and I am very happy to take criticism, but it is inaccurate to state that the legislative proposal contained in this Bill is a backward step. One thing we all agree on is that the current statutory regime is unacceptable. It has to change. The easy thing for me to do is to just move away from this and not change it because it is too controversial and is arousing too much opposition. I am not prepare to let the current statutory regime remain. For that reason, this is not a backward step. It is a very positive step. In contrast to most measures that I introduce, I believe this measure will resolve the problem that all of us want to see resolved.”
“However, I really believe that the proposals I have set out here are preferable to Senator Harmon's proposal. Being frank, Senator Harmon's proposal is the only one I could give consideration to. I cannot consider the total ban on counselling notes contained in the other amendments. I am conscious that Senator Harmon's amendment, which comes from the Dublin Rape Crisis Centre via Lorcan Staines SC, both of whom I have great respect for, puts forward a scheme that I do not think is as resolute or as effective as the scheme I am putting forward. I am also conscious of the fact that the amendment, which came from Deputy Kelly and the wider Labour Party on Committee State, has changed. In that amendment, there was an independent review panel. I welcome the fact that this has now been removed but it is still not an amendment I should accept.”
“I want the Senator to know that, in the Government, there is a real concern and desire to move this as much as possible towards the right to privacy. I have spoken to the Taoiseach about it. I spoke last week to the Tánaiste about it, who is very concerned to make that sure we do as much as possible. This may be a bold statement to make but I believe that the legislation I have set forward here will solve the problem about which we are concerned, that being, the routine disclosure of counselling notes from the complainant in the trial to the accused. I believe we will not see the misuse of counselling notes in trials the way we have seen it in the past. What I have agreed is that I will do a full review of it after 18 months just to see how it has worked.”
“This is something I was not aware of until I had a recent engagement with a different group of survivors, Beyond Surviving, who pointed out how beneficial counselling notes can be to the prosecution. This is something we should not lose sight of because some trials, including a very prominent one in Northern Ireland recently, concern historic offences. It can be of great benefit and advantage to the prosecution and the complainant in such a trial if they can say that something happened many years ago and that there is a record of the complainant stating that it happened in counselling notes from many years ago. Counselling notes from many years ago may corroborate what a complainant is saying now. There are reasons that they may be needed in the interests of justice. I understand the intensity of feeling about this.”
“We will never have a situation whereby counselling notes, as has happened under the statutory scheme in place, are simply handed over to a defence in a trial and it looks through them and says something is interesting and it will refer to it. The only time they will now be disclosed is if a judge looks at them and, having done so, says the notes should be disclosed even though he or she is mandated by the Oireachtas not to disclose it, but it should be disclosed is because they come within one of the exemptions. There would be an unfair trial if the judge did not disclose that to the accused or, alternatively, it is in the interests of justice to do so. The reason the interests of justice is mentioned in the Bill is because in many instances counselling notes are of benefit to the prosecution in a criminal trial.”
“Nowhere in our criminal justice system do we say that there is a category of evidence that people simply cannot look at even if there is information in it that is highly relevant and probative and could be beneficial to a person in terms of finding them not guilty of a criminal offence. I cannot ignore it, but that presumption has shifted the balance very much in favour of the right to privacy. The Bill ensures there is a hearing. The reason the 2017 proposals did not work was because under them there was a provision whereby a complainant could waive the entitlement to have a hearing. Under the new proposal, there must be a hearing. When an application is made by a defence or prosecutor to access what is now an applicable record, a judge must look at the record.”
“Any judge interpreting this section will see that there is a statutory imperative set out by the Oireachtas stating that one shall not provide disclosure of these personal records unless one has fulfilled one of the two following requirements: first, that it is relevant to an issue at trial; and second, that not to provide them would create a risk of an unfair trial in the absence of such disclosure. If that was not in the statutory scheme, we would say that we are not going to disclose them even it if it results in an unfair trial. I again return to the principle of protecting applicable records, as I now call them. In our criminal justice sphere, there is no category of evidence where we say one cannot look at that. We spoke earlier about electronic evidence.”