Development: Criminal Law (Sexual Offences) Act 2017- compulsory disclosure of counselling records

INTRODUCTION

Section 39 of the Criminal Law (Sexual Offences) Act 2017 inserted a new provision (section 19A) into the Criminal Evidence Act 1992 which provides for a new power of a Court to compel the disclosure of counselling records, held by a third party (“the counsellor”), to the accused’s legal team, or the DPP, for the purposes of criminal trials, without the consent of a person the subject of the counselling records (“the complainant”). This procedure does not interfere with the powers of An Garda Síochána requiring the disclosure of records for the purposes of investigating a crime, which is permissible under the data protection legislative framework.

SCOPE OF THE NEW PROVISION

The new procedure is somewhat limited in its scope insofar as it is applicable only in criminal trials in the Circuit and Central Criminal Courts where the Accused faces charges which are sexual offences. “Sexual offences” are the specific offences listed in the Schedule of the Sexual Offenders Act 2001 and include rape, sexual assault, incest, child exploitation and trafficking offences.

“Counselling records” can be defined as:

“any record, or part of a record, made by any means, by a competent person in connection with the provision of counselling to a person … in relation to which there is a reasonable expectation of privacy”.

A “competent person” is defined as “a person who has undertaken training or study or has experience relevant to the process of counselling”. “Counselling” is defined as “listening to and giving verbal or other support or encouragement to a person, or advising or providing therapy or other treatment to a person (whether or not for remuneration)”.

The significant development deriving from this new provision is the absence of the requirement of consent to the disclosure by the complainant and the power of a court to order disclosure of records against a third party in criminal proceedings, such as the HSE.

PROCEDURE

The compulsory disclosure of the counselling records occurs on foot of an order by a judge after a hearing at which the Defence sets out the reasons for seeking the disclosure of the records. The Defence must have first set out in writing to the Court the reason for seeking the application including why the Defence feel the records in question are likely to be relevant to an issue at the trial. The Judge may order the compulsory disclosure where it is in the interests of justice to do so and shall order compulsory disclosure where the Defendant faces a risk of an unfair trial in the absence of such disclosure.

At the hearing, the arguments by or on behalf of the custodian of the records (i.e. the counsellor or the centre to which the counsellor is attached), the DPP and the complainant are permitted to be heard. 

In deciding whether or not to order disclosure, the Court will consider the following important factors, amongst others: the necessity of the disclosure for the Defence case, the probative value of the records, and the harm which may be caused to, and the expectation of privacy of, the complainant. Other factors acknowledge factors of a wider perspective including the public interest in encouraging counselling and the reporting of sexual offences.

The new provision allows for hearings on whether or not to order disclosure, be closed to the public. Furthermore, in ordering compulsory disclosure, the Court may permit redactions or other restrictions such as ordering that only certain portions of records be disclosed.

CLARITY REQUIRED

Unfortunately, there appear to be a number of aspects of the new provision requiring clarification for example: what constitutes “consent” for the purposes of agreeing to disclosure- and thereby avoiding a court hearing and compulsory disclosure- when the complainant remains a child/adolescent at the time of the court proceedings i.e. whether or not parental/guardian consent would be sufficient? Furthermore, the provision does not outline the manner by which the DPP shall obtain information from third parties and counsellors as to the existence of the records in order to inform the Accused or his/her legal team of the existence of the records. Additionally, the nature and scope of “an issue at trial” to which the records may be relevant must also be clarified.

The new provision marks an important development in the nature of criminal trials for sex offences and will necessitate investment of time and resources by relevant healthcare bodies when records under their control are sought to be disclosed having regard to the interests of the complainant. Further clarification will be required on the operation of the procedure however, it is important to acknowledge that the provision envisages a balance between the competing interests and rights being struck and furthermore, provides for protections to mitigate the concerns of any disclosure of information being made.