Pre-trial hearings should be held by judges in advance of sexual offence cases to decide whether a victim's counselling records need to be disclosed, the Law Reform Commission has said.
In a report to be published today, Disclosure and Discovery in Criminal Cases, the commission said a suitable legal framework was needed to find a balance between an accused's right to a fair trial and a victim's right to privacy.
The courts have recognised that in criminal trials the prosecution must disclose to the defence all relevant evidence it has gathered in its investigations. This includes everything the prosecution intends to rely on in the trial, as well as all material it has decided not to use, but may be of use to the defence.
Disclosure is needed to ensure the accused receives a fair trial and to prevent any possible miscarriage of justice.
The report said difficulties have emerged in the Irish system, including the absence of a clear procedure for ensuring disclosure is made and in a timely way, as well as the absence of a formal procedure for disclosure of material held by third parties such as counsellors.
Recent increase
It said there had been criticism of a recent increase in requests for access to counselling records in sexual offence cases, particularly cases involving children.
“This is because disclosure of counselling records may impact on the recovery of a complainant, particularly children or other vulnerable persons,” the report said.
Organisations such as the Rape Crisis Network had said disclosure of such records might have a chilling effect on the reporting of sexual offences and the fear of disclosure might discourage victims from seeking support.
During a public consultation process in advance of publication of the report, contributors also raised the need to take into consideration the stages of a child’s development as well as the impact of court proceedings on the child’s healing process.
The report recommended legislation be produced to include a pre-trial preliminary hearing, in which the defence, the prosecution and a third party affected by a request for disclosure would get an opportunity to have a judicial determination of the disclosure.
Factors to be taken into account by a judge at a preliminary hearing should include the nature of the material sought and its likely value in the case; and any rights of the person to whom the disputed material relates, and any harm that disclosure might cause to the person.
Public interest
Other factors to be considered should include the extent to which access to the material appears necessary to secure the accused person’s right to trial in due course of law, while recognising the public interest in preserving the integrity of the judicial process.
In a sexual offence case, the court should also consider society’s interest in encouraging the reporting of sexual offences and its interest in encouraging victims to obtain treatment, as well as the public interest in ensuring that adequate records are kept of counselling communications, the report said.
It said new legislation should set out the scope of the duty of disclosure and its application in trials on indictment, where a jury is required, and in summary trials, for offences dealt with by the District Court.
The legislation should reflect the right of the accused to a trial in due course of law, as stipulated by the Constitution. It should also make clear that some material, such as CCTV footage and forensics, should be disclosed at an early stage.
The report, including a draft Criminal Procedure (Disclosure) Bill 2014, will be launched today by Director of Public Prosecutions Claire Loftus.
