NATIONAL PROSECUTORS' CONFERENCE: The Director of Public Prosecutions has indicated the need for the Oireachtas to urgently address the lack of clarity in the law on the disclosure of medical records in criminal cases.
Mr James Hamilton was speak- ing at the third national prosecutors' conference in Dublin at the weekend, organised by his office, on the theme, "The Expert Witness and the Law".
The conference was attended by more than 200 delegates, including solicitors and barristers involved in prosecutions, members of the judiciary, the Garda and other State agencies.
A recent decision of the Supreme Court that the discovery of records, such as a psychotherapist's report, could not be carried out in advance of a trial "from persons who are not parties to criminal proceedings" had left the law "in a state of great uncertainty", the DPP emphasised.
He did not in any way criticise the Supreme Court decision, however. A high degree of privilege should be afforded psychotherapists' reports. "The seeking of them, with all the personal details that they contain, is capable of being intimidatory of injured parties to a high degree," he told the conference, and could act as a disincentive to report crime.
However, there was a lack of clarity in the law at present "relating to possible privilege" in the area of psychotherapists' reports. Matters were left to the discretion of trial judges, with "little in the way of reported cases to guide them".
In his view it was time for the legislature to consider the question. Legislation should also be considered requiring applications for disclosure of documents in such cases to be made well in advance of a trial date to obviate last minute trial adjournments, to the detriment of injured parties.
While he welcomed recent legislation to increase the number of High Court judges, the DPP indicated that a shortage of judges available to hear cases in the Central Criminal Court had reached chronic levels. It took approximately 18 months to get a trial date in this court. And because the Central Criminal Court's jurisdiction was effectively confined to cases of murder, rape and other serious sexual offences, such long delays were having a "disproportionate effect" on injured parties. In some instances it was not uncommon for a case to be adjourned more than once.
"An accused person is entitled to a trial within a reasonable time," Mr Hamilton emphasised. This was a right under the Constitution and under international law.
Apart from the rights of the accused such delays were also "grossly unfair" to the rights of injured parties.