Criminal Law, Civil Law and Defence (Miscellaneous Provisions) Bill 2026: Second Stage
Seanad Éireann — 2026-06-18
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Jim O'Callaghan (FF), Dublin Bay South

I will deal with some of the issues raised. Senators Harmon, Collins, Higgins, Stephenson and O'Reilly spoke on counselling notes. They all expressed support for other elements of the legislation, whether the criminalisation of sex for rent, the disregard scheme or other measures. I am conscious people generally focus on aspects they disagree with, as opposed to those they agree with. Counselling notes are an issue of concern, not just to those five Senators but to others as well. One thing we can all agree on is the current statutory provision is unacceptable. Everyone in Dáil Éireann agrees with that, everyone here agrees with that and everyone in the sector agrees with that.
The current statutory provision was put in place in 2017 when we tried to resolve this issue through legislative change. It is widely accepted that, notwithstanding the best efforts of Members of the Oireachtas at that time, this was not achieved because the measures introduced did not have an impact on reducing the provision of counselling notes to the defence in sexual assault or rape trials. I want to change that. The easiest thing for me to do would be to do nothing, say it is being considered and I am engaging with the sector and not make a decision on it. I am not prepared to do that because I believe the proposal I have made is the most appropriate and permissible statutory intervention I can make, taking into account the unambiguous advice I have received from the Attorney General.
At present, the provision of counselling notes under the statutory scheme sometimes happens on a routine basis. Part of the reason for that is the provision introduced in 2017 permitted the waiver of the requirement that counselling notes would be inspected. Consequently, for the purposes of getting a trial under way quickly, victims and complainants in such cases were waiving their right to seek a hearing on it. As a result of that, counselling notes were provided and irrelevant and inappropriate cross-examination was attempted for the purpose of trying to rely on the counselling notes.
I am changing that. The way I am changing it is, in the first instance, there must now be a hearing when an accused or the prosecution are seeking access to and use of counselling notes. What will happen under the statutory scheme I have put in place is that a judge will be required to look at the counselling notes and see if there is anything in them that is relevant. The judge will have to determine whether, if he does not disclose the counselling note to the accused, or indeed the prosecution, there will be an unfair trial and whether it is in the interests of justice.
I, as Minister for justice, and Senators, as Member of the Oireachtas, have to take into account that we are dealing with a sensitive and complex issue.
On the one hand, we are dealing with the right to privacy that people have when they go to counselling to ensure their counselling account and narrative are protected. On the other hand, I also have to take into account the right to a fair trial. Sometimes, infrequently, those two rights will conflict. In this legislation, I have to ensure that when those two rights do conflict, there is a fair statutory mechanism to resolve that conflict.
I want people in this House to know that I have introduced a scheme that is slanted as much as possible in favour of the right to privacy, as opposed to the right to a fair trial, as far as I can. I cannot go any further. If I go any further in this regard, as has been suggested by Senators Higgins, Collins and Stephenson, and introduce legislation saying that there is no entitlement to use counselling notes in a criminal prosecution or defence case, what would happen is that individuals would challenge that on the grounds that they would say they are being deprived of the right to fair procedure and that it is constitutionally impermissible to just categorise one section or category of evidence and say there can never be access to it. There could be something within a counselling note that is highly relevant to the guilt or innocence of the accused. There could be something in a counselling note that a jury should be aware of or that a person should be entitled to raise questions about, whether it be the prosecution or the accused.
As I said, I had the opportunity to engage with Ciara Mangan and Beyond Surviving a number of weeks ago. I have spoken to many of the people involved in the sector. People have spoken about the Dublin Rape Crisis Centre. Rape Crisis Ireland knows that the proposal I am putting forward is appropriate. Other people recognise that as well. We also need to take into account that there is not one homogeneous view among survivors within the community. People have different views. One of the most interesting points made to me by the people from Beyond Surviving, and this is something that I should have emphasised and should be emphasising more, is that counselling notes can be very beneficial in the prosecution of an offence of rape or sexual assault. It sometimes happens that a complainant does not make a complaint until many years after the event occurred. That can be for reasons of trauma. What was pointed out to me is that there are very many advantages in a complainant in a court process being able to say they went to counselling two or three weeks after the event and the counselling notes completely record what they said at the time, which corroborates what they are saying now. We need to recognise that this is not a simple issue. I fully appreciate that. There is an advantage, however, in having access to the counselling notes for the prosecution in criminal trials, and this is something that needs to be reflected on.
One of the Senators asked where the presumption of non-disclosure is. It is on page 23 of the Bill, in the change I am introducing into section 19A(11) of the Criminal Evidence Act 1992, where it is stated that, "Subject to subsection (12), a court shall not, after the hearing referred to in subsection (8), order disclosure of the content of the applicable record concerned to the accused, and where applicable, the prosecutor, unless the court is satisfied" that "the record is likely to be relevant". The issue of an unfair trial and the interest of justice is then set out. That is the presumption of non-disclosure. Any judge reading this section when an application is made will know that he or she shall not disclose the content of the record unless these provisions apply. This is what is known in legal terminology as a "presumption of non-disclosure". One thing I am certain of is that the legislation that is enacted and commenced - obviously, I will listen to what Senators have to say on Committee and Report Stages - will be significantly better from the point of view of victims before our courts than the statutory scheme is at present.
I note that Senator McDowell welcomed the fact that there are diverse categories of miscellaneous provisions. It is a real advantage to a Minister to have this type of mechanism to bring forward so many different legislative proposals. He said it is important that the other legislative proposals or schemes being amended are amended accordingly. That is important. The Law Reform Commission does an excellent job in consolidating and updating legislation. In effect, this Bill, although it is called "miscellaneous provisions" legislation, seeks to amend the Firearms Act 1925, the Criminal Evidence Act 1992, the Extradition Act 1965, the Defence Act 1954, the Criminal Justice (Theft and Fraud Offences) Act 2001, the European Arrest Warrant Act 2003, the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 and the International Criminal Court Act 2006. The great advantage of a miscellaneous provisions Bill is that there is a whole body of legislation out there that needs to be amended in some certain ways and this is being done through this legislation.
In respect of the disregard scheme, I could have waited and said that we would not put the scheme into a miscellaneous provisions Bill and that we would wait for a separate Bill, but it would have taken at least another 18 months to two years to get it done. Things move on in politics and other priorities come onto the agenda. One of the things Senators will notice when they all become Ministers is that when they look at what is achievable, not everything can be done at the same time. If you get an opportunity to do something, my advice is to do it.
Other criticisms were made by Senator Collins in respect of my limiting the opportunity for the Oireachtas to give this legislation detailed examination. We go through a very detailed process of trying to change the law. First, in the Government Department where the Minister is proposing a change to the law, a proposal goes through lengthy policy consideration. It then goes to the Attorney General's office, where, before we even get to the drafting, we get legal advice in respect of the policy issues arising from the proposals. These are two very vigorous opportunities for detailed examination of legislation. It may not be by the Houses, but certainly internally by the Minister. There is then pre-legislative scrutiny before the relevant committee. A Bill is then introduced for the five Stages in Dáil Éireann. It then comes to the Seanad, and then goes back to the Dáil. We do, therefore, get an opportunity in Ireland to consider legislation very clearly.
I disagree with Senator Higgins's suggestion that this is a US-style Bill. It is not. It is a miscellaneous provisions Bill. We have had them for many years. I have tried to include as many provisions in it as I can, but it is certainly not like the vast Bills we see in America. Senator Higgins also misstated the provision in respect of face coverings. It is not going to be illegal if someone is wearing a face covering for health, religious or privacy reasons. The only reason someone will be required, under the proposed amendment to the public order Act, to remove a face covering is if the covering is being worn for the purpose of evading detection for the commission of a criminal offence.
Senator Keogan and other Senators mentioned the Defence Act legislation. I think it is worthwhile and will be an improvement to have that provision on a statutory basis. At present, the Garda sends a form called a C70 to the Defence Forces. A couple are sent to the Defence Forces every week. This can include when there is an explosive device that the Garda is concerned about. It was sometimes used for the transfer of money between banks. It was used recently in the context of the protest in trying to assist with the removal of trucks. It happens all the time and there is nothing bizarre about it. I think it is worthwhile putting it on a statutory basis.
I will look into the issue Senator Keogan raised about Escort Ireland. Prostitution, the purchase of sex in Ireland, is illegal, and that is something that has been maintained, notwithstanding the fact that others wanted me to consider changing it.
I disagree with Senator Stephenson's categorisation that this is a very cruel way to deal with legislation. It is important that we consider it. Everyone has an opportunity. The Senators here are highly intelligent and highly effective legislators, as is the case in the Dáil. Everyone reads and can see what is coming forward, and everyone can and does get an opportunity to speak.
I heard what Senator O'Reilly said in respect of incapacitant spray. I have visited all the prisons in Ireland since I have been Minister, except one, the Midlands Prison, and I will be visiting it shortly. I commend the Irish Prison Service on the outstanding work it does. Every time I go to a prison, I ensure that I meet prisoners as well. A good relationship exists, in very difficult circumstances, between prisoners and prison officers. There is real skill in being a prison officer. It requires good psychological understanding of people's vulnerabilities and difficulties, and I am pleased to say Irish prison officers do this on a consistently effective basis.
Nonetheless, I will not permit a situation to develop where prison officers can be exposed to violence. Fortunately, levels are low but I will not permit a situation to arise where a prison officer will be without sufficient capacity to defend himself or herself if they are subjected to violence, and that is the same with gardaí.
I thank the Senators for their contributions.

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Record URI: https://data.oireachtas.ie/akn/ie/debateRecord/seanad/2026-06-18/debate/main
Retrieved: 2026-08-14T04:55:05+00:00
Sitting date: 2026-06-18