Criminal Law, Civil Law and Defence (Miscellaneous Provisions) Bill 2026: Committee Stage Seanad Éireann — 2026-06-24 ============================================================ Jim O'Callaghan (FF), Dublin Bay South I thank Senators for the amendments they have put forward and for their contributions. I will start by saying that I understand and acknowledge the depth of feeling that exists on this issue. I have heard it not just on Committee Stage in the Dáil and here and on other Stages. I have heard it from people who have come before me and I am fully aware of the legitimate intensity of feeling that people have in respect of this issue. I wanted to say that at the outset. The more I listen to people, the more I appreciate that intensity, so I have no difficulty in hearing people refer to this on a number of occasions. There is something I think there is agreement on. The current statutory regime is unacceptable. I was a Member of the House back in 2017 when this was a real issue of concern and we changed the law. Both the Dáil and the Seanad had debates on it. The law was changed and we thought we had resolved the issue of counselling notes being routinely handed over to the defence in sexual assault or rape trials and used in cross-examination. When we saw what happened after 2017, there was a recognition that, notwithstanding the considerable efforts that have been made by the Oireachtas, the measures we introduced in 2017 did not work. That statutory regime is the regime that is in place at present. That is why we must all accept that that regime in statute is unacceptable. We have since had a judgment of the Supreme Court in the AM case, which has slightly alleviated the circumstances. I am still convinced that we need to change the legislative scheme that operates. Everyone in this House agrees in respect of that. The amendments before the House are different, in many respects. The Sinn Féin amendment and the amendment proposed by Senator Higgins adamantly suggest that there has to be a ban on counselling notes, whereas Senator Harmon and the Labour Party's amendment do not adopt that position but instead propose a different mechanism to the mechanism I have put forward. It is important to acknowledge that there is a broad difference of views. I am not standing on my own saying I am the person who says we cannot ban counselling notes. It is recognised by the Dublin Rape Crisis Centre that we cannot ban counselling notes. It is recognised by the Labour Party that we cannot ban counselling notes. The advice I have received from the Attorney General is unambiguous on this. Sometimes one receives advice from lawyers, and it is grey and they say, "On the one hand, on the other hand". The advice I have received, which is obviously advice that the Dublin Rape Crisis Centre has received, is that a ban on counselling notes will be adjudicated as unconstitutional. We need to look to see what impact that would have on survivors and complainants before our courts. If I introduced the amendment suggested by Sinn Féin or that advocated by Senator Higgins, we would find ourselves in a situation relatively quickly whereby a person who has been charged and convicted of rape or sexual assault would challenge the legislation on the basis that they had been denied access to a category of evidence they say contained probative evidence that could have been of use in getting an acquittal for them in the proceedings. If that happens, and if the courts adjudicate that the legislation the Houses of the Oireachtas introduced and enacted is unconstitutional, that would be a devastating consequence for people who are complainants or survivors of sexual assault and rape. I am not prepared, just for the sake of my own political convenience and so that it will reflect well on me, to turn around and agree to ban counselling notes notwithstanding what the Attorney General said. I simply cannot do that. It is not an issue that people who are not lawyers need legal advice on, because when it comes to this issue there are two rights at stake. On the one hand, there is a right that we have all spoken about and that I want to give priority to, namely the right to privacy of the women and men who go to counselling and have notes generated for the purposes of recording the issues they have identified in the confidential environment of the counselling room. That is a right to privacy that must be respected. It is not an absolute right to privacy. There are no absolute rights in our constitutional framework. The right to life is not an absolute right because self-defence permits one to deny it. There is the right to privacy on the one hand, and on the other there is the right to a fair trial. I am not criticising people for not mentioning that, but I cannot ignore that. If I ignore that, I would be walking us all into a legislative and judicial minefield because it is a right that is set out in our Constitution. It is provided for in the European Convention on Human Rights and it is recognised in the EU Charter. The right to a fair trial has to be given some recognition by people in the Houses of the Oireachtas when we try to formulate a solution to this. Section 16 of the miscellaneous provisions Bill sets out a very detailed statutory regime. The one abiding characteristic is that it transfers and moves the balance of those two rights very much in favour of the right to privacy. It does that in a number of ways. First, it is important to point out that I am broadening it from counselling notes to include all personal records. These are factors that will add greater protection to individuals in terms of extending the breadth of the right to privacy. In subsection 6(f) of the section, I have put in place a presumption of non-disclosure. That is how the Attorney General and others have described it to me. It is categorised as a presumption of non-disclosure because it states that: "[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" and then sets out some requirements that I will come to. 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. 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. 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. 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. 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. 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. 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. --- Source: Houses of the Oireachtas. Licensed under CC BY 4.0 (https://creativecommons.org/licenses/by/4.0/). The Official Report is revised after first publication; the fetch timestamp below identifies the version quoted. Record URI: https://data.oireachtas.ie/akn/ie/debateRecord/seanad/2026-06-24/debate/main Retrieved: 2026-08-14T04:55:06+00:00 Sitting date: 2026-06-24