Criminal Justice (International Cooperation on Electronic Evidence and Other Matters) Bill 2026: Committee and Remaining Stages Seanad Éireann — 2026-07-07 ============================================================ Catherine Ardagh (FF), Dublin South-Central I thank the Senators for this amendment and commend them for raising what is a very significant topic of concern and one that has been debated recently in this House at length. I understand exactly why this issue matters so much to survivors of sexual violence and domestic abuse. For many survivors, counselling is a crucial and essential part of recovery. Counselling notes record some of the most private and painful information that a person will ever share, often at a time when they are at their most vulnerable. However, regrettably, I cannot accept this amendment. I want to set out why, in a manner that reflects the protections being put in place within the State and also in the context of the e-evidence regulation itself, to which this Bill will give further effect. I hope this will serve to provide some reassurance to survivors and to the Senators proposing these amendments. We can all agree that the current statutory regime in Ireland relating to the use of counselling records in criminal trials for sexual offences is unacceptable. It is for that reason that the Minister has proposed, via the Criminal Law, Civil Law and Defence (Miscellaneous Provisions) Bill 2026, which was recently debated in this House, to amend section 19A of the Criminal Evidence Act 1992 to restrict the disclosure of counselling records and other personal records in sexual offence trials. The amendment would delete the waiver provision contained in section 19A, which has all too often meant that victims have failed to benefit from the protections provided by the legislation. From now on, every time such counselling notes or personal records are sought by the defence, a court will carefully scrutinise the material and make an impartial and objective decision on whether disclosure is warranted. Those amendments will also provide for a presumption of non-disclosure, ensuring that the default position is that these records are not to be disclosed. The exception will be where the court is satisfied, after examining the records, that they are likely to be relevant to an issue at trial and that there would be a real risk of an unfair trial in the absence of such disclosure, or that it is otherwise in the interest of justice to so order. The Minister was advised by the Attorney General that it was not possible to introduce an outright ban on the disclosure of counselling notes, as to do so would be unconstitutional. Nonetheless, the Minister is confident that the proposed amendments, if accepted by the Oireachtas, will end the routine disclosure to the accused of the complainant's counselling notes in the trial. Neither the e-evidence regulation nor this Bill is the appropriate vehicle to legislate for this issue. Applications under the e-evidence regulation for the disclosure of counselling records during sexual offence proceedings in this or any other EU jurisdiction are likely to be exceedingly rare. In most jurisdictions, including our own, the person in possession or control of counselling records will normally be the counsellor or therapist concerned, not a service provider. In the ordinary course of events, any order by a court to produce such records would be directed to that counsellor and not to a service provider under the e-evidence regulation. Therefore, while I understand the concerns of Senators, the fact of the matter is that the e-evidence regulation is unlikely to play any significant role in applications for the production of such records, much less their disclosure during a trial. Additionally, the regulation, which will have direct effect in all member states, provides under Article 5.2 that a European production order may be issued only if a similar order could have been issued under the same conditions in a similar domestic case. Thus, the relevant national law will apply in each jurisdiction. Each EU member state regulates the disclosure of sensitive medical and therapeutic records differently through its own criminal procedure laws. In each jurisdiction, the courts must balance the necessity of the evidence for the prosecution or defence against the profound intrusion into the victim's privacy that the disclosure of personal records may entail. In Ireland, section 19A of the 1992 Act will apply, and the Minister's amendments are clearly intended to rebalance the current statutory regime in favour of protecting the victim's right to privacy. Ireland cannot act unilaterally to limit the scope of the regulation in this way. Likewise, it is for each member state, including Ireland, to determine the national rules that should apply to the disclosure of personal records in sexual offence trials. It is for this reason that I cannot accept the amendment. --- 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/2026-07-07/debate/main Retrieved: 2026-08-14T04:55:09+00:00 Sitting date: 2026-07-07