Reform of Criminal Evidence Act and the use of counselling notes at trial promised

One of the more unsavory anomalies of Irish criminal law comes in the ignominious shape of s.19 of the Criminal Evidence Act 1992 (as amended by s.39 of the Criminal Law (Sexual Offences) Act 2017).

S.19 is notorious in that it allows, in certain circumstances, for counselling notes to be shared in sexual offence trials (such as rape), placing the victim and their counsellors in an impossible position. S.19 goes to the root of the victim-counsellor relationship, as it undermines the confidence that a victim has in her counsellor, fearing that one day any notes or records taken by her counsellor might potentially be used against her in court. It undermines the confidence of the counsellor, who feels that anything they note down might be disclosed to the defence. Counsellors often feel that they have little choice other than not taking any notes or records at all, or the absolute minimum, rendering whatever notes they take meaningless. This leaves the counsellor in a difficult position, as in order to ensure good continuity of care for their client, they need to keep effective records.

This alarming dichotomy has long been recognised by La Touche Training in our client interactions and has always been a difficult square to circle. Therefore, we welcome recent promises by Minister for Justice Helen McEntee and Taoiseach Simon Harris to amend the law and prohibit the use of counselling notes as evidence in criminal trials by early next year. What shape such amendment will take is yet to be clear and the devil may well rest in the details, but at last victims and their counsellors can be cautiously optimistic that this most lamentful of legal lacunas may be closed.