Criminal Law (Sexual Offences) Act 2017
Disclosure of third party records in certain trials
39. The Act of 1992 is amended by the insertion of the following section after section 19:
“19A. (1) In this section—
‘Act of 1995’ means the Civil Legal Aid Act 1995;
‘competent person’ means a person who has undertaken training or study or has experience relevant to the process of counselling;
‘counselling’ means listening to and giving verbal or other support or encouragement to a person, or advising or providing therapy or other treatment to a person (whether or not for remuneration);
‘counselling record’ means any record, or part of a record, made by any means, by a competent person in connection with the provision of counselling to a person in respect of whom a sexual offence is alleged to have been committed (‘the complainant’), which the prosecutor has had sight of, or about which the prosecutor has knowledge, and in relation to which there is a reasonable expectation of privacy;
‘court’ means the Circuit Criminal Court or the Central Criminal Court;
‘sexual offence’ means an offence referred to in the Schedule to the Sex Offenders Act 2001.
(2) In criminal proceedings for a sexual offence the prosecutor shall notify the accused of the existence of any counselling record but shall not disclose the content of the record without the leave of the court given in accordance with this section.
(3) An accused who seeks disclosure of the content of a counselling record may make an application (‘disclosure application’), in writing, to the court—
(a) providing particulars identifying the record sought, and
(b) stating the reasons grounding the application, including grounds relied on to establish that the record is likely to be relevant to an issue at trial.
(4) An accused who intends to make a disclosure application shall, not later than the beginning of such period as may be prescribed in rules of court, notify the person who has possession or control of the counselling record, the complainant, the prosecutor and any other person to whom the accused believes the counselling record relates of his or her intention to make the application.
(5) Where no disclosure application has been made by the accused in respect of a counselling record under subsection (3) and the prosecutor believes that it is in the interests of justice that the record should be disclosed, the prosecutor may make a disclosure application in writing to the court.
(6) Where the prosecutor intends to make a disclosure application under subsection (5), he or she shall, not later than the beginning of such period as may be prescribed in rules of court, notify the person who has possession or control of the relevant record, the complainant, the accused and any other person to whom the prosecutor believes the counselling record relates of his or her intention to make the application.
(7) The court may, at any time, order that a disclosure application be notified to any person to whom it believes the counselling record may relate.
(8) The court shall hold a hearing to determine whether the content of the counselling record should be disclosed to the accused and the person who has possession or control of the counselling record shall produce the counselling record at the hearing for examination by the court.
(9) The person who has possession or control of the counselling record, the complainant and any other person to whom the counselling records relates shall be entitled to appear and be heard at the hearing referred to in subsection (8).
(10) In determining, at the hearing referred to in subsection (8), whether the content of the counselling record should be disclosed to the accused under subsection (11), the court shall take the following factors, in particular, into account:
(a) the extent to which the record is necessary for the accused to defend the charges against him;
(b) the probative value of the record;
(c) the reasonable expectation of privacy with respect to the record;
(d) the potential prejudice to the right to privacy of any person to whom the record relates;
(e) the public interest in encouraging the reporting of sexual offences;
(f) the public interest in encouraging complainants of sexual offences to seek counselling;
(g) the effect of the determination on the integrity of the trial process;
(h) the likelihood that disclosing, or requiring the disclosure of, the record will cause harm to the complainant including the nature and extent of that harm.
(11) (a) Subject to paragraph (b) and subsection (12), after the hearing referred to in subsection (8), the court may order disclosure of the content of the counselling record to the accused and the prosecutor where it is in the interests of justice to do so.
(b) The court shall order disclosure of the content of the counselling record to the accused where there would be a real risk of an unfair trial in the absence of such disclosure.
(12) (a) Where an order is made pursuant to subsection (11), in the interests of justice and to protect the right to privacy of any person to whom the counselling record relates, the court may impose any condition it considers necessary on the disclosure of the record.
(b) Without prejudice to the generality of paragraph (a), one or more of the following conditions may be included in an order made pursuant to subsection (11)—
(i) that a part of the content of the counselling record be redacted,
(ii) that a copy of the counselling record and not the original be disclosed,
(iii) that the accused and any legal representative for the accused not disclose the content of the counselling record to any person without leave of the court,
(iv) that the counselling record be viewed only at the offices of the court,
(v) that no copies, or only a limited number of copies, of the counselling record, be made,
(vi) that information concerning the address, telephone number or place of employment of any person named in the counselling record be redacted from the record,
(vii) that the counselling record be returned to the person who owns or controls the said record,
(viii) that the counselling record is used solely for the purposes of the criminal proceedings for which the record has been disclosed.
(13) The court shall provide reasons for ordering, or refusing to order, disclosure of the content of a counselling record pursuant to subsection (12).
(14) (a) Subject to paragraph (b), a disclosure application shall be made before the commencement of the trial of the accused.
(b) Where, upon application by the accused, the court considers that the interests of justice require the making of a disclosure application after the commencement of the trial, the court may direct that such an application may be made.
(15) For the purposes of a hearing pursuant to subsection (8), all persons, other than officers of the court, persons directly concerned in the hearing and such other persons (if any) as the court may determine, shall be excluded from the court during the hearing.
(16) In addition to the meaning assigned to that expression by section 27 of the Act of 1995, ‘legal aid’ in that Act means representation by a solicitor or barrister, engaged by the Legal Aid Board under section 11 of that Act, on behalf of a complainant or witness in relation to a disclosure application that concerns the complainant or witness.
(17) This section does not apply where a complainant or witness has expressly waived his or her right to non-disclosure of a counselling record without leave of the court.”.