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Victims of a sexual offence – releasing your counselling records

Victims of a sexual offence – releasing your counselling records Section 19(a) of the Criminal Evidence Act 1992 as amended by Section 39 of the Criminal Law (Sexual Offences) Act 2017 

In a trial for a sexual offence, the defence must be told if you have counselling records. The defence will not be told the contents of the counselling records, only that they exist. The defence may ask to see the contents of the counselling records. They should ask for this before the trial begins, but they can ask after the trial begins. The prosecution can also ask to see your records if they think there is information relevant to the trial. 

You can choose to give your consent to release your records or not.  It is important to know that if you give your consent, you can withdraw it at any time.

If you give your consent

You can see your counselling records before they are released. You can bring someone with you when you see your records. Your records will be given to the prosecuting solicitor and they will examine the records for information that is relevant to the trial. In order to protect your privacy, any information that is not relevant to the trial will be redacted before the records are released to the defence. If there is nothing in your records that is relevant to the trial, your records will not be released. 

If your records are released to the defence, there are strict rules about who can see them: the prosecuting solicitor and barrister will see them first; the defence solicitor and barrister will only see information that is relevant to the trial; the accused person can see the information that is relevant to the trial but only if their solicitor or barrister is with them. The accused person is not allowed to take a copy of your records. The court may also set other conditions in order to protect your privacy and in the interests of justice. 

If you do not give your consent 

If you do not give your consent or if you withdraw your consent to release the records, the trial judge will have to decide if the records should be released to the defence without your consent. A hearing will take place where the judge will examine your records and decide if there is any information relevant to the trial. You can see your counselling records before this hearing. You are entitled to free legal aid – a solicitor and/or barrister – to represent your interests at this hearing. At the court hearing, the judge may decide that nothing in your records is relevant to the trial and your records will not be released. Alternatively, the judge may decide there is information relevant to the trial that must be released. If this happens, the judge will decide what information is to be released. The judge may also set conditions to restrict access to the information in order to protect your privacy. The judge will then order the information to be released to the prosecution and the defence. 

If there is information in your counselling records that is relevant to the case, it may be used as evidence in the trial. The prosecution barrister may ask you questions about the information in your records. The defence barrister may also ask you questions about information in your records. 

When the trial is finished, all copies of your records will be deleted or returned to the prosecution. 

For the law on this matter, see Section 19(a) of the Criminal Evidence Act 1992 as amended by section 39 of the Criminal Law (Sexual Offences) Act 2017: https://revisedacts.lawreform.ie/eli/1992/act/12/revised/en/html#SEC19A