Courts and Civil Law (Miscellaneous Provisions) Bill 2013: Report and Final Stages

Tuesday, 2nd July 2013

Part 1:

I welcome the Minister back to the House on Report Stage of what has become a very comprehensive Bill. Last Wednesday on Committee Stage, I outlined in great detail the rationale and urgency behind my amendment, and I do not propose to do so again today because we are all here. I have conducted extensive legislative analysis on my proposal, which I believe strikes the appropriate balance between the right of the accused to procedural fairness and the right of the child witness to privacy and personal dignity. Without ready access to legislative drafters, it is difficult to translate a legitimate and necessary reform such as this into a legislative proposal, and I thank the Minister for his critique of my amendment on Committee Stage. It has given me this opportunity, albeit with an extremely short turnaround time, to revert with a more robust amendment that I urge him to accept today.

The Minister’s primary concern on core procedure is very valid. I have altered the wording to allow the matter to be considered pre-trial. I have also added a reference to the rule of court to allow for further regulation of the application process by way of an amendment to the rules of court, should the Minister or the court rules committee find it necessary to do so. For example, the rules could set out a prescribed form for such applications, time limits and so on.

I noted the Minister’s concerns in respect of the qualifications of a counsellor and clarity as to whom communication should be regarded as confidential. It is unwise to specify any particular credential for counsellors. This is partly due to the wide range of training and education approaches in the area. More important is the avoidance of a situation where communication made by a child in confidence is disclosed simply because the counsellor did not pass all the exams, or passed the wrong kind of exams. The regulation of the counselling profession is an important question, but there is a danger of allowing a preoccupation with credentials to distract from the purpose of this amendment. However, to address the Minister’s concern, I have added the following short provision which allows the Minister to refine, by way of statutory instrument, the definition of “counselling” and “counsellor”, while allowing the amendment to proceed.
The amendment I have proposed states that the Minister “may by order set out detailed criteria regarding the conduct of sexual assault counselling, and the training or qualifications of those who provide sexual assault counselling for the purposes of this Act.” I also noted the points the Minister made about the word “encouragement”. While I believe it is a remote concern, I have removed the word from the section.

I thank the Minister for his letter following the Committee Stage debate and I would like to address some of the points he raised therein. He said that any proposal should address the rights of an adult as well as child complainants, and that immediate action is required, and as such he has decided to deal with the issue in the forthcoming sexual offences Bill. In my Committee Stage intervention, I stressed the urgent to address the issue of third party disclosure of confidential records for adults complainants. I know that there is a considerable amount of work being done by interested members, including myself and Senator Bacik, and by advocacy groups, and I welcome the Minister’s commitment to act. However, I do not see any justification for not proceeding with a legislative solution for children immediately in this Bill, as opposed to the sexual offences Bill, for which the heads have not yet been approved by the Government. In February 2012 I brought forward a motion on child abuse material, and at that point I was promised it would be in the sexual offences Bill that would be published shortly. I hope the Minister can understand that this is a very real and pertinent issue that is being dealt with at the moment. Every child has the right to protection from harm, abuse and exploitation, including from criminal justice arrangements.

As an aside, I must raise the experience of child victims of sexual abuse and the criminal justice system about repeated interviewing by separate agencies, most commonly in the context of parallel Garda investigations alongside a child protection investigation. The attendant risk of further trauma and upset for a child in this context can be avoided by joint interviewing, which is done in other countries. From a legal perspective, limiting the number of times a child is interviewed will reduce the potential for the type of contamination of a child’s recollections of events which can lead to the failure to secure a conviction.

We need effective co-ordination and training of gardaí and social workers interviewing child victims of sexual abuse. I note the arrangements in place for this in our neighbouring jurisdictions, such as the UK, in achieving best evidence, video interviews and the detailed, recommended practice for interviewing child witnesses in the latest edition of “Achieving best evidence in criminal proceedings, Guidance on interviewing victims and witnesses, Guidance on using special measures” and “Guidance on joint interviewing of child witnesses in Scotland in 2011.”

I have already pointed out that there has been a notable increase in requests from the DPP’s office seeking access to therapists’ notes of children’s private and confidential therapy sessions over the last six to 12 months. That is a very real issue right now. As an independent office, I appreciate that the Minister cannot directly instruct the Office of the Director of Public Prosecutions to revise its practice in this area. There is no time to waste in introducing legislative guidelines. I also appreciate the need for a solution that is workable from both a prosecution and defence perspective, but the arrangements proposed do not affect in any way the disclosure of material evidence or evidence relevant to a criminal trial. The issue has been raised on a number of occasions, most recently in 2010 by Dr. Geoffrey Shannon, who is the Government appointed special rapporteur on child protection. He stressed the urgent need for legislation then. That was three years ago and no legislation has come forward.

I do not have the legislative drafters that the Minister has at his disposal and the advice that he receives. I do not need it for this amendment today in the Seanad, but it is not good enough that this will be promised in a Bill in the near future. This is about children at the moment whose records are being handed over. Parents have told me they are not sending their child to counselling because of this situation. We have an obligation to do something. I appreciate the Minister understands this issue as much as I do; probably more so from dealing with cases. I have put this amendment forward in good faith and I have tried to get the balancing right. I am willing to go back and work on this. If it has to be brought through in the Dáil, I have no difficulty with that. It is not about my name, but about the children in these cases. We have seen the increase in the DPP requests in the last six to 12 months. This issue is escalating rather than going away.

Part 2:

I thank the Minister. On the last point, the Cabinet Secretary on Justice at the Scottish Parliament has issued guidance notes on joint investigative interviewing of child witnesses. That could perhaps be done quite easily in co-operation.

With regard to the substantive amendment, perhaps in the consultations the Minister might, in addition to consulting the DPP, consult the NGOs and the victims’ units that deal with the cases at the moment, and discuss their relationship with the DPP. They are very conflicted over the role they play in counselling and how to ensure that people are brought to trial for the offences they have committed. They face an impossible dilemma. We need urgently to find a way to deal with it.

I am very happy to share the work I have done so far with officials to see if we can progress this issue. I take the Minister’s word on the sexual offences Bill. The only caveat I will enter is that if another miscellaneous provisions Bill comes along in the meantime I will back here and the Minister will remember that I said I would come back here.

If another miscellaneous provisions Bill comes along in the meantime, I will be back here and the Minister will remember that I said I would come back because we all know that we have good intentions to bring things forward. I know that the sexual offences Bill will be comprehensive and I would prefer it to be dealt with in a comprehensive manner, but for adults, there is a pressing urgency. Specifically for me, however, this involves the vulnerability of children and child witnesses; therefore, there is urgency with regard to child witnesses specifically.

Part 3:

Last but not least, I echo the thanks of the House to the Minister and his officials. The changes in family law and court proceedings are very important. I acknowledge not only the Minister’s engagement with us but also with NGOs. Perhaps in looking back later people might see that not only has he engaged in the House on his reforming agenda but he also has been willing to listen to views from all sides. I thank him for this engagement. I hope one day to succeed with an amendment I tabled. Therefore, I have set a challenge for myself. When the Minister comes to the House, it is very encouraging and worth the effort we put in as Senators knowing that he will engage robustly but also appropriately, as we should on all legislation. I thank him for this.

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