The Director of Public Prosecutions has called for more clarity in the law relating to obligations to obtain and disclose material, including counselling records, for trials of sexual assault offences.
Director Catherine Pierse welcomed “a cultural shift” marked in two Supreme Court judgments about the responsibilities of the prosecution, defence and trial judges in relation to disclosure.
“Both judgments have also highlighted the need for this area to receive further legislative attention, and I very much support that view,” she said.
She was addressing the annual national conference of prosecutors, attended by hundreds of lawyers and representatives from various State agencies and NGOs, in Dublin on Saturday.
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In a wide-ranging address, the director said the Supreme Court, in the DPP v WC judgment, had made clear that issues involving serious intrusion into private life are not generally subject to disclosure unless directly material to an issue in the case.
That judgment stated no aspect of an accused’s right to remain silent could render it appropriate to leave opaque what case the defence may seek to make at trial and that it was the role of the trial judge to decide on disputes.
The Supreme Court’s judgment in the second case, DPP v AM, delivered last May, underlined the “high bar” for disclosure of counselling records and private and sensitive material more generally, as well as the rights of victims to have access to legal advice, she said.
The effect is that the days of the prosecution having to figure out on its own, “in a sea of data and records”, what could potentially, “in an abundance of caution”, be relevant should be coming to a close, Ms Pierse said.
“Going forward, it is our job as prosecutors to make sure we are proactively engaging with the defence from an early stage to ensure that the privacy rights of victims can be appropriately balanced against the fair-trial rights of accused.”
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Ms Pierse said the AM case had prompted changes in practice by her office and by An Garda Síochána to address the need for victims to have access to legal advice in advance of agreeing to any waiver of a disclosure hearing.
However, the AM judgment itself dealt only with disclosure and not with the earlier stages in the process, including the procuring of records in the first place, she said. Different judges had also interpreted aspects of the judgment differently.
That meant there is “a road to go” before all of the implications of the judgment are fully resolved and her office can issue definitive guidance on some of the complex questions arising.
The AM case concerned a man convicted at Kerry Circuit Criminal Court in late 2021, after a three-day trial, on a single count of sexual assault of his grandniece ‘C’ when she was aged 12.
In advance of his trial, the accused’s lawyers ceased representing him and his new legal team made a wide-ranging request for additional disclosure, including any reports, notes and memorandums arising from any attendances by C with a psychiatrist, psychologist, psychotherapist, counsellor, guidance counsellor or other medical professional or adviser.
Some records were disclosed but some which had been overlooked, relating to counselling that C underwent about five years after the offence, were provided to the defence after the man’s conviction. In his appeal he argued the late disclosure of this “new evidence” had prejudiced his fair-trial rights and his conviction should be quashed.
In dismissing his appeal, the Supreme Court said “some compelling basis” must be established for disclosure to be directed, involving showing the records were likely to be of real forensic value to the accused’s defence.
The evidence at issue would have been of limited evidential and forensic value and there was no plausible basis for considering it might have had any material impact on the jury’s assessment or undermined its view of the credibility and reliability of C, the court found.
