The disclosure of a rape complainant’s counselling notes during a trial “will be very much an exception” under plans to change the law, Minister for Justice Jim O’Callaghan has said.
The Cabinet has approved a series of proposals to amend various aspects of criminal and civil law. These include plans for a statutory presumption of non-disclosure of a complaint’s counselling notes in cases in sexual offence trials.
A number of sexual violence survivors and advocacy groups have urged an outright ban on the use of counselling notes in rape trials.
It is understood, however, that Attorney General Rossa Fanning has told the Government that an outright ban would be legally challenged because of an accused’s constitutional right to a fair trial and access to evidence that could strengthen their defence or weaken the prosecution.
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Advocacy groups such as the Dublin Rape Crisis Centre have questioned if third-hand notes from counselling sessions could ever reach the threshold of exculpatory evidence, that which benefits the accused.
Speaking during a press conference after Wednesday’s Cabinet meeting, Minister for Justice Jim O’Callaghan said: “I think everyone in this debate agrees that the current situation is unacceptable, where counselling notes of complainants in sexual offence trials are provided nearly on an automatic basis. That needs to change.”
He said he previously got approval for a measure that means counselling notes cannot be provided for trials unless there has been a judicial hearing relating to them.
O’Callaghan said the new measure goes further: “I’ve now got approval for recognition that there should be a statutory presumption of non-disclosure.
“I think that is a very strong measure to protect complainants, to ensure that their counselling notes would only ever be disclosed in circumstances where it is absolutely necessary for the purpose of the interests of justice.”
Addressing criticism of the measures proposed by the Government, O’Callaghan said: “I’m conscious some people aren’t happy with it, but what I’m proposing will significantly improve the situation at present, such that disclosure of counselling notes will be very much an exception.”
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He said: “it will only happen when it’s in the interests of justice and the court, having looked at the document, says there’s probative evidence there that’s of benefit to an accused in the case.”
The measure is included among a series of proposed amendments to the Criminal Law and Civil Law (Miscellaneous Provisions) Bill 2026.
O’Callaghan also secured approval for amendments to allow for the potential expunging of historical convictions relating to consensual same-sex activity.
He said the disregard scheme “applies in respect of men who are convicted of historic homosexual offences prior to 1993 and the decriminalisation of homosexuality in Ireland”.
Men who were convicted – or their families, if they are deceased – will be able to apply to a independent reviewer to have their convictions disregarded if appropriate, O’Callaghan said.
He said: “I believe it’s a fair scheme, and it takes into account the historic injustice that was done to very many men in Ireland since 1922 and prior to 1993.”
Separately, O’Callaghan said he will be seeking to add two further offences to the list of those for which bail can be refused if a court believes an individual is likely to commit a further offence.
These are intimidation of witnesses and failure to comply with the notification requirements under sex offenders legislation.
The various amendments all have to be passed by the Oireachtas.
They will now be drafted and are to be added to the legislation as Committee Stage amendments in the Dáil.
