The law governing disclosure in criminal proceedings, currently under review by the Law Reform Commission, is of particular interest to those working in a professional or voluntary capacity with crime victims.
Everyone charged with a criminal offence is constitutionally entitled to a fair trial. This is a compendious right with many different elements including, most fundamentally, the right of accused persons to be properly informed of the allegations against them and the evidence upon which those allegations are based. The prosecution has a correlative obligation to disclose to the accused all material in its possession which is relevant to the charge. Material is relevant if it might weaken the prosecution case or strengthen the defence case.
The justification for this rule is that the prosecution has at its disposal the law enforcement machinery of the state to investigate alleged crimes and to collect evidence. The police have extensive powers of arrest, detention and interrogation as well as powers of search and seizure. Suspects and defendants cannot draw on state resources to assist them in gathering evidence for their defence. It is only right therefore that the prosecution should disclose to defendants well in advance of trial all relevant material in its possession, particularly since it bears the burden of proving the defendant’s guilt.
Ireland has, by most international standards, an effective system of disclosure in criminal proceedings. Subject to well-established rules of privilege, all relevant material in the prosecution’s possession is generally handed over to the defence. Problems can however arise when the defence seeks material which is held by third parties but which it claims to be essential for securing a fair trial.
A person charged with a sexual offence, for example, may seek access to the complainant’s medical records or counselling notes which are most likely to be in the possession of a doctor, health authority, counsellor or victim support organisation. The defendant may assert that there is a strong possibility that this material, if disclosed, would reveal significant inconsistencies between what the complainant told the investigating gardaí and what she or he had earlier disclosed to a counsellor.
Medical records
Defence applications for access to a complainant's personal records pose a difficult dilemma for the criminal justice system. The accused undoubtedly has a constitutional right to a fair trial. The overarching concern of the entire criminal process is to guard against the wrongful conviction of innocent persons. By the same token, complainants, like everyone else, have a right to privacy which includes a legitimate expectation that deeply personal matters which they disclose to their doctors, therapists or counsellors will remain confidential.
The question therefore is how best to resolve the tension between these competing sets of rights. A blanket denial of access to a complainant’s records in all circumstances would clearly be unjust. Experience shows that the content of such records can occasionally call into question the reliability of some aspects of the prosecution case.
Fishing expedition
But it would be equally wrong to order disclosure of all counselling records as a matter of course. Defendants might use such access as a fishing expedition to find material which they could later deploy for the sole purpose of embarrassing or degrading complainants during cross-examination. Victims of violent crime might consequently be reluctant to seek treatment or counselling.
One of the more important victories secured by those campaigning for rape law reform in the 1970s and 1980s was a formal restriction on the questioning of complainants about their previous sexual experience. It would be ironic if third-party disclosure were allowed so that intimate details of a complainant’s life were routinely revealed, thereby undermining the statutory protection from being questioned about such matters.
Some accommodation must therefore be reached that will protect, as efficiently as possible, the rights of both defendants and complainants. Many countries have already addressed this problem and a variety of strategies have been implemented, notably in Canada and Australia.
The general tendency has been to assume that counselling records should remain confidential, and to require defendants to satisfy the relevant court that they need access to them in order to secure a fair trial. How onerous the defence burden should be for this purpose will depend on the governing constitutional principles. Canada, for example, has a remarkably restrictive policy towards disclosing counselling records but this must be considered in light of Canadian supreme court jurisprudence which adopts a balancing approach when resolving conflicts between fair trial rights and other fundamental rights such as those to free speech and privacy.
In Ireland, on the other hand, the Supreme Court has repeatedly held that when a conflict arises between an accused person's right to a fair trial and other rights, including the community's right to have alleged crimes prosecuted, the individual right to a fair trial must prevail.
This is one of many considerations to be borne in mind when developing a just regime of third-party disclosure. The Law Reform Commission is anxious to consult widely on this topic and is holding a public seminar on it this Wednesday, May 21st, in the Law Library Distillery Building, Church Street in Dublin, beginning at 4.30pm.
Tom O'Malley BL is a Law Reform Commissioner