Protocols for rape cases to be changed

THE HSE and the Director of Public Prosecutions are working on a new protocol to deal with requests from defendants in rape cases for counselling notes, which retired DPP James Hamilton has described as a “tactic” designed to intimidate alleged victims.

James Hamilton, who retired as DPP this week, said he began the discussions with the HSE on the issue and hoped his successor, Claire Loftus, would conclude them shortly.

Counsellors and the Children At Risk in Ireland organisation have already raised concerns over the practice of the defence in rape and sexual assault cases demanding access to counselling notes.

Mr Hamilton said requests for such information were “more of a tactic to intimidate the person out of making the complaint”.

He said counselling notes could contain private data unrelated to the case, such as if the alleged victim suffered from depression, but this information could be used in court by the defence.

“That is a big problem and it is done largely because it has a chilling effect on the complainant,” Mr Hamilton said. “We have had this discussion with the HSE and are working on a protocol on how you would deal with this.”

One option, he said, would be for the DPP to have access to counselling reports and thereby be in a position to argue whether or not any information was relevant. If there was relevant information, other data could be redacted, while if the complainant did not wish to hand over the counselling notes, the DPP could decide not to pursue the case.

Laws in other countries such as Canada differ from those in Ireland and strike a different balance between client privacy and the interests of justice.

The DPP has operated a pilot project since 2008 outlining the reasons for not prosecuting homicide cases and Mr Hamilton said the next step was to extend this to rape and sexual assault cases.

“That is a process that is taking place at the moment,” he said. However, he admitted that there was a “resource question” over extending the scheme, stating: “You cannot put a foot wrong in what you tell people [involved in those cases].”

He added that he did not think such a move would make “a lot of difference to the number of cases we prosecute” and said there was under-reporting of sexual offences, particularly involving “the more well-off” as those people preferred to avoid putting themselves through the experience of the criminal justice system.

“It is a big problem,” he said. “I do not know that there is an easy solution to it.”

He also said the DPP’s move to the old Department of Defence headquarters on Infirmary Road was now going ahead, meaning an end to the current situation where the DPP is split across two Dublin offices.

Mr Hamilton added that in any cases involving young people, particularly those who are be in care, “long term thinking” was needed so as to avoid children being criminalised.