RCI calls on Minister for Justice to honour commitments to survivors
17th May 2026: Rape Crisis Ireland (RCI) is urging Minister for Justice Jim O’Callaghan to introduce two targeted amendments to the Criminal Law and Civil Law (Miscellaneous Provisions) Bill 2026 before the Select Committee on Justice, Home Affairs and Migration meets on Tuesday 19th May. The appeal comes after publication of the draft legislation, which omits two specific commitments made earlier this year.
The Minister committed in Dáil Éireann on 22nd January 2026 to introduce a statutory presumption of non-disclosure of counselling notes and other sensitive personal records in sexual offence proceedings and stated that the sole test for any disclosure would be a real risk of an unfair trial. Neither commitment appears in the published Bill.
“It is deeply unsatisfactory that the Minister has not yet honoured the clear, public commitments he made to survivors earlier this year,” says Dr Clíona Saidléar, RCI’s Executive Director. “The word ‘presumption’ does not appear once in this legislation. That is not a technicality; it is the difference between a law that protects survivors and one that only appears to.
“We urge the Minister to ensure the legislation matches the commitments made in Dáil Éireann and confirmed in a press release,” Dr Saidléar continued. “Survivors have waited long enough, have been disappointed enough and they deserve a law that does what was promised.”
The Two Critical Gaps
- A statutory presumption of non-disclosure
On 22nd January 2026 Minister O’Callaghan stated in Dáil Éireann that he would introduce a presumption of non-disclosure: that the default position would be that counselling notes were not to be disclosed. This commitment was restated in a Department of Justice press release on 4th February 2026. However, the word “presumption” does not appear anywhere in the text of the most recent amendments.
“What the amendments create is a higher gatekeeping test, which is a real improvement, but a gatekeeping test and a statutory presumption are different legal mechanisms with different practical effects,” says Dr Saidléar. “A presumption establishes where the law begins and shifts the burden of proof. Without it, there is no statutory anchor for the protective intent of the section, and that intent risks being diluted through judicial interpretation over time.”
RCI is asking the Minister to introduce a standalone subsection stating clearly that there shall be a presumption of non-disclosure in respect of all applicable records.
- The “interests of justice” ground must be removed
The Minister committed publicly that the sole basis for disclosure would be a real risk of an unfair trial. “That standard appears in the legislation, which is very welcome, but it is accompanied by another ground which we fear will undermine this high standard in much the same way as the waiver in section 19A undermined the intended protections of that section over the past decade,” says Dr Saidléar. “The second ground, at new Section 19A(11)(b)(ii), allows disclosure where ‘it is otherwise in the interests of justice to so order’. This phrase has no statutory definition in this context and is capable of expanding through judicial interpretation over time.
“The Minister described the sole test as a real risk of an unfair trial; that is what he secured Cabinet approval for, but that is not what is in the Bill,” Dr Saidléar continues. “The open-ended ‘interests of justice’ ground could, over time, become the primary route to disclosure, replicating exactly the flexibility that permitted systemic over-disclosure before these reforms. That cannot be what was intended. We are asking that this ground be removed from Section 19A(11)(b), leaving the real risk of an unfair trial as the sole and exclusive test, as publicly committed.”
Two further issues
RCI has also drawn the Minister’s attention to two further gaps that could be addressed without structural difficulty:
- No provision is made for a mandatory judicial warning to the jury where disclosed records containing the analysis or opinion of the record-maker are used in evidence at trial. Counselling records and similar documents are third-party interpretations of conversations, not formal statements of fact. Where they are used in cross-examination, hearsay material may be presented to the jury as though it were direct evidence against the complainant’s own account. A mandatory warning would address this without disturbing any other element of the framework.
- While the requirement for written reasons under Section 19A(13) is preserved, written reasons available to the parties alone do not constitute a transparency mechanism. RCI is seeking access to hearings and transcripts – with appropriate anonymisation – for civil society organisations and NGOs working in the sexual violence sector, and for recognised researchers and journalists. Without this, it will not be possible to scrutinise how the reformed legislation operates in practice, including how the “interests of justice” ground is being applied.
What the Bill gets right
RCI welcomes a number of meaningful changes, including the deletion of the Section 19A(17) waiver provision, which had become the primary mechanism by which survivors were routed outside the judicial oversight the section was designed to provide – the introduction of a two-stage preliminary gatekeeping process that reduces the number of survivors exposed to the full hearing process, and the removal of the prosecutorial duty to notify the accused of the existence of personal records, which had contributed to a culture of routine record-gathering before any question of relevance was determined by a court.
“We are supportive of this Bill proceeding and we are not asking for delay,” says Dr Saidléar, “But we are asking for two specific changes that would ensure the legislation matches the commitments given.”
