Enhanced privacy rights in areas such as counselling notes, Tusla files and mobile phone data could “lead to relevant evidence being overlooked”, the Director of Public Prosecutions (DPP) has said.
Speaking on Saturday at a prosecutors’ conference in Dublin, Catherine Pierse said the “leading challenge” to delivering a fair and effective prosecution service was balancing privacy rights of complainants and accused people with ensuring all relevant information was gathered.
“For many of us whose legal education and professional formation placed relatively little emphasis on privacy rights [recent legal developments represent] a significant challenge to established assumptions within criminal practice,” she said.
In separate rulings, in 2024 (DPP v WC) and 2025 (DPP v AM), the Supreme Court examined whether past sexual history and a complainant’s counselling notes should be considered relevant in a case involving alleged sexual assault.
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The rulings emphasised “the privacy rights of complainants must be considered alongside the fair trial rights of the accused”, said Pierse.
Her office no longer asks An Garda Síochána to seek information concerning counselling records unless prompted by a reasonable line of inquiry.
“We also now routinely invite the defence to engage with the question of why particular records may be relevant to the issues in the case. Such engagement assists us in determining whether a request for personal information is necessary and proportionate.”
New legislation, amending section 19A of the Criminal Evidence Act 1992, had been enacted but not yet commenced.
It will extend increased protections afforded to counselling notes to other important categories of private and sensitive records, including Tusla records.
The implications of all this, she said, were that the same “principles of necessity and proportionality” would likely arise too in relation to other forms of evidence, particularly digital evidence such as mobile phone data, social media content and CCTV footage.
The growing challenge, as the volume of information about individuals increased, would be balancing privacy rights with the need to gather all necessary information to ensure fair trials.
“It is important I think to acknowledge also the risks associated with this enhanced recognition of privacy rights. The key concern is that an increased emphasis on privacy may lead to relevant evidence being overlooked.
“All of us are very conscious of the catastrophic prospect of a wrongful conviction. We must also remain mindful ... the accused’s right to a [fair] trial ... is ‘the superior right’.”
However, unnecessary intrusion into private matters could damage access to justice and confidence in the criminal justice system, she said.
“We encounter victims who are traumatised by the disclosure and use of deeply personal counselling records; victims who decline therapeutic support because they fear their records may later be scrutinised in court; and vulnerable children whose extensive Tusla files are reviewed solely because they happened to be in the care of the State.
“The emerging legal framework requires us to exercise careful judgment and balance competing rights in a more nuanced way.
“It requires us to assess realistically the likelihood that relevant material will be identified, to weigh that prospect against the degree of intrusion involved, and to ask whether such intrusion is truly necessary and proportionate in the circumstances.”
These would not be easy judgments, she said. “Increasingly, however, they are judgments that lie at the heart of modern criminal justice,” said Pierce.
The ongoing dispute between criminal aid defence solicitors and the Department of Justice over a new payment model was at “the forefront of all of our minds”, said Pierce.
Their role was “critical to upholding the rule of law”, she said.
“In an era characterised by intense public commentary, it has never been more important that unpopular individuals, accused of serious offences, have access to skilled and independent legal representation.
“I know it is the shared hope of everyone in this room that a resolution can be found as soon as possible.”
