Rulings signal ‘cultural shift’ in disclosure duty
Two Supreme Court judgments have resulted in a “cultural shift” in terms of disclosure obligations in sexual-offences trials, according to Catherine Pierse, the Director of Public Prosecutions (DPP).
The DPP was making her point in her address at the annual National Prosecutors’ conference on Saturday (15 November) at Dublin Castle, referring to the judgments in DPP v WC in October 2024 and DPP v AM in May of this year.
‘Serious intrusion’
“The judgment in DPP v WC made clear that issues involving serious intrusion into private life are not generally subject to disclosure unless directly material to an issue in the case,” she said.
“The Supreme Court returned to the issue in the case of DPP v AM. This case underlined the high bar for disclosure of counselling records, and also private and sensitive material more generally, as well as the rights of victims to have access to legal advice.”
DPP vs. WC clarification
The DPP noted that the WC judgment in particular clarified the obligations of all parties – the prosecutor, the defence and the trial judge – in relation to disclosure.
The judgment established that no aspect of the right of the accused to remain silent can render it appropriate to leave opaque what case the defence may seek to make at trial, and that it is the role of the trial judge to decide on disputes.
“In other words, the days of the prosecution having to figure out on its own, in a sea of data and records, what could potentially, ‘in an abundance of caution’, be relevant, should be coming to a close,” she said.
“Going forward, it is our job as prosecutors to make sure we are proactively engaging with the defence from an early stage to ensure that the privacy rights of victims can be appropriately balanced against the fair trial rights of accused,” the DPP said.
Impact of DPP vs AM
The AM case has prompted changes in practice by the Office of the DPP and An Garda Síochána to address the need for victims to have access to legal advice in advance of agreeing to any waiver of a disclosure hearing.
However, the AM judgment itself dealt only with disclosure, and not with the earlier stages in the process, including the procuring of records in the first place, the DPP noted.
“Moreover, different judges have interpreted aspects of the judgment differently. There is a road to go yet, therefore, before all of the implications of that judgment are fully resolved and we are in a position to issue definitive guidance on some of the complex questions that are arising,” she said.
“Both judgments have also highlighted the need for this area to receive further legislative attention, and I very much support that view,” the DPP said.