It is not unusual for either the defendant or the CPS to make an application for a witness summons seeking disclosure of a victim’s sensitive and private medical records in criminal proceedings. However, there seems little understanding or clarity amongst lawyers and judges alike as to the correct application of the law in this sensitive area.
It so happened in the case of HM – a 19 year old woman who made a complaint of several counts of rape against her husband. The CPS agreed to prosecute the offence of rape contrary to Section 1 of the Sexual Offences Act 2003. In the course of the proceedings, they applied for a witness summons addressed to the Helen Bamber Foundation, a charity which provides amongst other things advice and counselling to the victims of torture and abuse. The Crown sought “any material that might undermine the Crown’s case or may support the defence case”.
The Helen Bamber Foundation wished to oppose the disclosure of the records which they held for their client on the grounds that such disclosure would undermine the patient/counsellor relationship, and undermine confidence in them as an organisation.
HM herself eventually sought legal advice and was horrified that her private counselling notes should be made available to the CPS and possibly thereafter to her husband the defendant.
It is to say the least surprising that in 2014 it is suggested that a rape complainant should in anything other than the most exceptional circumstances be compelled to endure the enforced disclosure of very personal counselling records as a consequence of her having reported the rape. This was the scenario facing HM, a nineteen year old Afghan woman, who had left Afghanistan following the assassination and torture of members of her family and had been granted asylum in the UK in 2012. She made a complaint that her husband had raped her over several months.The CPS agreed to prosecute the rape allegation.
Third Party Disclosure
The requirements for third party disclosure – all of which must be met, are that the documents must be relevant to the issues arising; they must be admissible in evidence; they must be “likely to be material”; it must be in the interests of justice to require the production of the documents; and the procedure must not be used as a “fishing expedition”.
The Court of Appeal provides the following guidance in The Court of Appeal “Disclosure – A protocol for the control & management of unused material in the Crown Court” paragraph 52.
“Any application for third party disclosure must identify what documents are sought and why they are said to be material evidence. This is particularly relevant where attempts are made to access the medical reports of those who allege that they are victims of crime. Victims do not waive the confidentiality of their medical records or their right to privacy under Article 8 of the ECHR by the mere fact of making a complaint against the accused. Judges should be alert to balance the rights of victims against the real and proven needs of the defence. … General and unspecified requests to trawl through such records should be refused”.
The common law recognises not just the individual’s interest in confidentiality but also a public interest in maintaining professional duties of confidence, see W v Egdell  CH359.
The Strasbourg Court has also found that the protection of personal and in particular medical data, is of fundamental importance to Article 8 rights, both for individual privacy and to preserve confidence in health services, Z v Finland  25 EHRR 371.
Very similar issues arose in the case of R (B) v Stafford Crown Court  1WLR 1524 in which the Divisional Court held that the duty of confidence owed by a medical professional to young person (a victim of sexual assault in this case) is a high one which should not be overridden except for a very powerful reason and that it would be wrong to have the mind-set that applications for disclosure of medical records of a prosecution witness will usually succeed. The case also outlines the procedure to be adopted on applications for third party disclosure.
It is therefore surprising that some five years later there remains considerable confusion about the CPS’s responsibilities and the requirements for third party disclosure.
The denial of funding
The case highlights the pitfalls involved for victims seeking justice in these cases. First the Legal Aid Agency refused funding to HM on grounds that her interests were aligned with the Helen Bamber Foundation and that they could represent her interests. Second on grounds that her case was unmeritorious. That decision is now the subject of a judicial review claim, in which it is argued that the threshold for grant of exceptional funding is set too high and is likely to lead to a breach of Convention rights under Articles 6 & 8.
The hurdles to get a determination
At the first hearing the Judge failed to grapple with the issues adjourning it to another hearing. At the second hearing the Judge decided to order disclosure but then set a number of further hoops for HM to jump through if she wished to continue to oppose disclosure. At this hearing the Judge ordered that the counselling notes were material and should be disclosed. He then went on to provide two “back stops” to HM by stating that she could make an application for a public interest immunity hearing to argue about disclosure to the CPS and a second back stop provision by asking for a further public interest immunity hearing if the CPS decided to disclose to the defendant.
Following the order that the records should be disclosed to the CPS, HM went on to make an application for a public interest immunity hearing, although the procedure adopted by the Judge was far from usual. She succeeded in opposing disclosure at the third hearing where the Judge finally held that the records were not relevant or material and that it was certainly not in the public interest to disclose her private counselling notes to the CPS.
The case highlights that since we acted for B in a case against Stafford Crown Court seven years ago, very little has changed in terms of understanding about the rights of victims in criminal trials not to be subjected to an unwarranted intrusion into their privacy merely because they have made a complaint which results in a prosecution. The CPS appears to think that they have a wide ranging obligation to seek disclosure in these circumstances and the court seems to follow a similar path. Fortunately, once again the victim sought representation (although few do) and was vindicated. The case highlights problems of obtaining funding as well as highlighting how difficult it is for the victim to obtain redress against unwarranted applications to undermine their credibility. A situation exacerbated by the courts themselves in a lack of understanding and clarity about victim’s rights.