Disclosure of Records and Privacy Rights in Rape Cases

The prosecutor's duty of disclosure of evidence to the defence in criminal prosecutions is one of the cornerstones of adversarial procedural justice and a long-standing principle in Scots law.¹1

Smith v HM Advocate1952 JC 66.

The Scottish Parliament recently enacted the Criminal Justice and Licensing (Scotland) Act 2010 (henceforth “the Act”) which clarified and re-drew the boundaries of disclosure in Scots law. The Act contains detailed measures for extending the duty of disclosure together with the provisions for judicial regulation of non-disclosure in limited circumstances.

This article focuses on a hitherto neglected aspect of disclosure, namely the impact on witnesses and complainers. The article argues that the Act will impact negatively on all witnesses but raise particular concerns for complainers in cases of rape and other serious sexual assaults. In such cases it is predictable that there will be an increase in the disclosure of medical and other personal records of complainers for any potential they have to cast doubt on the credibility and reliability of complainers. For the purposes of disclosure, sensitive personal information such as mental health history could very possibly be characterised as material and relevant information.⁴4

Section 116 of the Act sets out the type of information that must be disclosed.

The article explores the experiences in other jurisdictions where the disclosure of personal records has created an additional obstacle for complainants and a further disincentive to reporting rape. Clear parallels can be drawn with the use of sexual history evidence in rape trials which, despite efforts to regulate its admissibility, continues to be deeply problematic.⁵5

A sample of the extensive literature includes G Chambers and A Millar, Prosecuting Sexual Assault (1986); B Brown, M Burman and L Jamieson, Sexual History and Sexual Character Evidence in Scottish Sexual Offence Trials (1992); S Lees, Ruling Passions: Sexual Violence, Reputation and the Law (1997); J Temkin, Rape and the Legal Process, 2^nd edn (2002); L Kelly, J Temkin and S Griffiths, Section 41: An Evaluation of New Legislation Limiting Sexual History in Rape Trials (2006); M Burman, L Jamieson, J Nicholson and O Brooks, Impact of Aspects of the Law of Evidence in Sexual Offence Trials: An Evaluation Study (2007); J Temkin and B Krahé, Sexual Assault and the Justice Gap: A Question of Attitude (2008).

Over the years the duty of disclosure has attracted a great deal of juridical and scholarly attention because challenges to its scope and application are integral to debates over the right to a fair trial.⁶6

Key European Court of Human Rights decisions on disclosure include Edwards v United Kingdom (1992) 15 EHRR 417; Rowe and Davis v United Kingdom (2000) 30 EHRR 1 and Edwards v United Kingdom (2003) 15 BHRC 189. Recent academic literature includes C Moisidis, Criminal Discovery: From Truth to Proof and Back Again (2008); D Corker and S Parkinson, Disclosure in Criminal Proceedings (2009).

Two Privy Council decisions in 2005 set the course for substantial changes in Scottish disclosure arrangements: Holland v HM Advocate⁸8

[2005] UKPC D 1, 2005 1 SC (PC) 3.

The Judicial Committee ultimately held that the duty to disclose did not have to be triggered by a defence request for release of information, nor by an assertion of its relevance, not least because the defence might not even be aware of the existence of any specific relevant information. Separately, the court considered the procedural mechanism for recovery of documents in the hands of the Crown or a third party,¹⁰10

Applications for recovery pose particular difficulties for third party record-holders, such as counsellors, psychologists and psychiatrists. See J Temkin, “Digging the dirt: disclosure of records in sexual assault cases” (2002) 69 CLJ 126; K Busby, “Responding to defense demands for clients' records in sexual violence cases: some guidance for record keepers”, in C M Koggel, A Furlong and C Levin (eds) Confidential Relationships: Psychoanalytical, Ethical and Legal Contexts (2003) 207.

The impact of Holland and Sinclair was to require disclosure of much more information than had previously been assumed necessary, and to locate the duty to disclose entirely upon the Crown:¹⁴14

Sinclair at para 33 per Lord Hope, emphasis added.

The Crown's disclosure policy was further revised following the Holland and Sinclair cases,¹⁶16

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