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Disclosure of Records and Privacy Rights in Rape Cases

Document Cited authorities 26 Cited in Related
Vincent
Published date01 January 2011
DOI10.3366/elr.2011.0003
Pages33-56
Date01 January 2011
INTRODUCTION

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.1

Smith v HM Advocate 1952 JC 66.

It is a fundamental component of a fair trial, in particular the principle of equality of arms whereby the greater resources of the state to investigate crime entitle the accused to have access to the same evidential material that is available to the Crown.2

See Smith at 72-73. “The Crown” is used in this article to refer to the Crown Office and Procurator Fiscal Service.

 This is so even if the Crown has no intention of relying upon that material as evidence. The defence has a right to examine all information uncovered in the course of a criminal investigation that might exculpate or mitigate any criminal liability of the accused, or undermine the Crown case.3

McLeod v HM Advocate (No 2) 1998 JC 67.

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.4

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

The problem with this lies less in the principle of disclosure of these records, and more in the ways in which the privacy interests of complainers could be heavily compromised in circumstances where they will have no access to independent legal advice

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.5

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, 2nd 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).

The extended ambit of disclosure set out in the Act has direct implications for the privacy rights of complainers and it is argued that the Act provides insufficiently robust safeguards for the protection of these individual interests. Given the complex environment in which disclosure obligations in adversarial proceedings must be satisfied, the article argues that on this issue Crown prosecutors cannot adequately discharge their traditional responsibilities to take the interests of complainers into consideration as part of the public interest. The article concludes that complainers should therefore have an entitlement to independent legal representation to pursue their legitimate privacy interests in non-disclosure. Although the article centres on the reforms in Scots law, the issues have broader application in all common law jurisdictions THE EVOLUTION OF THE DUTY TO DISCLOSE

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.6

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).

Until 2005 the way that the Crown discharged their disclosure duty was explained in the full bench decision in McLeod:7

McLeod v HM Advocate (No 2) 1998 JC 67 at 79.

… the Crown will respond to specific requests from the defence for information or for the production of statements or other items where the defence can explain why they would be material to the defence … when they respond in this way, the Crown are not merely acting out of kindness but are performing their duty to impart information which supports the defence case in the particular situation where they have been made aware of the possible significance of these items for the defence of the accused.

 McLeod had appealed against his conviction for various drugs-related offences, and sought production of all of the 77 pro forma questionnaires obtained as police statements, instead of the small proportion of these that the Crown had chosen to disclose. The court rejected the appeal, affirming the Crown position at the time – that the onus lay on the defence to show why there should be production – and declaring that this onus had not been discharged

Two Privy Council decisions in 2005 set the course for substantial changes in Scottish disclosure arrangements: Holland v HM Advocate8

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

and Sinclair v HM Advocate.9

[2005] UKPC D 2, 2005 1 SC (PC) 28.

 In Holland and Sinclair both the Scottish judges, Lord Hope and Lord Rodger, considered the Crown's approach to disclosure was not wholly compliant with the Convention rights of the accused

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,10

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.

namely an application for commission and diligence, was flawed and unsuitable for the determination of disputed disclosure applications.11

For example, see Lord Rodger's comments in Holland at para 72, and Lord Hope's comments in Sinclair at para 29.

 Common law petitions to the court for commission and diligence feature occasionally in criminal litigation, usually where the defence apply for production of certain documents that the Crown are reluctant to hand over on the public interest ground of confidentiality. The Judicial Committee noted that in light of the Bonomy reforms12

Improving Practice: 2002 Review of the Practices and Procedure of the High Court of Justiciary (2002), specifically recommendation 2 at 116, the fruits of which are now embodied in Part 6 of the Act.

 and revised Crown disclosure practices, more information would routinely be released, making future applications for commission and diligence less likely.13

Sinclair at para 29 per Lord Hope.

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:14

Sinclair at para 33 per Lord Hope, emphasis added.

… the prosecution is under a duty to disclose to the defence all material evidence in its possession for or against the accused. For this purpose any evidence which would tend to undermine the prosecution's case or to assist the case for the defence is to be taken as material.

 “Any evidence” moved considerably beyond the usual items disclosed by the Crown to the defence such as police statements, previous convictions of witnesses, and forensic reports. The doubts expressed about Crown practice by such senior judges, with the inevitable implications for other cases and appeals, prompted the Scottish Government to appoint a retired judge, Lord Coulsfield, to conduct a comprehensive review of disclosure practice. In his subsequent report Lord Coulsfield made a number of recommendations to clarify the law.15

Review of the Law and Practice of Disclosure in Criminal Proceedings in Scotland (2007) (henceforth “the Coulsfield Review”), available at www.scotland.gov.uk/Publications/2007/09/11092728/37.

 After public consultation the spirit of these recommendations was largely adopted in the Criminal Justice and Licensing (Scotland) Bill, Part 6 of which was devoted to disclosure, though the clarity of Lord Coulsfield's proposed statutory reforms was abandoned on the journey towards enactment.

The Crown's disclosure policy was further revised following the Holland and Sinclair cases,16

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