R (B) v Stafford Crown Court

JurisdictionEngland & Wales
JudgeLord Justice May,Mr Justice Forbes
Judgment Date03 July 2006
Neutral Citation[2006] EWHC 1645 (Admin)
Docket NumberCase No: CO/1087/2006
CourtQueen's Bench Division (Administrative Court)
Date03 July 2006

[2006] EWHC 1645 (Admin)

IN THE HIGH COURT OF JUSTICE

DIVISIONAL

Before:

Lord Justice May and

The Hon Mr Justice Forbes

Case No: CO/1087/2006

Between:
The Queen on the Application of TB
Claimant
and
The Combined Court at Stafford
Defendant
and
The Crown Prosecution Service(1)
South Staffordshire Healthcare NHS Trust (2)
Interested Parties

Michael Fordham (instructed by Bindmans) for the Claimant

David Lock for the South Staffordshire NHS Trust

Roderick Henderson for The Crown Prosecution Service

Lord Justice May

Introduction

1

The Criminal Procedure Rule Committee is considering making amendments to Part 28 of the Criminal Procedure Rules 2005. This application for judicial review, for which McCombe J gave permission, illustrates the need to do so. I trust that our judgments in this case will be taken as our contribution to the Committee's consultation.

The facts

2

TB, the claimant, is a young girl now aged 15. She was aged 14 at the time of the events relevant to this application. Details of or leading to her identification must not be published. She was to have been, and in the event was, the main prosecution witness in the trial of a man, W, charged in the Crown Court at Stafford with sexual offences in relation to her. He was in due course convicted of count 2 of an indictment, which alleged sexual activity with a child, contrary to section 9(1) and (2) of the Sexual Offences Act 2003.

3

From at least February 2005 and in the months leading up to W's trial, TB had been receiving psychiatric treatment from the South Staffordshire NHS Trust, the First Interested Party. She had taken overdoses of paracetamol and ibuprofen on three occasions between February and November 2005. On 16 th November 2005, W's solicitors wrote to the Crown Court asking for a witness summons directed to the Director of the Child and Mental Health Services of the Trust requiring the production of TB's medical and hospital records. The grounds given refer to a history of self harm and mental illness which might undermine her credibility as a witness.

4

Section 2(1) of the Criminal Procedure (Attendance of Witnesses) Act 1965 , as amended by the Criminal Procedure and Investigations Act 1996, provides that a witness summons may be issued where the Crown Court is satisfied that a person is likely to be able to give material evidence or produce any material documents for the purpose of Crown Court criminal proceedings, and it is in the interest of justice to issue a summons to secure the person's attendance. By section 2(7), an application for a witness summons has to be made in accordance with the Criminal Procedure Rules.

5

Rule 28 of the Criminal Procedure Rules 2005 stipulates the form and content of the application and provides that a copy of it and the supporting affidavit should be served on the person to whom it is directed at the same time as it is served on the court officer. The person to whom it is directed may indicate if he wishes to make representations at a hearing. If he does so, the court has to fix a hearing.

6

The application in the present case requested a summons directed to the NHS Trust to produce medical records. It is a fundamental principle that a person's medical records are confidential. Surprisingly the Rules do not require service of an application such as that in the present case on the very person whose confidence would be broken by their production – not least in the present case their production to a defendant who was alleged to have abused TB sexually.

7

The application did not comply with the rules in a number of particulars that are not centrally relevant to the present application. For instance, it was not supported by an affidavit. Nevertheless, on 17 th November 2005, the Crown Court issued the summons to the Director of the Child and Mental Health Services of the Trust, directing him to attend and produce all records relating to TB at what was referred to as a Public Interest Immunity hearing on 28 th November 2005.

8

The Trust took and expressed the view that confidentiality between doctor and patient, especially in psychiatric cases and above all when dealing with victims of child abuse, was essential; and that the confidentiality belonged to the patient, not the Trust.

9

At the hearing on 28 th November 2005, W's counsel submitted that the defence case was that this was a school girl crush used as a basis for fantasy and to invent an allegation. The judge considered that evidence from the medical notes that TB had attempted suicide and that she was having difficulties was plainly relevant to her credibility and that any argument to the contrary was wasting his time. He said that he had a balancing exercise to perform, one side of which was to make sure that W had a fair trial. W was a 34 year old man of good character facing serious allegations which, if he were convicted, would result in a prison sentence. In the balancing exercise, that must take precedence over confidentiality issues. The judge ordered disclosure of 23 pages of TB's psychiatric records.

10

On 30 th November 2005, the Trust notified the Official Solicitor, who immediately notified the Crown Court, the Crown Prosecution Service and W's solicitors that she now represented TB in connection with a possible infringement of her rights under Article 8 of the European Convention on Human Rights. The Trust, supported by the Official Solicitor, asked the judge to state a case for the consideration of the High Court. The judge was unhappy with this, because it would delay the trial which was fixed for 12 th December 2005. After two more hearings, the judge decided to invite TB herself to attend court the following morning. The judge wanted to know what her view would be on the disclosure (which had already taken place) and also to know whether she understood the implications of the trial being delayed. TB did attend court on 6 th December, missing school to do so. There was no arrangement or opportunity for her to be represented. The Official Solicitor, who was only informed of the hearing at 4p.m. on 5 th December, sent a very urgent fax to the judge protesting that it was not appropriate for TB to be put in this situation. TB telephoned the Official Solicitor from court. It was apparent that she was under considerable pressure. She agreed reluctantly to disclosure, although she did not want her medical records disclosed, because she could not face the prospect of the trial being delayed. It was already causing her considerable distress and anxiety.

11

I strongly deprecate was happened on 6 th December 2005. It seems to me to be quite unacceptable for a vulnerable 14 year old school girl known to have attempted suicide, the victim of alleged sexual abuse and a prosecution witness in the impending trial, to be brought to court at short notice, without representation or support, to be faced personally with an apparent choice between agreeing to the disclosure of her psychiatric records or delaying a trial which was bound to cause her concern and stress.

The claim for judicial review

12

The judicial review claim form seeks a declaration that the claimant was entitled to service of the application of 17 th November 2005 and the right to make representations as to what order should be made; a declaration that the Crown Court acted unlawfully in not securing those entitlements and proceeding without having done so; and just satisfaction. The claim for just satisfaction is no longer pursued.

13

The Crown Court filed an acknowledgement of service but is not represented before the court today. The South Staffordshire National Health Trust and the Crown Prosecution Service are represented as Interested Parties. The NHS Trust broadly supports the claimant. The CPS takes a neutral position.

Section 29(3) of the Supreme Court Act 1981

14

No party before the court suggests that the application is incompetent by virtue of section 29(3) of the Supreme Court Act 1981. This provides for the powers of the High Court to make mandatory, prohibiting and quashing orders in relation to the jurisdiction of the Crown Court, "other than its jurisdiction in matters relating to trial on indictment". Speaking generally, this limitation is designed to prevent trials on indictment being delayed by challenges in the nature of interlocutory appeals. If the Crown Court makes an error and the defendant is convicted, he can appeal after conviction to the Court of Appeal Criminal Division. The present claim will have no such effect. It is not brought by a party to the Crown Court proceedings. It is not seeking a mandatory, prohibiting or quashing order, but declarations as to the claimant's rights. Nor is the claim academic in the sense that it asks questions in the absence of actual relevant facts. The facts happened, and the claimant and the interested parties have a keen interest in the court reaching a decision about whether what happened was lawful or not. I am satisfied that the court has jurisdiction.

15

It is not necessary to deal with Mr Fordham's alternative submissions (1) that this court has jurisdiction to quash an order of the Crown Court where it is made without jurisdiction and there is no alternative remedy – see R v Maidstone Crown Court, ex parte Harrow London Borough Council [2000] QB 719 at 742A-743C; and R (Kenneally) v Crown Court at Snaresbrook [2001] EWHC Admin 968; [2002] QB 1169 at paragraphs 40, 43, 46; and (2) that, to put it shortly, section 29(3) of the 1981 Act and section 9(2) of the Human Rights Act 1998 should be interpreted as not permitting an unsatisfactory Human Rights lacuna.

...

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