News

Privacy rights of victims of crime protected

12 February 2016

The Court of Session has issued an important judgment on the privacy rights of the victims of crime, in the case of WF v The Scottish Ministers.

Changes to the law in 2007 gave those accused of a crime greater powers to obtain documents which they believe may assist in their defence. In the current case, an accused person asked the court to deliver the whole medical records of the complainer – the alleged victim, WF, who was told of the request and wanted to object to this as an unnecessary infringement of privacy.

Unfortunately there were no specific rules in the legislation for such objections, nor for the grant of Legal Aid to anyone wanting to object. WF, with assistance from Inksters Solicitors, used the special provisions for applying to the Scottish Ministers for Legal Aid in cases not covered by the ordinary rules.

The Scottish Ministers refused the application on the basis that WF had no right to have an objection considered by the court and that the court would automatically consider WF’s interests in deciding on the accused's request. WF appealed this decision to the Court of Session by Judicial Review, assisted by Inksters Solicitors who instructed Dorothy Bain QC and Claire Mitchell, Advocate.

At the Judicial Review there was extensive legal debate by both sides. Rape Crisis Scotland were also permitted to make submissions to the court as “Interveners”, giving detailed written information of their experience of how accused persons had used or attempted to use victims private records and how this had been dealt with by courts in Scotland and in other countries. This was noted as being of great use to the lawyers on both sides as well as the judge to put the current case in a wider context.

After careful consideration, the court held that medical records are protected under the right to privacy given by the European Convention of Human Rights Article 8, and any disclosure must be restricted to the minimum necessary for a specific purpose to balance the interests of justice for one person against the privacy of another.

The court also held therefore that any person whose Article 8 privacy rights may be infringed by a request for a court to order delivery of documents must be notified of the request and be given an opportunity to be heard by the court to argue how much, if any, of such information should be released. The judge, Lord Glennie, also noted that that as there are currently no specific rules for this, requiring the judge to make arrangements on an ad hoc basis, it would be useful if formal procedural rules could be drawn up to assist courts dealing with such cases.

On the basis that the Scottish Ministers had erred in law, the court returned the case to them to reconsider WF's application for Legal Aid, to allow representation at the application for disclosure of medical records, in light of the correct legal position. The judge also provided some guidance for the Ministers in how they might deal with the application by reference to the recent Victims and Witnesses (Scotland) Act 2014.

Sylvia MacLennan, Solicitor at Inksters said:

“This is a very important decision for both victims of crime and those accused of a crime. On one hand, no victim of crime should be put off from reporting it for fear that the perpetrator will have free access to their private information. On the other hand, those accused of a crime will still have a right to ask a court to order the release of information which is needed to ensure a fair trial.

A lot of preparation was needed for this case, some of which was carried out by Advocates and by Solicitors within our firm acting for free due to the public importance of the points of law which had been raised. Credit must also be given to WF for showing determination in instructing us to raise the Judicial Review which will have such important legal effect in future cases.”