Anti-rape groups hail legal aid ruling
- Published
Campaigners have welcomed a ruling that abuse victims should be able to access legal aid to fight attempts to obtain their medical records.
Senior judge Lord Glennie was examining the case of a woman who is alleged to have been a victim of domestic abuse.
Lawyers acting for the man accused of attacking her had wanted to access the woman's medical records.
She sought legal aid for representation at the hearing, but the Scottish government refused her application.
That decision has been overturned by Lord Glennie, who ruled that the woman's human rights had been breached., external
The ruling has been welcomed as "very significant" by anti-rape campaigners, who said many victims did not come forward as they did not want their medical records to be accessed.
They also said that these records were frequently used to look for mental health issues, which was a "a significant violation of their privacy".
The woman, known in court documents as WF, is the alleged victim in five of the seven charges of assault and domestic abuse faced by a man in a case at a Highland sheriff court.
Psychological files
As part of the accused's case, defence lawyers wanted to recover all medical, psychiatric and psychological files relating to the woman over a seven-year period.
But the woman maintained that such a move would infringe her human rights under Article 8 of the European Convention on Human Rights (ECHR), which protects the right to privacy and family life.
The woman sought legal advice, and an application was made to the Scottish Legal Aid Board (SLAB) to allow her to be represented in opposition to the recovery proceedings.
What is it like to have your medical records revealed in court?
Sarah Scott was raped in 2011 by Adrian Ruddock, who was jailed for eight years at the High Court in Aberdeen
To the world I epitomise the old cliche of "asking for it". I am the perfect imperfect rape victim. I was drunk. I was wearing a short skirt. I knew the man who attacked me. I willingly, albeit under false pretences, went back to his home.
But nothing prepared me - or rather, no one prepared me - for the fact that my previous mental health records were going to be lambasted in a courtroom full of strangers.
While cross examining me, the QC asked something that shocked me. He asked me if I had ever self-harmed in the past.
I was confused. I was angry. I didn't understand. When I was a young teenager - around 13-years-old - I was bullied at high school. I was depressed.
I resorted to self-harm to deal with my pain. I had only confided this detail to a school psychologist, maybe my doctor. I hadn't even told my own mother.
But here, at the trial of my rapist - some seven or more years later - this incredibly personal information was being broadcast to all - journalists, the jury, the judge, and worst of all, the man who only five months prior had repeatedly raped me.
But SLAB refused the application, with the woman being told that - unlike in England and Wales - there was no provision in Scotland for legal aid to be granted to enable her to oppose her records being accessed.
The woman then turned to the Scottish Ministers, who can grant legal aid in circumstances not covered by the rules.
But they also rejected the move, claiming that the interests of the alleged victim could be protected without the need for them to personally participate and be represented at the hearing.
Campaigners say the personal records of alleged victims are increasingly being used in rape and abuse cases
Lawyers acting for the woman sought a judicial review at the Court of Session, and argued that the Scottish government was preventing the woman from participating effectively in a case where own her own rights were involved.
It was also maintained that without adequate safeguards to protect them, the risk of disclosure of confidential medical and psychiatric records would be another reason why sex assault victims would not report such incidents to the police.
The woman was backed in her case by Rape Crisis Scotland, external, which said the medical records of alleged victims were increasingly being used in sexual offence prosecutions.
Lawyers acting for the Scottish Ministers argued that the alleged victim had no present right to be heard.
'Error of law'
But in his written statement, Lord Glennie said: "That is wrong. There may be no express provision in any statute or any rule requiring intimation to be made on the complainer or requiring her to be given an opportunity to be heard.
"But she has that right by virtue of Article 8 and the absence of any specific provision in a statute or in court rules cannot take away that right.
"What is required is for the lack of any specific provision to be addressed by the appropriate rule-making body."
The judge added: "The appropriate course for this court is simply to reduce the decision, founded as it is on an error of law as to the complainer's right to be heard, leaving the Scottish Ministers to make a new decision on a correct legal basis."
Sandy Brindley of Rape Crisis Scotland said the ruling was a very significant step in protecting complainers' privacy.
She added: "The Scottish government has a strong track record in addressing violence against women but on this issue we consider that they have taken the wrong approach.
"No other woman should have to go through what the petitioner in this case has been through, just to have her views heard on such a fundamental breach of her privacy."