6th December 2015
An amendment to the Criminal Justice (Scotland) Bill has been tabled by Margaret Mitchell and Alison McInnes to provide for legal aid for sexual offence complainers to enable them to oppose applications to release their medical or other sensitive records.
Rape Crisis Scotland believes that this amendment will address a significant gap in human rights protection for sexual offence complainers in Scotland. We urge MSPs to support this amendment.
In recent years there has been an increasing use of complainers’ medical or other sensitive records within the context of sexual offence prosecutions. This is often to ascertain whether the complainer has any history of mental health issues. This does not happen with any other crime. Our experience of supporting survivors is that attempts to access their records, whether by the Crown or the Defence, is experienced as a significant violation of their privacy and adds considerably to the stress and upset of the criminal justice process.
Currently we have the situation in Scotland where sexual offence complainers are being served with legal documents from the defence seeking access to their records, but there is no facility for legal aid to be made available to enable them to oppose applications for their records or try to otherwise assert their privacy rights. In our view, this is a significant human rights issue.
Rape Crisis Scotland considers that there is a compelling case to introduce limited rights to representation for sexual offence complainers, to provide a means for them to try to protect their privacy. In Scottish legal proceedings the Crown prosecute in the public interest and do not directly represent the complainer. This lack of direct representation is particularly problematic for complainers of sexual offences in contested areas such as sexual history and character evidence and access to medical and sensitive records.
The EU Directive on the rights, support and protection of victims of crime sets out that victims have a right to participate effectively in criminal proceedings. This principle has been incorporated into the Victim & Witnesses (Scotland) Act 2014. The current approach to issues of medical and sensitive records (as with sexual history and character evidence) is not consistent with this right. The prospect of having their personal lives subject to scrutiny in this way acts as a direct deterrent to rape survivors reporting what has happened to them to the police, and where they do report it can add considerably to the trauma and sense of violation experienced within the justice process. We believe that for complainers of sexual offences to have any real prospect of protecting their private and family life, as set out in article 8 of the European Convention on Human Rights, they must have access to independent legal representation, funded by Legal Aid on a non means tested basis, for matters relating to access to medical and other sensitive records.
For more information on this briefing, please contact
Sandy Brindley
at Rape Crisis Scotland
Tel: 0141 331 4180 / 07764167501 or email:
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