A case for human rights / In praise of the legal profession
At Rape Crisis Scotland we are sometimes in the position of being critical of the approach of some lawyers, specifically in relation to the cross examination of rape complainers in court. In the past months however we have been impressed by the approach of a number of lawyers to what we consider to be a significant human rights issue.
In the case of WF against Scottish Ministers, a woman (WF) was served with legal papers from the man being prosecuted for allegedly abusing her, saying he wanted her medical and psychiatric records for the past 7 years. WF approached Sylvia MacLennan of Inksters solicitors, who applied for legal aid, assuming this would be available. The Scottish Legal Aid Board informed Ms MacLennan that there was no provision for legal aid to be made to complainers to enable them to challenge attempts to access their private records. Ms MacLennan put in a considerable number of hours of her own time to try to secure legal aid in this case. Claire Mitchell agreed to work on the case and Dorothy Bain came on board as senior counsel. The legal team worked pro bono for months until legal aid was granted for a judicial review. They believed that it was simply not right that someone in these circumstances had no access to legal aid to enable her to challenge attempts to access her personal records.
Scottish Ministers were asked to make a determination in the case - they had the discretion to make legal aid available - but they refused. This refusal was based on their belief that the complainer did not have any right to appear at any hearing where a decision was made about whether the defence could have access to her records.
The lawyers for WF then sought a judicial review of Scottish Ministers decision. Rape Crisis Scotland sought and was granted permission to submit a public interest intervention in support of WF. Taylor & Kelly acted as our agents on a pro bono basis, and two solicitor advocates - Tony Kelly and Liam Ewing - gave a significant amount of their own time to prepare our intervention. They outlined our concerns about the increasing use of complainers' medical or other sensitive records within the context of sexual offence trials, often to ascertain if the complainer has any history of mental health issues. We said that many complainers regard such attempts to access their records, whether by the Crown or the Defence, as a significant violation of their privacy which adds considerably to the stress and upset of their interaction with the criminal justice system. Our experience is that the prospect of having their personal or private lives subjected to scrutiny acts as a direct deterrent to complainers reporting what has happened to them. In support of our intervention, we submitted a first hand account by a rape survivor, Sarah Scott, of the devastating impact of having issues from her records brought up during her rape trial.
In a landmark ruling Lord Glennie overturned the decision of Scottish Ministers to refuse to make legal aid available, and stated that access to medical or otherwise sensitive records represented a significant breach of a complainer's article 8 right to privacy. He ruled that complainers had a right to be heard when attempts were being made to obtain their sensitive records.
Last week, Scottish Ministers confirmed that they would not be appealing this decision, and that the Scottish Legal Aid Board were putting in place interim arrangements for complainers to apply for legal aid - on a non means tested basis - to enable them to challenge applications for their records. This was a victory for human rights, but more needs to be done. In the same week, we were contacted by a complainer who had had a sleepless weekend frantically searching for information online after receiving a call on the Friday saying there was going to be a hearing the following Thursday, as the man accused of raping her wanted access to both her medical and her women's aid records. She was advised to get a solicitor. Again, the response of the lawyers we contacted on her behalf was amazing. Liam Ewing, a Solicitor Advocate, arranged (from a holiday in New York) for Eddie Gilroy from Gilroy & Co to appear at the hearing to ask for a continuance to enable legal aid to be applied for. Lorna McCann of Turnbull McCarron met with the complainer to start the process of applying for legal aid. The women's aid group couldn't access legal aid and had no spare funds to pay for representation, but Jennifer Dalziel, the solicitor for the Scottish Women's Rights Centre took on their case. Claire Mitchell offered to give her time pro bono (again) to represent them, and Susan Duff stepped in for the initial hearing. The application for records was thrown out at the initial hearing. Again, great news but more needs to be done to support and advise complainers in this situation. The Scottish Government must put in place processes to ensure that complainers are fully informed of their rights in these circumstances and are signposted to relevant organisations such as Rape Crisis Scotland or the Scottish Women’s Rights Centre.
We think great credit should be given to all the lawyers involved, who identified that there was a significant human rights issue at stake, and gave their time - often at very short notice - to help. The biggest credit, however, has to go to WF, the woman at the heart of the judicial review, for fighting for the right to be heard.