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Rape Crisis Scotland: Spirit of rights set out in WF must be honoured

Justice

This morning (19th October 2018) saw the High Court of Justiciary hear a petition to the Nobile Officium against an order for the recovery of a rape complainer’s medical records.

This action, by the complainer, is an unusual one - a legal route of last resort.

Significantly, the 3 bench panel of judges found that someone has a right to appeal any decision to access their medical records.

They quashed an order from Lord Burns that ALL her medical records should be accessed by a Commissioner (a solicitor) to prepare a report for the defence.

This case raises important issues about:

  • The protections available to rape complainers in relation to their article 8 rights
  • The importance of a complainer’s right to be heard in any decisions about their medical or sensitive records being accessed as part of a criminal prosecution
  • The need for a clear appeals process around any decisions to allow access to a complainer’s sensitive records
  • The approach of the Crown (who took a neutral position in the original hearing which resulted in the order being made for all her records to be accessed).

In the WF case (see https://bit.ly/2413aoa ), Lord Glennie found that access to sensitive records represented a violation of a complainer’s article 8 rights to privacy.

His judgement set out a number of rights, including the right for a complainer to be heard and to be represented.

More must be done to ensure the realisation of these rights. It is now over two years since the WF case, but there is not yet a clear process in place in relation to how these rights can be realised in practice.

The lack of a process for appeal meant that in this case, despite the Court today agreeing that the complainer’s records should not be accessed, it was too late to stop her article 8 rights being violated, as all her records had already been accessed.

This cannot be in the spirit of the rights set out in WF.

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