Digging the dirt: Disclosure of records in sexual assault cases

Cambridge Law Journal

Volumn 61, Issue 1, 2002, Pages 126-145

  Temkin, Jennifer ^a  

^a UNIVERSITY OF SUSSEX   (United Kingdom)

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[No Author keywords available]

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EID: 85011527174     PISSN: 00081973     EISSN: 14692139     Source Type: Journal    
DOI: 10.1017/S0008197302001551     Document Type: Article

References (119)

1. See J. Temkin, “Prosecuting and Defending Rape: Perspectives from the Bar” (2000) 27(2) Journal of Law and Society 219 at pp. 231–236.
2. H (L) [1997] 1 Cr. App. R.176 at p. 176, per Sedley L.J.
3. For criticism of the information gathering practices of FMEs, see J. Temkin, “Medical Evidence in Rape Cases: A Continuing Problem for Criminal Justice” (1998) 61 M.L.R. 821.
4. For pre-committal disclosure of prosecution material, see Magistrates Courts Act 1980, ss. 5A-5F
5. in the case of offences triable either way, see Magistrates Courts (Advance Information) Rules 1985 (SI 1985/601)
6. for post committal disclosure, see Criminal Procedure and Investigations Act 1996 (CPIA) ss. 3–9.
7. Crown Court Rules 1982 R. 23 (as amended by the Crown Court (Miscellaneous Amendments) Rules 1999, SI 1999 No 598).
8. Rule 23(2).
9. Rule 23(3).
10. Rule 23(4).
11. Rule 23(5).
12. Rule 23(6).
13. Rule 23(7).
14. Whether it is always necessary for the judge personally to peruse the documents is not clear. In W (G) and W (E) [1997] 1 Cr. App. R. 166
15. decided prior to the CIPA 1996, it was held that where the documentation was copious, it was permissible for the judge to order that the local authority from which discovery was sought should instruct independent counsel to review the documents and decide what was relevant. However this procedure may no longer be appropriate given that the criterion, as discussed below, is no longer relevance but materiality. See also R. v. K, n. 39 below.
16. See D. Corker, “Involuntary Disclosure of Private Medical Records to the Defence in Criminal Proceedings” (1998) 38 Med. Sci. Law 138, 139.
17. Any notes made by an FME apart from the FME's report itself may he sought for disclosure by way of a witness summons. Guidelines issued by the BMA instruct FMEs not to disclose without first obtaining the complainant's written consent and, in the absence of this, to object to disclosure of irrelevant material at the hearing before the judge and not to disclose without a court order. However, the guidelines recognise that in exceptional circumstances disclosure may be necessary without consent to avoid the risk of death or serious injury to the complainant or others: see BMA, “Revised Interim Guidelines on Confidentiality for Police Surgeons in England, Wales and Northern Ireland” (1998).
18. Crown Court Rules 1982, R. 23ZB(2).
19. Criminal Procedure (Attendance of Witnesses) Act 1965, s. 2C(8).
20. Rule 23(9).
21. Criminal Procedure (Attendance of Witnesses) Act 1965, s. 2, above.
22. [1996] 1 Cr.App.R. 385.
23. confirming the decision in R. v. Cheltenham Justices, ex p. Secretary of State for Trade [1977] 1 W.L.R. 95.
24. [1996] 1 Cr.App.R. 239 hereafter Reading Justices.
25. See, e.g., R. v. Clowes [1992] 3 All E.R. 440.
26. (1996) 7 Med.L.R. 415.
27. Med.L.R.
28. On which, see, e.g., A.W. Burgess and L.L. Holmstrom, “Rape Trauma Syndrome” (1974) Am. J. Psychiatry 981, 983.
29. Much will depend on the attitude of the judge. The solicitor acting for Dave Jones, the manager of Southampton Football Club charged with abusing children at a care home, found athe judge “helpful” when making her disclosure applications which were successful: see Linzi McDonald, “Defending Child Abuse Cases---Tips and Pitfalls” (2001) 151 N.L.J. 540.
30. [1997] 1 Cr.App.R. 176 at pp. 178–179.
31. Some material is well known to be covered by PII, e.g., information relating to children and state interests, but in D v. NSPCC [1977] 1 All E.R. 589 at p. 605, Lord Hailsham held that “the categories of public interest are not closed”.
32. All E.R., at p. 618, per Lord Edmund-Davies.
33. Code of Practice, para. 6.12.
34. See Archbold Criminal Pleading, Evidence and Practice (2001), para. 12–106.
35. (1996) 7 Med.L.R. 415 at p. 420.
36. (1996) 1 F.L.R. 137.
37. R. v. Governor of Brixton Prison, ex parte Osman [1992] 1 All E.R. 108 at p. 116.
38. See [1996] 1 Cr.App.R. 239 at p. 246.
39. The case was decided in 1994 before the materiality test was introduced in the CPIA.
40. (1993) 97 Cr.App.R 342.
41. Cr.App.R
42. Cr.App.R
43. See e.g., Burgess and Holmstrom, n. 26 above.
44. [2001] Crim.L.R. 471
45. [2000] 2 All E.R.(D) 2432.
46. see Archbold 2001, Supplement, p. 49 para. 30.
47. See e.g., R. v. B [2000] Crim.L.R. 50.
48. (1998) 25 E.H.R.R. 371.
49. On disclosure of defendant's medical records obtained for the trial judge, see Hardiman v. U.K. [1996] E.H.R.L.R. 425.
50. (1998) 25 E.H.R.R. 371 at p. 372.
51. See Sunday Times v. UK (1979) 2 E.H.R.R. 245.
52. E.H.R.R., at para. 59.
53. For a statement by English judges, see De Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing and others [1999] A.C. 69, PC.
54. [1986] 1 S.C.R. 103.
55. (1998) E.H.R.R. 371 at p. 395.
56. For the view of the Commission to this effect, see E.H.R.R., at p. 395.
57. Victim Support, “Disclosure of information to and about victims and witnesses” (unpublished paper for Steering Group, May 2001).
58. (1998) E.H.R.R. 371 at p. 408.
59. E.H.R.R., at p. 409.
60. Bill C-46 1996–7 amended the Criminal Code by the insertion of sections 278.1–278.91.
61. [1995] 4 S.C.R. 411.
62. [1999] 3 S.C.R. 668.
63. Bill C-46 1996–97 contained the preamble.
64. Bill.
65. [1999] 3 S.C.R. 668 at p. 673.
66. S.C.R.
67. [1999] 3 S.C.R. 668 at p. 671.
68. [1999] 3 S.C.R. 668 at p. 673.
69. See s. 1(1). For criticism of the Act, see J. Hall and D. Clark, “The Sexual Offences (Protected Material) Act 1997” [2001] Crim.L.R. 385.
70. [1999] 3 S.C.R. 668 at p. 672.
71. The structure and history of the legislation is complex. The Evidence Amendment (Confidential Communications) Act 1997
72. amended the Evidence Act 1995 (NSW) by inserting Division 1B into s. 126
73. and creating the “sexual assault communications privilege”.
74. However, in R. v. Young [1999] NSWCCA 166, it was held that the legislation had failed to deal with disclosure of documents although it had dealt with the use of counselling records as evidence in the trial.
75. The Criminal Procedure Amendment (Sexual Assault Communications Privilege) Act 1999
76. rectifies this with Schedule 1 amending the Criminal Procedure Act 1986
77. Schedule 2 amending Division 1B of the 1995 Act.
78. For discussion of the 1997 Act
79. see Annie Coussins, “Tipping the Scales in her Favour---the Need to Protect Counselling Records in Sexual Assault Trials” in P. Easteal (ed.), Balancing the Scales: Rape, Law Reform and Australian Culture (Federation Press 1998) pp. 94–106.
80. See Criminal Procedure Amendment (Sexual Assault Communications Privilege) Act 1999
81. Schedule 1 and the Criminal Procedure Act 1986, s. 58.
82. Criminal Procedure Act 1986, s. 60(1).
83. Criminal Procedure Act.
84. See Pennsylvania Consolidated Statutes, Title 42 (Judiciary and Judicial Procedure) Chap. 59
85. (Depositions and Witnesses) s. 5945.1.
86. See Colorado Revised Statutes, Title 13 (Courts and Court Procedure) Art. 90–107 (2000).
87. In many American states such a privilege extends to a range of persons in receipt of confidential communications. For example, in Colorado an absolute privilege is enjoyed equally by clergymen, doctors, registered nurses, certified public accountants, licensed psychologists, professional counsellors, marriage and family therapists as well as lawyers in relation to confidential communications: Colorado Revised Statutes, Title 13, Article 90–107 (2000).
88. This privilege resembles the privilege originally enjoyed by lawyers in England and Wales which exempted them from examination in court but which now extends to the client and to the communication: see Ian Dennis, The Law of Evidence (Sweet & Maxwell 1999) chap. 10.
89. Commonwealth v. Wilson, 602 A.2d 1290, 1295–1297 (Pa. 1992).
90. See, e.g., People v. District Court, 719 P. 2d 722, 727 (Col. 1986)
91. People v. Pressley, 804 P. 2d 226, 229 (Colo. App. 1990)
92. Dill v. The People of the State of Colorado) 927 P. 2d 1315 (1996).
93. New Jersey Statutes, Title 2A (Administration of Civil and Criminal Justice) ss. 84A-22.13–84A-22.15 (2001)
94. State v. J.G. 619 A. 2d 232 (N.J. 1993).
95. llinois Compiled Statutes, Chap. 735 (Code of Civil Procedure) Art. VIII, s. 8–802.1.
96. See People v. Foggy, 521 N.E. 2d 86 (111. 1988).
97. Jaffee v. Redmond 518 U.S. 1, 9–13 (1996).
98. In D v. NSPCC, Lord Edmund-Davies expressed the view that communications between doctors
99. and their patients should enjoy an absolute privilege in the same way as lawyer/client communications: see [1977] 1 All E.R. 589 at p. 618.
100. However, the absolute nature of the lawyer/client privilege as upheld in R. v. Derby Magistrates, note 18 above
101. has been severely criticised: see e.g., Ian Dennis, All E.R. pp. 329–330.
102. See A. Yaryura, “Civil Practice Law and Rules: C.P.L.R. 4510” 68
103. St. John's L. Rev. 789.
104. For the view that an absolute privilege should be tempered by use of the court's power to stay proceedings where it considers that without the benefit of the records there is a real risk of an unfair trial, see S. Bronitt and B. McSherry, “The Use and Abuse of Counselling Records in Sexual Assault Trials: Reconstructing the Rape Shield” (1997) 8 Rutgers University Criminal Law Forum 259.
105. See Steven Smith, “Constitutional Privacy in Psychotherapy” 49 Geo. Wash. L. Rev. 1, 22 (1980) at p. 29
106. where he states: “No information is more intensely personal and private than the information revealed in psychotherapy. Psychotherapy deals not only with the information about a person, the disclosure of which may he embarrassing or harmful, but also with the patient's most intimate fantasies, fears and anxieties. The patient is expected to talk with the therapist about feelings and matters which the patient would not consider revealing to any one else.” See also Wendy J. Murphy, “Minimising the Likelihood of Discovery of Victims' Counselling Records and Other Personal Information in Criminal Cases: Massachusetts Gives A Nod to a Constitutional Right to Confidentiality” 32 New Eng. L. Rev. 983.
107. See Ellen M. Crowley, “Note and Comment” (1995) 21 Am. J. L. and Med. 131.
108. New York State Consolidated Laws, Civil Practice Law and Rules, s. 4510(b).
109. E.g., Alaska, California, Connecticut, Florida. See also Utah Code Ann. 78–24–8(6) (1999) which creates a privilege for sexual assault counsellors.
110. But privilege afforded to mental health therapists under Utah Code Ann. chap. 58–60–113 was held not be absolute in State v. Cardall 1999 UT.51; 982 P. 2d 79 which concerned psychological records prepared by a aschool counsellor.
111. Mass. Gen. L. ch. 233, s. 20J (1985).
112. See Commonwealth v. Two Juveniles 491 N.E. 2d 234 (Mass. 1986)
113. Commonwealth v. Stockhammer 570 N.E. 2d 779 (Mass. 1992).
114. But the privilege was to some extent, although not fully, restored in Commonwealth v. Fuller 667 N.E. 2d 847 (Mass. 1996).
115. See now Commonwealth v. Craig Nemeyer 432 Mass. 23
116. 731 N.E. 2d 1053 (Mass. 2000).
117. The privilege does not extend to fact or time of treatment, name of counsellor or dates of contact. For further discussion see Murphy, n. 108 above.
118. See Wisconsin Stats. Chap. 905.04(2) and State v. Shiffra 175 Wis. 2d 600.
119. Sir Robin Auld has now proposed “consideration of a new statutory scheme for third party disclosure including its cost implications to all concerned, to operate alongside and more consistently with the general provisions for disclosure of unused material”. His brief analysis necessarily fails to take account of all the issues involved: see R.E. Auld, Review of the Criminal Courts of England and Wales: Report by the Right Honourable Lord Justice Auld (London: Stationery Office, 2001) p. 475.