Chapter 5 – Sensitive Personal Records
328. In all sexual crime investigations, consideration has to be given to whether any health, social work, educational or other sensitive, personal records will be relevant to the investigation/prosecution.
329. The purpose of obtaining sensitive, personal records, as with any evidence obtained during an investigation, is to consider whether the material contains information which supports or undermines the prosecution case or assists the defence.
COPFS Policy on Obtaining and Disclosing Sensitive, Personal Records
330. COPFS policy  provides that sensitive, personal records should be obtained only where their recovery is necessary for the proper investigation and prosecution of crime.
331. Recognising, that the prospect of sensitive, personal information being obtained, disclosed and aired in the course of a trial is distressing for most victims, COPFS policy emphasises the need to have regard to victims’ convention rights to a private and family life.  Victims are entitled to be told why the prosecution may need to recover personal records and have their views taken into account.
332. The need to obtain sensitive, personal records will depend on the circumstances of each case. In some cases, the records can be extensive. For example, children brought up in care, who do not disclose sexual abuse until they are adults, may have extensive social work, medical and educational records containing relevant information about their reaction to the crime or the impact it has had on their life.
333. Sensitive, personal records can provide evidence that supports the victim’s allegation(s). For example, it may disclose a pattern of behaviour typical in cases of sexual abuse or include references to the abuse being disclosed to a third party, such as a doctor. Records can also provide independent evidence of the timing of historical crimes, such as dates when a victim resided at a particular care home, or attended at a school.
334. The defence may request records to attribute the cause of any medical findings to some event other than the alleged crime or to seek to draw an adverse inference from, for example, the absence of an injury.
335. The prosecutor is obliged to disclose any relevant information, including any potential exculpatory material, to the defence. Consideration of the need to obtain sensitive, personal records must be kept under review throughout the life of the case. In particular, it must be reviewed after the receipt of any new information from any source, including the defence or the victim.
336. In all sexual crime cases, proceeding or likely to proceed in the High Court, the IA, completed by the SLM, must include recommendations on what, if any, sensitive, personal records should be obtained.
337. Where it is considered appropriate to obtain records, the SLM must indicate:
- the nature of the records sought (health, social work etc);
- the basis on which it is considered appropriate to obtain such records; and
- the parameters of the records to be sought (dates, relevant school etc).
338. Crown Counsel should advise whether the recommendation is accepted and/or provide any relevant instructions. On receipt of Crown Counsel’s instruction, the SLM will write to the solicitors acting for the accused and inform them of the nature and extent of the records being sought, or advise that no records are being obtained.
339. Any response from the defence will be considered by the SLM to identify whether there is a basis for further or different records being sought by the prosecution.
340. Concern about the increasing use of victims’ health, psychiatric or other personal records, within the context of sexual crime prosecutions, has been raised by victims and support organisations such as RCS.
341. In response to such concerns, COPFS issued more detailed guidance, emphasising the importance of requests being tailored to the specific purpose for which records are being sought.
342. Prior to recovering records, enquiries should be made with the holders on whether the records contain anything that falls within the scope of the purpose. Where, for example, the purpose is to obtain records to show the victim previously disclosed being abused, it should be confirmed whether the records contain any disclosures and, if so, only records relating to the disclosures should be requested.
343. We examined the 50 indicted cases to assess whether COPFS policy was being appropriately applied.
344. Sensitive, personal records were obtained in 18 of the 50 indicted cases. Health records were the most frequently obtained, featuring in 14 cases. Other types of records recovered were social work, educational, counselling, dental, psychiatric and psychological.
345. The purpose for obtaining records varied.
- In 14 cases, the records were requested for the purpose of confirming dates of historical abuse and/or whether the victim had made any disclosures relating to the crime(s). In all cases, the prosecution specified the reason and, where possible, the specific timeframe. For example, in one case, the doctor was asked for records relating to a broken leg to assist with identifying the dates of the crimes.
- In two cases, the entire medical records were requested – one for the purpose of demonstrating a history consistent with domestic violence, and the other to illustrate behaviour consistent with child sexual abuse.
- In two cases, records were obtained to assist an expert prepare a report – one relating to the capacity of a victim to give evidence and the other on the effect of intoxication on the victim’s recollection.
346. Consent was obtained from all victims either by the police, the case preparer or VIA.
347. In 3 of the 18 cases, the defence sought sensitive, personal records of victims:
- In one, the defence sought psychiatric records. This was opposed by the prosecution and refused by the court.
- In one case parts of medical records were obtained by the prosecution for one victim and following disclosure to the defence of specific extracts, the request by the defence was withdrawn.
- In the final case, the prosecution had obtained extracts from records relating to non-accidental injuries and disclosures of any crimes. The defence sought recovery of more extensive psychiatric and medical records. Following a hearing for recovery of the records, the Court granted the defence request.
Prosecution requests for sensitive, personal records are being tailored to the specific purpose for which records are being sought.
Independent Legal Representation
348. Regardless of the prosecution’s decision not to obtain records, the defence may seek their recovery. Ultimately decisions on what records can be recovered and used at trial are decided by the court.
349. The right of victims to challenge the recovery of such records was considered in a review of a decision to refuse to provide legal aid for a victim to be represented at a hearing for recovery of their medical records.  The records were being sought by the defence. The refusal of legal aid was on the basis that the victim had no right to be heard or represented.
350. The victim argued that recovery of such documents would infringe her convention rights to a private and family life.
351. The Court of Session, accepting that the victim’s convention rights were engaged whenever there is an application by the defence for records of this kind, stated:
“Any person whose rights to privacy may be infringed by an order for recovery of medical records and other sensitive documents must have the application for recovery intimated to them and be given the opportunity to be heard in opposition to the application before an order is made or, at least, before the documents are handed over to the party seeking them.”
352. While the decision clarified the right of the victim to be heard, the manner in which an application for recovery of documents will be intimated to the victim; the provision of legal advice and the funding for legal representation was not addressed.
353. Concern has been expressed that some victims are not being made aware of such applications and how to source legal advice.
354. It is normal practice for the person making an application to intimate it to all relevant parties. This places the obligation on the defence to intimate such applications. However, this raises practical and handling issues which militate against such an approach.
355. One practical obstacle is that the address of the victim is often not known to the defence. Furthermore, it is contrary to a victim-centred approach, for the solicitors, who act on behalf of the person alleged to have committed the crime, to contact the victim to advise that they are seeking access to their personal records, provide advice on the victim’s right to be heard and how to go about it. Equally, as the prosecutor acts in the public interest and not on behalf of the victim, it is not appropriate, and is likely to cause confusion, to involve the prosecution in notifying victims of a defence application.
356. To overcome these issues, on receipt of such applications, one option would be for the court to provide intimation of the application, together with sufficient information to enable the person, whose records are being sought, to effectively implement their right to be heard.
Protections for Victims of Sexual Offences
357. The ordeal of giving evidence is a concern for any witness but particularly for victims of sexual crimes. Undoubtedly, much of the anxiety relates to the use of questioning about sexual history and character.
358. In 2002, new protections for victims of sexual crimes were introduced strengthening the rules on restricting the extent to which evidence can be led regarding the character and sexual history of the victim.  The aim was to ensure that the questioning or evidence is relevant to the issues of fact before the court, and strike a balance between protecting the victim from the distress of being asked irrelevant questions about their character and sexual history, whilst admitting evidence which is nevertheless so relevant that to exclude it would endanger the fairness of the trial.
359. To introduce sexual history or character evidence, a written application from the defence or prosecution (Section 275 application) must be submitted to the court, in advance of the trial.  Responsibility for determining whether to grant the application rests with the court. 
360. Where a prosecution application is proposed, or a defence application is received, the victim should be made aware by the case preparer to allow them the opportunity to respond. Given the delicate subject matter, it should be explained that it is necessary to inquire into these matters as part of the investigation but that no assumption is being made regarding the veracity of the matters raised.
361. Victim support groups and legal commentators have expressed doubt that the rules are achieving their intended purpose. Their perception, supported by feedback from victims, is that the court and prosecution are not robustly challenging such applications and that such evidence is being routinely used to discredit witnesses and reinforce the prejudices and myths that are known to prevail around sexual crimes.
362. Applications to lead evidence of sexual character or history were made in 12 of the 50 indicted cases. Two were made by the prosecution; six by the defence; and in four cases, by both the defence and prosecution.
363. The applications made by the prosecution sought to adduce evidence of: previous sexual abuse of the victim by a person other than the accused to provide context for the victim’s behaviour; previous sexual abuse by a person other than the accused to explain how the accused and victim came into contact; a prior relationship between the accused and the victim; and post incident contact between the accused and the victim.
364. The court granted all applications made by the prosecution.
365. The applications lodged by the defence sought to adduce evidence of: a prior relationship between the accused and the victim; contact between the accused and victim after the alleged crime; a history of drug abuse by the victim; the absence of any disclosures in the personal records of the victim; the circumstances of how the accused and victim met; the victim having a sexual relationship with another person that had been disclosed to the accused; and that another person was responsible for injuries sustained by the victim.
366. The prosecution opposed one of the defence applications. Following submissions, the hearing was continued for the court to obtain further information before reaching a decision. In another, the prosecution objected to parts of the defence application to lead evidence of communications between the victim and the accused following the alleged crime. It was granted in part by the court.
367. The other applications were granted, unopposed.
368. To examine whether the prosecution was applying the law robustly, COPFS undertook a three month monitoring exercise  of the prosecution attitude to defence s 275 applications lodged at the time of the Preliminary Hearing and their outcome.
369. There were 14 applications.
- Five were granted, unopposed – all related to the accused and victim having a prior relationship and contact after the alleged crime.
- In seven, although unopposed by the prosecution, the court questioned the scope and relevance of the applications. Four were continued for further consideration/information. One was granted in full. Two were granted on a restricted basis.
- In the remaining two, the prosecution opposed parts of the applications. Following submissions, the court determined that references to abuse alleged to have been committed by two victims in one case and to sensitive medical information in the other were irrelevant.
370. The exercise did not capture defence s275 applications made at trial.
371. Other than providing some re-assurance that the prosecution and court are questioning the relevance and scope of such applications, where appropriate, the exercise is of limited value to assess the effectiveness of the legislation.
372. Our ability to assess the relevance of s275 applications from case records was limited. Such applications often follow detailed discussions between prosecution and defence counsel in preparation for the Preliminary Hearing which can result in the scope of such applications being narrowed. While the outcome is recorded in the court minutes the detail of the submissions are not routinely noted.
373. Without hearing the submissions and having a detailed knowledge of the case, it is difficult to assess the relevance. Further, in some cases, the Judge may initially limit the scope of the application subject to further submissions on relevancy at the trial or on receiving additional information. Applications can also be made at trial.
374. A robust and comprehensive review of the effectiveness of the legislation could only be achieved by including an assessment of the relevance and effect of this type of questioning in the context of the dynamics of the trial. This would require a consideration of transcripts from, or observations of, trials which was outwith the scope of our review.