Holyrood told to reconsider rejection of legal aid for alleged abuse victim

The Scottish Government's been told to reconsider its rejection of legal aid for an allegedly abused woman in a landmark human rights case that offers a voice to claimed victims in pre-trial proceedings over confidential records.

The woman was seeking publicly-funded aid for representation at a court hearing where lawyers acting for the accused want to gain access to her medical files

She maintained that such a move would infringe her European Convention on Human Rights (ECHR) right to private and family life under Article 8.

Ministers refused her application but their decision was set aside by a judge who decided she had a right to be heard.

Lord Glennie said: "If, as the material presented to Scottish Ministers appears to show, the complainer (the woman) here is vulnerable and terrified by the whole court process so that she cannot be expected to speak up for herself in court and present her arguments coherently and forcefully, that will be a strong reason for the application for legal aid to be favourably regarded."

"Any person whose Article 8 rights 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 must 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," he said.

The woman, WF, is the alleged victim in five charges out of seven making accusations of assault and domestic abuse against a man in a case at a Highland sheriff court.

To assist in his defence his lawyers want to recover from the NHS and other sources all medical, psychiatric and psychological files relating to the woman over a seven-year period.

The woman sought legal advice and an application was made to the Scottish Legal Aid Board (SLAB) to allow her to be represented in opposition to the recovery proceedings on the basis of her right to respect for private and family life in Article 8.

SLAB refused the application as there was no basis in legislation and regulations for it to be granted for such proceedings.

She then turned to the Ministers who can direct the grant of legal aid in circumstances not covered by the rules.

But they rejected the move claiming that they considered that the decision-making process in such cases allows the views of the alleged victim to be taken into account sufficiently and for their interests to be protected without the need for them to participate and be represented at the hearing.

But in a judicial review of the decision brought at the Court of Session in Edinburgh Dorothy Bain QC, for the woman, attacked the ruling.

Lord Glennie said: "Although the decision under review concerns the refusal of legal aid, the reasons for that refusal raise the issue of whether the complainer has any locus to appear and be represented in the sheriff court petition procedure."

The judge said: "Turning to the Scottish Ministers letter of July 2015 refusing legal aid, Ms Bain characterised the argument there made that the complainer could rely upon the court knowing the law and protecting her interests as 'remarkable' and as displaying a lack of understanding of the adversarial system."

It was argued that by refusing legal aid the Government was preventing the woman from participating effectively in a case where her own rights were involved.

Rape Crisis Scotland made written submissions in the action and said that in their experience there had been an increasing use of alleged victims medical or other sensitive records in sexual offence prosecutions, often to find out if there was a history of mental health issues.

It was maintained that without adequate safeguards to protect them, the risk of disclosure of confidential medical and psychiatric records would be another reason why sex assault victims would not report such incidents to the police.

Lord Glennie said: "There is no doubt that the potential disclosure to any third party of medical records pertaining to the complainer engages the complainer's Article 8 rights. Medical records are likely to contain highly sensitive information about an individual."

The judge said: "I consider that intimation to the complainer and the provision of an opportunity to be heard before an order for recovery of her medical records is made is required if there is not to be a breach of the complainer's Article 8 rights."

Lord Glennie pointed out that a sheriff in such a case required to carry out a balancing exercise and said: "But how is the court to know whether there are any particular sensitivities to be taken into account in making its decision, unless it gets this information from the complainer or her representatives."

The judge said in his view it would be adequate for rules to be brought in along the lines of those in England and Wales under which notice is given to those holding the information and the alleged victim and they are given an opportunity to indicate if they want to be heard in opposition.

Lawyers for the Ministers argued that the alleged victim had no present right to be heard.

But Lord Glennie said: "That is wrong. There may be no express provision in any statute or any rule requiring intimation to be made on the complainer or requiring her to be given an opportunity to be heard."

"But she has that right by virtue of Article 8 and the absence of any specific provision in a statute or in court rules cannot take away that right."

"What is required is for the lack of any specific provision to be addressed by the appropriate rule-making body," said the judge.

Lord Glennie said: "The appropriate course for this court is simply to reduce the decision, founded as it is on an error of law as to the complainer's right to be heard, leaving the Scottish Ministers to make a new decision on a correct legal basis."

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