The Annual Review of Disclosure, published last week by the Solicitor General, Alex Chalk QC, clarifies that third-party material such as therapy notes and medical records must only be sought where ‘appropriate, proportionate, and balanced with the right to privacy’. Investigators and prosecutors must give justification in writing before they can access such information.
Investigators are to be given guidance on redaction to meet data protection duties in a proportionate way, case files are to be simplified to avoid duplication between investigators, and videos can be clipped and cropped so the CPS is only given relevant information.
Meanwhile, the Crown Prosecution Service (CPS) has advised victims of rape and other crimes not to delay therapy for any reason connected to the police investigation or case.
It published updated pre-trial therapy guidance last week which sought to alleviate victims concerns that accessing counselling could damage the prosecution case. The Guidance on Pre-trial Therapy highlights ‘the health and wellbeing of the victim should always determine decision making with regards to pre-trial therapy’, and warns that criminal justice practitioners should ‘play no role’ in this decision beyond alerting victims to the availability of therapy. However, it cautions that some therapies such as group therapy could present difficulties and may need specific consideration.
The guidance asks police and prosecutors to give ‘very serious consideration as to whether requesting therapy notes represents a reasonable line of enquiry. What is reasonable will depend on the circumstances of the case’. It bans ‘unfocused requests to browse patients’ files’ and insists on compliance with all relevant data protection laws. The therapy notes will only be disclosed to the defence if they contain ‘material capable of undermining the prosecution case or assisting the suspect’.
The guidance also covers the impact of trauma on a victim’s memory and demeanour to help address concerns about inconsistencies in victims’ accounts during therapy.
Siobhan Blake, CPS lead for rape and serious sexual assault prosecutions, said: ‘Balancing a victim’s right to privacy with a suspect’s right to a fair trial is a sensitive issue.’
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