The claimant was a 14 year old girl at the time of this application for judicial review. She was the main prosecution witness in the trial of a man, W, charged in the Crown Court Stafford, with sexual offences against her. He was eventually convicted of two counts of sexual activity with a child contrary to s9(1) and (2) of the Sexual Offences Act 2003.
In the months leading up to the trial TB had been receiving psychiatric treatment from the South Staffordshire Healthcare NHS Trust.
W’s solicitors wrote to the Crown Court asking for a witness summons directed to the Director of the Trust requiring the production of TB’s medical records. Their grounds referred to TB’s history of self-harm and mental illness which might undermine her credibility as a witness, permissible by s2(1) of the Criminal Procedure (Attendance of Witnesses) Act 1965, whereby such a person is able to produce any material documents for the purpose of proceedings and it is in the interests of justice to issue a summons to ensure a person’s attendance. Rule 28 CPR stipulates the procedure for such an application.
In this case the application requested the production of medical records although there is no requirement under the rules, for the person whose expectation of confidentiality is to be broken, also to be served with the application. The Trust accepted that the confidentiality in such cases belonged to the patient, not the Trust.
At a hearing to decide upon whether TB’s records should be disclosed, the judge had to perform a balancing exercise and in this case the interests of justice required disclosure; and he ordered the disclosure of 23 pages of TB’s psychiatric records
The Trust notified the Official Solicitor of the request, who agreed to represent TB in connection with a possible infringement of her rights under Article 8 ECHR. The Trust supported by the Official Solicitor asked the judge to state a case for the consideration of the High Court. The Crown Court judge declined and instead invited TB to court to hear her views on the disclosure, which had already taken place, and whether she understood the implications of the trial being delayed. The Official Solicitor was not available for this hearing and protested that TB was to be unrepresented. The hearing went ahead and TB reluctantly agreed, retrospectively, to disclosure of her records because she could not face the prospect of the trial being delayed if she had objected. This caused her considerable stress and anxiety.
The judicial review application sought a declaration that (i) TB was entitled to service of the application for disclosure and the right to make representations as to what order should be made and (ii) a declaration that the Crown Court acted unlawfully in not ensuring that this happened.
The High Court had to determine whether having regard to the particular circumstances of the case and the nature of the serious decisions to be taken, the person whose rights were in issue had been involved in the decision-making process to a degree sufficiently to protect their interests. If this were not the case then there would have been a failure adequately to respect their family life and privacy and any interference would not have been capable of being regarded as necessary within the meaning of Article 8 ECHR.
The court held that in light of Article 8, procedural fairness required that TB be given notice of the application for the witness summons and given the opportunity to make representations, orally, if she wished, before the order was made. Her rights were infringed and the court had acted unlawfully in a way which was incompatible with her Convention rights. It rejected the suggestion that it would have been sufficient for TB to be represented only by the Trust. The Trust’s interests were different to those of TB and it was her confidence that was breached, not the confidence of the Trust. It had a wider public interest in patient confidentiality generally and might have particular interests relating to her care, which might conflict with hers. Nor should the Trust be saddled with the burden of finding out the reasons why she might object and putting those reasons before the court. The burden should rest with the court and TB was entitled to notice and proper representation.