Mine, and they're private

It would likely alarm the reasonable person, the right-thinking member of society, the officious bystander, the fair-minded and informed observer – indeed everyone on board Lord Reed’s upgraded Clapham omnibus – to discover that a judge can order the production of a person’s medical records in criminal proceedings to which they are not a party without them being afforded the opportunity to make representations. Yet it was not until February of this year that a Scottish court held that such a person’s article 8 rights were engaged.

Following the decision in WF, Petitioner [2016] CSOH 27, they must have the application for recovery of the documents intimated to them, and be given the opportunity to be heard before an order is made, or the documents are handed over.

WF was the complainer in criminal proceedings in the sheriff court. The indictment contained allegations of assault and domestic abuse. The accused sought to recover medical records relating to the complainer and the sheriff allowed the petition for commission and diligence, brought under s 301A of the Criminal Procedure (Scotland) Act 1995, to be intimated on the complainer, the Crown and havers. A hearing was assigned and WF applied for legal aid to enable her to be represented. The application was refused on the basis that legal aid could not be granted for such proceedings.

Where article 8 applies

WF then applied to the Scottish ministers in terms of s 4(2)(c) of the Legal Aid (Scotland) Act 1986 to direct the grant of legal aid. Their refusal, on the basis that WF had no right to appear or be represented in the petition proceedings, became the subject of judicial review proceedings before Lord Glennie. WF sought reduction of the decision and declarator that the ministers’ failure to promulgate legislation to enable her to be represented was incompatible with and in breach of her article 8 (and/or articles 6 and 14) rights.

Lord Glennie reduced the decision. In his judgment, he analysed the authorities from Scotland, England & Wales and Strasbourg, and held that:

• WF’s article 8 rights were engaged by the petition for recovery of her medical records.
• Intimation to a complainer and the provision of an opportunity to be heard before an order for recovery of medical records was made, was required to comply with article 8.
• The fact that the complainer had no express right arising from statute or secondary legislation to be given an opportunity to be heard on the recovery of sensitive records was irrelevant – the right stemmed from article 8 itself, and the absence of specific provision could not take away that right.

Uncovering the unknowns

It is worth remembering that the principles governing commission and diligence are the same in both civil and criminal proceedings (see Lord Rodger’s comments at paras 65-67 of McDonald v HM Advocate 2010 SC (PC) 1)). Lord Glennie accepted that it was not the role of the haver to protect the article 8 rights of the data subject, nor was it the role of a party acting in the public interest; their interests might not be aligned with those of the data subject, and in any event it was likely that only the data subject could address the court on their particular concerns with the proposed disclosure. And while it might be relatively easy to intimate a specification on the person whose records were sought, consideration also ought to be given to third parties whose sensitive personal data were contained in the medical records of another, and whose article 8 rights were surely also engaged.

The order for recovery of medical or other sensitive records by a court will often involve the production and disclosure of documents containing Rumsfeldian unknown unknowns. Neither the party seeking the court order nor the judge granting it will always be aware how many persons’ sensitive personal data might be contained within the records sought (see Lord Stewart’s observations on this in M v A Scottish Local Authority [2011] CSOH 113).

Putting to one side the practical, procedural and cost implications, it is submitted that Lord Glennie’s decision supports the proposition that all those persons ought to have the specification intimated upon them, and thereafter given an opportunity to make representations to the court. Provided the records sought pass the relevancy test, it is then for the court to carry out the article 8 balancing exercise.