Limits of medical record requests

Coronavirus update

These are trying times, and managing the criminal justice system will be even more problematic than normal. I imagine agents have considered applying for bail for remanded accused on the change of circumstances. Consideration will have to be given to bringing forward plans to release remanded accused on an electronically monitored tag.

The Coronavirus (Scotland) Bill was passed as we go to print. Jury-less “Diplock” courts of the type held in Northern Ireland for certain terrorist offences since 1991 were proposed, but withdrawn under opposition. Further proposals will be brought forward during April.

Just as your MOT has been extended by six months, time taken to complete unpaid hours will be extended by 12 months. Wide powers seem to be given to vary and revoke drug treatment and testing orders. This seems a dangerous thing to do given the level of drug deaths in Scotland: surely there must still be an element of accountability and monitoring over such a vulnerable group of people.

Jury directions

Meantime here is a recent case where the jury element was to the fore. In Ritchie v HM Advocate [2020] HCJAC 7 (30 January 2020) the appellant was charged with housebreaking. The occupier of the house in Forres had recently died and the house was unoccupied.

A small black torch which did not belong to the house was found inside the front door. It was not disputed that the torch belonged to the appellant and his DNA was on it.

The Crown and defence experts disagreed with regard to four peaks in the DNA profile. The Crown expert considered these were simply artefacts (background DNA), whereas the defence expert considered they were part of the DNA profile of an unknown person or persons. At police interview the appellant, who lived in Elgin, said he had been near the locus visiting friends. He might have given his brother a torch about a month previously which was black rubber, but had heaps of “wee silver torches”. He had incriminated his brother, who had convictions for theft but from commercial premises. The torch recovered at the locus was made of black metal, not rubber. In his speech to the jury the fiscal said he suspected the only thing that could raise any doubt about the accused’s involvement was his answers to the police: “If you accept that it raised a reasonable doubt, you would have to say that it is credible and reliable.” He suggested it should be rejected. The defence agent took issue with those remarks, but the sheriff regarded the standard directions as sufficient. She did say that any hypothetical situations given in speeches were not evidence, and urged the jury to take care with scenarios that had been put to experts.

Refusing the appeal, the court said the finding of the torch at the locus was highly incriminating. The accused did not give evidence and did not identify the torch produced as the one given to his brother. The sheriff’s directions had placed the onus on the Crown to prove the case while indicating that the various scenarios put were not based on evidence of fact. Her remarks about hypothetical evidence were merited in the circumstances.

The case highlights the problems of running a positive defence largely on expert testimony.

Complainer’s medical records

The petition to the nobile officium by JC [2018] HCJAC 77 (19 October 2018) raises an interesting point. Why we had to wait until the criminal case of the accused was dealt with before informing the profession in anonymised terms, I fail to understand. It is possible that the terms of the published judgment could lead to the identification of JC, who was one complainer in a High Court indictment. She and the accused had been in a relationship from August 2015 to May 2017 and the charges involved assault, attempted rape, rape and stalking. At preliminary hearing, special defences of self defence and consent were lodged and a petition for recovery of documents was tendered for the accused. This was granted; JC sought to challenge this order. The petition was in wide terms, seeking recovery from JC’s GP of medical records “relevant to any mental health issues, psychiatric conditions or anger management issues which she has had”. The Appeal Court noted this sought access to any such material for JC’s entire life.

The averments in the accused’s petition which were said to justify such a wide-ranging intrusion into JC’s private and confidential records were that she made up the allegations, one explanation for which lay in her poor mental health. Regarding the defence of self defence, it was alleged that JC had anger management issues and the accused required at times to defend himself against her attacks. At police interview he had said JC had serious mental health issues, but he was unable to elaborate. A statement by JC to the police confirmed she had suffered with mental health issues since a teenager, but these had become worse during her relationship with the accused. It was averred that having the information sought “will assist in explaining why she made these false allegations”. In granting the application the judge had noted JC’s history, and while it could not be suggested at that stage that any mental health problems would demonstrate a propensity to lie, confabulate or fantasise, the information provided a substantial basis justifying the application. The Crown had adopted a neutral position.

The Crown had made no inquiry into JC’s circumstances earlier, but produced a later police statement of her medical history for the present hearing. It now accepted it had a duty to look into such matters when raised. The defence submitted the judge at first instance had carried out the necessary balancing exercise, taking into account JC’s article 8 rights.

A challenge to the competency of JC’s petition was withdrawn. The court noted the accused had had a right to seek recovery of information since McLeod v HM Advocate 1998 JC 67 (see the interests of justice test stated by Lord Rodger at p 80), and in WF v Scottish Ministers [2016] CSOH 27 it had been accepted that the complainer had a right to be heard. Regulations had since been made to provide for publicly funded representation in that connection for a complainer whose medical or other sensitive documents were sought to be recovered; the court understood that since then, complainers had been represented at hearings on such petitions on a number of occasions, and without expressing a concluded view on the right to be heard, accepted the procedure followed. It then seemed logical that the complainer should be entitled to challenge the decision reached.

On the merits, the court noted s 275 of the Criminal Procedure (Scotland) Act 1995 regarding evidence of a “condition or predisposition”, and how, on objective evidence of a medical condition bearing on the credibility and reliability of a witness, expert evidence of its effects could be admitted at common law. It concluded that the averments in the petition for commission and diligence provided no basis on which an order of the type requested could have been granted, and regarded the accused’s petition as of a fishing nature.

I have to say in my experience applications to seek medical records in civil cases are generally more precisely defined in relation to the case pled. While criminal practitioners may be under more pressure, the principles remain the same and in this context there needs to be a sound evidential basis to seek confidential material relating to the time frame of the charges.

Police questioning

Logan v HM Advocate [2020] HCJAC 10 (18 March 2020) raises important questions about police information-gathering procedures, especially when they involve a likely suspect. The appellant was convicted of being concerned in the supply of drugs recovered from her house, valued at £32,000. A preliminary issue was raised about the admissibility of evidence which led to the recovery of the drugs. At the hearing the sheriff refused the minute and the appellant’s conviction at trial was a formality.

About a week before the date of the offence, police received an anonymous call from a male giving the appellant’s particulars, stating that she had called him saying she had been forced to house £250,000 worth of street valium. She was scared and was also worried her own drug supply would be cut off. Two men had arrived with a key to her house and said they would be “coming back Sunday to collect the money”.

Police enquiry led to the conclusion that the appellant was likely to be the woman concerned. Attempts to test the veracity of the information were unsuccessful, and senior officers concluded that the source was insufficiently reliable for them to seek a search warrant. Two uniformed officers were instead tasked to visit the appellant to enquire after her welfare and whether she was being coerced into criminality against her will. The evidence accepted by the sheriff was that the officers spoke to her after being invited to join her in her bedroom. After they indicated they were not there to get her into trouble, and offered to help, the appellant became upset and when they suggested she wanted to tell them something about being coerced into having drugs, she made admissions and produced the drugs.

At that point the appellant was cautioned, said nothing incriminating and was arrested. Thereafter the officers obtained a search warrant and the formal recovery of the items took place. On appeal it was submitted that all the evidence deriving from the police visit was inadmissible. Prior to the visit the appellant was suspected of being involved in criminal activity. She ought to have been cautioned before being questioned at all. It was also plain that the police did not accept her initial response to their questioning and probed her further. Their questions made it clear they did not believe her initial denial. They believed she was storing drugs and anticipated she would make a statement to that effect. These circumstances underlined the importance of a caution prior to further questioning.

The Appeal Court noted that the police did not treat what the appellant had said in the phone call about coercion as a potential defence. It referred to Gilroy v HM Advocate 2013 JC 163 at para 55, where the Lord Justice Clerk (Carloway) said: “Although the overarching test in relation to the admissibility of statements by accused persons is one of ‘fairness’, it is well recognised that this normally requires that a person in the category of a ‘suspect’ must be cautioned before being questioned by the police about the offence of which he is suspected.”

At para 58, referring to the opinion of Lord Wheatley in Miln v Cullen 1967 JC 21, he noted that whilst Lord Wheatley may have viewed the issue of whether a person was a suspect as being a subjective one, which depended on the attitude of the police at the time, he qualified that by stating that the police attitude might require to be justified by reference to the facts in their possession.

In the present case none of the officers seemed to have characterised the appellant as a witness. There were two components to their interest in speaking to her: first, to test the intelligence received, that she was in possession of a large quantity of drugs, and secondly, to enquire after her welfare by ascertaining whether she was being coerced into criminality against her will. Both purposes had in mind that she might have been engaged in criminal activity by being concerned in supplying drugs.

Accordingly, the combination of a failure to caution the appellant at any stage and the encouragement given to her to respond on the premise that the officers would provide her with help, resulted in unfairness such as ought to have led to the objection being upheld. The appeal was allowed and the conviction quashed.

Non-harassment orders

The Sheriff Appeal Court case of Finlay v Procurator Fiscal Perth [2020] SAC (Crim) 1 (11 March 2020) revealed a long convoluted background, but concluded with some important remarks.

The appellant pled guilty at an early diet to a charge of a domestic assault by slapping his partner. He was given a 21 month CPO as he had a lengthy record including two domestic abuse convictions. This order was not the subject of appeal. He was also dealt with for a breach of bail, having been found in the complainer’s company in breach of special bail conditions. The sheriff deferred sentence for reports for a period of about 10 weeks and ordered him to be of good behaviour. This had the effect of removing the special bail condition and the sheriff did not apparently consider the imposition of a non-harassment order, as the court was required to do in all cases occurring after 1 April 2019. However, when sentencing on the two complaints some weeks later, a six month non-harassment order was imposed, which was the subject of appeal.

Given the domestic background the appeal was refused. The case went off the rails when a social work report was called for and the case deferred for good behaviour. One or other course should have been adopted. The court had to be alive to the requirements of s 234AZA of the 1995 Act. There might be cases when deferring sentence without making such an order was considered appropriate, and it would be perverse after such a period to make one, but that was not what had happened in this case.