Abuse accused fails to recover Crown psychiatric report on wife
A man charged with a series of offences against his wife has failed in an attempt to recover a psychiatric report on her instructed by the Crown, which he claimed would allow her credibility and reliability to be tested.
The charges against the man, referred to as DM, were various offences of public disorder involving his wife among others, and assault on her, between 2009 and 2013. The report had been obtained in connection with different proceedings against Mrs DM for assaulting DM, with a view to demonstrating that she was not fit to stand trial by reason of her mental state, and was a factor in those proceedings being deserted pending resolution of the present case.
DM had obtained psychotherapy and GP records relating to Mrs DM's mental health, said to reveal that she suffered from anxiety and depression, and contended that her complaints against him were made in an attempt to escape prosecution herself and that the report would allow her credibility and reliability to be explored, whatever its content: if, as he maintained, she did not suffer from mental disorder, she had effectively attempted to defeat the ends of justice by pretending otherwise.
Lord Justice Clerk Carloway, Lord Brodie and Lord Philip however refused the commission and diligence as essentially a “fishing” exercise. Lord Carloway, speaking for the court, said the sheriff at first instance had properly applied the test in McLeod v HM Advocate (1998), including that recovery had to serve a proper purpose and be in the interests of justice. He balanced DM's interest with Mrs DM's ECHR article 8 right to respect for her private life. Whether Mrs DM had misled the prosecution was a collateral matter.
“For material in a psychiatric report to be relevant in this case, it would either have to support a proposition, which is nowhere alleged, that [Mrs DM’s] mental state is such that she is unable to distinguish between right and wrong, or that she is suffering from some specific condition which causes her to lie or to be unreliable”, Lord Carloway said.
DM was not prejudiced because he already had the medical records, the primary evidence, and the report was for a discrete purpose in other proceedings, in which case some weight had to be given to Mrs DM's article 8 rights.
Lord Carloway concluded: “In short, in the absence of any apparent relevance of the material, speculatively said to be contained in the report, to the issues which are to be explored at trial, the court does not consider that it is in the interests of justice to allow the recovery and this appeal is therefore refused.”