R (TB) v The Combined Court At Stafford [2006] EWHC 1645 (Admin)

R (TB) v The Combined Court At Stafford [2006] EWHC 1645 (Admin) concerned a challenge by a fifteen year old victim of sexual abuse to the Crown Court’s ordering of disclosure of her psychiatric records without notice to her; the Divisional Court held that such an order made without giving her notice and the opportunity to make representations was unlawful under Article 8 of the European Convention on Human Rights.

The claimant, TB, a fourteen year old girl at the material time, had been receiving psychiatric treatment from the South Staffordshire Healthcare NHS Trust and had taken three overdoses between February and November 2005. She was the main prosecution witness in the Crown Court trial of W, who was charged with sexual offences against her and subsequently convicted of sexual activity with a child contrary to section 9(1) and (2) of the Sexual Offences Act 2003. In November 2005 W’s solicitors applied for a witness summons under section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965 directing the Trust to produce TB’s medical and hospital records on the basis that her history of self-harm and mental illness might undermine her credibility. The application did not comply with the Criminal Procedure Rules 2005 in several respects, including the lack of a supporting affidavit, but on 17 November 2005 the Crown Court issued the summons to the Trust directing the Director to attend and produce all records relating to TB at a hearing on 28 November 2005. Rule 28 of the Criminal Procedure Rules 2005 required service of the application on the person to whom the summons was directed but made no provision for service on the person whose records were sought.

At the hearing on 28 November 2005 W’s counsel submitted that the defence case was that the allegations arose from a schoolgirl crush used as a basis for fantasy. The judge considered that evidence of TB’s suicide attempts and difficulties was plainly relevant to her credibility and that in the balancing exercise the need to ensure W, a thirty four year old man of good character facing serious charges, received a fair trial must take precedence over confidentiality issues. The judge ordered disclosure of twenty three pages of TB’s psychiatric records. On 30 November 2005 the Trust notified the Official Solicitor, who immediately informed the Crown Court and the other parties that she now represented TB in connection with a possible infringement of her rights under Article 8. The Trust, supported by the Official Solicitor, sought to have the judge state a case for the High Court. The judge was reluctant because it would delay the trial fixed for 12 December 2005 and after two further hearings decided to invite TB herself to attend court the following morning. TB attended on 6 December, missing school, without any arrangement or opportunity for representation. The Official Solicitor, informed of the hearing only at 4pm on 5 December, sent an urgent fax protesting that it was inappropriate for TB to be put in such a situation. TB telephoned the Official Solicitor from court and it was apparent she was under considerable pressure. She agreed reluctantly to disclosure, although she did not want her medical records disclosed, because she could not face the prospect of the trial being delayed.

The claimant sought judicial review seeking declarations that she was entitled to service of the application, the right to make representations, and that the Crown Court acted unlawfully in not securing those entitlements. The claim for just satisfaction was not pursued. The NHS Trust broadly supported the claimant and the Crown Prosecution Service took a neutral position.

Lord Justice May and Mr Justice Forbes held that the court had jurisdiction to hear the application. Although section 29(3) of the Supreme Court Act 1981 prevented the High Court making mandatory, prohibiting and quashing orders in relation to the Crown Court’s jurisdiction in matters relating to trial on indictment, the present claim would have no effect on delaying trial, was not brought by a party to the Crown Court proceedings, and sought declarations rather than the specified orders. The court was satisfied it had jurisdiction.

Lord Justice May held that medical records, particularly psychiatric records, were confidential and that a patient undoubtedly had a right of privacy within Article 8 of the European Convention on Human Rights. The Crown Court as a public authority was obliged by section 6(1) of the Human Rights Act 1998 not to act in a way incompatible with Convention rights. His Lordship cited Baroness Hale in Campbell v MGN Limited [2004] 2 AC 457 regarding the importance of confidentiality of health data and Silber J in R (Axon) v Secretary of State for Health [2006] 2 WLR 1130 emphasising the high duty of confidence owed to competent young persons which should not be overridden except for a very powerful reason. The confidentiality of a patient’s medical records belonged to the patient. If the court was to order disclosure in breach of confidentiality it could only do so if this was proportionate, in accordance with the law and necessary within Article 8(2), requiring a balance between TB’s rights of privacy and confidentiality and W’s right to have his defence informed of the content of her medical records.

Lord Justice May held that although the existing legislation and rules did not expressly oblige the court to give notice of an application for a witness summons to a person in TB’s position, rule 1.1 of the Criminal Procedure Rules provided that the overriding objective was that criminal cases are dealt with justly, including respecting the interests of witnesses and victims. Rule 1.3 required the court to further the overriding objective when exercising any power. In his Lordship’s view the overriding objective required notice to be given. The court was being invited to trample on TB’s rights of privacy and confidentiality. TB was both a witness and a victim of the alleged crime and the court was obliged to respect her interests.

His Lordship further held that although Article 8 contained no explicit procedural requirements, the court would have regard to the decision making process to determine whether it had been conducted fairly and afforded due respect to the interests protected by Article 8. The process must secure that the views of those whose rights were in issue were made known and duly taken account of. Procedural fairness was mandated not merely by Article 6 but also by Article 8, citing W v United Kingdom (1987) 10 EHRR 29 and Re G (Care: Challenge to Local Authority’s Decision) [2003] 2 FLR 42. What had to be determined was whether the person whose rights were in issue had been involved in the decision making process to a degree sufficient to provide them with the requisite protection of their interests. If not, there would be a failure to respect their family life and privacy and the interference would not be capable of being regarded as necessary within Article 8.

Lord Justice May held that procedural fairness in the light of Article 8 undoubtedly required that TB should have been given notice of the application for the witness summons and given the opportunity to make representations before the order was made. Since the rules did not require this of the person applying for the summons, the requirement was on the court as a public authority. TB was not given due notice or that opportunity, so the interference with her rights was not capable of being necessary within Article 8(2). Her rights were infringed and the court acted unlawfully in a way which was incompatible with her Convention rights.

His Lordship rejected the suggestion that it would have been sufficient for TB’s interests to be represented only by the NHS Trust. The confidence was hers, not theirs. Their interests were different. The burden of protecting TB’s privacy should not be placed on the Trust; the burden resided with the court and she herself was entitled to notice and proper opportunity for representation. Lord Justice May also strongly deprecated what happened on 6 December 2005, stating it was quite unacceptable for a vulnerable fourteen year old schoolgirl known to have attempted suicide, the victim of alleged sexual abuse and a prosecution witness, to be brought to court at short notice without representation or support to be faced personally with an apparent choice between agreeing to disclosure of her psychiatric records or delaying a trial which was bound to cause her concern and stress.

Lord Justice May considered Z v Finland (1997) 25 EHRR 371, where the European Court of Human Rights held there had been no breach of Article 8 when an HIV positive applicant had not had an opportunity to be heard directly before measures were taken but the competent authorities had been made aware of her views and interests through her medical advisors, her letter read out in court, and her lawyer drawing the prosecutor’s attention to her objections. His Lordship held that this was a decision on its facts which could not be used to support a general position that a person whose Article 8 rights are in issue need not be notified, that representations by medical advisors alone are sufficient, or that oral representation is unnecessary. The combination of factors in that case was not present in TB’s case.

Lord Justice May commented on the Criminal Procedure Rule Committee’s consultation on amendments to Part 28 of the Criminal Procedure Rules 2005. His Lordship cautiously confined his decision to the facts of the present case but noted that the consultative draft for Rule 28.3 did not require a person with Article 8 rights of privacy to be given notice, did not apparently give a right to make oral representations, and expected the proposed witness to make the necessary representations. Lord Justice May stated this would not have been adequate for the present case. Under the consultative rules W could have asked for an oral hearing but TB had no right to receive notice, let alone to ask for an oral hearing, which would be unacceptable inequality. His Lordship discussed potential difficulties including which persons or classes of persons with Article 8 rights should be given notice, who should decide whether notice should be given, by what mechanism and at what time such decisions should be made, and whether persons with Article 8 rights should be entitled to make oral representations.

Mr Justice Forbes agreed. In short, the Crown Court acted unlawfully in making a disclosure order for psychiatric records of a vulnerable child victim and witness without giving her notice and the opportunity to make representations, thereby breaching her Article 8 rights, and the case illustrated the need for amendment of the Criminal Procedure Rules.

Maidstone Crown Court ex parte London Borough of Harrow [2000] QB 719
R (Kenneally) v Crown Court at Snaresbrook [2001] EWHC Admin 968; [2002] QB 1169
Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 AC 457
R (Axon) v Secretary of State for Health [2006] 2 WLR 1130
Ashworth Security Hospital v MGN Limited [2002] UKHL 29

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