The Crown Prosecution Service’s recent revision of its own guidance as to when and how confidential counselling records relating to those who have alleged serious sexual assault should be revealed to the defence has sparked controversy.
The investigation of allegations of serious sexual assault is a uniquely challenging and sensitive area. Such allegations usually relate to incidents that are said to have occurred in private between two individuals. It is usually one person’s word against another as to whether the incident took place at all or, if that is known, whether or not it was consensual.
If the complainant has given an account of the alleged incident prior to making a complaint to the police, that can be valuable evidence that may either support the allegation or undermine it. A previous account given in confidence to a close friend, relative or medical professional, which is consistent with the account given to the police, may support the veracity of the account given to the police. It may also rebut any suggestion by the defendant that the allegation is a recent fabrication. However, a previous account which is inconsistent with the account given to the police may undermine the credibility of a complainant.
In the former case, the prosecution may wish to rely on the earlier account as evidence. In the latter, the rules of disclosure mean the prosecution will be legally obliged to reveal the inconsistent account to the defence on the basis that it undermines the prosecution case.
Accounts after making a police statement
However, sometimes complainants give accounts of events after they have made a statement to the police but before any trial. Such situations are most likely to occur in the context of counselling support accessed as a direct result of the complaint being made to police. Such accounts are unlikely to assist the prosecution as they come after the complaint to police and so are not independent of the formal complaint. By contrast, such accounts may still undermine the prosecution (if they are inconsistent with the account given to the police) in which case the prosecution would, as before, be legally obliged to reveal the inconsistent account to the defence.
This has historically resulted in complainants being discouraged from seeking counselling after making a report to police for fear they may say something inconsistent with the report to police and thereby undermine the prosecution case. Plainly, the collateral effect of this is the risk of genuine complainants and survivors of sexual abuse being shepherded away from the counselling they so desperately need.
The new guidance follows on from a movement away from such an approach but also clarifies and reiterates the principles the police must apply in seeking to access post-report/pre-trial counselling notes as part of an ongoing investigation into the veracity of a complaint.
A letter sent by groups representing psychologists, counsellors and psychiatrists has criticised the new guidance and effectively suggests that post-complaint counselling notes should be withheld from investigators. Only this guarantee of privacy, so the argument goes, will encourage genuine victims to access post-report counselling services.
The right to privacy vs the right to a fair trial
Whilst this sentiment is well intentioned and perfectly understandable, it fails to engage with the conflicting rights that arise in the context of a criminal investigation. The right to a fair trial is an absolute right (as acknowledged by the new CPS policy). By contrast, the right to privacy is not. The right to privacy can (and should) be trumped by the right to a fair trial, otherwise false accusers can assert the right to privacy as a mechanism to deny their target access to material which demonstrates that the accusation is, indeed, false. This stark reality may not sit comfortably with therapists who proceed on the basis that their client is truthful, but it is a fundamental principle of a properly operating system of justice. If proper access to such material cannot be achieved to allow a review to take place there is a risk that the prosecution will not be able to proceed as the defendant cannot have a fair trial. This will not always be the case, but it emphasises the importance of the process by which such material is reviewed.
The protection to the person being counselled is that police will only be permitted access to those elements of the notes that are considered relevant and in many cases that will be limited to the notes of any account of the abuse that has been advanced. Often counsellors do not seek (or require) a detailed account and so there is nothing for the police to review. On the other hand, if an account is volunteered, it is likely to require review by the police but will usually not be handed over to the defence unless it contradicts any other account that has been given. The diagnostic and other aspects of the notes are, in most cases, less likely to require review or, if they are reviewed, assessed as undermining of the prosecution case such that they must be handed over to the defence.
The detailed CPS guidance
In many cases those who make complaints are prepared to waive the privacy that attaches to such notes and allow police to access them. However, if the therapist then refuses to hand over the notes, the prosecution have the potential option of applying for a witness summons to compel production of the notes. The detailed CPS guidance sets out in great detail the need for police to take a careful, reasoned, sensitive and proportionate approach to seeking to review such material. Whether that will be achieved in practice remains to be seen.
Mark Cotter QC of 5 St Andrew’s Hill, London, is a specialist criminal barrister who assists individuals and businesses facing serious or complex criminal investigations.
Photo from Piqsels.