The move follows a Court of Session decision by Lord Glennie (WF v Scottish Ministers 2016 SLT 359) where the right of a complainer to have the application for recovery intimated to them was clarified.
Although the case related purely to defence applications, COPFS are committed to adopting the key principles from that judgement into Crown practice to ensure a victim-centred approach which properly recognises victims’ privacy rights.
The COPFS policy stipulates that before the Crown attempts to recover sensitive personal information, such as medical records, the consent of the witness should be sought. It also sets out the processes to be followed if consent is not forthcoming.
The revision was completed following consultation with a number of stakeholders including Scottish Women’s Aid, Children 1st, Victim Support Scotland and Rape Crisis Scotland.
Anne Marie Hicks, Head of Victims and Witnesses Policy at COPFS said:
“In some cases medical, social work or other personal records may be needed during a criminal case. This revised policy is designed to ensure these files are only asked for when absolutely necessary. It also provides for better communication with victims and witnesses in those cases where personal records become an issue, recognising their privacy rights and the importance of their involvement in any consideration of obtaining personal records.”
Sandy Brindley, Chief Executive of Rape Crisis Scotland said:
“It is vital that the privacy and dignity of survivors of sexual violence seeking justice is respected. The prospect of having their personal information, such as medical records, accessed as part of a criminal prosecution can be distressing and bewildering.
“We welcome this new approach to protecting the privacy of survivors which enshrines the need to ask them for consent and recognises the right they have to be independently represented in court when their personal records are being sought.”