Victims of sexual crime forced to choose between healthcare and justice
Victims of sexual crime in Northern Ireland are effectively having to choose between access to justice or healthcare, with some describing the disclosure and handling of their private information by the justice system as being as painful as the crime itself.
That is the key finding of a new report by the Commissioner Designate for Victims of Crime in Northern Ireland, Geraldine Hanna. The report examines how personal information such as medical and counselling records are currently being used as part of criminal investigations and specifically how this disclosure impacts victims of sexual violence.
Key recommendations
Hanna’s findings make for difficult reading: “After speaking to victims of sexual crime who had been affected by the disclosure process, I have found that not only are our laws not robust enough in protecting the privacy needs of victims, but we are also failing to deliver the level of protection for victims that our legislation and guidance currently dictates.”
To address this the report makes four key recommendations:
- key criminal justice agencies and other relevant stakeholders should explore non-legislative practice changes, guidance and training to improve adherence to law and policy regarding the handling and disclosure of third party material as a matter of urgency;
- the PSNI, PPS, and the Sexual Offence Legal Advisor (SOLA) service should work together on the referral process to ensure that victims are made aware of the SOLA service at the earliest opportunity;
- the judiciary should fully implement the Gillen Review recommendation to ensure that any applications to access or introduce evidence relating to criminal injuries compensation is duly scrutinised before the trial; and
- Northern Ireland should seek to introduce new legislation governing the access and disclosure of third party material.
Hanna describes how this has been raised with her since she took up the post: “In my first week as Commissioner Designate I was introduced to the story of a young female who had been groomed, abused, and seriously sexually assaulted from the ages of 14 to 17.
“Cathy (not her real name) shared a lot of issues with me and one in particular caused alarm. The fact that our current practice for the handling of third party material led this vulnerable young woman to decide to forgo therapeutic support whilst she waited for the criminal justice system to investigate and prosecute her offender.
“She knew if she went to counselling, anything she said there might be disclosed as part of the investigation into her case. Cathy waited five long years for this case to reach court and the offender to plead guilty to six counts of sexual assault. That is five Christmases, five birthdays, with this hanging over her head before she felt like she could get the help she needed.
“The young woman I met in mid-2022 shared a heart-breaking story of abuse, neglect and state failure to protect, which ultimately culminated in a criminal justice experience which left her feeling angry and further harmed by the process.”
“The uncertainty over which parts of her records would be shared and fear that the accused could potentially read notes that had been captured regarding her private thoughts and experiences that were shared with mental health professionals, led the victim to withdraw support for the prosecution and the case was dropped.”
The impact on victims of sexual abuse
It is this sense of further harm being caused to victims of sexual crime that is so strongly captured in Hanna’s recent report.
Titled A Second Assault – The Impact of Third Party Disclosure Practice on Victims of Sexual Abuse in Northern Ireland the report details the devastating impact disclosure can have on victims of sexual crime.
“One victim told me the most important people in her life, and even her abuser, could hear all this information without her knowing the details of what was shared,” she explains.
Hanna also heard from a victim who reported that she had no recollection of agreeing to the disclosure of her private information. She was taken aback when she was challenged by the defence barrister at court who used the record of a call that she had made to Lifeline to dispute her assertion that she had not disclosed the abuse to anyone before reporting to the police.
As Hanna explains: “She felt that this information was used to undermine her at one of the most vulnerable moments of her life.”
Outlining the fact that third party disclosure arises most frequently in sexual violence cases Hanna states: “Figures from the Northern Ireland Courts and Tribunal Service (NICTS) in 2022 showed that 46 per cent of Crown Court cases that included a disclosure order were for sexual offence cases with 30 per cent related to cases involving a multitude of charges, which were also likely to include sexual offences.”
How the system is failing victims
To understand how victims of sexual crime are being failed, it is important to understand how the disclosure process works.
The police, as part of any ongoing investigation, are obliged to pursue all reasonable lines of inquiry. This can include requesting access to information such as counselling records, education records, medical records etc.
This information must be shared with the prosecution where it is deemed relevant. If it undermines the prosecution case or assists the defence case, it will be disclosed to the defence. If the material has not been obtained at the initial investigation stage, it may be sought at a later stage by defence representatives via a court order.
The safeguards in place to protect the privacy rights of victims during this process are not working, as Hanna explains: “We are failing to protect the European Convention on Human Rights (ECHR) Article 8 rights of the victim.”
When the police are investigating a crime, any personal data generated or acquired as part of the investigation process should be limited to that which is sufficient for the progression of the investigation and which might be ‘reasonably believed to be relevant’.
However, as Hanna details in her report: “Victims have told me there is a trend whereby third party material, including therapy notes, are routinely sought at initial investigation stages without any clear explanation as to the reasonable line of inquiry being pursued.”
This feedback echoes findings from an Information Commissioner’s Office (ICO) report in 2022, which found that the volume of material being sought by UK police forces was unnecessary and disproportionate. The ICO report also raised concerns about the police practice of relying on a victim’s consent as the lawful basis for obtaining and processing third party material.
Hanna explains: “The ICO raised concerns about the ability of an individual to give free and informed consent at the point of trauma, the power imbalance between the police and the victim and the absence in any real sense for a victim to withdraw their consent at a later point.”
Hanna acknowledges that steps are being taken by the PSNI to address the ICO findings however she is concerned that the pace of progress is too slow with limited positive change being seen by victims to date.
Hanna’s recent report also identifies issues at the prosecution stage of the criminal justice process. “Victims have a right to be informed about the collection and use of their personal data under UK GDPR. However, the exemptions which can be relied upon can mean the prosecution do not have to notify the victim of the detail of any material they believe meets the test for disclosure to the defence.
“One victim who spoke to my office outlined her concerns that her detailed mental health records were deemed by the PPS to meet the disclosure test to be shared with defence.
“The PPS refused to provide further information as to which details met the disclosure test and advised the victim against seeking a copy of her own personal records in case this was used against her in court.
“The uncertainty over which parts of her records would be shared and fear that the accused could potentially read notes that had been captured regarding her private thoughts and experiences that were shared with mental health professionals, led the victim to withdraw support for the prosecution and the case was dropped.”
Issues also arise in court. Feedback to the Commissioner Designate has shown that disclosure applications are being made late in the process, causing additional delay.
“The legal parameters governing such disclosure, even when complied with, are not strong enough. We risk undermining the confidence of victims in the criminal justice system and causing secondary victimisation and harm.
“We need to do everything we can within the current procedures and guidance – but that is not enough. Even if the current safeguards were being implemented properly, there still are not rigorous enough protections in place.”
“We could have led on this if not for the last few years of political stalemate here. MLAs could and should introduce a law that means no future victim has to ever consider choosing between healthcare and justice again.”
International comparisons
Hanna’s team looked at how this issue has been tackled elsewhere “other jurisdictions are considering this, or have introduced relevant legislation”.
In Tasmania, there is an absolute ban on the use of pre-trial therapy notes which means that, unless the victim consents, the introduction of any counselling communication as part of trial proceedings is prohibited.
In the Republic of Ireland, The Criminal Law (Sexual Offences) Act 2017 means that in cases where the victim is unwilling for their counselling notes to be shared, the final decision on disclosure will be made by a judge.
In Canada, the victim can invoke legislation to defend their privacy rights and oppose defence applications for the disclosure of their personal records. The threshold for disclosure requires the defence to set out the grounds for relevancy.
This issue has been highlighted as a cause for concern at Westminster as Hanna explains: “The Westminster government are keen to increase protections in this area with proposed amendments to the current Victims and Prisoner’s Bill which is progressing through Parliament.”
Better compliance, stronger safeguards
One of the key recommendations from Hanna’s report is that the devolved government in Stormont should seek to strengthen legislation governing the access and disclosure of third party material.
However, the last few years of political stalemate means Northern Ireland risks being left behind those in other jurisdictions.
“We could have led on this if not for the last few years of political stalemate here. MLAs could and should introduce a law that means no future victim has to ever consider choosing between healthcare and justice again.”
Before any new legislation is introduced, Hanna is also looking ways to improve the system within current guidelines.
“I am putting together a working group of criminal justice organisations and other stakeholders to address the fact that across the criminal justice system there is not compliance with the current safeguards.
“I have been pleased how willing criminal justice organisations have been to come forward to address this, and improve the experience of victims.
“But without new legislation, without stronger protections, I fear that for some victims the price to be paid in pursuing a justice outcome will remain too high.”
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