Criminal Appeal Court quashes order to recover rape complainer’s medical records in petition to ‘nobile officium’

The Appeal Court of the High Court of Justiciary ruled that the application for commission and diligence, which was granted on the basis that the accused was seeking to “undermine the complainer’s credibility and reliability”, was a “fishing” expedition.

‘Commission and diligence’

Lord Menzies, Lord Drummond Young and Lord Turnbull, heard that the woman, “JC”, was one of the complainers in a High Court trial in which the accused, Paul McMillan, was her former partner.

McMillan faced an indictment libelling eight charges of which JC was the complainer in five, which included charges of assault, sexual assault with intent to rape, attempted rape and rape, as well as a charge of engaging in a course of conduct which caused JC “fear or alarm”.

At a preliminary hearing in May 2018 the accused lodged special defences of self-defence in relation to the assault charge and consent in relation to the three most serious charges.

He also lodged a petition for commission and diligence seeking to recover medical records “relevant to any mental health issues, psychiatric conditions or anger management issues” JC had, with a view to disclosing some “personality disorder” and undermining her credibility and reliability by demonstrating that “she lies all the time”, to show that these were “false allegations”.

Following a hearing in September 2018 a judge granted the petition, having considered that there was a “substantial basis” justifying the application, as the medical records could provide the accused’s lawyers with information that the complainer may have suffered from some condition which could impact on her credibility and reliability.

‘Nobile officium’

JC then lodged a petition to the nobile officium seeking to challenge the court’s order, arguing that the granting of the petition for commission and diligence constituted an “unjustified breach” of the petitioner’s right to respect for her private life in terms of article 8 of the European Convention on Human Rights (ECHR).

It was submitted that “no proper basis” had been set out in the petition for the granting of such an order, and that there was no connection set out between any mental health issues which the complainer may have suffered from and the contention that she had fabricated her account of the accused’s conduct.

A challenge to the competency of the petition was not insisted upon, but on behalf of the accused it was argued that “sufficient information” had been placed before the judge to vouch the contention that the complainer suffered from “mental health difficulties” and “anger management issues”.

The judge had applied the correct test in determining that the recovery of the complainer’s medical records would serve a proper purpose and he had conducted an appropriate balancing act in determining whether the application ought to be granted despite the admitted interference with the complainer’s article 8 rights.

Having proceeded on the basis that the petition to the nobile officium was competent, the appeal judges quashed the order after observing that the application sought access to the “entire life history” of the complainer’s medical records - in so far as anything within those records was “relevant” to any mental health or psychiatric condition of whatever kind, with whatever symptoms and at whatever stage of her life - which was a “wide-ranging intrusion” into her private and confidential records.

‘Fishing diligence’

Delivering the opinion of the court, Lord Turnbull said: “If a complainer has a right to be heard in proceedings for recovery of her medical records, as JC was, then it seems to us to be logical that she would be entitled to challenge the decision arrived at. No method of appeal is available to JC. Accordingly, we were prepared to proceed upon the understanding that the present petition to the nobile officium was competent.

“In the present case the basis upon which the accused asked the court to order production of JC’s medical records was the contention that she suffered from poor mental health and had anger management issues. The purpose to which the records were to be put was the undermining of her credibility and reliability.

“In the present case those who act for the accused appear not to possess any medical advice vouching the contention that the description of the complainer’s mental health, as provided either by the accused or by the complainer herself in her statement to the police, was consistent with any known medical condition which would manifest itself in a lack of reliability or truthfulness.

“There are no averments in the petition suggesting that she suffers from any particular condition, beyond the possibility that she may have a ‘personality disorder’. There are no averments to vouch the proposition that any particular personality disorder is known to cause those who suffer from it to lie or be unreliable.

“The first instance judge was presented with no medical opinion and appears to have been invited to proceed upon the proposition that mental illness of any nature equated to a propensity to lie or fantasise. In our opinion, the averments in the petition for commission and diligence provide no basis upon which an order of the sort requested could have been granted.

“In our opinion the circumstances as explained by the first instance judge constitute a description of a fishing diligence.”

McMillan was sentenced to seven years’ imprisonment in March 2019 after being found guilty of three charges of rape following a trial at the High Court in Edinburgh.