Husband accused of assaulting wife fails in appeal to recover psychiatric report

The Criminal Appeal Court ruled that it was “not in the interests of justice” to allow the recovery of the report, which had been prepared in connection with separate proceedings against the wife for assaulting her husband.

The Lord Justice Clerk, Lord Carloway, sitting with Lord Brodie and Lord Philip, heard that the appellant “DM” had been indicted on various charges of public disorder, including charges of assaulting his wife, between 2009 and 2013.

He sought the recovery of a psychiatric report on his wife, which had been prepared in August or September 2013 and obtained by her with a view to demonstrating that she was not fit to stand trial by reason of her mental state, which prohibited her from engaging meaningfully in the trial process.

The production of the report resulted in the adjournment of the trial diet and ultimately the respondent deserted the proceedings pro loco et tempore pending the resolution of the present case, partly because of what was said in the report.

The court also heard that the appellant had already obtained psychotherapy and general practitioner records relating to the complainer’s mental health, which were said to reveal that she suffers from anxiety and depression.

The appellant contended that during September 2013, the complainer was suffering from a “major depressive disorder” and that her complaints against the appellant were made in an attempt to escape prosecution herself.

It was said that the report would allow the credibility and reliability of the complainer to be explored, that it was in the “interests of justice” that the report be given to the appellant as it could be of “material assistance in the preparation of his defence” and that he would be “materially prejudiced” if he did not have the report.

Before the sheriff, it was accepted that the appellant was essentially speculating about the report’s content.

In refusing the petition, the sheriff had regard to the test in McLeod v HM Advocate (1998), to the effect that a party seeking the recovery of documents requires to explain why he wants them.

The court will not grant an order for recovery unless it is satisfied that that recovery will serve a proper purpose and that it is in the interests of justice to grant the relevant order – it requires to be satisfied that the material sought will be of material assistance in the proper preparation or presentation of the defence.

The sheriff noted that the appellant had already obtained the medical records and, having regard to the specific purpose for which the report had been obtained, determined that it had not been shown that recovery was likely to be of material assistance in the circumstances.

He also balanced the interest of the appellant with the right of the complainer to respect for her private life under article 8 of the European Convention on Human Rights, but did not consider that the interests of justice required recovery.

Before the appeal court, the appellant maintained that the sheriff erred in his application of the test to the circumstances.

The appellant’s general position was that his wife did not suffer from any form of mental disorder, but if on the other hand the report suggested otherwise, he might be able to use that material to demonstrate some effect on her credibility or reliability.

If the position was that she did not suffer from a mental disorder, he would be able to demonstrate that she “effectively attempted to defeat the ends” of justice by pretending otherwise.

However, the appeal judges ruled that the sheriff applied the “correct test” and did so in a “satisfactory manner”.

Delivering the opinion of the court, the Lord Justice Clerk said: “It appears that the exercise in which the court is being asked to engage is the classic ‘fishing’ diligence. It is also designed in part to pursue an entirely collateral matter, that is to say whether the complainer has misled the prosecution in some way about the state of her mental health.

“For material in a psychiatric report to be relevant in this case, it would either have to support a proposition, which is nowhere alleged, that the appellant’s mental state is such that she is unable to distinguish between right and wrong, or that she is suffering from some specific condition which causes her to lie or to be unreliable.”

He added: “In any event, the appellant is not disadvantaged in not obtaining this report. He already has the primary evidence in the form of the complainer’s medical records.

“The report here was for a discrete purpose in relation to other proceedings. In that context the complainer’s rights under article 8 for respect for her private life must be given some weight, as indeed the sheriff did.

“In short, in the absence of any apparent relevance of the material, speculatively said to be contained in the report, to the issues which are to be explored at trial, the court does not consider that it is in the interests of justice to allow the recovery and this appeal is therefore refused.”