AG -v- H [2012] JRC 175 (04 October 2012)

JUDGMENT THE commissioner: 1. The defendant is due to stand trial on seven counts of indecent assault and one of inciting an act of gross indecency in respect of three young girls.

2. The prosecution's case and the admissions it says the defendant has made are summarised in the Court's judgment of 27 th September, 2012, on severance and I will not repeat the same here.

3. The defence apply for disclosure of all medical records pertaining to the symptoms, diagnoses, treatment, medication and current status associated with the history of mental illness of the complainant in respect of counts 1, 2 and 3.

4. Mr Redgrave, for the defendant, made the following submissions:- (i) It is apparent from the papers so far disclosed by the prosecution to the defence that the complainant, a woman now in her twenties, has suffered with mental health difficulties since childhood. (ii) It will be seen that the complainant claims among other things to have been diagnosed "at some point" with a condition which she refers to as "Paediatric acute-onset neuropsychiatric syndrome". The complainant claims to have been an in-patient in receipt of mental health care at various times. Her statement of complaint contains the following:- "I don't wish to go into my medical history any more at this point but I do give permission for my medical records to be accessed." (iii) The defence has been seeking disclosure of these records for some months without success. The prosecution has confined itself, say the defence, to the assertion in a letter of 13 th August, 2012, that the complainant "has a history of anxiety relating to PANDAS from the age of 11 years..." and that "she has been treated with paroxetine". An internet search of PANDAS indicates that this term describes a hypothesis that there is a sub set of children with rapid onset of obsessive compulsive disorder (OCD). A search of OCD on the internet reveals the following:- "Some people with OCD experience sexual obsessions that may involve intrusive

thoughts or images of 'kissing, touching, fondling, oral sex, anal sex, intercourse, incest and rape' with 'strangers, acquaintances, parents, children, family members, friends, co-workers, animals and religious figures', and can include 'heterosexual or homosexual content' with persons of any age. As with other intrusive, unpleasant thoughts or images, most 'normal' people have some disquieting sexual thoughts at times, but people with OCD may attach extraordinary significance to the thoughts For example, obsessive fears about sexual orientation can appear to the person with OCD, and even to those around them, as a crisis of sexual identity. Furthermore, the doubt that accompanies OCD leads to uncertainty regarding whether one might act on the troubling thoughts, resulting in self-criticism or self-loathing. People with OCD understand that their notions do not correspond with reality; however, they feel that they must act as though their notions are correct." (iv) The defence say that it the prosecution's response is inadequate to enable it properly to explore the possible relationship between the complainant's long-term mental illness and the complaints that she now makes against the defendant. (v) The prosecution has stated amongst other things that what is relevant and should be disclosed is a diagnosis of the complainant's mental condition and medication she was on at the time of the offences but the defence say that the condition of the complainant's mental health at the time of making the allegations against the defendant is of great importance and remains unaddressed by the prosecution.

5. Miss Fitz, for the prosecution, confirmed that she held the complainant's adult mental health records but not those relating to her childhood. To open the door to disclosure of all those records would give rise, she said, to a never ending exercise with someone with this kind of history. There can be nothing more personal, she said, than records of this kind that include everything that might have been said by the complainant to a psychiatrist over time. To allow the defendant access to these records would be oppressive.

6. Miss Fitz submitted that the issue here is one of relevance and such records were not relevant to the complainant's credibility, the purpose for which the defence require them. In both counts 1 and 2, the essential facts had, she said, been admitted by the defendant and the issue therefore was whether the acts admitted were indecent; that will be a matter for the jury. We were not dealing here with an allegation of fabrication.

7. Count 3, in respect of which no admissions have been made, covers other occasions when the complainant alleges the defendant fondled and kissed her breasts. Here Miss Fitz said the issue cannot be one of complete fabrication as two incidents (Counts 1 and 2,) had been admitted. The issue may be one of exaggeration on the complainant's part but that did not justify disclosure of all of her mental health records. Miss Fitz conceded that if credibility was the issue then all of the medical records in the prosecution's possession would be relevant and disclosable.

8. Miss Fitz had suggested to Mr Redgrave that the prosecution should write to the complainant's current psychiatrist to confirm her diagnosis and treatment and whether that could make her susceptible to exaggeration. Further questions could be put to the psychiatrist and the answers fed back to the defence expert.

9. Mr Redgrave, in response, pointed out that fabrication could indeed be relevant to count 3 and the complainant's credibility might still be relevant to counts 1 and 2 despite the admissions.

10. This is not a situation, Mr Redgrave said, in which the complainant's whole life was being opened up to an alleged abuser. Miss Fitz was not a medical expert and was not in a position therefore to assess the relevance of the medical documentation she held. What the defence required was for the defence expert to go through that material and to advise whether there was anything relevant and only that would be communicated to Mr Redgrave and if necessary to the defendant. The defence were entitled to have their expert look through the records in the possession of Miss Fitz who should take reasonable steps to obtain the earlier records not in her possession. The complainant had clearly given her consent to her records to be accessed.

11. The rules relating to disclosure are set out in the Attorney General's guidelines, and the test in those guidelines has been confirmed as the correct one ( Warren and Others-v-AG [2010] JLR 200 ). Those guidelines provide that material which tends or may tend in any way to undermine the prosecution case or does or may assist the defence is said to be relevant to the defence and that in the case of doubt disclosure should be made.

12. In Syvret-v-AG [2011] JRC 060A , Sir Christopher Pitchers, Commissioner, said at paragraph 5 that the duty set out in the Attorney General's guidelines should be interpreted in accordance with the recent English case of R-v-Flook [2010] 1 Cr App R 30 which held that there is an obligation on the prosecution to "pursue reasonable lines of inquiry in relation to material held by third parties" and if there is material which might reasonably be considered capable of undermining the Prosecution case or assisting the Defence case, take reasonable steps to obtain it. Reasonable in those words means both reasonable in terms of the line of enquiry, that is to say not fanciful, and also reasonable in terms of the logistics of obtaining documents.

13. I accept Mr Redgrave's submission that credibility could be an issue in relation to count 3 and notwithstanding the alleged admissions may still be relevant to counts 1 and 2. I further take his point that Miss Fitz, not being a medical expert, is not in a position to assess whether the records she holds tend in any way to undermine the prosecution case or assist the defence.

14. I agree with Miss Fitz that I must take into account the interests of the complainant who no doubt already feels violated by the alleged actions of the defendant and who may regard this as a further violation but my overriding duty is to ensure a fair trial and in my view the defence expert must be able to see these medical records to the extent that they are reasonably available in order for the defence to prepare properly for the trial.

15. There were two caveats to this:- (i) My attention was not drawn to any statutory provisions or undertakings that would be implied safeguarding the confidentiality of these documents in the hands of the defence. Clearly they must be used solely for the purpose of the defendant's defence and after use must be either destroyed or returned to the prosecution. The purpose of disclosure is to enable the defence expert initially to consider the same and they are only to be used to the extent that they are considered by the defence expert to be relevant. The defendant should only be able to see documents which are considered to be relevant by the expert but he should not be allowed to take copies. There may be other safeguards that should be put in place. I invite counsel to meet before this judgment is handed down in order to agree if possible the conditions that may need to be imposed on ordering disclosure of these medical records in order to protect the confidential nature of the information contained within them. (ii) The prosecution can only be required to take reasonable steps to locate earlier medical records. Authorities Warren and Others-v-AG [2010] JLR 200 . Syvret-v-AG [2011] JRC 060A . R-v-Flook [2010] 1 Cr App R 30 . Page Last Updated: 02 Feb 2017 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII