1. Scenario

A Complainant (“C”) refuses to consent to his GP providing the Crown with medical records. The Defendant (“D”) has requested disclosure of these records, on the understanding that C has a history of prolonged substance abuse and mental health concerns. C has also indicated that he believes information within the records is detrimental to the Crown’s case; hence, his refusal.

D contends that, to have a fair trial, the records must be made available. Their disclosure engages the central issue of C’s credibility: not simply in respect of C’s substance abuse or mental health, but also his attitude towards the content of the records and their disclosure – that is, C’s attitude to objective, truthful observations and respect for proper procedure.

If the records are believed to be detrimental to the Crown’s case by C, let alone the prosecutor, they are material which might reasonably assist D and should be made available.

However, the records do not fall within the scope of “prosecution material”. They are not in the hands of the prosecutor , and therefore the Criminal Procedure and Investigations Act 1996 is not in play.

What is D to do?

2. Legal Framework

R v Alibhai [2004] EWCA Crim 681:

[31] … a conviction would, in any event, be unsafe if the absence of disclosure of material in the possession of a third party meant that an accused could not have a fair trial.

[34] Formally, material in the hands of a third party, if it is not volunteered, can only be brought to the attention of a criminal court pursuant to the Criminal Procedure (Attendance of Witnesses) Act 1965 section 2 of which provides that, if the Crown Court is satisfied that a person is likely to be able to give material evidence or produce any document or thing likely to be material evidence, the Crown Court should issue a witness summons directed to that person, requiring him to attend and give evidence or produce the document or thing.

This procedure is not altogether satisfactory because:—

• it is impossible to issue a witness summons to a person outside the jurisdiction;
• a witness summons to produce a “document or thing” will not elicit information;
• the “document or thing” must itself be likely to be material evidence; a witness summons will not be issued for documents which will not themselves constitute evidence in the case but merely give rise to a line of enquiry which might result in evidence being obtained, still less for documents merely capable of use in cross-examination as to credit;
• there is no provision for either the Crown or the defence, in the absence of agreement, to examine documents before they are produced to the court pursuant to the witness summons.

[62] … it must be shown that there was suspicion that [the Third Party] as the case might be, not only had potentially relevant material but that the material was not neutral or damaging to the defendants but damaging to the prosecution or of assistance to the defendants.

[64] … in an extreme case it might be so unfair for a prosecution to proceed in the absence of material which a third-party declines to produce that it would be proper to stay it, regardless of whether the prosecutor is in breach of the guidelines.

To make an application under section 2 CP(AW)A 1965, one must act in accordance with the Criminal Procedure Rules.

After R (B) v Crown Court at Stafford [2006] EWHC 1645 (Admin), involving a summons directed to an NHS trust to produce B’s medical records, Rule 17.5 of the Criminal Procedure Rules now provides:

(1) This rule applies to an application under rule 17.3 for a witness summons requiring the proposed witness—

(a) to produce in evidence a document or thing;

(b) to give evidence about information apparently held in confidence, that relates to another person.

(2) …

(3) The party applying must serve the application—

(a) on the proposed witness, unless the court otherwise directs; and

(b) on one or more of the following, if the court so directs—

(i) a person to whom the proposed evidence relates, …

(ii) …

(4) The court must not issue a witness summons where this rule applies unless—

(a) everyone served with the application has had at least 10 business days in which to make representations, including representations about whether there should be a hearing of the application before the summons is issued; and

(b) the court is satisfied that it has been able to take adequate account of the duties and rights, including rights of confidentiality, of the proposed witness and of any person to whom the proposed evidence relates.

3. Conclusion

One might think that D should simply lodge an application for a witness summons under Rule 17.5.

However, such a course of action would be inappropriate: consider paragraph 34 at (c) of Alibhai. The records to be produced – although vital to the fairness of the case – are only capable of use in cross-examination as to C’s credibility. The argument for calling the GP to give oral evidence about the contents of the records, rather than produce the documents themselves, falls foul of the same objection.

The appropriate course of action would be to apply to adjourn the matter to allow the Crown opportunity to persuade C to permit disclosure. Were this not fruitful and the Crown indicate a desire to continue to trial, an abuse of process argument would appear inevitable.

4. Post-Script

Paragraph 62 of Alibhai deserves attention. With a bare “no consent to release medical records”, D is in a much weaker position to argue that disclosure of the records is fundamental to the fairness of trial.

However, any relevant correspondence between the police and C should be the subject of a specific disclosure application. C may not have stayed completely silent as to the reason for his refusal; a detailed investigation may be required.

This article entitled ‘Improper non-disclosure of a Complainant’s medical records’ was written by Ed Wylde (Pupil). For further information on his practice or to instruct Ed please contact Tony George, Senior Criminal Clerk on 01962 868161 or via email.