By Claire Mitchell
The Victims and Witnesses Scotland Act was brought into force in 2014 and heralded a new commitment to respect the rights of those involved in the Court process. In particular, it created a duty on the Courts, Scottish Ministers and the Lord Advocate amongst others to have regard to a number of principles including “that, in so far as it would be appropriate to do so, a victim or witness should be able to participate effectively in the investigation and proceedings.”
However, despite these important principles being enunciated, one of the basic human rights, that of the right to privacy – article 8 of the convention – was not being properly protected in the court process ; In an application for “specification of documents” an accused person could ask the Court to order that documents such as medical records of a Complainer be made available to the Defence to prepare the case for trial, without it being clear that before it did so, the Complainer had a right to be heard in Court on the matter.
WL challenged the Scottish Ministers refusal to provide legal aid to be represented at Court, so that representations could be made as to why the Court should not grant an order in respect of disclosing documents to the Defence.
The Scottish Ministers accepted that the Complainer’s article 8 rights were engaged in the process when the issue of whether or not to grant the Defence the opportunity to obtain medical records was being considered by the Court, but argued that the Court could protect the article 8 right without the need for the Complainer to be a party to the hearing.
Lord Glennie, in rejecting that argument, held that in order for the article 8 right to privacy to be protected, the Complainer had a right to be heard in the process, and as such the Scottish Ministers were wrong to refuse to provide a grant of legal aid on this basis. This is a landmark decision in the protection of Complainers’ human rights in the Court process.