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.
There is no human right to smoke. So held Lord Stewart while allowing a petition for judicial review of the decision of the State Hospital Board for Scotland, responsible for management of the State Hospital Carstairs to introduce a complete prohibition on smoking at the State Hospital. Less striking, perhaps, but of wider importance is the consideration of the scope of Article 8 ECHR by the Second Division of the Inner House of the Court of Session in allowing the Board’s reclaiming motion (appeal) from that decision.
Article 8 addresses both family and private life, and this case concerns the private life element. There are of course several strands to the private life case law both domestic and from Strasbourg, covering, inter alia, physical and psychological integrity, personal development, and establishing and developing relationships with other people. Patients resident at the State Hospital are detained there by virtue of an order made either by a court or by the Mental Health Tribunal for Scotland, and are not free to leave the hospital. So that requires the court to consider the conditions of detention.
In that connection, the Second Division held that:
“While detainees continue to enjoy the right to respect for private and family life under Art 8, the scope of that right is necessarily restricted to protection from interference beyond that which inevitably flows from the circumstances of lawful imprisonment or other detention.”
In that respect, the court observed, it was important to recognise the practical differences that necessarily and reasonably arise between life in a private home and life in a secure institutional environment.
Agreeing with the Court of Appeal in a case relating to prohibition of smoking in a high security hospital in England, the Second Division concluded that
“a comprehensive smoking ban does not, in such an institution, have a sufficiently adverse effect on a person’s physical or psychological integrity or his right to personal development as to merit protection.”
With the result that the majority held that Article 8 was not engaged at all. The court further held unanimously that if Article 8 was engaged, interference was proportionate in terms of Article 8(2).
It will be evident that amongst the issues which are raised by the decisions at first instance and on appeal, is the interaction of lawful detention by the state with the personal autonomy aspect of Article 8. While there has been some case law in this area, it remains relatively novel. An appeal by the patient is due to be heard by the UK Supreme Court in the autumn of 2016.
(Full disclosure: Kenneth Campbell QC is counsel for the respondent in the appeal to the UK Supreme Court)