Law Commission launches consultation on access, disclosure and admissibility of personal records
Hear from the evidence in sexual offences prosecutions project team at the Law Commission about why they are keen to hear from BPS members.
17 August 2023
The Government has asked the Law Commission to review the law, guidance, and practice relating to the trial process in prosecutions of sexual offences.
We are considering the need for reform in order to increase the understanding of consent and sexual harm in the trial process, improve the treatment of complainants and ensure that defendants receive a fair trial.
On 23 May 2023 we published a Consultation Paper setting out a series of provisional proposals and questions directed at reforming the trial process for sexual offences. We also published a Summary Consultation Paper with a condensed list of consultation questions.
Consultation is a crucial pillar of our work, as we want any recommendations which we ultimately make to have as strong an evidence base as possible.
We are seeking input from BPS members on any or all of our consultation questions. There is no obligation to answer all of the questions; you can simply answer those which are of interest or which are relevant to your practice.
Our consultation period closes on 29 September 2023. We will then analyse the responses and make recommendations for reform, which we intend to publish in our final report in autumn 2024. The Government will decide whether to implement the recommendations.
The topic in the Consultation Paper which is likely to be of most interest to BPS members is Personal Records (pages 13-20 of the summary; chapter 3 of the full paper).
There are seven consultation questions in the summary, and 18 questions in the full paper (which goes into more detail). We consider what rules should apply to the access, disclosure and admissibility of personal records, including counselling and therapy records.
Currently, there is no specific set of laws for sexual offences cases that governs the access to personal records by police and prosecution, disclosure of records to the defence, and the admissibility of records at trial. Instead, these matters are governed by a combination of different laws and guidance.
The result is that there are gaps and inconsistencies in the legal framework. The thresholds for admissibility are also insufficiently high, which risks myths and misconceptions about rape and sexual assault permeating the trial process.
There are intrusions into complainants' privacy which are not always necessary, proportionate, or made with judicial scrutiny. There is a clear public interest in complainants receiving mental health treatment and yet it is unclear whether the current regime serves that interest well.
There is a disproportionate focus on the background and personal records of the complainant, not found in other comparable criminal contexts.
Given all of these concerns, we provisionally propose a bespoke regime for personal records which is specific to sexual offences.
We do not propose a complete ban on using complainants' counselling and therapy records, due to the need to protect the defendant's fair trial rights, and instead think that a better approach is to introduce stronger protections through process, scrutiny by judges and higher thresholds.
We are interested in your views as record holders, as to what changes there should be regarding how requests to access complainants' personal records are dealt with, and what the criteria should be.
In addition, you may also have views to share on:
- the use of expert evidence to explain behavioural responses to trauma (page 43 of the summary; chapter 10 of the full paper)
- amendment of judicial directions to juries about rape myths to better reflect empirical evidence (pages 42-43 of the summary; chapter 10 of the full paper)
- the use of measures to assist complainants when giving evidence (pages 30-35 of the summary; chapter 7 of the full paper)
- independent legal advice and/or representation for complainants (pages 36-38 of the summary; chapter 8 of the full paper)
- whether there should be more radical reform (pages 51-54 of the summary; chapter 13 of the full paper).
We strongly encourage you to provide your feedback, so that you can input into reform in this field and we can learn from your expertise and experience.
More information about the project can be found on our project page.
Follow the Law Commission on X (Twitter): @Law_Commission
Submit your response
The BPS is asking members to share their insights with them, to inform their institutional response to our consultation. All responses are welcome, whether to individual questions raised by the consultation, or to a range of questions.
They ask you to send your response and accompanying evidence either in a word document or in the body of an email to [email protected].
The BPS' deadline for member responses is 18 September 2023.
Given the length and complexity of our consultation, on 11 September from 12.30-2pm, we will be holding a roundtable for BPS members to discuss the above issues with us directly.
If you would like further details about this roundtable or have any further questions, please contact [email protected]