1 See Temkin, J., “Prosecuting and Defending Rape: Perspectives from the Bar” (2000) 27(2) Journal of Law and Society 219 at pp. 231236Google Scholar.

2 H (L) [1997] 1 Cr. App. R.176 at p. 176, per Sedley L.J.

3 The FME's report will be given to the police and it will pass into the prosecutor's possession and thence into the hands of the defence. FMEs do not always include all the material they have gleaned from the complainant in their reports. However, disclosure of any notes taken of the examinations is frequently requested. It is in this way that the defence receives information about the complainant which is often irrelevant (e.g., information about contraception, abortion, sexually transmitted diseases, treatment for depression) but can be used to devastating effect in the courtroom. For criticism of the information gathering practices of FMEs, see J. Temkin, “Medical Evidence in Rape Cases: A Continuing Problem for Criminal Justice” (1998) 61 M.L.R. 821.

4 For pre-committal disclosure of prosecution material, see Magistrates Courts Act 1980, ss. 5A-5F; in the case of offences triable either way, see Magistrates Courts (Advance Information) Rules 1985 (SI 1985/601); for post committal disclosure, see Criminal Procedure and Investigations Act 1996 (CPIA) ss. 3-9.

5 Crown Court Rules 1982 R. 23 (as amended by the Crown Court (Miscellaneous Amendments) Rules 1999, SI 1999 No 598).

6 Rule 23(2).

7 Rule 23(3).

8 Rule 23(4).

9 Rule 23(5).

10 Rule 23(6).

11 Rule 23(7). Whether it is always necessary for the judge personally to peruse the documents is not clear. In W (G) and W (E) [1997] 1 Cr. App. R. 166, decided prior to the CIPA 1996, it was held that where the documentation was copious, it was permissible for the judge to order that the local authority from which discovery was sought should instruct independent counsel to review the documents and decide what was relevant. However this procedure may no longer be appropriate given that the criterion, as discussed below, is no longer relevance but materiality. See also R. v. K, n. 39 below.

12 See Corker, D., “Involuntary Disclosure of Private Medical Records to the Defence in Criminal Proceedings” (1998) 38 Med. Sci. Law 138, 139Google Scholar.

13 Any notes made by an FME apart from the FME's report itself may be sought for disclosure by way of a witness summons. Guidelines issued by the BMA instruct FMEs not to disclose without first obtaining the complainant's written consent and, in the absence of this, to object to disclosure of irrelevant material at the hearing before the judge and not to disclose without a court order. However, the guidelines recognise that in exceptional circumstances disclosure may be necessary without consent to avoid the risk of death or serious injury to the complainant or others: see BMA, “Revised Interim Guidelines on Confidentiality for Police Surgeons in England, Wales and Northern Ireland” (1998).

14 Crown Court Rules 1982, R. 23ZB(2).

15 Criminal Procedure (Attendance of Witnesses) Act 1965, s. 2C(8).

16 Rule 23(9).

17 Criminal Procedure (Attendance of Witnesses) Act 1965, s. 2, above.

18 [1996] 1 Cr.App.R. 385.

19 At p. 393, confirming the decision in R. v. Cheltenham Justices, ex p. Secretary of State for Trade [1977] 1 W.L.R. 95.

20 At p. 394

21 [1996] 1 Cr.App.R. 239 hereafter Reading Justices.

22 See, e.g., R. v. Clowes [1992] 3 All E.R. 440.

23 (1996) 7 Med.L.R. 415.

24 At p. 420.

25 Ibid.

26 On which, see, e.g., Burgess, A.W. and Holmstrom, L.L., “Rape Trauma Syndrome” (1974) Am. J. Psychiatry 981, 983Google Scholar.

27 Much will depend on the attitude of the judge. The solicitor acting for Dave Jones, the manager of Southampton Football Club charged with abusing children at a care home, found the judge “helpful” when making her disclosure applications which were successful: see Linzi McDonald, “Defending Child Abuse Cases—Tips and Pitfalls” (2001) 151 N.L.J. 540.

28 [1997] 1 Cr.App.R. 176 at pp. 178-179.

29 Some material is well known to be covered by PII, e.g., information relating to children and state interests, but in D v. NSPCC [1977] 1 All E.R. 589 at p. 605, Lord Hailsham held that “the categories of public interest are not closed”.

30 Ibid., at p. 618, per Lord Edmund-Davies.

31 Code of Practice, para. 6.12. See Archbold Criminal Pleading, Evidence and Practice (2001), para. 12-106.

32 (1996) 7 Med.L.R. 415 at p. 420.

33 (1996) 1 F.L.R. 137.

34 These contained statements of special educational needs and reports from teachers, social-workers and psychologists.

35 At p. 140.

36 R. v. Governor of Brixton Prison, ex parte Osman [1992] 1 All E.R. 108 at p. 116.

37 See [1996] 1 Cr.App.R. 239 at p. 246.

38 The case was decided in 1994 before the materiality test was introduced in the CPIA.

39 (1993) 97 Cr.App.R 342.

40 At p. 346.

41 Ibid.

42 Ibid.

43 See e.g., Burgess and Holmstrom, n. 26 above.

44 [2001] Crim.L.R. 471; [2000] 2 All E.R.(D) 2432.

45 Issued 29 November 2000; see Archbold 2001, Supplement, p. 49 para. 30.

46 Paras. 30-31.

47 Material held by counsellors or therapists is not specifically mentioned.

48 See e.g., R. v. B [2000] Crim.L.R. 50.

49 (1998) 25 E.H.R.R. 371.

50 At p. 372. On disclosure of defendant's medical records obtained for the trial judge, see Hardiman v. U.K. [1996] E.H.R.L.R. 425.

51 (1998) 25 E.H.R.R. 371 at p. 372.

52 See Sunday Times v. UK (1979) 2 E.H.R.R. 245.

53 Ibid., at para. 59.

54 For a statement by English judges, see De Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing and others [1999] A.C. 69, PC.

55 [1986] 1 S.C.R. 103.

56 At p. 106.

57 (199 8) E.H.R.R. 371 at p. 395.

58 At p. 407.

59 For the view of the Commission to this effect, see ibid., at p. 395.

60 Victim Support, “Disclosure of information to and about victims and witnesses” (unpublished paper for Steering Group, May 2001).

61 (1998) E.H.R.R. 371 at p. 408.

62 Ibid., at p. 409. However, it was held that the decision to make the medical records accessible to the public after 10 years would, if implemented, be contrary to Article 8.

63 Bill C-46 1996-7 amended the Criminal Code by the insertion of sections 278.1-278.91.

64 [1995] 4 S.C.R. 411.

65 [1999] 3 S.C.R. 668.

66 Bill C-46 1996-97 contained the preamble.

67 S. 278.1

68 S. 278.2(2).

69 Ibid.

70 S. 278.3(1) and (2).

71 S. 278.3(b).

72 S. 278.3(5).

73 S. 278.3(4).

74 [1999] 3 S.C.R. 668 at p. 673.

75 S. 278.4(1) and (2).

76 S. 278.5(2).

77 Ibid.

78 S. 278.5(1).

79 [1999] 3 S.C.R. 668 at p. 671.

80 S. 278.6.

81 S. 278.7(3).

82 [1999] 3 S.C.R. 668 at p. 673.

83 See s. 1(1). For criticism of the Act, see J. Hall and D. Clark, “The Sexual Offences (Protected Material) Act 1997” [2001] Crim.L.R. 385.

84 [1999] 3 S.C.R. 668 at p. 672.

85 The structure and history of the legislation is complex. The Evidence Amendment (Confidential Communications) Act 1997 amended the Evidence Act 1995 (NSW) by inserting Division IB into s. 126 and creating the “sexual assault communications privilege”. However, in R. v. Young [1999] NSWCCA 166, it was held that the legishition had failed to «deal with disclosure of documents although it had dealt with the use of counselling records as evidence in the trial. The Criminal Procedure Amendment (Sexual Assault Communications Privilege) Act 1999 rectifies this with Schedule 1 amending the Criminal Procedure Act 1986 and Schedule 2 amending Division IB of the 1995 Act. For discussion of the 1997 Act, see Annie Coussins, “Tipping the Scales in her Favour—the Need to Protect Counselling Records in Sexual Assault Trials” in Easteal, P. (ed.), Balancing the Scales: Rape, Law Reform and Australian Culture (Federation Press 1998) pp. 94106Google Scholar.

86 See Criminal Procedure Amendment (Sexual Assault Communications Privilege) Act 1999, Schedule 1 and the Criminal Procedure Act 1986, s. 58.

87 I.e. containing a counselling communication that is made by, to, or about a victim or alleged victim of a sexual assault.

88 Criminal Procedure Act 1986, s. 60(1).

89 S. 60(3).

90 S. 60(4). The slight variation in the third condition is that the public interest in preserving the confidentiality of protected confidences and protecting the confider from harm must be substantially outweighed by the public interest in admitting into evidence information or the contents of a document of substantial probative value.

91 S. 60(2) and (5).

92 S. 57(1).

93 S. 61.

94 S. 60(7).

95 S. 65.

96 S. 60(6).

97 S. 64(1).

98 Ibid.

99 See Pennsylvania Consolidated Statutes, Title 42 (Judiciary and Judicial Procedure) Chap. 59 (Depositions and Witnesses) s. 5945.1.

100 See Colorado Revised Statutes, Title 13 (Courts and Court Procedure) Art. 90-107 (2000).

101 In many American states such a privilege extends to a range of persons in receipt of confidential communications. For example, in Colorado an absolute privilege is enjoyed equally by clergymen, doctors, registered nurses, certified public accountants, licensed psychologists, professional counsellors, marriage and family therapists as well as lawyers in relation to confidential communications: Colorado Revised Statutes, Title 13, Article 90-107 (2000). This privilege resembles the privilege originally enjoyed by lawyers in England and Wales which exempted them from examination in court but which now extends to the client and to the communication: see Dennis, Ian, The Law of Evidence (Sweet & Maxwell 1999)Google Scholar chap. 10.

102 Commonwealth v. Wilson, 602 A.2d 1290, 1295-1297 (Pa. 1992).

103 See, e.g., People v. District Court, 719 P. 2d 722, 727 (Col. 1986); People v. Pressley, 804 P. 2d 226, 229 (Colo. App. 1990); Dill v. The People ofthe State ofColorado) 927 P. 2d 1315 (1996).

104 New Jersey Statutes, Title 2A CAclininistmtion of Civil and Criminal Justice) ss. 84A-22.13- 84A-22.15 (2001); State v. J.G. 619 A. 2d 232 (N.J. 1993).

105 llinois Compiled Statutes, Chap. 735 (Code of Civil Procedure) Art. VIII, s. 8-802.1. See People v. Foggy, 521 N.E. 2d 86 (III. 1988).

106 Jaffee v. Redmond 518 U.S. 1, 9-13 (1996). In D v. NSPCC, Lord Edmund-Davies expressed the view that communications between doctors and their patients should enjoy an absolute privilege in the same way as lawyer/client communications: see [1977] 1 All E.R. 589 at p. 618. However, the absolute nature of the lawyer/client privilege as upheld in R. v. Derby Magistrates, note 18 above, has been severely criticised: see e.g., Ian Dennis, op. cit. pp. 329330.

107 See Yaryura, A., “Civil Practice Law and Rules: C.P.L.R. 4510” 68 St. John's L. Rev. 789Google Scholar. For the view that an absolute privilege should be tempered by use of the court's power to stay proceedings where it considers that without the benefit of the records there is a real risk of an unfair trial, see Bronitt, S. and McSherry, B., “The Use and Abuse of Counselling Records in Sexual Assault Trials: Reconstructing the Rape Shield” (1997) 8 Rutgers University Criminal Law Forum 259Google Scholar.

108 See Smith, Steven, “Constitutional Privacy in Psychotherapy” 49 Geo. Wash. L. Rev. 1, 22 (1980) at p. 29Google Scholar where he states: “No information is more intensely personal and private than the information revealed in psychotherapy. Psychotherapy deals not only with the information about a person, the disclosure of which may be embarrassing or harmful, but also with the patient's most intimate fantasies, fears and anxieties. The patient is expected to talk with the therapist about feelings and matters which the patient would not consider revealing to any one else.” See also Murphy, Wendy J., “Minimising the Likelihood of Discovery of Victims’ Counselling Records and Other Personal Information in Criminal Cases: Massachusetts Gives A Nod to a Constitutional Right to Confidentiality” 32 New Eng. L. Rev. 983Google Scholar.

109 See Crowley, Ellen M., “Note and Comment” (1995) 21 Am. J. L. and Med. 131Google Scholar.

110 New York State Consolidated Laws, Civil Practice Law and Rules, s. 4510(b).

111 E.g., Alaska, California, Connecticut, Florida. See also Utah Code Ann. 78-24-8(6) (1999) which creates a privilege for sexual assault counsellors. But privilege afforded to mental health therapists under Utah Code Ann. chap. 58-60-113 was held not be absolute in State v. Cardall 1999 UT.51; 982 P. 2d 79 which concerned psychological records prepared by a school counsellor.

112 Mass. Gen. L. ch. 233, s. 20J (1985).

113 See Commonwealth v. Two Juveniles 491 N.E. 2d 234 (Mass. 1986); Commonwealth v. Stockhammer 570 N.E. 2d 779 (Mass. 1992). But the privilege was to some extent, although not fully, restored in Commonwealth v. Fuller 667 N.E. 2d 847 (Mass. 1996). See now Commonwealth v. Craig Nemeyer 432 Mass. 23; 731 N.E. 2d 1053 (Mass. 2000). The privilege does not extend to fact or time of treatment, name of counsellor or dates of contact. For further discussion see Murphy, n. 108 above.

114 See Wisconsin Stats. Chap. 905.04(2) and State v. Shiffra 175 Wis. 2d 600.

115 S. 25.

116 Sir Robin Auld has now proposed “consideration of a new statutory scheme for third party disclosure including its cost implications to all concerned, to operate alongside and more consistently with the general provisions for disclosure of unused material”. His brief analysis necessarily fails to take account of all the issues involved: see Auld, R.E., Review of the Criminal Courts of England and Wales: Report by the Right Honourable Lord Justice Auld (London: Stationery Office, 2001) p. 475Google Scholar.