TB, R (on the application of) v The Combined Court At Stafford

Where a court is asked to order disclosure of confidential medical or psychiatric records relating to a prosecution witness, Article 8 requires a fair decision-making process. The person whose privacy and confidentiality are directly affected must be given notice and a proper opportunity to make representations before disclosure is ordered. It is insufficient for the medical body holding the records to represent that person’s interests.

The requirement arises from the court’s duty as a public authority to respect Convention rights and from the overriding objective in the Criminal Procedure Rules 2005. The decision was confined to the circumstances of the case, but the court emphasised that disclosure applications should not be approached on the assumption that they will ordinarily succeed against Article 8 objections.

TB, a 14-year-old alleged victim of sexual abuse and prosecution witness, received psychiatric treatment and had made several overdoses. The defendant in the related Crown Court proceedings sought a witness summons requiring production of her medical records. The Crown Court ordered disclosure of 23 pages of psychiatric records without giving TB notice of the application or an opportunity to make representations.

After TB was later brought to court at short notice and without representation, she sought judicial review. The claim sought declarations concerning her entitlement to notice and participation, and the lawfulness of the Crown Court’s procedure. The central issues were whether the Administrative Court had jurisdiction and whether Article 8 and the applicable procedural rules required TB’s direct involvement before disclosure.

1. Jurisdiction. The claim was competent notwithstanding section 29(3) of the Supreme Court Act 1981. It was brought by a person who was not a party to the Crown Court proceedings, sought declarations rather than interlocutory orders affecting the trial, and concerned completed events giving rise to a live dispute.
2. Article 8 protection. Medical records, particularly psychiatric records, are confidential and fall within the claimant’s Article 8 right to privacy. Disclosure could therefore be ordered only through a lawful, proportionate and necessary process. The court had to balance the claimant’s privacy and confidentiality against the defendant’s fair-trial interests.
3. Procedural fairness. Article 8 requires attention to the decision-making process as a whole. The views of the person whose rights are at stake must be made known and duly taken into account. The person must be involved to a degree sufficient to protect those interests, although Article 8 does not invariably require inflexible procedures.
4. In the circumstances, rule 1.1 and rule 1.3 of the Criminal Procedure Rules 2005, read with Article 8, required TB to receive notice of the witness-summons application and an opportunity to make representations before the order was made. Because she received neither, the interference with her rights could not be regarded as necessary under Article 8(2), and the Crown Court acted unlawfully.
5. The NHS Trust could not adequately substitute for TB. The confidentiality belonged to her, and the Trust’s wider public-interest and clinical interests could differ from hers. The court therefore bore the responsibility for protecting her privacy. On the existing rules, she was entitled to make oral representations if she wished.
6. The court declined to determine whether the records would ultimately have been admissible at trial. It granted the declarations sought and confined the decision to the facts of the case.