Rape victim wrongly refused legal aid

Posted: 7th May 2014

rcjIn a guideline decision with important implications for criminal justice and the legal aid budget, the High Court has ruled that an alleged rape victim was irrationally refused public funding so that she could contest a prosecution application for disclosure of her confidential counselling records.

The woman had fled to Britain from Afghanistan where she had endured extreme violence and abuse. She claimed to have been raped by her husband and, pending his trial, the Crown Prosecution Service (CPS) had sought disclosure of notes of more than 20 counselling sessions she had undergone with a charity which specialised in supporting victims of torture, cruelty and human rights abuses.

With the charity’s support, she sought civil legal aid in order to contest disclosure of the records on grounds of confidentiality. However, she was twice turned down by the Director of Legal Aid Casework (DLAC) on grounds that disclosure was necessary to ensure that her husband received a fair trial.

The Court observed that it was increasingly common for the CPS to issue witness summonses seeking disclosure of medical and other records concerning alleged victims of assaults or sexual offences. Such applications were often made ‘somewhat lazily’ and without the considerable degree of analysis required. As a general rule, it was ‘not good enough’ for the CPS merely to assert that such material might undermine the prosecution case or help the defence.

Upholding the woman’s judicial review challenge, the Court found that the DLAC had placed heavy and illegitimate reliance on the charity’s role in the matter. There had been no consideration as to whether the woman qualified for exceptional public funding and an erroneous conclusion had been reached in respect of her prospects of successfully resisting disclosure.

Directing the DLAC to consider the matter afresh, the Court found that the relevance of the counselling records had also not been properly considered and that the decisions to refuse legal aid were ‘irrational and unreasonable in law’.