Jersey Unreported Judgments

Criminal Hearing - application by the Crown for disclosure of medical and mental health records in respect of a fitness to plead hearing.

[2013]JRC200

Royal Court

(Samedi)

15 October 2013

The Attorney General

-v-

Brett Kean

Mrs E. H. Hollywood for the Attorney General.

Advocate C. M. Fogarty for Kean.

JUDGMENT

THE DEPUTY BAILIFF:

1.        I sat on 26th September to receive an application by the Attorney-General for an order for the release of the defendant's mental health records and also the records from his general practitioner to psychiatrists instructed by the prosecution and the defence in respect of a fitness to plead hearing which is to take place before the Superior Number of the Royal Court in November, and I made the order for disclosure, with reasons reserved.  These are those reasons. 

2.        The defendant is charged with having made an affray on 26th December, 2012, and with an assault on 9th March, 2013.  The third charge on the Indictment is a further assault alleged to have taken place on 14th May, 2013, at HM Prison, La Moye, where the defendant has been held on remand since 12th March this year.  He was indicted in this Court on 21st June, when a reserved plea was entered and the matter listed for a fitness to plead hearing on 14th November.  A Dr Dillan was appointed to provide a report for the defence both on the issue of insanity at the time of the commission of the alleged offence and also upon the question of fitness to plead, and Dr Mumford was appointed to provide a report on the same issues for the Crown. 

3.        I am told that both experts have seen the defendant in person, but that the defendant has refused to provide his consent for the experts to have sight of his mental health and general practitioner records.  In Dr Mumford's report dated 9th September, he notes the absence of the relevant records and, in relation to the mental health records say this:-

"[The absence of such records] relating to the period around the alleged offences very significantly impairs my ability to form an opinion as to his likely mental state at the time of the alleged offences is from his account and listening to his police interviews at the time.  His mental health records from that time probably would contain important objective information as to the stability or otherwise of his mental health, his compliance with prescribed medication and whether he was misusing alcohol or drugs."

4.        I am informed by Advocate Fogarty that in her draft report, Dr Dillon expresses herself as follows:-

"This report relied upon historical information that was summarised within my earlier [2011] report and due to Mr Kean's reluctance for me to have access to his current psychiatric records does not benefit from this contemporaneous account of his recent mental health assessments and treatment records".

5.        On this basis the Crown's application is made.  It is asserted that disclosure of the medical and mental health reports to the psychiatrists only is proportionate, in the interests of justice and as the Superior Number will require to have full reports.  

6.        Advocate Fogarty informed us that her client had consistently refused to permit the disclosure of these reports from the outset of her instructions.  She said that his objections were that the medical records were personal to him, were irrelevant for the purposes of the tests which the psychiatrists had to make, and were unnecessary in the context of the hearing before the Superior Number in November.  She accordingly resisted the application on his behalf, but in her written material accepted that there was jurisdiction in the court to make the order sought, and that the public interest lay in ensuring that the Superior Number had the fullest possible information available to it when the matter came to be considered. 

7.        Given Advocate Fogarty's obvious difficulties in a matter in which her instructions and her duty to a client whose capacity is an issue came into potential conflict with her duty as an Advocate to assist the Court, I asked the defendant whether there was anything which he wished to say in addition to that which had been said on his behalf by Advocate Fogarty.  He told me that it was the third time he had been brought to court and only been advised at the last moment that this was going to happen to him; he had spent a long, long time in prison on remand, and indeed, as far as he was concerned, a longer time than the sentence for which he might be liable if he were found to be fit to plead.  He felt that his advocate had not been to see him sufficiently and he added that there was a link between his remand in custody and some civil process as between him and his brother concerning a property in which either he or they had an interest. 

8.        The law presumes that a man has capacity until it is established otherwise.  The question of the defendant's fitness to plead was, I am told, raised by the defence in February 2013, when the defendant was presented in the Magistrate's Court.  In the normal course of events, it would be for the defendant therefore to adduce such evidence as he thought fit, subject to advice, to establish his case.  On the other hand, the nature of this type of application is such that he may not be fit to consider what evidence ought to be produced on his behalf and indeed that is no doubt part of the reason why Article 1(1) of the Criminal Justice (Insane Persons)(Jersey) Law 1964 is framed in the neutral language in which it appears:-

"(1) If on the accusation or trial before the Royal Court of any person charged with any act or omission punishable with death or imprisonment, it appears to the court that the accused may be so insane as to be unfit to plead to the accusation or unable to understand the nature of the trial, the court shall adjourn the case to enable the Superior Number of the Royal Court to try the question whether or not the accused is so insane as aforesaid."

9.        This however is not the only feature of the present case, because this application is not made by the defendant at all.  It is made by the Crown, and it is unusual to have the Crown apply for a disclosure order in the course of criminal proceedings against a defendant.  I cannot immediately think of other circumstances where the Court might make such an order, requiring the defendant to produce documents for the benefit of the Court.  After all, Article 6 of the European Convention on Human Rights provides that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.  One therefore starts from the premise that, in criminal proceedings, the Court should not order the defendant to provide documents because the burden rests on the Crown to prove its case. 

10.      There does not appear to be any substantial authority in the Royal Court on these various issues.  My attention was drawn to AG-v-Picot 2000/33 Unreported judgments, where the accused pleaded guilty to one count of indecent assault, but a Newton Hearing was fixed given the dispute over the Crown's version of the facts.  The accused made an application for an order that psychiatric and psychological records held by the consultant psychiatrist should be produced to the accused for use at the Newton Hearing.  Sir Peter Crill, Commissioner, said this:-

"This case raises an interesting and, to some extent a novel point. 

This Court has always been wary in the past of changing its well established practice, set out in O'Brien-v-Jersey Evening Post (1985-86) JLR N3 which is that, unless it is satisfied that it would be in the interests of justice to do so, the Court will not order disclosure of information by a non-party. 

The Crown has not sought to suggest, in this case, that I should not exercise my discretion against the accused.  Instead the Crown has put the facts and arguments, and the cases before me, very fairly and allowed me to make up my own mind. 

...

I am satisfied the material information arising out of the psychological records - the medical records have already been disclosed - should be made available to the court of trial, and I therefore order that they be disclosed by Dr Blackwell, on behalf of the hospital, but they will be disclosed to an independent competent member of the Bar, chosen by agreement between the Crown and the defence.  If they cannot agree, then they will have to come back to me to nominate one and that competent member will, of course, examine the third party documents in order to determine their relevance, and if there are arguments as to their elements, they will have to come back to the Court."

11.      O'Brien-v-Jersey Evening Post [1985-86] JLR N3 was a civil case and not a criminal case.  It concerned an application for Norwich Pharmacal Relief, which was on the facts of that case refused.  There have been other cases since then where relief has been given on Norwich Pharmacal principles.  I do not think that the rationale of O'Brien-v-Jersey Evening Post applies to the present application. 

12.      The other point which of course immediately arises in relation to AG-v-Picot, is that this case pre-dates the coming into force of the Human Rights (Jersey) Law 2000, which requires the Court to act in a Convention compliant way. 

13.      I was referred to the case of Such-v-AG [2013] JRC 179, a case which concerned an application by the representor for an extension of time within which to pay a compensation order.  Birt, Bailiff found that there was jurisdiction to extend time both on the application of Rule 1/5 of the Royal Court Rules 2004 and also on the application of the Court's inherent jurisdiction. 

14.      It was not disputed before us that the Court had jurisdiction to make an order, and we accept on the authority of Such-v-AG that that inherent jurisdiction does arise.  The more difficult question is how to resolve the human rights issues with which this application is clearly throbbing. 

15.      I was referred by Advocate Hollywood to R(B)-v-Crown Court at Stafford [2007] 1 WLR 1524.  In that case, the claimant was a fourteen year old girl who was to be the main prosecution witness in the trial of a defendant on a charge of sexually abusing her.  The defence case was that evidence from the claimant's medical notes was relevant to her credibility and therefore that an order ought to be made requiring the South Staffordshire NHS Trust to disclose those medical notes to the defence.  The judge held that the defendant's right to a fair trial took precedence over any confidentiality issues arising from the psychiatric treatment given to the claimant, and made the order.  He was asked to state a case for consideration of the High Court, and as this might have an impact upon the commencement of the trial, he invited the claimant to attend court as he could then ascertain her view of the disclosure and whether she understood the implications of the trial being delayed.  She did attend court and reluctantly agreed to disclosure because she could not face the prospect of delay.  The claimant brought judicial review proceedings against the Crown Court thereafter which were successful.  The Divisional Court found that although Article 8 of the European Convention contained no explicit procedural requirements, the Court was to have regard to the decision making process to determine whether it had been conducted in a manner that was fair and afforded due respect to the Article 8 rights of the claimant.  Procedural fairness required that the claimant should have been given notice of the application for the witness summons, and should have been given an opportunity to make representations before the original order was made.  Accordingly the claimant's Article 8 rights had been infringed and the Crown Court had acted unlawfully. 

16.      It appears to me that decision of the Divisional Court is very different from the one which faces me now.  It is clear that the claimant had a right to respect for her private life in relation to her psychiatric records.  The Crown Court was interfering with that right, which it was entitled to do because it is only a qualified right, but in doing so failed to give the claimant an opportunity to address the Court on why this should not take place.  There was therefore no procedural fairness in accordance with Article 6 of the Convention in the way in which the Article 8 rights were adjudicated upon.  The case is authority for the requirement that there be a fair and proper process is adjudicating upon Convention rights, but it does not help me in determining how the Convention rights should be resolved in this case.  

17.      At its heart, there are two competing arguments.  On the one hand, the defendant is entitled to assert that he has an Article 8 right to respect for his private and family life and therefore a right to insist upon the confidentiality of the medical records with his general practitioner and his mental health records over the relevant period.  

18.      On the other hand, both the Crown and the defendant are also entitled to a fair trial of the issues as to whether he is fit to plead and also as to his state of mental health at the time the alleged offences were committed.  Indeed Advocate Fogarty submitted that it could be said that the defendant's Article 6 rights to a fair trial on these issues required interference with his Article 8 rights, the respect for his private and family life. 

19.      Most of the authorities seem to refer to cases where there is an objection to the defendant having access to private and confidential information affecting someone else.  What makes this case unusual is that the defendant objects to both the Crown and his own expert having access to private and confidential information affecting him.  Neither counsel has been able to find any authority, local, English or European, on this point. 

20.      I remind myself that it was the defence application which raised under the 1964 Law the questions of fitness to plead and insanity at the date of the alleged offences.  The medical evidence put before me so far suggests that the material which the Crown now seeks is relevant and necessary to the issues which arise out of the defence application.  It follows in my judgment that the Crown is entitled to have the material which the experts require in order to allow them to make a full appraisal of the defence application.  In the circumstances it is right that the court interferes with the defendant's Article 8 right.  I am satisfied that such interference is in accordance with the law, because the Court is exercising its inherent jurisdiction to enable it to do justice in November on the issues before it; is necessary, because the disclosure is being effected proportionately to the two experts who are to give evidence only; and falls within one or more of the exceptions contained in Article 8.2 of the Convention, namely for the prevention of disorder or crime, and for the protection of health. 

21.      I have also taken into account as a subsidiary reason that not only is there a risk of the Superior Number being unable to have a fair and proper hearing in accordance with Article 6 of the Convention when the issue of fitness to plead is determined in November, if this material is not made available, but there is also a risk of a further adjournment of these proceedings at that time if the experts are still without these reports.  This would be very unfortunate and not at all in the interests of the defendant who, as I have earlier indicated, has been in custody since March this year.  

22.      For these reasons, I order that the defendant's medical records held by his General Practitioner and his mental health records be supplied to the two expert psychiatrists in this case retained by the Crown and by the defendant, notwithstanding the defendant's lack of consent to such disclosure. 

Authorities

Criminal Justice (Insane Persons)(Jersey) Law 1964.

European Convention on Human Rights.

AG-v-Picot 2000/33.

O'Brien-v-Jersey Evening Post [1985-86] JLR N3.

Human Rights (Jersey) Law 2000.

Such-v-AG [2013] JRC 179.

Royal Court Rules 2004.

R(B)-v-Crown Court at Stafford [2007] 1 WLR 1524.