Scottish High Court of Justiciary Decisons

HER MAJESTY'S ADVOCATE v. STEPHEN ROBERT KELLY [2001] ScotHC 7 (20th February, 2001)

[1] During the evidence of Mrs Gwen Gunning (Crown witness No.10) Mr Findlay, for the accused, took objection to a question by the Advocate Depute, which sought to elicit the results of the testing of a blood sample, carried out at the Regional Virus Laboratory, Ruchill Hospital, Glasgow on 30 June 1993. I understand that the question was the first of a series of questions which, that the Advocate Depute intends to ask. The questions will be designed to elicit from Mrs Gunning the results of the testing of three blood samples, which bear to have been provided by the accused, whilst he was a prisoner in Glenochil Prison during the summer of 1993. I heard preliminary submissions on the objection on Friday afternoon. During those submissions, the Advocate Depute sought to persuade me to rule the evidence admissible. He indicated, however, that if I felt unable to do so, upon the basis of the evidence the jury and I have already heard, he would wish me to hear evidence from two Crown witnesses, James Black (No.5) and Dr James McGregor (No.3).

[2] Yesterday morning I advised counsel that having considered their submissions over the weekend, I felt unable to rule the line of evidence admissible, upon the basis of the evidence that the jury and I have already heard. Accordingly a trial within a trial took place, during which I heard evidence from both Mr Black and Dr McGregor. I shall deal with their evidence shortly. Before doing so, I should outline the circumstances in which the objection was taken.

[3] The current witness, Mrs Gunning, works as a scientific officer in the Regional Virus Laboratory in Gartnavel General Hospital, Glasgow. She was so employed in 1993, when the laboratory was located at Ruchill Hospital. In her evidence, the witness has explained that during the summer of 1993 the laboratory received a number of blood samples provided by prisoners in Glenochil Prison. The vast majority of the blood samples were submitted to the laboratory by the counselling team from Ruchill Hospital, which had gone into Glenochil Prison, during June and July 1993. Mrs Gunning explained that blood samples submitted by the Ruchill team arrived in individual plastic bags. Each of the samples arrived in a plastic bag, containing a bottle and a Blood Request form. The bottle and the form were both marked with a unique number, which was understood to be the Ruchill team's unique clinic number for the donor of the blood. The form also contained details of the donor's first name, his date of birth and the first part of his postcode. The form indicated the date when the blood sample was taken and the tests which it was wished that the laboratory should carry out. It will be obvious from what I have said so far that nobody working within the laboratory could fully identify the donor of a particular blood sample. All that they would know was that the donor was an inmate in Glenochil Prison. Mrs Gunning has explained in her evidence that the first thing that happened, when the plastic bag containing a sample arrived, was that the numbers on the bottle and the form were checked to see that they coincided. She has explained how the samples were then booked in and tested, explaining in particular the tests carried out before an HIV+ result was determined and notified to the Ruchill counselling team. My understanding of the evidence that she has given so far is that the same procedures were followed whichever clinic, general practitioner or hospital had been responsible for submitting a particular blood sample for testing for HIV. The only difference with the samples submitted by the Ruchill team at Glenochil Prison was that the individual forms, which accompanied the individual samples, did not contain details of the donors' surnames.

[4] There are lodged as productions copies of two Blood Request forms, which bear to indicate that a man at Glenochil called Steven, with a date of birth 18 January 1968 and a postcode beginning G33, provided two blood samples, for forwarding to the Regional Virus Laboratory. Ann Thomson, who has already given evidence, completed the first of these (Crown production 1). It relates to a blood sample provided on 29 June 1993. James Black completed the second form (Crown production no.2). It relates to a blood sample provided on 6 July 1993. There is a third Blood Request form, which is part of Crown production 17. This third Blood Request form was signed by Dr McGregor and bears to relate to a blood sample provided on 25 June 1993. For the purposes of this objection, Mr Findlay was content to proceed on the assumption that the Crown will be able to prove that all three blood samples were provided by the accused on the dates shown on the three Blood Request forms and that they were submitted for analysis to Mrs Gunning's laboratory. At a later stage in the case, it may be necessary for me to consider whether the Crown has led sufficient evidence from which the jury could hold that all three samples were provided by the accused on the dates indicated in the three Blood Request forms. Having regard to the approach taken by Mr Findlay in advancing this particular objection, it is not necessary for me to address that issue for the moment.

[5] Mr Findlay objects to the admission of the results of testing the blood samples for HIV for the reason that it would be unfair to admit such evidence, having regard to the circumstances in which the accused came to provide the three blood samples - one to the Prison medical authorities, on 25 June 1993, and the other two to the Ruchill Counselling Team, on 29 June 1993 and 6 July 1993. It was also argued that were I to admit the evidence, that would breach the accused's right to protection against self-incrimination.

[6] It was conceded by the Advocate Depute that the onus is on the Crown to establish that the evidence is admissible and that the Crown requires to do so, in the light of the objection raised and upon the basis of the evidence I have heard. That evidence also includes the evidence the jury has heard and the evidence I listened to during the trial within a trial. It must be noted that the accused did not give evidence during the trial within a trial. He was, of course, under no obligation to do so and I draw no adverse inference from the fact that he remains silent. I do not, however, have before me any evidence given by the accused as to why he came forward and requested the blood tests, which were taken from him, and as to how he viewed and relied on what was said to him by members of the Ruchill team, whilst they were working within Glenochil Prison.

[7] Having regard to all the evidence I have heard, I proceed on the following factual basis. During the summer of 1993, there was concern within the Prison authorities in Glenochil Prison and also, as I understand it, amongst the prisoners themselves about outbreaks of Hepatitis B and HIV within the prison population in Glenochil Prison. There was, in particular, concern that HIV might have been spread by prisoners needle-sharing, whilst they engaged in intravenous drug abuse. That concern led to a team of counsellors, from Ruchill Hospital, being invited into the prison, to provide a confidential service to prisoners. Mr Black led that team. Before any individual prisoners met with individual counsellors, Mr Black addressed groups of prisoners in the various Halls. He explained the services that the team would provide, including pre-test counselling, the opportunity for prisoners to provide blood samples to be analysed confidentially, the procedure that would be followed in the notification of the results of such analysis, the counselling that would be available in the light of the results and the arrangements that the Ruchill team would be prepared to make for any prisoner who wished further medical assistance, once the result of his test was known. It was stressed that the whole service being provided by the Ruchill team was voluntary as far as the prisoners were concerned. No prisoner was required to seek counselling. No prisoner required to provide a blood sample for testing. It was also stressed that the service was confidential. The prisoners were told that the counselling service was completely separate from the prison authorities, including the prison medical authorities. Anything said to a counsellor would be treated as confidential. Any blood sample would be submitted for analysis, so marked that the prisoner, who had provided the sample, could not be identified at the laboratory. The results of a blood test (whether for HIV, Hepatitis B or Hepatitis C) would be treated as confidential between the Ruchill team and the prisoner, unless the prisoner concerned requested that their result be disclosed to the prison medical authorities or some other medical unit, to enable the prisoner in question to receive medical treatment or assistance. Likewise, with the consent of the prisoner, the result might be discussed with relatives or friends. In the light of concerns expressed by some prisoners that if they provided blood samples, parts of the samples might be tested for DNA, Mr Black assured prisoners that any blood samples provided would only be used for testing for one or more of HIV, Hepatitis B and Hepatitis C, the tests being agreed with the individual prisoners. Mr Black was anxious to encourage the prisoners to participate in this project, which he viewed as having important public health implications. For that reason, the confidential nature of the service being provided and the fact that informed consent of individual prisoners would be obtained, before testing was carried out or the results of any test were disclosed to anyone outwith the Ruchill team, were matters which Mr Black stressed.

[8] In the event the first blood sample that the accused provided was that given on 25 June 1993. It was provided by the accused to the prison medical authorities a few days before the Ruchill team started their work in Glenochil. While Dr McGregor signed the Blood Request form relating to this sample, he was unable to say whether or not he had taken it from the accused. The accused's prison medical records indicate the blood sample was taken for the purposes of testing for HIV. They also record that he was counselled by a prison social worker about the test, on the same day that the sample was provided. However, I have heard no evidence from that social worker or from Dr McGregor as to what specifically the accused was told on the day that sample was provided by him. The accused's position at that time can be inferred from the fact that the form (within Crown production 17) is marked that the patient is concerned because he is an intravenous drug-user who has engaged in needle-sharing.

[9] The second sample was provided on 29 June 1993, at the conclusion of the first meeting between the accused and Ann Thomson, a member of the Ruchill Hospital counselling team. On the basis of her evidence I am satisfied that the accused agreed to provide a blood sample that day because he was concerned that he might have been exposed to HIV on account of needle-sharing. I am also satisfied that he agreed to provide a sample after he had been reassured by Miss Thomson (1) that the sample would be submitted for testing only for HIV and Hepatitis B, (2) that the sample would be marked in a manner that could not lead to it being identified as coming from him and (3) that it would be the accused's choice who was informed about the results of testing the sample, once the results became known. In particular the accused was reassured that the results of the test would not be disclosed to the prison medical authorities, without his consent. What bearing (if any) any of these assurances had on the accused's decision to provide this second sample of blood, I cannot determine.

[10] Miss Thomson has also given evidence that after the laboratory had reported on the testing of the sample provided on 29 June 1993, she had a further meeting with the accused at Glenochil Prison. This second meeting was approximately one week after the first meeting. At this second meeting Miss Thomson informed the accused that he had tested HIV+. She gave him some counselling in the light of that result.

[11] It appears that around that time the accused also met with Mr Black. In his evidence Mr Black explained that those prisoners who tested positive were offered a second test. Mr Black met the accused when the sample for that second test was provided by the accused. Whether Mr Black actually took the blood sample from the accused, he could not recall. As a trained phlebotomist, he might have done so. In any event Mr Black completed the Blood Request form that was sent to the laboratory on 6 July 1993, the day the blood sample had been provided. On the same day, Mr Black contacted a member of the prison nursing staff, D McCallum. Having obtained the accused's authority to do so, he informed Mr McCallum that the accused had tested HIV+ and Hepatitis B-. Mr Black also wrote a letter to Dr McGregor conveying that information to Dr McGregor and indicating that the accused wished to be referred for specialised medical care. This was done with the accused's consent. The accused, after learning that he had tested HIV+, authorised the Ruchill counselling team to divulge that information to the prison medical authorities. The letter Mr Black wrote forms part of Crown production 17, the accused's prison medical records.

[12] On the basis of the evidence I have heard it is unclear when the Ruchill team received notification of the results of the blood sample provided on 6 July 1993. It would appear from the prison medical records that the results of the blood sample provided by the accused on 25 June 1993 were not received by the prison medical authorities until 22 July 1993. The delay may be attributable to the fact that that particular blood sample was submitted to the laboratory through Stirling Royal Infirmary.

[13] In seeking to persuade me that the evidence relating to the testing of the three blood samples should be admitted, the Advocate Depute founded on the fact the bond of confidentiality between doctor and patient does not prevent the doctor being a competent and compellable witness against his patient. Whilst a doctor's bond of confidentiality may prevent a doctor from divulging to third parties information provided to him by his patient, the doctor is bound to disclose that information in answers to questions being asked of him in the witness box. Reference was made to Walker & Walker on the Law of Evidence in Scotland, pages 419-420 and to A.B. v. C.D. (1851) 14D 177. The Advocate Depute argued that obligation involved a doctor (or members of his medical staff, such as nurses) divulging the information to the Crown in advance of a criminal trial and answering questions about that information during the criminal trial itself. He submitted that covered the position of Dr McGregor. Moreover whatever may have been said to the accused, before he agreed to provide blood samples to the Ruchill team, such bond of confidentiality as existed between the accused and the members of that team could not operate so as to prevent the Crown from leading evidence of the results of testing the samples provided on 29 June 1993 and 6 July 1993. The members of the Ruchill team were in no different a position to that of any medical adviser and in the circumstances of the present case to the members of the prison medical authorities, including Dr McGregor. That was particularly so because the accused had authorised the Ruchill team to divulge the prison medical authorities the results of the testing of 29 June sample.

[14] In addressing the argument advanced on behalf of the accused to the effect that it would be unfair to admit the results of the tests upon the various blood samples, the Advocate Depute founded on the fact that there was no suggestion that the evidence he sought to lead had been obtained illegally or irregularly by the Ruchill team or the prison medical authorities. At all times they had acted responsibly, obtaining the accused's consent where appropriate. There was no suggestion that the blood samples had been tested for purposes other than those agreed to by the accused. Nor had any parts of the samples been passed on to parties who should not have been given them. If the question of fairness arose at all, the interests of the accused required to be balanced against the public interest - on the basis discussed in Lawrie v Muir 1950 J.C.19. In response to a point raised by Mr Findlay as to the accused's privilege against self-incrimination, the Advocate Depute submitted, under reference to Brown v Stott 2001 S.L.T.59, that privilege could only come into play after a crime was committed, not as here some months before the dates within which the charge was alleged to have been committed.

[15] In arguing that the evidence should be excluded, Mr Findlay recognised that in normal circumstances a doctor/patient relationship would not entitle a doctor who was in a position to provide information about his patient, to refrain from divulging that information in evidence. He argued, however, that as a matter of fairness to the accused, the bond of confidentiality between the Ruchill team and the accused, in the factual circumstances in which I have outlined, should not be breached. He argued that such a breach would occur were the information obtained by the Ruchill team, as to the outcome of the blood tests of the accused, to be admitted in evidence. In Mr Findlay's submission unfairness would arise because the accused had agreed to provide the Ruchill team with a sample, relying on assurances (a) that any blood samples would only be tested for HIV and Hepatitis B and (b) that the results of any tests would remain confidential. Indeed such assurances had been given by the Ruchill team to all of the prisoners in Glenochil Prison, in an effort to encourage the prisoners to co-operate in the project. Mr Findlay argued that the bond of confidentiality, which had come into existence, (I assume when the accused had approached the Ruchill team and met Ann Thomson for the first time) had not been breached by the accused authorising the Ruchill team to divulge the result of the 29 June blood test to the prison medical authorities. He argued that must be so, otherwise a prisoner, such as the accused faced with a positive blood test, would have the choice of authorising the disclosure of information, that might end up being given in evidence in Court, or declining the opportunity of medical care, appropriate in the light of his having tested positive. As far as the privilege against self-incrimination was concerned, Mr Findlay argued that back in 1993 the police would have had no right to seek a blood test from the accused. In these circumstances the accused was entitled to the benefit of the privilege against self-incrimination, even although the evidence that the Crown sought to introduce came into existence some months before the date set out in the charge and indeed some months before the accused ever met Miss C.

[16] Having carefully considered all the evidence I have heard, I have reached the view that the objection should be repelled. The Crown seeks to lead evidence of the results of three blood tests. One was taken by the prison medical authorities, on 25 June 1993, as part of their work in caring for the accused's medical needs, whilst he was a prisoner in Glenochil Prison. At that time there was a patient/doctor relationship between the accused on the one hand and Dr McGregor and his colleagues on the other. Whilst such relationships placed doctors (and members of their staff) under a duty not to disclose information about patients to third parties, the law is quite clear. Any bond of confidentiality between doctor and patient does not permit the doctor to decline to give evidence that may incriminate his patient. In my opinion the results of the blood test arranged by Dr McGregor on 25 June 1993 are clearly covered by that rule of law. As far as the results of the blood tests organised by the Ruchill team are concerned, once the results of the first of those tests was disclosed to Dr McGregor, which happened at the request of the accused, that information fell to be treated like all the other information held by the prison medical authorities. As between patient and doctor, it required to be kept confidential from third parties. Dr McGregor (and his colleagues) would, however, be bound to disclose the information in Court. In such circumstances, the accused having authorised that it be released by the Ruchill team to other medical authorities, the terms of the confidential relationship they had originally established with the accused were significantly varied. In my opinion, therefore, there is no rule of law that automatically excludes the admission of the evidence which the makers of the Ruchill team and the laboratory staff are in a position to give. Indeed that would be the position whether or not the accused had authorised the members of the Ruchill team to release results to Dr McGregor.

[17] In any event, both the Advocate Depute and Mr Findlay invited me to look at the question of the admissibility of the results of the blood test as involving issues of fairness. The interests of the accused required to be balanced against the public interest. In my opinion, when that exercise is undertaken, the balance is in favour of the evidence being admitted. This is not a case in which the evidence has been recovered by irregular, let alone illegal means. On the contrary, it is accepted on the accused's behalf that the members of the Ruchill team and the prison medical authorities have behaved in a perfectly responsible manner, seeking the accused's informed consent before blood samples were obtained and submitted for analysis and in particular before the results of the testing of the 29 June sample were passed from the Ruchill team to the prison medical authorities. Whatever the accused may have made of the assurances offered by the Ruchill team, the fact of the matter is that he approached the medical authorities for a blood test before he first met with Ann Thomson. The background to his requests for tests appear to have been that he had been involved in needle-sharing. There is no suggestion that he was placed under any pressure to provide blood samples for testing. On the contrary, all along the options open to him appear to have been explained. Having regard to the fact that three blood samples were provided several months before the crime set out in the indictment is alleged to have been committed, I have some difficulty in understanding how it comes into play on the issue as to the admissibility of the results of the blood test. As Brown v Stott illustrates that privilege comes into play, after a crime has been committed - at the stages when the crime is being investigated and prosecuted. The public interest is quite clear. It is in the interests of everyone that serious crime should be effectively investigated and prosecuted. That involves balancing the interests of the victim, the accused and the public. The present accused faces a serious charge. In seeking a conviction it is necessary for the Crown to lead evidence that the accused was HIV+ between 1 January 1994 and 29 March 1994. The evidence which the Crown seeks to lead is clearly relevant. It is open to the defence to explore in cross-examination the circumstances in which the blood tests were offered, agreed to, blood samples provided, blood samples tested and the results communicated to the accused. In the absence of any irregularity or impropriety in the obtaining of the evidence and having regard, in particular, to the facts that the accused voluntarily undertook all the tests and that he authorised the Ruchill team to release the results of the first test to the prison medical authorities, I have reached the view that the circumstances of this case warrant the objection being repelled.