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12 February, 2016

Landmark judgment determines that abuse victims should be able to access legal aid to fight attempts to obtain their medical records

Dorothy Bain QC of Ampersand successfully led the case for the Petitioner in this Judicial Review: WF for judicial review of a decision of the Scottish Ministers to refuse to make a determination for legal aid under section 4(2)(c) of the Legal Aid (Scotland) Act 1986 – [2016] CSOH 27

A copy of the judgment can be accessed here:

Until now, unlike in England and Wales, there has been no provision in Scotland for legal aid to be granted to enable a woman who is alleged to have been a victim of domestic abuse to oppose her medical records being accessed.

This case regarded a woman who was alleged to have been a victim of domestic abuse.The legal team acting for the man accused of attacking her sought access to her medical records. The woman sought legal aid from the Scottish Legal Aid Board for representation at the hearing to oppose the recovery proceedings. It was the woman’s position that allowing the defence lawyers access to her medical records would infringe her human rights under Article 8 of the European Convention on Human Rights (ECHR), which protects the right to privacy and family life. Her application for legal aid was refused on the basis that there was no rule allowing for the provision of legal aid to women in Scotland in such circumstances.

The request for legal aid was then made to the Scottish Ministers who have the power to grant legal aid in circumstances not covered by the rules, but again, this move was rejected.

Acting for the petitioner, Ampersand’s Dorothy Bain QC, sought a judicial review at the Court of Session. It was argued that the Scottish government was preventing a woman from participating effectively in a case where her own rights were involved. Another point, supported by anti-rape campaigners Rape Crisis Scotland, was that the risk of disclosure of such confidential and sensitive information would deter sex assault victims from reporting such events.

Lord Glennie, in a ruling deemed “very significant” by anti-rape campaigners, ruled that this woman’s human rights had in fact been breached. Citing Article 8 ECHR, he determined that “what is required is for the lack of any specific provision to be addressed by the appropriate rule-making body.”

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