The Court of Appeal has quashed three District Court orders requiring witnesses to hand over medical records relating to an anonymised appellant, ruling that the District Court had not properly considered her privacy rights before finding the records compellable.
In a judgment delivered on 30 November 2016, Mr Justice Edwards said the matter must return to the District Court for a fresh consideration of a UK mutual assistance request. The reconsideration must address the appellant’s constitutional right to privacy, her right to respect for private life under Article 8 of the European Convention on Human Rights, and any legitimate countervailing considerations advanced by the Minister for Justice and Equality.
The records were sought for a pending retrial in the UK of a named defendant accused of murdering an Irish citizen whose body has not been found. The appellant, who gave evidence at the earlier trial and is due to testify again, had disputed an allegation in cross-examination that a medical issue made her evidence unreliable. The judgment says the defence had sought disclosure of her medical records from the UK Crown Prosecution Service.
The District Court made orders under section 63 of the Criminal Justice (Mutual Assistance) Act 2008 on 27 October and 3 November 2016. The appellant objected to disclosure. The Court of Appeal had already rejected her separate argument that the request amounted to impermissible third-party discovery. This further judgment addressed her argument that disclosure would breach her privacy rights.
The Court of Appeal said those rights were engaged, but were not absolute: an interference could be permitted if it pursued a legitimate aim, was proportionate and necessary, and met a pressing need. The District Court was required to consider the appellant’s rights even if she had not expressed them in legal terms.
The judgment found no adequate evidence that the District Court had assessed those rights or balanced them against other considerations, such as public interest, the common good or the defendant’s right to a fair trial. It said the District Court’s brief reasons, including its reference to assurances that the records would be used only for the requested purpose, did not reveal whether that assessment had taken place.
The appeal was allowed and all three section 63 orders were quashed. The Court of Appeal remitted the request for proper reconsideration. It did not decide whether the records should ultimately be disclosed.