It is often argued that judges and prosecutors are able to effectively protect the rights of victim-survivors during criminal proceedings. However this is, quite rightly, not their priority, which means victim-survivors do not have anyone whose priority is to protect their legal rights.

Police and prosecutors:

Police and prosecutors do not know what information the data/records being sought contain and so cannot make full assessments of the potential significance or damage to privacy.

There is no professional privilege between the Crown (prosecutors) and the victim-survivor, which means that in some circumstances the victim-survivor may be unwilling to disclose the implications of certain evidence on their privacy.

The suggestion that the police and CPS can fully address any data issues not only ignores the extensive evidence that they do not, but also misrepresents the role of the CPS.

A prosecutor must ultimately prioritise the protection of fair trial when balancing the interests of the public, complainant, and the accused. This means that the extent to which prosecution and victim-survivor interests align tends to be over-estimated.

The role of prosecutors is incompatible with sufficient protection of victim-survivors’ rights, and to require otherwise would take attention away from prosecutors’ duties to the public and to defendants.

Looking to case law from Scotland also highlights that prosecutors cannot be relied upon to effectively represent complainants’ interests on previous sexual behaviour.
(see LL v HMA [2018] HCJAC 35, (para. 12 & 22); MacDonald v HMA [2020] HCJAC 21; RN v HMA [2020] HCJAC 3; HMA v JG [2019] HCJ 71)

Judges:

The breach of privacy occurs at the point of disproportionate and unjustified access to private data, rather than at the point of disclosure to the defence. For the courts to be responsible for all adjudication of data requests, judges would have to be involved in police investigations and this has significant cost and resource implications.

While it is useful to encourage more robust consideration of such issues by trial judges, this is an inefficient solution to a problem that arises in the early stages of police investigation; using valuable resources to gather information for a judge to then rule in or out several months later.

This was addressed in M v Director of Legal Aid Casework [2014] EWHC Admin 1354, when Coulson J expressed concern that unnecessary CPS requests were placing an undue burden on the courts:

“It is becoming increasingly common for the CPS to issue witness summonses of this kind, seeing medical and other such records concerning a complainant in an assault or sex case. In my experience, these applications are often made somewhat lazily, in the belief that, if there are some records which may have some relevance, the CPS is fulfilling its obligations to the defendant, and to the administration of justice, by issuing the witness summons and then putting the burden of resolving issues raised onto others (namely the defendant, the complainant and the judge). In my view, considerably greater analysis is required before any such summons is issued. As a general rule it is not good enough, as this witness summons seeks to do, merely to require the documents on the general basis that they might undermine the prosecution or help the defence.” (para. 3.12)

Only independent legal representatives can be properly effective in protecting the rights of victim-survivors.
This does not impact on a defendant’s right to a fair trial.