The Data Protection Act 2018 provides the right to rectify inaccurate or incomplete data (s.46). This requires knowledge of what information has been gathered and how it has been interpreted.

The Data Protection Act 2018 gives data subjects (such as victims of crime) the right to restrict data processing where they contest the accuracy of the information (s.47). This has implications for ensuring that a representative (lawyer) is aware of the way data is being used, even if the victim-survivor themselves does not.

There are concerns that in order to advocate for a victim-survivor’s rights, their lawyer would be duty-bound to inform them of all information they received about their case, and that a consequence of this would be that the defence case would be revealed to the victim-survivor. To protect against this, victim lawyers could adhere to the same rules as prosecutors.

THE RULES:
The Criminal Procedure Rules state that complainants must be informed of any decision to introduce evidence of their sexual behaviour and/or bad character, as well as any applications for disclosure of sensitive materials. Prosecutors may also inform witnesses about what to expect during cross-examination. However, CPS guidance states that “it is important that prosecutors should not provide the detail of, discuss, or speculate upon the specific questions a witness is likely to face or discuss with them how to answer the questions” (para. 3.4(d)). Instead, these conversations must be limited to the general nature of the defence case without discussing their factual basis.

We are calling for experienced solicitors to take on this role (see our final report for more). Lawyers who are experienced working with vulnerable witnesses and sensitive evidence should be well-equipped to understand when to act on their client’s behalf without informing them, and when to appraise the client of the whole situation. There are legal precedents that make this possible.

LEGAL PRECEDENTS:
Child advocates are a common feature of family proceedings. This involves engaging the child on facts of the case using professional judgement to avoid sharing details of sensitive and potentially distressing evidence.
Chief Constable and another v YK and others [2010] EWHC Fam 2438 highlighted the Mental Health Review Tribunal Rules 1983, which allow for some evidence to be withheld from a patient if it would adversely affect themselves or other patients, but this evidence must not be withheld from their suitably qualified representative (lawyer).
These precedents mean that a representative (lawyer) can be privy to relevant evidence without sharing details with their client.

The latter of the above precedents refers to the defendants’ strong right to disclosure and the principle of representing a client’s interests without sharing details is further justified when applied to the complainant, as there is no starting presumption that they should be appraised of all the evidence. Indeed, the ruling stated that: “The problem is not a new one and that there are courts which have long been doing their best to try cases justly even though the ordinary principles of judicial inquiry identified by Upjohn LJ cannot be observed in every particular. If procedure is the servant rather than the master, then dealing with some cases ‘justly’ may sometimes require a rather different approach” (para. 59). This suggests that there is sufficient flexibility in the role of the advocate to ensure that clients’ interests are advanced ‘justly’ where the problem of withholding information occurs.