The entitlement to a representative is well-established when a complainant objects to access/disclosure of their private data and the prosecution seek a witness summons (see s.15 and s.17 of the Criminal Procedure Rules).

This is reflected in the CPS’ own guidance, which states that where records are sought via a witness summons, the complainant “will be entitled to have his/her views put before the court…by the prosecutor on the victim’s behalf or by the victim in person or in writing, or by someone acting on her/his behalf” (see also the Judicial Protocol, 2013, para.47).

There are, however, concerns that victim-survivors’ lawyers would not have rights of audience at court before or unless the CPS applied for a witness summons. There is little commentary on what is permitted before this stage, but R (TB) v Stafford Crown Court [2006] EWHC 1645 highlighted the importance of early engagement with the complainant and/or their representative (lawyer).

Providing rights to oppose evidence does change the legal status of complainants and “need not compromise the substantive rights of the accused. It is not a zero-sum game, where additional rights for complainers can only be gained at the expense of a fair trial for the accused” (Raitt, 2010, p.54).

We are not arguing for victim-survivors to be given party status in legal proceedings.

International precedents

Looking to our closest neighbours shows how independent legal advocacy can work within an adversarial system.

Victim-survivors in the Republic of Ireland are entitled to legal representation regarding applications to introduce evidence about their sexual behaviour. A recent review recommended this was extended to cover counselling records.

A review of Scots Law also provides relevant precedence that provided complainants with legal aid to make meaningful representations on access to, and disclosure of, their medical records (WF Petitioner [2016] CSOH 27), digital downloads (AR v HM Advocate [2019] HCJ 81), and sexual history (RR v HM Advocate [2020]
HCA/2020/4/XM, not yet published).

The consultation documents on the introduction of legal representation for Irish complainants is particularly useful. They state that denying victim-survivors party status at trial does not preclude their representative making submissions at an application hearing away from the jury.