This is a very sensitive issue. It is vital that victims have complete confidence in the justice system and trust that they will be treated with the utmost fairness in court.
The fear of causing a criminal prosecution to fail has in some instances resulted in therapeutic support to victims being delayed until after the trial on the basis that it might be argued that the treatment could have tainted the victim’s evidence by interfering with the accuracy of their recall of the incident(s). This fear is speculative and conflicts with the need to ensure that victims are able to receive, as soon as possible, effective treatment and therapeutic support to assist their recovery.
It is paramount that all victims are aware that they can access therapy to ensure that their emotional and psychological needs are met before, during and after any potential trial. There is no requirement to delay therapy on account of an ongoing police investigation or prosecution. It is for the victim to make decisions about therapy with their therapist, including what type of therapy is obtained and when that therapy is obtained. A victim should never be discouraged from seeking emotional support through therapy or counselling before a criminal trial.
The Crown Prosecution Service (CPS) has published pre-trial therapy legal guidance which states that therapy should not be delayed for any reason connected with a criminal investigation or prosecution. Its guidance highlights how critical it is that criminal justice practitioners understand and strictly follow the law and guidance governing the access to, handling and disclosure of material generated as a result of therapy.
The CPS guidance contains principles which highlight the prioritisation that should be given to a victim's health and wellbeing, the need for the police and prosecutors to comply with data protection principles when handling victim’s notes, and the limited circumstances where therapy notes will be disclosed to the defence in the course of criminal proceedings.
In the case of disclosure of therapy notes to the defence in criminal proceedings, this will only take place where a prosecutor determines that there is material within the notes that might reasonably be considered capable of undermining the prosecution case or assisting the case for the defendant.
Where the material that is being sought from the counselling notes relates to the previous sexual history of the complainant, then Section 41 of the Youth Justice and Criminal Evidence Act 1999 would apply. Section 41 provides that, in general, questions about a complainant’s sexual history are not allowed in sexual offence trials. The only exceptions are where a strict set of criteria are met.