Government Response

The Government responded to this petition on Monday 7th October 2019

The best interests of victims are paramount and they should not be stopped from having counselling if their case goes to court. Notes should never be automatically given to defence lawyers on request.

The Government recognises the devastating impact that rape and sexual offences can have on the mental health of victims and the critical importance of victims being able to access counselling and support without delay.

The Government is clear that the wellbeing of the victim is paramount in determining whether a victim accesses counselling and there are no rules which outlaw access to therapy in advance of criminal proceedings. Police officers and prosecutors have clear guidance, available on CPS.gov.uk, that a victim of crime should never be prevented or discouraged from receiving counselling.

Sometimes, therapists may take notes during counselling sessions. Victims may be concerned that these private notes will simply be handed over to the police/prosecutor or defence ‘on request’.

This is not the case. There is a clear process that must be followed by the police and prosecutors when counselling notes exist. Even if the notes are requested as part of an investigation the permission of the victim must be sought before they are disclosed (although a court can also order that they are disclosed).

The Criminal Procedure and Investigations Act (CPIA) 1996 and CPIA Code of Practice impose an obligation on the police to pursue all reasonable lines of enquiry when undertaking a criminal investigation whether these point towards or away from the suspect. The police may ask prosecutors for advice about whether something is a ‘reasonable line of enquiry’.

Access to a victim’s counselling notes should not be sought by an investigating officer merely because they exist.
If counselling notes exist, the first stage is that the police/prosecutor must find out whether they contain information that is relevant to the criminal investigation. To do this, the police should contact the therapist who holds the counselling notes and ask them whether they contain such relevant information.

If the therapist says that they do not, it will not be a ‘reasonable line of enquiry’ to request the notes and that should end the matter.

If the therapist says that the notes do (or may) contain information relevant to the criminal investigation, because the police/prosecutor are obliged by law (the CPIA) to carry out ‘reasonable lines of enquiry’, they will want to see a copy of the notes to see what they say. The notes may support the prosecution case or they may undermine it or assist a defence case.

However, the therapist cannot give a copy of the relevant notes to the police/prosecutor before having the consent of the victim to do so. If the victim refuses consent, the therapist is not permitted to give the notes to the police/prosecutor (although a court may order this is done).

If a victim does give consent for the notes to be disclosed to the police/prosecutor, then the notes will be given to the police. If the notes are relevant to the criminal investigation, the police (sometimes with advice from the prosecutor) will go on to consider whether they provide evidence that could be used by the prosecution in the case against the defendant and/or whether they contain evidence that might reasonably be considered capable of undermining the prosecution case or assisting the case for the defence.

Information contained in the notes will only be given to the defence if it forms part of the prosecution case (it assists the prosecution case and will be used as evidence) or where it might reasonably be considered capable of undermining the prosecution case or assisting the case for the defence.
If none of these factors applies, the information in the notes will not be given (‘disclosed’) to the defence by the prosecution.

Only information in the notes required to be disclosed will be provided – pages or paragraphs containing information not required to be disclosed should be withheld from the defence or redacted.

The Government is aware that concerns exist with regard to inconsistencies in the approach adopted by different police forces to obtaining and recording a victim’s consent to accessing their personal information. The Information Commissioner’s Office (‘ICO’) is due to publish a report on this subject later this year and the Crown Prosecution Service (CPS) is currently working with the police and victims’ groups to develop a new national approach to promote consistency and ensure complainants are aware of why their records are required and how they will be used to allow them to make an informed decision.

The Government’s Victims Strategy, available on GOV.uk, features a commitment that the Government will launch new guidance on pre-trial therapy to reduce the perception amongst victims, therapists and prosecutors that it will damage the prosecution case. With the assistance of the police, government departments, and voluntary sector providers, the CPS is currently updating its guidance on this subject.

A consultation has taken place and the guidance is due to be published later this year after the ICO reports.

Attorney General's Office.