Pre-Trial Therapy - Fundamental Principles
Updated: 26 May 2022|Legal Guidance, Sexual offences
We are committed to a number of fundamental principles in the area of pre-trial therapy. You can read more about these in our recently updated Pre-Trial Therapy guidance.
On the prioritisation that the guidance will give to victim health and wellbeing:
- The health and wellbeing of the victim should always be the determinative factor in whether, when and with whom they seek pre-trial therapy.
- 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. Criminal justice practitioners should play no role in the decision-making process beyond alerting victims to the availability of therapy.
- 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.
On the need to ensure that any request to access therapy notes represents a reasonable line of inquiry
- The law governing disclosure imposes an obligation on the police to pursue all reasonable lines of inquiry whether these point towards or away from the accused. Access to therapy notes can only be requested in an individual case when it is a reasonable line of inquiry that may reveal material relevant to the investigation or the likely issues at trial. What is reasonable in each case will depend on the circumstances of the individual case, any known issues in the case, including any potential defence, and any other information informing the direction of the case.
On the need for practitioners to comply with data protection legislation and guidelines when handling victim’s personal material:
- Therapists, investigators and prosecutors must understand and comply with all relevant data protection legislation and guidelines when processing personal material generated in therapy. Therapists must be transparent with victims at the outset of therapy about how their personal data will be held and processed and highlight their right to object to processing at any time.
- An information request from the police in relation to therapy notes should provide the therapist with enough specificity of what data is sought and why to enable them to comply with their own data protection obligations as a controller when responding. Unfocused requests to browse victims’ files in order to determine whether they contain anything of interest to the investigation should not be made.
On the limited circumstances when the content of therapy notes will be disclosed to the defence in criminal proceedings:
- The duty to disclose material generated as a result of therapy to the defence arises only in circumstances where that material might reasonably be considered capable of undermining the prosecution case or assisting the case for the accused.