Question reference: S4W-29935
- Asked by: Alison McInnes, MSP for North East Scotland, Scottish Liberal Democrats
- Date lodged: 16 February 2016
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Current status: Answered by Paul Wheelhouse on 16 March 2016
Question
To ask the Scottish Government what its response is to Lord Glennie’s judgement of 9 February 2016 in the judicial review of a decision of the Scottish Ministers to refuse to make a determination for legal aid under section 4(2)(c) of the Legal Aid (Scotland) Act 1986.
Answer
The case that Lord Glennie’s judgement refers to dealt with representation from a complainer seeking to restrict access to her medical records in connection with a criminal case.
As the Cabinet Secretary set out at the Justice Committee on 1 March 2016, the Scottish Government will not appeal Lord Glennie’s decision. It is an important judgement that clarifies a number of issues that will lead to significant changes in procedure in cases where an application is made to recover sensitive information.
The original decision by Scottish Ministers to refuse to make a determination for legal aid was made on the basis that we considered the complainer had no standing to be involved in such a hearing as it constituted criminal proceedings.
Lord Glennie’s judgement clarified that proceedings for an order for recovery of documents were proceedings “in connection with criminal proceedings” and are not part of criminal proceedings against the accused. It was confirmed by Lord Glennie that a person whose sensitive records were sought had the right to have intimation of the application and be heard on it.
Agents acting for the complainer have been informed that a determination has been granted by Scottish Ministers for legal aid. It was important to deal with this matter first to allow the associated criminal trial to proceed without further disruption.
Interim arrangements have also been made to allow the Scottish Legal Aid Board to provide legal aid in future similar cases in appropriate circumstances for individuals whose sensitive records are being sought.
These interim arrangements have been effective since 1 March 2016 and will be in place while we develop plans to make changes to the legal aid system for cases of this nature.