Petition to the Nobile Officium by J.C. [2018] HCJAC 77

Petition to the Nobile Officium:- Paul Neil McMillan was indicted to the High Court in relation to 8 charges including 5 charges relating to JC. The accused sought to obtain recovery and access to JC’s medical records. On 1 August 2018 a warrant was granted for service of a petition for commission and diligence seeking recovery of documents at the instance of the accused. On 7 September 2018, at a hearing on the petition, having heard from the solicitor advocate for the accused in support of the petition and the solicitor advocate appearing for JC in opposition to the granting of the petition, the judge granted the prayer of the petition and appointed a commissioner to take relevant extracts from the documents recovered in terms of the specification annexed to the petition and to report on those extracts. JC thereafter petitioned to the nobile officium seeking to challenge that order of the court. Here the court granted the prayer of the petition and quashed the interlocutor granting commission and diligence. The court considered that the present petition was competent (the earlier opposition to the competence of the petition being withdrawn on behalf of the accused) because if a complainer has a right to be heard in proceedings for recovery of her medical records, like JC was in the present proceedings, the court thought it only logical that she would be entitled to challenge the decision arrived at, and, given no method of appeal was available to her, then a petition to the nobile officium was competent. In relation to the merits of the application for recovery of documents the court considered that the basis upon which the accused had asked the court to order production of JC’s medical records was the contention that she suffered from poor mental health and had anger management issues and the records were to be used to undermine her credibility and reliability. The court noted there was no information provided in relation to what was meant by “poor mental health” and the wide variety of mental health difficulties that could encompass. Similarly, no information was provided as to what was meant by the term “anger management issues”. In relation to the proposed purpose that any such information obtained would be put, the court questioned the extent to which any such material could be used to undermine the complainer’s credibility or reliability and the court referred to the limitations of that at common law and under section 274 and 275 of the 1995 Act. The court noted that there did not appear to be any known medical condition suffered by JC which would manifest itself in a lack of reliability or truthfulness on her part. The court considered that in the absence of a medical opinion on the issue the judge at first instance appears to have proceeded on the basis that mental illness equates to a likelihood of lying. The court considered that the petition granted by the judge at first instance had no proper basis for being granted and amounted to a fishing diligence.