Too Much Information Regulating Disclosure of Complainants Personal Records in Sexual Offence Trials

For sexual offence complainants, testifying is an intrusive process where they must discuss sensitive and distressing information about themselves and the incident which has occurred. Traditionally, one of the primary concerns for these complainants was that evidence of their previous sexual experiences would be introduced. The use of such evidence has been curtailed somewhat by rape shield provisions like ss.41–43 of the Youth Justice and Criminal Evidence Act 1999. However, a residual concern for sexual offence complainants is disclosure of personal records such as therapeutic or social work records at trial. Despite increasing applications for access to such material, there is no specific law to regulate such access in England and Wales. Applications are dealt with in an ad hoc manner according to the general rules on disclosure in criminal trials. This article considers the current approach to disclosure of sexual offence complainants’ personal records. Principled concerns about the admission of this information in trials are highlighted and proposals for increased regulation of the use of personal records are put forward, using Canadian law as a potential blueprint for reform.