New Crown Prosecution Service (CPS) guidance and Attorney General Guidelines on Disclosure published today (26th May 2022) will block rape victims from accessing vital therapy, campaigners and survivors say.
The CPS guidance increases the likelihood that rape victims’ private therapy notes will be accessed by prosecutors and used to ‘discredit’ them in court, which will deter many women from seeking this life-changing and life-saving support.
Until now, therapy notes were meant to only be disclosed in a criminal investigation when there is a reason to believe they would undermine the prosecution or support the defence. This new guidance will drastically lower the bar – advising that that therapy notes should be secured if it is thought they may be “relevant” to the case.
“Relevant” is an incredibly broad, catch-all term – arguably all therapy notes have the potential to be seen so. Particularly given how the defence operates in cases of sexual offences, where victims’ credibility and conduct is consistently undermined.
The CPS’ decision will dramatically reduce protection and rights to privacy for survivors of rape and sexual violence – many of whom experience severe, wide ranging and long term trauma.
Once a victim is aware that any disclosure they make in counselling could make its way into the criminal justice system, it is clear this will discourage them from having therapy or talking freely with a therapist.
Conflict with case law
The previous CPS position on disclosure of therapy notes was based on the legal case of R v Alibhai . In consultation this was the position they themselves proposed. This case has not been overruled and is still the legal precedent. However the Attorney General has decided that it does not set a “binding standard for what the test should be”. This means the new guidance is more of a political decision than one from the courts. One being implemented to the detriment of survivors.
This guidance arrives at a time when some survivors are waiting up to three years for a trial to take place, and many don’t even reach that stage. The reality facing many survivors is therefore potentially years without therapeutic support, and then being told a year or two down the line that their case is being dropped.
Implications for therapists
This guidance was also meant to provide clarity and direction to therapists who try to create a sense of safety and confidentiality so that survivors can process trauma. The reality of this guidance will mean that therapists may feel it is too risky to offer therapy to survivors who have chosen to report to the police.
When it comes to the police, prosecution and defence intruding on women’s lives by requesting therapy notes, medical, school and social services records, women and girls experiencing other forms of discrimination on the basis of characteristics such as race, disability and migration status, will be most impacted. This is because there may be more notes about them, it is more likely that notes contain prejudice and bias and they are more likely to be scrutinised in a prejudicial and biased way.
Alternative models that protect survivors
Campaigners, survivors and experts in violence against women and girls have today joined together in speaking out against the immense harm the CPS’ decision will cause to survivors.
We are calling for a higher level of confidentiality to be afforded to counselling notes. It can be done: in New South Wales, Australia, the Sexual Assault Communications Privilege law significantly restricts the circumstances in which a disclosure made in the course of therapy or medical setting can enter into the criminal justice system. This is due to the fact that the primary purpose of counselling is not investigative; it is therapeutic. This law is well drafted and finds a middle ground that still allows for disclosure into the justice system, but the threshold is high enough to provide the level of reassurance needed to build victims’ confidence in therapy.
In a statement in response to the guidance on pre-trial therapy, London’s Rape Crisis Expert by Experience Panel said:
“We believe at a time when a person’s world is falling apart, counselling can be a vital part of the recovery process. Being denied counselling or feeling as if obtaining counselling could have a negative impact on criminal proceedings is a very conflicted position to be put in.
The lack of support during this time can lead to high attrition rates within the criminal justice system. We also believe the relationship between a counsellor and client should be sacrosanct for both their sakes and notes taken during sessions should not be available for disclosure.
The practice of defence counsel using a complainant’s own counselling notes against them in court is indescribably painful, perverse and a practice that needs to be urgently re-evaluated.
Confidential counselling is imperative for the welfare and wellbeing of those going through the criminal justice system; it is a lifeline that should be available to all who wish to receive counselling without consequence.
The ability to access safe, effective and confidential counselling should be the right of everyone who has experienced sexual violence.”
Rebecca Hitchen, Head of Policy and Campaigns at the End Violence Against Women Coalition (EVAW) said:
“Once more, we’re seeing systemic misogyny from the CPS, whose inappropriate focus on victim ‘credibility’ is central to the way in which they and other justice agencies make decisions in cases of rape and sexual violence. At every stage of the justice process, rape myths and stereotypes play a major role in whether a case is taken forward or not.
At a time when rape convictions are the lowest on record, we are at a loss to understand why the CPS have opted for a more punitive approach to victims. This is victim-blaming on an institutional level and a serious intrusion into victims’ rights to privacy. Why are we punishing victims of sexual violence rather than perpetrators? Scrutinising therapy notes in a courtroom strips them of their context and sends a message loud and clear that it is survivors who are on trial, rather than the men who raped them.
We cannot understand the motive behind a move which will undoubtedly cause significant additional trauma to women and girls going through the courts while deterring others from accessing support. This guidance has been two decades in the making – it is unacceptable that the CPS have chosen to ignore legal precedent and issue guidance that will prevent survivors from access life saving therapeutic support.”
Jayne Butler, CEO of Rape Crisis England & Wales, said:
“We’re incredibly disappointed by the Crown Prosecution Service’s decision not to make counselling and therapy notes confidential for rape survivors. It goes against the very foundation of counselling; that it is a safe space for a survivor to explore their feelings in confidence. This decision means that once again, survivors are left to choose between seeking justice and seeking support, when they should absolutely have a right to both. With the huge backlog of cases, survivors are being left to cope without specialist support for years on end.
The CPS’ guidance states that requests for counselling notes can be obtained when “deemed relevant” – but this is open to interpretation and has the potential to be misapplied. We know that counselling and therapy is based around feelings and not facts, therefore, we believe it holds no relevance in a criminal case.
Worryingly, this decision means that women and girl’s credibility will remain the focus of Rape and Serious Sexual Offence investigations and dissuade victims and survivors from accessing the vital support they need. Rape is a devastating crime, which has a huge and long-lasting impact on victims and survivors. With so many barriers to justice, the very least the CPS can do is ensure those who have found the strength to take a case to trial are able to do so with specialised support in place. It is their right.
The decision emphasises the need for independent legal representation for all those who report rape, as this will support survivors to navigate the legality of requests for counselling notes and provide survivors with the ability to make informed consent.”
Kate Ellis, Solicitor at the Centre for Women’s Justice, said:
“The Government’s recent ‘End-to-End Rape Review’ has fully accepted that police and prosecutors are making irrelevant or disproportionate requests for confidential records relating to victims – including their therapy records – in the course of criminal investigations. Sadly, we fear that the new guidelines issued today lack the clear and unequivocal protections that victims will need in order to have confidence that they can access (and speak freely in) therapy without that conflicting with the criminal process.
While the CPS’ new Pre-Trial Therapy Guidelines do expressly recognise that victims’ access to therapy should be a priority – which is welcome – they have at the same time removed the strict legal approach that was set out for police and prosecutors in the original draft Pre-Trial Therapy Guidelines on which they consulted two years ago, which said in unequivocal terms that therapy records should only ever be obtained where there was a basis to believe they might assist the Defence.
We are concerned too that the Attorney General’s latest Guidelines on Disclosure, which have also been launched today, are too ambiguous and have the potential to confuse investigators as to the circumstances in which third party material requests are necessary.
All in all, it is our concern that the revised guidelines being published today will not resolve the widespread confusion among criminal justice practitioners about their legal obligations.”
Sinead Geoghegan, Communications Manager, End Violence Against Women Coalition: firstname.lastname@example.org 07960 744 502
Notes to editors
Media spokespeople are available for interview
In interviews as part of research by Olivia Smith (Smith, O., & Daly, E. (2020). Evaluation of the Sexual Violence Complainants’ Advocate Scheme. Newcastle: Office of the Police & Crime Commissioner for Northumbria), survivors highlighted the impact of disclosure of their private therapy notes:
Interview with ‘Emma’: “I had to leave NHS counselling when I reported to the police because I was scared of how my notes could be used in court, particularly because I was there for past issues and for kind of ongoing mental health conditions, conditions and issues with that, and I just worried about how the Defence Team might take that and make me into somebody who’s not believable… There’s some days where like, you don’t feel like it happened to you, and you deserve to be able to talk about that and how it affects you, like, you have a lot of imposter syndrome. And when people ask you for your statement over and over about something that traumatic, you start to detach from it. And it starts to not feel as real. And that’s very hard to explain to people who haven’t been through it. So when people hear those statements like, ‘sometimes I feel like it didn’t even happen’. That’ll be a point against me, when in reality, it’s just part of the lived experience of trauma…. And like I just I I felt it just felt like another way for the system, like not even the system but just like it just felt like another way for my ex and my perpetrator to violate me. And I was like, I don’t want them, I don’t want him and his defence team to see my therapy notes about what this did to me. I want to pretend I’m okay.
Interview with anonymous survivor: “Really hard and traumatic experience. Also didn’t like that I couldn’t access full counselling while the investigation was ongoing and that they needed access to all my medical and counselling records. Felt like my issues were to be used against me… In the end, my own sanity and mental health came above any sort of justice I could have ever got.”
The previous guidance to prosecutors on disclosure of pre-trial therapy notes was from 2002. Work has been going on for many years to update it as the existing version was criticised as being unclear and creating confusion for both therapists and survivors. There were concerns about the extent to which existing guidance may discourage victims from undergoing therapy in advance of a criminal trial and the regularity with which therapy notes and other forms of third party material are requested by police investigators and the prosecution team at the CPS.
The 2018 Victim Strategy identified that “some victims are discouraged from obtaining therapy” as a key issue impacting vulnerable victims during the court process and identified an action to “encourage take up of pre-trial therapy by launching new guidance and toolkit for prosecutors and therapists”.
CPS RASSO legal guidance from 2021 sets out a more restrictive approach to reasonable lines of enquiry: “In R v Alibhai  EWCA Crim 681, the Court of Appeal held that before material is obtained from a third party, there must be suspicion on the part of the investigator, disclosure officer or prosecutor that the material or information might be disclosable. Therefore, before obtaining third party material it must be concluded that the third party not only has potentially relevant material but that the material is not neutral or damaging to the defendant but damaging to the prosecution or of assistance to the defendants. Furthermore, R v Alibhai states that even if there is the necessary suspicion, the prosecutor is not under an absolute obligation to secure the material or information from the third party. The prosecutor has a “margin of consideration” as to what steps to take in any particular case.”
Issues Raised by Information Commissioner’s Office in consultation: “In relation to the disclosure of therapy notes to a prosecutor, your guidance could be clearer in stating that the therapy provider should feel confident in challenging the prosecutor to be explicit regarding their lawful basis for requesting disclosure of the records and their demonstration of why this is strictly necessary, in order that the therapist is able to conduct they own assessment of substantial public interest….The request should be specific (e.g. spanning a specific time period and related to a particular issue) rather than general, and prosecutors must be able to demonstrate the relevance of their specific enquiries. Police should not simply be allowed to speculatively browse patient files in order to decide whether anything might be of interest. Decisions regarding sharing data should be justified and documented.”