HMA v Paul McMillan 2019

A complainer has successfully argued at the High Court it was incorrect to recover her medical records in the proceedings of a rape trial of a former partner. The records were sought by the accused in order to note the position of any “mental health problems” the compaliner had. The High Court ruled that the application was a “fishing” expedition.

The accused’s petition for commission and diligence seeking to recover medical records was originally granted. This was on the basis that her creditability could be undermined and they required these. The complainer lodged an appeal to the Nobile officium successfully to challenge this being granted. Mr McMillan’s trial concluded in 2019 which he was found guilty of three rape charges. Lord Turnbull stated in concluding the appeal: “If a complainer has a right to be heard in proceedings for recovery of her medical records, as JC was, then it seems to us to be logical that she would be entitled to challenge the decision arrived at.

No method of appeal is available to JC. Accordingly, we were prepared to proceed upon the understanding that the present petition to the nobile officium was competent. In the present case the basis upon which the accused 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. The purpose to which the records were to be put was the undermining of her credibility and reliability.” He continued: “The first instance judge was presented with no medical opinion and appears to have been invited to proceed upon the proposition that mental illness of any nature equated to a propensity to lie or fantasise. In our opinion, the averments in the petition for commission and diligence provide no basis upon which an order of the sort requested could have been granted. In our opinion the circumstances as explained by the first instance judge constitute a description of a fishing diligence.”