On 10 March, the government announced the launch of a new national independent legal advisers (ILA) service for rape complainants and the expansion of Operation Soteria into the courtroom.
The government claims that, through these initiatives, ‘rape victims will have access to dedicated legal advice throughout the criminal justice process. A related project will look to shift the focus of rape court cases from the victim to the perpetrator’.
People under investigation or awaiting trial in rape cases are entitled to the same presumption of innocence that applies to all those accused of crimes. Describing individuals who have not been convicted of any offence as ‘perpetrators’ risks distracting from this important principle. The intention behind the service is to help complainants understand their rights and to challenge unnecessary requests for personal information, such as counselling records, medical history or mobile phone data.
Requests for (and disclosure of) confidential medical and counselling records of complainants have long been an area of contention. A request for access to personal records engages the right to privacy under Article 8 of the European Convention on Human Rights (ECHR). However, the complainant’s right to privacy must be balanced against the right of the accused to a fair trial, guaranteed by Article 6. Fulfilling disclosure obligations is an important aspect of ensuring a fair trial. Therefore, during the course of an investigation, the investigator or prosecutor may decide that it is necessary to request and/or process personal or private information from a complainant to pursue a reasonable line of enquiry.
Disclosure is governed by the Criminal Procedure and Investigations Act 1996 (CPIA) and the CPIA Code of Practice. The Attorney General’s Guidelines on the application of the disclosure regime state that, where there is a conflict between privacy and fair trial rights, the right to a fair trial is absolute. Where prosecutors and investigators work within the CPIA framework, any unavoidable intrusion into privacy rights is likely to be justified, so long as it is necessary, proportionate and in accordance with the Data Protection Act 2018.
Investigators must pursue all reasonable lines of enquiry, whether these point towards or away from a suspect. What amounts to a reasonable line of enquiry will always involve considering all the facts and issues in the case, including any defence raised. The CPIA code states that material may be relevant to an investigation if it appears to an investigator, or to the officer in charge of an investigation, or to the disclosure officer, that it has some bearing on any offence under investigation or any person being investigated, or on the surrounding circumstances of the case, unless it is incapable of having any impact on the case.
Under section 44A of the Police, Crime, Sentencing and Courts Act 2022, requests for victim information held by third parties may be made only when an investigator has reason to believe it is relevant to a reasonable line of enquiry and necessary and proportionate. Requests for certain counselling records relating to psychological, therapeutic or emotional support aimed at improving a victim’s emotional, psychological and mental health may be made only if the investigator has reason to believe that the information sought is likely to have substantial probative value to a reasonable line of enquiry.
The 2026 Victim Information Requests Code of Practice requires a properly identifiable foundation for any enquiry, not mere conjecture or speculation (paragraph 72). It starts with the presumption that requests for counselling information are not necessary and proportionate (83). Paragraphs 86-93 set out the factors for assessing substantial probative value. These include whether the information has the potential to substantially contribute to establishing or refuting critical facts of the investigation or might reasonably be considered capable of undermining the case against the accused, or of assisting the case for the accused.
Phone data is another area where rights under articles 8 and 10 are engaged. Often, a key area of dispute in rape investigations and trials is whether the complainant consented and whether the accused had a reasonable belief in consent. Where the accused person asserts that the complainant consented or that they reasonably believed there to be consent, it will be important to investigate all the surrounding circumstances. This may include a review of relevant digital material, including messages between the complainant and the accused or comments made by either of them to other people before or after the events in question.
ILAs supporting complainants will need to have disclosure principles in mind when advising their clients. While rigorously upholding their client’s Article 8 rights, they will need to be alive to the potential impact of non-disclosure on the fair trial rights of the accused. Defence lawyers will need to ensure that all material that may assist their client’s defence is sought, if necessary, by making an application to the court. They will need to be ready to explain to investigators and, if necessary, the court why third-party material such as medical or counselling records is likely to contain important evidence, indispensable in the particular circumstances of their client’s case.
The government states that complainants’ access to legal advice will endure throughout the criminal justice process. During investigation and before trial, ILAs will need to be careful to avoid crossing over into coaching witnesses. This is unlawful and can fundamentally undermine the proceedings. Solicitors and barristers have professional obligations to the court as well as their clients. It is not clear what qualifications ILAs will be expected to have or how ILAs will be recruited, trained or regulated. It will be vital for these issues to be addressed before the service is launched.
Katie Wheatley is a partner and head of crime at Bindmans, London
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