Victim and Witness Rights

Section 12: Privacy and home

Section 12 of the HR Act says that:
Everyone has the right;
(a) not to have his or her privacy, family, home correspondence interfered with unlawfully or arbitrarily; and
(b) not to have his or her reputation unlawfully attacked.

This right includes a right not to have one’s privacy, family, home or correspondence interfered with unlawfully or arbitrarily. Private life includes privacy, personal choices, relationships, physical and mental well-being, and access to personal information. Generally this right has been interpreted as the right to live free from
interference, and so includes the right to autonomy.

Arbitrary interference in the right to privacy is interference that may be lawful, but is unreasonable, unnecessary and the degree of interference is not proportionate to the need.

Investigation Stage
Some relevant considerations for victims when considering the concept of the right to privacy and home during the investigation stage would include:

  • Taking measures to protect the privacy of a victim to ensure that information is not unnecessarily given to other parties involved in the investigation [Victims of Crime Act 1994, s 4(I)].

Example: Police prepare a brief of evidence for a criminal investigation and provide it to the DPP. The DPP serve this material on the defendant. These documents need to be carefully reviewed and any personal information about a victim or witness (such as home address) should be redacted if this information is provided to the person who is alleged to have committed the offence.

Court stage
Some relevant considerations for victims when considering the concept of the right to privacy and home during the court stage would include:

  • when considering subpoenas for the health records of victims. Only the records that are directly relevant to the proceedings, not the entire medical history of the victim, should be able to be subject to a subpoena requiring the production of documents. This could also include a right that persons with sufficient interest be notified of any subpoena issued; and
  • suppression of the victim’s name may be a relevant consideration if the person is vulnerable or does not wish to be identified.

Example: A criminal defence team issue a subpoena requiring the production of the entire health record of the victim from a medical practitioner. The victim was unaware that their personal medical records had been subpoenaed. The entire medical file, which detailed childhood sexual abuse, suicidal thoughts, and major depression was provided to all the parties without the victim’s knowledge.

A human rights approach would require the party seeking the subpoena and/or the Court to notify the person that their personal records were being subpoenaed, and provide them with first access to inspect the documents.

The prosecution could also support this right by notifying the victim of the documentation that has been subpoenaed, and either making the application themselves, or advising the victim how they can go about challenging the subpoena.

Case example (right to privacy and from torture and inhuman treatment)
The Republic of Moldova’s failure to adequately protect a woman and her two daughters from a husband’s attacks amounted to a breach of the European Convention on Human Rights. The woman and her daughters had been victims of domestic violence for at least 10 years when she began reporting assaults to the police.

After the fifth assault she took out a protection order, which was never enforced and that was breached on a number of occasions. The police pressured the applicant to drop her criminal complaint against her husband. The prosecutor decided not to initiate a criminal investigation. Social workers advised her to reconcile with her husband.

Criminal charges were finally laid with the husband admitting he physically and psychologically abused his wife and daughters. A plea bargain was entered into with the prosecutor defining the offence as “a less serious offence” and suspending the investigation. An appeal was unsuccessful with the senior prosecutor holding that suspending the investigation would afford better protection to the applicants.

The court held that the failure of the system to provide an adequate response to serious domestic violence amounted to a breach of obligations regarding respect for private life, and gender discrimination.

Source: Eremia v Republic of Moldova [2013] ECHR, Application no. 3564/11 (28 May 2013).