High Court refuses post-conviction appeals by three men convicted of abduction and rape



Lord Carloway
Lord Carloway

The High Court of Justiciary has refused three appeals on behalf of men convicted of abduction and rape based on advances in medical science after their cases were referred to the court by the Scottish Criminal Cases Review Commission.

Brian Meighan, Kevin Kane, and David Pugh each received a custodial disposal of 6 years for their part in the offences, which they had each completed by the time of the reference. The SCCRC referred the case on the basis that new evidence concerning genital injuries that was not heard at the original trial proceedings undermined testimony that had been given by a police surgeon who had examined the complainer.

The appeals were heard by the Lord Justice General, Lord Carloway, sitting with Lord Woolman and Lord Pentland.

Great deal of pain

The three appellants were convicted of raping the complainer, then aged 20, in a block of flats in Little France, Edinburgh, in 1999. She had entered the flat the appellants were in on the erroneous impression that a friend she was looking for was inside and was grabbed and then raped by the appellants while she was attempting to leave. She was able to leave the flat at around 2:30am and with the help of a friend secured assistance from two police officers who were in the block at the time.

Two police surgeons examined the complainer at around 7:15am. They noted that she was in a great deal of pain in both her vagina and anus and found traces of semen and several injuries to her external and internal genitalia. At trial, one of the surgeons who examined the complainer, Dr Hiremath, gave evidence that her injuries gave rise to an inference that forceful intercourse had taken place.

The appellants testified that the sexual activity had been consensual, with counsel for the second appellant in particular taking the view that the light build of the complainer meant she would have bruised more easily. The trial judge subsequently directed the jury that the testimony of the complainer could be corroborated either from her distressed state when she returned to her flat or from the evidence of her injuries.

The new evidence led by the SCCRC came from a forensic pathologist, Dr Astrup, a consultant gynaecologist, Prof Shaxted, and a forensic nurse, Ms Malmgren. The combined effect of their evidence was a contention that developments in medical science since the trial meant that genital injuries could not be used as a basis for expressing an opinion on whether sexual intercourse had been consensual.

It was submitted for the appellants that medical publications since 2000 had clearly demonstrated that, while genital injuries were more prevalent in women reporting non-consensual sexual activities, they did not per se support an allegation of rape. Had this information been available at trial it would have had a considerable impact on the jury’s decision due to the doubt it cast on the scientific evidence relied upon by the Crown.

Neither surprising nor novel

Delivering the opinion of the court, Lord Carloway said of the new evidence generally: “In so far as the new evidence contains references to papers which have been published since the trial, there is little difficulty in accepting that it would not have been possible to lead evidence about them.”

However, he went on to say: “The purpose of the new evidence, put at its highest, is to demonstrate that the existence of genital injuries, at least per se, is of no assistance to a determination of whether sexual intercourse was consensual or not. Where substantially the same evidence was available from other experts at the time of the trial, the new material cannot qualify as evidence for which there is a reasonable explanation for it not being adduced at that time.”

Explaining the court’s reasoning for this view further, he said: “Testimony of a substantially similar nature could have been adduced at the trial. The fundamental proposition that injuries cannot of themselves prove whether sexual intercourse was consensual or non-consensual is neither surprising nor novel, as is demonstrated by the cross-examination of Dr Hiremath on the issue.”

Assessing Dr Hiremath’s trial evidence in more detail, Lord Carloway said: “The evidence given at the trial by Dr Hiremath should be looked at as a whole. She described the pain which the complainer was in some five hours after the incident; the pain emanating from her vagina and anus, such that she was finding it painful both to walk and to sit down.”

He continued: “It is simply not an answer to Dr Hiremath’s account of the extreme pain in which the complainer appeared to be, to say that pain is an immeasurable and subjective phenomenon. There was, and is, no basis upon which to suggest that the pain was other than genuine and accurately reported. Dr Hiremath’s evidence on this aspect was an important element in the overall assessment of the complainer’s account.”

Lord Carloway concluded: “The court does not consider that the research into genital injuries involves a significant development in medical science. If anything, it confirms Dr Hiremath’s testimony at trial. The research may be new, but the facts are not. When they are seen against the background of the other evidence in the case, the court does not consider that the new material is of such significance that its absence at the trial must be regarded as having produced a miscarriage of justice.”

For these reasons, the appeals were refused.

Representation: 

First appellant: J Scott QC (sol adv), J Mulgrew (sol adv) 

Second appellant: Mackintosh QC, Hay; John Pryde & Co SSC  

Third appellant: A Ogg (sol adv) 

Respondent: Prentice QC (sol adv)  

© Scottish Legal News Ltd 2021



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