The SCCRC believes there may have been a miscarriage of justice in the case of David Sutherland Pugh, Kevin James Kane and Brian James Meighan, who were jailed for six years after being found guilty of a gang rape in Edinburgh in 1999.

The Crown’s case against the men included reliance upon evidence of a forensic medical examiner in respect of injuries to the complainer. All the applicants gave evidence that the sexual activity engaged in with the complainer was consensual.

The applicants appealed against their convictions and appeal was refused by the High Court of Justiciary in June 2002. The applicants applied to the Commission in 2004. The Commission decided not to refer their case to the High Court of Justiciary as it did not consider that the grounds submitted to it met that the test that a miscarriage of justice may have occurred. The applicants subsequently sought to judicially review the Commissions’ decisions. The petition for judicial review was dismissed in the Outer House in July 2006.

In April 2019, Mr Pugh applied again to the Commission, relying upon fresh evidence in the form of three expert reports which refuted the opinion evidence given by the forensic medical examiner at trial. Given the grounds to be reviewed were common to the co-accused, the Commission wrote to them to ask if they wished to make applications to have their convictions reviewed. They both applied in September 2020.

The Commission has decided to refer the applicants’ convictions to the High Court of Justiciary. The Commission considers that the fresh evidence now available, which arises from research and developments in medical science since the time of the original conviction, is of a kind and quality which was likely to have been of material assistance to the jury in its consideration of the critical issue of consent and there may have been a miscarriage of justice.