Scottish Court of Session Decisions

"92(1) ... no part of a trial shall take place outwith the presence of the

accused.

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194A(i) There shall be established a body corporate to be known as the

Scottish Criminal Cases Review Commission (in this Act referred to

as 'the Commission').

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194B(i) The Commission on the consideration of any conviction of a

person... who has been convicted on indictment... may, if they think

fit, at any time, and whether or not an appeal against such conviction... has previously been heard and determined by the High Court, refer the whole case to the High Court and the case shall be heard and determined... as if it were an appeal under Part VIII... of this Act.

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194C The grounds upon which the Commission may refer a case to the High

Court are that they believe ―

(a) that a miscarriage of justice may have occurred; and

(b) that it is in the interests of justice that a reference should be made.

194D(i) A reference of a conviction... may be made under section 194B of

this Act whether or not an application has been made by or on behalf of the person to whom it relates.

(ii) In considering whether to make a reference the Commission shall have regard to ―

(a) any application or representations made to the Commission by or on behalf of the person to whom it relates;

(b) any other representations made to the Commission in relation to it; and

(c) any other matters which appear to the Commission to be relevant.

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(v) In every case in which ―

(a) an application has been made to the Commission by or on behalf of any person for the reference by them of any conviction...; but

(b) the Commission decide not to make a reference of the conviction...,

they shall give a statement of the reasons for their decision to the person who made the application.

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194F The Commission may take any steps which they consider appropriate for assisting them in the exercise of any of their functions and may, in particular ―

(a) themselves undertake inquiries and obtain statements, opinions or reports; ..."

The respondents' investigatory powers further include the power to request precognitions on oath (section 194H), and a wide-ranging power to obtain documents (section 194I).

The trial

(a) On the evening in question the complainer had been drinking vodka with

friends in a flat on the fourteenth floor of a multi-storey block at Little France House, Craigour Place, Edinburgh. All were under the influence of alcohol. In the early hours, following a telephone conversation with an ex-girlfriend, a boy named SB became upset, left the flat and ran downstairs towards ground level. For some reason the complainer followed him, but when she reached the main entrance on the ground floor he had disappeared, and she was unable to see him in the street.

(b) Shortly thereafter, she became involved in a conversation with one or more of

the petitioners, who were in a flat on the third floor of the same building. She did not know any of them. Originally, she thought that this conversation had taken place when she was out on the pavement in front of the flats; that she had seen someone at the window at that time; and that the entrance door to the building had by then closed and locked behind her. However, when confronted with the relevant CCTV footage, she accepted that (contrary to her recollection) the door had not in fact closed behind her, and that she may not have gone out quite as far as the pavement.

(c) Importantly, the complainer came to accept that (as shown by the CCTV

footage) she had buzzed for entry to the third-floor flat at a time when she was holding the main entrance door open, and thus had no need to buzz for entry at all. She also accepted (again on the basis of the CCTV footage) that after coming up in the lift she had voluntarily walked into the flat on the third floor despite knowing no-one who lived there. Her only explanation for this behaviour in the early hours of the morning was that, in the shouted conversation when she was outside the entrance to the flats, one or more of the petitioners had led her to believe that SB was with them in the flat.

(d) The rape of which the petitioners were convicted took place soon after the

complainer realised that SB was not in the flat and tried to leave. By that time, on her own admission, the conversation had turned from football to sex, and she herself had spoken of her experiences and fantasies. As she went to leave the flat, however, all three petitioners prevented her from doing so, and began to touch her all over with their hands. She was pushed into a bedroom, undressed from the waist down, and forced face-down over a bed. She was then subjected to a sustained sexual assault, in the course of which one or more of the petitioners had vaginal, anal and oral sex with her. According to her, she cried and pleaded with them to stop, making it clear that she did not want this, and struggled to some extent. However, the three petitioners easily overcame her resistance, and in any event she was too frightened of what might happen to do more than she did.

(e) When her ordeal was over, the complainer hurriedly dressed and rushed

upstairs to the flat on the fourteenth floor where her friends, and her 2-year-old child, were waiting. The general tenor of her friends' evidence was to the effect that she arrived in a dishevelled and highly distressed state; that she appeared frightened; and that she was apparently unable to sit down on account of pain in her back passage. She was also upset because she would not normally have had unprotected sex. For some time she remained crouched in a corner, with her hands over her face, but eventually she disclosed that she had been attacked, asking 'How could it happen to me?'

(f) The police were called without delay, and after making a rape allegation the

complainer was taken to St Leonard's Police Station where she was medically examined by a police surgeon. While she had only a few external bruises, mainly on her back, and none visible on her arms, legs or mouth, it was clear that she was in a great deal of pain and was unable to sit or walk. In confirming this, one police officer described her as pale, shaken and dazed, and another gave evidence that, in the flat, she had been crying, out of control, very upset, very distressed and appearing to be traumatised. On genital examination the complainer's labia minora were very swollen and very red, especially near the posterior fourchette. There were three or four superficial mucosal tears on the left side of the remnants of the hymen, which were not of a kind commonly seen in a sexually active woman. In addition, there was bleeding at the outside of the complainer's anus, with further bleeding inside and, at the 12 o'clock position, a superficial tear. According to the police surgeon, these findings indicated that the complainer had been the victim of a sexual assault in which significant force had been used. These were blunt force injuries, consistent with penile penetration, and the inevitable pain (even if dulled by alcohol) would have been so severe as to make consensual sex highly unlikely. Moreover, in the view of the police surgeon, there was no reason why the natural lubrication of the complainer's vagina should have been abnormally depressed, so as to render her liable to excess friction and consequent injury in the course of consensual sex. In the police surgeon's experience, this was among the worst cases that she had seen.

(g) Subsequent forensic tests disclosed traces of semen in the complainer's

vagina, mouth and anus. DNA profiles obtained from the vagina and anus matched one of the petitioners, but not the other two. The semen in her saliva was insufficient to provide a profile.

(h) The complainer's credibility and reliability were severely shaken by the fact

that, both to her friends and to the police, she initially gave a graphic account of being seized by strangers, and subjected to a serious sexual assault involving vaginal and anal penetration, on the stairs of the multi-storey flats as she made her way back up towards the flat on the fourteenth floor. At that time, she made no mention of entering the petitioners' flat on the third floor, nor of any prior conversation with the men who attacked her.

(i) Against that background, the complainer's apparent uncertainty as to where

she had been when the initial conversation with the petitioners took place might have assumed some real significance had it not been for the evidence of at least two of the petitioners confirming (i) that they had heard her shouting for SB downstairs; and (ii) that she had indeed had a conversation with one or more of them at the window before coming up to the flat.

(j) When re-interviewed by the police a few days later, the complainer stated that

her previous account of having been attacked and raped on the stairs by strangers was untrue, and proceeded to give an account which broadly coincided with her evidence in court.

(k) For their part, the petitioners gave evidence (both in police interviews and at

the trial) to the effect that the complainer had voluntarily entered the flat after a shouted conversation with one or more of them at the window. Having entered the flat, she had willingly participated in a sexually-explicit conversation, talking about her experiences and fantasies, and had made it clear that she was interested in having sex. She had led the way into the bedroom, and after undressing had intimately touched all three of the petitioners and performed various sexual acts. Subject to a suggestion in court that one of the petitioners had had difficulty in getting an erection, the petitioners respectively admitted having vaginal and anal, anal and oral, and oral and vaginal, sex with the complainer before she left the flat in a happy and friendly state. According to all three petitioners, the complainer had been a willing and active participant in everything that went on.

The issues before the respondents

(a) The first witness (SB) described how, approximately one week after the incident, the complainer admitted that she had made false allegations of rape in order to obtain money and attention. However, the witness could not recall the "two or three others" who were also present at the time, nor could he explain why he had never mentioned this before when interviewed by the police, and when he was listed as a Crown witness for the trial.

(b) The second witness (DF) stated that, at about the same time, the complainer at a party confided that she had had consensual sex with one boy only, and had alleged rape in order to secure money from the Criminal Injuries Compensation Board. According to this witness, SB was one of those present at the time, along with three others, namely LM, RN and SC. However, when LM and RN were interviewed, they denied hearing the complainer make any such admission, and maintained that the only apparent retraction she ever made was as a result of threats and violence towards her by SC at their house. SC was, on 14 March 2000 convicted of assaulting the complainer in an attempt to get her to change her story before the trial. In addition, DF could not satisfactorily explain why she had taken no steps to draw this conversation to the attention of the authorities at any earlier stage.

(c) The third witness, (CS) stated that at an unspecified date in 2000 or 2001, somewhere in Princes Street, Edinburgh, the complainer volunteered that she had made false allegations of rape against two boys. According to her, she had wanted to drop the charges, but had been prevented from doing so by the police. The complainer further stated that she had made the allegations "for a laugh". CS's friend JC had been present at the time, but apparently had no recollection of the conversation. All three girls had been drinking, and CS herself was drunk.

(d) The fourth witness (DD), in an undated precognition, maintained that in the days following the incident the complainer was not at all distressed, and had admitted that she was not raped. Again this witness was unable to explain why he took no steps to bring this conversation to the attention of the authorities prior to the trial, in circumstances where he was friendly with several individuals who he knew were to be Crown witnesses.

(e) As recorded in paragraph 7 of the respondents' supplementary Statement of Reasons, no. 7/2 of process, these fresh allegations were put to the complainer herself, who denied making the statements attributed to her.

The respondents' decision

Submissions for the respondents

"We are not sitting as a court of appeal but as a court of review, and it is no part of our duty to decide whether the Commission's conclusion was right or wrong but only whether it was lawful or unlawful. We are clearly of opinion that it was not irrational. Nor was it vitiated by legal misdirection. That does not mean that we would unreservedly indorse every legal observation the Commission made... It is not, however, in our judgment appropriate to subject the Commission's reasons to a rigorous audit to establish that they were not open to legal criticism. The real test must be to ask whether the reasons given by the Commission betray, to a significant extent, any of the defects which entitle a court of review to interfere. In our judgment the criticisms made of the reasons given by the Commission do not entitle this court to do so."

"The Commission must thereafter determine, taking account of any relevant statutory directions and case law..., whether it is satisfied that a miscarriage of justice may have occurred."

As demonstrated by cases such as Crombie v Clark 2001 S.L.T. 635 and Harper v HMA, supra, the respondents' conception of what might constitute a miscarriage of justice was not narrower, but considerably wider, than what would necessarily be expected to succeed before the court on appeal.

In my view this case must be approached on the footing that it is only the respondents' treatment of the petitioners' applications that is under review. Accordingly, the terms of the annual report, and of any other published literature which may be thought to reflect the respondents' views, are relevant only to the extent that they bear upon such review.

"The Commission must thereafter determine, taking account of any relevant statutory directions and case law,... whether it is satisfied that a miscarriage of justice may have occurred."