Scottish Court of Session Decisions

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Cite as: [2017] ScotCS CSIH_72, 2018 SC 171, 2018 SCLR 352, [2017] CSIH 72, 2017 SLT 1311, 2017 GWD 39-596

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SECOND DIVISION, INNER HOUSE, COURT OF SESSION

Lord Justice Clerk

Lady Clark of Calton

Lord Malcolm

OPINION OF THE COURT

[2017] CSIH 72

PD2514/13

delivered by LADY DORRIAN, the LORD JUSTICE CLERK

in the reclaiming motion

against

Pursuer and Respondent

(1) DG and (2) DR

Defenders and Reclaimers

Pursuer and Respondent: Di Rollo QC, Ross; Drummond Miller LLP

First Defender and Reclaimer: Bain, QC, L Thomson; TLT LLP

Second Defender and Reclaimer: O’Rourke, QC, Edward; Thorley Stephenson

28 November 2017

Introduction

[1] This is a civil action in which the pursuer and respondent seeks damages from the

defenders and reclaimers in respect of their having committed the common law wrongs of

sexual assault and rape against her. The respondent raised the action after a full police

investigation resulted in no prosecution. The reclaimers accept that sexual intercourse took

place but maintain that it was consensual. Quantum of damages was agreed between the

parties and, after proof on liability, the Lord Ordinary found in favour of the respondent in

an opinion dated 17 January 2017. In particular, the Lord Ordinary held that in the early

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hours of 2 January 2011 at an address in Armadale each reclaimer raped the respondent in

circumstances in which by reason of excessive consumption of alcohol she was incapable of

consenting and that the reclaimers had no legitimate belief, whether reasonable or honest,

that she was consenting. This is a reclaiming motion against that decision.

The issues

[2] Originally, five grounds of appeal were tabled, but the reclaimers did not insist in the

first, second or fifth grounds, leaving two grounds, namely:

3. Whether the Lord Ordinary erred in his treatment of the witness, Mr Clifford

Wilson, who lived in the flat upstairs from that in which the events in question were

said to have occurred;

4. Whether, by failing to give adequate weight to the CCTV evidence at about

0230 the Lord Ordinary erred in his assessment of the extent to which the

respondent’s degree of intoxication would have been apparent to the reclaimers, and

in his conclusion that the reclaimers did not have an honest or reasonable belief in

her consent. In this respect it is also asserted of the first reclaimer that the

Lord Ordinary erred in failing to differentiate between the reclaimers: there being no

evidence that the second reclaimer was a witness to the seriously drunken “off

camera” behaviour spoken to by Gail McGregor.

It was a feature of both these grounds of appeal that they did not specify what the

consequence of these alleged errors of assessment were said to be, or in what way they were

said to impact on the Lord Ordinary’s approach to the evidence generally, undermine his

findings in fact or vitiate his conclusions.

Background

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[3] The evidence was narrated in some detail by the Lord Ordinary and we will not

therefore repeat it here. The basic circumstances of the case were that the respondent and

her friend, Rachel Carrigan, had gone out together for the evening at about 2045 on

1 January 2011. They went to two public houses, then a nightclub, all in Bathgate. In the

second public house, the Glenmavis Tavern, they met the reclaimers, one of whom they

knew from school. They thereafter spent some considerable time in company together, the

second reclaimer in particular drinking, chatting and dancing with the respondent, and the

first reclaimer with Ms Carrigan. All four ended up in Chalmers nightclub. In the

nightclub, one of the reclaimers obtained the key to a flat in Armadale from a witness, Brian

Hutton. His sister occupied the flat but was on holiday. In her absence he had been staying

there but was not using it that night. It was the intention, or anticipation, of both reclaimers

that they, the respondent, and Ms Carrigan would go to that flat after the nightclub. The

first reclaimer said he did not know what they were to do there; the second reclaimer

candidly acknowledged that he was anticipating that the two couples would have sex.

[4] During the course of the evening, the respondent drank a half can of lager, 8 or 9 Jack

Daniels and coke, and 2 Jaegerbombs. Ms Carrigan and other friends and acquaintances

described her intoxicated condition as the night wore on. Three of the stewards also

described her intoxicated condition. This evidence is referred to in more detail below. Some

of the evening’s events were captured on CCTV, at both the Glenmavis Tavern and

Chalmers. In due course Ms Carrigan did not go to Armadale. She asked the respondent if

she wanted to remain with her, but the respondent went to Armadale in a taxi with both

reclaimers, sometime about 0230. She maintained that at the flat she was raped by both of

them. For their part, the reclaimers both admitted having intercourse with the respondent,

but maintained that this was consensual. The second reclaimer raised in his pleadings, the

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question of whether either of the reclaimers had a reasonable belief that the respondent was

consenting. The issue of whether either reclaimer had a reasonable or honest belief was

explored in evidence. By the time of the reclaiming motion parties were agreed that the law

of rape is now as defined in statute, which requires an absence of reasonable belief in

consent, and that it was for the respondent to establish that the statutory definition had been

met. The flat had two bedrooms, a child’s room and an adult’s room. It seems that the

parties, or at least some of them, including the respondent were at some stage in each of the

rooms. However, the sexual intercourse took place only in the child’s room. Both

reclaimers said that sexual activity commenced with the second reclaimer, in the child’s

room, the first reclaimer then came in, the respondent was content for him to be there and

indeed started sexual activity with him whilst having intercourse with the second reclaimer.

The second reclaimer left the room after a while, then left the flat, leaving the respondent

and first reclaimer who proceeded to have intercourse.

[5] The respondent had no recollection of events from shortly after her arrival at the

Glenmavis Tavern. Her next recollection was waking up to find herself in a strange house

she did not recognise. She was naked and could not find her clothes. She spoke by phone to

her mother and brother but could not tell them where she was. She found some clothing

and went outside in search of help. There was a woman at the window of an upstairs flat

but she closed her window and did not respond to the respondent. Eventually she gained

assistance from two carers who were passing on the way to work.

[6] There was expert evidence as to (i) the respondent’s blood/alcohol level at 1315 on

2 January 2011 (she had last eaten at 1530 the previous day); (ii) what her blood/alcohol level

was likely to have been at 0300 and 0440 on 2 January, based on a back calculation made

from the known level at 1315; and (iii) what was described as a “forward” calculation,

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assessing what her likely blood/alcohol levels would have been at these times based on her

known alcohol consumption. These were broadly consistent with one another, and placed

the respondent in the “severe/potentially fatal” category of intoxication. There was expert

evidence as to how someone of the respondent’s age, size and gender, relatively unused to

alcohol (as the respondent was, on the evidence), and with an average metabolism, would

be likely to present to others when intoxicated to such a degree.

[7] The Lord Ordinary concluded that the respondent had been intoxicated to a degree

that she was incapable of giving consent; that her condition was such that this would be

obvious and manifest to both reclaimers; and that in light of that neither of them could have

had a reasonable belief that she was consenting, in the sense of giving free agreement to

intercourse.

[8] Evidence relevant to ground of appeal 3 was given by Brian Hutton and Clifford

Wilson. The former gave evidence that in his sister’s absence he had been staying in her flat.

Having been out on Hogmanay, he had returned about 0700 and remained there until about

1300. During the time when he was in the flat he had sex with a female companion in both

bedrooms.

[9] Clifford Wilson resided in the flat directly above that of Hutton’s sister. His

bedroom was directly above the adult bedroom of that flat. The CCTV evidence to which

ground of appeal 4 relates depicted some events showing the respondent at both the

Glenmavis Tavern and Chalmers. This is referred to in more detail below.

The Lord Ordinary’s decision

[10] The Lord Ordinary, having correctly noted, in his summary of the evidence, what

Wilson claimed to have overheard, referred in the assessment section of his opinion to the

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phrases as having been “don’t rub my breasts so hard” and “don’t come inside me – I don’t

want another baby”. In fact the second of these was what the second reclaimer reported the

respondent as saying. The Lord Ordinary considered that Clifford Wilson’s “evidence was

sufficiently confused that little reliance ought to be placed on it” (para 326). Whilst his

evidence of seeing a man staggering outside the flat and of a woman standing at the gate

later that morning asking “where am I” were consistent with other evidence, the

Lord Ordinary “did not consider it appropriate to ascribe what he heard otherwise

specifically to the events involving the parties to this action, rather than the events which

involved Brian Hutton and his sexual partner during the morning of 1 January 2011”. The

Lord Ordinary went on to say that he came to this view because:

“(1) Brian Hutton’s evidence was that on the previous night he had engaged in

sexual activity in both bedrooms in the flat; (2) the child’s bedroom, in which the

events concerning the parties took place, was not the bedroom directly under that of

Mr Wilson, from which, on his evidence, he could hear the sounds he described; (3)

Mr Wilson, when giving a police statement, specifically identified the male voice

which he heard as being that of Brian Hutton; and (4) the female voice which he

heard in the morning saying “wake up, cos I’ll have to go” and “could you let me

out” could not have been that of the respondent, who was alone in the flat when she

awoke.”

In conclusion, he said:

“[328] In these circumstances I do not think it possible, on the balance of

probabilities, to ascribe what Mr Wilson heard, with any appropriate degree of

certainty, to the central events at issue in this case. Other than the sightings by him

which I have identified, I have not therefore taken his evidence into account.”

In relation to the CCTV evidence the Lord Ordinary observed that:

“[276] Some time was spent with a number of witnesses, examining the available

cctv footage which depicted the respondent at various times over the evening of

1 January 2011. As a matter of generality, she was depicted throughout as

intoxicated.

[277] That is apparent where she is seen leaving the Glenmavis Tavern, and when

together with the second reclaimer outside it, in the middle of the road and then on

the pavement. It is also apparent when she is captured entering Chalmers nightclub.

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She appears to stumble in her attempt to reach for a handrail at the entrance, and is

uncoordinated in the reception foyer to the extent that she is seen to drop an item

three times within the space of a minute or two. She appeared to be intoxicated

when leaving Chalmers nightclub.”

[11] The grounds of appeal state that the Lord Ordinary gave inadequate weight to part

of the CCTV footage where the respondent is said to have walked “unaided and without

any apparent difficulty”. This reflects a submission to that effect which had been made to

the Lord Ordinary, and in respect of which he stated:

“[278] These passages depicted a young woman who was drunk in the sense that

her coordination and movement appeared to be impaired. I accept that the footage

depicted her as being able to walk unaided throughout, but I consider it an

overstatement to describe her as having been able to walk without difficulty. I

would describe her, at the very least, as having been unsteady on her feet.”

The Lord Ordinary stated his conclusions relating to the CCTV evidence thus:

“[280] What is of significance, however, is that the available CCTV footage is not a

comprehensive record of the respondent’s movements. It did present a series of

helpful snapshots indicating how events progressed but there was evidence from

other sources which indicated that the respondent appeared to be more seriously

under the influence of alcohol than was captured on camera. Since the available

footage was not comprehensive, it does not follow that such other evidence must

necessarily be unreliable.”

Submissions

[12] Written submissions were lodged for each reclaimer, including a joint submission.

During the hearing of the appeal, the arguments were advanced primarily by counsel for the

first reclaimer, with counsel for the second reclaimer adding only to the arguments in

relation to ground three. Other than as appears from the narrative below, we have therefore

summarised the arguments in general as advanced for both reclaimers. In their written

submissions counsel made reference to Henderson v Foxworth Investments 2014 SC (UKSC)

203 para 67.

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Reclaimers

Ground 3

[13] In support of ground three it was asserted that the Lord Ordinary “chose to hold that

(Mr Wilson) had overheard events involving Brian Hutton … during the morning of

1 January”. This was said to be a critical finding which had no basis in evidence. The four

reasons specifically mentioned by the Lord Ordinary as featuring in his decision-making

were criticised, on the basis that (a) Wilson was talking about events occurring in the early

hours of the morning, whereas Hutton had been referring to events between 0700 and 1300,

not “on the previous night” as the Lord Ordinary stated - on this basis, it was an error to

ascribe the comments to events involving Hutton; (b) although it was accepted that

intercourse had only taken place in the child’s bedroom, on the evidence the respondent had

been in both bedrooms during the evening; (c) although Wilson did refer to the male voice

as Hutton’s, he had in other statements said he could be wrong about that – all he did was

make an assumption which it was reasonable for him to make; and (d) whilst it was

accepted that the words spoken by the female in the morning did not accord with what

happened to the respondent, who was left alone in the flat, neither was there any evidence

that these words had been spoken by the woman who had been with Brian Hutton.

[14] In addition, the Lord Ordinary placed inadequate weight on other aspects of

Wilson’s evidence which was consistent with other evidence in the case, namely hearing a

car outside before the parties entered the flat (they had arrived by taxi); that the young

woman he saw outside crossed the road and spoke to two carers; that later a man emerged

from a red van carrying a plank of wood (consistent with the arrival of the respondent’s

brother, who had such a piece of wood with him in case he needed to defend her). It was

unclear how Wilson could be right about these matters yet in error as to the night when he

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heard the comments referred to. The respondent’s evidence that her breasts were sore the

following day was consistent with Wilson’s evidence. The Lord Ordinary erred in excluding

Wilson’s evidence, rather he should have weighed it in the balance with all the rest of the

evidence. The evidence was critical, because it involved a conversation at the critical period

involving a man and a woman, in a context which is supportive of a consensual encounter.

The words spoken show that, if this was the respondent, she was awake, alert, and capable

of talking, in a way consistent with her being capable of giving or withholding consent to

sexual activity. The reclaimers’ argument was not undermined by the evidence of

Professor Chick, since he accepted that the respondent’s blood/alcohol level could have been

anywhere within the suggested range of values produced by the toxicological evidence, not

just at the midlevel. The evidence of Professor Chick as to how the respondent would have

acted, and presented to others, with a blood/alcohol level of 275 was not consistent with

Wilson’s evidence of what he heard, nor with the CCTV evidence.

[15] Counsel for the second reclaimer submitted that whilst the Lord Ordinary would

have been entitled to reject the evidence of Wilson for sound reasons, such as demeanour,

and proceed on the basis of the eye witnesses and toxicology, what he did was to reject

Wilson for reasons which are not rigorous and do not withstand the level of scrutiny which

should apply. His reasons are insupportable, and in directing himself for those reasons to

ignore that evidence he misdirected himself. Where a serious allegation such as the present

is made in civil proceedings, it is incumbent upon the presiding judge to analyse and assess

the evidence with rigour. By ignoring this evidence rather than analysing its proper place

within the evidence as a whole, the Lord Ordinary erred in such a way that his findings

were vitiated. What Wilson heard, if attributable to the respondent, demonstrated cognitive

functioning consistent with an ability to consent.

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Ground 4

[16] In respect of ground 4 it was maintained that the Lord Ordinary erred in two

respects in his assessment of the extent to which the respondent’s degree of intoxication

would have been apparent to each reclaimer, leading to an error in his conclusion that

neither of them had a reasonable belief in consent. The first error was in giving inadequate

weight to the CCTV evidence, in particular that between 0208 and 0225 when it was

submitted that she was seen to walk unaided and without difficulty. In relation to this

point, the written Note of Argument submitted that the Inner House was in as good a

position as the Lord Ordinary to assess the CCTV evidence. This argument was not

advanced during the reclaiming motion and we were not asked to view the CCTV. In any

event, we would not have agreed that we would have been in as good a position to assess

this evidence as the Lord Ordinary: the CCTV evidence, being partial, and showing only

snippets during the evening, would require to be assessed in the context of the whole

evidence of the case, including the reliability and credibility of those witnesses who spoke of

the respondent’s intoxicated condition.

[17] As to the second error made by the Lord Ordinary, it was maintained that he had not

assessed the evidence on this matter separately against each reclaimer. In particular, it was

maintained that there was no evidence that the first reclaimer was a witness to the

apparently seriously intoxicated behaviour “off camera” as spoken to by Gail McGregor.

She had noted that the respondent was with two men, and had herself spoken to the second

reclaimer, but she was unable to identify the second man, who had been standing by a wall,

out of range of the CCTV camera. Even if it were reasonable to conclude that this man had

been the first reclaimer, there was no evidence as to what he might have seen or heard. The

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Lord Ordinary did not analyse the issue in the context of what might have been seen, heard

and understood by the first reclaimer at 0300.

Respondent

[18] Counsel for the respondent submitted that there is no proper basis to interfere with

the Lord Ordinary’s treatment of Clifford Wilson’s evidence. In any event, his evidence was

not critical. Even having regard only to the transcripts, it was easy to understand why the

Lord Ordinary reached the conclusion that Wilson‘s evidence was so confused that little

reliance could be placed on it. It was not correct to say that the Lord Ordinary attributed

Wilson’s evidence as relating to the presence of Brian Hutton in the flat on the morning of

1 January. Rather, the Lord Ordinary decided that it was not possible, on the evidence, to

say whether he overheard the central events or not. The essence of his findings regarding

Wilson was that he could not be relied upon as shedding any light upon the central events.

A successful challenge to the rejection by the Lord Ordinary of the evidence of a witness as

unreliable is not easy to achieve. Counsel referred to McGraddie v McGraddie 2014 SC

(UKSC) 12 and the discussion therein of the oft-quoted dicta from Thomas v Thomas 1947

SC (HL) 45. The Lord Ordinary had seen and heard all the witnesses in the case, and there

was no basis for attacking either his reasons or his assessment of the witnesses concerned.

His assessment that it is not possible to make a finding that what Clifford Wilson overheard

related to the central events was an entirely reasonable one. As to the specific reasons he

gave, there was a correspondence between Hutton saying he’d had sex in the adult bedroom

in the earlier part of the day, which is where Wilson said the sounds came from, rather than

the child’s room, which is where the sex with the respondent took place: that was a

reasonable point for the Lord Ordinary to put in the mix. The use of the word “night” is to

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be understood in context, as covering the morning of the next day, and is in any event a

trivial point. It should be borne in mind that Brian Hutton was not himself a particularly

reliable witness either: it is clear that he was not anxious to co-operate. There is no doubt

that Wilson specifically identified the voice as that of Brian Hutton. He said “I knew it as

Brian Hutton”. Had it been Hutton it must have been another occasion: this is another

reasonable point for the Lord Ordinary to make. The female voice saying “wake up I have

to go”, and “could you let me out” could not have been the respondent. If Wilson was

correct that these words were said that morning, they must have been said by someone else.

It is not possible to make this aspect of Wilson’s evidence fit with the central event. In any

event, none of the words referred to by Wilson as spoken by the female would have been

inconsistent with being spoken by someone who was so intoxicated as to be incapable of

giving free agreement.

[19] On the evidence the respondent was severely intoxicated. There was ample evidence

of this from a variety of sources and the CCTV footage could not be said to be inconsistent

with that. The Lord Ordinary made his decision on the whole evidence in the case,

concluding (para 344) that

“Having carefully examined and scrutinised the whole evidence in the case, I find

the evidence for the respondent to be cogent, persuasive and compelling.”

Analysis and decision

[20] It is well established that the circumstances in which an appellate court can interfere

with findings of primary fact made at first instance are very restricted, as explained in the

passages from Thomas v Thomas referred to above. The importance to be attached to the

views of the judge at first instance, who had seen and heard the witnesses, viewed in Thomas

as a critical matter, was underlined by the UK Supreme Court in McGraddie v McGraddie.

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The point had been emphasised by Lord Hope in Thomson v Kvaerner Govan 2004 SC (HL) 1

at paragraph 20:-

“… the fact that reliability, not credibility, was the issue does not mean that an

appellate court is in as good a position as to resolve it as the trial judge. This is

because there are various ways of testing a witness’s reliability. One way is to see

how his account fits in with the other evidence. If that were to be regarded as the

only test, it would no doubt be capable of being performed equally well by an

appellate court as by the judge who was sitting at first instance. But another way is

to examine the witness’s demeanour in all its various aspects when he is giving his

evidence. If his version of the facts is in conflict with that which is given by another

witness whose honesty is not in doubt, the demeanour of that other witness too will

also be relevant. … An appellate court should be slow to interfere with the decision

based on a view of the reliability of witnesses of whom the Lord Ordinary was able

to make a personal assessment.”

[21] The matter was addressed in some detail by the UK Supreme Court in Henderson v

Foxworth Investments Limited in which, delivering the Judgment of the Court, Lord Reed

observed (paragraph 57):-

“… the validity of the findings of fact made by a trial judge is not aptly tested by

considering whether the judgment presents a balanced account of the evidence. The

trial judge must of course consider all the material evidence (although, as I have

explained, it need not all be discussed in his judgment). The weight which he gives

to it is however pre-eminently a matter for him, subject only to the requirement, as I

shall shortly explain, that his findings be such as might reasonably be made. An

appellate court could therefore set aside a judgment on the basis that the judge failed

to give the evidence a balanced consideration only if the judge’s conclusion was

rationally insupportable.”

[22] In respect of findings of primary fact, the question is whether the decision is one that

is “plainly wrong” in the sense that the trial judge’s decision cannot be explained or justified

on the basis of the material which was before him. In Henderson Lord Reed said

(paragraph 67):-

“It follows that, in the absence of some other identifiable error, such as (without

attempting an exhaustive account) a material error of law, or the making of a critical

finding of fact which has no basis in the evidence, or a demonstrable

misunderstanding of relevant evidence, or a demonstrable failure to consider

relevant evidence, an appellate court will interfere with the findings of fact made by

a trial judge only if it is satisfied that his decision cannot reasonably be explained or

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justified”.

As Viscount Simon, in the minority in Thomas but expressing on this matter the same view

as the majority, said in respect of whether a decision at first instance could be justified

(page 47):-

“If there is no evidence to support a particular conclusion (and this is really a

question of law), the appellate Court will not hesitate so to decide. But if the

evidence as a whole can reasonably be regarded as justifying the conclusion arrived

at at the trial, and especially if that conclusion has been arrived at on conflicting

testimony by a tribunal which saw and heard the witnesses, the appellate Court will

bear in mind that it has not enjoyed this opportunity and that the view of the trial

Judge as to where credibility lies is entitled to great weight.”

[23] In the present case, the assessment of the evidence by the Lord Ordinary was, to

quote Lord Reed, “pre-eminently a matter for him.” That includes evaluation of the

evidence of Clifford Wilson, and of his reliability, and the assessment of the CCTV evidence,

which must be examined in the context of the Lord Ordinary‘s treatment of the evidence as a

whole.

[24] The Lord Ordinary accepted the respondent as credible and reliable and entirely

genuine, and rejected the evidence of each of the reclaimers. Whereas the respondent was

measured and prepared to concede appropriate matters, both reclaimers appeared clear on

areas of evidence which they perceived to assist them, but unclear on areas which were

adverse to them. The Lord Ordinary considered that the first reclaimer was not an

impressive witness. Parts of his evidence were inconsistent with other evidence in the case,

or contradicted his written pleadings. His evidence was designed to further his own

interests, rather than to provide answers in accordance with his oath. As to the second

reclaimer, the Lord Ordinary considered that his evidence was internally inconsistent, and

contradicted his written pleadings. Like the first reclaimer, he was selective about what he

was prepared to tell the court, and was not entirely candid.

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[25] The Lord Ordinary considered the issue of the respondent’s level of intoxication

under reference to (i) the CCTV evidence; (ii) the eye witness evidence; (iii) her likely

consumption during the evening; and (iv) the expert evidence.

[26] As the Lord Ordinary pointed out, the CCTV evidence provided only evidence of

snapshots during the course of the evening. His view of it as a whole was that, whilst she

could be seen to walk unaided in clips shown, the CCTV evidence generally depicted the

respondent as intoxicated. In paras 276-278 of his opinion the Lord Ordinary provided some

examples of what he took from the CCTV footage. Given the partial nature of the footage,

the Lord Ordinary (rightly) did not consider it appropriate to take it as representing the

whole picture of the respondent’s condition or presentation on the evening in question, and

in particular towards the end of the evening when she left in the company of the reclaimers.

To reach a conclusion on that matter he required to consider the whole evidence in the case,

including the eyewitness evidence and the expert evidence as to the effect of the likely blood

alcohol levels in the respondent’s system. He thus had before him a body of evidence which

showed the respondent’s progressive intoxication during the evening for most of which she

was in the company of both reclaimers. Ms Carrigan and other friends in her company had

all described the respondent as intoxicated. Ms Carrigan described the respondent as

seeming more drunk than she would have expected when they left the Glenmavis Tavern.

The walk to the nightclub took longer than would normally have been the case had they

been sober. On their arrival at Chalmers, she described herself as supporting the

respondent, taking her arm to take her weight. The respondent seemed slightly better once

inside Chalmers, but it was plain that she had had a drink and was “not completely compos

mentis”. When leaving the nightclub, the respondent had lost her purse and forgotten to

take her shoes and jacket. Ms Carrigan had gone back to collect them. The respondent

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appeared to her to be quite drunk at that time. On leaving the club, although the respondent

could walk on her own to some extent, the second reclaimer would have required to help

her. At one stage, he had been holding the respondent in order to help her walk, but this

was not captured on the CCTV footage.

[27] Anne Marie Mackay knew the respondent from work. In the Glenmavis Tavern, the

respondent stumbled and fell against her. Seeing her again about 30 minutes later, she

seemed quite drunk, and her words were “quite slurry”. Her eyes appeared to be glazed

over, and the words she was using did not make sense. Outside the Glenmavis she was

staggering about. She appeared to be very drunk and Ms Mackay was concerned for her.

She had assessed the extent of the respondent’s drunkenness as 8 out of 10.

[28] Carrie-Anne Tugman also knew the respondent from school. She described the

respondent as already drunk in the Glenmavis Tavern and, at Chalmers, not 100% steady,

but not staggering, and able to walk and talk. She saw her again outside the nightclub, in

circumstances in which the respondent had lost her balance and fallen against a door. She

looked pretty “wasted”. She was not steady on her feet.

[29] Apart from these witnesses, the Lord Ordinary also had the evidence of other

witnesses (such as Gail McGregor) who had encountered the respondent in the course of

their employment, and who were well qualified to make an assessment of her condition and

describe her appearance. The Lord Ordinary was impressed by, and accepted, the evidence

of these witnesses. Michael Parks was too ill to attend court, but his police statement had

been adopted and incorporated into an affidavit. As a doorman with 28 years’ experience,

he described the respondent as looking confused, delirious and not making sense when

questioned. She appeared not to understand when Gail McGregor was asking her

questions.

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[30] Ms McGregor had been working as part of the security staff at Chalmers nightclub

for about a year, having 15 years’ experience working in the security sector. Late in the

evening, a purse had been found. It belonged to the respondent, who was identified from a

driving licence inside the purse. Ms McGregor found the respondent leaning against the

front door, not in control of herself. Her eyes were rolling in her head, she could not stand

up straight, or speak properly. She was not compos mentis. Ms McGregor had held her up by

putting her hands under the respondent’s arms. Two men were standing in close proximity.

The second reclaimer was at the front by the door, and inside a set of gates which are

outside the door. The other was outside the gates by a wall. [It is in our view a reasonable

inference from all the evidence as to the parties’ movements that this was the first reclaimer.]

Ms McGregor spoke to the second reclaimer. He said that he was going to take the

respondent away with him, and she replied that the respondent needed an ambulance. She

advised what to do should the respondent become unconscious. The second reclaimer said

that she would be fine, that he knew her from school, that he was her pal, and that he was

going to take her home. Shortly after, Ms McGregor can be seen on CCTV walking along by

the outside wall of the building. She explained that this was to keep an eye on the

respondent, and that they, the two men, were going to look after her. In her view she

needed looking after, and was in no fit state for anything other than going home.

[31] Gavin Paterson, a member of the bar staff saw the respondent at about 0210 in what

seemed to be a distressed state. When he spoke to her, she appeared to be becoming more

and more drunk and started crying. Had she not been leaving anyway, she would have

been asked to leave because of her drunken state. She had been falling around and she

appeared to be getting more drunk in the fresh air outside. She hadn’t fallen over, but had

been stumbling and only stayed upright because she had stumbled against a wall. In

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addition to this eye-witness evidence, the Lord Ordinary had available to him the evidence

relating to the respondent’s alcohol consumption, and the likely level of alcohol in her

blood. The back calculation, based on her known blood alcohol level later in the day, and

the “forward” calculation, based on her known consumption, tallied. These calculations

placed her in a severely intoxicated category. The possible range at 0300 was said to be 183

to 388mg/100ml, and at 0400 hours to be from 174 to 359 mg/100ml. The severe/potentially

fatal category is from 200 upwards, so even at the lower end of the range, the respondent

would have been close to that category. However, there was evidence which suggested that

the effect of the known alcohol consumption on someone of the respondent’s age, size and

gender, relatively unused to alcohol (as the respondent was, on the evidence), would have

been likely to place them more towards the upper end of the range. It was therefore

perfectly reasonable for the Lord Ordinary to approach matters on the basis that the

respondent’s level of intoxication probably placed her at about the middle of the range.

There was evidence from Professor Chick as to how someone with the characteristics of the

respondent, who had last eaten at 1530 the previous day and who possessed an average

metabolism, would be likely to present to others when intoxicated to such a degree.

[32] In light of all this evidence we do not consider that there is any merit in the

suggestion that the Lord Ordinary did not give sufficient weight to the CCTV evidence. As

to the argument that there was room to differentiate between the reclaimers as to their likely

degree of knowledge of the respondent’s condition and presentation, we do not accept that

there was a basis for differentiating between either reclaimer in this way to any material

degree. Both had spent time in the respondent’s company during the course of the night;

her progressive intoxication, spoken to by several witnesses must have been apparent to

them both; the second reclaimer was spoken to about this by two security guards, and the

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evidence suggests that it was the first reclaimer who was at the wall, close by when this

happened. There was some evidence that this individual was urging the second reclaimer

(and the respondent) to “come on”. [Favourably to the first reclaimer, the Lord Ordinary

attributed these comments to the second reclaimer. This is understandable, given the way

the evidence was given, identifying a person in a checked shirt (the second reclaimer) and

the “other guy”, but a perusal of the transcript suggests that it was the man at the wall,

inferentially the first reclaimer, who was urging the second reclaimer and the respondent to

hurry up.] In any event, the Lord Ordinary concluded that the respondent’s “impaired

cognitive functioning and general condition of intoxication was so obvious and manifest”

that the reclaimers must have been aware of it, and that she was incapable of giving free

agreement to sexual activity.

[33] Turning to the evidence of Clifford Wilson, we do not accept that it would be a fair

reading of the Lord Ordinary’s findings to say that he attributed what Mr Wilson claimed to

have heard to the events involving Hutton on 1 January. It is clear that the Lord Ordinary

did consider it a possibility that Mr Wilson had confused events of the 1st and 2nd January.

Of the reasons he gave, it is correct to say that the sexual intercourse involving the

respondent did not take place in the room where Mr Wilson said the sounds came from; it is

correct that Hutton had engaged in sexual intercourse in that room the previous morning.

We do not think that the Lord Ordinary’s reference to the “previous night” should be

invested with the importance which the reclaimers seek to attach to it as it is clear he was

speaking colloquially. It is also correct that in his police statement Wilson has positively

asserted that he knew the male voice as Brian Hutton and the Lord Ordinary is entitled to

give weight to the initial response of the witness. Finally, on any view, the words which

Mr Wilson spoke to hearing from the female speaking later in the morning could not be

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attributed to the events involving the respondent. The Lord Ordinary did not find

Mr Wilson to be an incredible witness: indeed, he was willing to accept that he might be

correct on certain matters where his evidence coincided with other evidence. However, as a

generality he concluded that Mr Wilson was not a witness whose evidence could be

accepted as reliable. He considered the evidence to be confused, and that he could not, on a

balance of probability, ascribe what Mr Wilson heard to the central events in question. In

our view that was a conclusion which was open to the Lord Ordinary on the evidence. For

the reasons we have explained, we consider that the Lord Ordinary’s specific reasons for

considering the possibility of confusion are not “insupportable” and that there is no merit in

the attack upon his assessment of the evidence or the reasons he gave therefore. We agree

with counsel for the respondent that we should in this context bear in mind the words of

Lord Hoffman in Piglowska v Piglowski [1999] 1 WLR 1360, at p 1372:

“The exigencies of daily court room life are such that reasons for judgment will

always be capable of having been better expressed. … An appellate court should

resist the temptation to subvert the principle that they should not substitute their

own discretion for that of the judge by a narrow textual analysis which enables them

to claim that he misdirected himself.”

[34] Even if we had concluded that the Lord Ordinary had erred in his treatment of the

evidence of Clifford Wilson, we consider that this reclaiming motion would nevertheless be

refused. Even if what Mr Wilson heard could have been attributed to the events in question,

we are not persuaded that this would have made any difference to the outcome, standing

the Lord Ordinary’s acceptance of the evidence, including expert evidence, as to the

respondent’s condition, and his conclusion as to the reclaimers’ awareness of it (none of

which was the subject of challenge). As the Lord Ordinary observed the modern law of

consent requires that an individual has the capacity to give free agreement. The words

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heard by Mr Wilson do not shed any light on that issue, and are not inconsistent with the

respondent having been in the condition described by Professor Chick, which, and again

ultimately unchallenged in this reclaiming motion, the Lord Ordinary accepted rendered her

unable to consent to sexual intercourse.

[35] For these reasons we will refuse the reclaiming motion and adhere to the interlocutor

of the Lord Ordinary.