DC v Dg and Dr
| Jurisdiction | Scotland |
| Judge | Lord Armstrong |
| Judgment Date | 28 November 2017 |
| Neutral Citation | [2017] CSIH 72 |
| Court | Court of Session (Inner House) |
| Date | 28 November 2017 |
| Docket Number | No 11 |
[2017] CSIH 72
Second Division
Lord Armstrong
Henderson v Foxworth Investments Ltd sub nom Liquidator of Letham Grange Development Co Ltd [2014] UKSC 41; 2014 SC (UKSC) 203; 2014 SLT 775; 2014 SCLR 692; [2014] 1 WLR 2600; 158 (27) SJLB 37
McGraddie v McGraddie [2013] UKSC 58; 2014 SC (UKSC) 12; 2013 SLT 1212; 2015 SCLR 109; [2013] 1 WLR 2477
Piglowska v Piglowski [1999] 1 WLR 1360; [1999] 3 All ER 632; [1999] 2 FLR 763; [1999] 2 FCR 481; [1999] FamLaw 617
Thomas v Thomas 1947 SC (HL) 45; 1948 SLT 2; 1947 SLT (Notes) 53; [1947] AC 484; [1947] 1 All ER 582; 63 TLR 314; [1948] LJR 515; 176 LT 498
Thomson v Kvaerner Govan Ltd [2003] UKHL 45; 2004 SC (HL) 1; 2004 SLT 24; 2003 SCLR 765; [2004] PIQR P7
Reparation — Evidence — Action for damages for rape — Pursuer intoxicated with alcohol at time of sexual intercourse — Whether pursuer incapable of consenting — Whether defenders had reasonable belief of consent — Whether judge at first instance erred in assessment of evidence of extent of pursuer's intoxication
DC raised an action for damages against DG and DR in the Court of Session in respect of their having committed the common law wrongs of sexual assault and rape against her. The matter proceeded to proof before the Lord Ordinary (Armstrong) in October and November 2016. On 17 January 2017, the Lord Ordinary granted decree in favour of the pursuer and awarded damages (2018 SC 47; [2017] CSOH 5). The defenders reclaimed.
The pursuer raised an action for damages in the Court of Session alleging that the defenders had raped and sexually assaulted her. A police investigation did not result in a criminal prosecution of either defender. Evidence was led at proof that the pursuer, at the time of intercourse with the defenders, had been heavily intoxicated with alcohol. The defenders maintained that any sexual contact which had taken place with the pursuer had occurred with her consent. The Lord Ordinary held that the pursuer's level of alcohol intoxication had been such that she was incapable of consenting to intercourse and that the defenders had no reasonable or honest belief that the pursuer was so consenting. The Lord Ordinary granted decree in favour of the pursuer and awarded damages. The defenders reclaimed and argued that witness testimony and closed circuit television evidence led at proof had demonstrated that in the hours before intercourse took place, the pursuer had been awake, alert and engaging in a manner consistent with her being capable of consenting to sexual activity.
The defenders argued that the Lord Ordinary had failed to properly analyse the evidence in relation to the degree of the pursuer's intoxication and its impact on her ability to consent and had failed to assess the extent to which her intoxication would have been apparent.
Held that: (1) the circumstances in which an appellate court could interfere with findings of primary fact made at first instance were very restricted and the assessment of the evidence by a judge at first instance, who had seen and heard the witnesses, was pre-eminently a matter for him, and the question was whether his decision could not be explained or justified on the basis of the material which was before him (paras 20–23); (2) the judge at first instance had reached his conclusions on the pursuer's condition after considering the whole evidence in the case, including eyewitness testimony and expert evidence as to the effect of the likely blood alcohol levels in her system, and thus had before him a body of evidence which showed the pursuer's progressive intoxication during the course of her evening with the defenders, there was no merit in any attack upon the judge's assessment of the evidence or the reasons he gave therefor, and the conclusions made by him had been open to him (paras 25, 26, 33); and reclaiming motion refused.
Thomson v Kvaerner Govan Ltd 2004 SC (HL) 1 and Henderson v Foxworth Investments Ltd2014 SC (UKSC) 203considered and Thomas v Thomas1947 SC (HL) 45applied.
The cause called before the Second Division, comprising the Lord Justice-Clerk (Dorrian), Lady Clark of Calton and Lord Malcolm, for a hearing on 14 and 15 November 2017.
At advising, on 28 November 2017, the opinion of the Court was delivered by the Lord Justice-Clerk (Dorrian)—
Opinion of the Court—
[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 ([2017] CSOH 5). In particular, the Lord Ordinary held that in the early 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.
[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, 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 closed circuit television (‘CCTV’) evidence at about 02.30 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.
[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 20.45 hours 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, eight or nine Jack Daniels with cola, and two ‘Jägerbombs’. 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 02.30 hours. 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 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 while 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...
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