Dc Against (first) Dg And (second) Dr
| Jurisdiction | Scotland |
| Judge | Lord Armstrong |
| Judgment Date | 17 January 2017 |
| Neutral Citation | [2017] CSOH 5 |
| Court | Court of Session |
| Published date | 17 January 2017 |
| Date | 17 January 2017 |
| Docket Number | PD2514/13 |
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 5
PD2514/13
OPINION OF LORD ARMSTRONG
In the cause
DC
Pursuer
against
(FIRST) DG and (SECOND) DR
Defenders
Pursuer: Di Rollo QC, Divers; Drummond Miller LLP
First Defender: Bain QC, Thomson; Wallace, Hodge & Co
Second Defender: McIlvride QC, Edward; Thorley Stephenson
17 January 2017
Introduction
[1] The pursuer is 30 years of age. She claims damages from both defenders on the basis that in the early hours of 2 January 2011, when she was aged 24 years of age, they both committed the common law wrongs of sexual assault and rape against her. Although there was a full police investigation into the events concerned, no criminal prosecution resulted. The defenders each maintain that they did have sexual intercourse with her at that time, but that it was consensual. The issue of quantum of damages was agreed amongst the parties. The issues in the case for determination by the court were, firstly, whether, by reason of excessive consumption of alcohol, the pursuer was incapable of consenting at the material time, and secondly, whether each of the defenders had a legitimate belief, whether reasonable or honest, that she was consenting.
[2] In the course of the proof, I heard the evidence of 20 witnesses, over 10 days. Since the matters in issue necessitate a close analysis of what can be said to have happened on the evening in question, I have set out the pertinent aspects of the evidence in some detail.
The Evidence
DC (The pursuer)
[3] In January 2011, the pursuer lived in the West Lothian area, close to Bathgate. At that time she was 24 years old, and was in full employment. She lived alone with her daughter, who was then 4 years old. Her mother and father lived nearby, at a distance of some 5 minutes travel by car. At the time, her father was seriously ill. He subsequently passed away in April 2011.
[4] In January 2011, the pursuer was maintaining a relationship with the father of her daughter, but only to the limited extent that they remained in touch and that he had contact with the child. The relationship had subsisted from 2004 up till 2009. In January 2011, the pursuer was in a relationship with another man, and had been for some 3 months.
[5] Prior to January 2011, the pursuer drank alcohol only infrequently, normally at home with friends. She rarely went out to drink socially and had done so only twice in the preceding year, once in March and once in April. She did not use recreational drugs. In January 2011 she was not taking prescribed medication. Although she used contraceptive measures with her current partner, none was used during the incident in question.
[6] On the afternoon of Saturday 1 January 2011, the pursuer had been visiting her parents for a family lunch, beginning at about 3.30 pm. She did not eat again until the next day. She had left her parents’ home at about 7pm, leaving her daughter with them. She had made arrangements with a friend, Rachel Carrigan, to go out in Bathgate that evening. Rachel Carrigan lived in Bathgate and the intention was that they would spend the evening there. To that end, PC, her brother, collected her at about 8pm and drove her to Bathgate. Her intention was only to meet Rachel. While waiting for Rachel to make herself ready, the pursuer had about half a can of beer whilst sitting in her brother’s car. She was wearing a black dress, black jacket, black tights and red shoes, and carrying a black handbag. The weather was cold and there was snow on the ground. She described the temperature as freezing.
[7] When Rachel Carrigan was ready, they set off, at about 8.45pm, and walked to The James Young, a bar in Bathgate. While there, the pursuer had a single measure of Jack Daniels with coke, followed by a further double measure with coke. Ms Carrigan received a text message suggesting that they meet others at The Glenmavis Tavern, otherwise known as Smiths, another bar in Bathgate.
[8] They went there and met a number of friends from school. On arrival at The Glenmavis Tavern, the pursuer had a single measure of Jack Daniels with coke and then moved through to the back bar. The second defender was also there. He was someone whom she had known from school but whom she had not seen for 2 years or so. She had a recollection of him placing two drinks in front of her on the bar. She remembered taking one, although she was unsure whether she in fact drank it.
[9] She was unable to remember anything else of significance from that time until the following morning. Although in fact she left The Glenmavis Tavern in due course, and went on to a nightclub called Chalmers, she had no recollection of that.
[10] Her next recollection was the following morning when she awoke to find herself in a house which she did not recognise. She was naked and could not find her clothes. She did not know where she was. She recognised nothing of the view from the windows. She had a telephone conversation with her mother and with her brother, but was unable to tell them where she was. When she had awoken in the strange bedroom, she was in a lot of pain. Her thighs were sore, as was her right hand side generally. She felt sore internally, in her vagina. At that time, she did not know what had happened. Although she did eventually find some of her clothing, she was unable to find her pants.
[11] Before eventually finding some of her own clothes, she found and put on a pair of jeans and white shirt and went outside in search of help. She was unsuccessful, and returned to the house. At some time after 9.15am, she saw two women outside the house on the pavement and asked them to confirm the address. She was in Greig Crescent, Armadale. The last time she had been in Armadale had been more than a year before.
[12] She gave her brother the address, by phone, and he drove to the house. When he was there, she telephoned the police who advised her either to remain where she was or to go home where they would make contact with her. She chose the second option.
[13] On the way home, when speaking on the phone to Rachel Carrigan, who had been with the pursuer in Chalmers nightclub, the pursuer said that she was thinking that something terrible had happened. Rachel Carrigan told her, in answer to a question about what had happened, that she had left the nightclub with two men named D. Those men were the defenders. Although she knew the second defender, she had no recollection of meeting the first defender, and to her knowledge had never met him before.
[14] In the days that followed, she made a number of statements to the police: two on 2 January 2011, a cognitive interview on 5 January 2011, and two further statements on 10 January and 21 January 2011. She confirmed that she had told the police the truth, but for details as to whether she was then currently in a relationship, and when she had last had sexual intercourse. She had been reluctant to reveal these details for fear that it might affect her relationship with her daughter and her former partner.
[15] On 17 January 2011, it was confirmed to the pursuer that DNA evidence had been obtained from vaginal swabs taken from her. Until that point, she had not known with certainty whether sexual intercourse had taken place.
[16] In the following days, she did her best to resume her normal life by going back to work, but found it impossible, given the police enquiry. After a week or so, she required to take time off from work and in fact did not return to work until May 2011, when she did so only on a part‑time basis. In July 2011, she was told of the Crown Office decision not to proceed with a prosecution.
[17] Whereas, prior to these events, the pursuer had functioned normally and had enjoyed life, her life had changed following the decision not to proceed with a prosecution. When, in July 2011, she was informed by the Crown Office that there was to be no prosecution of the defenders, she had felt devastated, upset and confused. She found the decision difficult to understand and had felt that she had not been believed. She felt that her life had been destroyed by something which had happened although, because of her lack of memory, she was not fully aware of what it was that had caused that effect. Although she had previously been physically fit, she subsequently had problems with weight gain and loss. She was keenly aware of the high profile investigation being conducted by the police and the fact that everyone seemed to be talking about it. There had been significant comment in the media, including adverse comments and, at least one threat made against her, in social media. She had found it difficult to trust anyone and had become unsociable. She preferred her own company to that of others. Her dress sense was affected. She chose to wear clothing which covered up her appearance. Her mood was low. She had never been back to Armadale, and although she visited parts of the periphery of Bathgate she would not venture into the centre of it. She had experienced suicidal thoughts several times. In September 2011, following her father’s death, she had moved back to live with her mother. She had experienced depersonalisation, by which nothing of significance appeared or felt to be real, particularly when she found herself to be in a busy place or under stress. She felt that she had been avoiding challenges in her life which really should have been part of it. It had taken her until 2016 before she felt comfortable forming an intimate relationship again.
[18] She had subsequently been granted an award under the Criminal Injuries Compensation Scheme.
[19] The events of the evening in question, in and around The Glenmavis Tavern and Chalmers nightclub, had been captured on CCTV. The critical footage, which extended from about 23:00 on Saturday 1 January 2011 to about 02:30 on Sunday 2 January 2011, showed the pursuer and a number of her friends together with the defenders, and their friends, drinking...
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