Meighan v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice General (Carloway),Lord Woolman,Lord Pentland |
| Judgment Date | 17 August 2021 |
| Court | High Court of Justiciary |
| Docket Number | No 2 |
[2021] HCJAC 38
Lord Justice General (Carloway), Lord Woolman and Lord Pentland
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Justiciary — Review — Appeal against conviction — Additional evidence not heard at trial — Expert reports now available critical of Crown forensic medical examiner — Whether reasonable explanation why evidence not heard at trial — Whether evidence of such significance that failure to hear at original proceedings miscarriage of justice — Criminal Procedure (Scotland) Act 1995 (cap 46), sec 106(3)(a), (3A)
Brian James Meighan, Kevin James Kane, and David Sutherland Pugh were charged on an indictment at the instance of the Right Honourable Colin David Boyd QC, Her Majesty's Advocate, with abduction and rape. The appellants pled not guilty and the cause came to trial before Lady Paton and a jury in the High Court of Justiciary at Edinburgh, on 24 October 2000. On 31 October 2000, the appellants were convicted. On 21 November 2000, each appellant was sentenced to six years' imprisonment. The appellants appealed to the High Court of Justiciary against conviction on a ground of misdirection. On 9 May 2002, that appeal was refused (2002 SLT 914). The appellants made an unsuccessful application to the Scottish Criminal Cases Review Commission in 2004. The appellants subsequently made a further application to the SCCRC. In November 2020, the SCCRC referred the case to their Lordships in the High Court of Justiciary.
Section 106(3)(a) and (3A) of the Criminal Procedure (Scotland) Act 1995 (cap 46) provide that in an appeal under sec 106(1) a person may bring under review of the High Court an alleged miscarriage of justice, which may include such a miscarriage based on the existence and significance of evidence that was not heard at the original proceedings, provided that there is a reasonable explanation of why it was not so heard. Section 118(8)(b)(ii) provides, inter alia, that no conviction shall be set aside in an appeal in respect of objections to the competency or admission of evidence at the trial unless such objections were timeously stated.
The appellants were charged with abduction and rape. The complainer had been with friends in her flat but left to look for a friend she was concerned about. The three appellants were in another flat in the same block. One appellant invited her into their flat. She misapprehended that the friend she was looking for was in the appellants' flat. The complainer gave evidence that she had been violently raped by all three appellants. She returned to her flat where she was seen to be very distressed. When she was medically examined, she was found to have injuries to her abdomen, back, genitals and anus. She was in extreme pain. The genital injuries were consistent, in the opinion of the forensic medical examiner (‘FME’), with the use of a considerable amount of force. The injuries were more likely to have resulted from non-consensual sex noting that the injuries were bad, although also consistent with prolonged, rough, consensual intercourse.
The Scottish Criminal Cases Review Commission (‘SCCRC’) referred the case to the High Court of Justiciary on the basis of fresh evidence. Research subsequent to the trial was said to demonstrate that the incidence of genital injuries following consensual intercourse was so high that no conclusion on the question of consent could be drawn from such injuries. The research suggested that genital injuries resulted from both consensual and non-consensual sexual activity.
The appellants argued that the new medical reports now available constituted significant new evidence which was material to the critical issue for the jury and that nothing had been objectionable at the time of the trial. The FME had gone beyond what she could reasonably have said in light of the state of medical knowledge. The new evidence would have had a considerable impact because it cast serious doubt on the scientific evidence upon which reliance had been placed by the Crown. The evidence of the FME would have been materially different had the studies and research been available.
The respondent argued that the true issue was whether the defence should have objected to the questions posed at trial. No admissibility challenge had been made at trial. None of the new reports contained any material that was not available at the time of the trial. The additional evidence did not have a material bearing on the critical issue of consent.
Held that: (1) any objection by the appellants at trial would have been difficult and unproductive as the substance of the evidence given by the FME would have been the same (para 68); (2) the contents of the defence expert reports could be seen as evidence which was not heard at the trial (para 69); (3) where substantially the same evidence as in the new reports was available from other experts at the time of the trial, the new material could not qualify as evidence for which there was a reasonable explanation for...
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