The High Court of Justiciary has refused appeals by three men convicted of abduction and rape. Their cases were referred to the court by the Scottish Criminal Cases Review Commission. 
Brian Meighan, David Pugh and Kevin Kane all received a custodial disposal of 6 years as a result of their part in the offences. The case was referred due to new evidence regarding genital injuries that was not heard at the original trial proceedings. The evidence undermined a testimony that had been given to the court by a police surgeon who had examined the complainer. 
The three appellants were convicted of raping the complainer, who at the time was 20 years old, in a block of flats in Little France Edinburgh, in 1999. The complainer had entered the flat as she believed a friend she was looking for was inside. She was then raped by the appellants when she attempted to leave. She left the flat at around 2:30am and sought assistance from the police. 
The complainer was examined by police surgeons at around 7:15am. It was noted that she had suffered a significant amount of pain in both her vagina and anus. Also, traces of semen and injury to her external and internal genitalia was noted. At trial proceedings, one of the surgeons who examined the complainer, Dr Hiremath, gave evidence that her injuries suggested that forceful intercourse had taken place. The appellants testified that the sexual activity had been consensual. Counsel for the second appellant suggested that due to the complainer’s light build she would have suffered more bruising. At trial the judge directed the jury that corroboration could be established from the complainer’s distressed state when she returned to her flat or from the evidence of her injuries. 
The new evidence which was led by the SCCRC came from Dr Astrup, a consultant gynaecologist, Prof Shaxted and a forensic nurse, Ms Malmgren. Their developments in medical science since the trial meant that genital injuries could not be used to express an opinion on whether sexual intercourse had been consensual. The appellants submitted that while genital injuries were more prevalent in women reporting non-consensual sexual activities, they did not necessarily support an allegation of rape. As a result, if this information had been available at trial it would have had an impact upon the jury’s decision. 
In delivering the opinion of the court, Lord Carloway in considering the new evidence said: “In so far as the new evidence contains references to papers which have been published since the trial, there is little difficulty in accepting that it would not have been possible to lead evidence about them.”
However, he went on to say: “The purpose of the new evidence, put at its highest, is to demonstrate that the existence of genital injuries, at least per se, is of no assistance to a determination of whether sexual intercourse was consensual or not. Where substantially the same evidence was available from other experts at the time of the trial, the new material cannot qualify as evidence for which there is a reasonable explanation for it not being adduced at that time.”
He continued: “Testimony of a substantially similar nature could have been adduced at the trial. The fundamental proposition that injuries cannot of themselves prove whether sexual intercourse was consensual or non-consensual is neither surprising nor novel, as is demonstrated by the cross-examination of Dr Hiremath on the issue.”
In considering Dr Hiremath’s evidence at trial Lord Carloway said: “The evidence given at the trial by Dr Hiremath should be looked at as a whole. She described the pain which the complainer was in some five hours after the incident; the pain emanating from her vagina and anus, such that she was finding it painful both to walk and to sit down.”
He continued: “It is simply not an answer to Dr Hiremath’s account of the extreme pain in which the complainer appeared to be, to say that pain is an immeasurable and subjective phenomenon. There was, and is, no basis upon which to suggest that the pain was other than genuine and accurately reported. Dr Hiremath’s evidence on this aspect was an important element in the overall assessment of the complainer’s account.”
In reaching a conclusion, Lord Carloway said: “The court does not consider that the research into genital injuries involves a significant development in medical science. If anything, it confirms Dr Hiremath’s testimony at trial. The research may be new, but the facts are not. When they are seen against the background of the other evidence in the case, the court does not consider that the new material is of such significance that its absence at the trial must be regarded as having produced a miscarriage of justice.”
As a result, the appeals were refused.