Law & Order : Appeal Court judges criticised over drink driving verdict of sex attack victim

Three judges have been cricicised over their upholding of a conviction for drink driving of a woman trying to escape the scene of a sex attack.

The victim’s account of being forced into a gang rape situation is, reports the Scotsman “not in doubt”, but the original sheriff who ruled on her case and the three Court of Appeal judges, Lords Carloway, Emslie and Abernethy, argued she should not have driven off while under the influence. She should instead have used her mobile phone to call for help.

The Scotsman reports :

Judges in dock for verdict on victim of sex attack

Published Date: 19 April 2009
By David Leask

JUDGES were last night criticised for upholding the drink-driving conviction of a woman who used her car to flee the scene of a sex attack.

Victims' groups yesterday said the decision – by the Court of Appeal – was a huge blow to women trying to get a fair hearing from the justice system after suffering a sex attack.

The convicted drink-driver had argued she was "effectively" trying to escape from her attackers when she got behind the wheel while over the limit last year.

Her story – of being forced into non-consensual sexual activity with four men and then being indecently assaulted by one of them in her car – is not in doubt. But both the original sheriff in her case and the three judges sitting in the Court of Appeal, Lords Carloway, Emslie and Abernethy, argued that she should not have driven off while under the influence. She should instead have used her mobile phone to call for help, they said.

The woman was arrested near Falkirk in February 2008 after being found drunk behind the wheel in "a state of undress" and "a state of distress". She was convicted in July 2008 of drink driving by a sheriff who found her story "entirely credible and reliable".

The woman, who cannot be named for legal reasons, described how she found herself in a car in the parking lot of a social club in Falkirk with four men who, according to the court record, "made sexual advances towards her. She was sick. Said sexual activity was not consensual."

The record continued: "She was taken from the vehicle by one of the males and placed within her own car. Said male indecently assaulted her. She was sick. She was partially dressed and in a state of distress.

"The male left the car and returned to the social function." The woman, described by court insiders as "very intelligent", said she felt under threat and drove off. She was then stopped by the police, around two miles away from where the attack took place, and found to be just over the drink-driving limit.

Later, in court, advocate Andrew Brown, instructed by Falkirk firm Nelsons, argued a "defence of necessity" – a defence not normally recognised in Scots Law – saying that she had no choice but to drive away from danger.

The original sheriff, however, argued that the woman was not in immediate danger because her attackers had gone back into the social club and she could have used her phone to call for help.

He convicted her of driving under the influence but decided not to strip her of her licence given the circumstances. His decision was upheld by the Court of Appeal, which agreed that the woman should have taken "any reasonable alternative to offending behaviour"; in this case, phoning for help rather than driving off.

Their findings were yesterday criticised by experts in sex crimes, who said that few victims would have been able to think straight immediately after an attack as horrendous as the one suffered by the woman.

Mhairi McGowan, a prominent campaigner who runs the Assist programme for the victims of domestic violence in Glasgow, yesterday said she was "very disappointed" with the judgment.

She said: "It just doesn't take into account the reality of finding yourself in that situation.

"I think it's totally unreasonable to expect that after having been assaulted and in a state of undress you could be expected to stay in the very same place that you were assaulted and phone someone. Every instinct would be telling you to run, to get away as quickly as possible.

"Who's to say those men who assaulted you would not come back? They did after all go back to the social function.

"If the woman had phoned the police, how long would it have taken for them to arrive and when they did, would she have been believed?

"There were four of them and only one of her. The Sheriff and the Appeal Court have shown some understanding but, unfortunately, not enough."

The woman's MSP is Cathy Peattie, who also happens to chair the Scottish Parliament's cross-party group on male violence to woman and children. Peattie yesterday said: "This dreadful case emphasises that the Scottish criminal justice system remains unaware of many of the issues surrounding sexual violence against women."

Peattie was backed by Sandra White of the SNP, who said: "The perception really is now that sheriffs and judges don't take account of how a woman feels after she has been sexually assaulted, not just how she physically feels but her state of mind too. Sometimes I don't think the judges live in the real world."

In February an acting judge locked up an alleged rape victim overnight after she became too distraught to give evidence in his Edinburgh court.

Roger Craik was later told that his detention of Ann Robertson was "disproportionate" but will face no further action. Scotland has one of the lowest conviction rates for rape in Europe, just 2.9%.

'A harsh decision'

Psychologist Mairead Tagg writes:

This was a harsh decision. It appeared to take the view that the woman was immediately able to calm down and think clearly.

One of the main problems I have had in court is the real lack of understanding about people's behaviour when they have been traumatised. There needs to be a lot more knowledge and understanding about that. Otherwise we are going to see a lot more women being punished for being brutalised.

This is a case of a woman who was convicted of drink-driving after using her car to get away from the scene of an indecent assault. The courts have taken the view that, since she was not in immediate danger, she should have used her phone to call for help. But that is not how people react to a trauma. The conviction is harsh. This is why.

From a psychological perspective someone who has just been sexually assaulted will have a psychological reaction that is likely to result in all decisions being made in the emotional right side of the brain, rather than in the logical left cortex.

It is also fact that when people are traumatised the language centres of the brain close down. Her flight response was a far more likely outcome than calling a friend. Using the phone would be a logical thing to do, and she was not acting logically.

Mairead Tagg is a psychologist who works for Glasgow East Women's Aid, specialising in providing support to women and children who have suffered domestic and other abuse.

Miscarriage of Justice : Conviction for bank robbery quashed after DNA evidence analysis

A man convicted for a bank robbery and sentenced to 9 years in prison has had his conviction quashed after DNA analysis suggested doubt in the prosecution’s evidence.

The Scotsman reports :

Man who police identified as a bank robber is freed from jail after DNA breakthrough

Published Date: 10 April 2009
By JOHN ROBERTSON
Law Correspondent

A MAN who was jailed for nine years for armed robbery had his conviction quashed yesterday after senior judges raised concerns about building cases on identification evidence alone.

William Mills, 42, was in tears as he walked free from the Court of Criminal Appeal in Edinburgh, and said: "I am delighted ... justice has prevailed."

He had been found guilty of an armed bank raid in 2007.

Although the robber's face had been partially covered with a mask, witnesses, including two policemen who studied CCTV images, identified him.

At his trial, Mr Mills, of Partick, Glasgow, blamed another man but failed to convince the jury. Yesterday, the appeal court was told new DNA evidence had linked that man to the crime.

Lord Gill, the Lord Justice-Clerk, sitting with Lords Eassie and Philip, said there was reasonable doubt, and they concluded Mr Mills had been victim of a miscarriage of justice. "This was a prosecution that stood or fell by eye-witness identification alone. That is a form of proof that has been shown to be, in some cases, a dangerous basis for a prosecution, as history shows," said Lord Gill.

"It is a matter of concern that an important part of the case for the prosecution was the evidence of two police officers, neither eye-witnesses, who made positive statements that Mills was the robber on the basis of looking at CCTV stills. The new evidence confirms all our reservations about this conviction."

Mr Mills had spent about a year in jail, on remand and after his trial, before being released pending his appeal. He said it was the first time he had been in prison, and he intended discussing with his solicitor, Liam O'Donnell, a possible claim for compensation.

He said: "I just wanted this to be over and done with first. My life has stood still for the last two years. I have finally been found to be innocent of a crime I never committed. It was horrible to be locked up for 23 hours a day.

"I've had no faith in the justice system since I got found guilty. I still had hope and just thought, 'Surely this can't happen to an innocent person.'"

More than £8,000 was stolen in the raid at the Royal Bank of Scotland in Dumbarton Road, Glasgow, on 24 May, 2007.

Mr Mills incriminated Michael Absalom, 38, a South African, who had been jailed for eight-and-a-half years for armed raids on an American Express office in Glasgow and a bank in Troon, Ayrshire, around the time of the Dumbarton Road raid.

DNA analysis carried out on a doorstop used by the raider to make a quick getaway was tested following the initial trial and found to match a sample from Absalom.

A source suggested it would be unlikely for Absalom to be charged with the robbery. "If doubt could be created about the identifications of Mills, the same doubt could easily be created about Absalom's DNA being found, with DNA from other unknown people, on a doorstop," he claimed.

Court of Criminal Appeal : Lady Clark posted as 'missing'

Lady Clark, who was listed to appear on the bench at the Court of Criminal Appeal in Edinburgh, has been posted as “missing” (what do you do if the judge doesn't show up ? - Ed)

The Scotsman reports :

Debut judge posted missing

Published Date: 01 April 2009

A COURT was delayed yesterday after a judge failed to turn up for her maiden appearance on the appeal bench.

Lady Clark was listed as the third member of the bench at the Court of Criminal Appeal in Edinburgh, but proceedings did not start as scheduled at 10:30am. The two other judges, Lords Osborne and Reed, with a substitute, Lord Kinclaven, were led into court 45 minutes later.

Lord Osborne said the reasons for Lady Clark's absence had not been ascertained and efforts to track her down had failed.

Lockerbie Appeal to see US expert brought in on ID parade fiasco

The Lockerbie Appeal currently in the Court of Criminal Appeal in Edinburgh, has seen a new development with a challenge from Abdelbasset al Megrahi’s defence team the way the identity parade was handed was unfair, citing the way photos were shown to potential witnesses.

BBC News reports :

Lockerbie appeal ID expert move

The man convicted of the Lockerbie bombing has called in an American psychologist to help clear his name.

Abdelbasset al Megrahi, 56, claims an identity parade line-up was unfair and has challenged the way photos were shown to potential witnesses.

Prof Steve Clark, of the University of California, is said to be an expert on identification procedures.

At Edinburgh's Court of Criminal Appeal, Megrahi's defence team sought the right to show photos to Prof Clark.

Margaret Scott QC said it was "unprecedented" that she should have to ask judges to order the handover of the original photos.

Long-running row

Appeal judges are expected to hear further legal argument on the question next month.

Megrahi is currently serving life in jail for the 1988 atrocity, in which 270 people died.

He lost one appeal against conviction but the Scottish Criminal Cases Review Commission, which investigates possible miscarriages of justice, told the courts to look at the case again.

Megrahi's second attempt to overturn his conviction has led to a number of legal wrangles - including a long-running row about whether defence lawyers should be allowed access to secret documents.

Fraser appeal fails as court upholds conviction despite claims of withheld evidence

In the first of three appeals cases to be televised, the Court of Criminal Appeal in Edinburgh has thrown out Nat Fraser's appeal against his conviction of murdering his estranged wife.

Disquiet over evidence which was not introduced at the trial remains and the businessman insists he will fight on for justice.

The Scotsman reports :

Court throws out Fraser's appeal over murder of wife Arlene

By SHÂN ROSS

NAT Fraser, the businessman convicted of murdering his estranged wife, yesterday failed in an attempt to have his conviction quashed.

The decision came a few days after the tenth anniversary of his wife's disappearance. Fraser, 48, of Elgin, Moray, was jailed in 2003 after a jury found him guilty of murdering Arlene, 33, despite no body being found.

As they emerged from the court in Edinburgh, Mrs Fraser's mother, Isabelle Thompson, her father, Hector McInnes, and sister, Carol Gillies, were smiling.

With his voice shaking and full of emotion, Mr McInnes, who gave a thumbs-up, said: "We are pleased with the outcome. It has taken ten years of our life. Unfortunately, we have not found out about Arlene, but he is where he deserves to be.

"He has given us a life sentence, so he deserves a life sentence as well."

But as he was led away from the back of the court building, Fraser tugged on his handcuffs to delay a Reliance officer putting him into a security van and said to waiting reporters: "The fight will go on, as will the fight to get to the truth."

The mother of two went missing from her home in Elgin in April 1998 after waving her two young children, Jamie and Natalie, off to school.

Last year Fraser's lawyers claimed he had been the victim of a miscarriage of justice and argued that evidence from two police officers was not disclosed to the defence or to the trial.

The prosecution case had included claims that Mrs Fraser's engagement, wedding and eternity rings were placed in the bathroom of her house several days after she vanished.

Evidence later emerged that the police officers may have seen the rings in her house shortly after she disappeared.

But yesterday, at the Court of Criminal Appeal in Edinburgh, three senior judges ruled that Fraser's appeal against conviction should be refused.

The Lord Justice Clerk, Lord Gill, concluded that the proposed evidence of PCs Neil Lynch and Julie Clark was not new and that even if it was, the verdict could not be regarded as a miscarriage of justice.

He said: "The circumstantial evidence alone constituted a compelling case against the appellant. There was evidence that he had motives for the crime. There was evidence of his previous malice and ill-will towards the deceased."

Lord Gill added that there was evidence of "preparatory acts" by Fraser in setting up an alibi.

At one point during the proceedings, Fraser tried to interrupt Lord Gill as he delivered his opinion, saying: "Excuse me, excuse me."

In a highly unusual departure from the usual proceedings in a Scottish court, television cameras were also allowed in.

At a press conference in a nearby hotel, Mrs Fraser's family spoke of their "sheer relief". They also revealed that they would be prepared to do a "trade-off" with Fraser, giving him a reduction of his life sentence if he would disclose where Mrs Fraser's body was buried.

Mrs Gillies said: "I'm appealing to Nat's human side. We'd like to give Arlene a proper burial and a trade-off might be the only way we can get that information."

Mrs Gillies and her father said they were still prepared to put up £20,000 each as a reward for information, despite the fact that no-one had come forward with information in the past.

Mrs Fraser's sister, describing the strain of yesterday's proceedings and seeing Fraser in court, continued: "This case has been full of surprises. I was terrified going into court. I have no feelings towards him. Maybe pity; he's completely ruined his life, he's got nothing ahead of him.

Mrs Gillies added that she "did not feel hatred" towards Fraser.

"I just see him as a source of information. He needs to go back to his cell and think about his future. People talk about 'closure'. We will only get closure when Arlene is found. We need to be true to ourselves and accept that we might never know."

The case could now be considered by the Scottish Criminal Case Review Commission if there were sufficient grounds that a miscarriage of justice had occurred.

Case centred on three rings, but judges weren't convinced

NAT Fraser's appeal against his life sentence centred round three rings worn by his wife – her engagement, wedding and eternity rings, pictured.

In the immediate aftermath of Arlene's disappearance on 28 April, 1998, no trace of them was found by police or family members.

Arlene Fraser: Body has never been found
Arlene Fraser: Body has never been found
But they were eventually found on a wooden dowel beneath a soap dish in the bathroom, after a visit Fraser made to the house on 7 May. It was claimed Fraser had placed them there, suggesting he had access to her body after she vanished.

The trial judge directed the jury at the time that, if they did not accept that Fraser placed the rings in the bathroom on 7 May, they could not convict.

However, in March 2006 it emerged that two police officers, precognosed by the Crown in preparation for the trial, had mentioned seeing rings there prior to the police search.

Two months later, Fraser walked free from prison on bail, after judges heard the grounds of appeal in his case were "compelling".

This evidence had not been known to the advocate-depute and not disclosed to the defence. Fraser's legal team argued for a miscarriage of justice.

The appeal judges yesterday said the ruling was a "misdirection", but one which was "limited in its scope".

Lord Gill told the court: "We can conclude with certainty the jury found that the appellant put the rings in the house on May 7.

"The question is whether, in light of the proposed new evidence, the verdict was a miscarriage of justice. In my view, it was not."

Lord Gill added evidence from the PCs had "no material significance in comparison with the evidence of the family members."

FIVE YEARS OF PAIN

6 MAY 2008 Nat Fraser's appeal against a life sentence for killing his wife is rejected.

28 APRIL 2008 Tenth anniversary of Arlene Fraser's disappearance from her home. Her family gather in Elgin to mark the date privately.

6 DECEMBER 2007 Fraser is sent back to prison, pending a written outcome by three judges, as his appeal comes to an end.

15 NOVEMBER 2007 Police lied to the prosecutor in the Fraser murder trial in order to get a conviction, it is claimed.

14 NOVEMBER 2007 The prosecutor who secured Fraser's conviction for murdering his wife was unaware of important evidence until two years later, appeal judges hear.

6 JUNE 2007 Fraser is to challenge his conviction for murdering his wife when a full appeal is heard later this year.

14 SEPTEMBER 2006 Glenn Lucas, one of the men ( the other was Hector Dick) cleared of murdering Arlene, is found dead at his home in Lincolnshire.

12 MAY 2006 Fraser is freed from prison pending an appeal.

6 MAY 2005 Fraser is allowed to appeal against his conviction.

19 DECEMBER 2003 Fraser lodges an appeal against his conviction for murdering his wife