Friday, January 26th, 2018
DC v DG and DR  CSIH 72
Barney Ross of Compass Chambers appeared with Simon Di Rollo QC of Ampersand Advocates on behalf of the pursuer/respondent in this Reclaiming Motion heard by the Second Division of the Inner House.
This was a civil action in which the pursuer and respondent sought 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. They reclaimed the decision at first instance.
After proof on liability Lord Armstrong found in favour of the respondent. He held that 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 had the capacity to give free agreement.
There were 2 Grounds of Appeal:
1. Whether the Lord Ordinary erred in his treatment of a witness, who lived in the flat upstairs from that in which the events in question were said to have occurred;
2. Whether, by failing to give adequate weight to the CCTV evidence 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.
‘No merit’ in the appeal
Delivering the opinion of the court, the Lord Justice Clerk said: “The Lord Ordinary considered the issue of the respondent’s level of intoxication under reference to (i) the CCTV evidence; (ii) the eye witness evidence; (iii) her likely consumption during the evening; and (iv) the expert evidence."
“As the Lord Ordinary pointed out, the CCTV evidence provided only evidence of snapshots during the course of the evening. His view of it as a whole was that, whilst she could be seen to walk unaided in clips shown, the CCTV evidence generally depicted the respondent as intoxicated.”
“In light of all this evidence we do not consider that there is any merit in the suggestion that the Lord Ordinary did not give sufficient weight to the CCTV evidence.”
Turning to the evidence of the witness from the neighbouring flat, the judges considered that the Lord Ordinary was entitled to conclude that his evidence was not reliable:
“In our view that was a conclusion which was open to the Lord Ordinary on the evidence. For the reasons we have explained, we consider that the Lord Ordinary’s specific reasons for considering the possibility of confusion are not ‘insupportable’ and that there is no merit in the attack upon his assessment of the evidence or the reasons he gave therefore.”
It was added that even if the Lord Ordinary had erred in his treatment of the evidence of that witness, the reclaiming motion would have been refused, as they were not “persuaded that this would have made any difference to the outcome, standing the Lord Ordinary’s acceptance of the evidence, including expert evidence, as to the respondent’s condition, and his conclusion as to the reclaimers’ awareness of it (none of which was the subject of challenge).”
The opinion of the court can be read here.