Once, Twice, Three times a liar

Once, twice, three times a liar.

My son Rory was convicted on June 7th, 2016 at the High Court in Edinburgh of the rape of a sleeping woman after an allegation made on 28th December 2014. He spent 17 months on bail. It was what is commonly known as a he said/she said case where the corroborating evidence was supplied by a friend who was sleeping in the next room. She heard nothing and was completely unaware of anything until her friend woke her and told her she had been raped after my son left the flat. Effectively she corroborated herself. My son has consistently maintained his innocence insisting that the sex was consensual.

After being arrested Rory was fully cooperative with the police. His lawyer told us that the complainer and witness were already changing their story and that it looked like a case of not staying around for cuddles and although there were no guarantees it didn’t look like we would have an uphill struggle. She also said that the officer in charge of the investigation had the authority to charge Rory himself but had gone to his superior who had said charge him and let the COPFS sort it out. Later when Rory got home, he told us that the officer had come into his cell and said  “I take no pleasure in having to charge you, I hope this will be over for you in months rather than years”  While we were very aware of what could happen we were also quite hopeful of an acquittal, and when, while sitting outside the courtroom with his Dad, the investigating officer walked in and straight over to Rory and asked “How are you bearing up Rory?” then “Well it should all be over for you soon” followed by the second officer who gave him a thumbs up, we were encouraged.

Rory was a black cab driver who had worked for 10 years mostly on night shift ferrying vulnerable (through alcohol) women around with never so much as a hint of impropriety, still once he had been charged, we new he would have his license revoked and would be unable to work, so he waited for the letter from the cab office (run by a serving police officer) informing him. It never arrived. His license was not revoked until after the sentencing on 28th July 2016.

At the trial the prosecution and the defence both put their evidence to the court. There was no forensic evidence that confirmed either story, and after the complainer had given her evidence at the trial the word struggle was removed from the indictment because the complainer claimed only that she had no words, although in her statement to the police she had claimed she cried out and struggled. Contrary to what the victim’s organisations and the Harriet Harman’s of this world say, the defence are not allowed to robustly cross examine the complainer and there is no scrutiny of her evidence, for example in her initial statement the complainer claimed she had split up from her boyfriend but was still sharing a flat with him. In her trial evidence she was asked by the prosecution whether she was or had been in a relationship at the time of the allegation to which she replied NO. Indeed only a few weeks after the allegation she posted a picture of a gift she had received from him.   

It was simply a case of who would the jury believe, except for the sucker punch when the prosecution ended their cross examination with “And how has this incident affected you?”

Her answer – “I have been unable to go to work.”

                          “I cannot go out with friends.”

                        “I am no longer confident and outgoing”

                         “I have panic attacks about going out and do not lead a normal life.”

                       “I ‘ve had very little contact with the other witness and have not been to the witnesses flat since the incident.”

 So, Rory was found guilty by majority verdict (In Scotland a simple majority is all that is required to convict, that’s 8 out of 15 jurors) though the majority is not revealed. Later he was sentenced to 7 years, a sentence that every lawyer we have spoken to says is extremely harsh and they cannot understand.

After the conviction the family looked at the complainer’s Facebook account and the first posting we found showed her, on the day after she had given evidence, enjoying a night out with friends in the same club in which she had met my son. Surprised, we continued to scroll backwards and discovered that contrary to what she had claimed she had in fact worked consistently, gone out with friends frequently, had visited the witness in her home on several occasions and had gone to a concert with her(the witness). She enjoyed a busy life, going to the gym, walking her dogs and was confident and outgoing and showed no difference in her life before and after the allegation.

I would at this stage like to say that not at any time have we claimed that  there is anything wrong with the complainer going out socialising etc: the point is she was lying about it in court and in her victim impact statement, which raises the question – why? If she lies about that under oath, then what else is she lying about? In cases such as this credibility is key!

We downloaded all this evidence, some 500 pages or so, and found a new solicitor and QC, Gordon Jackson QC, Dean of Faculty, as senior counsel, Fred Mackintosh, Junior counsel and Rosemary Cameron, John Pryde Solicitors, to apply for an appeal. As they told us on several occasion – the best team!  They submitted a selection of the postings as new evidence and were granted an appeal against both conviction and sentence, at the first sift in November 2016. There then followed several procedural hearings. The prosecution initially argued that the evidence was not new but were given a copy of the evidence for verification, they claimed that the question had been irrelevant and therefore the evidence was not relevant. Defence successfully argued these points; the evidence was not available to us at the time of the trial and the question having been asked, her answers became evidence that the jury could consider in their determinations. At an  unsuccessful interim liberation hearing just before Christmas, the Advocate Depute  (it was a different person at each hearing), stated that he could not argue against the evidence though that may not be the prosecution’s position at the appeal, however he was happy to see Rory given interim liberation under normal bail conditions.  

At the next hearing Lord Turnbull said that they should have some explanation for the inconsistency between the complainants statement in court and the Facebook evidence, so the prosecution suggested that they should get an affidavit from both the complainer and the witness, who was also shown to have lied though to a lesser extent, as they did not want to bring them back to court. Defence agreed with this though said they may want to cross examine her depending on what was in the affidavit.

After the hearing we discussed this with junior counsel and our lawyer who said that she could only claim that the evidence was not real but if she did that, we would have another 400 pages to submit to show that it was untrue

At the final procedural hearing the prosecution had changed their minds and wanted to bring both women back to court,  Mr Jackson agreed, and said that he too would want to cross examine them and that the defence would be submitting all 500 pages of evidence, the preparation of which he delegated to Mr Mackintosh, and requested some additional time before the appeal to do this.

After that hearing we were standing outside the courtroom when Mr Mackintosh and Ms Cameron asked us to go through the evidence and pick out the most relevant posts and write a short note about them for context. Discussing the affidavits, they told us that although we could not see it as Rory should see it first it contained nothing of any concern to us, just that the Facebook was a persona as she didn’t want to upset her parents.  Over the weekend the family went through the postings picking those that were work related, some that referred to visits to the witnesses flat and a night out together at a Foo Fighters concert and about 30 postings of nights out/ social events with friends, each one had a short note attached to give any additional information or context. We did not highlight any that referred to time spent with her boyfriend except one which revealed a holiday abroad. These were handed over on the following Tuesday as requested. 

Later, Rory was visited by all three of the defence team, they told him exactly what they had told us about the affidavit but did not show it to him. Mr Mackintosh speculated that the prosecution would not bring the complainer to court, Mr Jackson disagreed saying that if it were him that is what he would do and reiterated that Mr Mackintosh should go through all the postings in preparation. When he took his leave, his departing words were “Don’t worry, we’re on it” 

A few days later Ms Cameron made a video call to Rory in which she stated that she and Mr Mackintosh had persuaded Mr Jackson that they shouldn’t submit all the evidence as this was an appeal not a trial. Her reasons for this were that the prosecution might use some of the postings against them, there was a posting where the complainer had sympathised with someone who had committed suicide. On hearing this Rory’s brother emailed her to ask for clarification as we were concerned. She replied immediately that she was at a conference but would get in touch on her return. We waited for her call which didn’t come so my husband phoned her office, at which time she told him the appeal papers had already been submitted. Their decision was the best course to take and that she and Mr Mackintosh were in the appeal court all the time, whereas Mr Jackson was more used to trials. And finally, if we didn’t win this, we would think there was no justice. Incidentally the post she had referred to had been a shared post which had originated from a pub in Yorkshire, a local soldier had committed suicide. It had been shared many times and the complainer had shared too, she had made no comment about it, just clicked the share icon as would anyone.

So, on May 9th, 2017 the appeal took place. The Advocate Depute (Scottish version of Prosecution Barrister), Sheena Fraser asked the complainer if she had given an affidavit to which she replied she had been shown some Facebook postings and asked to comment on them and someone had written down what she said. The Advocate Depute then continued with her examination of the complainer.

The defence had submitted an extract taken from a posting which was a conversation with a friend discussing the fact that they both had new job to go to in the new year.

The Advocate Depute asked if she was working at the time of the incident? – Yes.                                                                                                                      

What about immediately after were you able to go to work? – No. I was phoning in sick because I was too traumatised.

How long for, when did you give up your job? – Middle of January.

In fact, none of this was true. The entire posting showed that she had resigned her job on 17th December giving 1 weeks’ notice because her employer wouldn’t compromise on Christmas, so her final day was 24th December 2014. She had a new job lined up but was expecting training to be at the end of January. Her friend commented that they would both start the New Year being “skint”. She later posted on 22nd December that she had worked her last shift, so she had clearly not had a change of mind. This was a deliberate lie to the appeal court and it has to be noted that the prosecution were in possession of all the postings so either allowed this lie or had not scrutinised the evidence despite the fact that she was in the appeal court because she had lied at the trial.

Having completed her training in the interim, she had in fact worked from March 2nd 2015 right through until the end of the year.  In early 2016 the complainer hurt her back and had physiotherapy. When asked if she had worked since December 2015 she replied that she hadn’t including the time between the trial and appeal again because of the Psychological trauma. As before, no-one questioned this, they just accepted as truth everything she claimed, but again FB postings immediately after the trial (we downloaded until August because we didn’t expect later postings to be relevant in the appeal) showed that she was working in a tattoo parlour.   

Her examination then moved on to her social life, we discovered the defence had submitted 13 postings relating to nights out, four of which were wrong, despite our having made notes about them, which reduced the number to 9. The posting which showed her in the same club where she had met Rory on the day after giving her evidence at the trial was ignored by the prosecution, but they asked her about the remaining ones. Her response to these was that she had been a reluctant participant at all these events, going along only because her friends had wanted her to. For example, she was shown a photograph of herself in a beer garden with 2 friends, she claimed she didn’t really want to go, she had gone along because she didn’t want to disappoint her friends, she had not been drinking and had driven them home afterwards. Again we had evidence that the previous day she posted “the weather is great today, I feel like going to a beer garden but instead I have to go to work” so it would appear that she was the instigator of the outing and contrary to what she claimed the photograph shows them with 3 beers on the table including one in front of her and an additional picture showing just their drinks. 

There were more questions about her visits to the witnesses flat, she claimed that she had not been back and had little contact, only meeting her in town for coffee once. The postings showed her at the flat on 4 occasions and that they had gone to a Foo Fighters concert together. The defence submitted only 2 postings contradicting her, but her response was that she simply forgot she had been to the flat and the concert. Again, the prosecution had evidence that she had been out more than 30 times and been at the flat on more occasions but chose to ignore the truth. Furthermore, she claimed that she had not been out since the trial but as before the postings showed that between the trial in June and August, she was out socialising with friends on 12 occasions.

They also asked her if she was in a relationship to which she replied that she wasn’t, again untrue. She had been in a relationship since March according to her status on Facebook.

Listening to this my heart soared, I knew that she was lying. We had the evidence there to prove it and fully expected the defence to expose her. Then Mr Jackson got up to do the cross examination and said “I am not going to go through the submissions again, it would seem that she was going to give up her job anyway”  It was obvious that they were not aware of the lies, their argument was to be an intellectual one. He did get her to admit that she had lied at the trial and the jury would have been misled but at that stage she looked away and refused to answer and Lord Menzies stopped his cross examination saying “we get the point Mr Jackson, we can do this at summing up”   

So, in their summing up the prosecution narrative was that she hadn’t intended to lie, she had only been out 6 or 7 times in the seventeen months between her allegation and the trial which for someone like her was the same as not going out. She had been unable to work and had not been out in the 11 months since the trial, and whether she had or not was neither here nor there, that had she been cross examined on her claims at the trial she would have been able to explain them away as she just had. They took advantage of the defence position that they would make an intellectual argument and encouraged the complainer to lie again, the explanations given were not actually an explanation of why she had claimed she couldn’t/didn’t go out and couldn’t go to work , they were simply an explanation of where she went and who she was with. They completely ignored the evidence that she had worked consistently and gone out frequently, if they had studied all the evidence it would have painted a completely different picture to the one, they gave. Considering that the appeal hearing was granted on the grounds that we had new evidence that she had lied at trial, it should and could have been an easy task to request work records etc; to check her claims.

Mr Jackson then summed up for the defence. He argued that she had lied to the jury, they would have taken account of her claims in the deliberations and had they been aware that she had lied to them they would have reached a different conclusion. Finally, to end his summing up he was going to read a quote from another judges decision which started “One lie is enough” Then Lord Menzies  suddenly said “Can I interrupt you Mr Jackson, to ask an unrelated question” then fumbled a little before asking his question. Mr Jackson seemed a little taken aback but answered before Lord Menzies then said, “Thank you, we will just move on to the sentencing appeal now” He never got to read the quote so consequently the judges didn’t have to consider it in their decision. Had he read out the entire quote they would have had to either agree with it or explain why they didn’t agree with a colleague and eminent judge.

Mr Jackson had been under the impression that the sentencing appeal would happen at a later time so he was not really prepared, so it consisted of one sentence about the trial judge who was wrong in his assertion that Rory was a predator because the witness had claimed he got into their taxi uninvited but the complainer had said that they both invited him. 

It took them about 10 minutes to reach their decision to refuse the appeal for both the conviction and the sentence.  We were completely shocked that she had got away with telling lies again, and that the lies had grown arms and legs. Even though we were granted the appeal in the first place because she had lied, ironically there was no scrutiny of anything she said.

In “the Opinion of the Court” released 16 weeks later, the judges said, “we accept the prosecution’s argument”. Because she had only been out 6 times and hadn’t been able to work for several weeks her claims in the trial were essentially true, she was credible. They added in that she was unable to have relationships which was another falsehood, there were 3 between the allegation and the appeal. The evidence they said was on the periphery and it was exaggerated. Lord Malcolm wrote the Opinion of the Court and he was the judge who granted extra time in which to allow the defence to submit all 500 pages of evidence, little wonder then that when he saw what had been submitted he thought it had been exaggerated.

Immediately after the appeal we asked the lawyer what we could do next, she told us we could apply to the SCCRC, it was just a matter of filling in the form and sending it off, but we should wait for the judge’s opinion. We waited for weeks, asking the lawyer if there was any word until eventually, she told us just to send off the application for review, the SCCRC would see that the judges were having difficulty writing their report and when it eventually came out we would be able to use it to appeal, if needed. Our appeal which we wrote ourselves, was on the grounds that the judges had been misled at the appeal, she had lied in her evidence, the prosecution had taken advantage of the defence decision to not put forward all the evidence and presented a narrative that was false therefore she was not credible. The application was refused because the grounds were the same as those for the appeal, the judges had decided that the evidence was peripheral. The lies that she told at the appeal though were certainly not on the periphery they were directly related to the grounds of the appeal. The sentencing appeal was also refused as the judges had said it was within the range. They completely ignored the fact that she was not credible. 

At a meeting in November 2016 with Ms Cameron and Mr Mackintosh we discussed the failed submission, they said there were issues with the judges “Opinion” and we should argue that the standard that the judges hold themselves to because of their judicial oath should also be applied to the witness who swore to tell the truth the whole truth and nothing but the truth.  I asked them if it wouldn’t be better for the next submission to be prepared by a lawyer, but they disagreed saying that it would be prohibitively expensive and some of the best submissions they had seen were prepared by the defendant/family themselves. They didn’t tell us that we could get legal aid. We set about preparing a new appeal for review in which we argued the oath and explained the evidence in more detail we found  postings relating to 42 nights out/ social events leading up to the trial and 12 in the 2 months after the trial but again were refused because it was the same grounds as the previous application. They said we could apply for a judicial review if we wanted to appeal their decision. Mr Mackintosh had told us at the earlier meeting that we couldn’t get a judicial review of the SCCRC decision as they were effectively the review.

We decided to get another lawyer, who advised us that a judicial review would take too long. He said he didn’t understand how we did not win the appeal or why the SCCRC had refused a review. He said it was a defective defence, but he wouldn’t do that as it was against Mr Jackson, we wouldn’t get anyone to kick the Dean. The submissions we had made were our appeal, we should go away add more evidence, rewrite it and send it to SCCRC then he would write that we had just appointed him and support our application. We did this but he didn’t! when we contacted him and sent a copy of our submission, he said there was nothing he could add, we had said everything that could be said. Not surprisingly we were refused again because the grounds were the same as the appeal. We decided that we would have to change the grounds of the appeal to defective defence and write the application again. Our grounds this time were that the defence should have submitted all the evidence, that they didn’t have a sufficient understanding of the postings that they did submit, they had made mistakes in submitting postings that were wrong, they had not been able to challenge the lies in the appeal and that the prosecution had misled the court. They had been dishonest in taking advantage of the defence position and had encouraged her to lie in her evidence. We were refused again because the grounds were the same as the other applications and the appeal and were put on to the Register of Repeat and Persistent Applicants (The Pest Register).

It’s difficult to understand why, when we have the evidence to show that she was lying in the appeal the SCCRC take the view that it wouldn’t have mattered to the judges. I cannot imagine that if she had been challenged at the time and everything that she claimed had been shown to be false, that the judges would have found her credible. If it is OK to go into a courtroom, swear an oath to tell the truth then completely disregard it, what is the point of the trial?  

On receipt of the first refusal from SCCRC we decided to try to find other supporting evidence so approached the Police Information Management Unit on 22nd November 2017 for any CCTV of Rory, the complainer and witness they had retrieved. It took them 40 days to tell us that all productions had been destroyed we then submitted a further request asking on whose authority it had been destroyed and on what date. It took several weeks to receive a response that it had been ordered by COPFS on 23rd September 2017, when incidentally we had a submission being considered by the SCCRC, which is not supposed to happen, and around the time they would have approached the court for documents. The destruction had taken place on 30th November 2017, 8 days after we had made our application which had been sent by recorded delivery for the next day. We also made a complaint regarding the conduct of Ms Fraser QC, the Advocate Depute, encouraging the complainer to lie at the appeal during the period when we were waiting for the “Opinion of the Court” prior to our application to SCCRC. It would seem that they destroyed the CCTV evidence with indecent haste.

This complainer has lied under oath on three occasions, at trial, in the affidavit and at the appeal hearing, not to mention the lies she told in her victim’s statement. I have no doubt that a defence witness in this situation would be prosecuted for perjury and perverting the cause of justice. 

One lie is enough to question all truths (Anonymous)

                                                                                        Blog :www.oncetwicethreetimes.org                                                                                                           

              Twitter: @YvonneC14369949   

Below is a sample of the postings made by the complainer that were recovered by Rory’s family. Many of these were not seen by the judges (according to Opinion of the court, only eight) and contradict the evidence the Complainer gave at the Appeal. All of these postings were seen by the Crown.

Posting 1. December 18th – Complainer states that she handed in 1 week’s notice to her employer and will leave her job on 24th December 2014. She has a new job to go to with as yet, no start date but training to start at the end of January 2015.

Posting 2. December 22nd 2014 – Complainer states that this is officially her last day working.

Posting 3. July 3rd 2016 – Complainer posts photograph inside ……Tattoo studio and comments “work, work, work”

Posting 4. July 12th 2016 – Posts text from boss asking if she is ready for work after T in the Park.

Posting 5. July 15th 2016 – Posts conversation with boss reminding him he has an appointment that morning.

Posting 6. August 11th 2016 – Posts photograph of herself working in studio.

Posting 7. July 17th 2016 – Posts photograph of herself working in studio.

Posting 8. July 17th 2016 – Posts to Facebook picture of 2 friends visiting her at the studio alongside a picture of herself standing in doorway at studio.

Posting 9.  January 16th 2015 – Birthday meal.

Posting 10. January 25th 2015 – Complainer visits a medium.

Posting 11. February 16th Cinema date with friend then onto a bar.

Posting 12. February 21st 2015 – Meet up with best friend.

Posting 13. March 1st 2015 – Surprise birthday party for uncle.

Posting 14. March 14th 2015 – Posts pictures from night out at AC/DC tribute concert.

Posting 15. March 17th 2015 – Complainer comments she won’t be drinking on a school night again. With friend……………

Posting 16. March 21st 2015 – Feeling hungover with……………..

Posting 17. April 6th 2015 – Beach day followed by night out at Hive night club with friend.

Posting 18. April 23rd 2015 – Afternoon meetup with friends, went to a beer garden.

Posting 19. May 9th 2015 – Trip to Deep Sea World with …………….

Posting 20. May 18th 2015 – Complainer posts photograph of herself with a large group of friends in a pub.

Posting 21. May 31st 2015 – Complainer posts picture with ……………attending a pub quiz.

Posting 22. August 3rd 2015  – On holiday in Turkey with ………..

Posting 23. August 7th 2015 – In a bar with ………. having returned from holiday.

Posting 24. August 11th 2015 – Visiting ..…in her flat (Witness)

Posting 29. October 4th 2015 – Trip to Loch Ness.

Posting 30. November 6th 2015 – Girly day out, shopping and lunch at Brewers Fayre with friend.

Posting 31. November 15th  – Posted from previous night. With friend at Opium Nightclub.

Posting 32. November 26th 2015 – Posted pictures from night out at Edinburgh’s Christmas Market.

Posting 33. December 22nd 2015 – Birthday celebration for friend …………

Posting 34. February 1st 2016 – Night out.

Posting 35. February 21st 2016 – With friend …………..

Posting 36. February 26th 2016 –  Night out with ………….

Posting 37. March 8th 2016 – With friend ………..

Posting 38. March 13th 2016 – Girls night.

Posting 39. March 23rd 2016 – Meal out with ………….

Posting 40. March 25th 2016 – Out for drinks with friends.

Posting 41. April 7th 2016 – Pub.

Posting 42 April 16th 2016 –Night out with friends.

Posting 43. May 6th 2016 – Day out with ……………

Posting 44. May 9th 2016 – Day out at the beach.

Posting 45. May 10th 2016 – Out with friends.

Posting 46. May 11th 2016 – Tequila night birthday celebration for Friend.

Posting 47. May 13th 2016 – Night out with friends.

Posting 48. May 14th 2016 – Out with ………… for a meal.

Posting 49. May 25th 2016 –  Date with ……………..

Posting 50. May 29th 2016 – Night out with friends.

Posting 51. June 3rd 2016 – Night out at Opium nightclub. The day after giving evidence that she couldn’t go out,  and in the middle of the trial.   

Since the complainer claimed at the appeal that she had still not been out since the trial, only the seven nights out mentioned, I have included posts up until 19 August 2017. We didn’t collect any posts beyond this date.

Posting 52. June18th 2016 – Drinks with friend.

Posting 53. June 26th 2016 – Lunch date in pub with friend.

Posting 54. July 2nd 2016 – Night out the previous night with a group of friends.

Posting 55. July 2nd 2016 – Lunch at Brewers Fayre.

Posting 56. July 11th 2016 – Posted has been to T in the Park.

Posting 57. July 16th 2016 – Overnight stay in North Berwick.

Posting 58. July 22nd 2016 – Lunch date with …………..

Posting 59. July 23rd 2016 – Charity night with ………… then on to Opium Nightclub.

Posting 60. August 2nd 2016 – Going out to dinner.

Posting 61. August 6th 2016 – Out with friends

Posting 62. August 15th 2016 – With group of friends

Posting 63. August 19th 2016 – In a pub with ………..

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