David Pugh, Kevin Kane and Brian Meighan - known as the “Fernieside Three” - were convicted after trial in 2000 of detaining a woman against her will and raping her in a tower block in the south of Edinburgh the year before. The Crown Office relied on evidence from a police casualty surgeon in respect of injuries to the complainer.
The three men denied the offence and claimed the 21-year-old woman had consented to group sex. They have always maintained their innocence.
In January, the Scottish Criminal Cases Review Commission (SCCRC) referred all three applicants’ convictions to the High Court for an appeal in light of fresh evidence arising from developments in medical science.
A source said: “There are three expert reports which have been obtained which undermine her (the forensic examiner's) evidence.
“It’s about whether or not injuries that the complainer had are attributable to non consensual sex.”
One of the expert reports being used is from forensic pathologist Birgitte Schmidt Astrup, associate professor at the Institute of Forensic Medicine at the University of Southern Denmark, who published a study in 2012 suggesting vaginal injuries are just as common after voluntary sex as they are in rapes.
Her study looked at 110 nursing students in their early 20s and 39 rape victims at the Centre for Rape Victims at Odense University Hospital. They were all given a medical examination less than 48 hours after intercourse or rape.
The results showed vaginal injuries were found in 36 percent of rape victims and in 34 percent of the nursing students.
Prof Astrup told Science Nordic at the time that these types of injuries can not be used for much more than to establish that intercourse has taken place and that, in cases where convictions have been based on such injuries, it can be reasonably discussed whether there has been a miscarriage of justice.
The results for the nursing students were not affected by whether they, for instance, had engaged in gentle or rough sex or whether they had used condoms or sex toys.
Prof Astrup’s findings were published in the journal Forensic Science International and are said to have impacted the way Danish police conduct their investigative work.
Details from the other two expert reports being used in the appeal process are unknown at this stage.
But the SCCRC said previously it considers the fresh evidence now available is of a “kind and quality” which was likely to have been of “material assistance” to the jury in its consideration of the critical issue of consent, and there “may have been a miscarraige of justice.”
A substantive appeal date has not yet been confirmed but a procedural hearing is due to take place later in April.
The three men were each sentenced to six years in jail following conviction and released on licence in 2004. Initial appeals were refused in June 2002, and in 2004 the SCCRS refused to consider referring their cases back to the High Court.
They also called for a judicial review to challenge the commission’s refusal and this was turned down in July 2006.
In April 2019, David Pugh applied again to the commission in relation to the fresh evidence from the three experts which refuted the opinion evidence given by the forensic medical examiner at trial.
Given the grounds to be reviewed were common to the co-accused, Meighan and Kane, they also applied to have their convictions reviewed in September 2020.
‘Lured’ into flat
The High Court in Edinburgh was told the woman was lured into a 14th floor flat in Little France House in November 1999. She told the court that she had been looking for a friend in Craigour Place at the time.
When outside she called for her friend but got no reply and said she heard someone from the block of flats ask who she was looking for. The woman, who was 21 at the time, said she was told the friend she was seeking was in the flat where she found three strangers – Meighan, Kane and Pugh.
The woman said she was worried after they got into a conversation about sex and tried to leave but was pushed into the bedroom and attacked.
The three men claimed the woman was allowed to alter her 14-page police statement regarding where the attack was said to have taken place, changing it from the stairwell of a high-rise to one of the accused’s flats.
The men - aged 19, 23 and 24 at the time - also claimed police officers failed to test the woman for drug use and tried to suppress CCTV evidence.
They insist the woman consented to group sex, and twice turned down the chance of parole by refusing to change their pleas to guilty.