A MAN jailed for rape has had his conviction overturned because he faced police questions without a lawyer.
Appeal judges in Edinburgh ruled that Ryan McCallum, 32, should benefit from the Cadder ruling, which outlawed the use of evidence obtained during such interviews.
McCallum was sentenced to five years in prison after a woman told a trial he had attacked her in a Glasgow flat in March 2008 following a wine and cocaine-fuelled sex encounter.
The court heard he ripped her clothes and forced himself on her.
McCallum admitted there had been a struggle but claimed the woman had been flirting with him and willing to have sex.
He told how they had been drinking and snorting cocaine that evening.
Injuries to her wrists and the damage to her clothes happened when they quarrelled afterwards, he told the trial at the High Court in Glasgow in May 2009.
A jury found him guilty but solicitor advocate John Carroll, defending, told the Court of Criminal Appeal in Edinburgh that McCallum had suffered a miscarriage of justice.
He told Judge Lord Eassie, sitting with Lord Menzies and Lord Wheatley, that prosecutors at the trial had used what McCallum told police to attack his credibility by pointing out inconsistencies.
The lawyer said there had been 42 references to the interviews in an attempt to brand McCallum a liar.
Lord Eassie noted that about one-third of the prosecutor's closing speech to the jury had been based on the interviews.
Mr Carroll claimed that McCallum had been denied a fair trial because of the Supreme Court decision two years ago in the case of Peter Cadder, which ruled that it was a breach of human rights to allow an accused to be detained and interviewed by police without a chance to get legal advice first.
The ruling prompted emergency legislation to be pushed through Holyrood to ensure Scotland complied with the European Convention on Human Rights.
Advocate depute Alex Prentice, QC, told the Edinburgh appeal judges that the Crown accepted the Cadder ruling made the interview evidence inadmissible.
However, he claimed there were other reasons to accept the woman's account of events, so the conviction should stand.
Lord Eassie, giving yesterday's decision, agreed with Mr Carroll that without the prosecution's use of the question and answer session with police, the outcome of the trial could have been different.
McCallum's trial and sentence happened before the legal arguments sparked by Peter Cadder – accused of an assault in Glasgow – led to a change in the law.
But the Scottish Criminal Cases Review Commission, which investigates possible miscarriages of justice, decided that McCallum's conviction could be challenged.
It is thought that he was the first to benefit from such a decision.
The Cadder ruling has led to hundreds of cases being abandoned and some cases being tried again under the new rules.
It has also been blamed for a fall of around one-third in the number of rape and attempted rape convictions in Scottish courts.
Why are you making commenting on The Herald only available to subscribers?
It should have been a safe space for informed debate, somewhere for readers to discuss issues around the biggest stories of the day, but all too often the below the line comments on most websites have become bogged down by off-topic discussions and abuse.
heraldscotland.com is tackling this problem by allowing only subscribers to comment.
We are doing this to improve the experience for our loyal readers and we believe it will reduce the ability of trolls and troublemakers, who occasionally find their way onto our site, to abuse our journalists and readers. We also hope it will help the comments section fulfil its promise as a part of Scotland's conversation with itself.
We are lucky at The Herald. We are read by an informed, educated readership who can add their knowledge and insights to our stories.
That is invaluable.
We are making the subscriber-only change to support our valued readers, who tell us they don't want the site cluttered up with irrelevant comments, untruths and abuse.
In the past, the journalist’s job was to collect and distribute information to the audience. Technology means that readers can shape a discussion. We look forward to hearing from you on heraldscotland.com
Comments & Moderation
Readers’ comments: You are personally liable for the content of any comments you upload to this website, so please act responsibly. We do not pre-moderate or monitor readers’ comments appearing on our websites, but we do post-moderate in response to complaints we receive or otherwise when a potential problem comes to our attention. You can make a complaint by using the ‘report this post’ link . We may then apply our discretion under the user terms to amend or delete comments.
Post moderation is undertaken full-time 9am-6pm on weekdays, and on a part-time basis outwith those hours.
Read the rules hereComments are closed on this article