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Students cleared of gang rape to have defence costs refunded

Patrick Foster, James Martin, Thady Duff and Leo Mahan
Patrick Foster, James Martin, Thady Duff and Leo Mahan

Three Royal Agricultural University students cleared of gang rape charges are to get some of their defence costs refunded after a judge today criticised the police and prosecution handling of the case.

Judge Jamie Tabor QC ruled that if full details about the alleged rape victim's past promiscuous sexual behaviour had been investigated and revealed by the officer in the case, Det Con Ben Lewis, the students would probably not even have been charged.

Detective Constable Lewis had been accused by defence lawyers at an earlier hearing of 'vandalising' the case by not making full disclosures about the woman's sexual past.

It was clear, said the judge that the officer had become a 'confidante' of the alleged victim.

The officer knew about her 'sexual predilections' and even that she had sent naked photographs of herself to one of the defendants but he made only minimal notes about that and did not disclose it, the judge said.

The students had claimed the woman was a willing sex partner at the time of the alleged rapes after the University May Ball in Cirencester two years ago.

Evidence about her having three in a bed sex with one soldier and intercourse with another soldier on the same night in Oct 2013 was also a key factor in the case.

At Gloucester crown court today the judge allowed an application by the three students for their defence costs - but not in full.

All three were represented by QCs as well as solicitors and the judge said that had not been necessary.

They should be paid only for junior barristers and for one solicitor between them - and they will receive only 75 percent of those costs, he said.

The judge said he would leave it to a court 'taxing master' to assess the exact amounts they will receive.

No figures were revealed at today's hearing.

Thady Duff, 22, of Stubbs Hill Farm, Blunsdon, Swindon; Leo Mahon, 21, of Lawrence road, Cirencester, whose family home is in Stratford Upon Avon, and Patrick Foster, 22, of Lawrence road, Cirencester, whose family home is in Maldon Road, Kelvedon, Essex, were all to have stood trial last month on 11 rape and sex assault charges.

They were jointly charged with amateur jockey James Martin, 20, of Yew Tree Barn, Hook Norton Road, Swerford, Chipping Norton, Oxfordshire, but he was defended on Legal Aid and did not make any costs application.

All four were formally cleared last month when the prosecution dropped the case after the defence team checked mobile phone records of the night of the incident - and details of a rape case against a soldier whom the woman had slept with six months earlier.

Giving his judgement on the costs application today Judge Tabor said he found that Det Con Lewis and the Crown Prosecution Service were jointly to blame for the non-disclosure of important evidence about the woman's sexual past as well as her behaviour on the night of the alleged rapes.

He said that evidence about the woman having sex with two soldiers at the Tidworth base in Wiltshire in October 2013 - seven months before the alleged gang rape - was ' vital' for the fair conduct of the trial but had not been fully disclosed.

Video clips of parts of the alleged gang rape filmed by Thady Duff should also have been fully disclosed along with any other relevant phone material, he said.

Judge Tabor pointed out that defendants were entitled to costs if there had been 'unnecessary or improper acts or omissions' or 'bad faith, or clear and stark error" by the police and/or prosecution.

The judge said "During the first part of the alleged gang rape of the complainant in her room the defendant Thady Duff took videos of several parts of the incident.

"These were transmitted by social media to several friends. These videos were being shown in a pub the next day. They then found their way into the public domain.

"Thady Duff and Patrick Foster asked the complainant shortly afterwards why she was alleging she had been raped.

"The video clips depict several acts of sexual intercourse between her and one or more of the defendants. The earlier clips do not appear to support the Crown case that she was not consenting. However, it could have been argued that later clips could have provided some support for the Crown.

"On 23rd Feb this year the prosecution were aware that the defence had material which potentially contradicted the complainant's account either wholly or partly.

"The prosecution case had been torpedoed but the ship might still have made it in to port if that had been the only torpedo.

"But would the defendants ever have been charged if this material had been in the hands of the police? "

The judge also referred to messages between the alleged victim and a woman friend in which she said that the video clips might show her 'smiling and being normal.'

Judge Tabor said "This was never disclosed to the defence. It was highly relevant. It sits uncomfortably with an allegation of rape.

"She knew that her demeanour on some of the clips might undermine her case.

"It is less likely, if the prosecution lawyer had seen these clips, that the defendants would have been charged."

The judge also referred to a text the woman sent a few hours after the alleged gang rape.

"From these messages it is quite clear she took some pride in this attribute," said the judge.

"This sits uncomfortably with the suggestion that she had been gang raped four hours earlier.

"All this only came to light after the defence interrogated the mobile phone at the start of the trial process."

The texts did not fit with the woman's allegations against the students and affected her credibility, he said.

Judge Tabor said that in not discovering and revealing the details of the video clips and the texts Det Con Lewis showed he had "a restrictive and incorrect view of what should be disclosed and what should not be disclosed."

The judge went on to review the evidence which had also emerged late in the case about the woman's trip to an army camp with a friend in Oct 2013. Texts from the woman had come to light in which she said she had sex with two men there. However, another woman who had been in bed with her and a soldier had made a rape complaint which was investigated by Royal Military Police.

"They were apparently having a threesome when for some reason the woman took against the activity," the judge said.

"That information remained in the unused material in this case.

"On 20th Oct 2013 the Royal Military Police went to the Royal Agricultural University to interview this complainant as a witness. She said she would not be interviewed until she had spoken to Det Con Lewis.

"She then texted a friend and said she had slept with this man. She was then remarkably frank about her sexual encounters but she was concerned that if it got out her credibility in the rape case would be undermined. I only hope the officer in the case did not see this message for if he did it should most certainly have been disclosed instantly."

The judge said the Royal Military Police had not been willing to divulge full information about their case to Gloucestershire police but in his view that material would have been vital to the fair conduct of the students' trial.

"By the first day of this trial no material regarding the RMP case had been disclosed," said Judge Tabor. "

After this trial had started a synopsis was provided to the defence and they pressed for full disclosure.

Only then did it emerge that she had also had sex with another man at the military camp that night.

"The defence say that the failures to disclose information demonstrate that the officer in the case did not have a proper grasp of his responsibilities. Any conscientious officer would have pursued the file in the Royal Military Police case with vigour and tenacity.

"The officer had frequent meetings with the complainant and was well aware of her particular sexuality which made it especially important that the RMP file be examined.

"This officer, in my judgement, either through inexperience or lack of understanding of his role, failed to provide adequate disclosure."

The judge went on "She did not hide her sexual predilections from the officer. She discussed her sexual behaviour with him in great detail on several occasions.

He has either made no notes about that or minimal and uninformative ones. His failure to make notes was even remarked on by her.

"Aware as he was of his duties and her character he should have investigated her telephone in far greater detail than he did. He appears to have had a limited grasp of his responsibilities as disclosure officer. There is no evidence that he consulted the Crown Prosecution Service about any material he had doubts about.

"He had to protect the privacy of the complainant - but he also had to ensure that material was properly examined. He knew she had been involved in a sexual escapade in Tidworth the previous October and about her general sexual behaviour in which she had been an enthusiastic participant.

"He was also aware she had sent naked photographs of herself to Thady Duff weeks before the incident and had been sexting his brother in the weeks leading up to the Ball.

"The Officer was under a duty to scrutinise the downloads from her phone in far greater depth and note any texts of concern."

The judge said it had been a 'truly startling state of affairs' that when the officer did a search of the woman's phone the only search word he had used was 'sex.'

The Crown Prosecution Service had also made 'stark and wrong' decisions in bringing charges without fuller details from the officer about the woman's phone and the Royal Military Police investigation, the judge added.

None of the defendants were at today's hearing and neither were their lawyers although one defence barrister listened to the judge's ruling via video link from a court in Maidstone, Kent.

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