News / Judges clear Virkie man convicted of rape
A SHETLAND man was acquitted of raping two women on Friday as appeal judges slashed a seven year jail term imposed on him.
Kenneth Harper was originally found guilty of raping a 15 year old and a 22 year old in Shetland along with further charges of assault and reckless behaviour.
But judges at the Court of Criminal Appeal in Edinburgh quashed his convictions for two charges of rape and sentenced him to three years imprisonment in the wake of the ruling.
The 33 year old, formerly of Chateau Duplia, Virkie, had his sentence backdated to June last year and can now expect to be released from prison in about six months time.
He was originally found guilty on majority verdicts of raping the two women and was unanimously convicted of a further two charges of assault and one of culpable and reckless conduct which included driving at speeds of up to 120mph.
The trial judge, Lord Boyd of Duncansby, said the evidence he had heard painted a picture of a man who was “aggressive, manipulative and controlling”.
In sentencing him to seven years for all the offences he was originally convicted of the judge told Harper: “Work can only be done to address your problems while you are in prison.”
But lawyers acting for Harper appealed against his convictions on the two rape offences which were said to have occurred when he was aged 23 and 31.
His solicitor advocate John Keenan challenged the rape convictions, which were based on mutual corroboration of the evidence of one allegation being used to support the other.
Mr Keenan said there were only two alleged offences and there was a substantial time gap between them of almost eight years.
He said the circumstances in which they were said to have occurred were different and there was an absence of “extraordinary features”.
He argued that there must be something compelling to link events separated by many years, but here there was nothing.
The Crown claimed that there were compelling similarities as both offences involved vulnerable women who were significantly younger than Harper.
It also argued that evidence from a third woman, who was assaulted, could be used to support the convictions.
Lord Brodie, who heard the appeal with Lord Bracadale and Lady Cosgrove, said: “Long lapse of time does not preclude the finding of sufficient similarity between two incidents to infer a course of conduct, but it is relevant.
“Where the interval is a long one it is necessary to consider whether there are any extraordinary features in the evidence that nonetheless make the similarities compelling.
“The time interval, at a little short of eight years, was long. Accordingly for the Crown to be able to link the two alleged incidents it must be able to identify some special feature. There was no such feature in the present case.”
Lord Brodie said that on the Crown’s argument they would have to accept evidence from the third assault victim, who was punched and nipped, was available to corroborate the sex charges.
But the appeal judges said that although evidence of other conduct may be relevant what was set out in the assault charge was not available to provide corroboration for the rape allegations.
Harper’s trial heard that he had carried on having sex with a teenager despite her pleas to stop after she thought she was bleeding.
A second woman said she had felt scared because she had said no but he continued despite that.
After the rape convictions were quashed the judges had to reconsider what sentence should be imposed on Harper for the remaining assault and culpable and reckless conduct offences.
One woman whom he pushed fell and was left unconscious. He had also driven at speeds of up to 120 mph, which Lord Brodie told him must have been “a terrifying experience” for passengers.
The judge told him that the offences which remained were serious ones and only a custodial sentence was appropriate and imposed a three-year term.
Dave Finlay
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