‘It’s the system I blame more than anything’: how an innocent man was jailed for rape
8 June 2018 • 4:56pm
Life was good for Danny Kay. The then 21-year-old welder had completed his apprenticeship and been quickly promoted and was earning more money than he ever had; good enough to take his new partner away for a 10-day break at an all-inclusive resort on the Spanish coast.
But in August 2012, as they walked back through passport control at East Midlands Airport, tanned, relaxed and happy, the border guard refused to hand his documents back and signalled to two plain-clothed police officers waiting in the wings.
Kay was taken to a back office in the airport where they were joined by two more police officers. “They told me I was being arrested under suspicion of rape,” he recalls. “At the time, I was so shocked I couldn’t even remember who it was when they told me the person’s name.”
Kay was taken to St Mary’s Wharf Police Station in Derby where he was quizzed for 26 hours. His girlfriend, meanwhile, returned home to her family with no idea what was going on.
Despite his repeated denials, he was eventually charged with rape: a crime, it would later transpire, of which he was totally innocent – but only after he had served two and a half years in prison.
Kay’s terrifying story of having your life destroyed as a result of systemic failings in the justice system is one that legal experts have this week warned could be the same for hundreds of others currently serving prison sentences for rape and other serious offences, because of the failure to disclose crucial evidence.
The warning came after a review published on Wednesday revealed the Crown Prosecution Service (CPS) had been forced to drop 47 serious sex assault cases in just six weeks because key material had not been shared with the defence, prompting an apology from Alison Saunders, the outgoing Director of Public Prosecutions (DPP) to MPs for such stark failings in the criminal justice system.
But for Kay – who says he is still yet to receive a personal apology from the police or CPS – such an admission is already far too late.
“It strips everything from you and you have to start life again,” says the now 27-year-old from his home near the Derbyshire town of Swadlincote that he shares with his young beagle, Poppy.
“It’s the system I blame more than anything. [My accuser] was young and who knows what she was going through, but you would think there are things in place to stop people like me going to prison for things they haven’t done.”
Kay first met his eventual accuser in 2012, when they struck up a conversation on Facebook after noticing each other’s profiles through mutual acquaintances. “I hope you don’t mind xxx,” he wrote after adding her as a friend. “Nah of course I don’t mind xxx,” came the reply.
After exchanging messages for a while, they met up for a walk. A few weeks after that, Kay picked her up after he had finished his shift at work and drove her back to his house. They watched a film and later had sex.
It was to prove their last meeting, but for months they chatted on Facebook, WhatsApp and over text. When Kay later updated his iPhone and deleted his messages and contacts, he sent a Facebook message to the woman asking to resend her number. She replied soon after, adding four kisses. “Over time, it just fizzled out, and I got into another serious relationship,” he says.
It was six months after their last contact that he was arrested on suspicion of rape. At the subsequent trial at Derby Crown Court in October 2013, a transcript of their Facebook conversations supplied by the complainant was used against Kay as evidence.
He says it was immediately obvious to him that the messages had been edited: making it appear as if he had told her he was nearly 17 and so the same age (he hadn’t); removing friendly exchanges following the alleged rape; and, crucially, making it appear as if Kay had in one instance apologised to her.
“It should have been obvious to anybody with a brain that the messages were edited,” he says. “I said so several times when I was being cross-examined, but the [prosecuting] barrister just kept calling me a liar.”
Following his arrest, Kay had given Derbyshire Police his Facebook login details and had his phone and laptop confiscated.
He had deleted his version of the conversation (as he customarily did with all Facebook chats) but police had made no effort to retrieve it. As a result, the version given by the accuser was presented in court.
After two days of deliberation, a jury found Kay guilty by majority verdict, and he was sentenced to four and a half years in prison. His mother, Donna, who was watching in court with his brother, Aston, stood up and screamed as the verdict was read out. “My mind was just blank,” he says.
Kay was taken to HMP Nottingham (a Category B prison) and remembers on the first night writing a letter to his new partner, who was pregnant with his daughter. She was born in February the following year and, to this day, Kay has never seen her. “When I was in prison, my partner married someone else and my daughter calls another man ‘daddy’ now,” he says, pausing to wipe away a tear and regain his composure.
After three months, he was moved to HMP Whatton, a jail designated purely for sex offenders. Maintaining his innocence, Kay refused any courses and was instead forced to undertake one on one sessions with the “denials team”, where psychiatrists attempted to convince him of his guilt. “Everybody was trying to persuade me that I had done it,” he recalls.
He shared a wing with paedophiles and rapists, who would openly brag about their crimes. He witnessed a prisoner stab another in the face with a pack of darts, purely for looking at him the wrong way. On another occasion, somebody was beaten over the head with a fire extinguisher. Kay was spared any violence himself, although became so depressed he was placed on medication.
Salvation came following a discussion with a prisoner who was the official representative on his wing. When Kay told his fellow prisoner about the edited Facebook conversation that had been used against him in court, he was informed he could retrieve an archived version of the full version in a matter of minutes – something the police had never done.
He informed his family – who have stuck by him throughout the whole ordeal – and his sister-in-law retrieved the full account of the messages in minutes, showing the length and warmth of their correspondence for months following the rape.
Danny Kay with his Beagle, Poppy Credit: Darren O’Brien
That was in 2014. The family took the evidence to the police, expecting a quick resolution, but it was only last Christmas – after his release, having serving his sentence – that his conviction was quashed in the Court of Appeal.
In a statement released to the Telegraph, Derbyshire Police says it has referred its investigation for independent scrutiny and it was found to have been a “proportionate response”. The force says it would “welcome the decision to discuss the situation with Mr Kay”, although stops short of a full apology.
Life slowly rebuilds. Kay is working again, sporadically, although earning far less than he once did. He is in a relationship with a new partner, but admits he now struggles with issues over trust. There is, he says, a residual fear that some people will always have doubts over his innocence.
“I don’t think I will ever be able to leave this fully behind,” he says. “I will never be the same person I used to.”
Brian Pead commented: “Yes, it’s remarkably easy for corrupt police to destroy a person’s life. Unlike Danny Kay who blames the intangible entity of “the system”, I blame the human beings responsible for the corruption and ineptitude. The ordinary person in the street fails to understand that the “justice” system doesn’t exist – it’s a myth and the reality is that it is a business. Prisons, the police, barristers, judges, Serco guards, prison officers … all cost money and the system is self-perpetuating. Heads on beds (whether innocent or guilty) is all that matters to the balance sheet.
Danny Kay is right – his life will never be the same again. What a shame he has just accepted this and doesn’t seek to perform citizen arrests on those who screwed him over.”