A MAN jailed for rape after a wine and cocaine fuelled sex encounter had his conviction over-turned because he faced police questions without a lawyer.

Appeal judges yesterday 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 in 2009 after a woman told a trial that he had attacked her in a Glasgow flat in March 2008, 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 was willing to have sex.

He told how they had been drinking and snorting cocaine that evening.

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 judges Lord Eassie, Lord Menzies and Lord Wheatley that prosecutors at the trial had used what McCallum told police to attack his credibility.

The lawyer said there had been 42 references to the interviews in an attempt to brand McCallum a liar.

Lord Eassie noted that about a 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.

That ruling said it was a breach of human rights to question a suspect without giving them a chance to get legal advice first.

Advocate depute Alex Prentice QC told the Edinburgh appeal judges that the Crown accepted that the Cadder ruling made the interview evidence inadmissible. But, he claimed, there were other reasons to accept the woman's account of events in the flat – so the conviction should stand.

Lord Eassie, giving yesterday's decision, agreed with Mr Carroll that without the prosecution's use of the questions and answer session with police, the outcome of the trial could have been different.