A court has heard that the decision not to take footballer David Goodwillie to trial on rape charges was an "egregious error". At the Criminal Appeal Court in Edinburgh, a lawyer for Denise Clair, whom a civil court ruled in 2017 was raped by Goodwillie and ex-Dundee United teammate David Robertson, claimed the Crown Office's call not to prosecute "went beyond an ordinary mistake".
Bid for a private prosecution
Ms Clair, who has waived her right to anonymity, is seeking permission to launch a private prosecution against the former Scotland international. The rare legal process, formally known as a Bill for Criminal Letters, allows an individual or organisation to pursue criminal charges rather than the Crown taking action.
In written submissions to the hearing, Ms Clair's lawyer, Thomas Ross KC, argued that decisions taken by a previous Lord Advocate – that there was insufficient evidence to prove a lack of consent and that there was no reasonable prospect of conviction – "represented egregious errors which 'went beyond an ordinary mistake'". Mr Ross told the court there was a reasonable prospect of conviction over the alleged incident in 2011, and raised concerns about evidence from a neighbour heard during Ms Clair's civil case, describing it as "confused".
Crown opposition
Juliette Casey, also acting for Ms Clair, urged the court to allow the private prosecution to proceed. She said: "I urge the court, almost 16 years after the allegation of rape and almost 10 years after the civil case to grant this Bill of Criminal Letters."
The Crown has opposed the bid, insisting there were no exceptional circumstances to justify allowing the prosecution to proceed. Advocate Depute Alan Cameron told judges the Lord Advocate did not believe the threshold for a private prosecution had been met. He said: "In relation to the test set down by this court, the Lord Advocate submits that there are no exceptional circumstances which would permit the issuing of a Bill of Criminal Letters."
Mr Cameron said the legal test was "fundamentally different" from that involved in deciding whether to grant a judicial review, with a particularly high threshold required for a private prosecution. Lord Justice General Lord Pentland, hearing the case alongside two other judges, said the high bar reflected the different constitutional responsibilities of the Lord Advocate and the court. He said: "The fundamental reason why the bar has to be set at such a high standard is a reflection of the different constitutional responsibilities of the Lord Advocate and the court."
Evidence and background
Responding to Mr Ross's comments about the possibility of conviction, Mr Cameron said the prospect of conviction would have been considered by the Crown in 2011. Written submissions from the Crown also stated that the decision not to prosecute "did not involve an egregious error on the Lord Advocate's part".
The court heard that Goodwillie had given "detailed evidence under oath" during the civil proceedings, which could potentially be used in any future criminal trial. Mr Cameron said the evidence was "theoretically admissible", although whether it could be used would ultimately be "a matter for the trial judge".
Goodwillie has consistently maintained his innocence and previously told a podcast he wanted to move on with his life. The striker played for Dundee United, Blackburn Rovers, Aberdeen, and Plymouth Argyle during his senior career before dropping into non-league. He gained three Scotland caps and scored one goal against Spain. The hearing before Lord Pentland, Lord Matthews and Lady Carmichael continues.
