A court has heard there are no exceptional circumstances which would permit a bid to privately prosecute former Scotland footballer David Goodwillie.
Mr Goodwillie and former teammate David Robertson were ruled in a civil court in 2017 to have raped Denise Clair in 2011, but no criminal charges were filed against the pair.
Ms Clair, who has waived her right to anonymity, is now seeking to launch a private prosecution against Mr Goodwillie – a rare process in the Scottish legal system.
Private prosecution process
Known formally as a Bill for Criminal Letters, a private prosecution involves an individual or organisation seeking to prosecute the accused, rather than the Crown Office taking action.
In a hearing at the Criminal Appeal Court in Edinburgh on Thursday, Advocate Depute Alan Cameron said the Crown could not agree to the bill.
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.”
High legal bar
Mr Cameron said it is “fundamentally different” from a court deciding whether to grant a judicial review because of the requirement for “exceptionality” when deciding whether to allow a Bill of Letters.
The Lord Justice General Lord Pentland, who is hearing the case with two other judges, 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.”
The court also heard that Mr Goodwillie (the respondent) gave evidence during the civil case and this could in theory be used at any potential private prosecution.
Mr Cameron said: “The respondent gave detailed evidence under oath at the civil proof. The evidence is in theory admissible but whether it would in fact be admitted would be a matter for the trial judge.”
Submissions from both sides
In written submissions to the court, Ms Clair’s lawyer Thomas Ross KC submitted that the decisions taken by a previous Lord Advocate that there was “insufficient evidence to prove lack of consent, and (second) that there was no reasonable prospect of conviction – represented egregious errors which ‘went beyond an ordinary mistake’”.
During the hearing on Thursday, Mr Ross said he believed there was a reasonable prospect of conviction. He said evidence from a neighbour which was heard during Ms Clair’s civil case had been “confused”.
Responding to the comments from Mr Ross, Mr Cameron told the court that the prospect of conviction would have been considered by the Crown in 2011. Written submissions from Mr Cameron also said that the decision not to prosecute “did not involve an egregious error on the Lord Advocate’s part.”
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.”
Mr Goodwillie has insisted he is innocent and has previously told a podcast he wanted to move on with his life. He is a former Dundee United, Blackburn, Aberdeen and Plymouth player.
The hearing, before Lord Pentland, Lord Matthews and Lady Carmichael, continues.
