Fifteen years after its controversial ruling that there was not enough evidence to prosecute Scotland footballer David Goodwillie for rape, the Crown Office has finally admitted an “error of judgement”.
Advocate Depute Alan Cameron KC’s startling admission was laid before the court in a series of written answers to a Bill of Criminal Letters by Goodwillie’s alleged rape victim Denise Clair, who is seeking a private criminal prosecution against the former player.
Cameron’s answers admit there had been enough evidence to proceed with prosecution after all.
Objecting to any private prosecution now going ahead, his written answers to the court insist as far as the Crown Office is concerned there would still be “no realistic prospect of conviction”.
Denise said last night: “In a Scottish criminal court, the jury decides if there is enough evidence to convict someone accused of a crime, not a judge, and not a Lord Advocate.
“It has taken the Crown Office 15 years to admit that they made mistakes, 15 years in which my life has been utterly destroyed by the decisions and actions they took in 2011.
“It has taken all this time for the truth to appear. I believe this is just the start.”
Scotland’s Lord Advocate at the time of the alleged rape, Frank Mulholland, now a sitting judge, previously said he made the decision not to prosecute Goodwillie.
The Crown Office insist this should not be considered as an “egregious or outrageous failure”.
Six years after Mulholland’s refusal to prosecute, Lord Armstrong ruled in a landmark civil case that there was enough evidence to find Goodwillie and his fellow Dundee United player David Robertson were rapists and liars after they met Denise at New Year 2011 and took her back to a stranger’s flat in Armadale.
The civil case found nightclub bouncers wanted to call an ambulance for Denise, they were so concerned.
She remembered nothing after accepting a drink from the footballers until she woke up the following day alone, naked and locked in the stranger’s flat.
She called police. Forensic tests showed an almost fatal level of alcohol in her system.
Outgoing Lord Advocate Dorothy Bain represented Goodwillie in the civil action before taking up her Crown Office position.
Goodwillie’s criminal defence counsel was Paul McBride, now deceased, who also acted for him in the £3 million football bidding war between Rangers and Blackburn Rovers.
The Crown Office’s newly formed Sex Crimes Unit was headed by Derek Ogg, also now deceased, who publicly vowed his department would be using strict new laws to go after predators targeting victims who were unable to give consent though intoxication.
Denise was “devastated” when the rape charge against Goodwillie was dropped after Lord Advocate Mulholland insisted there was an “insufficiency of evidence”.
Former Scottish Prison Service education officer Denise is determined to make new legal history pursuing a private criminal prosecution, which could see Goodwillie jailed if he is found guilty.
The private prosecution requires Denise’s legal team, headed by top criminal KC Thomas Ross, to prove the case is “exceptional” and that the decision not to prosecute was an “egregious or outrageous failure in the exercise of the Lord Advocate’s public duty”.
In the 2017 landmark civil action against Goodwillie and Robertson, both were found by Lord Armstrong to be rapists and liars.
The senior judge found Denise’s evidence, that she did not remember a thing about the night of the alleged rape on January 2, 2011, after accepting a drink from the players, was “cogent, persuasive and compelling”.
In a series of written answers presented in court on Friday, Advocate Depute Cameron admitted that “there was prima facie sufficient circumstantial evidence in law to establish Denise Clair lacked the capacity to consent”.
He added: “An error of judgement by the Lord Advocate is not sufficient to meet the test of exceptionality but, rather, the Court must be satisfied that the decision not to prosecute was an egregious or outrageous failure in the exercise of the Lord Advocate’s public duty.”
Cameron said the civil case evidence was considered on the balance of probabilities.
He also argued Goodwillie appearing on a public podcast repeatedly insisting he wanted a private prosecution to go ahead so he could “clear his name” should not be considered an exceptional enough circumstance for the case to go ahead.
Goodwillie had said in the podcast that he “100%” wanted to go to court as much as Denise Clair did.
But on Friday at the court in Edinburgh, three judges were told Goodwillie had now changed his mind about wanting his day in court.
Thomas Ross asked: “I take it from the answers that is no longer the case?”
Wojciech Jajdelski, counsel for Goodwillie, admitted his client no longer wishes to be prosecuted.
Jajdelski said: “For the sake of clarity that is his position.”
Scottish Conservative Shadow Justice Minister Stephen Kerr said: “For fifteen years, Denise Clair has lived with the consequences of reporting that she had been raped, while the criminal justice system never gave her the opportunity of a criminal trial.
“She did everything society asks of a victim. She went to the police. She co-operated fully with the investigation. She endured years of legal proceedings. In an act of extraordinary courage, she gave up her anonymity so she could continue her fight for justice in public.
“Years later, Scotland’s civil courts concluded that she had been raped. That judgment was upheld on appeal. Yet, fifteen years on, she is still seeking the justice she believes she was denied at the outset.
“The newly disclosed material is deeply disturbing. These disclosures demand answers. They cast a long shadow over the way this complaint was handled and raise profound questions about whether this young woman’s allegations received the fair, objective and professional consideration that every victim of rape has an absolute right to expect.
“The Crown’s refusal to support the private prosecution only deepens those concerns. At best, it gives the appearance of an institution closing ranks rather than confronting difficult questions about its own decisions. That is not how public confidence is rebuilt. When legitimate questions arise about the handling of a rape complaint, the instinct should be to pursue the truth, not to defend the system.
“No victim should ever be left wondering whether they were believed. No victim should have to spend fifteen years fighting simply to have their voice heard. Public confidence in our justice system depends on victims knowing that allegations of rape will be investigated rigorously, considered impartially and treated with the seriousness they deserve.
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