Private prosecutions

The Times, February 24th 2025.

It was one of the most high-profile cases of the 1980s. “Carol X”, as she came to be known in the public consciousness, was subjected to a brutal sexual attack by a group of men in the shadow of Celtic Park.

The authorities had a strong case. Carol X identified her attackers. There was significant forensic evidence. The teenage suspects were promptly arrested by the police. But before the trial prosecutors took a fateful decision. Concerned about Carol X’s mental state, they dropped the case, confirming that none of these men would face rape or assault prosecutions at the lord advocate’s hand.

This prompted a public outcry. Carol X’s cause was taken up by the media and campaigning lawyers, demanding justice. The Crown having renounced the right to prosecute, obtaining the right to bring a private prosecution was Carol X’s only way of holding her attackers responsible for their terrible crime.

In Scotland, this arcane procedure is called a bill for criminal letters. Carol X managed to persuade the High Court to give her permission to proceed and her attackers were ultimately tried and convicted — but her case highlights how “exceptional” private prosecutions are in the Scottish system.

It was confirmed this weekend that Denise Clair has now secured legal aid to pursue a private prosecution against David Goodwillie for raping her. But in terms of the legal process, this financial backing is only the end of the beginning. Three High Court judges first need to give her permission to bring the case before the footballer can face a criminal trial.

There are three key legal tests judges will have to consider. The first is whether there is sufficient evidence in law for the footballer to be indicted.

In 2011 the Crown Office dropped the case on the basis there was “insufficient evidence” to convict Goodwillie. This is a legal judgment. Scots law retains a requirement for corroboration. This means two independent pieces of evidence supporting the fact that the crime was committed and the accused person committed it.

The requirement for corroboration has evolved in recent years, but even by the standards of proof required at the time, that conclusion has always struck me as plainly wrong on the admitted facts. Lord Armstrong’s judgment in Clair’s civil case against Goodwillie and his former team-mate, David Robertson, sets out more than sufficient evidence to prove that there was sexual contact and that it was not consensual. The 2017 civil case ruled that the pair had raped Clair.

But even if Clair’s lawyers can persuade the High Court there is sufficient proof she was assaulted, the bigger hurdle she faces is the legal requirement for there to be “very special circumstances which would justify us in taking the now exceptional step of issuing criminal letters at the request of a private individual”. Her argument is likely to follow where Carol X’s case led.

Last, the court will almost certainly be invited to consider whether it would be “oppressive” to allow Goodwillie to face a criminal trial in the light of the history of the case and the coverage the allegations against him have already received.

In Carol X, it was argued “the widespread publicity” about the case “in the press, on television, on radio, and in parliament” made it impossible for the suspects “to obtain fair and impartial trial anywhere in Scotland”. That argument didn’t fly in the Eighties, but Goodwillie’s brief can be expected to make the same point 44 years later.