Lawyer Thomas Ross QC is working with solicitor Melissa Rutherford to try to bring a rare private prosecution against the men.
22 February 2022
The lawyer bidding to mount a private prosecution for rape against footballer David Goodwillie and a former teammate has told how he is hoping to restore his client’s faith in the criminal justice process.
Thomas Ross QC is working with solicitor Melissa Rutherford to bring forward a rare private prosecution against the former Scotland player and now retired player David Robertson for the rape of Denise Clair.
In 2017 a civil court found that the two men had raped her and they were ordered to pay damages.
But no criminal charges were brought against either man.
Now Ms Clair is working with the lawyers to bring a private prosecution – in which an individual or organisation seeks to prosecute the accused, rather than the Crown Office taking action.
Writing about the move in Scottish Legal News, Mr Ross said: “Many have claimed that any criminal prosecution would have ended in an acquittal. Those people may be right, but 11 years on the controversy around the case has not abated.
“A private prosecution would give any accused person the opportunity to persuade a jury that a verdict of not guilty should be returned.”
A letter has been sent to Scotland’s top prosecutor, Lord Advocate Dorothy Bain QC, giving her notice of the intention to bring a private prosecution. The case will not be able to proceed, however, if the Crown Office refuses permission.
Mr Ross stressed “many hurdles” would have to be overcome before an action could take place.
Despite this he was clear: “It is time to prepare a bill of criminal letters, seeking leave of the court to commence a private prosecution.
“This is a course that the court will only authorise in exceptional circumstances and many hurdles will have to be overcome.”
He said that when looking at the judgment from the civil case Ms Clair brought, it was “very difficult to read Lord Armstrong’s judgment… without coming to the conclusion that something went badly wrong between the matter being reported to the police on January 2 2011 and Crown Office giving assurances that there were to be no criminal proceedings only six months later.”
With “special circumstances” requiring to be demonstrated before the case can proceed, Mr Ross said these may arise from “the fact that the Crown seems to have given immunity from prosecution only six months into the investigation when the reason for that decision is not obvious”.
He said: “The complainer feels that she was let down by the criminal justice system and Melissa and I are delighted to accept the challenge of restoring her faith in it.”
Mr Ross added: “Melissa and I have no personal animosity towards anybody involved in this case. Our interest is in restoring the complainer’s faith in the Scottish criminal justice system.”