Crown Office admits 'error of judgment' in David Goodwillie rape case

The Crown Office has admitted it made an “error of judgment” during its decision not to prosecute former footballer David Goodwillie over an alleged rape.

Goodwillie, 37, who was ruled to have raped Denise Clair in a civil court in 2017, had charges against him in a criminal proceeding dropped due to “insufficient evidence”.

A series of written answers from Advocate Depute Alan Cameron KC to a Bill of Criminal Letters, which were seen in court on Friday and have been seen by STV News, acknowledge there was an “error of judgment” in the original decision not to prosecute.

The Crown now accepts that there was enough evidence to establish that Mrs Clair may have been incapable of consenting to sexual activity.

This may have provided enough evidence to proceed with prosecution.

Advocate Depute Cameron admitted that “there was prima facie sufficient circumstantial evidence in law to establish Denise Clair lacked the capacity to consent”.

‘No realistic prospect of conviction’

Mrs Clair who has waived her right to anonymity, is now seeking a rare private prosecution.

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.

The prosecution requires Denise’s legal team, headed by lawyer Thomas Ross KC, 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”.

However, the Crown Office insists this is not the case, and Advocate Depute Cameron’s letters say there would still be “no realistic prospect of conviction”.

He added: “An error of judgment 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.”

Mrs Clair’s legal team has declined to comment.

Speaking to the Sunday Post, Denise said it has taken the Crown Office “15 years to admit their mistakes”.

She told them: “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.”

A spokesperson for the Crown Office and Procurator Fiscal Service said: “Further hearings are still to take place, and at present we’ve nothing to add to what was said in court.”

Goodwillie’s lawyer said during the proceedings that he does not wish to be prosecuted, despite the former Dundee United player previously telling a podcast he would be willing to fight to clear his name.

Wojciech Jajdelski, representing Mr Goodwillie, said his client should be entitled to the disclosure of any material which Ms Clair’s side wished to use in the bid for the private prosecution.

He told the court: “It’s stated that Mr Goodwillie does not want to be prosecuted.

“For the sake of clarity that is now his position.”