Goodwillie prosecutors 'wrong' not to put footballer on trial for rape, court hears

The lawyer for a woman raped by former Scotland international footballer David Goodwillie said prosecutors made a "mistake" in not putting him on trial for the attack.

A civil action found Denise Clair was raped by Goodwillie and his then-Dundee United teammate David Robertson at a flat in Armadale, West Lothian in January 2011.

Her lawyer, Thomas Ross KC, has argued the Crown Office "got it wrong" in deciding to drop rape charges against him due to "insufficient evidence".

Clair has brought an action to the Court of Criminal Appeal in Edinburgh to grant permission for a rare private prosecution against Goodwillie.

Ross told judges Lord Pentland, Lord Matthews and Lady Carmichael that it was "inevitable" errors in pursuing prosecutions would be made.

On the first day of the hearing, Ross said the prosecution service received between "150,000 to 200,000" reports to consider each year.

He said a "substantial body of evidence" had been provided in Clair's case before judges threw out the claim in July 2011.

Ross described the decision not to prosecute as "irrational", adding: "There was a sufficient body of evidence available which would have allowed a prosecution to proceed and there was a reasonable chance of conviction.

"Our position is that in the circumstances the Crown have got it wrong."

Alan Cameron KC, for the Crown, told the court that prosecutors had acted correctly when it decided not to prosecute Goodwillie.

He said that when all the evidence available in the case was considered, the Crown were entitled not to bring Goodwillie to court.

Cameron added: "There are no exceptional circumstances which would permit the issuing of criminal letters."

Clair previously chose to identify herself in the case.

She claimed she had been on a night out in Bathgate on 1 January before returning to a flat with Goodwillie and Robertson in the early hours of the following morning.

She alleged the footballers took advantage of her when she was vulnerable due to being intoxicated and raped her.

Both men had denied the charges, but Clair brought a civil action against them in January 2017.

The judge who heard that case at the Court of Session, Lord Armstrong, ruled both of the men to be rapists and ordered them to pay Clair £100,000 in damages.

It was the first civil rape case of its kind in Scotland.

However, Clair is now seeking a private criminal prosecution.

The court heard that, for the action to be successful, Clair's lawyers must prove that prosecutors had made a decision that "no reasonable" prosecutors could have made.

The legal test was described as being of a "high standard".

The court heard evidence given by Goodwillie during the civil case could be used in any private prosecution.

His lawyer, Lord Stewart of Dirleton KC, said the legal tests needed to bring a private prosecution were not passed.

Lord Stewart also argued the use of evidence given by Goodwillie during the civil case in this new case was unfair.

He said: "The evidence proceeded on the Lord Advocate having renounced the right to prosecute.

"Had it been clear that a prosecution was going to follow, then the Lord Advocate should have issued a warning."

Goodwillie earned three caps for the Scottish national team, scoring once in a match against World Cup holders Spain in October 2011.

At the time of the incident, he was playing for Dundee United, but went on to represent Aberdeen, Ross County and Clyde in the Scottish professional game.

He also played for the English clubs Blackburn Rovers, Crystal Palace and Plymouth Argyle.

Goodwillie joined Scottish Championship club Raith Rovers from Clyde in January 2022, but the transfer caused a number of club officials, women's team players and volunteers to resign.

Author Val McDermid also withdrew her sponsorship of the club's shirts.

Goodwillie returned to Clyde, but further controversy forced the loan deal to be cancelled and he was released by Raith Rovers in September 2022.

He has since played for a number of amateur and semi-professional clubs, lastly Glasgow United, whom he left in the summer.

Lord Pentland, Scotland's most senior judge, said the appeal court would take time to consider all submissions.

He said a judgement would be issued "as soon as practicable".