Criminal lawyers ‘mystified’ by Crown decision not to prosecute in Goodwillie

Many criminal lawyers find themselves completely unable to agree with the Crown Office’s conclusion that there was “insufficient evidence in law” to raise criminal proceedings against David Goodwillie and David Robertson, the president of the Scottish Criminal Bar Association has said.

A woman was awarded damages after Lord Armstrong in the Court of Session stated in an opinion this week that “both defenders took advantage of the pursuer when she was vulnerable through an excessive intake of alcohol and, because her cognitive functioning and decision making processes were so impaired, was incapable of giving meaningful consent; and that they each raped her”.

Thomas Ross (pictured) told Scottish Legal News he and his colleagues were “puzzled” about the Crown’s decision, adding: “I simply cannot comprehend it”.

He explained that evidential requirements in the case were easily met, saying: “There were two things that the Crown required to find corroborated evidence of. Firstly, the fact that sexual intercourse occurred - that was easily satisfied by the combination of the complainer’s statement and the DNA evidence, and, secondly, the fact that the sexual intercourse occurred at a time when the complainer was incapable because of the effect of alcohol of consenting to it.”

He pointed out that Brian McConnachie QC this week made the valid point to SLN that in civil proceedings this “crucial fact” did not require to be corroborated, but it “was corroborated – and by evidence from more than two sources”.

Mr Ross added: “There was the complainer’s evidence of remembering nothing until she woke up in a strange house, CCTV evidence of her drunkenness in various establishments, a scientific back-calculation that her blood / alcohol level at 0200 hours was 275 to 259 mg per 100 ml of blood, and crucially, evidence of a door steward of 15 years’ experience that, when leaving the club, her eyes were rolling in her head, she could not stand or speak properly and was not compos mentis.”

While defence counsel could well have argued the case was not proved to the criminal standard of beyond reasonable doubt, the SCBA president argued that fact “does not distinguish the case from the many that are prosecuted”.

Finally, he said: “In any event, that was not Crown Office’s justification for not prosecuting it, the justification was that there was ‘insufficient evidence in law’, in other words a lack of corroboration. Along with many of my professional colleagues, I am mystified at that assessment of the evidence apparently available to the Crown.”