Melissa Rutherford and Thomas Ross QC

It is very difficult to read Lord Armstrong’s judgment in the civil case, without coming to the conclusion that something went badly wrong between the matter being reported to the police on 2 January 2011 and Crown Office giving assurances that there were to be no criminal proceedings only six months later. 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. 

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.  

This case has features in common with the ‘Carol X’ case in 1982. On 31st October 1980 in London Road near Davaar Street in Glasgow, Carol was repeatedly raped then assaulted to her permanent disfigurement and to the danger of her life. Three local youths were taken to the High Court for the crime, but the proceedings there were abandoned on the basis that Carol was unfit to give evidence. In September 1981 the Lord Advocate confirmed that there were to be no further proceedings. When steps were taken to raise a private prosecution in 1982, the Lord Advocate declined to grant his concurrence to the Bill of Criminal Letters, but he accepted that the procedure proposed was competent and did not oppose it.

In time, when all of the relevant material is ingathered, we hope that the current law officers can be persuaded either to concur in this prosecution or at least not to oppose it. 

What of the proposed accused? It can be said there has been no prosecution in a criminal court, that no charge has been proved beyond reasonable doubt, that the judgment in the civil case was made by a single judge – not a jury of 15. 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.

What then of the court? Well, the Glasgow bin lorry case (and the associated tragic case concerning Mhari Convy and Laura Stewart) make it absolutely clear that the court will require considerable persuasion before granting authority for a private prosecution. Such authority will only be given in ‘special circumstances’. In those cases, authority was ultimately refused on the basis that the proposed charges could not be proved beyond reasonable doubt even if authority had been given. But the door was not completely closed fully on future attempts to use this ancient procedure. The court did make it perfectly clear that “an error of judgment by the Crown as to the assessment of the evidence would not amount to special circumstances” – but suggested that such circumstances might exist where the decision not to prosecute was “extravagantly wrong”.

Interestingly, in the bin lorry case the court stated that the Carol X case was “clearly exceptional” – the Crown had not declined to prosecute but has allowed the indictment to fall. In this case no explanation has been given as to why, only six months into the investigation and before any person had appeared in court, the Crown chose to give one of the suspects immunity from prosecution. No time limits were applicable. There was no advantage to the Crown in giving that assurance and it would have limited its ability to respond had a second complainer made a similar allegation. Had that assurance not been given there would have been no need for a civil action or a private prosecution – the Crown could have proceeded in the usual fashion – had it taken the view that sufficient evidence was available. Perhaps the “special circumstances” lie in 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.

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. It will take more than two lawyers to do it – however determined – but the process of building a team has begun.