Mum '˜let down' after rape duo swerved trial

David Goodwillie. Picture: Ciaran Donnelly

Denise Clair, 30, accused former Scotland player David Goodwillie and his ex-teammate David Robertson of attacking her at a West Lothian flat after a night out in 2011.

They avoided a criminal trial after prosecutors ruled there was insufficient evidence. But yesterday a judge said he found Ms Clair to be “persuasive and compelling” and ruled that she had been raped.

Speaking after the civil case ended at the Court of Session, she said she had been left “devastated, upset and confused” when she was told the men would not be prosecuted.

David Robertson. Picture: Ciaran Donnelly

Ms Clair, who waived her right to anonymity, said: “I am pleased by the verdict.

“However, I am bitterly disappointed that I was so badly let down by the criminal justice system and was forced to seek a remedy through the civil court.

“If it were not for the support of my lawyer Cameron Fyfe and the team at Rape Crisis Scotland, I do not know how I could have coped throughout this long, harrowing journey.”

Prosecutors defended their decision not to bring the case to a criminal court.

Denise Clair has waived her right to anonymity in order to speak out. Picture: Ciaran Donnelly

A Crown Office spokesman said: “As Lord Armstrong stated in his judgment, the standard of proof to be satisfied was that of the balance of probabilities which is a less onerous requirement of corroboration in civil cases unlike criminal cases.

“This case was looked at very carefully by Crown Counsel who concluded that there was insufficient evidence in law to raise criminal proceedings.

“As a result no proceedings were instructed.”

Ms Clair, who was 24 at the time of the incident, said she remembered going to the Glenmavis Tavern in Bathgate on New Year’s Day in 2011.

She was with a friend and remembers drinking Jack Daniels and Coca-Cola before meeting Robertson. However, she said she had no memory of meeting Goodwillie.

The next recollection she had was waking up the following morning in a house she did not recognise – she was naked and couldn’t find her clothes. After running outside, she confronted two women who told her she was in Armadale, and she swiftly made arrangements for a family member to pick her up.

Former Dundee United and Aberdeen striker Goodwillie and Cowdenbeath midfielder Robertson insisted they had consensual sex with the woman.

In his judgment, Lord Armstrong said: “Having carefully scrutinised the whole evidence in the case, I find the evidence for the pursuer to be cogent, persuasive and compelling.

“In the result, therefore, I find that in the early hours of Sunday January 2, 2011, at the flat in Greig Crescent, Armadale, 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.”

Simon Di Rollo QC, senior counsel for Ms Clair, added: “It was incredibly brave of Ms Clair to have brought the action, in which, unlike in a criminal case, she did not enjoy anonymity.

“The case illustrates the importance of the 2009 Sexual Offences (Scotland) Act which clearly spells out that free agreement to sexual activity cannot be given while a person is incapable because of the effect of alcohol. The court accepted that Ms Clair was incapable and that anyone dealing with her would have known that.”

Sandy Brindley, a spokesman for Rape Crisis Scotland, said: “This is a landmark case which broadens access to justice in Scotland.

“The majority of rapes reported to the police never make it to court, and rape complainers are left feeling devastated and let down by the criminal justice process.

“The woman in this case should be commended for her bravery and courage in pursuing this case in the face of significant challenges.

“She was left feeling very let down by the Crown Office, who dropped criminal proceedings against her rapists.

“Often, women in these circumstances tell us that they just want someone to believe them, and to acknowledge that what happened to them was rape.”

He added: “We think that we will see more and more rape complainers who feel let down by the criminal justice system turning to the civil system in their search for justice. Steps must be taken to ensure that key protections, such as anonymity and protection from cross examination by the accused, are in place within the civil justice system for these  cases.”

Goodwillie’s current club, Plymouth Argyle, said: “We await the full report, which we will consider in detail before making any comment. Until such time, David Goodwillie will not be selected to play for Plymouth Argyle.”

And Cowdenbeath, where Robertson currently plays, said: “At present, we can make no further comment until we have the full details available for us to consider and review.

“In the interim, David Robertson will not be considered for selection.”

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