Posted on Nov 13, 2017
I read with interest the articles this week about Emily Hunt, who is trying to raise funds through crowdfunding to bring a private prosecution against the man she says raped her. The fund currently sits at a little over £20,000.
The background to Ms Hunt’s case is not dissimilar to the case of Denise Clair, who earlier this year was successful in bringing a civil action for rape against footballers David Goodwillie and David Robertson after the Crown Office decided not to pursue a criminal case against the footballers, although I understand the appeal in this case is due to be heard shortly. In my article on the case, I considered what other options were available to Denise Clair after the Crown decided not to pursue case. I didn’t consider the option of a private prosecution.
Ms Hunt is based in England and therefore there are differences between bringing a private prosecution in Scotland, compared to England. In England, private prosecutions are specifically allowed under section 6 of the Prosecution of Offences Act 1985 making the process of bringing such prosecutions much simpler than in Scotland. In Scotland, private prosecutions are rare. To bring a private prosecution in Scotland, the individual would have to apply to the High Court for what is known as a bill of criminal letters. The Lord Advocate and the offender can oppose this. The individual bringing the bill would require to establish that there are special circumstances to justify a private prosecution. Such circumstances can be very difficult to establish.
In recent years, the High Court has ruled that families could not launch a private prosecution against Harry Clarke in the Glasgow bin lorry case. Prior to that they also refused to allow a private prosecution against William Payne who knocked down and killed two students in Glasgow in 2010. On that basis, if Ms Clair had decided to try and fund a private prosecution in her case, I think she would struggle. I don’t think a private prosecution is a viable option for rape victims in Scotland. The situation remains that in Scotland, if a criminal prosecution is not pursued or results in a not proven or not guilty verdict, then I believe the only options open to rape victims are to make an application to the Criminal Injuries Compensation Authority, a government funded scheme which pays compensation to victims of violent crimes or alternatively pursue a civil action against the offender. As discussed in my previous article, pursuing a civil action is not without its difficulties.
Caroline Kelly is a Partner in our specialist Personal Injury team. For further information, please contact Caroline on 01382 346282 or email firstname.lastname@example.org or contact any member of the Personal Injury team on 0800 731 8434 who will be pleased to assist further.
Categories: Personal Injury