Following a judgment this week which saw a woman awarded £100,000 after Lord Armstrong in the Court of Session ruled that two professional footballers raped her, Brian McConnachie QC has said the importance of the case has been “exaggerated” and described the comments of Rape Crisis Scotland as “irresponsible”.
The woman was awarded damages after Lord Armstrong stated in an opinion 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.”
The judge concluded: “Having carefully examined and scrutinised the whole evidence in the case, I find the evidence for the pursuer to be cogent, persuasive and compelling.”
Speaking to Scottish Legal News, Mr McConnachie explained that there were “three important differences from criminal proceedings” in the case.
“Firstly, the standard of proof is significantly lower – namely the balance of probabilities rather than beyond reasonable doubt. If the judge considered it was more likely than not then that was enough,” he said.
He added: “Secondly there is no requirement for corroboration. Accordingly, the evidence of the pursuer alone was sufficient to satisfy the lower standard of proof.
“Thirdly, there is no conviction and neither of the defenders will go to prison. There will be no trial despite the decision of Lord Armstrong.”
Mr McConnachie also cautioned against the view that the case broadens access to justice.
He said: “The comments from Rape Crisis Scotland were in my view somewhat irresponsible. The suggestion seemed to be that somehow this was a landmark ruling which would provide another avenue for people complaining of being raped.
“The case is unique in the modern era in part because the defenders had capital for which they could be sued and from which the expenses of the successful party could be paid.
“That is not the situation most complainers find themselves in. The vast majority of people accused of rape are of modest means or indeed none at all. If the Crown, for good reason, decide not to proceed with a case the idea that complainers will be lining up to raise civil proceedings is, in my opinion ludicrous.
“The case is of interest but I do not see it as a landmark case or one which will open the floodgates to similar actions in the future.”