Private prosecution: the Glasgow Rape Case revisited

Late on the evening of Friday 31 October 1980, a 31 year old woman was walking alone along London Road, Glasgow, making her tortuous way to her home in the Parkhead area of the city.

She had spent the evening drinking in public houses in the Glasgow Cross area and the mile-long journey on foot to Parkhead was something that she had become accustomed to over the years. Foolhardy, perhaps, but when one has no money for a taxi fare, needs must.

She managed to get to Bridgeton Cross without difficulty. After that, it was only a half mile or so home. However, that half mile was to end in circumstances of abominable savagery. She had still to negotiate the small but infamous Barrowfield housing scheme.

Today, Barrowfield is a modern housing development with the old houses demolished. In 1980, it was a greatly deprived area ridden with crime and where rivals gangs, Spur and Torch, vied for supremacy. The police of the Eastern Division had a 24-hour fight on their hands in Barrowfield alone.

When the woman reached Davaar Street, in the shadow of Celtic Park, she was confronted by a number of youths from the Barrowfield scheme. What allegedly happened next is better described in the indictment that was later to follow:

“(1) that you did on 31 October or 01 November 1980, in London Road near Davaar Street, Glasgow, assault the said X, strike her on the head with an unknown instrument whereby she became unconscious, drag or carry her to a structure situated in the disused premises at 10 Davaar Street, Glasgow, and there place her on the floor, forcibly remove her clothing, hold her down, lie on top of her and repeatedly rape her; and

“(2) that you did further at the same place and on the same date, assault the said X and strike her repeatedly on the head and body with a razor or similar instrument all to her severe injury, permanent disfigurement and to the danger of her life”.

The complainer, invariably referred to in later years as Carol X, had suffered appalling injuries that required some 150-odd stitches over the head and body. Those incisive wounds had been caused by a cutthroat razor that was a favourite tool of Glasgow gangs of the era.

Crown proceedings cut short

The police quickly arrested four youths, who appeared on petition at Glasgow Sheriff Court charged with rape and attempted murder. They were released on bail and, subsequently, three of those youths were indicted for trial at the High Court at Glasgow in May 1981. All three were charged as set out above.

The indictment intended for May 1981 did not call. There were two reasons for that: first, given industrial action by court staff, no jurors had been cited and, secondly, the complainer had moved to England where she could not be traced for citation as a witness.

The same three accused were re-indicted for trial at the next sitting of the High Court at Glasgow a month later, in June 1981. This time, however, the complainer did turn up, albeit in a seriously disturbed state.

Crown officials were so alarmed by Carol X's mental condition that they ordered a psychiatric assessment. That assessment was unequivocal – Carol X was suicidal and there was no guarantee that she would not remain suicidal even after giving evidence, whatever the outcome of the trial.

The psychiatric report concluded that “one must never forget that this woman has been very severely physically and psychologically traumatised and that any further pressure put upon her will only cause more unhappiness, despair and isolation”. The prognosis was anything but good, at least in the foreseeable future.

That left the Crown with a problem, a serious problem. What could it do, balancing the rights of the accused with the Crown responsibility of ensuring the public interest in criminal cases – and within the strict time limits of the day?

A senior advocate depute took the fateful decision to abandon proceedings, and the accused were so informed by the procurator fiscal on 15 September 1981.

Media frenzy – and the politics

Up till this point, narration of the case is straightforward and unremarkable. However, from this point on, things would never be quite the same again, and the legal consequences are with us still, in recent attempts to bring about the private prosecution of a lorry driver involved in a multiple-fatality accident in Glasgow city centre.

The ball started to roll with media interest. A trickle of newspaper articles at first developed into a torrent of both newsprint and airtime. Indeed, the circumstances made the headlines on the BBC late evening news.

It wasn't simply media interest but a media frenzy. The advocate depute concerned (later to become a senior judge) was, literally, hounded by the press who made him out to be the bad guy in all of this.

The paparazzi followed his every move, from waiting at his house in the morning to still waiting there in the evening for his return. The press and paparazzi were at their most awful, unconstrained worst.

The Lord Advocate of the day, Lord Mackay of Clashfern, got it also. He made a statement in the House of Lords on the afternoon of 21 January 1982, followed shortly afterwards by a statement in the House of Commons by the then Solicitor General, Nicholas Fairbairn QC, MP.

Both statements were identical and made reference to the possibility “that the complainer may at some future date make an application to the High Court of Justiciary to bring a private prosecution”.

The Solicitor General was given a difficult time in the parliamentary debate that followed, but he held his ground and those who attacked him came away with no credit whatsoever.

For example, Bruce Millan, Labour MP for Glasgow Craigton – and a former Secretary of State for Scotland, no less – told the Commons that the Solicitor General's reference to a private prosecution was “a complete red herring”, meaning, of course, that the Solicitor General was talking nonsense and that there was no possibility of a private prosecution, let alone a successful private prosecution.

Another example was Labour MP David Marshall (Glasgow Shettleston) complaining of “this pathetic statement”, and wondering loudly whether the Crown Office official who took the decision to abandon proceedings “had been disciplined”.

Perhaps the most bizarre contribution of all came from the Labour MP for Barking, Jo Richardson, who asked the Solicitor General whether he agreed “that what has happened in Scotland gives licence to rapists to rape and then cut up their victims, because they may then go scot-free?”.

That was the calibre of the debate, something that was truly degrading of any parliamentary process.

Fairbairn resigned as Solicitor General later that evening. There had been many calls for the Lord Advocate's resignation, but those calls were tempered, to some degree, by the resignation of the Solicitor General. However, Fairbairn had had no dealings with the Carol X case and his resignation had been over another little difficulty.

Picking a private team

Matters accelerated further when Carol X instructed solicitor Ross Harper. Harper, a man of extraordinary drive and energy, had co-founded the eponymous legal firm of Ross Harper & Murphy some 21 years earlier and had developed the firm to the extent that, by the early 1980s, it had 20-odd offices ranging from Edinburgh to Ayr.

The press had been screaming “private prosecution” for some time. Harper was the man to take it further.

It was at this point that I, personally, became involved. Harper ordered me to proceed with the case, and I am of the view that he picked me because he thought I was the most idle individual in the office and that I should be doing more to earn my keep. He had a policy of delegation and never interfering with staff. You just got on with it.

The only thing I knew about private prosecutions at the time was what I recalled from law school – that while private prosecutions were, theoretically, possible in Scotland, they were of academic interest only and that the last successful private prosecution had been the case of J & P Coats Ltd v Brown in 1909. To say that I was out of my depth is an understatement.

The first thing I did was to instruct T A K (Kevin) Drummond, at that time junior counsel at the Scottish bar. I knew him to be not only highly able but also capable of a prodigious amount of hard work. I have no doubt that the success of the subsequent private prosecution was down to his extraordinarily hard work during those early, preparatory stages of the case.

Drummond retired recently after a distinguished period as a sheriff, first at Glasgow and latterly at Jedburgh.

My own role was twofold: first, engaging with Carol X, a task that could be rather challenging; secondly, dealing with other witnesses and maintaining correspondence, productions and precognitions in a semblance of order. That was easier said than done, given the volume of papers involved and a rickety old photocopier that was forever breaking down, wasting hours and days of very valuable time.

Ever since, my addendum to Murphy's law has been that your equipment will always let you down when you most need it to work.

Later, we were joined by two of Scotland's most eminent Queen's Counsel, Charles Kemp Davidson QC, Dean of the Faculty of Advocates and J A (Alastair) Cameron QC. The Dean was, ex officio, Scotland's pre-eminent lawyer and I had always had a very high regard for Cameron.

Both were later appointed to the bench, the Dean of Faculty as Lord Davidson and Cameron as Lord Abernethy. Not only were both first-class lawyers, but also they were of a fiercely independent mind, always the best quality in a judge.

Winning permission

It is important to state that we received complete cooperation from the Crown at every stage. We got access to all their statements and productions and, crucially, their decisions and the reasons upon which those decisions were based.

We received also complete cooperation and assistance from Justiciary Office – after all, private prosecutions did not come along every day of the week. The result was that we were able to proceed in the knowledge that we were neither going to be ambushed by the Crown nor hindered by procedural error.

As circumstances had it, Carol X's mental state seemed to improve with the passing of time, to the extent that further psychiatric assessment concluded in the early part of 1982 that she might now be fit enough to give evidence without risk of serious injury to her health.

On that basis, a quaintly-entitled bill for criminal letters was presented to the High Court of Justiciary soon after the Lord Advocate's statement to the House of Lords. It was heard before three of the most senior judges in Scotland, the Lord Justice General (Lord Emslie), Lord Cameron and Lord Avonside.

The Lord Advocate's position was that, while he “declined to grant his concurrence to the bill, his indication to the court was that he did not oppose the passing of the bill”.

I still don't know what, exactly, that means... does it mean, perchance, that if the Lord Advocate had granted his concurrence, the bill would have had a better chance of being passed, or does it mean that if the Lord Advocate had opposed the passing of the bill, the court would have refused the bill?

The three respondents argued (1) that it would be incompetent to pass the bill, and (2) that, in any event, it would be oppressive to do so.

I think it is fair to say that the court found the matter extremely difficult but, finally, and with much hesitation, came down in favour of passing the bill, thus authorising private prosecution. However, it was obvious that, as a starting point, the court looked most unfavourably on private prosecutions, a situation that continues to the present day.

The bill was passed on 1 April 1982, and within 15 minutes, Detective Chief Inspector Cowie had re-arrested all three youths at London Road Police Office for a court appearance the following day.

The subsequent trial concluded with all three convicted, two of them in part. The principal accused was sentenced to detention for a period of 12 years.

The modern context

One particular matter concerned me at the time and has continued to concern me ever since. It is a fact of life in the criminal courts that, in certain cases – and often the most serious cases – the Crown grants immunity from prosecution to certain witnesses, almost always socii criminis, in return for their evidence. However, nowadays, life is not quite that simple.

In the Carol X case, the Crown originally intended to grant immunity to a particular witness (one of the four youths originally charged but not indicted) and, during the hearing of the bill, the Dean of Faculty advised the court on behalf of Carol X that he, also, intended to grant the same witness immunity in return for his evidence.

Nowadays, if, as appears to be the case, private prosecution is competent and possible, it is important both for the Crown and the court to advise a socius criminis witness, as a matter of fairness, that, whatever immunity is offered by the Crown, such immunity must, of necessity, be limited and the threat of private prosecution may still hang over his or her head.

Indeed, if I have followed matters correctly, an analogous situation occurred recently at a fatal accident inquiry at Glasgow Sheriff Court where the lorry driver mentioned earlier was called as a witness by the Crown.

The lorry driver had been advised previously by the Crown that he would not face criminal charges, but the particular matter of a private prosecution brought by others had been looming large in media reports for some weeks.

Further – and, again, if I have followed matters correctly – the lorry driver was told by the sheriff prior to his evidence that he need not answer any questions that might incriminate him, on the basis that he might be subject to a private prosecution brought by others.

The lorry driver opted to stay silent on important matters, so that the fatal accident inquiry was denied what might have been the best evidence available.

That was a highly unsatisfactory situation and one that must now be addressed by the Government. I cannot think of anything more likely to harm the administration of justice than the prospect of immunity from prosecution being conditional on factors over which the Lord Advocate, as public prosecutor, may have little or no control.

While one can only commiserate with the bereaved families involved in the lorry driver case, it appears to me that the threat, or possibility, of private prosecution did not assist them, or indeed the public, in any way. It was a deeply unsatisfactory state of affairs on a matter of considerable public importance.

Contrary to principle

While the Carol X case may have been decided correctly at the time on its own particularly special circumstances, private prosecutions have their origin in the mists of legal history and, nowadays, such prosecutions sit so uncomfortably alongside a modern system of public prosecution that they simply cannot be justified.

The argument that private prosecutions are very few and very far between not only completely misses the point but also becomes the bigger problem in itself. It is the principle that matters.

There is no doubt that the circumstances of the Carol X case were a prolonged PR disaster for Crown Office, despite all decisions that were taken at the time being the absolutely correct decisions.

A generation later and Crown Office had another, and very similar, PR disaster. An ultra-hostile press decided that the then Lord Advocate (Frank Mulholland QC) had been wrong not to prosecute in the criminal courts the lorry driver involved in the multiple-fatality accident. No change there, then.

Also, the media clamour for private prosecution could only have given the bereaved families completely false hope when, instead, a serious reality check should have been the order of the day.

For most of the media, a successful private prosecution was a fait accompli and, boy, how much were they relishing the event.

It was a reprehensible thing to do to those bereaved families, and those managing many media outlets should hang their heads in shame. The chances of the bill for criminal letters being passed for private prosecution of the lorry driver were, precisely, zero.

Nowadays, given the far greater flexibility of the legal system, there is much less likelihood of Carol X-type circumstances arising again.

While nothing is certain in the legal world, in my view it would take the Crown to commit a series of cardinal sins before there would be any realistic prospect of the High Court of Justiciary ever again authorising a private prosecution.

The current law is one big mess. The problem is that private prosecutions are completely alien to a modern democracy, and certainly so to Scottish criminal procedure. Their time is up and the Scottish Government should put this ghostly relic finally, firmly and promptly to rest.