private prosecution in Scotland this century.
Three High Court judges ruled that the 25-year-old woman had failed to
establish the very special circumstances required under Scots law to
justify a private prosecution.
The woman claimed that she was attacked in her home in Dunfermline in
September 1992 by Mr Alistair Forsyth, 24, Mr Graeme Naismith, 24, and
Mr Christopher Blount, 22, all from Dunfermline.
They claimed the woman had consented to sex and the case was set down
for trial at the High Court in Kirkcaldy in September 1993. However,
because of a mistake by police in England, a vital Crown witness failed
to turn up.
The Crown asked Lord Clyde for an extension of the 12-month time limit
within which cases on indictment must be brought. This was refused and
the case collapsed.
The woman brought a Bill for Criminal Letters, the method of applying
for a private prosecution in Scotland.
Normally, criminal proceedings in Scotland are brought by the Crown
under the direction of the Lord Advocate and private prosecutions have
to be sanctioned by the High Court.
In this case, the Lord Advocate, Lord Rodger of Earlsferry, told the
High Court at Edinburgh that he would not oppose the private prosecution
if the court thought it was competent.
Yesterday, Lord Ross, the Lord Justice Clerk, who heard arguments in
the case with Lords Marnoch and Brand, said counsel for the three men
had argued that a private prosecution would be incompetent.
That was because the 12-month period within which an accused must be
brought to trial after a first court appearance applied to a private
Lord Ross disagreed. He said the court was satisfied that the Criminal
Procedure (Scotland) Act 1975, which governed the situation, applied
only to public prosecutions.
However, there also had to be special circumstances to justify a
Mr Andrew Hardie QC, Dean of the Faculty, appearing for the woman,
argued that special circumstances did exist in this case.
When the original case was called and the judge refused to extend the
12-month period, the Crown had dropped the case and not appealed against
Mr Hardie also argued that the Crown should not have waited until the
12-month period had almost expired before trying to get the trial under
He added that the nature of the crime, a rape alleged to have been
committed by three accused, was in itself a special circumstance.
However, Lord Ross said: ''It is well recognised that private
prosecution is allowed only in exceptional cases. . . but I find it
difficult to see what other special circumstances can be said to be
The circumstances here were not as strong as those which existed 14
years ago when Carole X brought a private prosecution in the GLasgow
rape case in 1982, after she was raped and slashed with a razor in a
Portakabin in the East End of Glasgow. The case ended with one of her
attackers being jailed for 12 years after a trial at the High Court in
The only other private prosecution this century which got off the
ground was in a fraud case involving the shipment of coal.