THE issue of why two well-known Scottish footballers who were judged to be rapists in a civil case were not criminally prosecuted is to be raised in the Scottish parliament.

David Goodwillie, a Scottish international, was initially charged in 2011 with raping Denise Clair. The charges were subsequently dropped. His then Dundee United club mate David Robertson was detained and questioned but not charged. Following the collapse of the cases, Clair pursued a civil suit for damages and last month was awarded £100,000 damages, with the judge, Lord Armstrong, concluding that she had been raped by the two men.

Now the Green MSP John Finnie, a member of the Justice Committee, has taken up the case and last night told the Sunday Herald that he would be raising it at the committee.

“I am keen to discuss with colleagues what we can learn from it,” he said. “There is understandable concern about it. This case gives rise to a number of issues, not least that the victim feels let down by the criminal justice system. And of course the potential signals it sends to victims of heinous sex crimes.”

The Lord Advocate at the time the case was dropped was Frank (now Lord) Mulholland. In the wake of the furore, Mullholland set up a review procedure which allowed for independent adjudication on behalf of victims of crime who'd had their cases dropped. It came into force in July 2015 and was not retrospective, unlike the double jeopardy law change, so Clair could not pursue this avenue and her only recourse was the civil action.

However, according to sources, this little-known review procedure has never been successfully used. A Crown Office spokesman was unable to confirm or deny this, saying that it would have to be subject to a Freedom of Information request.

The spokesman also said that a request for information about what discussions took place between the counsel for Goodwillie at the time, the late Paul McBride QC, Mulholland, and the Crown Office – and whether these were minuted – would also need to be subject to an FoI request.

It is custom for defence counsels to discuss with the Crown in advance the merits of a case which, among other things, would be about to trying persuade that charges should be dropped. There is no suggestion that any discussions which may have taken place were inappropriate.

It took more than five years for Clair, who had waived her anonymity, to achieve a measure of justice through her civil action. The standard of proof in civil cases is lower than in criminal ones – on the balance of probabilities rather than beyond reasonable doubt – however, Clair’s civil case against Goodwillie and Robertson involved 20 witnesses heard over 10 days, including several who testified to her incapacity through drink which must have rendered her incapable of consenting to sex.

The decision not to prosecute left the then president of the Criminal Bar Association, Tommy Ross, “mystified” adding that he “simply couldn’t comprehend it”. He points out that while the Crown had concluded there was a lack of corroboration over her ability to consent, it “was corroborated and by more than two sources”.

It was New Year’s Day 2011 when Clair, then 24 and a single mother, left her four-year-old daughter with her mother and went out with friends for a drink in Bathgate. She was an infrequent drinker and had only been out for a social drink twice in the previous year.

Less than 24 hours later her life would be changed utterly, she would have been raped by two well-known footballers, traduced foully on social media and for more than five years from that night she would be fighting relentlessly against expensive lawyers and the legal establishment to prove that her account - that she was not capable of consenting to sex with the two players - was true. The £100,000 she eventually won in a civil action was scant compensation.

Clair was at school with David Robertson, dubbed the second defender in her action, who was playing for Dundee United at the time of the incident. That evening he arrived at the Glenmavis Tavern, as did his friend and fellow United player David Goodwillie. That day Goodwillie had scored the equalising goal against Aberdeene. After the match, he returned to his home at Stirling and later contacted Robertson and arranged to meet him.

Clair had half a can of lager in her brother’s car before going to the pub where she met Rachel Carrigan, who had been at secondary school with her. The two had given birth to daughters at around the same time. They hadn’t seen each other recently and had arranged to go out.

It is not clear how much drink was taken. But witnesses said that Clair and Robertson were getting on well and that Goodwillie was trying to “chat up” Carrigan. Subsequently the two women, with another friend, decided to go the nearby Chalmers nightclub, where drinking continued. Progress to get there was slow, as Clair was stumbling, even temporarily losing a shoe at one point.

It is not disputed that she had quickly become drunk. One witness described how her words were “slurry” and how she fell against her. A security staff member at Chalmers, Gail McGregor, recalled how she had received a call on her earpiece about a purse that had been found. It was Clair’s. McGregor had seen her in the club earlier and when Clair returned for her purse McGregor said she could not stand up straight and could not speak properly.

This took place outside the club in view of CCTV. The two footballers are clearly identified. In evidence McGregor described Clair as not being "compos mentis" and probably needing hospital treatment. But Robertson assured her that he knew Clair from school, was a pal and that he was going to take her home.

The two men clearly intended to have sex with Clair and Carrigan, indeed Goodwillie had obtained a key to an empty flat at 57 Greig Crescent, Armadale earlier from a mutual acquaintance, but Carrigan had no intention of going with the men, counselling Clair, evidently by now extremely drunk, to go home.

Forensic evidence, based on samples the next day and back-dated, showed that at the time she would have been at least three times over the then drink driving limit and in a condition described as ‘severe and potentially fatal’, falling within the range of blood alcohol concentrations associated with alcoholic blackouts and memory impairment.

Both footballers were described as unreliable witnesses by Lord Armstrong in the civil case. Both men’s evidence changed from their initial statements. And after Robertson learned that there would be no charges against him he changed his statement to partially corroborate Goodwillie’s revised account. In July 2011 the rape charges against Goodwillie were dropped by the Crown because of ‘insufficient evidence’.

As well as the witnesses for the earlier evening testifying about Clair's state, taxi driver William McNeill, who took the three to Armadale, could see that she was reluctant to get out of the taxi as they arrived at the flat. He said to her twice: “If you don’t want to go in, I could take you home”. In response she mumbled: “It’s OK, I’ll be fine”.

Both men claimed that Clair was a willing participant and was capable of consenting - although their accounts, again, differ. Clair consistently maintained that she had no memory of any of the events since much earlier in the evening in the pub and had she been sober she would never have agreed to have sex with the two.

She woke up alone in the flat, not knowing where she was, unable to find her clothes. Then put on a pair of black jeans she found and a white shirt. A witness, Catherine Peden, a care assistant, was working that morning and gave evidence of coming across Clair in the street and that she was wearing one boot and nothing on the other foot, holding the shirt shut.

She recounted that Clair was on her phone, wanting to give directions to her brother to pick her up but she did not know where she was or what had happened to her. Peden testified that she thought that there was something wrong with the young woman, she looked confused and looked as though she ought to have been seen by a doctor.

Later that day, January 2, after contacting police, Clair was interviewed and at 2pm a forensic medical examination was carried out. Clair maintained said that she did not know if sexual intercourse had taken place, but suspected that it had.

In his judgment in the civil case Lord Armstrong described Clair’s evidence as “cogent, persuasive and compelling” and that both men took advantage of her “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 consent; and that they each raped her.”

After the criminal charges against Goodwillie were dropped in July 2011, within hours he was selected for the Scotland squad against Denmark by the then manager Craig Levein. Less than a week later the £2.8 million transfer to Blackburn Rovers, which was conditional on the charges against him being dropped, went through.

His last club was Plymouth Argyle. He was released last month by mutual agreement. Now 27, he has retired from football, allegedly to prove his innocence, although it is doubtful if any club would now employ him. Robertson, 30, has also retired from football.