A WOMAN who alleges that she was the victim of a gang rape failed yesterday in her attempt to bring what would have been only the third private prosecution in Scotland this century.
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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 prosecution.
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 private prosecution.
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 the decision.
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 way.
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 present.''
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 Edinburgh.
The only other private prosecution this century which got off the ground was in a fraud case involving the shipment of coal.