The Court of Public Opinion - The Curious Case of David Goodwillie

Steven Astley

Posted 09/02/23

Written by
Steven Astley

When I were a lad, I played through the youth setup at Radcliffe [Borough] F.C. a small football club nestled away in the Lancashire market town of Bury, where I grew up.


I have since gone on to become a Partner in a law firm in that same town, where I lead an award-winning team of people who spend all day, every day, representing the victims of violent and sexual crimes across the nation.


I was as surprised as anyone to see that David Goodwillie a former Scotland International turned out for my old club recently. A former Scotland International playing in the seventh tier of English football is a rarity. Seeing stories of Radcliffe F.C. on Sky News are even rarer still.


The story caught my attention not just for the apparent fall from footballing grace of Goodwillie, but the case peaks my interest as a lawyer and an individual because of the legal, moral and social dilemmas it creates.


David Goodwillie was accused of the rape of a woman in 2011 in Scotland, at the age of 20 years old. This is the very sort of heinous crime I spend my waking days supporting victims through. He and his co-accused admitted having sex with a woman, but claimed she consented. Footballers being in the news for their sexual misdemeanours is in itself nothing new unfortunately, as the cases tend to be over publicised. However, the curious case of David Goodwillie has some unusual features that are noteworthy.


The first unusual feature is that Goodwillie has never actually been convicted of a related criminal offence. His criminal record is entirely clear of any sexual offences. No rapes, no sexual assaults, nothing. The Procurator Fiscal, the Crown office responsible for prosecutions in Scotland did not believe they had enough evidence to bring charges against him.


However, the victim took the rare step of pursuing him privately through the civil Courts and in 2017 was successful in obtaining a damages order against Goodwillie and his co-accused. That is an Order of the Court that he pay her money, indeed £100,000 worth of money. In deciding the case in the victims favour the civil Judge made a finding of fact that the victim had been raped, on balance. It was found she was so intoxicated that she could not have given meaningful consent. Note the difference in the burden of proving a civil case, of the ‘balance of probabilities’ when compared to a criminal case where the burden is “beyond reasonable doubt”. On balance, means more likely than not. 51% in percentage terms. It is a relatively low threshold by comparison. The Appeal route was closed by the Court of Session when Goodwillie tried to take it.


The second unusual feature is the way despite the lack of criminal conviction, the Court of Public Opinion has effectively cancelled his football career. Some may say that is deserved, rough justice, as a punishment for the most intimate of crimes. Goodwillie left Raith Rovers in September 2022, eight months after initially signing and having not made a single appearance, after the club faced a ferocious backlash from club sponsor Val McDermid, fans, Rape Crisis Scotland and even Scotland's First Minister Nicola Sturgeon. Within 24 hours of his appearance for Radcliffe F.C. they cancelled his contract. The clamouring of public opinion has taken precedence over just about every other interest.


The situation does also raise questions of the principle of rehabilitative punishment in the UK, which is the third unusual feature. We have a system of rehabilitative and restorative justice in this country. It is enacted in law, it has been core to our common law since at least Norman times and lets not forget, forgiveness is also upheld as a core part of most faiths in the U.K. Ordinarily, you may say the man has served his time and therefore should be rehabilitated and allowed to pursue his career unhindered thereafter. Goodwillie was never tried and convicted and remains an “innocent man”. It is widely reported though that he has never admitted to a rape, asserting there was consent and it was meaningful. This leads to a perceived lack of contrition, and as he has served no sentence, he’s never fronted up to the findings and never apologised.


The public have decided that they will, in effect, sentence him and punish him. The sentence from the Court of Public Opinion seems to be that will never have a playing career again. This leads to a dangerous situation in my humble opinion whereby the public themselves have assumed the role of judge, jury and executioner.   This is not in the interests of the victims, and contrary to the rule of law, as I will come to explain.


Would it have been different if Goodwillie had been convicted, sentenced and served his time as punishment? Or even if he had been tried and his guilt not proven? Well it is hard to say. As a society we have to decide whether “innocent until proven guilty” is just that. We also have to decide whether we truly believe in rehabilitation of offenders. The law says we have to. The difficulty with Goodwillie’s case is, of course, he was not convicted.


I would argue the justice system has failed the victim and offender in this scenario, which is why there is an unsatisfactory outcome all round.


Because there was no conviction and sentence, the victim has not been able to access restorative justice. Such processes offer a unique opportunity for the victim to feel like the offender has atoned for their crimes, often with a mere apology. Restorative justice allows the offender to face up to what they have done, take responsibility and make up for the harm their offending has caused. In this circumstance this has been denied to both the offender and victim, which again is an unsatisfactory outcome.


Whilst the Court of Public Opinion will now clamour at every opportunity to pile further, and continued, sentence on Goodwillie, in my experience that will often not be what the victim wants. They will tell you they just want closure.


It is entirely understandable why the public are reacting in the way they have, but I would encourage them to direct their efforts at the Crown Office and Government for maintaining a system that does not prosecute alleged offenders because they think they might lose. This fails victims and will continue to do so. No amount of additional support as pledged in the forthcoming Victims Bill can put that right.


Steven Astley represents clients who have suffered what can be life changing injuries as a result of accidents or intentional assaults, regularly helping bereaved families and victims of violent crimes, rape and sexual abuse make an application to the Criminal Injuries Compensation Authority or make a civil claim directly against the offender or organisation at fault. #lawyersforvictims

APIL, Lexcel, Personal Injury - The Law Society Accredited, APIL Brain Injury Specialist
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