Balance of probabilities – Seán Crossan's Scots Law

An interesting story appeared in the Scottish and national UK media on Wednesday 26 February 2025 about a case at Wick Sheriff Court which has made legal history.

Chief Constable of Police Scotland v Kevin Booth [2025] SC WCK 8

A link to the judgement (issued by Sheriff Neil Wilson) on the British and Irish Legal Information Institute (BAILII) can be found below:

https://www.bailii.org/cgi-bin/format.cgi?doc=/scot/cases/ScotSC/2025/2025scwck008.html&query=(Chief)+AND+(Constable)+AND+(of)+AND+(Police)+AND+(Scotland)+AND+(v)+AND+(Kevin)+AND+(Booth)+AND+(.2025.)+AND+(SC)+AND+(WCK)+AND+(8)

When I heard the first account of this story on BBC’s Six ‘o’ Clock News and, immediately afterwards on BBC Reporting Scotland, I assumed that the Sheriff Court had issued its Order under its criminal jurisdiction. I was wrong, but more about that later.

A word of warning to anyone contemplating reading Sheriff Wilson’s judgement, it contains graphic accounts of violence carried out by Booth against his victims. The judgement is not for the faint hearted.

Totally by coincidence, this story was reported around the time that a major Hollywood film, Heretic (starring Hugh Grant) had just been released; the plot of which featured a misogynist running a torture dungeon under his suburban home. Although the real life setting of Booth’s remote, baronial mansion in the Scottish Highlands definitely won out over Hollywood for its sheer spookiness factor.

A link to the BBC Scotland report can be found below:

https://www.bbc.co.uk/news/articles/cy9dld3jgx8o

The Man with an International Travel Ban

The case centred around Kevin Booth who had been accused of physically abusing women in a private dungeon located in the cellars of his Highland home. Adding to the Grindhouse Movie atmosphere of this story, Booth was in the habit of filming these encounters. It later transpired that many of Booth’s victims were employed by him as domestic servants at his Highland home. Many of these women were foreign nationals who had been lured to the UK by promises of well paid employment with Booth. They were highly vulnerable to abuse and exploitation. These women were to be bitterly disappointed: the golden future that Booth had painted was a deception and, little did they know it, but they were about to enter a nightmare.

At first, I thought, nothing unusual about this story as violence against and the abuse of women and girls is still shockingly and depressingly common in Scotland (and the rest of the UK). Just that week, The Metro had run a front page story detailing the fact that the incidence of the crime of upskirting on trains had rocketed across the UK (see the link below).

Upskirting incidents on British trains have risen year on year since 2021

Back to Mr Booth: he is a millionaire (apparently) who owns a remote Scottish Baronial mansion located at the end of a 10 mile private road in the Highlands. The Police, acting on complaints received from several women who had worked for Booth, gathered evidence against him of potential, criminal wrongdoing e.g. torture (referred to as punishment beatings) and human trafficking, but the Crown Office and Procurator Fiscal Service (COPFS) later abandoned criminal proceedings against Mr Booth.

When the average person hears phrases like human trafficking and punishment beatings, you can’t blame them for arriving at the completely justifiable conclusion that this will involve breaches of the criminal law.

From knowledgeable sources of mine, it has been speculated that the Crown abandoned proceedings against Booth because it was not in the public interest (yes amazingly); there may have been some level of ‘consent’ given by Booth’s victims; and there was not a sufficiently high chance of securing a conviction against him.

That said, there are limits placed upon physical abuse that an adult may agree to undergo as the House of Lords made very clear in its decision of R v Brown [1993] UKHL 19 [1994] 1 AC 212. This case made headlines at the time because of the types of physical abuse which went way beyond the types of sado-masochostic sexual practices that would be deemed legally permissible.

At this point, it is worth restating that we have a system of public prosecution in Scotland (private prosecutions are extremely rare). It is the Crown Office and Procurator Fiscal Service (COPFS) which make decisions about whether an accused person will face trial in a criminal court. Police Scotland can charge a person with a crime (in this case Mr Booth), but it will be up to COPFS to green light a prosecution.

As we have seen, a criminal prosecution against Booth was attempted, but was later abandoned. This development, however, did not deter Police Scotland from taking further civil action against Booth at Wick Sheriff Court by applying for a Trafficking and Exploitation Prevention Risk Order (TERO).

Mr Booth is now the subject of an international travel ban to last for a duration of 5 years. This Order is the first of its kind in Scottish legal history. The ban or was made in terms of section 26 of the Human Trafficking and Exploitation (Scotland) Act 2015. The official name for this type of ban is a Trafficking and Exploitation Prevention Risk Order or TERO for short.

In relation to his activities, Booth, however, has not been convicted of any criminal acts and the travel ban was imposed by a civil court. The Police actively sought this civil order. There are other restrictions imposed on Booth by the Sheriff Court. He will, for instance, have to notify Police Scotland in advance if he proposes to employ women at his home. This Order is more about controlling Booth in the future as opposed to punishing him (in the criminal sense) for his past treatment of the victims in the story.

It has to be said that Mr Booth has a rap sheet that would turn most people’s hair white: physical abuse of pupils at a school in Africa where he worked as a teacher; further physical abuse of young children of school age in the North East of England; and, more worryingly, allegations of rape of a woman in the Republic of Ireland. Clearly, Booth is not a nice person – to put it mildly.

The Police have had significant involvement with Booth and have investigated him after a number of complaints were received from women who stated that they had been physically abused by him.

On BBC Scotland, the reporter likened the abuse to “punishment beatings”. Booth is still a free man for now – although the Police will continue to monitor his activities. At the time of writing, Booth was the subject of a criminal trial at Wick Sheriff Court for allegedly making indecent communication s to a woman (please see link to article on the BBC website below).

https://www.bbc.co.uk/news/articles/cd7v27nnv9go

The question being asked is “Why is this man not in jail?”

This is clearly a question for COPFS to answer because it is the relevant legal authority for determining whether a public prosecution of an accused should proceed.

The decision not to proceed against Booth is going to be particularly controversial given high profile campaigns about violence against women and attempts by the authorities to reduce these types of incidents.

What about the victims pursuing private prosecutions against Booth?

Well, this Blog has previously discussed the problems associated with these types of legal action in Scotland. It is theoretically possible, but highly unlikely in practice as the victims would have to make an application to the High Court of Justiciary for a Bill for Criminal Letters which would permit them to initiate a private prosecution against Booth. It’s worth remembering that the last successful private prosecution in Scotland was over 40 years ago (X v Sweeney [1982] JC 70)

A civil action, for the time being, might be the only effective remedy for the victims.

That said, the Police and COPFS are monitoring the situation and, if significant new, evidence comes to light, Booth may well have to face his day in a criminal court.

In conclusion, Sheriff Neil Wilson had this to say about Booth’s conduct (at paragraph 102 of his judgement):

“… the evidence of Mr Booth’s egregious conduct, as presented in court, was, at times, utterly harrowing. The graphic video footage, combined with the context and background provided by supporting documentary evidence in various forms, was redolent of a level of cruelty and depravity which, whilst extreme, one can only hope is rare. It might be thought that the use of such value-laden language in a legal judgment is inappropriate. I would beg to differ, and make no apologies for including it. This judgment may be primarily concerned with the legal issues before the court, but it is important not to lose sight of the human suffering giving rise to this case.”

Recent Update About Mr Booth

On 28 October 2025, at Wick Sheriff Court, Mr Booth was found guilty of making an indecent communication to a woman who had been employed by him. Booth will return to Court at a later date to be sentenced by the Sheriff.

A link to the story on the BBC website can be found below:

https://www.bbc.co.uk/news/articles/cwyp392jx2do

Explanatory Note About Grindhouse Movies

According to Wikipedia: A grindhouse or action house^[1] is an American term for a theatre that mainly shows low-budget horror, splatter, and exploitation films for adults.

According to historian David Church, this theater type was named after the “grind policy”, a film-programming strategy dating back to the early 1920s that continuously showed films at cut-rate ticket prices that typically rose over the course of each day. This exhibition practice was markedly different from the era’s more common practice of fewer shows per day and graduated pricing for different seating sections in large urban theatres, which were typically studio-owned.

Copyright Seán J Crossan, 26 February 2025 and 28 October 2025

Photo by JJ Jordan on Unsplash

In Chapter 1 of Introductory Scots Law, I discuss the differences between criminal and civil law. A discussion point which often arises in my lectures with students is the difference in the standard of proof in criminal and civil trials.

In a criminal trial, the onus or burden of proof is very much the prosecutor’s responsibility. In other words, the prosecutor must prove beyond reasonable doubt that the accused is guilty.

By complete contrast, in civil litigation, the onus or burden of proof is placed on the shoulders of the pursuer (or the claimant). S/he must show, on the balance of probabilities, that the basis of the claim is stronger or more credible than that of the defender (or respondent).

The criminal standard of proof is of a much higher standard than the civil burden of proof. I think this can be easily justified given the consequences of someone being convicted of a crime: the sanctions are much more serious and potentially longer lasting.

So far so good: most First Year Law students can grasp the distinction between the different standards of proof or evidence.

Difficulties tend to arise when students encounter a situation where the conduct of the behaviour at the centre of a case can have both criminal and civil consequences.

They often ask me why someone (the accused) can be acquitted of a crime, but sued successfully in a subsequent civil action?

I often use driving offences as a means of making a point. Many drivers who are charged with dangerous driving often experience immediate relief when they are acquitted of criminal charges; this sense of relief can be short lived when they are informed that the victim intends to proceed with a personal injury action (which has a very realistic chance of success).

The simple reason for the above situation is the difference in the burden of proof in each trial: the higher burden of proof in a criminal trial and a lower burden of proof in the civil claim.

It’s also important to appreciate that the criminal and civil legal systems operate independently of one another. They have different functions:

Primarily, criminal law seeks to punish offenders who behave in dangerous and irresponsible ways which would threaten the safety and security of the wider community and public.

On the other hand, civil law (concerning the breakdown of relations between private individuals) essentially seeks to provide the victim of a breach of duty with a remedy – usually, but not always, compensation or damages.

There have been examples of successful civil claims for damages by a rape victim (most notably DC v (First) DG and (Second) DR [2017] CSOH 5).

Crucially, the Police had investigated the incident and no further action was taken against her alleged attackers (footballers David Goodwillie and his then team mate, David Robertson) in that the Crown Office and Procurator Fiscal Service did not take the case to a criminal trial. That was not the end of the matter: Denise Clair, the victim, pursued a civil action against both men at the Court of Session and won substantial damages in respect of her injuries.

A link to the judgement can be found below:

https://scotcourts.gov.uk/media/t3bbpnhy/2017csoh5-dc-against-first-dg-and-second-dr.pdf

Recently, there have been a number of similar cases where the failure of criminal cases to secure convictions for rape have been no barrier to victims of sexual assault from pursuing civil damages claims in the Scottish courts.

Links to two of these stories reported by the BBC can be found below:

Woman wins £80,000 in damages from man cleared of raping her in St Andrews

Soldier cleared of rape ordered to pay £100,000 in civil case

Developments in the Denise Clair/David Goodwillie & David Robertson Case

On 23 February 2025, BBC Scotland reported that Denise Clair had been awarded Legal Aid to make an application to the High Court of Justiciary to be permitted to pursue a private criminal prosecution against David Goodwillie.

Now, private prosecutions in Scotland are incredibly rare with the last partially successful action going back to the 1980s. The most famous, partially successful private prosecution in Scotland became known popularly as the Glasgow Rape Case. In 1982, a rape victim was permitted to raise a private prosecution against three of her alleged assailants (see X v Sweeney (1982) JC 70). Prior to this legal action, there had been one, other private prosecution in Scotland during the 20th Century and that had been concluded as far back as 1911 (the actual Bill of Criminal Letters was granted in 1909 – see J & P Coats Ltd v Brown 1909 6 Adam 19).

It remains to be seen whether Ms Clair will be permitted by the High Court of Justiciary to go down the route of a private prosecution against Goodwillie and Robertson.

A link to the BBC Scotland report about Ms Clair’s application for a private prosecution can be found below:

https://www.bbc.co.uk/news/articles/cx2rnynwpneo

Conclusion

There different standards of proof depending on whether the legal action is a criminal prosecution or civil claim.

There is a higher standard of proof required in a criminal prosecution to secure a conviction.

The two legal systems have different objectives and operate independently of one another.

As we have seen in a number of cases, an accused who is acquitted in a criminal trial may experience a very unpleasant shock when the victim communicates an intention to pursue a civil claim for damages – which, in the longer term, may have every chance of success.

It should be emphasised, of course, that those successfully sued for conduct such as rape or sexual assault, but successfully acquitted of all criminal charges, will not have a criminal record. They will bear civil responsibility for the victim’s injuries. It’s by no means a perfect solution (given the lower conviction rates for rape), but does provide victims with some means of legal redress.

Tag: Balance of probabilities

The burden of proof