Bin lorry killer won’t face trial
Court of Appeal rules against bringing private prosecutions
GRIEVING relatives of victims killed in the Glasgow bin lorry crash have been left devastated after learning the driver responsible for their deaths has escaped prosecution.
Appeal judges yesterday denied the families a chance to use a rare private prosecution to force Harry Clarke to stand trial after six people died when he blacked out at the wheel.
The case was brought by relatives of Erin McQuade, 18, and her grandparents Lorraine, 69, and Jack Sweeney, 68, from Dumbarton, who were killed when the 59-year-old’s truck careered out of control in the city’s Queen Street.
Jacqueline Morton, 51, and Stephenie Tait, 29, both of Glasgow, and Gillian Ewing, 52, of Edinburgh, also died, and 15 others were injured in the tragedy three days before Christmas 2014.
A sheriff later found the crash could have been avoided if Mr Clarke had not ‘deliberately and repeatedly lied’ about his medical history of blackouts.
The damning findings, following a Fatal Accident Inquiry (FAI), prompted the families to challenge the decision by senior prosecutors not to bring criminal charges against the driver – only nine weeks after the crash.
‘Locked in a most brutal horror story’
But their search for justice suffered a major blow yesterday when their petition to bring private charges failed to be approved by a panel of three senior judges.
They also rejected a similar plea for a private prosecution of motorist William Payne, lodged by the families of students Mhairi Convy and Laura Stewart, who were knocked down and killed in Glasgow in 2010 after he lost consciousness at the wheel.
There was sobbing from members of the students’ families, who were present in the public gallery at the Court of Criminal Appeal in Edinburgh, as the decision was given.
Outside court, relatives of Miss Convy and Miss Stewart reacted with fury to the court’s decision, saying they had been ‘locked in a most brutal horror story’ since the crash.
The families of Mr Clarke’s victims were not in court – but were last night said to be ‘considering their options’, including whether any further avenues of appeal are open to them. A source close to the Sweeney/ McQuade family said: ‘They will have a very close look at the judgment and will decide in due course what action they might wish to take.
‘We also have to bear in mind that we are coming up to the second anniversary of the tragedy and it is a very difficult time for them.’
Private prosecutions are extremely rare – only one has been brought under Scots Law in 100 years – and can prove costly, but the family were determined to push ahead, fuelled by their anger that nobody has faced justice over the bin lorry tragedy.
The FAI heard that Mr Clarke collapsed at the wheel of his vehicle after he experienced ‘an episode of neurocardiogenic syncope’.
In dramatic testimony, two of the lorry’s crew told the six-week hearing how they were unable to stop the 26-ton truck racing out of control for 19 terrifying seconds along Central Glasgow streets packed with Christmas shoppers.
Those in its path stood little chance as the lorry mounted a pavement on Queen Street, before smashing into the side of the Millennium Hotel in George Square.
Sheriff John Beckett, QC, later held Mr Clarke unequivocally responsible for systematically concealing nearly 40 years of fainting fits to various employers, including FirstBus and Glasgow City Council, his doctors and the DVLA to ‘gain and retain jobs and licences’.
In February 2015, less than three months after the crash, the Crown Office said it would not be prosecuting him, insisting there was insufficient evidence to raise criminal proceedings.
But the families of the victims disagreed and sought permission to prosecute Mr Clarke on charges of dangerous driving and causing death by dangerous driving.
Scotland’s second most senior judge, Lord Justice Clerk Lady Dorrian, who heard the Bills for Criminal Letters with two other judges, Lord Menzies and Lord Drummond Young, ruled in both cases: ‘We do not consider that the Crown made an error of law.’
She added: ‘It is quite difficult to conceive of circumstances in which the court would pass a Bill where the Lord Advocate had examined and investigated the circumstances of the case and concluded as a matter of informed judgment that the whole tenor and weight of the evidence did not justify prosecution.’
Lady Dorrian said the arguments put forward by the families were ‘circumstantial’ and it could not be definitively proven that Mr Clarke or Mr Payne deliberately set out to commit crimes while driving that day.
The victims’ families claimed there was enough evidence from Mr Clarke’s medical records and his failure to seek advice about driving safely or to disclose his history to the DVLA to infer that he was well aware of his condition and that he should not have been driving on the day of the crash.
During proceedings earlier this year, which could not be reported due to legal reasons, lawyers acting for the families argued the Crown made mistakes when deciding not to proceed against Mr Clarke.
They said his behaviour in making ‘misrepresentations’ about his medical history to the DVLA and to employers – including failing to inform authorities about having passed out at the wheel of a bus four-and-a-half years before the fatal collision – showed he knew the state of his health meant he should not be driving.
Scotland’s most senior prosecutor, Lord Advocate James Wolffe, QC, told the court that prosecutors thoroughly examined all available evidence.
In a 40-page written judgment issued at the court, Lady Dorrian said: ‘In each case, the driver lost control through a loss of consciousness; in each case, the explanation
‘It is a very difficult time’
for this was identified only in postaccident investigation.
‘In neither case had there been a prior diagnosis of an underlying condition liable to render the driver unconscious without warning.’
The judge suggested the families’ argument in the bin lorry case turned on the question of whether inferences that could be taken from Mr Clarke’s medical history were sufficient to ‘create the knowledge that to drive on the day in question was to do so in the face of obvious and material dangers’.
She said the families’ advanced their argument by adopting ‘a selective approach to the evidence’ which ‘does not accord with the basis upon which such decisions must be taken by a private prosecutor’. She added: ‘As the Lord Advocate submitted, it is important in the public interest that prosecutors exercise their judgment independently, robustly, forensically and objectively on the whole evidence available.’
The Crown said it acknowledged the distress caused to the relatives by the decision not to prosecute the drivers. A spokesman said: ‘The Crown has an obligation to take decisions of this nature professionally and dispassionately, on the basis of the evidence.
‘After carefully considering all the relevant evidence, Crown counsel concluded there was insufficient evidence in law to raise criminal proceedings. We note the court does not consider the Crown erred in its assessment of these cases.’
Mr Clarke could not be contacted for comment last night.