Family abandon bid to have the inquiry adjourned
The inquiry into the Glasgow bin lorry crash was able to continue after a motion to have proceedings adjourned was withdrawn by the family of one of the victims.
The development meant driver Harry Clarke was called to give evidence to the fatal accident inquiry at Glasgow Sheriff Court.
Relatives of Jacqueline Morton, who was killed in the crash, said they would seek to bring charges against Mr Clarke, after prosecutors ruled out doing so.
Lawyers acting for her family had requested that the inquiry be adjourned in order to seek authority to bring a rare private prosecution against the driver.
However, Dorothy Bain QC, representing the family of Ms Morton, told the inquiry, which was in its sixth week, that they had withdrawn the motion to have the inquiry adjourned.
Ms Bain said:“May I say that the family are finding these proceedings stressful and most worrying and, having regard to further discussions and understanding the other families’positions, the Morton family are now not insisting on this motion?
“Mr Clarke was behind the wheel of the council refuse truck that veered out of control on a busy shopping street, killing Ms Morton, from Glasgow, and five others.
“The inquiry has heard evidence that he has a history of dizzy spells and fainting which he failed to disclose to the DVLA and on job application forms.
“They feel it is in the best interests of everyone to conclude this inquiry without delay.The family’s position on a private prosecution has not changed at all and they fully intend to continue with that.”
Last Monday the legal team representing the family of victim Gillian Ewing said they supported the motion for adjournment but relatives of StephenieTait said they would not be involved in any private prosecution.
Alistair Forsyth, advocate for the family of Ms Ewing, told the court that, while he had supported the motion made by Ms Bain, he would “not insist on making my own motion at this stage” and backed its withdrawal. Dorothy Bain QC, representing one of the families bereaved by the bin lorry crash, asked the judge to adjourn the fatal accident inquiry.
She said her clients want to pursue a private prosecution of Harry Clarke.
The idea of a private prosecution has rumbled on in the media since Mr Clarke has been transformed in the public consciousness from a blameless, tragic victim of an unforeseen medical calamity to a serially dishonest fainter, clutching a thick sheaf of sick notes.
The Crown Office has already ruled out any prosecution of Mr Clarke or his employer, Glasgow City Council.
As Professor James Chalmers of Glasgow University has written, the Lord Advocate cannot renounce this statement in the light of the evidence of the inquiry. Clarke seems immune from criminal proceedings from that direction.
It remains unclear, however, whether the FAI has brought forward any evidence not known to the Crown when it decided not to proceed.
The inquiry is not the trial of Harry Clarke. It is an opportunity for Sheriff John Beckett QC to identify what reasonable precautions might have been taken to avoid the deaths and what defects in any system of working contributed to the deaths or accident.
Even a cursory look at the evidence heard suggests a number of weaknesses in how the DVLA licenses HGV drivers and how the council employs and monitors the health of its licensed staff. Mr Clarke’s reputation is unlikely to emerge untarnished.
Nevertheless, the tarring and feathering continues.The hue and cry for a private prosecution of Mr Clarke (I note that nobody seems to be keeping their beady eye on the council’s compliance with health and safety rules) seems the logical conclusion of a media climate of judgment and recrimination.
But how easy is it to secure a private prosecution?What are the rules and tests involved?
It is not easy to bring a private prosecution in Scotland. If the evidence of the past half-century is anything to go by, it is damn near impossible.
A petitioner must apply to the High Court for a bill of criminal letters. If granted, the prosecution may proceed. If refused, that is the end of the matter.
Recent history throws up only a handful of decisions on whether or not to grant criminal letters.
One famous example was the harrowing Carol X rape case of 1982 but the circumstances here seem quite different so there is a series of questions for the family and media to focus on.
Firstly, the commentary has been supremely vague thus far, talking about“bringing a private prosecution”without specifying the offence.
So what crime are the families alleging? Culpable homicide? Culpable and reckless conduct? Something else? Criminal letters can only be sought for indictable offences so that rules out less serious complaints. What is it to be?
Secondly, to be granted criminal letters the families would have to demonstrate“very special circumstances”to justify taking such an “exceptional step”.
Whatever the charge the families might hope to make, how can the circumstances of this case be said to be“very special” or“exceptional”?
The Crown considered the evidence. It decided a prosecution was not in the public interest. Press reports have suggested this was based on all the evidence Sheriff Beckett has heard.
Unless these reports are misleading (and we do not know if they are or not) little in the case of the decision not to prosecute seems“very special”or “exceptional”.We are a world away from Carol X.
Thirdly, it is often suggested that petitioners stand a snowball’s chance in hell unless the Crown supports their case.
This happened with Carol X but a sympathetic Crown does not guarantee success. A 1995 private prosecution for rape foundered, despite the acquiesence of the Lord Advocate, on the grounds that the circumstances were not“very special”or “exceptional”.
Would the Crown support the bereaved families? If not, the smart money says their case is doomed.
You can understand the families’feelings. Hearing of cock-up after cock-up, dissembling on dissembling from an unhealthy man whose actions and inactions killed their loved ones, you can only sympathise.
But will they secure criminal letters?The evidence suggests it is a fool’s hope.
Probing Dorothy Bain