Fam­ily aban­don bid to have the in­quiry ad­journed

Lennox Herald - - NEWS -

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

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