Crown will not change its mind, says judge
PROSECUTORS may regret their hasty decision not to pursue bin lorry driver Harry Clarke on criminal charges amid a public backlash – but they cannot now change their minds, according to one of Scotland’s leading former judges.
Lord McCluskey, a former Solicitor General for Scotland, said such a ruling is irreversible no matter how damning the revelations at the fatal accident inquiry.
He said yesterday: ‘If the Crown takes the decision not to prosecute then that is binding. It is that simple.’
The former judge said the only ‘grey area’ was if the Crown had not been explicit about ruling out all possible areas of wrongdoing.
He said: ‘If it had been made clear that there would be no decision [to prosecute] only in respect of the driving, then that would not necessarily preclude a prosecution in respect of something else.
‘It is arguable that it is an entirely separate thing if you apply for a job and tell a lie, and get the job which you would not have got but for the lie, that – in Scotland – is capable of being described as a fraud. It could be a common law fraud or it could be a statutory fraud.’
He added: ‘I was involved as Solicitor General in a case in the 19 0s in which we argued that some announcement by the Crown of no prosecution was not binding and the court unanimously threw out the argument.
‘There is no doubt about it – if the Crown says we will not prosecute X in respect of the crime of Y then that is the end of the matter.’
Lord McCluskey said he was not surprised that the FAI’s presiding sheriff, John Beckett QC, has requested clarification of the Crown’s position.
He said: ‘If the driver is put into the witness box, the question arises of whether or not he has to be warned that he doesn’t have to answer any questions on the grounds that he may incriminate himself.
‘If he is liable to face a prosecution, he must receive such a warning, so I can understand why the sheriff would say “I need to know if there is any prospect of a prosecution”.’
However, Lord McCluskey said if the Crown insisted it was in possession of all the information about Mr Clarke’s medical history before its decision, it was unlikely to backtrack.
He added: ‘Because the Lord Advocate is not bound to disclose all the reasons why he takes his decision, the Crown will not scrutinise that.’