Long road ahead for bereaved relatives
FAMILIES of the bin lorry tragedy victims seeking to bring a private prosecution face a legally and financially challenging road ahead.
They will also have the weight of history against them. Only one private prosecution has ever been successfully brought in Scotland in the past 100 years.
This was the case of Carol X, who was living on the street and addicted to alcohol in 1980 when she was raped by three thugs in Glasgow’s East End.
The case left Scotland horrified and there was a wealth of evidence against the attackers, led by rapist Joseph Sweeney.
Carol was desperate to see them convicted – she named them all and picked them out at identity parades, and there was a substantial file of overwhelming physical evidence.
But the Crown caused public fury by refus-Office, ing to put the men on trial. Prosecutors made the decision after a psychiatrist claimed a court case could damage Carol.
It took 19 months for her family to have their day in court, when the three men were finally convicted.
The only other successful private criminal prosecution in the 20th century involved a fraud case in 1909.
In order to bring such a prosecution, an individual has to apply to the High Court for a Bill of Criminal Letters.
The Bill acts as an indictment, the document used by the Crown Office to charge people with crimes and brought in the name of the Lord Advocate, Scotland’s most senior prosecutor. Forced to bypass the Crown anyone pursuing a private prosecution must prove ‘very special circumstances’ – a vague term that has not been clearly defined by case law because so few go ahead with it.
Those pursuing private prosecutions usually look for a lawyer who has previously been a Crown prosecutor.
But the Bill can be opposed by the Lord Advocate and the alleged offender, who have 21 days to lodge answers. After this, a hearing is fixed for a later date to decide whether the prosecution can proceed.
Additionally, private prosecutions can be very expensive as unless a lawyer can be secured to work ‘pro bono’ or for free, legal aid is not available.
A Scottish Legal Aid Board spokesman has previously confirmed: ‘The Legal Aid (Scotland) Act 1986 does not make any provision for criminal or other legal aid to be made available to someone wishing to bring a private prosecution.’
Former senior prosecutor Brian McConnachie, QC, who was the principal advocate-depute in the Crown Office between 2006 and 2009, said the Road Traffic Act makes provision for cases to be brought where motorists cause death whilst driving with a known medical condition, thereby making them dangerous to other road users.
He said: ‘My view is that you could construct a case around the fact that Harry Clarke was driving that vehicle in circumstances where a) he knew he was suffering from a medical condition which he had deliberately hidden from the authorities and which b) he knew had he disclosed it to the authorities this would have resulted in the withdrawal of his driving licence.’