Support for Crown:
Lord Advocate says a prosecution could only fail
SCOTLAND’S top prosecutor said he has “no doubt” the Crown’s decision not to bring criminal charges against the Glasgow bin lorry tragedy was correct, as the five-week fatal accident inquiry (FAI) drew to a close.
Lord Advocate Frank Mulholland QC said he understood the anger and upset of the families who lost loved ones and accepts the decision not to prosecute Harry Clarke was “unpopular”.
However, Mr Mulholland insisted the Crown’s senior lawyers agreed unanimously that there was insufficient evidence in law to raise criminal proceedings against the 58-year-old on charges including causing death by dangerous driving.
A number of senior legal professionals have criticised the decision not to prosecute as wrong and misguided.
The FAI heard that Mr Clarke, who passed out at the wheel of the bin lorry on December 22 last year, has a history of fainting, dizziness and blackouts spanning decades which he had allegedly concealed from employers, doctors and the DVLA.
Six people were killed when the refuse vehicle veered out of control in Glasgow city centre at the peak of the Christmas shopping period.
It is the first time the Crown Office has given a detailed explanation for its controversial decision, which cannot now be reversed.
Mr Mulholland stressed that in order to prosecute Mr Clarke with causing death by dangerous driving, prosecutors would have to prove that he was in control of the vehicle at the time of the incident. As Mr Clarke was unconscious, he was not in control and “the necessary criminal intention” was not present, the Lord Advocate said.
Furthermore, he argued that there was insufficient evidence to establish “foreseeability” and prove that Mr Clarke knew he was unsafe to drive that day. The key points, according to Mr Mulholland, were:
There was no evidence from Mr Clarke’s work colleagues that he was unfit on the day of the crash and no indication that he would faint at the wheel.
After the 2010 episode, a doctor for First Bus advised Mr Clarke he was fit to resume his employment as a driver and that he was not required to notify the DVLA of what happened.
Mr Clarke was seen by other doctors, including his GP. “No doctor ever told Mr Clarke he was unfit to drive,” said Mr Mulholland. “No doctor ever told Mr Clarke that he had to notify DVLA of the 2010 episode.”
Even if the DVLA had been notified of the 2010 event, the “worst-case scenario” would have been for Mr Clarke’s licence to be suspended for 12 months. Mr Mulholland said: “If during that period there was no recurrence, no cause for concern, his licence would have been returned to him.”
When Mr Clarke moved from First Bus to Glasgow City Council, there was “no concern” raised in the reference from the bus company surrounding his fitness to drive.
Crucially, between April 2010 and the Glasgow tragedy, Mr Clarke had no further fainting episodes.
Mr Mulholland said: “I fully accept that this is an unpopular decision.
“But you can’t take decisions on the basis of whether or not they are popular. They have got to be taken on a hard, cold analysis of the evidence and that’s what happened in this case.”
Erin McQuade, 18, and her grandparents, Jack and Lorraine Sweeney, from Dumbarton, West Dunbartonshire, were killed in the incident along with Stephenie Tait, 29, Jacqueline Morton, 51, both from Glasgow, and Gillian Ewing, 52, from Edinburgh.
The family of Ms Morton is seeking a private prosecution against Mr Clarke. Senior civil lawyer Cameron Fyffe has urged the families to pursue a judicial review of the Crown’s decision.