The GULS Law Review

Getting you through the GU law degree!

header photo

The Man, The Monster and The Media: a critical analysis of the Glasgow Bin Lorry Crash

 In this article, Christopher Rae (fourth year LLB student) discusses the legal perspective of the Glasgow Bin Lorry Crash 2015...

The Man, The Monster and The Media: a critical analysis of the Glasgow Bin Lorry Crash

 

It is just over two years to the day that a Glasgow Council bin lorry, driven by Mr Harry Clarke, lost control and took the lives of six people. Throughout the country, dinner tables have been punctuated with the chatter of Harry Clarke, Fatal Accident Inquiries (FAIs) and private prosecutions. The widespread condemnation amongst the media and the wider public of Mr Clarke’s actions was as unsurprising as it was vehement. This article attempts to look past the media misreporting and the moral viewpoints of the public. I shall discuss the processes involved in what was a complicated and controversial case. Perhaps most importantly, I shall discuss what the law says on the issue.

 

The Facts

On the 22nd December 2014, Mr Harry Clarke lost consciousness at the wheel of a refuse lorry in George Square, Glasgow. The out-of-control lorry then mounted the pavement, killing six pedestrians. In the weeks preceding the tragic crash, it emerged that Mr Clarke had not disclosed the full extent of his medical history to his employers, Glasgow City Council, in order to gain employment.

It took until the 25th February 2016 for the Crown Office to publish their decision not to prosecute Mr Clarke on a charge of death by dangerous driving.[1] The Crown determined that there was insufficient evidence to prosecute the driver. Firstly, Mr Clarke had been unconscious at the time of the crash and therefore lacked the relevant mens rea to commit death by dangerous driving. Secondly, and most crucially in this case, the Crown held that it was not foreseeable that Mr Clarke would lose consciousness whilst driving.[2] The Road Traffic Act prescribes that regard should be had to whether he was aware or could be expected to be aware that he had an ongoing condition which rendered it unsafe to drive that day. [3] The Crown took the position that there was insufficient evidence to prove that Mr Clarke was aware of the foreseeability of him losing consciousness at the wheel of the lorry on that day. On that basis, no charges would be pressed.

 

The Crown’s Renunciation of the Right to Prosecute

Scots law prohibits the prosecution of an individual after the Crown has made an unequivocal and unqualified statement that the individual concerned will not be prosecuted.[4] The ‘Thom Rule’, deriving from the leading case in this area of law, prevents the stressful and tiresome process of prosecution from hanging over the individual concerned. However, the Crowns ability to effectively bind itself can be criticised.

Unlike in England, the COPFS has no ability to prosecute a case when the individual has been informed he will not face charges – even when it later transpires that there may be evidence available to secure a conviction.[5] The Scottish courts have been reluctant to interfere with the Crowns discretion.[6]

In this case, it does appear that the Crown’s public statement would amount to a renouncement of the right to prosecute. The language appears sufficiently unequivocal and unqualified, therefore barring a future prosecution. Nevertheless, it would be somewhat naïve to presuppose what the Courts would make of the public statement. If the Court did not believe the public statement to amount to an unequivocal and unqualified statement to renouncing the right to prosecution, then prosecution may still be possible.[7] Moreover, as Professor James Chalmers illustrates, “If the Crown writes to someone indicating (for example) that they do not intend to prosecute, that does not prevent them changing their position. It is only an unequivocal renunciation of the right to prosecute that has that effect.”[8] Naturally, the correspondence between Mr Clarke and the COPFS is confidential and therefore not in the public domain. However, it was still possible (albeit unlikely) for the Crown to prosecute Mr Clarke.

The Crown’s reasoning for not prosecuting consisted of little more than a few paragraphs on their website. Yet, despite being such a short and sparse statement, it generated significant media attention. Perhaps the issue lay in just how short and sparse it was. The lack of firm facts and reasoning gave license to the media to exaggerate and misreport the truth. Had the Crown published a full, detailed account of their decision not to prosecute, both the media and the public would have been better informed of the decision taken and, thus, less likely to criticise.

In the future, it is submitted that the Crown should follow this practice, and should publish full decisions. Families unsatisfied with the reasons provided may review such decisions through the new victims’ rights brought in on 1st April 2016.[9] Of course, it should be noted that this process was not available for the families of the Bin Lorry crash as the Directive was not retrospective in effect.

 

The Fatal Accident Inquiry (FAI)

Unlike in England, it is the prosecution service in Scotland that is responsible for investigating deaths and ordering a post mortem if it is required to determine cause of death. Not all unexplained or suspicious deaths give way for an FAI, however, it is for the Procurator Fiscal to apply for an FAI to take place where, "on the ground that it was sudden, suspicious or unexplained, or has occurred in circumstances such as to give rise to serious public concern." [10]

An FAI is held to determine whether an incident could have been prevented and what could be done to prevent something similar happening again, rather than determining the guilt of an accused person. It is not a trial and therefore the Sheriff cannot impose a sentence on any person; rather they can recommend changes to be made. The use of such inquiry is not aimed at benefiting the victims’ families; its aim is more utilitarian than that – it is focused on making recommendations that will aim to prevent similar deaths from happening again. The legislation makes specific reference to identifying systematic problems and institutional failings. This is what is crucial in an FAI. In the case of Harry Clarke, his medical history and conduct throughout his application for employment were analysed closely.

 

What happened during the FAI?

I don’t wish to answer that question.” A short and undoubtedly tiresome statement that the victims’ families had to hear a total of 107 times during Mr Clarke’s evidence at the FAI. Nevertheless, it was a statement that was as central to Mr Clarke’s right to silence as it was to the way the FAI and private prosecution panned out.  

Ruling out criminal proceedings prior to an FAI are crucial to the success of the investigation. If it became apparent that a private prosecution may take place, then the individual who may face criminal charges would have the same protection of his right to silence during the FAI as he would in a criminal trial.

It was established during the early stages of the Bin Lorry FAI that Harry Clarke misled his employers and the DVLA to preserve his employment as a bin lorry driver. Consequently, counsel for the Sweeney family submitted a motion for an adjournment in order for the family to seek a private prosecution. The motion was later withdrawn but the likelihood of a probable application for a private prosecution hung over the remainder of the FAI. Consequently, (and unsurprisingly) Harry Clarke exercised his right to remain silent and refused to answer questions put to him.

Clarke’s silence was widely condemned by both the print-media and by the public. The refusal to answer questions (dubbed “107 insults to the dead”[11] and “disgusting”[12] by two tabloids) was most likely done on the advice of his legal team. The Sweeney family’s decision to ask for an adjournment of the FAI, in order to launch private prosecution proceedings, gave Mr Clarke’s lawyers a significant heads up that a private prosecution could be a possibility. On that basis, it should have come as no surprise that Mr Clarke would protect himself from self-incrimination.

I would suggest that most would do exactly what Mr Clarke did. Counsel for the Sweeney family, Dorothy Bain QC, suggested that Mr Clarke was putting himself first rather than the families of the deceased. Yet, had Mr Clarke been Ms Bain’s client, there is little doubt she would have advised him to do exactly what he did. Mr Clarke’s silence prevented him from opening himself up to a conviction by private prosecution.

 

What was the outcome of the FAI?

The recommendations and findings of Sheriff (now Lord) Beckett QC were directed at a range of institutions – the DVLA, Glasgow City Council and First Bus were all given recommendations as to how their systematic and institutional failings and weaknesses could be improved. I do not intend to focus on these in great detail; though paragraphs 5.1 - 6.3 in Sheriff Beckett’s determination states each recommendation and matters for consideration in turn.[13]

What I will consider is exactly what the media turned their attention to – what were the conclusions on Mr Clarke’s actions prior to his employment with Glasgow City Council? Sheriff Beckett had to determine two essential questions. Firstly, whether what happened on the 22nd December 2014 was foreseeable to Mr Clarke and secondly, but for Mr Clarke’s non-disclosure of his medical history, would he have been able to drive on the 22nd December 2014?

Although Sheriff Beckett made acknowledgment of the fact that Mr Clarke concealed an earlier blackout in April 2010, it was held that there was no evidence that any doctor prior to 22nd December 2014 told Mr Clarke that he was susceptible to blackouts. Moreover, a succession of doctors (both his GP and his fitness to work doctors) had found that there was no reason to inform Mr Clarke that he should not have been driving Group 2 vehicles such as the bin lorry.[14] On this basis, it was not foreseeable to Mr Clarke that he should not have been driving on that fateful day. Despite a continued dishonest relationship with his GP and fitness to work doctors, the submission that Mr Clarke recklessly or maliciously disregarded medical advice that he was at risk of a further blackout in December 2014 was unsubstantiated. There was no evidence that this was the case.

Secondly, had Mr Clarke been honest about his medical history and his previous blackouts, would his license have been revoked at the time of the crash in December 2014? Sheriff Beckett determined that had Mr Clarke been completely honest and informed his doctors truthfully and properly, then his licence would have been valid by the time the blackout occurred in December 2014.

Clarke had fainted in April 2010, nearly five years before the crash. Sheriff Beckett notes at paragraph 376 that, “The weight of the evidence suggests that had there been a revocation of 3 or 12 months following April 2010, Mr Clarke’s licence would have been returned to him thereafter by DVLA.”[15]

On this determination, but for Mr Clarke’s non-disclosure of his medical history, he would still have been able to legally operate the bin lorry in December 2014.

Despite the significant media coverage reporting otherwise, there is no evidence to suggest that Clarke’s continued lies to his previous and current employers and the DVLA, made any difference to the fact that he would have been in control of the bin lorry on the 22nd December 2014. Any arguments that Clarke would not have been operating that bin lorry on that day are purely speculative and had no basis in evidence.

Sheriff Beckett concluded that there was no criminal liability on the part of Mr Clarke.

 

The Private Prosecution

On the 9th December 2016, two analogous Bill of Criminal Letters were rejected by the High Court Appeal Court. The first was an application by the families of two students who had been killed in similar circumstances to that of the bin lorry crash. On 17th December 2010 in Glasgow, William Payne blacked out at the wheel of his Range Rover, striking and killing the two girls. The second of the applications was from the McQuade and Reilly families - relatives of those who died in the Glasgow bin lorry crash – henceforth the Clarke case.

 

 

Why was the private prosecution rejected?

In short, it is very difficult to satisfy the test to allow a private prosecution in Scotland and the courts have been reluctant to deviate from this position. The High Court has only granted two private prosecutions in over a century, first in the 1909 case of J&P Coats[16] and then the famous X v Sweeney case of 1982.[17]

In order for a private prosecution to be granted, the petitioners must first apply to the Lord Advocate and then the High Court. They must show:

1.  That they have ‘title and interest to prosecute’;

2. That there is evidence in relation to relevant criminal charges;

3. That there are ‘very special and exceptional circumstances’ to prosecute, and;

4. That allowing the prosecution to go ahead would not be oppressive to the accused.

 

  1. Title and interest

Having first drawn up an indictment of what charges the individual should face, counsel for the petitioners have to prove that their clients do indeed have the title and interest to bring a prosecution. Like any other legal action, petitioners must prove that they have the direct relationship to have sufficient legal interest in the matters before the court.

In the Clarke case, the families of the deceased undoubtedly had title and interest in relation to the charges relating to death by dangerous driving, as raised by the petitioners. It is without question that the families were affected by the crash – the loss of their family members was their personal loss. Despite this, it was decided that the families had no title and interest to pursue a private prosecution in respect of the allegations that Clarke had fraudulently deceived the DVLA, First Bus or Glasgow City Council. The alleged fraud had had no direct impact on the families.[18]

 

  1. The evidence to support criminal charges

Petitioners are required to provide evidence that exhibits that there is a prima facie case against the accused. It is for the petitioners and not the Crown to provide the court with such information.

In regards to the Clarke case, we are unaware of the full extent of the evidence that was presented; however, the Court was of the position that the evidence was insufficient to prosecute Mr Clarke of death by dangerous driving. In agreeing with Sheriff Beckett’s finding that the blackout was not foreseeable to Mr Clarke, the Lord Justice Clerk held that the Crown had not erred in its initial determination against prosecution.[19]

 

  1. Very special and exceptional circumstances

If the previous two steps are satisfied, then the petitioners must prove that there are very special circumstances, which would justify in taking the now exceptional step of issuing criminal letters at the request of a private individual[20] and allow a private prosecution to proceed. The rationale behind this is due to the nature of prosecution in Scotland – it is the job of the State to prosecute issues that are in the public interest and expense.[21] The exceptionality of private prosecutions has been expressed in several cases.[22]

For example, the case of X v Sweeney was deemed unique as the Lord Advocate had not declined to prosecute – rather, during the prosecution, the primary witness lost her mental composure and the Crown had allowed the indictment to fall.  The witness regained composure some time after the first prosecution and was thereafter able to give evidence. As the prosecution had been deserted, it could not recommence.  A private prosecution was the only mechanism that allowed the accused to be tried again. The Bill of Criminal Letters was based largely on the evidence which had been advanced by Crown Counsel on the original indictment. These circumstances are significantly different from those present in the case against Clarke.

The Lord Justice Clerk noted that although several of the charges brought by the petitioners failed, as the families had no title or interest; the remaining charges must fall at this hurdle. At paragraph 97, it was found that the Lord Advocate did not err in his determination that there was not sufficient evidence to prosecute. In both the Clarke and Payne cases, there had been no prior diagnosis of an underlying health condition. The petitioners’ case relied on whether there were inferences that were capable of being drawn from each respondent’s medical history. The inferences should have been capable of giving the respondents the relevant knowledge that to drive on the day in question was to do so in the face of obvious and material dangers. 

The Appeal Court found that there was no evidence that either Mr Clarke or Mr Payne had such knowledge.

 

  1. Would the private prosecution be oppressive to the accused?

The Appeal Court did not analyse this part of the test as the cases failed at the previous step. However, had this not been the case, the petitioners would have had to prove that the respondents’ prosecution would have been fair and respected Article 6 of the European Convention on Human Rights. Had the court believed that the intense media scrutiny in this case created an environment that was prejudicial to Mr Clarke’s right to a fair trial, then the private prosecution would also have been denied. The widespread media attention that this case received would have rendered this a distinct possibility.

 

Conclusion

The events of the 22nd December 2014 were a tragic accident that resonated deep within the community and created a media storm, much of which was directed at Harry Clarke. His actions were condemned by the media; he was conveyed as arrogant and ignorant to the devastation that he caused. However, particularly in today’s post-fact society, it is important to look beyond the tabloid headlines and distance ourselves from the emotions of the issues raised in this case – no matter how hard that may be. What we must do is look at the law and evidence in this case, just as the Courts did. There was no evidence to convict Harry Clarke of any crime. The law is clear on the matters at hand – only exceptional circumstances will warrant a private prosecution and there were no exceptional circumstances in this case. Unfortunately, this is not raised at the dinner tables across the land. The dinner tables echo the sentiment of the media – Harry Clarke is to blame.

 

 

 

[1] COPFS website, “Statement from Crown Office on the Glasgow bin lorry incident.”, http://www.copfs.gov.uk/media-site/media-releases/991-statement-from-crown-office-on-the-glasgow-bin-lorry-incident

[2] Ibid.

[3] Road Traffic Act 1988, s.2A.

[4] Thom v HM Advocate (1976) JC 48.

[5] Ibid.

[6] For COPFS to determine evidence.

[7] McGhee v Maguire 1996 SLT 1012; MacDonald v McGowan 2010 SLT 735.

[8] James Chalmers, University of Glasgow, School of Law Blog, “The Glasgow bin lorry crash: renouncing the right to prosecute”, July 31st 2015.

[9] Victims and Witnesses (Scotland) Act 2014, s.6.

[10] Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976, s.1.

[11] Evening Times, 21st August 2015.

[12] The Sun, 21st August 2015.

[13] [2015] FAI 15

[14] Ibid., paragraph 372.

[15] Ibid., paragraph 376.

[16] J&P Coats Ltd. v Brown 1909 JC 29.

[17] 1982 JC 70.

[18] Bill for Criminal Letters [2016] HCJAC 122.

[19] Ibid., paragraph 84.

[20] Ibid., paragraph 58.

[21] McBain v Crichton 1961 JC 25.

[22] Meehan v Inglis 1975 JC 9; C v Forsyth 1995 SLT 905.

 

Go Back

Comment