20 August 2015

"Answer for your actions, Harry..."

As I type, Harry Clarke is being questioned by the Solicitor-General in Glasgow Sheriff Court. Lesley Thomson is seeking to establish the circumstances leading up to the unconsciousness which gripped him at the wheel of his bin lorry last December, and which killed six people. And Harry Clarke? Harry Clarke is mum. Save for the occasional, slightly more detailed response, each question is being met with the same reply: "I don't wish to answer that question." Yet the examination continues unabated. 

Journalists are sharpening their pens. I expect Mr Clarke will be crucified in the pages of the media tomorrow for his failure to answer. But if you are prepared to think critically about the driver's position, and to be fair to him, his silence may not be admirable, but it is rational. It is self-preservation. And more than that, it is almost certainly on his lawyers' advice. Let's unpack this a little. 

Clarke's omerta has been a powerful source of frustration for those close to the trial. The media have reported that family members of those killed have left the courtroom in disgust. But to be perfectly honest, today's spectacle, today's fruitless inquisition, is the logical consequence of some of the families' decisions to charge ahead with the idea of a private prosecution. It should surprise nobody. I'd bet my bottom dollar that the families were well-advised about the implications of raising, or even threatening to raise, a bill of criminal letters against the bin lorry driver. So long as there was any threat of prosecution hanging over his testimony, Mr Clarke was almost certain to take the judicious course and keep his mouth shut. Why?

In our criminal courts, an accused person has a right to silence. If questioned under suspicion by the police, you are obliged only to give some scant details - your name, date of birth, place of birth, nationality - but you are not obliged to answer any other questions. Police officers aren't entitled to interrogate you till you crack under the pressure. It is for the prosecutor - usually, for the state - to establish their case against you beyond a reasonable doubt. If you appear as a witness in our criminal courts, you must answer legitimate, relevant questions which are put to you. If you prevaricate, or refuse to answer, you commit a contempt of court. 

But if you are in the dock, you cannot be forced into the witness box to give evidence against yourself. You are not obliged to answer questions which might incriminate you. In Scotland, at least, your silence isn't - or shouldn't be - held against you.  Countless accused people every year avail themselves of this right, and let judges and juries test the evidence which the procurator fiscal is able to marshal against them. This privilege against self-incrimination is an essential part of a fair trial. If the Crown Office had decided differently, and Harry Clarke had been indicted for some criminal offence, he would have been entitled not to enter the witness box. He wouldn't have to "answer for his actions" at all.

Some of the families of those tragically slain before Christmas last year have indicated that they want to take private criminal proceedings against the Glasgow City Council employee. Looking at the legal hurdles they will have to overcome, I'm sceptical about the likelihood of them securing the blessing of the High Court and succeeding in this endeavour. At this stage, however, the families' intentions remain entirely opaque. What charges would they hope to pursue against Mr Clarke? Fraud? A driving offence? Culpable homicide? 

Some ideas have been bandied around in the pages of the press, but Mr Clarke stands in the witness box today, with no idea what parts of his testimony may or may not be relevant to the private prosecution which some of the families want to pursue. He cannot judge what parts of his evidence might or might not be used against him. Sheriff Beckett told him at the outset that he need only tell the inquiry his name and address. Anything else - any other query - he is entitled to decline to answer. He is exercising that right. At the current rate, he may be exercising it for some hours and days to come in the Sheriff Court. 

But if you found yourself in his position, would you ignore your lawyer's advice? If so, you may well be a nobler and more self-sacrificing character than this man. Perhaps the right thing to do would be to stand behind your deeds and your mistakes, and to take what comes.  Reading reports from the inquiry over the last few weeks, I'm struck by the all too human qualities of Harry Clarke. An unfit, unhealthy man of a certain age with limited education and limited skills. A man who had his trade - and who desperately wanted to keep it. A man who succumbed to the all too human desire to keep his livelihood, little thinking, little imagining, the gruesome consequences of the white lies he thought he told. I don't know about you, but I can see clearly, all too clearly, how this might happen. 

I expect the full weight of public opinion to come crashing down on him today and tomorrow. The principal purpose of the fatal accident inquiry is becoming ever more obscured by the idea that this is the trial of Harry Clarke. But in our legal system, accused people do not have to "answer for their actions", in the Daily Record's phrase. It was only freedom from the risk of prosecution which might have ennabled the driver to speak freely about his faults and failings.

It was only this that didn't require this terribly ordinary man to show extraordinary courage, and candour, and contrition in telling his story. But it turns out he isn't extraordinary, or brave. Few are. I doubt I would be either, in his circumstances. Whether you think it was rightly or wrongly taken, by trying to circumvent the Crown's decision not to prosecute Mr Clarke, the FAI families will suffer again today for two more all too human frailties - for caution, and for fear. 


  1. Thanks for a very helpful blog Mr T. Maybe you can answer a couple of further questions.
    i) If some of the families had not raised the possibility of a private prosecution against Mr Clarke, would the Sheriff have still instructed him that he would not have to answer anything that could lead to a self-incriminating response? Does that principal still hold?
    ii) If, for some reason, Mr Clarke gives an answer and incriminates himself, is that permissible as evidence in a subsequent court trial or private prosecution?
    iii) With any private prosecution being unlikely to succeed, does the Scottish legal system offer any other way of delivering some kind compensation or justice to the bereaved? Can the Crown change its mind, for example, as we saw recently in the case of Lord Janner in England?

    1. A series of good questions, Sandy. To take them in reverse order:

      Q: Can the Crown change its mind on prosecuting Clarke, in echo of the Janner decision?

      Answer: No. The authority on this is Thom v. HM Advocate (1976) which makes it crystal clear that the court will not permit the Crown to press on with proceedings in the teeth of an earlier unequivocal statement that the prosecution had been dropped.

      Q: Are there other avenues of compensation available?

      Answer: Certainly. The decision-making on whether or not to bring a criminal case against the driver is entirely distinct from the civil remedies which might be pursued -- the obvious "pocket" to hit here is the Council. Actions for negligence might be raised, though they are not guaranteed to succeed. They do, however, seem the kind of cases which the local authority might be inclined to settle if pursued.

    2. Q: Are Clarke's comments in the FAI admissible evidence in any subsequent trial?

      Answer: Broadly -- yes. Otherwise there would be no point in warning him about the risk of self-incrimination and no point in him describing in detail his medical history.

      Q: Even if no prosecution had been in the offing, would the sheriff have warned the witness?

      Answer: Interesting one that. Maybe. Though the reason this issue came to the fore today is that it dominates all of Mr Clarke's evidence before the inquiry.

  2. If the allegations about his health are true then Mr Clarke ought to have been honest, however being honest about his health would almost certainly led to his being unemployed in short order. I ask myself, casting a glance towards Westminster, would I volunteer to put myself at the mercy of baldie down there for a theoretical risk? I think I'd probably have made the same decision Clarke has alleged to have. Who'd risk being unemployed under this regime? There is the real villain of this piece (as he is in so many others), the one who has made it impossible to rely on a social safety net if you can no longer do your job.

  3. It's a sad story. There's actually a sub-text there about helping people change careers and jobs. Obviously driving was what he did, but with his health he shouldn't have been driving. He should have thought of other options, there are other options, but I think it's difficult for men of a certain age and education status to see this plus it's increasingly difficult to actually change. It wasn't helped by the DVLA guidelines being obtuse and some of the medics not doing their job.

    I think I would have answered the questions. I think I would see that my choices were closing down by the minute. In a sense a private prosecution will not make any difference. I'd have known I killed 6 people even not deliberately and I might have been able to prevent it if I had told the truth. For me, nothing could be worse than that. But for Harry Clarke apparently there is something worse - not being able to drive. Otherwise why apply for his licenses again? That's the behaviour I do not understand.

  4. PS I appreciate your blog posts about this, they are very useful and informative.

  5. Thanks again for your helpful comments and answers. I appreciate throwing light on a subject that for us laypeople, often seems less than straightforward. The Camley cartoon in the Herald today is not what we need, hopefully the reporting will be more instructive of what is going on.

  6. Please amend your early comment describing the inquiry as a trial.