17 August 2015

Harry Clarke and Criminal Letters

In the Sheriff Court this morning, Dorothy Bain QC, representing one of the families bereaved by the Glasgow bin lorry crash, asked the judge to adjourn the fatal accident inquiry. Bain indicated that her clients want to pursue a private prosecution of the driver, Harry Clarke, whose collapse at the wheel of his vehicle resulted in the deaths of six people just before Christmas last year.

The idea of a private prosecution has rumbled on in the media since Mr Clarke has been transformed in the public consciousness from a blameless, tragic victim of an unforeseen medical calamity of his own to a serially dishonest fainter, clutching a thick sheaf of sick notes and doctors' appointments. 

You will remember: the Crown Office have already ruled out any prosecution of Mr Clarke or his employer, Glasgow City Council. As Professor Chalmers has written elsewhere, the Lord Advocate cannot renounce this statement in the light of the evidence of the Inquiry. Clarke seems immune from criminal proceedings from that direction. 

It remains unclear, however, whether the FAI has adduced any evidence which wasn't known to the Crown when they decided not the proceed against Harry Clarke and Glasgow City Council last February. Remember, the fatal accident inquiry isn't the trial of Harry Clarke - but an opportunity for Sheriff Beckett QC to idenfity what "reasonable precautions" might have been taken to avoid the deaths, and what "defects" in "any system of working" contributed to the death or accident. Even a cursory attendance to the evidence which has been adduced at the inquiry suggests a number of weaknesses in how the DVLA licenses heavy goods drivers, and how Glasgow City Council employs and monitors the health of its licensed staff. Mr Clarke's own reputation is unlikely to emerge untarnished. Lessons to be learned.

Nevertheless, the tarring and feathering continues. The hue and cry for a private prosecution of Mr Clarke - I note that nobody seems to be keeping their beady eye on Glasgow City Council's compliance with health and safety rules - seems the logical conclusion of the current media climate of judgement and recrimination. But how easy is it to secure a private prosecution anyway? What the legal rules and tests involved?

You should be relieved to hear that it isn't all that easy to bring a private prosecution in Scotland. Indeed, if the evidence of the last half century is anything to go by, it is damn near impossible. Procedurally, a petitioner must apply to the High Court for a Bill of Criminal Letters. If granted, the private prosecution may proceed. If refused -- that's an end of the matter.

Recent history throws up only a tiny handful of decisions on whether or not to grant criminal letters. As Professor Chalmers tweeted earlier, sanction for a private prosecution has only been granted twice since 1900. One famous example was the gruesome and harrowing Carol X case of 1982. But the circumstances here seem quite different. So a series of questions for you, for the family, and for the media to focus their minds on. 

Firstly, the commentary has been supremely vague thus far, talking about "bringing a private prosecution" without specifying what offence the families wish to see Mr Clarke tried for. So what criminal offence are the families alleging that Mr Clarke has committed? From what I can see, nowhere in the news reports has any actual offence been alleged. Culpable homicide? Culpable and reckless conduct? Something else? Criminal letters can only be sought for indictable offences, so that rules out summary, less serious statutory complaints. What is it to be?

Secondly, in order be granted the criminal letters they crave, the families would have to demonstrate "very special circumstances which would justify" the Court "in taking the now exceptional step of issuing criminal letters at the request of a private individual". Whatever the charge the families might hope to make, how can the circumstances of this case be said to be "very special", or "exceptional"?

The Crown considered the evidence. They decided a prosecution was not in the public interest. They declared so in public. Press reports have suggested this was based on all of the evidence advanced before Sheriff Beckett. Unless these reports are fundamentally misleading - and we don't know if they are or not - little in the case of the decision not to prosecute Mr Clarke seems "very" special" or "exceptional". We're a world away from Carol X. 

Thirdly, it is often suggested that petitioners stand a snowball's chance in hell of securing their criminal letters and winning their right to prosecute privately unless the Crown supports their case. This happened in the gruesome Sweeney case, and criminal letters were granted for a private prosecution. But a sympathetic Crown aren't the last word on the matter. A 1995 private prosecution for rape foundered despite the acquiesence of the Lord Advocate, on the grounds that the circumstances of the case weren't "very special" or "exceptional".

Which raises another important question. Would the Crown support the bereaved families' Bill or not? If not, the smart money says their case is doomed. But even if Frank Mulholland did reverse ferret, and decide to back the private action intimated today, we're still stuck with the high hurdle of "very special" and "exceptional" circumstances. 

You can understand the feeling driving this action by the bereaved families. Hearing of cock-up after cock-up, dissembling on dissembling from an unhealthy man whose actions and inactions killed their loved ones -- you can only sympathise. But will they secure criminal letters? Will they make the appointment with criminal justice for Harry Clarke which the Lord Advocate ruled out earlier this year? The smart evidence suggests its a fool's hope. 


  1. I don't understand all of the legal ins and outs of it but as far as I am concerned the driver must be aware that he shouldn't have been driving the vehicle and he appears, if the facts reported are indeed facts, to have duped his employer into allowing him to work as a lorry driver. The employer, who as I said appears to have been duped, would also appear to have failed to take proper precautions against being duped/hiring an unfit person, again, if the reported facts are indeed facts. So in my opinion, if it's all true, both are liable, to some extent, to share the blame for the needless deaths caused by their actions or inaction as the case may be. I think the families are entitled to seek some form of prosecution. Just my tuppence worth.

    1. There are lots of people in the job market who'll say anything to get a job, any modern HR department is well aware of this and therefore check references and competences of those they are hiring, reviewing personnel competency status periodically. Something the Council may well have failed to do, if i remember the HR evidence at the beginning of the inquiry correctly.

      It wasn't Clarke's bin lorry, it was the Council's. The responsibility for operating it is theirs, and that responsibility is nontransferable in Law.

    2. Yes but when you study how he duped them, is it reasonable to blame the Council for hiring a dishonest employee? Given current privacy and data protection laws? They would have had to demand access to his private medical records to have found out he was prone to fainting. And that would be a breach of civil rights, would it not?

  2. Hmm. Every job application *has* to be treated as fake, just in case.

    An eager band of lawyers will no doubt manage to do that in some future world.

    Whilst checking their parents marriage certificates...

  3. Could the charge be corporate manslaughter against Glasgow CC?

  4. Plenty of chronically ill and disabled people with worse conditions than Mr Clarke have been found fit for work by civil service doctors on Appeals Tribunals and medical professionals on DWP contracts working for Atos and Maximus.

    I know disabled people prone to blackouts who have been declared fit for work by the DWP and Appeals Tribunals and treated shamefully by the doctors involved amounting to fraud in the case of Atos.

    Ask Labour-Tory Fit for Work Czarina, Dame Carol Black, she would swear blind that Mr Clark's work was actually helping his condition because work is good for health according to her and Labour-Tory dogma.

    Good luck trying to find medical professional honest enough to go against DWP ESA regulations and guidelines which prove there is nothing wrong with Mr Clarke except his attitude. In fact current neoliberal dogma praises workers such as Mr Clarke for not giving in to their false illness belief that there's something wrong with them.

  5. Is willfull placing at risk a viable approach for prosecution? Say for example, Mr Clarke had been a ship's captain, aware of his medical condition, but took to sea, blacked out, and rammed another vessel, with resultant deaths. Reference the cruise ship case in Italy.

    Seems to me the Crown, with new evidence arising from the FAI have justification to prosecute Mr Clarke. Glasgow CC have a case to answer too.

    I'm not a lawyer, so feel free to demolish my view!

  6. I noticed with interest that the South African Prosecution Service is going to appeal the conviction of Oscar Pistorius, they want to bring the charge of murder in the case of the death of his girlfriend.
    I was surprised that this gentleman who seems to have had the luck of the devil in not already killing people was not considered to be able to be charged. Surely in not divulging his medical condition he was taking a chance. I know that people with Diabetes now no longer can drive, or at least I know of one workmate way back in the 2000's who was about to lose his driving money because of his condition. Seems Mr Clarke was not unaware but still continued to drive. If there is no way of checking and there doesn't seem to be, the council is not guilty but Mr Clarke is.

    1. There is a way of checking, by asking his previous employer. It seems according to the evidence given by 1st Bus that the Council didn't seek a reference or verification from them, nor did the Council hold on record any reference furnished by Clarke himself.

      It seems very likely that had the Council sought competence verification references from 1st Bus, that his condition would likely have come to light, given that he left them under a cloud having been found at the wheel in an unconscious and unresponsive state.

      The Law requires that employers "as far as is reasonably practicable" ensure the competence of their employees for the job with which they are tasked.

      Seeking assurance of a prospective employee's ability to do a job (proof of experience) and verification of qualifications (proof of training) from previous employers and licensing bodies is the fundamental foundation of insuring competence.

      Having nothing on record is in and of it's self a legal fail for the Council but the failure to ensure Clarke's competence to operate their HGV "as far as is reasonably practicable" is the legal fail that led directly to this accident.

      I'm not absolving Clarke of his part, I'm simply pointing out that unless the Council can demonstrate otherwise it seems it was their systematic negligence, during his recruitment, that put him at the wheel of the bin lorry.

    2. But didn't First Bus screw up as well? The driving manager that was sent out to check on Clarke when he fainted at a bus stop in a bus, called out paramedics but Clarke refused to go to hospital (which would mean it going on his medical record). The manager assumed First Bus would send their doctor to check, and that doctor informed Clarke's GP. But then Clarke's GP went on holiday and a locum saw Clarke and didn't spot the discrepancy in the accounts he gave. GPs aren't policemen in any case. It's not their job to chase up wrong doers who endanger the public.

    3. Aye, 1st Bus did screw up too, but they weren't employing him at the time of the accident.

      I'd think that we'll eventually see a root & branch review of DVLA & GP reporting practices, once the inquiry concludes and delivers the findings.

  7. You're making a technical argument, that technically as the law might stand, it is impossible to prosecute Clark.

    But the moral and ethical argument is clear. Clarke should never have taken up a driving job with his medical history. He was knowingly and recklessly playing with other people's lives. He ought to face the consequences of that.

    Even if the case is doomed to failure it will succeed in forcing Clarke to face some consequences for his actions. Crude, I know, but as you've pointed out, culpable homicide doesn't seem to be a crime in Scotland.

    1. He's a lawyer. What other sort of argument do you expect him to make?

    2. That's not my point. I'm not criticising Andrew I'm criticising the law.

  8. I would have thought that if Mr Clarke would lay himself open to a charge of culpable and reckless behaviour if as is suggested by the article below, he had a history of blackouts while in charge of a vehicle and had repeatedly lied about these incidents.

    The same article claims the Crown Office didn't pursue criminal charges because Mr Clarke wouldn't have been able to predict the blackout he actually had. That assumption is open to challenge in the light of more recent evidence turned up at the FAI.


  9. Harry Clarke faces being a social pariah for the rest of his life. It would go better for him if he were to face justice and take the rap.

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  11. Well, the HSE were apparently happy to treat this as a regular road traffic accident according to the news today, but were happy to level charges for HSAW failings at the Council for their squashing of an OAP with a bin lorry a few years back ,that saw them fined £20k. The plot thickens.

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