7 December 2015

No evidence Harry Clarke "ought to have known he was not fit to drive"

This afternoon, Sheriff John Beckett published his determination in the Glasgow bin lorry crash fatal accident inquiry. Judges Scotland have made this shorter summary available. Sheriff Beckett's full conclusions and recommendations can be read here.  The determination is a lengthy and careful, and the various parties to the case are already recording their reactions in the media.

There are lessons from a range of institutions here, from the DVLA, to Glasgow City Council, to First Bus, to local authorities more generally. The initial reaction to the determination in the media has, understandably, focused on the Sheriff's eminently justified conclusion that Harry Clarke lied, and lied, and lied, to doctors, to his employers, to the DVLA. This much we knew.

But Sheriff Beckett also has important things to say about the case against Harry Clarke, and the argument that he ought to have been prosecuted for homicide or some other serious offence. I just propose quickly to pick out a couple of details now. This argument has been heard in pubs, around family dinner tables, and in taxi cabs across the country. I've had it myself several times, since the accident took place and the fatal accident inquiry began. Usually, it goes something like this. 

But he knew about it. He knew he was sick. Harry Clarke knew he fainted back in 2010. He knew he might pass out again. And what did he do? He lied. He knew he might pass out at the wheel. He knew he could injure people. But I suppose he didn't give a damn. He drove that tank around anyway, putting people's lives at risk, killing six people because of his selfishness and his negligence. If he hadn't lied, he wouldn't have been driving through George Square on that day. Throw the book at him. It is murder. Give him life.

As Sheriff Beckett's determination today makes crystal clear, several of the assumptions made in the popular indictment against Harry Clarke are simply mistaken. About what he knew. About the nature of his medical condition. About the predictability of the attack. About the impact which disclosing his condition would have had on Clarke's heavy goods licence. First, on foreseeability, these are the critical passages: 

[371] Whilst account has to be taken of Mr Clarke concealing the events of 7 April 2010, there is no evidence that any doctor told him prior to 22 December 2014 that he had a susceptibility to episodes of neurocardiogenic syncope, let alone a vasovagal syndrome. 
[372] Dr Rutherford’s opinion might lend some support to this submission, but I did not find his views persuasive where they were in conflict with the cardiologists. The opinions of Professor Rankin and Dr Boon do not offer much support for any suggestion that Mr Clarke ought to have known by this stage that he was not fit to drive for a living. A succession of doctors, including GPs, had not given him any indication on his D4 examinations that he ought not to drive group 2 vehicles.  

Short version? On the evidence, Sheriff Beckett concluded that it was not foreseeable to Harry Clarke that he was at ongoing risk of another fainting incident behind the wheel. His relationships with his doctors was characterised by dishonesty and partial and non-disclosure of information. But the idea that Clarke malevolently - or recklessly - disregarded clear medical advice that he was a risk to the public in December 2014 has no basis in evidence whatever. 

The second key claim made by those who want the book thrown at Clarke is that "but for his dishonesty, Harry Clarke wouldn't have been driving that day." The assumption here is that the  full and honest disclosure of Clarke's condition would have taken him off the road for good. Today's determination discards this claim too, as fundamentally mistaken. Clarke's last fainting episode took place in 2010, nearly five years before the crash of December 2014. The judge concludes today that:

[376] 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
[377] With hindsight it may be seen as possible that the spells of dizziness which gave rise to the medical note for 20 September 2013 could have signalled to Mr Clarke that he retained a susceptibility to faint, but there is no direct evidence that he did interpret his symptoms in that way at this time. Professor Rankin would not have viewed the matter in that way, but Dr Boon may well have done. Dizziness had featured in the past, significantly so leading up to 1994, but that was 19 years previously. Mr Clarke was told to stop driving for a few days in 2003 but the impression there is that drops being given to reduce wax in his ears reduced the extent to which he was suffering from dizziness. Dizziness was not mentioned following 7 April 2010. 
There is no indication that he was advised in September 2013 that he should not be driving. It is possible that perhaps he would have been given such advice had the full extent of what happened on 7 April 2010 been disclosed by him to his GP, but there is no real foundation for that in the evidence. The significance of 20 September 2013 was not explored in evidence in this way and my findings must be based on the evidence, and reasonable inferences from it, not speculation.

There is blame here, without question. Clarke's dishonesty was disreputable. The turn of events was monstrous. It has caused measureless grief for those involved. More could have been done and should have been done to manage the dreadful might of these heavy vehicles, and the risk to the public that they represent. You can only sympathise with those who have been injured by this case, and empathise with the rage and the grief they feel for the lives that will now go unlived, the laughter unlaughed, for the missing smiles and lost embraces. 

Yet there is nothing in today's judgment which causes me to revise my conclusion on the case. Quite the opposite. As I argued in the Times a month ago, the law must do its duty, without fear or favour. It must proceed on the basis of evidence, not of vengeance. When you set aside the understandable anger at this man, when you set aside the many misconceptions which dominated the debate about his culpability, what are you left with? A fraud, yes. A series of minor frauds. And a ghastly accident with tragic consequences. But nothing more. 

9 comments :

  1. One problem for some people is that when it is manifestly clear that the criminal justice system in Scotland IS being operated by fear and favour in one (or more) cases, it becomes more difficult to believe that true disinterested impartiality is driving the procedure in other controversial cases.

    I'm talking about Lockerbie, and the disgraceful prejudice shown by the Lord Advocate. About the clear agenda throughout the "establishment" legal system to prevent that case coming before a court ever again, by any means necessary. When the legal establishment loses trust in this way, that loss of trust extends throughout the system, whether this is merited or not.

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  2. In all the chat I've heard and participated in about the Clarke "case" no mention has been made of Lockerbie. Nor should there be in my view.
    One wrong thing (if wrong it was) doesn't affect the current issue, unless you have EVIDENCE to the contrary.

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  3. In all the chat I've heard and participated in about the Clarke "case" no mention has been made of Lockerbie. Nor should there be in my view.
    One wrong thing (if wrong it was) doesn't affect the current issue, unless you have EVIDENCE to the contrary.

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  4. I'm talking about the issue of trust in the criminal justice system to operate without fear or favour. When it's manifestly failing to do that in another case, trust is destroyed. Then in cases where the conduct has been entirely impeccable, the consequences my be felt. Nothing operates in a vacuum.

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  5. Andrew: 'And a ghastly accident with tragic consequences.’ . A favourite theme of Evelyn Waugh’s that is - life proceeds as normal and then ‘this happened’. - faith may help, but the universe is just as it is.

    I know nothing of the refuse dept but the past work culture of Glasgow council in general should perhaps be noted. When I came back to Glasgow and worked there in the 70s as a labourer, much of the work force was ordered on sectarian lines. I was practically nodded in without an interview by a school acquaintance and realised later this was of course because I was known not to be Catholic.

    Am sure things improved by the time Mr Clarke worked for the council; but certainly when i was there, the breaking and bending of rules was part of the working life. One manager I know of burned down his depot - he got quietly moved on to anoter part of Glasgow. Another sold all his staff clothing in the pub, I am fairly sure he got promoted. Another made his staff salute a portrait of the Queen.

    A tragic story this. As you say, minor frauds can have terrible and unanticipated outcomes.

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  6. Thank you for this identification of key findings in the report and for your comments on them. They are a welcome dose of common sense following the lynch mob mentality attitude shown by the mainstream media since this morning.
    This is a tragic story, indeed. Harry Clarke, who is as human and flawed as the rest of us will have to live with the consequences for the rest of his life, as will the families of the victims. The demand for vengeance is a natural one, and, I could not say with confidence that I would have been immune to it. However, it is through tragic events such as these and the way in which we as a community have reflected on them that has enabled a more compassionate and merciful law to evolve. Who amongst us has not, at some time, ranted that the law is an ass? But because some people have been thrown about the ramifications of decisions a better law has come about; not a flawless one, but one that is a bit better in some aspects.

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  7. If he believed he was safe to drive why did he lie? He lied because he knew that he wouldn't be allowed to drive. Therefore he is culpable for the deaths he caused. The rest is sophistry.

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  8. Mr. Clarke was arrested for driving a car without a licence this past September. Even if he didn't know his driving could have serious consequences before last Christmas, he certainly knew it by September 2015.

    The fact is he just doesn't seem to understand, or care about, the potential consequences of his actions. Is that a criminal act? Does he have the required mens rea where driving is concerned?

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  9. Glasgow bin lorry crash: Family to prosecute Harry Clarke
    http://www.bbc.co.uk/news/uk-scotland-glasgow-west-35025408

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