This morning, Cabinet Secretary for Justice, Michael Matheson, announced that the Scottish Government has decided to extend legal aid to the families seeking criminal letters to prosecute Harry Clarke privately. The precise charges they want to press against him remain undisclosed, but may include causing death by dangerous driving, and fraud. The Crown Office announced it could not support the case against him in January. The final decision on whether or not to allow the case to proceed will now be taken by the High Court of Justiciary, after hearing legal argument.
What judges will do remains unclear. In law, the families must demonstrate not only that they have a criminal case against Harry Clarke. They must persuade Lord Carloway's court that there were "very special circumstances which would justify taking the now exceptional step of issuing criminal letters at the request of a private individual". I've blogged on these matters extensively before. Here's what Mr Matheson had to say today, in justifying his decision to spend public money on this private action:
“Private prosecutions are, and should remain, exceptionally rare in Scotland. However, in light of the unique and special circumstances of this case, which raises fundamental questions that have not previously been tested in case law, Scottish Ministers believe it is in the public interest that all parties are adequately represented.
“As such, Ministers have agreed to make legal aid available for the families of the Bin Lorry tragedy.
“In line with human rights requirements that anybody facing potential criminal prosecution must be legally represented, legal aid will also be made available to the driver of the bin lorry, Mr Clarke, and to Mr Payne in relation to another potential private prosecution in separate case.
The issue of whether there are exceptional circumstances to justify a private prosecution is a matter for the High Court alone and do not form part of this legal aid decision.
Responsibility for deciding whether or not to prosecute an alleged criminal case in Scotland rests clearly with the Crown Office which has a strong record in prosecuting crime.
The determination is not being made on the basis that Ministers agree that there was any error in law in the decision by the Crown. The Lord Advocate has set out publicly the basis for the decision not to progress a prosecution following the Bin Lorry tragedy.”
A few immediate reactions to the decision and the justification given by Mr Matheson for it. Firstly, this is a decision many folk will welcome. Public understanding of what Harry Clarke did and did not do, and did and did not know about his health when he passed out at the wheel in December 2014, remain lamentably poor. Open a newspaper. Talk to your cab driver. Misconceptions are everywhere. But misconceptions can be powerful social and political forces.
Few people, I think, are liable to be troubled by the idea of bereaved people getting their opportunity to state their legal case in a clear and well-founded way. Even if you think their action is fundamentally misguided -- that the state is putting these families in a position to state it and state it clearly is no bad thing. There is, clearly, a public interest in this case. By giving the McQuaid and Sweeney families the chance to pursue this action without incurring ruinous costs is likely to contribute something to public confidence in the judicial system - win or lose.
But beyond that, I think Mr Matheson's reasoning for granting the money seems pretty shaky. The first limb of his argument is that this case "raises fundamental questions that have not previously been tested in case law", and therefore ought to be supported. What these questions might be are far from clear. Having followed this case closely, and scoured through the jurisprudence of Scottish courts on criminal letters, I've no idea what unlitigated fundamental questions Mr Matheson is alluding to.
He also says the Crown decision not to prosecute Mr Clarke gives rise to a case of "unique and special circumstances". But what precisely are these circumstances? Mr Matheson doesn't elaborate, but he must know there is nothing unique, or special, in the Crown deciding criminal cases will not be taken, that insufficient evidence is available, that the public interest wouldn't be served by a prosecution. Cases of this kind accumulate day after day after day - every day - in the offices of procurators fiscal from east cost to west. Disappointments of this kind for complainers are not the exception: they're routine.
Are all such actions now to be supported from government funds, when complainers disagree with prosecutors? And what about questions of equity? Are all private prosecution bids to secure financial Scottish Government backing? If not, on what criteria? Is it simply decisions which are liable to get Scottish Ministers thwapped on the front pages of the Daily Record which are to attract the support of public money, while would-be private prosecutors in less notorious cases are to be left to fend for themselves?
The Cabinet Secretary says private prosecutions "should remain exceptionally rare." Deciding to fund this action seems likely to generate precisely the opposite outcome. The fact that folk can be privately prosecuted in Scotland will have come as a revelation to much of the public. Public awareness of the criminal letters route is higher than ever. If you feel the Crown hasn't secured justice for you, and you have a good chance of getting ministers to foot your legal bill, why not pull together criminal letters against someone you feel escaped prosecution unfairly? Why wouldn't you do it? Despite his rhetorical wriggling about in his statement, has Michael Matheson precisely established a precedent with this decision?
Beyond the Scottish Government's stated reasons, the cynical among you will inevitably see the political side of today's announcement. With an election approaching, extending legal aid to these families is an easy choice. In terms of the public purse, the cost of the action is small beer. Tomorrow will no doubt bring positive rumblings in the media, about justice being well served by Nicola Sturgeon's government.
If, by contrast, Michael Matheson had vetoed the use of public money to support those who lost loved ones in December 2014, you could expect a counterblast of editorial and comment, depicting ministers as closing ranks behind their handpicked prosecutor, slamming the door shut in the faces of victims, of cover ups, skewed priorities and heartlessness. You don't have to be a canny politician to spot - and take - the path of least resistance. And if, in future, a big pile of applicants stick in funding bids for their criminal letters? You can always quietly reject them down the line. The decisions are very unlikely to be publicly reported.
Although today's statement is at pains not to undermine the Lord Advocate's decision not to prosecute Clarke - you also wonder if ministers are hedging their bets here, squaring the families and the media, and subtly distancing themselves from contamination by unpopular Crown Office decision-making. Logically, I suppose, this is the flip side of prosecutorial independence. It's Frank Mulholland's call. If the families lose? Well, the Scottish Minister did their bid. But if, for some reason, the High Court of Justiciary does grant criminal letters against Harry Clarke - today's decision leaves the finger of blame pointing solely at the Lord Advocate, the animus engulfing prosecutors, and not politicians.
Whether for high minded reasons of access to justice, or the low animal cunning of anticipating public opinion and avoiding the flak -- this is a neat, perhaps cynical, but populist move.