13 September 2016

A Bill for Criminal Letters

"Criminal Letters" sounds like a pot-boiler crime novel, written by one of Agatha Christie's less talented impersonators.  But in Scots law, this evocative phrase has a more precise meaning. The overwhelming majority of criminal cases in this country are pursued by the Procurator Fiscal, prosecuting individuals in the public interest, under the superintendence of the Lord Advocate.

But if Scotland's principal prosecutor declines to pursue a criminal case against an individual, for whatever reason? Scots law leaves the door - slightly - ajar for ordinary citizens to take the initiative against those they believe have wronged them, and to pursue a private prosecution. 

But in order to do so - to lay the indictment, to summon the accused to the dock, and impanel a jury - first, a Bill for Criminal Letters must be presented to the High Court of Justiciary. If senior judges agree that the private prosecution is warranted, they will pass the Bill and the private prosecution can proceed. But if they refuse to issue criminal letters? That's the end of the matter. Case closed.

As you may have heard on the news this morning, at 10.00am in the High Court of Justiciary in Edinburgh, legal proceedings commenced against Harry Clarke, the Glasgow bin lorry driver who lost consciousness at the wheel on the 22nd of December, 2014, resulting in the deaths of six people. Lawyers for Matthew and Jacqueline McQuade and Yvonne Reilly - who lost relatives in the accident - are trying to persuade the court to give them permission to prosecute Clarke for criminal offences, as yet undisclosed. In parallel, the Stewart and Convy families are pursuing criminal letters against William Payne, who was involved in a separate road traffic incident in 2010 which resulted in the tragic deaths of Mhairi Convy, 18, and Laura Stewart, 20. 

The legal argument is set down for two days, Tuesday and Thursday.  Don't expect to hear any real detail about the arguments deployed by the different parties appearing before the Court. Judges have imposed strict reporting restrictions on the case under the Contempt of Court Act.  Why? Principally, the court is concerned with the  fair administration of justice. If criminal letters are granted to either or both of these families, more court proceedings against will inevitably follow.  Judges are anxious that nothing potentially prejudicial should find its way into the media.  

But we can say a thing or two about the general approach the court is likely to take in deciding whether or not to pass these bills for criminal letters. (I've blogged about this in detail last year, but wanted to give you a quick refresher.) In Scotland, applications for private prosecutions only come around once in a blue moon. But past cases highlight key issues which will preoccupy High Court judges this week. The notorious Carol X case from 1982 gives you, perhaps, the clearest sense of how the court will approach the decision and the legal tests involved. For the sake of clarity, I'll focus on the Clarke case only here. But everything I say applies equally to the Payne application being pursued in tandem. 

To secure the criminal letters they crave, the McQuade family will have to persuade judges of four things.

1.  Do the families have "title and interest" to prosecute?

Having drawn up a specific charge sheet and laid it before the court, what then? Firstly, the private prosecutors have to show that they have "the necessary title, and has qualified the necessary interest, to prosecute privately." What does this mean? Like any other legal action, here the families will have to show that they have sufficient legal interest in the matters before the court. You can't sue a landlord because she is unpleasant to your friend, their tenant. You can't take a man to court for a personal injury he has inflicted on an acquaintance. 

The same goes for a private prosecution. Carol X's title and interest in prosecuting her attackers was beyond dispute. She had been the victim of a horrific and violent sexual assault. But sometimes title and interest may be less clear, depending on what precisely you are seeking to prosecute. The Sweeney and McQuade families have an obvious and overriding interest in the tragic deaths of their relatives. The loss is theirs. But what interest would they have in prosecuting a paper fraud committed against the DVLA, or Glasgow City Council, or First Bus? This seems like a technical point, but it might become an important one.

2.  Is there evidence in support of relevant criminal charges?

Next, the families will have to present the court with sufficient evidence to prove there is a prima facie case, sufficient to justify bringing Harry Clarke to trial for the offences identified in the bill of criminal letters. Again, all this has to be specific. Named offences, chapter and verse. As with much else about this case, this detail on this is not currently in the public domain. 

3. But are there "very special and exceptional circumstances"?

If these two tests are satisfied, the families will still need to persuade the court that there are "very special circumstances which would justify us in taking the now exceptional step of issuing criminal letters at the request of a private individual" and allowing a private prosecution to proceed. That's the test. "Very special and exceptional circumstances." 

In Carol X, there had been a clear and material change in the complainer's well-being and mental health. The crown accepted that there was a sufficiency of evidence and a prosecution would be in the public interest. The underlying crime was appalling, harrowing. The circumstances were complex and unusual. Carol X was, in the words of Lord Justice General Emslie, a "quite exceptional case." Does McQuade and Sweeney v. Clarke, or Stewart and Convy v Payne, pass that high hurdle? What makes these cases "special" and "exceptional"? This is the critical legal test. 

4.  And would allowing a prosecution be "oppressive"?

Lastly, the court will almost certainly be invited to consider whether it would be oppressive to allow Harry Clarke to be tried, in the light of the procedural history of the case, and the background coverage it has already received. In Carol X, the two accused - unsuccessfully - argued that "the widespread publicity about this case" in "the Press, on television, on radio, and in Parliament itself, has made it impossible for the respondents at any time to obtain fair and impartial trial anywhere in Scotland."

Similar considerations might apply here. The accident in George Square, its aftermath, and the FAI hearings and outcome, have been subject to wall-to-wall coverage in the national and local media. Taking that into account, can Mr Clarke, or Mr Payne, receive a fair trial?

These questions are for the judges of the second division to decide. The case continues.


  1. You have not mentioned 'mens rea'. Is that considered at this stage or, should a private prosecution be granted would it be dealt with then?

    1. It would depend on the charge, but the mens rea questions would be included in the second, prima facie stage.

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