"170 insults to the dead..."

It is over. After a morning's drubbing from counsel for the bereaved families, the Glasgow fatal accident inquiry has heard its last from Harry Clarke. All that remains is for Sheriff Beckett to hear final submissions.

Today's evidence session seems to have proved as unedifying and uninstructive as yesterday's. Mr Clarke continued to invoke his right against self-incrimination. He continued to decline to answer the questions put to him. Practised cross-examiners all, Clarke was gutted by a series of strikingly quoteable barbs from the inquiry's lawyers. 

Significantly, the driver indicated that he would have been willing to answer counsels' questions, if the sword of the private prosecution had not been dangling over him. We don't know if he would have taken the stand and cut a remorseful, more sympathetic figure if Dorothy Bain QC had not introduced the prospect of a private prosecution into proceedings. Perhaps Mr Clarke would, in any case, have behaved as he behaved yesterday. 

But there is a tension between "wanting answers" on one hand, and wanting punishment on the other. Shy away from this conclusion. Sympathise with the fate of those who have been bereaved. Understand their anger with Mr Clarke. Wish he was a bolder man who feared no consequences and wished only to tell his story. All of this I can understand. But the hard truth of it is this: by trying to secure both truth and retribution, the FAI families have made it much more likely that they will secure neither. Understandably, perhaps, none of the coverage in the mainstream media has been prepared to point this out. Harry the doughball, Harry the inexplicable, heartless selfish monster is an easier story to tell. 

This morning's media - unsurprisingly - has put the worst construction possible on Clarke's silence yesterday, suggesting it was motivated by arrogance, inhumanity, or just plain nastiness.  For reasons I set out last night, this image of Mr Clarke leaves out crucial context which puts his behaviour in a more understandable, if not particularly heroic or admirable, light. Questions are now - quite properly - turning to the question of why the Crown Office decided against prosecuting Mr Clarke. Was the decision precipitately taken? The reasons for this decision have been so obscured in the past few weeks that it is worth recalling the explanation prosecutors gave last February. A Crown Office spokesman said:

"It is clear on the evidence at the time that the driver lost control of the bin lorry, resulting in the tragic deaths, he was unconscious and therefore not in control of his actions. 

He did not therefore have the necessary criminal state of mind required for a criminal prosecution. In addition the Crown could not prove that it was foreseeable to the driver that driving on that day would result in loss of consciousness.   

This still remains the case and all the relevant evidence regarding these points was known to Crown Counsel at the time the decision to take no proceedings was made."

The criminal law demands that prosecutors prove not only a guilty act - an actus reus - but also a guilty mind - mens rea. If I intend to harm you, or harm you because of complete disregard for the consequences of my actions, I can be punished. But if my actions were neither of these things, neither intentionally wicked or reckless, the criminal law will not generally hold me responsible for the damage I caused. 

I didn't follow the medical evidence heard by the inquiry closely enough to come to a clear understanding of the expert consensus on whether Clarke's collapse was reasonably foreseeable. I doubt you did either. I don't have the expertise to come to any meaningfully informed view on this question following my own lights. All I have is assumptions -  physiologically ignorant assumptions - which begin with the disaster in George Square last December and work backwards, coloured by the cold and unforgiving light of retrospect. The nation seems to have acquired a suspiciously high number of armchair experts in the diagnosis, treatment and recurrence of vasovagal syncope. I don't know enough - not nearly enough - to exculpate or to condemn.

The Crown have indicated that their decision last Feburary was informed by expert medical material, speaking to these critical issues. It isn't clear whether the inquiry has produced anything new or unexpected which might have rebalanced the assessment towards a prosecution - if only for the minor crimes of dishonesty which Mr Clarke may have committed in his interactions with his employers and the vehicle licensing authorities. Prosecutors seem to be maintaining that nothing which Sheriff Beckett has heard in court number five has surprised the Solicitor-General. 

Nobody in public life should be above reproach. The judgement of no institution should be uncritically trusted. Informed and constructive criticism must always be welcome. To err is, proverbially, human. The existence of fatal accident inquiries attests to this. Sheriff John Beckett QC will shortly retire to consider the lessons which must be learned from this sorry turn of events, to weigh up the medical evidence, to consider whether our safeguards are nearly rigorous enough. On his shoulders falls the heavy duty of piecing together a constructive response to this tragedy. Good luck go with him.