"Answer for your actions, Harry..."

As I type, Harry Clarke is being questioned by the Solicitor-General in Glasgow Sheriff Court. Lesley Thomson is seeking to establish the circumstances leading up to the unconsciousness which gripped him at the wheel of his bin lorry last December, and which killed six people. And Harry Clarke? Harry Clarke is mum. Save for the occasional, slightly more detailed response, each question is being met with the same reply: "I don't wish to answer that question." Yet the examination continues unabated. 

Journalists are sharpening their pens. I expect Mr Clarke will be crucified in the pages of the media tomorrow for his failure to answer. But if you are prepared to think critically about the driver's position, and to be fair to him, his silence may not be admirable, but it is rational. It is self-preservation. And more than that, it is almost certainly on his lawyers' advice. Let's unpack this a little. 

Clarke's omerta has been a powerful source of frustration for those close to the trial. The media have reported that family members of those killed have left the courtroom in disgust. But to be perfectly honest, today's spectacle, today's fruitless inquisition, is the logical consequence of some of the families' decisions to charge ahead with the idea of a private prosecution. It should surprise nobody. I'd bet my bottom dollar that the families were well-advised about the implications of raising, or even threatening to raise, a bill of criminal letters against the bin lorry driver. So long as there was any threat of prosecution hanging over his testimony, Mr Clarke was almost certain to take the judicious course and keep his mouth shut. Why?

In our criminal courts, an accused person has a right to silence. If questioned under suspicion by the police, you are obliged only to give some scant details - your name, date of birth, place of birth, nationality - but you are not obliged to answer any other questions. Police officers aren't entitled to interrogate you till you crack under the pressure. It is for the prosecutor - usually, for the state - to establish their case against you beyond a reasonable doubt. If you appear as a witness in our criminal courts, you must answer legitimate, relevant questions which are put to you. If you prevaricate, or refuse to answer, you commit a contempt of court. 

But if you are in the dock, you cannot be forced into the witness box to give evidence against yourself. You are not obliged to answer questions which might incriminate you. In Scotland, at least, your silence isn't - or shouldn't be - held against you.  Countless accused people every year avail themselves of this right, and let judges and juries test the evidence which the procurator fiscal is able to marshal against them. This privilege against self-incrimination is an essential part of a fair trial. If the Crown Office had decided differently, and Harry Clarke had been indicted for some criminal offence, he would have been entitled not to enter the witness box. He wouldn't have to "answer for his actions" at all.

Some of the families of those tragically slain before Christmas last year have indicated that they want to take private criminal proceedings against the Glasgow City Council employee. Looking at the legal hurdles they will have to overcome, I'm sceptical about the likelihood of them securing the blessing of the High Court and succeeding in this endeavour. At this stage, however, the families' intentions remain entirely opaque. What charges would they hope to pursue against Mr Clarke? Fraud? A driving offence? Culpable homicide? 

Some ideas have been bandied around in the pages of the press, but Mr Clarke stands in the witness box today, with no idea what parts of his testimony may or may not be relevant to the private prosecution which some of the families want to pursue. He cannot judge what parts of his evidence might or might not be used against him. Sheriff Beckett told him at the outset that he need only tell the inquiry his name and address. Anything else - any other query - he is entitled to decline to answer. He is exercising that right. At the current rate, he may be exercising it for some hours and days to come in the Sheriff Court. 

But if you found yourself in his position, would you ignore your lawyer's advice? If so, you may well be a nobler and more self-sacrificing character than this man. Perhaps the right thing to do would be to stand behind your deeds and your mistakes, and to take what comes.  Reading reports from the inquiry over the last few weeks, I'm struck by the all too human qualities of Harry Clarke. An unfit, unhealthy man of a certain age with limited education and limited skills. A man who had his trade - and who desperately wanted to keep it. A man who succumbed to the all too human desire to keep his livelihood, little thinking, little imagining, the gruesome consequences of the white lies he thought he told. I don't know about you, but I can see clearly, all too clearly, how this might happen. 

I expect the full weight of public opinion to come crashing down on him today and tomorrow. The principal purpose of the fatal accident inquiry is becoming ever more obscured by the idea that this is the trial of Harry Clarke. But in our legal system, accused people do not have to "answer for their actions", in the Daily Record's phrase. It was only freedom from the risk of prosecution which might have ennabled the driver to speak freely about his faults and failings.

It was only this that didn't require this terribly ordinary man to show extraordinary courage, and candour, and contrition in telling his story. But it turns out he isn't extraordinary, or brave. Few are. I doubt I would be either, in his circumstances. Whether you think it was rightly or wrongly taken, by trying to circumvent the Crown's decision not to prosecute Mr Clarke, the FAI families will suffer again today for two more all too human frailties - for caution, and for fear.