Harry Clarke and Criminal Letters

In the Sheriff Court this morning, Dorothy Bain QC, representing one of the families bereaved by the Glasgow bin lorry crash, asked the judge to adjourn the fatal accident inquiry. Bain indicated that her clients want to pursue a private prosecution of the driver, Harry Clarke, whose collapse at the wheel of his vehicle resulted in the deaths of six people just before Christmas last year.

The idea of a private prosecution has rumbled on in the media since Mr Clarke has been transformed in the public consciousness from a blameless, tragic victim of an unforeseen medical calamity of his own to a serially dishonest fainter, clutching a thick sheaf of sick notes and doctors' appointments. 

You will remember: the Crown Office have already ruled out any prosecution of Mr Clarke or his employer, Glasgow City Council. As Professor Chalmers has written elsewhere, the Lord Advocate cannot renounce this statement in the light of the evidence of the Inquiry. Clarke seems immune from criminal proceedings from that direction. 

It remains unclear, however, whether the FAI has adduced any evidence which wasn't known to the Crown when they decided not the proceed against Harry Clarke and Glasgow City Council last February. Remember, the fatal accident inquiry isn't the trial of Harry Clarke - but an opportunity for Sheriff Beckett QC to idenfity what "reasonable precautions" might have been taken to avoid the deaths, and what "defects" in "any system of working" contributed to the death or accident. Even a cursory attendance to the evidence which has been adduced at the inquiry suggests a number of weaknesses in how the DVLA licenses heavy goods drivers, and how Glasgow City Council employs and monitors the health of its licensed staff. Mr Clarke's own reputation is unlikely to emerge untarnished. Lessons to be learned.

Nevertheless, the tarring and feathering continues. The hue and cry for a private prosecution of Mr Clarke - I note that nobody seems to be keeping their beady eye on Glasgow City Council's compliance with health and safety rules - seems the logical conclusion of the current media climate of judgement and recrimination. But how easy is it to secure a private prosecution anyway? What the legal rules and tests involved?

You should be relieved to hear that it isn't all that easy to bring a private prosecution in Scotland. Indeed, if the evidence of the last half century is anything to go by, it is damn near impossible. Procedurally, a petitioner must apply to the High Court for a Bill of Criminal Letters. If granted, the private prosecution may proceed. If refused -- that's an end of the matter.

Recent history throws up only a tiny handful of decisions on whether or not to grant criminal letters. As Professor Chalmers tweeted earlier, sanction for a private prosecution has only been granted twice since 1900. One famous example was the gruesome and harrowing Carol X case of 1982. But the circumstances here seem quite different. So a series of questions for you, for the family, and for the media to focus their minds on. 

Firstly, the commentary has been supremely vague thus far, talking about "bringing a private prosecution" without specifying what offence the families wish to see Mr Clarke tried for. So what criminal offence are the families alleging that Mr Clarke has committed? From what I can see, nowhere in the news reports has any actual offence been alleged. Culpable homicide? Culpable and reckless conduct? Something else? Criminal letters can only be sought for indictable offences, so that rules out summary, less serious statutory complaints. What is it to be?

Secondly, in order be granted the criminal letters they crave, the families would have to demonstrate "very special circumstances which would justify" the Court "in taking the now exceptional step of issuing criminal letters at the request of a private individual". Whatever the charge the families might hope to make, how can the circumstances of this case be said to be "very special", or "exceptional"?

The Crown considered the evidence. They decided a prosecution was not in the public interest. They declared so in public. Press reports have suggested this was based on all of the evidence advanced before Sheriff Beckett. Unless these reports are fundamentally misleading - and we don't know if they are or not - little in the case of the decision not to prosecute Mr Clarke seems "very" special" or "exceptional". We're a world away from Carol X. 

Thirdly, it is often suggested that petitioners stand a snowball's chance in hell of securing their criminal letters and winning their right to prosecute privately unless the Crown supports their case. This happened in the gruesome Sweeney case, and criminal letters were granted for a private prosecution. But a sympathetic Crown aren't the last word on the matter. A 1995 private prosecution for rape foundered despite the acquiesence of the Lord Advocate, on the grounds that the circumstances of the case weren't "very special" or "exceptional".

Which raises another important question. Would the Crown support the bereaved families' Bill or not? If not, the smart money says their case is doomed. But even if Frank Mulholland did reverse ferret, and decide to back the private action intimated today, we're still stuck with the high hurdle of "very special" and "exceptional" circumstances. 

You can understand the feeling driving this action by the bereaved families. Hearing of cock-up after cock-up, dissembling on dissembling from an unhealthy man whose actions and inactions killed their loved ones -- you can only sympathise. But will they secure criminal letters? Will they make the appointment with criminal justice for Harry Clarke which the Lord Advocate ruled out earlier this year? The smart evidence suggests its a fool's hope.