10 August 2015

What are fatal accident inquiries for?

It's a fundamental question -- but listening to tonight's news headlines on BBC Radio Scotland, I found myself wondering if the answer to it is well understood. 

The airwaves have been crackling with stories about the health and lies of Harry Clarke for some weeks now. The Sheriff Court has heard evidence from a score of witnesses, suggesting that the Glasgow bin lorry driver was less than honest about his medical history during his recruitment by the City Council, and in his dealings with his medics and the licensing authorities. 

Striking, accusatory front pages are mounting up against him. Talk has turned to the feasibility of his private prosecution, after the Crown Office ruled out proceeding against Mr Clarke. Others are suggesting the driver ought to be liable to prosecution on a charge of fraud at common law. James Chalmers of the University of Glasgow has covered the issues well here.

These inventions cannot make comfortable reading for Mr Clarke - from whom, as yet, Sheriff John Beckett QC has heard nothing. Kenneth Roy worries that the FAI has been transformed into the trial of Harry Clarke, And listening to and reading the coverage of the proceedings before Sheriff Beckett, I can understand why the casual listener might find it easy to mistake the inquiry for an assize into the the life and lies of the now much-maligned Mr Clarke, whose white lies could be seen to have contributed to an unnecessary tragedy. But it is important for us to bear in mind (a) what fatal accident inquiries are for and (b) what precisely Sheriff Beckett will and will not be called upon to decide when he concludes hearing evidence.

First, the nuts and bolts. As you are probably aware, in Scotland, we have no echo of the English system of coroners' courts and inquests.  The Procurator Fiscal is responsible for investigating deaths and ordering autopsies if these are warranted. In addition, the Lord Advocate can apply to the sheriff to hold a public fatal accident inquiry. These are particularly important where an individual dies while in the custody of state authorities. The chief public prosecutor may also do so where they judge that it is:

"... expedient in the public interest ... on the ground that it was sudden, suspicious or unexplained, or has occurred in circumstances such as to give rise to serious public concern."

So what is it the sheriff's responsibility to decide? First, let's clear away some obvious misconceptions. One: the judge cannot decide on criminal or civil liability. They cannot jail or fine anyone. They cannot award damages or compensation. An FAI is not a criminal accusation or a personal injury claim. These are separate questions, requiring separate legal proceedings. 

Even if the judge reaches searing conclusions about individual or organisational negligence or incompetence - the FAI isn't a criminal case. The procurator fiscal isn't prosecuting - they are trying to assist the sheriff to get to the bottom of the case. So what will the sheriff have to decide? The Act charges him with five key duties. Having heard all the evidence, Sheriff Beckett must set out: 
  1. Where and when the death and any accident resulting in the deaths took place;
  2. Identify "the cause or causes of such death and any accident resulting in the death";
  3. What "reasonable precautions, if any, whereby the death and any accident resulting in the death might have been avoided";
  4. "the defects, if any, in any system of working which contributed to the death or any accident resulting in the death"; 
  5. And finally, "any other facts which are relevant to the circumstances of the death."
The immediate cause of the accident seems tolerably well established. The driver of a collosal vehicle lost consciousness, losing control, tragically slaying six people in the middle of Glasgow on the 22nd of December 2014. But it is the legislation's emphasis on identifying systematic problems and institutional failures which has prompted the forensic analysis of Mr Clarke's medical history, and his failures to disclose these to Council authorities in seeking employment, and to the licensing authorities when in employment. 

Reading between the lines, Lesley Thomson's questions should not be understood trying only to pin the blame on the driver. The Solicitor General is trying to help the court illuminate and identify structural problems, and those opportunities which may have been missed - by the Council, by the DVLA, and indeed, by Mr Clarke himself -  to pre-empt and prevent this tragedy. An FAI isn't just a day in court. 

Its goal isn't - primarily - to give the families of those who have been slain the satisfaction of seeing the circumstances of their kin's deaths publicly explored. In principle, their purpose is more utilitarian - and perhaps more useful. What went wrong? What could we do differently? Let's look at these events critically. What lessons does a careful reading of the evidence suggest to us? WHat weaknesses in our procedures has it identified? These questions are now beginning to crystalise in the court on the south bank of the Clyde. 

Could additional safeguards be built into the system for recruting and monitoring heavy goods drivers? The answers to these questions may be unsatisfactory -- sometimes human systems fail. Sometimes little else could have been done to prevent ghastly things happening. Sometimes a sheriff can spot substantial problems -- and give our public authorities a useful steer in remedying them. But  in the torrent of scorn now engulfing Mr Clarke, and his mistakes, let's not forget that fatal accident inquiries are not criminal courts. Let's not forget what this trial is really all about.


  1. Glasgow City Council is legally represented in the proceedings (Peter Gray QC). I don't know whether Harry Clarke is, but I'd be somewhat surprised if he's not.

    1. Oops. My mistake. Thanks, Robert. Will amend.

    2. (I now see Clarke is represented by my old public law tutor from Edinburgh Law School...)

  2. Am I understanding, you, correctly?
    FAIs are akin to a risk assessment, as used in the building industry, to identity potential problems in systems of work and to rectify or mitigate, said problems, in any future works.

    1. That's certainly a critical part of their purpose, yes.

  3. Whist all the attention is on Clarke for the moment, we've already heard that the Council don't hold references from Clarke's previous employer, the same previous employer who gave evidence of finding Clarke unconscious at the wheel of a stationary bus.

    If it is shown that the employer failed to establish Clarke's competence for the job, so far as is reasonably practicable, as it would seem may well be the case, then a failure to maintain a safe working environment on the part of the employer, a requirement of section 2 HASAW 1974, could well be seen as the root cause of the material failure to protect the public, as required in section 3 of the same act.

    Clarke’s conduct will lead to changes in DVLA and GP reporting practice, no doubt, but IMO it is the Council and their conduct in Clarke's recruitment that deserves more of our attention

  4. Hello, can you point me in the direction of where to find out the courts inquiry into the health and safety procedures of the council and why there was heavy machinery at work in one of the busiest areas on the busiest of days? Also have kill switch safety mechanisms been installed in all machines?.... like every other workplace has to do.