Harry Clarke: in the dock?

News this morning that the families of Erin McQuade, and her grandparents Jack and Lorraine Sweeney, have submitted a bill of criminal letters to the Crown Office. The long-promised private prosecution of Harry Clarke has begun. Various outlets have the story, though the precise charge sheet remains a little hazy. 

The Times "understands that Mr Clarke could be accused of causing death by dangerous driving, culpable and reckless conduct, and fraud" but the full text of the proposed indictment hasn't be published. So how is this all going to work? What next? And who decides?

First, let's rehearse the ritual notices. We aren't quite in unexplored legal territory here, but as every commentator is statutorily obliged to point out, private prosecutions come along once in a blue moon in Scotland. This is an unusual procedure, involving unusual and unclear rules, with which even hardened criminal practitioners are unlikely to be familiar. As a result, making predictions about how the court will handle this application is also difficult. This is a case which will very much turn on its own facts. What we can do, however, is say something intelligible about the principles the courts will take into account in deciding whether or not to give these families permission to put Mr Clarke in the dock. 

So how will it be decided? The Lord Advocate gets a first look at the bill of criminal letters, but he doesn't get the last word. Procedurally, Clarke, the families and the Lord Advocate will now appear before the High Court of Justiciary, probably before three senior judges, if past practice is any guide. The court will hear legal argument and will either pass the bill of criminal letters, or refuse it. If the judges pass it, and the families find a mechanism to fund their case, Clarke will be set down for trial on the indictment they've presented. But if the judges struggle to see this case as "exceptional", and refuse the bill, the matter ends there. The long trial of Harry Clarke will be over.

The notorious Carol X case from the 1980s sets out the groundwork of legal rules judges will apply.  First, a bit of background. In that case, prosecutors dropped a rape prosecution, out of anxiety for the mental wellbeing of the complainer. Without her evidence, there was no case. In echo of Harry Clarke's experience, the Lord Advocate then sent letters to the two men, indicating that they would not now be prosecuted for the offence. The effect of these letters was pretty drastic. They deprived the prosecutor of the right to bring any proceedings against either of these two men in court. The Lord Advocate's undertakings couldn't be recalled; the courts wouldn't allow it.

But then? Then, Carol X's mental health improved. She remained determined to prosecute the men who had attacked her, and a private prosecution was the only way around the Crown Office's letters. In view of his undertakings to the two accused, the Lord Advocate of the day felt he couldn't grant his concurrence to Carol X's Bill, but prosecutors didn't actively oppose her action before the court. Some of you may remember the final chapter of this tale. The story gripped the Daily Record for months. Carol X secured her criminal letters from the court. Her attackers were prosecuted, convicted and jailed.

So what about Harry? First thing's first. Given his trenchant remarks after Sheriff Beckett's fatal accident inquiry, there seems like a snowball's chance in hell the Lord Advocate will concur with the families on any dangerous driving or culpable homicide charge. They gave Mr Clarke an undertaking he wouldn't, couldn't and shouldn't be prosecuted. You wonder if, in view of public feeling, the law officers might be tempted to concur with fraud charges against the bin driver, but for reasons I'll come onto in a moment, it isn't entirely clear that the Sweeney family have an interest in punishing frauds committed against other people. The Lord Advocate's view isn't decisive, but the court will surely take it into account. But beyond that, I think there are arguably four key things to look out for in the Harry Clarke case. 

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 aquaintance. 

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 sexaul assault. But sometimes title and interest may be less clear, depending on what precisely you're prosecuting. The Sweeney and McQuade families have an obvious and overriding interest in a death by dangerous driving charge. The loss is theirs. Reckless endangerment too, probably. But what interest would they have in prosecuting a paper fraud committed against the DVLA, or Glasgow City Council, or First Bus? This seems far shakier. It seems like a technical point, but it might become an important one.

2.  Is there evidence in support of relevant 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. This, I imagine, shouldn't be terribly tricky, depending on the charges laid at Mr Clarke's door.

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

And if these two tests are satisfied? Then the families will have 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" in this case. What are those circumstances? In Carol X, there had been a clear and material change in the complainer's wellbeing. 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.

But here? Here, the crown say nothing which emerged from the FAI surprised them. They knew the extent of Mr Clarke's dishonesty. They understood the evidence about his medical condition. And they concluded that Clarke's actions weren't intentional, and they weren't criminally reckless. Prosecutors maintain that view now. So what's changed? As if to underline the point, today has seen a second bill of criminal letters submitted to Frank Mulholland, involving another motoring catastrophe which claimed the life of two young women in Glasgow in 2010. Sad. Horrific. But "very special and exceptional?"

Carol X was, in the words of Lord Justice General Emslie, a "quite exceptional case." It is far from clear that McQuade and Sweeney v. Harry Clarke meets that high hurdle at all, whatever charges they hope to bring. On the other hand, this is not the 1980s. The deference extended to the crown office decision-making is not, perhaps, what it once was.  

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 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." 

Very similar considerations apply here. The accident, its aftermath, and the FAI, have been subject to wall to wall coverage. Much of it has been shrill, accusing, overtly partisan. Inconvenient facts emerging from the FAI which portrayed Mr Clarke's actions in a more sympathetic light received next to no column inches. How many potential jurors know there was no evidence Harry Clarke "ought to have known he was not fit to drive"? Sod all, I reckon. But who could forget "Harry's 170 insults to the dead"? As I've written, time and again, here and elsewhere, Mr Clarke's actions are not admirable. They have had tragic consequences. But this has been an affair of tar and feather. That may weigh with the court.

So will Harry find himself in the dock? Or will he escape criminal liability? Some movement today, but still far, far too early to say.