Crown defends controversial decision not to prosecute bin lorry driver

The Crown has defended its decision not to prosecute the driver of the bin lorry whose vehicle careered out of control in Glasgow city centre last December and killed six people – despite the fact it knew he may have lied to the DVLA about previous blackouts at the wheel – saying he lacked the criminal state of mind needed for a prosecution.

Harry Clarke cannot be prosecuted as the Crown Office and Procurator Fiscal Service (COPFS) has already publicly stated he will not face charges according to lawyers who criticised the decision.

Evidence led in the fatal accident inquiry into the incident has revealed that Mr Clarke may have lied in 2010 to the DVLA about blacking out previously.

The crash on December 22 last year left six people dead as the lorry careered out of control on Queen Street in the city centre.

Documentary evidence revealed he had not mentioned blacking out three times during his time as a bus driver when applying for jobs with Glasgow City Council.

Given the evidence, lawyers have called the Crown’s decision not to prosecute “utterly perplexing”.

Brian McConnachie QC, who was formerly a senior prosecutor, confirmed that the Crown cannot go back on its decision not to prosecute Mr Clarke.

He said the decision was made with “unseemly haste” because it was such a high profile incident.

Mr McConnachie said: “It seems rather odd that if the position is that the driver didn’t tell the truth, there hasn’t been at least some consideration of the fact that if you’re driving in the knowledge that you may have a medical condition that puts people lives at risk, it amounts to dangerous driving.”

“There was nothing to stop the Crown having the FAI before they took a decision on prosecution, even if there was some doubt about the evidence. I don’t understand why they didn’t wait.

“The Crown are usually very reluctant to tell people that they’re not going to be prosecuted. Their decision to do so in this case is now beginning to look rather hasty, if not the wrong decision.”

He noted the decision would have, without doubt, been made by either the Lord Advocate, Frank Mullholland QC, or the Solicitor General Lesley Thomson QC.

They would, he added, find themselves in a “very difficult position” if the sheriff overseeing the FAI found that the driver failed to disclose his previous blackouts to the DVLA.

It is also understood the Crown Office was entirely aware of the evidence that has been led at the FAI.

Advocate Niall McCluskey confirmed the Crown cannot reverse its decision and noted it would have taken various factors into account before coming to its decision, including whether to avoid prosecution on grounds of compassion.

Graham Walker, a road traffic law expert, said the speed with which the decision not to prosecute was made was “remarkable” and added he had experience of “vasovagal” blackout cases.

He said: “A major concern wherever a vasovagal incident is reported is to establish if there has been a history of blackouts or any cardiological illness that has not been reported to DVLA.

“If there has been a history of blackouts then it can be very difficult to successfully defend such a charge as there is an onus on the driver to declare such an illness to DVLA and he or she can then expect to be revoked from driving.

“But more than that there is an onus on such an ill person to refrain from driving as the very act of driving in that condition may endanger others.”

Given the evidence produced so far, he added: “It is utterly perplexing that the driver is not prosecuted for causing death by dangerous driving i.e. driving in the knowledge that he suffered from an illness that should have precluded him from driving and should have been declared to DVLA, who would have been expected to revoke his driving licence”.

Callum Anderson, a partner and solicitor advocate at Levy & McRae, said:”An unequivocal announcement by the Crown of a decision not to prosecute a person in relation to a particular crime or incident is final.

“Once the decision has been made and communicated to the person concerned, their lawyer or the public then the Crown cant at a later date seek to prosecute the person concerned for the offence or incident in question.

“This has been the legal position in Scotland since 1976. There are numerous cases where the High Court has reiterated the position.

“Decisions on whether there are to be criminal proceedings is a matter for the Crown who prosecute in the public interest.

“The factors that the Crown take into account in deciding whether criminal proceedings are in the public interest are set out in the publically available Prosecution Code.

“Normally if there are to be criminal proceedings these take place in advance of any FAI, however, because a witness has given evidence at a FAI is not a bar to criminal proceedings being taken against them at a later date if the Crown haven’t unequivocally announced there is to be no prosecution.”

A spokesperson for COPFS 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 a 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.”