Lord Advocate defends Crown decision in bin lorry case as family looks to privately prosecute driver

The Lord Advocate has once again defended the Crown’s decision not to prosecute Glasgow bin lorry driver Harry Clarke.

Mr Clarke’s bin lorry careered out of control on December 22 last year on Queen Street in Glasgow – resulting in the deaths of six people.

A fatal accident inquiry (FAI) found the incident could have been avoided if he had not lied about his medical history which showed he had blacked out at the wheel before.

The Lord Advocate, Frank Mulholland QC, has now said the FAI did not undermine the Crown’s decision.

Sheriff John Beckett QC found that Mr Clarke, 58, “repeatedly lied in order to gain and retain jobs and licences”, and “deliberately concealed relevant information from the DVLA”.

Mr Mulholland said: “No evidence emerged at the fatal accident inquiry that the Crown was unaware of.

“There was nothing that emerged in the judgement of Sheriff Beckett that the Crown was unaware of and nothing in Sheriff Beckett’s judgement undermines the decision taken not to prosecute the driver of the bin lorry.”

He added: “The Crown well appreciates that this decision was not a popular one but the Crown cannot take decisions on the basis that they are popular but wrong in law.

“That would be unconstitutional, an abuse of process, and would rightly result in severe criticism by the court and a loss of confidence in the Crown.”

He said he could not comment on the private prosecution the relatives of Erin McQuade and Jack and Lorraine Sweeney are pursuing against Mr Clarke but added that when a bill was lodged seeking private prosecution the Crown would “carefully consider that and what its position is and make that clear to the court and the families”.

Legal experts have said that for a private prosecution to be successful a more serious charge such as causing death by dangerous driving would be needed.

James Chalmers, regius professor of law at the University of Glasgow, told The Herald the family will now need to seek a “Bill of Criminal Letters”, analogous to an indictment, at the High Court.

He said: “Private prosecution is very rare.

“There have only been two cases since the start of the 20th century where the court has granted permission.

“In theory the Crown could consent to the private prosecution, but realistically if they believe it’s justified then they would have taken it to court themselves.

“If they do not consent then the family can apply to the court for permission.”

He added that the court must be satisfied the application has an interest in the case and that there are special circumstances justifying it.

Professor Chalmers said, however, that it could be difficult for the family to seek to raise charges including a failure to reveal a latent medical condition or lying to the DVLA because they are time-barred offences which require to be prosecuted within six months.

Nor are they charges which would be heard on their own on indictment at the High Court – which is what is sought by a Bill of Criminal Letters.

Instead, the application would have to be for an offence like causing death by dangerous driving or careless driving.

Professor Chalmers added: “I think if you go back further to the DVLA offences, it’s a non-starter.”

“The family is basically asking the court to say the Crown got this wrong and there’s actually a case to prosecute.

“It would be incredibly embarrassing for the Crown Office if the court rules in their favour.

“The public pressure on the Lord Advocate would be enormous.”

It is also understood that the families of those killed and injured are to launch compensation claims. According to a source close to one of the legal teams involved there is nothing in Sheriff Beckett’s determination that would discourage the lawyers from seeking compensation.