A Scottish tragedy ~ Private prosecutions

17th March 2016 - For an update see the Lallands Peatworrier blog 9th March

Glasgow, 22nd December 2014.  A bin lorry driven by Mr Henry Clarke (aged 58) went out of control and killed six people.  A Fatal Accidents Inquiry was held under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976.  (Scotland does not have Coroners).  The Inquiry took place in the Glasgow and Strathkelvin Sheriff Court before Sheriff John Beckett QC and a report was issued in December 2015.  Two of the determinations were:-

"The cause of the accident resulting in the deaths ..... was the loss of control of Glasgow City Council bin lorry ..... by its driver, Henry Campbell Clarke, while he was driving northwards on Queen Street, as a result of which the lorry mounted the pavement on the west side of Queen Street and collided with a number of pedestrians.


Mr Clarke lost control of the lorry when he suffered an episode of neurocardiogenic syncope whereby he temporarily lost consciousness so that he was unable to control the movement and direction of the lorry." 



As to how the accident might have been prevented, the Inquiry report remarked that Mr Clarke could have told the whole truth to doctors about what occurred to him whilst driving a bus in April 2010.  He could also have disclosed his medical history to his latest employer - Glasgow City Council.  A failure to disclose without reasonable excuse certain medical conditions to DVLA is an offence under the Road Traffic Act 1988 s.94 (applicable in Scotland and in England and Wales) and see DVLA Health conditions.  The Inquiry report makes various observations about section 94 and DVLA practice.

A decision was taken by the Crown Office and Procurator Fiscal Service (COPFS) not to prosecute Mr Clarke for any offence related to the deaths.  The decision was taken in accordance with the Scottish Policy Guidance for Prosecutors and reasons (dated 28th August 2015) have been published in support of the decision.  The degree of detail in the published reasons reflects considerable credit on the Crown Office for explaining this difficult decision to the public.   As the reasons note - "Sometimes our decisions are unpopular but it is our duty to apply the law to the evidence and that was the basis of the decision not to prosecute."


With regard to notifying DVLA, the reasons note that:

"Following the incident in 2010, up to and including the day of the tragedy, no doctor advised the driver that he was unfit to drive. On the contrary, after a short time off work, the driver was advised that he was fit to return to work and to drive. At no point was the driver told to notify the DVLA of the incident."

The reasons do not refer to the Fatal Accident Inquiry and the Inquiry determinations were published after the decision not to prosecute was taken. There is concern over the timing of the COPFS decision - see Evening Times 9th August 2015

The Right to Review procedure was not applicable here because it is restricted to prosecutorial decisions made on or after 1st July 2015 - see Victims and Witnesses (Scotland) Act 2014 section 4 and Review Procedure.  It also appears that having informed Mr Clarke that he would not be prosecuted it is then not permissible in Scots Law for the Crown Office to change its mind.  This follows from the case of Thom v HM Advocate (1976 JC 48) and is discussed in an interesting article by James Chalmers of Glasgow University - The Glasgow bin lorry crash: renouncing the right to prosecute.

Disappointment with this decision has led to moves to instigate a Private Prosecution.  However, the Lord Advocate has refused consent to such a prosecution - The Guardian 27th January.   It is a possibility that the High Court of Justiciary might issue criminal letters to permit a private prosecution but they are exceptionally rare in Scotland.  Only two took place in the last century.  One of them was the 1982 Glasgow Rape case - see Sweeney v X 1982.

England and Wales:


Private prosecutions in England and Wales have been much more commonplace.  In Gouriet v Union of Post Office Workers 1978, Lord Wilberforce referred to the right to bring such a prosecution as "a valuable constitutional safeguard against inertia or partiality on the part of authority”
Information about private prosecutions is available via Justice Gap, Law Society Gazette (15th September 2014) and at Crown Prosecution Service.  The Justice Gap and Law Society Gazette articles are particularly interesting since they indicate a recent growth in private prosecutions brought by businesses etc. such as the Virgin Media case.

The right to bring a private prosecution was preserved by the Prosecution of Offences Act 1985 section 6 but the Crown Prosecution Service may take them over and, having done so, may sometimes discontinue them.  The Supreme Court's decision in R (Gujra) v CPS [2012] UKSC 52 should be noted.

Private prosecution is not necessarily a primrose path and should not be undertaken lightly.  This is amply demonstrated by the Stephen Lawrence murder case and the prosecution of two former Police Officers for manslaughter in relation to the Hillsborough tragedy of April 1989.