After a week of shocking evidence from the inquiry into the Glasgow bin lorry tragedy which killed six people, Euan McColm asks what led to the decision that no crime had been committed
The streets were busy with Christmas shoppers that afternoon and those who found themselves in the path of the runaway bin lorry had little chance to escape.
Driver Harry Clarke was slumped, unconscious, behind the wheel as the truck ploughed into pedestrians before coming to a stop at the entrance to Queen Street Station in the centre of Glasgow.
Erin McQuade, 18, and her grandparents, Jack Sweeney, 68, and Lorraine Sweeney, 69, from Dumbarton, Stephenie Tait, 29, and Jacqueline Morton, 51, both from Glasgow, and Gillian Ewing, 52, from Edinburgh, died from multiple injuries after being hit by the truck on 22 December. A further 10 people were injured.
It was, by any measure, a devastating accident, and one that threw up many important questions.
Yet the public response to the tragedy was curious. Rather than demanding answers, Scotland’s social media community rallied around the driver. Questions from journalists about his fitness to drive or his employment history were deemed prurient and intrusive.
The driver’s employers, Glasgow City Council, said that it would never release the names of the driver or the two colleagues who were with him in the cabin when the lorry crashed.
A version of events soon became gospel: the driver had had no history of health problems; he had, in-all-likelihood, had a heart attack; and he deserved nothing but our sympathy.
When, around a month after the crash, two newspapers identified the driver as 58-year-old Harry Clarke, there was a backlash, with accusations that his privacy had been unfairly invaded.
With details of his identification came quite detailed reporting about the checks and tests that HGV drivers must submit to in order to keep their licences.
In February, the Crown Office announced that no criminal charges were to be brought, either against the driver or Glasgow City Council. The story that this was nothing more than a terrible, unavoidable accident was all but set in stone.
It’s now almost three weeks since a Fatal Accident Inquiry into the tragedy opened at Glasgow Sheriff Court.
The evidence heard there has been, at times, shocking.
We now have heard that, far from having had a perfectly clean health record before the crash, Harry Clarke had a history of blacking out, once fainting while behind the wheel of a bus. We have heard that he failed to disclose the details of his medical problems on application forms. And we have heard that Glasgow City Council, so nobly concerned with keeping Clarke’s identity a secret, cannot even lay its fingers on the references it claims to have received when it employed him.
As evidence emerged about Clarke’s past, the council confirmed that it had suspended him, pending an investigation.
But though Clarke faces a difficult time at work, he can’t expect to be troubled by the law. Having declared that there would be no prosecution, the Crown Office cannot now change its mind. And, anyway, the Crown would have known the information that has emerged during the FAI while making its decision about prosecuting. If it wasn’t considered significant enough in February, then why should it be considered more so now?
According to one senior lawyer, the haste with which the Crown announced there would be no prosecution came as a surprise. Could it have been influenced by a public response to the tragedy that immediately cast the driver as a victim?
On Friday a doctor who assessed Clarke for the renewal of his HGV licence in 2011 told the FAI she would have deemed him temporarily unfit to drive had she known that he had fainted the year before.
Dr Joanne Willox told the fatal accident inquiry at Glasgow Sheriff Court that she saw Clarke in December 2011 at the request of his employer to complete an HGV renewal application form which was to be submitted to the DVLA. On the form, the question “is there a history of blackouts or impaired consciousness in the last five years?” was ticked No.
The question of whether there is a history of “sudden and disabling dizziness or vertigo” in the last year is also ticked No.
The inquiry has already been told that Clarke’s health issues, including fainting and dizziness, date back as far as the 1970s. Solicitor General Lesley Thomson QC, who is leading the inquiry, asked Dr Willox: “If you had been told by Mr Clarke at that stage ‘I fainted in April 2010’, what would you have done?”
The doctor replied: “I would have made him temporarily unfit for work as a driver, flagged it up to the DVLA, asked for his consent to write to his GP about what investigation had been done and to provide records of that.
“I would have told the city council he was not fit to drive and it would depend on the DVLA to decide about his licence.”
In the face of this sort of evidence, lawyers have described the Crown’s decision not to prosecute as “utterly perplexing”.
Brian McConnachie, QC, who was formerly a senior prosecutor, said the decision not to bring charges was made with “unseemly haste” because it was such a high profile incident.
“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’s lives at risk, it amounts to dangerous driving,” he said.
There was nothing, he added, to have stopped the Crown from having the FAI before it made a decision on a prosecution.
McConnachie said: “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.”
But the Crown Office remained resolutely behind its decision.
A spokesman 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.”
The Crown Office is likely to find itself under mounting pressure to do something. There is, said one legal source, the possibility that the City Council could yet be prosecuted under health and safety legislation.
Glasgow City Council is not coming out of proceedings well as the FAI progresses.
We now know that Clarke had been suspended by his previous employers, First Bus, on 28 December, 2010, before starting work with the council on 5 January, 2011.
Douglas Gellan, an area manager with Glasgow City Council’s land and environmental services department was asked by lawyer Ronald Conway, acting for the bereaved Tait family, whether he had asked himself: “How on earth did we hire this man?”
Gellan replied, yes, he had thought about it.
Conway said: “Someone has blundered, either at First Bus, or at Glasgow City Council carrying out a grossly incompetent employment process.”
Geraldine Ham, a human resources manager at the council, told the FAI that some paperwork on Clarke had not been found, though she was able to show the court a copy of his application form, dated July 2010, which led to him being taken on as an “assisted support for learning driver”, initially to drive children to and from school during term time.
Clarke stated on his application that he “would be as comfortable as the passengers on this bus” in the position. He described himself as “fit, good at working with members of the public, and very reliable”.
The council was quick to try to shut down questions in the aftermath of the tragedy, refusing to discuss the driver, and promising never to name him.
At a distance, that action looks cynical. There will be questions – not least from lawyers representing the families of victims – long after the FAI concludes about whether the council could have done more to prevent this tragedy from happening.
Right now, it appears that the answer to that may well be yes. Certainly, there is no evidence that normal procedures were followed and, although Clarke omitted to give details about his health problems, the council should have been able to discover details of his suspension by First Bus, a fact which may well have influenced the decision to hire him.
James Chalmers, Regius Professor of Law at the University of Glasgow, is in no doubt that the Crown’s decision was unexpected.
“It was,” he said, “definitely surprisingly quick and definitive. A combination of sympathy for the driver and pressure to make a decision quickly might have had an effect here.”
The substance of the facts being presented during the FAI is also of note to Chalmers.
“The oddity is still that the Crown seems to have known all the stuff that’s coming out now, rather than being blindsided by new info.”