Dani Garavelli: Bin lorry inquiry reveals flawed system

The fatal accident inquiry into the Glasgow bin lorry crash last December has highlighted shortcomings in the inquiry system itself. Picture: PA
The fatal accident inquiry into the Glasgow bin lorry crash last December has highlighted shortcomings in the inquiry system itself. Picture: PA
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WHO could have imagined in those dark December days after the George Square bin lorry tragedy – when Glasgow wrapped its protective arms around both the families of those who died and the man at the wheel – that eight months later the solidarity would have degenerated into bitter finger-pointing and recrimination?

Back then, Harry Clarke was treated as another victim, a blameless council worker whose own life was blighted by the carnage that unfolded when he suddenly lost consciousness. Last week, after it was claimed he had lied to his employers and the DVLA about a history of blackouts, he met with a very different reception.

At the fatal accident inquiry (FAI) into the tragedy, the 48-year-old mutated into a hate figure. Hour after hour, he was subjected to a brutal interrogation, though he was not on trial. When he refused to answer, as was his legal right, he was portrayed as cold and uncaring. In truth, Clarke is neither a hapless victim nor a monster, but something much messier and more human: a flawed man who made bad choices without considering the possible consequences. The backlash against him has less to do with the scale of his wrongdoing than the fact he is the only tangible target for the frustration of the families who seem unlikely to gain anything approaching closure from these proceedings.

That’s what FAIs are supposed to do: bring closure. OK, technically – as lawyer Andrew Tickell has explained – their purpose is to establish the facts and identify systemic problems and institutional failures. But relatives look to them for answers and a sense that they have got as close as possible to understanding how their loved ones died.

Sadly, due to a series of misjudgments, this one is fated to fall short of their expectations, and no amount of hounding Clarke was ever going to change that. The protracted and largely fruitless questioning – and headlines such as “170 insults to the dead” – only served to heighten the hysteria and prolong the families’ ­torment.

A more productive approach for journalists and lawyers alike might be to stop and ask: what has gone wrong here, is there any redress, and what must we do to stop it happening again? We already know the Crown announced its decision not to prosecute Clarke in advance of the FAI to allow him to speak freely (as he was unlikely to do with the threat of a court case hanging over him).

But as details of his “lies” emerged, one of the families announced its intention to launch a private prosecution, and so any chance of his co-operating was scuppered.

The question is how did the Crown come to make a decision just two months after the accident took place? Was it truly in possession of all the relevant facts? And why was Clarke never interviewed by the police? The Crown has been under pressure to speed up the time-frame in which FAIs are held. Did it rush the decision through to avoid the kind of criticism it has faced over previous delays?

We don’t know and – as Glasgow University professor of law James Chalmers has pointed out – there has been no attempt to enlighten us. Unlike in England, where the director of public prosecutions (DPP) has given detailed explanations of controversial decisions such as the one not to prosecute Greville Janner, it issued an opaque one-paragraph statement (which it expanded on slightly during the FAI). This means that, whereas in the Janner case campaigners could counter the DPP’s arguments point by point and successfully push for a reversal, it is much more difficult to challenge the Crown.

Tickell has suggested that if you’re not well-versed in Clarke’s medical condition – vasovagal syncope – you are not qualified to comment on the likelihood of a successful prosecution. But the lack of clarity in the Crown’s statement means we cannot be sure of what experts did or did not tell them. Either way, the FAI has now heard Clarke had a history of fainting and dizzy spells dating back to the 1970s and that he hid this fact from his employers and the DVLA; if this is not enough to form the basis of criminal charges, then it damn well ought to be. The same applies to private prosecutions. Lawyers have been keen to point out how rare these are in Scotland (only two in 100 years). But private prosecutions are more common in England. Perhaps, instead of saying “this will never happen”, we should ask ourselves why here in Scotland we prevent people from bringing alternative proceedings, and explore whether a bit more latitude might be extended.

All of this is important because the George Square bin lorry accident was not a once-in-a-lifetime accident, but – it would appear – part of a trend. In the past five years, there have been three cases involving drivers with a history of blackouts in Scotland alone. In two of them there is a lingering sense of justice not having been served. Evidently such accidents are no longer as “unforeseeable” as once they were. So if it is the case that there is currently no means of holding those who hide their medical histories to account, then perhaps a new offence should be created.

When it comes to Clarke, I don’t want to see him demonised. I believe he ought to be able to exercise his rights and we should keep his wrongdoing in perspective. But whatever sympathy we feel for him, his alleged lies were not trivial; they had terrible, far-reaching consequences and – while it may well be too late for him to face charges – others need to know that if they follow his example, they will not escape scot-free. «