Scotland’s chief prosecutor, the Lord Advocate Frank Mulholland, has ruled out pursuing a criminal case after the tragedy which saw six people killed in December 2014 after Mr Clarke blacked out behind the wheel in Glasgow city centre.
But justice secretary Michael Matheson today announced he is to allow public funding for the families’ plans for a private prosecution because of the “unique and special circumstances” of the case.
Mr Clarke will also get legal aid to defend himself in the case.
Relatives of Erin McQuade and Jack and Lorraine Sweeney made the announcement about the private prosecution after a fatal accident inquiry (FAI) into the crash published its findings last year.
Mr Matheson said: “Private prosecutions are, and should remain, exceptionally rare in Scotland.
“However, in light of the unique and special circumstances of this case, which raises fundamental questions that have not previously been tested in case law, Scottish Ministers believe it is in the public interest that all parties are adequately represented.
“As such, Ministers have agreed to make legal aid available for the families of the Bin Lorry tragedy.”
“In line with human rights requirements that anybody facing potential criminal prosecution must be legally represented, legal aid will also be made available to the driver of the bin lorry, Mr Clarke.”
It remains a matter for Scotland’s High Court to decide whether there are “exceptional circumstances” to allow a private prosecution to take place.
Mr Mulholland came under from the bin lorry families over the decision not to prosecute Mr Clarke after it emerged during the inquiry that he had a history of blackouts behind the wheel. Mr Matheson insisted today’s decision was not a snub to the Lord Advocate.
“The determination is not being made on the basis that Ministers agree that there was any error in law in the decision by the Crown,” he added.
“The Lord Advocate has set out publicly the basis for the decision not to progress a prosecution following the Bin Lorry tragedy.”
Another driver in a similar case is to get legal aid to defend a private prosecution, Mr Matheson also said. William Payne passed out behind the wheel of his Range Rover which veered out of control and killed students Mhairi Convy, 18, and Laura Stewart, 20, six years ago in Glasgow. >}