SCOTLAND’S top law officer has said he has “no doubt” it was the right decision not to prosecute the driver in the Glasgow bin lorry tragedy.
Lord Advocate Frank Mulholland QC strongly defended the Crown’s position and said he understands the anger and upset of the families who lost loved ones and accepts that the decision not to bring criminal charges against Harry Clarke was “unpopular”.
But Mr Mulholland insists the Crown’s senior lawyers were unanimous in the view that there was insufficient evidence in law to raise criminal proceedings against Mr Clarke on charges including causing death by dangerous driving.
He said the view was reached in full knowledge of all the major facts which emerged during the fatal accident inquiry (FAI) into the crash and rejected suggestions that decision-making in the case was rushed, arguing that past inquiries into high-profile tragedies were raised within a similar timescale.
Setting out the reasons behind the decision in detail, the Lord Advocate said: “I can well understand and appreciate how upset, how angry, families of those who lost their loved ones, those injured, would feel (given that) no-one has been held criminally responsible, and I fully accept that this is an unpopular decision.
“But you can’t take decisions on the basis of whether or not they are popular. They have got to be taken on a hard, cold analysis of the evidence and that’s what happened in this case.”
The Crown has been criticised over its decision not to prosecute Mr Clarke, 58, who was unconscious at the wheel of the lorry when it careered out of control in Glasgow city centre on 22 December, killing six people.
The prospect of a private prosecution against the driver – who had a history of health problems which he failed to disclose and also suffered a blackout at the wheel of a stationary bus in 2010 – has been raised by some of the relatives of those who died. Mr Mulholland said that for a criminal case to be brought by the Crown, it must meet two legal tests, beginning with establishing whether there is sufficient evidence in law. If that test is met, the Crown moves to assess whether it is in the public interest to prosecute.
“If we got to the public interest it would be an easy decision – clearly in the public interest to prosecute – but that’s predicated on there being sufficient evidence in law, which there is not,” said the Lord Advocate.
“If there is insufficient evidence in law and proceedings are taken by the Crown, then that’s an abuse of process, hugely damaging to the Crown. We cannot do that; it’s an affront to the rule of law.”
Mr Mulholland has now set out a number of reasons behind the decision not to charge Mr Clarke with causing death by dangerous driving.
Prosecutors would have to prove he was in control of the vehicle at the time of the incident but, because he was unconscious, he was not in control, so “the necessary criminal intention” was not present.
Furthermore, Mr Mulholland argued, there was insufficient evidence to establish “foreseeability” and prove Mr Clarke knew he was unsafe to drive that day.
Mr Mulholland said: “I have no doubt that you cannot establish, cannot prove, that Mr Clarke knew that he was unfit to drive that day as a result of an ongoing medical condition. If you can’t prove that, you cannot prove criminal intention.”
Similar considerations applied to other allegations, such as obtaining the council job by fraud.
Mr Mulholland said: “The same evidence in general terms applies – namely he’s given a reference by First Bus to Glasgow City Council, he’s not told he’s unfit, he’s not told he needs to notify the DVLA, there’s no evidence that he must have known he was unfit to drive. So, you cannot prove the necessary criminal intention for fraud.”
The Lord Advocate added: “The unanimous view of prosecutors, the Crown Office lawyers and Crown counsel who took the decision was that there was insufficient evidence in law.
“As Lord Advocate, when I became aware of the concern about whether this decision was correct, it would be remiss of me not to check it, so I did check it.
“I checked the papers, any evidence upon which the decision was based, I spoke to people involved in the investigation and inquiry.”
He also rebutted claims the Crown had been hasty in reaching its decision, paving the way for the FAI to take place.
He said an FAI into the Ibrox disaster which claimed 66 lives in 1971 began around six weeks after the tragedy. The inquiry into the 1996 Dunblane massacre commenced around two and a half months after the tragedy.