THE driver of the bin lorry that careered out of control in Glasgow killing six people will almost certainly escape a prison sentence, say law academics, and plans to mount a private prosecution against him are “likely to fail”.
At least two families who lost loved ones in the tragedy intend to pursue a conviction against Harry Clarke, 58, who blacked out at the wheel of a 26-ton refuse truck three days before Christmas. The planned legal action would be the last chance to hold Clarke to account after the Crown Office announced in February that it did not intend to prosecute him.
On Friday, following the conclusion of a fatal accident inquiry into the disaster, Frank Mulholland, the lord advocate, explained for the first time why there were insufficient grounds to prosecute Clarke.
He said the decision not to prosecute Clarke had been based on the “cold, hard facts”. There was no evidence, he said, that Clarke could have known he would faint at the wheel on December 22.
The lord advocate’s stance would appear to all but crush any hopes the families have of prosecuting Clarke; one eminent law professor told this newspaper that without Mulholland’s support, he was “very doubtful” a private prosecution would succeed.
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This weekend, the family of Gillian Ewing, one of those killed in the disaster, said the tragedy could have been avoided if, by law, staff who operate vehicles were obliged to undergo annual fitness-to-drive tests. They expressed disbelief Clarke was driving for a living despite a history of health problems — including sudden blackouts — that saw him visit his GP hundreds of times over three decades.
It emerged during the inquiry that while working for First Bus, Clarke fainted on a stationary bus in 2010 and received a final formal written warning for poor attendance due to health problems. A senior manager at Glasgow city council, which hired him in 2011, said that had he known about the final warning, it would have acted as a “red flag”.
In a thinly veiled criticism of Glasgow city council and First Bus, the Ewing family said employers should accept “overriding responsibility” for the ability of staff to perform their duties safely.
They expressed concern the inquiry was held “far too quickly” and was “undermined” by the revelation that Clarke could face a private prosecution from the victims’ families. Consequently, Clarke was advised by his lawyers not to answer incriminating questions in court which, said the Ewing family, “denied [us] answers and that is very upsetting”.
“We cannot believe someone with his medical history was allowed to drive a 26-ton lorry,” said Lucy Ewing, 21, who was with her mother when she was struck by the bin lorry.
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“There has to be an overriding responsibility on employers to ensure their staff are fit to carry out the duties expected of them. It clearly is not good enough to rely on the Driver and Vehicle Licensing Agency. Had First Bus or Glasgow city council been obliged to ensure rigorous annual fitness-to-drive tests were carried out, this tragedy would have been averted. We also wish to express our disappointment with the fatal accident inquiry in general. It happened far too quickly and seemed undermined at times by distracting legal debates and discussion. We are disappointed the Crown Office announced Mr Clarke would not face prosecution before the inquiry had even started. We expected to hear much more from Mr Clarke but we were denied answers and that is very upsetting.”
James Chalmers, regius professor of law at the University of Glasgow, said: “To get a conviction for causing death by dangerous or careless driving, what the prosecution has to show is the driver was dangerous or careless on that day. He could have been dangerous or careless back in 2010 but you would have difficulty convincing a jury that he was being criminal on that day.” Andrew Tickell, a law lecturer at Oxford university, said: “I think this idea of a private prosecution is unlikely to go very far . . . you have the question: a private prosecution for what exactly? It has been talked about in the vaguest of terms.”