Rough Justice

Erin McQuade, an 18-year-old student, and her grandparents Jack, 68, and Lorraine Sweeney, 69, died, along with Stephenie Tait, 29, a teacher at St Philomena’s Primary School, Glasgow; Jacqueline Morton, 51, who worked for HM Revenue and Customs; and Gillian Ewing, 52, a mother of two from Edinburgh. A further 15 were injured, many seriously.

With witnesses reporting that the driver of the lorry slumped unconscious over the steering wheel, the assumption was that the tragedy had been a terrible but unavoidable accident. Clarke, overweight and pasty, looked like a heart attack waiting to happen. In the immediate aftermath of the crash, relatives of the dead wanted him to know he was not to blame.

When a fatal accident inquiry before Sheriff John Beckett began on July 22, seven months after the crash, the victims and their families had steeled themselves to relive the grimmest of days. When the inquiry closed last Friday, the anguish of those closest to the dead has turned to anger as the full extent of Clarke’s history of fainting fits and dizziness was exposed, along with him apparently keeping his medical history hidden from his employers.

The victims’ families have been left shocked and upset by the lack of rigorous checks from his employers Glasgow city council and First Bus; the suggestions that Clarke’s doctors failed to pick up on inconsistencies in his story; and the Crown’s decision to grant Clarke immunity from prosecution.

In a statement to The Sunday Times, Lucy Ewing, Gillian Ewing’s 21-year-old daughter who was with her mother in Glasgow when the tragedy happened, summed up the feelings of many.

“We cannot believe someone with his medical history was allowed to drive a 26- ton lorry,” she said. “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 DVLA. Had First Bus or Glasgow city council been obliged to ensure that 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 that 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.”

Why has a process that was supposed to shed light on the disaster and give some answers produced only questions and heartache? How could the Crown Office have misjudged the public mood so badly and allowed the inquiry to turn into a publicity disaster for the Scottish justice system?

Is there any way now for the victims and their families to gain a degree of satisfaction rather than suffer rough justice?

JAMES CHALMERS, regius professor of law at Glasgow University, says there are good reasons to either conclude or rule out criminal proceedings prior to a fatal accident inquiry. In cases where this has not happened, key witnesses have refused to answer questions on the grounds that they may incriminate themselves if any future prosecution is taken. The Crown’s initial decision to grant Clarke blanket immunity from prosecution in February appeared to ensure that the inquiry had the best chance of establishing the facts.

It quickly became apparent that the crash was more than simply an accident. The hearing learnt that Clarke had a history of dizziness and fainting stretching back 40 years. In 2010, while working for First Bus, he had blacked out at the wheel of a stationary bus. When a First Bus doctor wrote to Clarke’s GP seeking information about his fitness to drive, Clarke told a locum doctor that the episode had taken place in the canteen on a hot day. The discrepancy in the stories was not picked up and Clarke was cleared to resume driving. He failed to mention his medical history when he started working for Glasgow city council.

As the hearing proceeded and the decision of the Crown Office was questioned, lawyers for the families of some of the victims raised the possibility of a private prosecution of Clarke. Although a formal motion was withdrawn, Clarke invoked his right not to answer most of the questions put to him. The families of some of the victims walked out in tears.

“It’s fair to say the Crown has made a very bad job of explaining why they have done what they have done,” said Chalmers. It was not until the very last day of the inquiry that the Crown Office published a detailed statement of its decision, citing insufficient evidence to show that he had committed a criminal offence. It said that it had taken into account the fact that Clarke’s last blackout was in 2010, that he had driven extensively since then without incident, that there was no indication he was unwell on the day of the crash and that no doctor had told him he was unfit to drive or to notify the DVLA. It pointed out that even if the DVLA had been informed of the episode in 2010 and had stopped Clarke from driving, the longest it would have withheld his licence would have been one year.

The statement said: “Sometimes our decisions are unpopular but it is our duty to apply the law to the evidence and that was the basis of the decision not to prosecute.”

The decision to issue the statement after the inquiry without first meeting with the families was condemned by the victims’ relatives, who said they felt “wholly let down by the Crown” and criticised the lack of thought, compassion and understanding shown.

“To get a conviction for causing death by dangerous of careless driving, the prosecution has to show that the driver was dangerous or careless on that day,” said Chalmers. “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, particularly because in a criminal trial the evidence would be more focused and we wouldn’t necessarily get all this history of what was claimed to be a pattern of dishonesty and not being a terribly good employee.

“If this had come out early on and the Crown had explained its thinking then, the families may still have been understandably upset and disappointed but we wouldn’t have this situation where this information came out in the [inquiry] itself and derailed the whole exercise.”

Victims now have a legal right to a review over a decision not to prosecute. But that came into force in Scotland on July 1 for decisions made after that date, so this option is not available to the victims and their families. Matthew McQuade, father of Erin and son-in-law of Jack and Lorraine Sweeney, has lodged a formal complaint over the handling of the case by the Crown Office. He has also asked the Scottish government for “exceptional funding” for legal representation in the event of a private prosecution.

Legal experts believe he has a slim chance of success. Legal aid is not available for a private prosecution that requires the Crown to grant consent for something it has already refused. A second requirement for such a prosecution, a bill of letters from the High Court, is granted only in the most exceptional of circumstances.

“I think this idea of a private prosecution is unlikely to go very far,” said Andrew Tickell, a law lecturer at Oxford University. “Simply paying for the thing is likely to be beyond their collective means. And then you have the question, a private prosecution for what exactly? It has been talked about in the vaguest of terms.

“Assuming that they do go ahead and take these criminal letters out, one question is, what will the Crown do? Will they support them? Do they simply not oppose them or do they stand up and say we think the court shouldn’t grant these criminal letters? That is an important legal question but it is also an important political question for the Crown, which is looking quite exposed at the moment. They are in an unenviable position.”

Lawyer Cameron Fyfe believes the families may get more satisfaction by pursuing a judicial review of the Crown’s decision. They may instead decide to pursue First Bus and Glasgow city council for employing Clark as a driver.

Sheriff Beckett has indicated that he will deliver his written determination on the hearing by January.

There has been consternation over the DVLA’s decision to return Clarke’s licence to him in April, despite being notified of the details of the crash by police and informed about the 2010 incident.

The DVLA refuses to comment on the specifics of the case, but a spokesman said: “All drivers must ensure that they are medically fit to drive and notify DVLA of the onset or worsening of a medical condition affecting this. Doctors, the police or any other concerned party can notify us quickly about diagnosed or suspected health problems which we investigate urgently. If we find evidence a driver does not meet the appropriate medical standard we immediately remove their entitlement to drive.

“Large vehicle drivers are subject to higher medical standards than car drivers, and must also have a full medical examination carried out by a doctor when they first apply for their licence and confirm their fitness to drive every five years until the age of 45. After the age of 45 they must go through a medical examination every five years to renew their licence until the age of 65, when they have to pass an annual medical. The DVLA will carefully consider any recommendations made by the sheriff following the outcome of the inquiry.”

It is cold comfort for the families who have neither justice nor answers.