Bid to bring private prosecutions against Glasgow fatal accident drivers refused

Judges in the High Court of Justiciary Appeal Court refused to pass the Bills of Criminal Letters brought by the relatives of Erin McQuade, John Sweeney and Lorraine Sweeney and the parents of Mhairi Convey and Laura Stewart, who argued that the Crown was wrong not to prosecute bin lorry driver Harry Clarke and motorist William Payne for causing death by dangerous driving after they had suffered blackouts behind the wheel.

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Menzies and Lord Drummond Young, heard that on 17 December 2010 in North Hanover Street, Glasgow, William Payne (the respondent) was driving a Range Rover vehicle when he suffered a vasovagal episode causing him temporarily to lose consciousness and rendering him unable to control the movement or direction of the vehicle.

The vehicle mounted the pavement and struck Mhairi Convey and Laura Stewart, causing them injuries from which they died. A further pedestrian, Mark Hopwood, was injured.

In March 2012 the Crown intimated to the parents of the deceased its decision to take no criminal proceedings against Mr Payne in respect of section 1 of the Road Traffic Act 1988 on the grounds that was that there was “insufficient evidence” in law to justify proceedings.

The judges also heard that on 22 December 2014, John Sweeney, Lorraine Sweeney, Erin McQuade, Stephanie Tait, Gillian Ewing and Jacqueline Morton were all pedestrians on Queen Street, Glasgow, when they were struck and killed by a Glasgow City Council bin lorry driven in the course of his employment by Harry Clarke (the respondent).

Mr Clarke had lost consciousness, as a result of which the lorry mounted the pavement and hit the pedestrians. A further 15 pedestrians were injured as well as two members of the lorry crew.

In February 2015 the Crown Office issued a public statement renouncing the right to prosecute Mr Clarke, as counsel considered that there was “insufficient evidence” that it was “foreseeable” that he would lose consciousness while driving that day.

In January 2016 a Bill for Criminal Letters was presented on behalf of the parents of Ms Convey and Ms Stewart seeking authority to prosecute Mr Payne in terms of sections 1, 1A and 2 of the Road Traffic Act 1988, or alternatively at common law for culpably and recklessly driving the vehicle, causing the deaths and injuring Mark Hopwood.

They relied on evidence as to Mr Payne’s medical history involving prior instances of loss of consciousness, his failure to seek advice about driving or to disclose his history to DVLA, the contents of a police interview and the inferences which, according to the complainers, may be drawn from this evidence as to the state of his knowledge about his condition.

A Bill for Criminal Letters was also raised in January 2016 in the name of the relatives of Erin McQuade, John Sweeney and Lorraine Sweeney, seeking authority to prosecute Mr Clarke on a charge under sections 1, 1A and 2 of the Road Traffic Act 1988, or alternatively for the common law offence of culpably and recklessly driving the vehicle on the date in question and causing the deaths of the pedestrians.

They also made averments as to Mr Clarke’s medical history, his failure to disclose that history in job applications and to DVLA, his alleged misrepresentations as to that history, his post-collision actings and what, according to the complainers, may be inferred from this evidence as to the state of his knowledge about his condition.

The complainers in both cases averred that there was a “sufficiency of evidence” which would entitle a conviction to be returned on the charges set out, that the evidence was of “apparently sufficient strength to demonstrate reasonable prospects of conviction”, and that there were “special circumstances” existing such as to warrant the granting of the bill. They further averred that the Crown had erred in its analysis of the evidential requirements for the statutory offence of causing death by dangerous driving.

The Lord Advocate refused his concurrence to the bills, arguing that there was “insufficient evidence to establish beyond reasonable doubt any of the charges” set out, but that if such a sufficiency did exist there were “no special circumstances” justifying passing of the applications.

The respondents in each case adopted the Lord Advocate’s submissions, but argued furthermore that it would be oppressive and a breach of their ECHR article 6 right to a fair to pass the bills having regard to (a) excessive delay in proceeding; (b) prejudicial publicity and (c) oppressive actings by the complainers.

However, having considered the submissions the judges refused to pass the bills.

On the legal requirements of a charge of dangerous driving, the court held that the Crown had applied the correct test.

Delivering the opinion of the court, the Lord Justice Clerk, Lady Dorrian said: “The critical question in any case such as this is the quality of the driving at the time of the collision. The Crown was thus correct to focus on the day in question in each case.

“It is clear that the Crown correctly considered that the state of knowledge of each respondent on the day in question had to be assessed in the context of all the information known to each of them, including their medical history and any inferences which might reasonably be drawn therefrom. Accordingly we do not consider that the Crown made an error of law.”

As to whether there existed special circumstances to justify passing the bills, the court observed that an error of judgement by the Crown would not be sufficient to meet the test of exceptionality, and that in any event the Crown had not erred in its assessment of either case.

Lady Dorrian said: “In our view the test of exceptionality would require to show that the Lord Advocate’s decision not to prosecute had to be viewed in the circumstances as an egregious or outrageous failure in the exercise of his public duty in the circumstances.

“It is quite difficult to conceive of circumstances in which the court would pass a bill where the Lord Advocate had examined and investigated the circumstances of the case and concluded as a matter of informed judgment that the whole tenor and weight of the evidence did not justify prosecution.”

The court also stated that there were “strong public policy reasons” for the requirement of exceptionality before the court would be entitled to pass a bill of criminal letters on such grounds.

The Lord Justice Clerk said: “The court must be very conscious of the constitutional arrangements under which the role of prosecutor is given to the Lord Advocate, and take care not to confuse the functions of the court with those of the Lord Advocate.

“As the Lord Advocate submitted, it is important in the public interest that prosecutors exercise their judgement independently, robustly, forensically and objectively on the whole evidence available.

“On an assessment of the whole evidence the Crown concluded that the evidence in each case, taken as a whole, was not sufficient to support the central propositions which required to be proved. In seeking to argue the contrary, the complainers advance a circumstantial argument dependent on inferences from other evidence which, in each case, is far from unequivocal.

“In neither case do we consider that the acts or omissions of the respondent, in the changed circumstances after the accident, allow inferences to be drawn as to the state of their knowledge at the time of the accident. We do not consider that the state of knowledge of either respondent can reasonably be elevated to the degree necessary to be capable of establishing beyond reasonable doubt that on the day in question they drove in the face of an obvious and material danger.”

She added: “The assessment of sufficiency in a circumstantial case is one which is highly fact-sensitive, and dependent on the drawing of inferences: it is one in respect of which there may be room for differing views within the scope of a reasonable exercise of professional judgement.

“As we have already indicated, it is quite difficult to conceive of circumstances in which the court would pass a bill where the Lord Advocate had examined and investigated the circumstances of the case and concluded as a matter of informed professional judgement that the whole tenor and weight of the evidence did not justify prosecution, unless in making that decision the Lord Advocate had acted oppressively, capriciously, or wantonly.

“Accordingly, even if we had disagreed with the Crown’s assessment, or the weight attributed to individual pieces of evidence, we would be unable to conclude that the decision of the Lord Advocate not to prosecute was so extravagantly wrong as to amount to special circumstances justifying the passing of the bills in either case.”