Bereaved families in the Glasgow bin lorry tragedy and the North Hanover Street accident in which two young women were killed, have been refused leave by the High Court of Justiciary in Edinburgh to bring private prosecutions against the drivers concerned.
Three judges led by Lady Dorrian, the Lord Justice Clerk, refused to pass bills for criminal letters in the name of the relatives of Erin McQuade, John Sweeney and Lorraine Sweeney, three of the six people who died when hit by an out-of-control bin lorry in George Square, Glasgow, on 22 December 2014, and of the families of Mhairi Convey and Laura Stewart, killed on 17 December 2010 in North Hanover Street, Glasgow, when struck by a Range Rover driven by William Payne.
In each case the driver of the vehicle was rendered temporarily unconscious due to a medical condition. In each case the Crown, after investigation, concluded that there was insufficient evidence to justify a prosecution either under the road traffic legislation covering causing death by dangerous driving, or at common law for culpable homicide, on the basis that the driver concerned should have known they might be a risk to the public due to their condition. It stated publicly that it did not intend to prosecute either driver.
In the Payne case the complainers maintained that there was sufficient evidence in 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, and the contents of a police interview, to justify the necessary inferences as to the state of his knowledge about his condition.
The other bill averred that the state of knowledge of the bin lorry driver, Harry Clarke, could be inferred from averments as to his medical history, his failure to disclose that history in job applications and to DVLA, his alleged misrepresentations as to that history, and his post-collision actings.
Each bill claimed that there were special circumstances such as to warrant the granting of the bill. These were said to exist in the Crown having erred in its analysis of the legal and evidential requirements necessary to establish the charge of dangerous driving, and in its assessment of sufficiency of the evidence.
The court accepted, as the Lord Advocate had conceded, that all the complainers had the necessary title and interest to bring the bills in relation to the charges of causing death, but ruled that this was not the case in relation to other charges of making false statements for the purpose of obtaining a driving licence, and failing to notify the Secretary of State of a relevant disability.
"In our view these are charges of a general and public nature, lacking that interest, personal and peculiar to a complainer, which is necessary before a bill of criminal letters may be passed", Lady Dorrian said, delivering the opinion of a court which also compriosed Lord Menzies and Lord Drummond Young. "It is not sufficient for the purposes of title and interest that the complainers seek to include these charges for mainly evidential purposes."
On the legal requirements of a charge of dangerous driving, the court held that the Crown had applied the correct test. “The critical question in any case such as this is the quality of the driving at the time of the collision", the court ruled on this point. "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.”
Nor were there special circumstances such as to justify passing the bills. "An error in law as to the components of an offence, at least an egregious one, might justify passing bills of criminal letters, but as we have explained above, we do not consider that such an error has been made", Lady Dorrian said. She added that an error of judgment by the Crown would not be sufficient to meet the test of exceptionality, and in any event the Crown had not erred in its assessment of either case.
“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.”
Summing up, she continued: "Looking at the evidence as a whole as far as we think it appropriate, we do not consider that the Crown erred in its assessment of either case. In each case the driver lost control through a loss of consciousness; in each case the explanation for this was identified only in post-accident investigation. In neither case had there been a prior diagnosis of an underlying condition liable to render the driver unconscious without warning. The complainers’ case thus turns on a question whether the medical history of each respondent and the inferences capable of being drawn therefrom were such as to create in each of them the knowledge that to drive on the day in question was to do so in the face of obvious and material dangers.
"The basis upon which the complainers advance their argument is one which adopts a selective approach to the evidence and does not accord with the basis upon which such decisions must be taken by a public prosecutor. 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."
Further, “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.
“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 judgment.
“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.”