Relatives of three of the six people killed in the Glasgow bin lorry crash are to seek a private prosecution against the driver, Harry Clarke, after an inquiry found that he repeatedly lied about his ill health.
The families of Erin McQuade, 18, and her grandparents Jack Sweeney, 68, and Lorraine Sweeney, 69, said the fatal accident inquiry had proven that Clarke was guilty of a “wilful failure” to disclose his poor health to a series of doctors, employers and the Driver Vehicle and Licensing Agency (DVLA).
Sheriff John Beckett, who conducted the inquiry, concluded that Clarke, 58, deliberately and systematically concealed nearly 40 years of ill health and lied to doctors about a blackout at the wheel of a bus in April 2010 in order to protect his job as a driver.
Effectively blaming Clarke for the crash, which killed six people and injured 15 people three days before Christmas, Beckett said it would have been avoided if Clarke had told the truth about his medical history or decided not to apply for further driving jobs after the 2010 blackout.
Clarke’s lorry careered out of control in central Glasgow on 22 December last year, killing the Sweeneys, McQuade, Stephenie Tait, Gillian Ewing and Jacqueline Morton, after Clarke experienced “an episode of neurocardiogenic syncope”. Two panicking crewmen behind him were unable to stop the vehicle.
Clarke resigned as a bin lorry driver in October just before a disciplinary hearing by Glasgow council. He was not prosecuted by Scotland’s prosecution service, the Crown Office, after its lawyers decided Clarke could not have predicted he would pass out that day.
With the blessing of Morton’s family, Paul Kavanagh, the lawyer for the McQuade and Sweeney families, is expected to apply to the high court within weeks for permission to mount a rare private prosecution. Kavanagh has yet to reveal the grounds for the case. A legal hearing on its admissibility is expected in early 2016.
Ignoring fresh warnings from the Crown Office on Monday that there was scant evidence to support a criminal case against Clarke, Kavanagh wrote to the lord advocate, Frank Mulholland, and the Scottish justice secretary, Michael Matheson, giving notice of the planned private case.
Referring to the Crown Office’s defence of its decision not to prosecute, the McQuade and Sweeney families said: “We firmly remain of the view that they are wrong.”
David Wilson, a lawyer with Digby Brown solicitors for the Morton family, said Clarke was “not an evil person” but the fatal accident inquiry (FAI) had decided he had “deliberately manipulated the system to keep his driving licence”.
Wilson said: “He must have known that he was taking the risk not only with his own life but with the lives of his passengers and pedestrians. Had he not chosen to lie, he would not have got a job with Glasgow city council and this tragedy would not have happened.”
Beckett makes 19 recommendations in his report, including stricter checks during medical assessments of drivers of public vehicles; fitting extra emergency brakes in bin lorries; and stricter DVLA sanctions for drivers who fail to reveal their full medical history.
In a detailed and damning judgment, he directly accuses Clarke of lying to three doctors who examined him after his blackout at the wheel of a bus. As a result, none of those doctors told him to report his full health history to the DVLA, as they could have done if they had had the full facts.
“Mr Clarke deceived all three doctors in the hope that he would be able to return to work sooner rather than later so that he would not lose his job … None of the doctors who saw Mr Clarke advised him to notify DVLA of this event and he did not do so,” Beckett said.
“It may well be that the single most useful outcome of this inquiry would be to raise awareness of the dangers involved in driving if subject to a medical condition which could cause the driver to lose control of a vehicle.”
It emerged during the inquiry that there had been several other cases where drivers with health problems were not prosecuted for motoring accidents, including one fatality, on the same grounds.
The Crown Office said the sheriff had effectively cleared it of any blame for failing to prosecute Clarke for the crash. He had made no findings “that undermine the decisions not to prosecute the driver”, it said.
Implying that the burden of improving the system lay with the UK government, it said the solicitor general, Lesley Thomson, had written to the transport secretary, Patrick McLoughlin, asking him to address weaknesses in the DVLA self-reporting system.
Ignoring Beckett’s findings that Clarke kept his doctors in the dark about his health, the Crown Office said Clarke could not have known that his medical history meant he was potential threat behind the wheel because no doctor had told him that.
In a potential warning to the relatives seeking a private prosecution, it again insisted there was insufficient evidence in criminal law to charge Clarke and said the sheriff’s damning judgment about Clarke’s motives for lying was based largely on the lower standards of proof in an FAI.
It said: “It is important to note the sheriff was considering evidence at an FAI where a lesser standard of proof is required and where more relaxed rules of evidence apply. A criminal prosecution requires sufficient evidence to the much higher standard beyond reasonable doubt.”
Beckett said Clarke was responsible for repeatedly failing to admit the truth – to himself, his doctors, the DVLA and his employers. In turn, his dishonesty meant there were eight interlinked precautions that could have been taken but were not.
Even without making official disclosures to those doctors and the DVLA, Beckett said Clarke could have privately concluded he was unfit to be a driver and not applied to be a minibus driver and then a bin lorry driver for Glasgow council.
The sheriff said Clarke could have voluntarily “refrained from continuing to drive buses and from seeking further employment as a group 2 driver in the absence of his having told the truth to doctors”.
Had he decided to be fully candid, there were several other steps that could have been taken by the doctors or by Glasgow council and FirstBus if they had known the truth about his blackout and medical history. Their advice to Clarke and his employers would have been different.
The sheriff raised concerns about apparent weaknesses in the law covering drivers who fail to tell the DVLA about health problems or medical histories that could affect their ability to drive. He said the self-reporting regime was open to abuse.
Among his 19 recommendations for improvements, Beckett said the DVLA, the Crown Office and the Crown Prosecution Service in London should review their policies to ensure they do not prevent or discourage prosecutions under the Road Traffic Act 1988.
He said the transport secretary should consult the General Medical Council about whether doctors should be obliged or given more freedom to alert the DVLA about any concerns over a patient’s fitness to drive.
The DVLA was urged to review procedures for notifying it of possible driver impairments and to tighten up on the quality and thoroughness of its guidance to doctors on what to look for and report about a driver’s prior health and fitness. It should allow the police to flag concerns about a driver’s fitness, Beckett said. The DVLA said it was closely studying the recommendations.
Commending relatives of those killed in the incident for their composure during hearings this year, Beckett concluded: “The whole country was deeply shocked by what happened on 22 December 2014, but for the families of six people who died, the consequences extend beyond shock to the pain of permanent loss.
“[It] cannot have been easy to listen to the evidence, but many relatives of those who died steadfastly attended the inquiry demonstrating their love, loyalty and commitment for those they have lost.”
