Two bites of the apple- limitation in professional negligence cases
The Fatal Accident Inquiry convened to hear evidence in relation to the tragic events in Glasgow’s Queen Street on 22 December last year has once again raised the issue of the availability of private prosecutions in Scotland.
The Inquiry has been investigating whether any reasonable precautions could have been taken which might have avoided the incident, which occurred when the driver of a Glasgow City Council bin lorry fell unconscious at the wheel. Six pedestrians sadly died and many more were injured.
The most noteworthy evidence heard to date was in relation to the driver of the bin lorry, Harry Clarke. It has emerged that Mr Clarke, prior to becoming employed by Glasgow City Council as a bin lorry driver, had suffered a previous blackout in 2010 when employed as a driver for First Bus. This was not divulged by Mr Clarke on his Council application form, subsequent health assessments or in dealings with the DVLA.
The Crown Office and Procurator Fiscal Service (COPFS), the prosecuting body in Scotland, elected not to prosecute Mr Clarke prior to this evidence emerging. It has continued with this stance, despite receiving pressure from the families involved to have Mr Clarke charged due to his alleged failures.
Given the COPFS’ stance, the families of some of the deceased have indicated that they wish an adjournment to the Fatal Accident Inquiry so that they can begin a private prosecution against Mr Clarke. Although private prosecutions are commonplace south of the border as they are specifically allowed under section 6 of the Prosecution of Offences Act 1985, private prosecutions in Scotland are extremely rare. This is partly due to the process of instigating such an action being quite onerous. To bring a private prosecution, an individual must apply to the High Court for a ‘bill of criminal letters’, which can be opposed by the Lord Advocate and the alleged offender. There must also be special circumstances to justify a private prosecution, which can be very difficult to establish.
The outcome of the application will be extremely interesting for the Scottish legal system. This high profile case will place a significant spotlight on the private prosecutions process, which may lead to the High Court being more accommodating of the application than in past cases. This remains to be seen, however.
The effect of this application on the Fatal Accident Inquiry is also notable. If Mr Clarke is ultimately to be prosecuted, then he would have to receive a warning prior to giving evidence to the Inquiry, meaning that he may not answer all questions. The families of those involved may therefore have to wait for a further period before receiving answers about whether anything reasonable could have been done to prevent this tragic incident.
If you are considering bringing a private prosecution and would like to discuss your case and the options that are available to you, please visit our Private Prosecutions service page for further information or contact a member of the team.
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