The Crown and the Glasgow Bin Lorry Crash

It was Monday 22^nd December 2014 and Glasgow city was busy with Christmas shoppers when tragedy struck. Without warning a bin lorry went out of control in Queen Street, struck pedestrians and crashed into the Millennium Hotel. Six people were killed and a number.

This was a shocking accident, made all the more poignant by the time of year.  George Square was as usual festooned with Christmas lights, dimmed out of respect for the dead and injured.

FATAL ACCIDENT INQUIRIES AND PROSECUTION IN SCOTLAND

In Scotland the Crown Office and Procurator Fiscal Service (COPFS) has responsibility through the Procurator Fiscal (PF) for dealing with fatal accidents.  The police will investigate with the Health and Safety Executive involved if the death is at work. If there is evidence of a crime, a prosecution will follow. Otherwise, the PF may apply to hold a Fatal Accident Inquiry (FAI) which is a public inquiry held in the Sheriff Court. FAIs can be detailed and wide ranging and recent examples include the inquiry in Aberdeen the following Super Puma helicopter crash in 2009.

That was nearly 5 years after the accident, and at the time this was not untypical and the delays in bringing prosecutions or holding FAIs were subject to widespread criticism not least from families of the deceased.

FAIs are held under the Fatal Accidents and Sudden Deaths (Inquiry) Scotland Act 1976 (the 1976 Act) and the Sheriff hearing the inquiry has wide powers. The Sheriff is required to make findings which shall include where and when the death and any the accident resulting in the death took place and the cause or causes of such death and any accident resulting in the death. Significantly the Sheriff can also determine the reasonable precautions, if any, whereby the death and any accident resulting in the death might have been avoided, the defects, if any, in any system of working which contributed to the death or any accident resulting in the death and any other facts which are relevant to the circumstances of the death.

While it is not the purpose of FAIs to establish liability or to apportion blame, it is obvious from the above that the Sheriff has power to highlight any failings which led to the accident and the death. Parties can come in for heavy criticism and the findings can be very significant in civil claims to follow, although the Determination itself is not admissible in evidence in other proceedings. The fact that the evidence has been heard in court and is in the public domain, however, is very influential.

THE DECISION NOT TO PROSECUTE AND THE FATAL ACCIDENT INQUIRY

Against that background the investigation into the Glasgow accident took place. There was great public interest and no doubt pressure on the Crown to proceed. One of the first tasks is to establish whether a crime has been committed and usually a prosecution will come first. To the surprise of many, the Crown announced in February 2015 that the lorry driver, who had suffered a blackout immediately before the accident, would not face criminal charges as there was insufficient evidence to prosecute.

The decision not to prosecute was much criticised but it cleared the way for a FAI to be held and that took place in July 2015, only 7 months after the accident, in contrast to the Super Puma case. Dealing with the issue of prosecution first clears the way for the FAI to take place freely without any witness fearing prosecution. Witnesses have the right to refuse to answer questions if their answer might incriminate them and this doesn’t arise if the threat of prosecution is removed. No doubt the Crown thought that this would allow the lorry driver to give evidence freely and that the whole story of the crash would be told.

That didn’t happen. Lawyers for some of the bereaved families told the court a private prosecution against the driver was being considered. These are rare in Scotland, where prosecution is almost exclusively by the Crown, but the threat was enough for the driver to refuse to answer questions. He then received widespread criticism for not ‘coming clean’, but he was merely exercising his legal right.

THE SHERIFF’s DETERMINATION

Despite that, detailed evidence was led at the FAI and the Sheriff felt that he had ample evidence to draw the relevant conclusions.

The Sheriff found that the cause of the deaths was the loss of control of the bin lorry by its driver, Harry Clarke, and that he lost control when he fainted. Dealing with reasonable precautions whereby the death and any accident resulting in the death might have been avoided the Sheriff made eight findings:

1. For Mr Clarke to have told the whole truth to Dr McKaig, Dr Lyons and Dr Langan about what had occurred on 7 April 2010.
2. For Dr Lyons to have advised Mr Clarke to notify DVLA given what he was told on 8 April following the incident on 7 April 2010.
3. For Dr Langan to have clarified with Dr Lyons the circumstances of Mr Clarke’s faint on 7 April 2010 before concluding that he had suffered a simple faint.
4. For Mr Clarke to have provided true and accurate information in completing an occupational health questionnaire in connection with his application for employment with Glasgow City Council in December 2010.
5. For First Glasgow to have provided a full, accurate and fair employment reference to Glasgow City Council in respect of Mr Clarke’s application for employment.
6. For Mr Clarke to have provided true and accurate information about his medical history on BUPA medical questionnaires in December 2011.
7. For Mr Clarke to have disclosed the incident of 7 April 2010 in DVLA form D47 and to Dr Willox in December 2011.
8. For Mr Clarke, after fainting at the wheel of his bus on 7 April 2010, to have refrained from continuing to drive buses and to have refrained from seeking further employment as a group 2 driver in the absence of his having told the truth to doctors and without having acted upon the advice which would have been forthcoming, and thereafter without making his relevant medical history known to Glasgow City Council to the extent required in its recruitment, appointment and promotion processes.

These findings are mostly directed at Mr Clarke’s behaviour, and his failure to tell the truth which had been the subject of much discussion and comment. It is notable also that there are findings that it would have been reasonable for Dr Lyons to tell Mr Clarke to notify the DVLA in 2010, and for his employers First Glasgow to have provided a full, accurate and fair employment reference to Glasgow City Council. These findings point to other factors beyond what Mr Clarke did which may have contributed to what occurred.

The Sheriff also made a total of 19 recommendations as follows:

• Doctors generally, and general practitioners in particular, should take steps to ensure that medical notes are made and kept in such a way as to maximise their ability to identify repeated episodes of loss of consciousness, loss of or altered awareness, in the case of patients who are or may become drivers.
• When a doctor is advising an organisation employing a driver as to that driver’s fitness to drive following a medical incident whilst driving, that organisation should provide all available information about the incident to the doctor and the doctor should insist on having it prior to giving advice to the organisation and the driver.
• Glasgow City Council, when employing a driver, should not allow employment to commence before references sought have been received.
•  Glasgow City Council should carry out an internal review of its employment processes with a view to ascertaining potential areas for improvement in relation to checking medical and sickness absence information provided by applicants, for example by having focussed health questions within reference requests for drivers and obtaining medical reports in relation to health related driving issues from applicants’ GPs.
•  Glasgow City Council should provide its refuse collection operators with some basic training to familiarise them with the steering and braking mechanisms of the vehicles in which they work.
•  Local Authorities and any other organisations which collect refuse, when sourcing and purchasing refuse collection vehicles which are large goods vehicles, should seek to have AEBS (Autonomous Emergency Braking Systems) fitted to those vehicles wherever it is reasonably practicable to do so.
•  Local Authorities and any other organisations which collect refuse, and which currently have large goods vehicles without AEBS but to which AEBS could be retrofitted, should explore the possibility of retrofitting with the respective manufacturer.
•  Glasgow City Council should seek to identify routes between refuse collection points which, so far as is reasonably practicable, minimise the number of people who would be at risk should control be lost of a refuse collection lorry.
• The potential for the presence of exceptional numbers of pedestrians at particular times should be taken account of as part of route risk assessment in refuse collection.
• The Driver and Vehicle Licensing Agency (DVLA) should satisfy itself as to precisely what the categorisation is intended to mean and to achieve in the loss of consciousness/loss of or altered awareness section of the guidance contained in its “At a Glance Guide to the Current Medical Standards of Fitness to Drive” (“at a glance”).
•  Having done so, DVLA should then ensure that the meaning is made clear to those who apply the guidance in practice.
• DVLA should consider if a flow chart could be provided to guide doctors through the categorisations contained in the loss of consciousness/loss of or altered awareness section of “at a glance”.
•  DVLA should consider whether the section of “at a glance” on loss of consciousness/loss of or altered awareness gives sufficient weight to the absence of prodrome [symptoms experienced in advance of an episode] given its significance for road safety.
• DVLA should consider whether the section of “at a glance” on loss of consciousness/loss of or altered awareness gives sufficient weight to a medical event occurring at the wheel of a vehicle and its consequences.
•  DVLA should change its policy on notification from third parties so that relevant fitness to drive information from ostensibly reliable sources, such as the police, can be investigated whether or not it comes in written form.
• DVLA should redouble its efforts to raise awareness of the implications of medical conditions for fitness to drive amongst the medical profession.
• The Secretary of State for Transport should instigate a consultation on how best to ensure the completeness and accuracy of the information available to DVLA in making fitness to drive licensing decisions with a view to making legislative change.
•  Part of this exercise should involve considering increasing the penalties and altering the mode of prosecution for contravention of section 94 of the Road Traffic Act 1988.
• The Secretary of State for Transport should instigate a consultation on whether it is appropriate that doctors should be given greater freedom, by the General Medical Council, or an obligation, by Parliament, to report fitness to drive concerns directly to DVLA.

These recommendations are wide ranging and cover communications with doctors, employment processes, the operation of bin lorries, safety systems and the requirements of the DVLA in medical cases. It is clear that a problem beyond the tragic circumstances of this case had been highlighted regarding the reporting of medical conditions which may impair the ability to drive. It is hoped that the Sheriff’s findings and the detailed recommendations made will reduce the likelihood of an accident like this happening in the future.

CONCLUSION

So what do we make of all this?  First of all, what of the decision not to prosecute? The Crown has been rightly criticised for lengthy delays in fatal cases and this one went ahead with commendable speed. Despite that, there has been much criticism of the Crown’s decision not to prosecute Mr Clarke and the speed with which it was taken. No doubt the Crown believed it was in the public interest to hold an early FAI, but the fallout from that shows that the issues in highly sensitive fatal cases are very finely balanced indeed.

It is still possible that there will be a private prosecution. These are very rare in Scottish legal history where the duty to prosecute is on the Crown through the COPFS and in the public interest. Many will feel that, as the evidence clearly shows that Mr Clarke did not tell the truth about his medical history with such dreadful consequences, justice demands that he is called to account. Others will look on the Crown’s decision as being the reasonable one in the circumstances with a view to having a full airing of the facts of the accident in public, and quickly.

The Crown’s job in these cases is a very onerous one where decisions are made which have life changing consequences. While the Crown can certainly be criticised for dragging its feet in recent years, this is one case where, in less than a year from the accident, we have heard detailed evidence in court and have a lengthy and thorough judgment from the Sheriff which it is hoped will prevent similar accidents occurring. That, at least, should give comfort to all those affected by this tragic accident.

The Determination of Sheriff Beckett can be found here.

For more information on this, please contact Keith MacRae or call 01224 632 464.