Lorry Crash In George Square

[RickMcD]

The second the threat of private prosecution was made, this was always going to happen. The inquiry should be put on hold, and COPFS should prioritise a quick hearing to see if the prosecution is viable (it's not), and then continue with the inquiry.

We know natural justice is now little more than a concept of a bygone age - I think your profession saw to that. I am saying that slightly tongue in cheek. But is Harry Clarke not to be punished? I accept his life is in ruins but six people are dead and others who were injured and the families of those who died are going through hell. Putting it in simple terms, is Clarke getting off lightly because he didn't mean it? Every time somebody driving while pissed as a fart mows somebody down, do they get kid glove treatment because they didn't mean it? I don't think so. Anyway, za, you are our in-house legal beagle or eagle if you prefer. What should happen to Harry Clarke? I don't think I am pre-judging anything. Res ipsa loquitor.

[zurich_allan]

I deliberately haven't said too much on the subject on here, or anywhere else because it's such an emotive case, and understandably so, that it's really tricky trying to explain legal rules without being accused of condoning the lack of prosecution. It's pretty much 'shoot the messenger' stuff. And for all of the legal rules in question there are legitimate reasons behind them, it's just that it would take an age to explain them on a forum.

In any case, here are my thoughts.

The big problem is that the actual offences that Harry Clarke committed are the ones committed months or years before the crash with declarations to the DVLA. Lying to his employer is despicable, and likely negligent, but not a criminal offence. Personally I think that he should have been prosecuted for the false declarations to the DVLA; I know that they have said nobody has been prosecuted in court over that before (only given fines), but a case can be made quite easily for this having been an extraordinary case.

With regards to the crash itself, the problem is that the law is very clear to those that know it in this area. With any mala in se crime (including murder, culpable homicide etc) the prosecution HAS to be able to establish both Mens Rea (the mental element) and Actus Reus (the physical act) otherwise whatever the action was, it can't be classed as a crime.

In this case, the physical element is present, 6 people were killed. The massive and insurmountable problem as far as the law goes is that the mens rea cannot be satisfied. For murder what has to be proven is either intention to kill (clearly it wasn't intentional), or wicked recklessness (again, both elements here are crucial and his actions in court would not be arguable as being wicked). So that leaves culpable homicide; for this the mens rea is simple recklessness, but the problem is that his actions cannot be said to be reckless. Negligent; yes, but reckless; no sadly. Negligence is a step too short for a culpable homicide case to be made to stick in court.

Even with all of that said, the further problem is that of causation. The actions of the accused have to be shown as being a direct cause of the actus reus otherwise again, the case will fail. The question a court is obliged to ask is 'did the actions of Harry Clarke in failing to disclose to the DVLA and his employer DIRECTLY cause the crash that killed the victims?' Legally, the answer is no. The DIRECT cause was the medical episode, the fainting, that caused Harry Clarke to lose consciousness. The fainting would be classed legally as a novus actus interveniens (a new intervening act), and would be classed as having broken the chain of causation that could have allowed any legal blame to be placed against Harry Clarke.

In legal terms, there was absolutely NO prospect of success, and as such the ONLY way to have some sort of judicial process in public in which all of the information and detail to come out was always going to be a public inquiry. And to ensure that the full truth, which surely all of the families want, to come out, was to declare that there would be no prosecution and thus Harry Clarke could not legally incriminate himself.

So this is what happened.

Next, and I want to emphasise that this part is purely my opinion: the lawyer for a couple of those families has gone and royally f**ked things up for them and everyone else involved in the inquiry. In my opinion, that lawyer is nothing more than a money greedy bastard. They know as well as I do that there is absolutely NO prospect of a successful prosecution in this case. Most of this is first year university criminal law stuff. They have been leading those poor families down a garden path when there is NO chance they are going to get the outcome they are looking for.

Then a former senior prosecutor (he's actually more a former mid-level prosecutor; the word principal makes it seem really senior) comes out and says that he thinks there should have been a prosecution too. I don't know what his deal is, but again, I am astonished, because as a legal professional he cannot possibly believe that, because it's black and white - he's wrong.

So that's it in a nutshell.

Oh, but my personal opinion? I think it's despicable what he did in terms of the lies, and I hope a large civil action is taken out against him. A prosecution though? No.

[Lord Pityme]

I deliberately haven't said too much on the subject on here, or anywhere else because it's such an emotive case, and understandably so, that it's really tricky trying to explain legal rules without being accused of condoning the lack of prosecution. It's pretty much 'shoot the messenger' stuff. And for all of the legal rules in question there are legitimate reasons behind them, it's just that it would take an age to explain them on a forum.

In any case, here are my thoughts.

The big problem is that the actual offences that Harry Clarke committed are the ones committed months or years before the crash with declarations to the DVLA. Lying to his employer is despicable, and likely negligent, but not a criminal offence. Personally I think that he should have been prosecuted for the false declarations to the DVLA; I know that they have said nobody has been prosecuted in court over that before (only given fines), but a case can be made quite easily for this having been an extraordinary case.

With regards to the crash itself, the problem is that the law is very clear to those that know it in this area. With any mala in se crime (including murder, culpable homicide etc) the prosecution HAS to be able to establish both Mens Rea (the mental element) and Actus Reus (the physical act) otherwise whatever the action was, it can't be classed as a crime.

In this case, the physical element is present, 6 people were killed. The massive and insurmountable problem as far as the law goes is that the mens rea cannot be satisfied. For murder what has to be proven is either intention to kill (clearly it wasn't intentional), or wicked recklessness (again, both elements here are crucial and his actions in court would not be arguable as being wicked). So that leaves culpable homicide; for this the mens rea is simple recklessness, but the problem is that his actions cannot be said to be reckless. Negligent; yes, but reckless; no sadly. Negligence is a step too short for a culpable homicide case to be made to stick in court.

Even with all of that said, the further problem is that of causation. The actions of the accused have to be shown as being a direct cause of the actus reus otherwise again, the case will fail. The question a court is obliged to ask is 'did the actions of Harry Clarke in failing to disclose to the DVLA and his employer DIRECTLY cause the crash that killed the victims?' Legally, the answer is no. The DIRECT cause was the medical episode, the fainting, that caused Harry Clarke to lose consciousness. The fainting would be classed legally as a novus actus interveniens (a new intervening act), and would be classed as having broken the chain of causation that could have allowed any legal blame to be placed against Harry Clarke.

In legal terms, there was absolutely NO prospect of success, and as such the ONLY way to have some sort of judicial process in public in which all of the information and detail to come out was always going to be a public inquiry. And to ensure that the full truth, which surely all of the families want, to come out, was to declare that there would be no prosecution and thus Harry Clarke could not legally incriminate himself.

So this is what happened.

Next, and I want to emphasise that this part is purely my opinion: the lawyer for a couple of those families has gone and royally f**ked things up for them and everyone else involved in the inquiry. In my opinion, that lawyer is nothing more than a money greedy bastard. They know as well as I do that there is absolutely NO prospect of a successful prosecution in this case. Most of this is first year university criminal law stuff. They have been leading those poor families down a garden path when there is NO chance they are going to get the outcome they are looking for.

Then a former senior prosecutor (he's actually more a former mid-level prosecutor; the word principal makes it seem really senior) comes out and says that he thinks there should have been a prosecution too. I don't know what his deal is, but again, I am astonished, because as a legal professional he cannot possibly believe that, because it's black and white - he's wrong.

So that's it in a nutshell.

Oh, but my personal opinion? I think it's despicable what he did in terms of the lies, and I hope a large civil action is taken out against him. A prosecution though? No.

Luv how yir no saying much!

[zurich_allan]

I said why I'd not said much in general. Didn't say I wasn't going to say much in that post! I had to so that I could get most of the gist of it in one place.

[RickMcD]

I said why I'd not said much in general. Didn't say I wasn't going to say much in that post! I had to so that I could get most of the gist of it in one place.

Thanks for your explanation, za. But is it written in tablets of stone anywhere that giving Clarke a free pardon was absolutely the only way to get the truth? Was the public enquiry only a sop for the grieving families? Like everyone else, I felt sorry for Clarke until his medical history was made public. I really feel that our legal system is incapable of flying by the seat of its pants in unusual situations. If there's no legal precedent as a guideline then what the hell, go for it. Find a pragmatic way to go forward. I suspect the answer will be 'But we don't do that'. We being the legal profession. Reading his non-answers to the questions put to him angered me. And partly that was because we all know a solicitor somewhere has said to Clarke 'Whatever you say, say f**k all'. Don't all solicitors in Scotland want the absolute truth to come out? It wasn't a criminal trial that was going on.

[zurich_allan]

Thanks for your explanation, za. But is it written in tablets of stone anywhere that giving Clarke a free pardon was absolutely the only way to get the truth? Was the public enquiry only a sop for the grieving families? Like everyone else, I felt sorry for Clarke until his medical history was made public. I really feel that our legal system is incapable of flying by the seat of its pants in unusual situations. If there's no legal precedent as a guideline then what the hell, go for it. Find a pragmatic way to go forward. I suspect the answer will be 'But we don't do that'. We being the legal profession. Reading his non-answers to the questions put to him angered me. And partly that was because we all know a solicitor somewhere has said to Clarke 'Whatever you say, say f**k all'. Don't all solicitors in Scotland want the absolute truth to come out? It wasn't a criminal trial that was going on.

I agree with the sentiment, but the problem is that when breaking all of the events into their constituent parts, there is precedent, or there are legal rules that cover everything. To depart from them would have the danger that to be accused of a crime, whatever the actions that were carried out should have been a crime at the time, and not something that is declared criminal at a later date. This is a safeguard that prevents the authorities from taking a dislike to somebody and 'making' a crime to fit. If an existing legal principle can be extended or developed, then what you're suggesting might be possible, but in all honesty I don't think it should. Just my personal opinion on that one.

The insurmountable problem is the impossibility of proving mens rea due to the fact that the crash was an unconscious act. Mens rea is such an established principal that it cannot be deviated from in a one off case just because that case is a high profile one.

The further problem is that for a precedent to be established, the case has to be one in the High Court, and this type of case would never start at that level as it cannot be prosecuted as a 'serious' enough crime.

Again, I agree with a lot of the sentiment, it's just that the rules in question in this case aren't just ones that exist for the sake of it, they all have very good reasoning behind them. The subject areas in question I'd probably teach over four or five two hour blocks, so I really find it difficult to compress down to a couple of hundred words here.

[zurich_allan]

Should have added that no, truth is not within the remit of an advocate in a criminal case. The remit of an advocate is to act and advise in the best interests of their client. The role of finding the 'truth' lies with either the judge or jury, whomever the trier of fact is.

[Happy Buddie]

Surely he was culpable in that he knew that eventually he would have a blackout whilst he was driving, and given that most of the time he was driving it was a 13 ton bin lorry, incapable of being redirected or stopped from within the cab. If I were to sit on Ayr beach, starting at 5am, with a random alarm going off at irregular intervals, and each time I heard it, throw a stone into the water, I know that eventually I would hit someone either on the beach or in the water, and when it happened I'd be charged with assault. Why si that so different from the George Square scenario? Is it just too logical for the legal mind, i.e. ye cannae make money oot o' it if all it takes is logic?

[oaksoft]

It must be a great life being a total c**t in this country.

You can spend your entire life experiencing regular blackouts at the wheel and just keep your mouth shut.

You can then experience the inevitable next blackout which causes you to plough through a crowd of people killing many of them, ruining lives, knowing that an entire industry of oily, slimy lawyers will put your rights above the victims by splitting hairs over precise definitions.

Seriously, it must be brilliant to be in the position that you can pretty much do whatever you like as long as you can find a way of describing your actions which scrapes the barrel of the legislation without punching a hole right through it leaving you scot-free to repeat ad-nauseum.

All of this with absolutely no consequences whatsoever because apparently what matters most is 100% adherence to a set of words rather than the pursuit of genuine justice.

Great life.

Edited August 24, 2015 by oaksoft

[bluto]

Surely he was culpable in that he knew that eventually he would have a blackout whilst he was driving............ Is it just too logical for the legal mind, i.e. ye cannae make money oot o' it if all it takes is logic?

That first sentence is NOT logical. That's your problem, right there.

[bluto]

It must be a great life being a total c**t in this country.

Being an academic, allegedly.

Great life.

FIFY

Edited August 24, 2015 by bluto

[beyond our ken]

The Shoreham crash seems to be an interesting counterpoint to George square

Will the middle-class former RAF & BA pilot be villified in the media to the same extent as the working class bin-lorry driver?

or will he get the soft-gloves tretment administered to Colin Macrae? Who would quite possibly have stood charges had he survived his crash.

Harry Clarke is a stupid man who thought he could outrun the probabilities and get to retirement without a serious incident. He knowingly took chances with other people's lives and lost but was enabled in this by a series of different people. He will be slaughtered and I reckon that if i was in the same position i would probably have topped myself by now as the guilt & remorse must be unendurable. He will be hounded to his grave.

MacRae was a stupid man who thought he could show off by performing stunts with child passengers on board an aircraft he was not licensed to fly, he died in the crash and got a rally named after him.

[Guest TPAFKATS]

Of course the relatives of the pilot who crashed at Shoreham have today expressed their sorrow and regret (words to that effect) to all those families bereaved.

Just saying...

[oaksoft]

The Shoreham crash seems to be an interesting counterpoint to George square

Will the middle-class former RAF & BA pilot be villified in the media to the same extent as the working class bin-lorry driver?

or will he get the soft-gloves tretment administered to Colin Macrae? Who would quite possibly have stood charges had he survived his crash.

Harry Clarke is a stupid man who thought he could outrun the probabilities and get to retirement without a serious incident. He knowingly took chances with other people's lives and lost but was enabled in this by a series of different people. He will be slaughtered and I reckon that if i was in the same position i would probably have topped myself by now as the guilt & remorse must be unendurable. He will be hounded to his grave.

MacRae was a stupid man who thought he could show off by performing stunts with child passengers on board an aircraft he was not licensed to fly, he died in the crash and got a rally named after him.

The problem is the hero worshipping of MacRae not the hounding of Clarke.

Personally I couldn't give a f**k about how Clarke feels.

I prefer to reserve my sympathy for his victims.

[Happy Buddie]

That first sentence is NOT logical. That's your problem, right there.

The sentence is logical, I would argue. There was a probability, not just a possibility, that he would pass out at some stage whilst driving.

[bluto]

The sentence is logical, I would argue. There was a probability, not just a possibility, that he would pass out at some stage whilst driving.

No. I understand your annoyance but even though YOU believe that to be the case, there is no way of knowing that he would believe that might happen.

People drive when drunk, over-tired, distracted and/or drugged - whether medicinal or recreational - and feel absolutely assured that it will never happen to them. THEY can handle it.

What are the odds? They all say...

And the odds are usually on their side - so many do get away with it.

There is a possibility, not a certainty...

Never a certainty..

[pozbaird]

I think Harry Clarke deserves to get his cnut kicked in. I appreciate this view is unlikely to hold any sway in legal terms, nor is it a very nice thing to say, but there you go. It's an open forum, all about opinions, and my opinion is he deserves to get his cnut kicked in.

Zurich Allan - what's the legal view on a cnut getting his cnut kicked in? There's no point in trying to prove mens rea - he isnae' even a Smurrrnn fan.

[salmonbuddie]

It must be a great life being a total c**t in this country.

You can spend your entire life experiencing regular blackouts at the wheel and just keep your mouth shut.

You can then experience the inevitable next blackout which causes you to plough through a crowd of people killing many of them, ruining lives, knowing that an entire industry of oily, slimy lawyers will put your rights above the victims by splitting hairs over precise definitions.

Seriously, it must be brilliant to be in the position that you can pretty much do whatever you like as long as you can find a way of describing your actions which scrapes the barrel of the legislation without punching a hole right through it leaving you scot-free to repeat ad-nauseum.

All of this with absolutely no consequences whatsoever because apparently what matters most is 100% adherence to a set of words rather than the pursuit of genuine justice.

Great life.

That's the kind of logic and lack of understanding of the legal system I'd expect from a glorified plumber.

[RickMcD]

That's the kind of logic and lack of understanding of the legal system I'd expect from a glorified plumber.

Don't know where Stu comes into this but I've got to say I agree with Oaky here. Hate to admit it right enough. I understand the legal system sufficiently to agree with the adage that the law can be a proper ass at times. I'm not holding my breath but I have a dream that this case might produce a line in the sand moment where a public outcry turns this into a cause celebre which might for once make the legal profession ask serious questions of itself. Members of the legal profession, unfortunately, are not good at sticking their heads above the parapet. Maybe I'm prejudging the outcome. za has written that he hopes Clarke gets hit with a private challenge for some kind of compensation. I wonder. If Clarke was driving his car when something similar happened, I doubt his insurance company would pay out. I think it's clearly voidable. However, because Glasgow Corporation or whatever it's called now has muscle it might make a difference. Clearly they are culpable to some degree for taking him on in the first instance. We all know he lied but if any employer is taking on a 50 something year old as a bin lorry driver, his medical background should involve a bit more than a very cursory few questions.

[beyond our ken]

That's the kind of logic and lack of understanding of the legal system I'd expect from a glorified plumber.

I used to be a plumber and am now a safety professional with a pretty good grasp on the legal system as it applies to my area

i would never deride anyone based on their occupation

[salmonbuddie]

Most of us know who I was talking about and the derision is nothing to with his occupation.

[nosferatu]

Most of us know who I was talking about and the derision is nothing to with his occupation.

On the contrary, you used his working class occupation to deride him.

[salmonbuddie]

Bollocks. That's a working class term, by the way.

[oaksoft]

On the contrary, you used his working class occupation to deride him.

He used his working class occupation to identify him.

[oaksoft]

That's the kind of logic and lack of understanding of the legal system I'd expect from a glorified plumber.

With respect I think it's a very reasonable position to take on the legal profession in this particular case.