harry clarke could go on trial says top lawyerTop lawyer says there is enough evidence to put Glasgow bin lorry driver Harry Clarke on trial
TOP LAWYER Brian McConnachie QC has said he expects a private prosecution against bin lorry driver Harry Clarke to be granted - despite the Crown already rejecting that course of action.
The former senior prosecutor in the Crown Office believes there is a strong possibility that the High Court will ultimately disagree with the decision of the Lord Advocate Frank Mulholland not to charge Clarke with any offence.
McConnachie has previously stated that he believes there to be enough evidence to put Clarke before a judge and jury.
A private prosecution drafted by lawyers acting for the McQuade and Sweeney family - who lost 18-year-old Erin and her grandparents Jack, 68, and Lorraine, 69 - lists numerous potential charges, including causing death by dangerous driving.
The Lord Advocate has been asked for his “concurrence” or agreement to the action but it could go ahead without this.
McConnachie, now a top defence advocate, said: “I don’t think the Lord Advocate will give his concurrence but despite that, in consideration of the particular details of this case, I would not be surprised if the court authorises the prosecution to take place.
“Provided the court view is that same as mine - that there is a sufficiency in evidence to prosecute the driver - there should be no reason for a trial not to take place.
“If they decide otherwise, that there is not enough evidence, that will be the end of the matter. “
McConnachie said any judge hearing legal arguments supporting a private prosecution would not be swayed by the fact the country’s top Crown lawyer had taken a strong view against prosecution.
He said: “I don’t think the Lord Advocate’s views on the matter will be given any greater weight than anyone else in the procedures.
“His view here, that there is an insufficiency of evidence, is a matter that the appeal court is very capable of determining for itself.”
He added: “If they reach the conclusion that the crucial ‘foreseeability’ test is met, in that Clarke may have known he could have blacked out at any time, then it is quite difficult to then say that they will not permit the prosecution to go ahead.”
McConnachie said it was intriguing that the families of Mhairi Convy, 18, and Laura Stewart, 20, also decided to bring private prosecutions at the same time.
The young women died after William Payne passed out and his Range Rover hit them on North Hanover Street, Glasgow, in 2010.
Their families have lodged a similar Bill of Criminal letters with the Crown Office in a bid to start a prosecution.
McConnachie said: “One of the arguments against a private prosecution is that granting one could open the floodgates for other aggrieved parties who felt they were not granted justice.
“It is interesting to note that another family has come forward with a separate private prosecution, as this could be considered in different ways.
“If both were being dealt with at the same time, it’s possible that could be seen as an example of floodgates being opened, which would not be beneficial to the case. On the other hand you might consider that the Court of Appeal would find it difficult to allow one case to go ahead and refuse to allow another.”
McConnachie said he would be personally against any kind of crowd funding for court action of any kind.
He said: “Appealing to the public in such a manner wouldn’t be appropriate in my view. I would find it unpalatable and it would give rise to potential accusation of there being a lynch mob mentality. I don’t think it would feel right to go down that road.”