THE Crown Office is facing further criticism over its decision not to prosecute the driver in the George Square bin lorry crash.
Lawyers claim prosecutors could have pursued a charge of culpable and reckless conduct instead of causing death by dangerous driving – a move which requires less proof of Harry Clarke’s state of mind when he drove that day.
The Crown - who revealed they would not prosecute Mr Clarke in February - say they took the decision because he was unconscious and not in control of his actions at the time of the crash and also because he could not foresee his loss of consciousness.
An ongoing Fatal Accident Inquiry into the incident, which left six people dead in December last year, has heard that the driver may have lied to the DVLA about a previous blackout in 2010, while documentary evidence showed that he also failed to declare a previous collapse at the wheel of a bus three times while applying for posts at Glasgow City Council.
Solicitor Advocate Richard Freeman has now claimed the Crown could have pursued the culpable and reckless conduct charge based on the evidence which has been presented so far in the inquiry, which is expected to run for a further two weeks.
Mr Freeman said: "Say for example, someone shoots a gun in the street but doesn't aim it anyone, there's no intention to hurt anyone but they can still be prosecuted for culpable and reckless conduct.
"Some people can't be prosecuted for dangerous driving due to the circumstances of the case so in some cases the sheriff or judge can resort to the common law alternative."
He added that he believes the Crown Office has played "judge and jury" in Mr Clarke's case and have "gone beyond their remit".
Solicitor Aamer Anwar added that while he is not aware of all the facts of the case, if someone gets behind the wheel in the knowledge that they could blackout at any time, then it amounts to culpable and reckless conduct because it "puts other people's lives at risk".
However, Ian Duguid QC, a former prosecutor at Crown Office, said that while all of the evidence has not been heard yet, he believes the decision not to prosecute may have been "perfectly justifiable".
He said: "It's probably because he can't be considered to be driving the vehicle because he is unconscious. If they have come to the conclusion that he was unlikely to be conscious at the time and therefore not responsible for his actions, that would be a reason to believe that their decision is well founded."
It is understood that the Crown could have considered prosecuting Mr Clarke for low-level offences involving him failing to declare his blackouts to the DVLA, but Mr Freeman argued that this would not have been in public interest.
The families in the case could now pursue a private prosecution, however this is extremely rare in Scotland.
The last case of this kind was the "Glasgow Rape Case" in the early 1980s when the Crown Office decided against prosecuting a number of men accused of rape because the victim was not fit to give evidence.
When the victim became well enough to give evidence, lawyers were granted permission for a private prosecution.
However, no such cases have taken place since.
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