Bill For Criminal Letters By (1) John And Linda Stewart And (2) Allan And Aileen Convey Against William Payne And (1) Matthew Mcquade And Jacqueline Mcquade And (2) Yvonne Reilly Against Henry Clarke
| Jurisdiction | Scotland |
| Judge | Lord Menzies,Lord Drummond Young,Lord Justice Clerk |
| Judgment Date | 09 December 2016 |
| Neutral Citation | [2016] HCJAC 122 |
| Court | High Court of Justiciary |
| Date | 09 December 2016 |
| Docket Number | HCA/16-2 |
| Published date | 09 December 2016 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 122
HCA/16-2/XM
HCA/16-3/XM
Lord Justice Clerk
Lord Menzies
Lord Drummond Young
OPINION OF THE COURT
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in
BILL FOR CRIMINAL LETTERS
By
(1) JOHN and LINDA STEWART and (2) ALAN and AILEEN CONVY
Petitioners
against
WILLIAM PAYNE
Respondent
and
(1) MATTHEW McQUADE, and JACQUELINE McQUADE and (2) YVONNE REILLY
Petitioners
against
HENRY CLARKE
Respondent
For the Crown: The Lord Advocate; J Farquharson; Crown Agent
First Complainers: D Bain QC; S Tanner; Digby Brown, Glasgow;
Second Complainers: D Bain, QC; D Forbes; Gildeas, Paterson Bell, Edinburgh
First Respondent: W G Jackson QC, Dean of Faculty; Caffrey, (sol adv);
Fitzpatrick & Co, Glasgow
Second Respondent: J Scott, QC, (sol adv), Guarino, (sol adv); The Glasgow Law Practice, Glasgow
9 December 2016
Background
[1] These are two Bills for Criminal Letters which were heard together. For the sake of convenience they will be referred to under the name of the respondent in each case.
William Payne
[2] On 17 December 2010 in North Hanover Street, Glasgow, William Payne was driving a Range Rover vehicle, registered number H18 HEX when he suffered a vasovagal episode causing him temporarily to lose consciousness and rendering him unable to control the movement or direction of the vehicle. The vehicle mounted the pavement and struck Mhairi Convy and Laura Stewart, causing them injuries from which they died. A further pedestrian, Mark Hopwood, was injured. In March 2012 the Crown intimated to the complainers its decision to take no criminal proceedings against the respondent in respect of section 1 of the Road Traffic Act 1988. The basis upon which the Crown took that decision was that there was insufficient evidence in law to justify such proceedings. In publicly confirming that decision the Crown stated that:
“In order to bring a criminal prosecution the Crown would need to prove that the driver knew that to drive on the day of the incident was to do so in the face of a known and obvious danger – that he was liable to lose consciousness while driving that morning.
Following consideration of all the evidence Crown counsel has concluded that the Crown cannot prove this and as a result has instructed no proceedings.”
The decision was not communicated to the respondent.
[3] In January 2016 a Bill for Criminal Letters was presented on behalf of the parents of each of the deceased seeking authority to prosecute the respondent in terms of sections 1, 1A and 2 of the Road Traffic Act 1988 or alternatively at common law for culpably and recklessly driving the vehicle, causing the deaths and injuring Mark Hopwood.
[4] The complainers allege that on the date of the accident the respondent was driving:
“in the knowledge that for the period between 25 December 2007 and 17 December 2010, both dates inclusive, he suffered from unexplained dizziness and multiple episodes of loss of consciousness (“blackouts”) without provocation, warning or prodrome and consequently had a medical condition that made it unsafe for him to drive.”
[5] The basis upon which they advance the assertions in the charge will be apparent from the submissions recorded below, but it essentially lies in averments as to the respondent’s medical history involving prior instances of loss of consciousness, his failure to seek advice about driving or to disclose his history to DVLA, the contents of a police interview and the inferences which, according to the complainers, may be drawn from this evidence as to the state of his knowledge about his condition. The complainers also seek authority to bring two further charges, one in terms of section 174(1)(a) of the 1988 Act in respect of knowingly making false statements for the purpose of obtaining a licence and a further charge under section 94(3) of that Act for failing to notify the Secretary of State in writing of a relevant disability.
[6] The complainers aver that there is a sufficiency of evidence which would entitle a conviction to be returned on the charges set out, that the evidence is of apparently sufficient strength to demonstrate reasonable prospects of conviction, and that there are special circumstances existing such as to warrant the granting of the bill. They further aver that the Crown has erred in its analysis of the evidential requirements for the statutory offence of causing death by dangerous driving.
[7] The complainers assert title and interest in respect of all of the charges. The respondent concedes title and interest in relation to the primary charge only. He asserts that there is insufficient evidence to justify proceedings, and that in any event there are no special circumstances to justify passing the bill. Furthermore, it would be oppressive and a breach of the respondent’s article 6 rights to do so having regard to (a) excessive delay in proceeding; (b) prejudicial publicity and (c) oppressive actings by the complainers.
[8] The Lord Advocate has refused his concurrence to the bill. He disputes title and interest in respect of the second and third charges only. He asserts that there is insufficient evidence to establish beyond reasonable doubt any of the charges set out in the bill and that esto such a sufficiency exists there are no special circumstances justifying passing of the bill.
Harry Clarke
[9] On the afternoon of 22 December 2014, John Sweeney, Lorraine Sweeney, Erin McQuade, Stephanie Tait, Gillian Ewing and Jacqueline Morton were all pedestrians on Queen Street, Glasgow, when they were struck and killed by a Glasgow City Council bin lorry driven in the course of his employment by the respondent. The respondent had lost consciousness, as a result of which the lorry mounted the pavement and hit the pedestrians. A further 15 pedestrians were injured as well as two members of the lorry crew.
[10] On 25 February 2015 the Crown Office and Procurator Fiscal Service issued a public statement renouncing the right to prosecute the respondent. The reasons were subsequently elaborated on in a statement posted on the Crown Office website which stated:
“In order to prove death by dangerous driving, the Crown requires to prove that the driving fell far below what would be expected of a competent and careful driver and it would be obvious to a competent and careful driver that driving in that way would be dangerous.
As the driver was unconscious at the time he was not in control of the vehicle and did not have the necessary criminal intention, unless it could be proved that it was foreseeable that he would lose consciousness whilst driving that day. In the words of the statute (the Road Traffic Act 1988), regard should be had to whether he was aware or could be expected to be aware that he had an ongoing condition which rendered it unsafe to drive that day.
Crown counsel considered that there was insufficient evidence that it was foreseeable that he would lose consciousness whilst driving that day”.
[11] On 5 January 2016 a Bill for Criminal Letters was raised in the name of the relatives of Erin McQuade, John Sweeney and Lorraine Sweeney. The bill seeks authority to prosecute the respondent on a charge under sections 1, 1A and 2 of the Road Traffic Act 1988 or alternatively for the common law offence of culpably and recklessly driving the vehicle on the date in question and causing the deaths of the pedestrians. The complainers assert that the respondent drove:
“dangerously in the knowledge that for the period between 30 June 1976 and 22 December 2014, both dates inclusive, he suffered from dizziness, vertigo, vasovagal attacks, blackouts and in particular had suffered a loss of consciousness behind the wheel of a bus on 7 April 2010 without warning or provocation and consequently had a medical condition that made it unsafe for him to drive.”
[12] The basis upon which they advance the assertions in the charge is set out below, but it essentially lies in averments as to the respondent’s medical history, his failure to disclose that history in job applications and to DVLA, his alleged misrepresentations as to that history, his post-collision actings and what, according to the complainers, may be inferred from this evidence as to the state of his knowledge about his condition. The complainers also seek authority to bring further charges against the respondent, namely: 6 charges of contravening section 174(1)(a) of the 1988 Act (in respect of statements made on separate occasions, two of them occurring after the fatal collision); three charges of obtaining employment or promotion by fraud; and a final charge (11) under section 2 of the 1988 Act, alternatively of culpable and reckless driving, on 20 September 2015.
[13] The complainers aver that there is a sufficiency of evidence which would entitle a conviction to be returned on the charges set out, that the evidence is of apparently sufficient strength to demonstrate reasonable prospects of conviction, and that there are special circumstances existing such as to warrant the granting of the bill. They further aver that the Crown has erred in its analysis of the evidential requirements for the statutory offence of causing death by dangerous driving.
[14] The complainers make averments in relation to title and interest in respect of all of these charges. The respondent concedes title and interest in relation to the primary charge but disputes title and interest in relation the remainder. The relevance of charges post-dating the fatal collision is disputed. It is averred that in any event charge 11 is the subject of live proceedings at the instance of the Crown. The respondent asserts that there is insufficient evidence to justify proceedings, and that in any event there are no special circumstances to justify the passing of the bill. Furthermore, he avers that it would be oppressive to pass the bill having regard to (a) excessive delay in taking...
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