Six people died when Mr Harry Clarke apparently blacked out when driving a bin lorry in Glasgow on 22 December 2014. The Crown Office, which is responsible for prosecutions in Scotland, has decided not to prosecute, on the grounds that “It is clear on the evidence at the time that the driver lost control of the bin lorry, resulting in the tragic deaths, he was unconscious and therefore not in control of his actions. He did not therefore have the necessary criminal state of mind required for a criminal prosecution.”
Relatives of the victims are pressing for a private prosecution. As a result, Mr Clarke has refused to answer several important questions at the Fatal Accident Inquiry, because of the risk of incriminating himself. When a private prosecution is brought, it may be taken over by the prosecuting authorities, and if the accused is found guilty he could receive a criminal conviction and a punishment, including prison. The accused has therefore a strong incentive to try to avoid conviction. He has also refused to apologise, presumably on the grounds that that could amount to an admission of guilt. The possibilities are therefore that either he is convicted, with or without answering the questions to which the relatives want answers, or that he is acquitted for the reasons advanced by the Crown Office, leaving the relatives still without answers, having endured the stress of the trial.
There is another possibility: if the victims’ relatives wanted, a restorative meeting could be arranged with them and Mr Clarke, provided he was willing; and he would have reason to do so since it would give him the opportunity to give his version of events and very likely to apologise since by doing so he would not be exposed to the risk of punishment. Experience shows that meetings of this kind encourage both sides to feel empathy for each other, although of course this cannot be guaranteed. It is possible that the offender will offer to make amends in a tangible way; the pain of remorse may take the place of pain imposed by the criminal justice system. The consequences could be much broader than punishment, including not only actions by the offender to make reparation, but actions by the authorities to safeguard against similar events in future.
It is also possible for him to be prosecuted, and a restorative meeting offered during or after his sentence; this carries the risk that he would deny or excuse what he had done, to try to evade the punishment, and might succeed in doing so; this would undermine the subsequent restorative process.
It is not for us observing from a distance to advise the victims about how to respond, and certainly not to place on them any expectation of forgiveness. It is possible that without the threat of punishment the offender will feel able to express the empathy that he feels, and that this will be helpful to the victims. The restorative process enables victims to express their pain and suffering to the offender face-to-face. The pain of remorse is of a different kind, and perhaps greater than what can be imposed by the criminal justice system. The emergence of RJ shows that they should be offered another choice between prosecution followed by conviction and punishment, and acquittal followed by no further formal action.