9 February 2016

Carmichael: The Saga Ends

And that, as they say, is that. Barring any unexpected developments, yesterday decision by Lady Paton and Lord Matthews on liabilities for legal expenses brings the Alistair Carmichael election petition saga to its conclusion. In the National this morning, I have a wee reflection on the whole enterprise, and its various twists and turns. An excerpt:

"IT seems apt that the last act in the long-running Carmichael election court drama should take you by surprise. 
The ordinary position in law is that “expenses follow success”: the loser pays. But during its many twists and unexpected turns, the fate of this election petition has been anything but ordinary. Starting from a small, improbable place, it has been quite the saga. Expectations, upended. Outcomes, surprising everyone. New precedents – legal and political – set. 
On the May 23 last year, in the aftermath of the General Election, a confession finally having been coaxed out of the former Secretary of State, I sat down to write what I thought would be a mischievous, hypothetical blog. “Is Carmichael vulnerable to an election petition?”, I asked. Having alighted on this little-known and little-understood corner of election law, I concluded that it might – just might – be worth a punt. 
But I didn’t expect anyone to play Don Quixote, and to brave the costs and the uncertainties of litigation to put Carmichael in the witness box and this speculative legal theory to the test."

You can read the whole piece here.

5 February 2016

"On HM Advocate v Charles Green, Craig Whyte et al..."

I'm not a football man. I have no team. I have never been to a football match. I have no intention of extending the frontiers of my experience in this regard. But I am interested in law, and in free speech, online media, and fair trials. 

In the life of this blog, legal issues and football have seemed increasingly to converge. From the Offensive Behaviour Act, tax obligations, paid and unpaid, defamation threats and insolvency events -- legal curiosity is increasingly pulling me into the wacky world of the SFA and SPFL and the various legal ructions which have gripped them and their members.

But approaching us is the trial to beat them all. Former Rangers heid neeps Charles Green and Craig Whyte have been indicted for a range of offences, along with lawyer, Gary Withey, and Duff and Phelps administrators David Whitehouse, Paul Clark and David Grier. Today brings news from a preliminary hearing in the High Court that a number of charges against these men have now been deleted from the indictment. To suggest this case will provoke public interest and comment qualifies for the understatement of the legal year. If the indictment pours oil on troubled waters; the trial will follow it with a lit match. 

Forums, facebook, twitter, online comments on blogs, articles and website: if it was possible, this criminal trial will turn up the heat on the already boiling cauldron of feeling and opinion which is Scottish football. And that has its risks. Not only for the chances of these men receiving a fair trial on the evidence - which should concern us all - but also for any armchair advocates and prosecutors and defenders, who think the public would benefit from their insight into the case.

Which, perhaps, makes this a useful moment to flag up one or two important things which anyone with a keyboard and an opinion, or a broadcasting job and a desire to remain unfined and out of prision, would be well-advised to bear in mind. The trial of these men is covered by the Contempt of Court Act. Proceedings are active. And Scots judges - at least historically - have been credited with a no-nonsense attitude to applying the Act's restrictions on what you can and cannot publish. In the old days, you could count publishers on your fingers. Today, anyone with an iPhone qualifies. 

And you hear dark rumblings coming out of the Crown Office these days, that senior prosecutors in Scotland are getting tetchy - tetchy with certain well-known tabloid newspapers, flying remarkably close to the wind in their reporting of criminal cases - and tetchy with the opinonated world of folk online, breenging in a prejudicial way into active criminal cases. You hear talk of salutary examples being made, pour encouragers les autres.

Which makes the Rangers fraud case a perilous but fascinating thing for media big and small, professional and amateur. Let's put it this way. Given the issues and characters involved, if the Scottish media, and the easily agitated world of online comment, escapes the Rangers fraud case unscathed by contempt, it'll be a miracle. 

Make no mistake: the lawyers for the accused will be taking a keen and constant interest in what goes on on in the pages of the press, in blogs, on twitter, and in forums. As the criminal case is ongoing -- none of this scrutiny will leak into the public domain. The judge will deal with it in the absence of the jury, but if you fall foul of  the court's attention, you may well find yourself appearing to explain yourself, and mumbling your explanations. 

The days of court specialist reporters in the media are long behind us. This job seems likely to end up the responsibility of the sports desk. And all it will take is one careless reporter, filling in, despatched to the High Court, out of their element, rusty on the rules, to say something spontaneous and silly on the radio or on telly. Or, equally probably, it'll be wee feature piece with a glancing reference to the accused, which isn't legalled, and is thoughtlessly published, only for its potentially prejudical impact to become clear. And bingo. Contempt. 

Perhaps the journalist will refer to legal argument heard while the jury are out of the room. Perhaps they'll allude to evidence the judge has excluded. Perhaps they'll speculate on guilt or innocence of the accused, or criticise the credibility and persuasiveness of some witness or piece of evidence. Whatever it is, there'll be embarassing explanations to be made and an irate judge to placate. I hope this doesn't occur. I don't want to see anyone - professional hack or amateur commentator - hit with a prison term or a fine. But in the current environment, it seems all too probable. 

So what are the rules? Any conduct - any comment - any commentary - any tweet - which tends "to interfere with the course of justice in particular legal proceedings" is a contempt of court, "regardless of intent to do so." This catches any comments which create "a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced." Your social media reach matters, but if you have any kind of audience, don't kid yourself. You aren't a world away from STV or the Daily Record, and you can't expect the judiciary to treat you as such.

You are protected if you are offering only a "fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith." Publications "made as or as part of a discussion in good faith of public affairs or other matters of general public interest" are also not treated as contempts of court "if the risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion". But if you breach that? The maximum penalty under the Act is two years in prison or a hefty fine. 

So don't kid yourself. Journo or punter, superfan or utterly indifferent to soccer: this isn't America. This isn't a free for all. Duly warned.

2 February 2016

Schrödinger's womb

I've been traipsing after Michael Gove in his various - sometimes curious - parliamentary appearances on the proposed abolition of the Human Rights Act. The Tories are in a bit of bother. Mopping up after the majestically incompetent predecessor Chris Grayling, the new Lord Chancellor has the thankless task of marshalling the Conservatives' jury-rigged proposals to abolish the HRA - and to replace it with a British Bill of Rights - into some kind of defensible public shape. 

This morning, he was explaining himself to Helena Kennedy's EU Justice subcommittee in Westminster. And what remains clear after today's session is: devolution remains a big problem for the UK government's HRA repeal policy -- amongst many others

In June last year, Gove told MPs that "in this United Kingdom Parliament, human rights are a reserved matter." He has been rowing back on that decisive statement ever since. In December, he told the Lords Constitution Committee that human rights was "neither reserved nor devolved".

As Helena Kennedy recognised from the chair this morning, "one of the really tricky issues around all these discussions is connected to devolution." Is Holyrood's consent - and the consent of the Cardiff and Belfast - required either to abolish the Human Rights Act, and to introduce any British Bill of Rights? Former Met commissioner, Ian Blair, took up this line with Gove this morning.

Blair: "Some of the evidence we have received from some of the members of the devolved institutions has been really rather surprising. Quite striking. One that I will particularly quote from is from the member of the Scottish parliament, Mr Biagi, who made it absolutely clear to the committee that in his opinion - and in the opinion of his party - human rights legislation is not a reserved power. And as far as I can see, it is either a reserved power, or it is a devolved power. 
But that is not the position I think you took in front of the Constitutional Affairs Committee in December. And it is not the position that those bringing forward and through the House of the Scotland Bill took. 
But none of us - I think - can understand how it can be neither reserved nor devolved - which makes you feel a little bit pregnant. I mean, it is just not possible. It is either reserved or devolved. So -- my question to you is: do you agree that the consent of the devolved parliaments would be required for an application of -- for the introduction of -- a British Bill of Rights to devolved regions?" 

So what did the Lord Chancellor reckon? Gove doubled down on his strange formulation from the Constitution Committee last December.

Gove: "It is neither reserved nor devolved. But it is the case that any reform or change to the Human Rights Act is a matter for the Westminster parliament. The application of human rights is a matter for Scots courts and indeed, for the Scottish executive -- Scottish government. Within that, so -- um, um,-- it might be -- if you could imagine the state of permant pregnancy, then that's what we have. As for consent, we will consult on what we think is the best way of involving all the constituent parts of the United Kingdom in understanding the case for rights reform. But I wouldn't want to prejudge at this stage exactly how we might  do so."

So. Um. There we have it. "Permanent pregnancy." According to the Lord Chancellor, human rights are the Schrödinger's womb of British politics. If you are prepared to read between the lines of what Gove is trying to say --  you can detect a pretty hazy rendering of the argument I put here. Ish. Just about. If you squint, and peer through the bottom of the milk bottle. Gove's performance today underscores the point. In contrast with the Scottish government's straightfoward legal view - the Sewel convention is engaged by repealing and replacing the Act - the UK government remains in an awful guddle. And if this morning's Lords drubbing is anything to go by, it'll take all of his cunning to free the Lord Chancellor from devolution trap his government has unthinkingly blundered into.  

Pressed on whether or not the outcome of this process might not be an English, rather than a British Bill of Rights, Gove continued:

"I would hope that there would be a British Bill of Rights. But the one thing I will concede is that while I have many friends -- and there are many people who I admire in the Scottish National Party -- it is nevertheless the leadership of the Scottish National Party might want -- if you can imagine such a thing -- to view this exercise through a party political lens. Certainly, in the run up to the Scottish parliamentary elections. I hope we can encourage them to resist that temptation."

Temptation indeed. Heaven forfend.

Questions, questions

It is a finnicky detail, but an important one. Today, Kezia Dugdale has announced that Scottish Labour wants to increase income tax by 1 pence in the pound across all tax bands. Under the scheme, anyone earning over £10,600 or so will find themselves making a greater contribution to the Scottish exchequer. Wealthier folk considerably more. 

From a legal point of view, this is entirely in order. Under the Scotland Act 2012, Holyrood sets a single Scottish rate of income tax to be paid by Scottish income taxpayers. So how does it work? Under the 2012 Act, you take the UK tax bands determined by Westminster and knock 10% off them. Holyrood has the discretion to add a single supplementary Scottish rate over and above this, which applies to all bandings. To add 11% to the upper rate of income tax, MSPs have got to add 11% to the basic rate too. 

Notice a few important things which the 2012 Act doesn't let MSPs do. They've no control over (a) the extent of the tax free personal allowance (b) the number of tax bands in operation (c) when these bands kick in and (d) obviously cannot - at present - increase only the upper rates of taxation. But importantly, the Scottish Parliament also cannot introduce additional forms of tax relief into the code, or add permissible deductions or provision for rebates to the HMRC rules, even for Scottish taxpayers. Nothing in the Scotland Bill, before Westminster, will change any of this. For the moment, all MSPs can do is move the overall income tax slider up or down.  

This is why I'm more interested in Scottish Labour's attempt to sweeten the bitter pill of making even those on very modest incomes pay more tax, by promising the following:

“We would establish, with local authorities, a £100 annual payment to the boost the income of low paid taxpayers. This will account for just £50 million of the half a billion pounds this change will raise but will mean that we can boost the incomes of low paid taxpayers.”

Labour are defining a "low paid taxpayer" as "taxpayers" earning less than £20,000 a year. They suggest "one in five tax payers will end up better off financially" for the modest expenditure of £50,000,000 a year. The Guardian and Daily Mail characterise these payments as "rebates" for the low paid. The Daily Record calls it "cashback." Kevin Hague calls it a "refund", though Kevin rightly stresses that "the precise mechanics of how this would work are unclear". The BBC and Holyrood magazine characterise the proposal as a "payment," but offer nothing more by way of detail than Labour's press release summary.  

So what might the legal mechanics of this critical element of Kezia Dugdale's platform be? Let's be clear about a few things from the get-go. Firstly, and as-per-ruddy-usual, the Scotland Act doesn't provide a straightforward legal mechanism to realise Scottish Labour's ambitions. Holyrood has no authority to order HMRC to fork over a £100 repayment to those earning less than £20,000 gross salary per annum. This is so, even if the Scottish Government is good for the money it would cost and willing to pay the funds. This will remain so, even after the Scotland Bill comes into effect.

Holyrood has no legislative competence to introduce such a scheme, as "taxes and excise duties" remain - broadly - reserved. So this is no "rebate", no "tax refund". And critically, it couldn't be administered through the tax system, with all of its convenient access to the financial information of hundreds of thousands of Scots. 

Although is - doubtless - convenient political shorthand for Dugdale to link the two, what the Labour leader is proposing here is an entitlement scheme quite distinct from Holyrood's decision-making on the Scottish rate of income tax. Such a payment seems to fall within the - generally reserved - domain of social security. This is defined as "schemes supported from central or local funds which provide assistance for social security purposes to or in respect of individuals by way of benefits,"

“Benefits” here is defined as including "pensions, allowances, grants, loans and any other form of financial assistance." And providing assistance for social security includes "providing assistance to or in respect of individuals ... who qualify by reason of low income." Although Scottish Labour want to dress this up as a rebate or a refund -- it bears all the hallmarks of a social security benefit. If the Scotland Bill passes and comes into force, section 26 should lend Kezia a hand, but until that day, it isn't clear how Dugdale can bring her £100 payments about. The timelines for realising these powers may, or may not, neatly splice with the tax hike she is proposing. 

And because this isn't a tax repayment, there are obvious wider practical implications worth considering. Labour indicate that local authorities will shoulder the burdens of adminstering this policy (so no universal credit supplement, this). So how is it envisaged local authorities will collect the relevant financial data on potential beneficiaries? A "rebate" might suggest a convenient calculation, completed automatically by the taxman's computer, which coughs the cash directly into your bank account. But local authorities don't have this data. Will the low paid be expected to take the initiative to make some kind of local government tax return to establish their eligibility? 

And thinking of that, have administrative costs been factored into Scottish Labour's £50 million estimated costing for this policy, or is this simply an estimate of the total cash which those earning under £20,000 will be entitled to? If these figures don't include administrative costs, why not? And if they do include administrative costs, what data are these calculations based on? What assumptions have been made about the number of individuals eligibile? What's the breakdown? 

One reason why you might struggle to tell me that is that you're still a little fuzzy on who will, and who won't be, entitled to this £100 benefit. In which case, that £50 million estimate looks even shooglier. HMRC estimates that around 2.56 million Scots pay some income tax, the overwhelming majority at the basic rate. Are those earning less than the personal allowance (£10,600 in 2015/16) being classified as "taxpayers" in this scheme, entitled to an annual £100 supplement, along with those who earn £15,000? Pensioners, students, weans? Or will only those who cross the threshold of the personal allowance see the supplementary £100? But even if we're only talking about these taxpayers, making 512,000 people wealthier while taxing them more might seem a difficult circle cheaply to square.

Not insuperable hurdles, then. But questions, questions.

27 January 2016

Harry Clarke: "insufficient evidence in law to prove a crime committed"

I've written a greal deal about the legal fallout from the tragic crash in Glasgow on the 22nd of December 2014, which claimed six lives. Regular readers may feel I've exhausted my arguments. I probably have.

But I wanted to add a brief word or two here about today's tidings: that the Lord Advocate has declined to extend his concurrence to the two bills of criminal letters which were placed before him, the one emerging from the bin lorry crash, the second from a separate and sorrowful incident in Glasgow, involving the deaths of two young ladies in similar circumstances to the better known 2014 tragedy. 

First, a technical point. As I explained here last week, this isn't the end of the story for the Sweeney and McQuade families. The Lord Advocate gets the first look at a bill of criminal letters, but he doesn't have the last word on its success or failing. This is reserved for the High Court of Justiciary, which will now presumably hear argument about why the families have title and interest to take Harry Clarke to law, and a relevant indictment against him, which is supported by sufficient evidence. They will also have to persuade senior judges that there are "exceptional circumstances" to justify departing from the general principle that decisions are taken in the public interest by a politically-independent prosecutor, on the basis of the evidence. 

Frank Mulholland will be represented at this hearing, as, presumably, will Harry Clarke. It remains unclear quite how Scotland's senior prosecutor will approach the case. In Carol X, the Lord Advocate of the day felt he couldn't concur with the application for a private prosecution, on the basis that he had sent letters to the two accused, telling them they wouldn't be tried. But Lord Mackay of Clashfern didn't actively oppose Carol X's motion before the High Court in the 1980s. Given his public comments on the case, will Mr Mulholland take the same stance? Can he credibly do so? I have my doubts. 

Explaining his decision today, the Crown Office spokesman explained “the original decision not to take criminal proceedings was made on the basis that there was insufficient evidence in law to prove that a crime had been committed and that position remains unchanged.” 

There is likely to be a public outcry if the Crown vigorously opposes the family's motion, but if this private prosecution goes ahead, that arguably places the Crown's reputation in the greater jeopardy. Public opinion remains in the grip of an understanding of the case which is sharply at odds with the evidence. And a vengeful mood sells papers. Mulholland cannot ride the populist side of public opinion in this case, and keep his prosecutor's soul. He can now only chose the least worst option, from a cynical, public relations point of view. 

The Crown have sometimes struggled to explain their decision in the Harry Clarke case. It is complex. The facts are knotty. The fatal accident inquiry was ongoing. And everyone hates lawyers. I do think these questions of culpability and punishment are nuanced things reasonable people can reasonably disagree about. But there is nothing duller, or more predictable, than the inevitable "lawyers are cold bastards, unlike me with my plain goodhearted ignorance of the actual facts" schtick.

The facts about Harry Clarke's medical condition, what he knew about it, and the very limited consequences of his dishonest, hardly impinge on the public consciousness at all, however much I harp on about them. But there it remains. There is no medical evidence Harry Clarke "ought to have known he was not fit to drive." And even if he had been honest, the evidence shows he would have retained his licence by 2014, after a nominal suspension. These essential have gone unreported in almost every newspaper and broadcaster's bulletin. Perceptions of reality have been shaped accordingly.

This is one of those predicaments where the Crown Office cannot win. They can only do the right thing in the teeth of public opinion. In declining to prosecute Harry Clarke for death by dangerous driving, or homicide, it seems to me that they've only followed the evidence, and done their duty.

22 January 2016

Scottish Times

In the interests of shabby self-promotion -- as some of you may have noticed from recent punts on social media, the Scottish edition of the Times has been carrying a few bits and pieces from me of late, most recently a fairly critical, godless look at the emergence of the new anti-abortion group, Don't Stop a Human Heart, and the ailing and somtimes unappealling Scottish religious institutions which have given it birth. 

I've also contributed pieces on the raw, unglamorous perseverance which lies at the heart of the SNP tradition and an extremely uncharitable look at the late, great Secretary of State for Scotland. On a personal basis, this is a splendid opportunity to inflict my outlook and preoccupations on part of the Scottish population which has largely escaped the experience before. You might also think it no bad thing, that the Thunderer north of the Tweed is making a little space for a pro-independence, Nat-sympathetic voice.

I'll be giving my pieces a shameless nudge on Twitter and on the peaty Facebook page. There is always the paywall of doom to contend with, but if you are interested, you can always - in the timeworn phrase - buy a paper.

21 January 2016

Harry Clarke: in the dock?

News this morning that the families of Erin McQuade, and her grandparents Jack and Lorraine Sweeney, have submitted a bill of criminal letters to the Crown Office. The long-promised private prosecution of Harry Clarke has begun. Various outlets have the story, though the precise charge sheet remains a little hazy. 

The Times "understands that Mr Clarke could be accused of causing death by dangerous driving, culpable and reckless conduct, and fraud" but the full text of the proposed indictment hasn't be published. So how is this all going to work? What next? And who decides?

First, let's rehearse the ritual notices. We aren't quite in unexplored legal territory here, but as every commentator is statutorily obliged to point out, private prosecutions come along once in a blue moon in Scotland. This is an unusual procedure, involving unusual and unclear rules, with which even hardened criminal practitioners are unlikely to be familiar. As a result, making predictions about how the court will handle this application is also difficult. This is a case which will very much turn on its own facts. What we can do, however, is say something intelligible about the principles the courts will take into account in deciding whether or not to give these families permission to put Mr Clarke in the dock. 

So how will it be decided? The Lord Advocate gets a first look at the bill of criminal letters, but he doesn't get the last word. Procedurally, Clarke, the families and the Lord Advocate will now appear before the High Court of Justiciary, probably before three senior judges, if past practice is any guide. The court will hear legal argument and will either pass the bill of criminal letters, or refuse it. If the judges pass it, and the families find a mechanism to fund their case, Clarke will be set down for trial on the indictment they've presented. But if the judges struggle to see this case as "exceptional", and refuse the bill, the matter ends there. The long trial of Harry Clarke will be over.

The notorious Carol X case from the 1980s sets out the groundwork of legal rules judges will apply.  First, a bit of background. In that case, prosecutors dropped a rape prosecution, out of anxiety for the mental wellbeing of the complainer. Without her evidence, there was no case. In echo of Harry Clarke's experience, the Lord Advocate then sent letters to the two men, indicating that they would not now be prosecuted for the offence. The effect of these letters was pretty drastic. They deprived the prosecutor of the right to bring any proceedings against either of these two men in court. The Lord Advocate's undertakings couldn't be recalled; the courts wouldn't allow it.

But then? Then, Carol X's mental health improved. She remained determined to prosecute the men who had attacked her, and a private prosecution was the only way around the Crown Office's letters. In view of his undertakings to the two accused, the Lord Advocate of the day felt he couldn't grant his concurrence to Carol X's Bill, but prosecutors didn't actively oppose her action before the court. Some of you may remember the final chapter of this tale. The story gripped the Daily Record for months. Carol X secured her criminal letters from the court. Her attackers were prosecuted, convicted and jailed.

So what about Harry? First thing's first. Given his trenchant remarks after Sheriff Beckett's fatal accident inquiry, there seems like a snowball's chance in hell the Lord Advocate will concur with the families on any dangerous driving or culpable homicide charge. They gave Mr Clarke an undertaking he wouldn't, couldn't and shouldn't be prosecuted. You wonder if, in view of public feeling, the law officers might be tempted to concur with fraud charges against the bin driver, but for reasons I'll come onto in a moment, it isn't entirely clear that the Sweeney family have an interest in punishing frauds committed against other people. The Lord Advocate's view isn't decisive, but the court will surely take it into account. But beyond that, I think there are arguably four key things to look out for in the Harry Clarke case. 

1.  Do the families have title and interest to prosecute?

Having drawn up a specific charge sheet and laid it before the court, what then? Firstly, the private prosecutors have to show that they have "the necessary title, and has qualified the necessary interest, to prosecute privately." What does this mean? Like any other legal action, here the families will have to show that they have sufficient legal interest in the matters before the court. You can't sue a landlord because she is unpleasant to your friend, their tenant. You can't take a man to court for a personal injury he has inflicted on an aquaintance. 

The same goes for a private prosecution. Carol X's title and interest in prosecuting her attackers was beyond dispute. She had been the victim of a horrific and violent sexaul assault. But sometimes title and interest may be less clear, depending on what precisely you're prosecuting. The Sweeney and McQuade families have an obvious and overriding interest in a death by dangerous driving charge. The loss is theirs. Reckless endangerment too, probably. But what interest would they have in prosecuting a paper fraud committed against the DVLA, or Glasgow City Council, or First Bus? This seems far shakier. It seems like a technical point, but it might become an important one.

2.  Is there evidence in support of relevant charges?

Next, the families will have to present the court with sufficient evidence to prove there is a prima facie case, sufficient to justify bringing Harry Clarke to trial for the offences identified in the bill of criminal letters. Again, all this has to be specific. Named offences, chapter and verse. This, I imagine, shouldn't be terribly tricky, depending on the charges laid at Mr Clarke's door.

3. But are there "very special and exceptional circumstances"?

And if these two tests are satisfied? Then the families will have to persuade the court that there are "very special circumstances which would justify us in taking the now exceptional step of issuing criminal letters at the request of a private individual" in this case. What are those circumstances? In Carol X, there had been a clear and material change in the complainer's wellbeing. The crown accepted that there was a sufficiency of evidence and a prosecution would be in the public interest. The underlying crime was appalling, harrowing. The circumstances were complex and unusual.

But here? Here, the crown say nothing which emerged from the FAI surprised them. They knew the extent of Mr Clarke's dishonesty. They understood the evidence about his medical condition. And they concluded that Clarke's actions weren't intentional, and they weren't criminally reckless. Prosecutors maintain that view now. So what's changed? As if to underline the point, today has seen a second bill of criminal letters submitted to Frank Mulholland, involving another motoring catastrophe which claimed the life of two young women in Glasgow in 2010. Sad. Horrific. But "very special and exceptional?"

Carol X was, in the words of Lord Justice General Emslie, a "quite exceptional case." It is far from clear that McQuade and Sweeney v. Harry Clarke meets that high hurdle at all, whatever charges they hope to bring. On the other hand, this is not the 1980s. The deference extended to the crown office decision-making is not, perhaps, what it once was.  

4.  And would allowing a prosecution be oppressive?

Lastly, the court will almost certainly be invited to consider whether it would be oppressive, to allow Harry Clarke to be tried. In Carol X, the two accused - unsuccessfully - argued that "the widespread publicity about this case ... in the Press, on television, on radio, and in Parliament itself, has made it impossible for the respondents at any time to obtain fair and impartial trial anywhere in Scotland." 

Very similar considerations apply here. The accident, its aftermath, and the FAI, have been subject to wall to wall coverage. Much of it has been shrill, accusing, overtly partisan. Inconvenient facts emerging from the FAI which portrayed Mr Clarke's actions in a more sympathetic light received next to no column inches. How many potential jurors know there was no evidence Harry Clarke "ought to have known he was not fit to drive"? Sod all, I reckon. But who could forget "Harry's 170 insults to the dead"? As I've written, time and again, here and elsewhere, Mr Clarke's actions are not admirable. They have had tragic consequences. But this has been an affair of tar and feather. That may weigh with the court.

So will Harry find himself in the dock? Or will he escape criminal liability? Some movement today, but still far, far too early to say.