HMA v Henry Clarke

At Glasgow Sheriff Court today, 31 March 2017, Sheriff Martin Jones QC imposed a Community Payback Order and a Restriction of Liberty Order on Henry Clarke after the accused pled guilty to culpably and recklessly driving a motor vehicle to the danger of the public. He was also disqualified from holding or obtaining a driving licence for a period of three years.

On sentencing, Sheriff Jones made the following statement in court: 

“Henry Clarke, I require to sentence you following your plea of guilty at a first diet on 17 February 2017 to a charge on indictment of culpably and recklessly driving a motor vehicle on a public road on 20 September 2015, to the danger of the public by driving your car when you knew that you had, firstly, on 7 April 2010, suffered a loss of consciousness or an episode of altered awareness when behind the wheel of a stationary bus and, secondly, on 22 December 2014, suffered a loss of consciousness when behind the wheel of a moving refuse collection vehicle resulting in the deaths of six members of the public and injury to 15 others. 

By your plea of guilty you accepted you drove that motor vehicle when you knew your licence authorising you to drive a motor car had been revoked by the Secretary of State for Transport on 27 June 2015 for a period of 12 months because you were judged to be medically unfit to drive. In particular, you were well aware that there was a risk of you suffering a loss of consciousness or an episode of altered awareness whilst driving. 

I have been provided with a very full and detailed narrative by the Crown explaining the background to this offence and your detailed medical history. 

In summary your medical condition was thoroughly investigated following the tragic incident on 22 December 2014.  

You were diagnosed with neurocardiogenic syncope which, as was explained to you by your medical advisers, is caused by a drop in blood pressure, quickly followed by faster then slower heart rate resulting in poor blood and oxygen flow to the brain, which results in temporary loss of consciousness.  

In your case the history you provided suggested that you had no prior warning or associated symptoms immediately before the episode on 22 December 2014 which, again as your medical advisers explained to you, made it very difficult to predict whether the episodes will ever recur. 

You have been monitored by your medical advisers since your diagnosis and I am told by the Crown that monitoring will continue for some time to come. 

A Fatal Accident Inquiry into the deaths of the six members of the public on 22 December 2014 was conducted during the summer of 2015 and a determination was issued in December of that year. During that inquiry, you were legally represented throughout.  

Set against that background, shortly before 8:00pm on Sunday 20 September 2015 you were seen by two witnesses getting into the driver’s seat of your white Vauxhall car which you kept parked in the communal parking area outside your home. You were the sole occupant of the car. 

Once in the car you drove out of the car park on to Buchanan Street, Baillieston. They could not see where the vehicle went after that because their view was obstructed. 

Both witnesses were suspicious about your eligibility to drive following the media coverage of the Fatal Accident Inquiry. Because of their suspicions the witnesses conducted some online research and obtained information that your licence had been revoked on medical grounds. 

The matter was immediately reported to the police. 

Between 10:15pm and 10:20pm both witnesses saw your vehicle return to the car park. They saw you park the vehicle in the same parking space and then get out of the driver’s door. You were seen to go round to either the passenger door or the boot of the vehicle and remove some carrier bags from the car before going to your home. 

Although the police arrived about 10:30pm they were unable to make contact with you until 12:30pm on 22 September 2015 when you were cautioned and charged with the offence. You told the police officers that you had never been out on a public road and said that you had just moved the vehicle in the private car park.  

I am told that you drove your vehicle from the residents’ car park at the rear of the block of flats where you live to the front close entrance on Buchanan Street, Baillieston. You say you did that to be closer to your flat so that you could unload some tools.  

I am told that after unloading the items you remained in your flat for approximately two hours and then drove that vehicle back into a car park space at the rear of the property, returned to your flat and retired to bed. You approximated the distance your vehicle was driven on each occasion at between 20 and 30 yards. 

The Crown told me that the police thoroughly investigated to try and ascertain where the vehicle went. They used all means at their disposal to trace any movement of the vehicle by checking public and private space CCTV from local shops and other premises along local routes in the area, where available, but there was no trace of the car. The police also used vehicle number plate recognition software to check for the vehicle on the available CCTV footage again with a negative result.   

Accordingly, the Crown was not in a position to either accept or reject the position being advanced on your behalf. In those circumstances, I have no alternative but to proceed on the basis of the information provided on your behalf as to the extent of your driving that evening.  

My task in determining your sentence is to assess the risk you posed to the public by your driving and I have to accept that while the risk remains significant is limited by the short distances involved in this case. 

I have considered carefully all of the circumstances of this case including the detailed submissions in mitigation of sentence made on your behalf by your solicitor. 

You must understand that the decision you made to drive your vehicle on the road, even for a short distance, was one which was wholly irresponsible and reprehensible. 

It was highly culpable and placed the safety of the public at risk. That was a risk which had been fully explained to you and led to the revocation of your driving licence on medical grounds. 

You must have been acutely aware of the possible consequences of you suffering a loss of consciousness while driving following the tragic consequences arising from the incident on 22 December 2014.  

For all of these reasons I have decided that your conduct takes this case beyond the custody threshold.  

However, as you have not previously been sentenced to a period of imprisonment you enjoy the protection of Section 204 (2) of the Criminal Procedure (Scotland) Act 1995. That statutory provision does not allow me to pass a sentence of imprisonment upon you unless I consider no other method of dealing with you is appropriate.  

In deciding that issue I take into account the basis of your plea of guilty including, in particular, that you drove the vehicle on the road for a short distance, which as I have already said limited any risk to public safety. I have taken into account the information contained in the criminal justice social work report including your personal and family circumstances and that you have no previous convictions. 

Taking account of all of these circumstances I have decided to impose a community sentence as a direct alternative to custody. I impose a Community Payback Order with a supervision requirement for 12 months and an unpaid work requirement for 150 hours to be completed within 12 months. 

You will also be subject to a seperate Restriction of Liberty Order for a period of four months from today’s date. During that period you will be restricted to your home address from 7:00pm until 7:00am each day and will be electronically monitored. 

I also disqualify you from holding or obtaining a driving licence for a period of three years from this date in terms of section 248 of the Criminal Procedure (Scotland) Act 1995.  

I have discounted the sentences imposed and the period of disqualification by 25 per cent because you pleaded guilty at the first diet.  

I appreciate that your licence has now been revoked indefinitely on medical grounds but nevertheless I consider it appropriate to impose a lengthy period of disqualification in the interests of public safety.”