There has been much publicity lately surrounding the Fatal Accident Inquiry into the tragic Glasgow bin lorry crash last Christmas.

The QC representing the family of one of the victims has confirmed that her clients wish to seek a private prosecution against the driver of the lorry, Harry Clarke. I think however, it will be extremely difficult for the family to succeed with this procedure.

To put the issue in perspective, there have only been two successful private prosecutions since the turn of the last century. One was in 1910, involving fraud. The other, in which I was involved, was called the “Carol X” case in 1983. Carol had been raped but the Crown Office decided not to proceed with a prosecution as they thought her mental health would not withstand the trial. Carol disagreed, a private prosecution proceeded and the accused were convicted and imprisoned.

Why is it so difficult to succeed with a private prosecution? Well, for a start, it is normally necessary to obtain the consent of the Crown Office.  This is rarely granted, which is hardly surprising considering their decision not to proceed with a public prosecution in the first place. You then require to obtain the authority of the High Court by way of a procedure called a Bill of Letters. This authority is only granted in exceptional circumstances.

Even if you manage to surmount these two hurdles, you would then have the problem of how to fund the private prosecution. Legal Aid is almost impossible to obtain for this. You can apply for a special grant from the Scottish Government (as happened in the “Carol X” case) but this is equally difficult. Without a form of Legal Aid, the costs would be hopelessly expensive.

For all these reasons, therefore, I fear that the families of the victims will not achieve the result they are seeking.

There is, however, another avenue which they may wish to consider. It is possible to obtain Legal Aid to raise an action for what is called Judicial Review in the Court of Session. Under this procedure, they could challenge the decision of the Crown office not to proceed with the prosecution. They would have to prove however, either that the decision was unreasonable and irrational or that the Crown Office had made a mistake in the law in reaching their decision. I had a similar case back in 2002. I acted for a man who, when a boy, had been sexually abused by a monk at his Catholic school. The Crown Office had decided not to proceed with a prosecution as they thought the monk was too old. We argued, however, that they had proceeded with prosecutions against other monks who were even older. We obtained an opinion from a QC who said that the prospects of success were good and Legal Aid was granted (although, in the end, the client decided not to proceed.)

Perhaps it is time for the Scottish Parliament to change the law to make a private prosecution less difficult. It would be more equitable if there was no need to obtain the consent of the Crown. It might also be better if the application was to a single judge (called a sifting judge) rather than to the High Court. It could also be suggested that Legal Aid is automatically granted if the sifting Judge considers that a private prosecution should proceed.

As the law stands however, it would take a very brave or wealthy client to attempt a private prosecution.