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Private prosecution funding determination

Statement from Justice Secretary Michael Matheson on Legal Aid request.

The Scottish Government have made the following determination in relation to an application for legal aid towards the costs of a private prosecution from the families affected by the Glasgow bin lorry tragedy.

Mr Matheson said:

“Private prosecutions are, and should remain, exceptionally rare in Scotland. However, in light of the unique and special circumstances of this case, which raises fundamental questions that have not previously been tested in case law, Scottish Ministers believe it is in the public interest that all parties are adequately represented.

“As such, Ministers have agreed to make legal aid available for the families of the Bin Lorry tragedy.

“In line with human rights requirements that anybody facing potential criminal prosecution must be legally represented, legal aid will also be made available to the driver of the bin lorry, Mr Clarke, and to Mr Payne in relation to another potential private prosecution in separate case.

“The issue of whether there are exceptional circumstances to justify a private prosecution is a matter for the High Court alone and do not form part of this legal aid decision.

“Responsibility for deciding whether or not to prosecute an alleged criminal case in Scotland rests clearly with the Crown Office which has a strong record in prosecuting crime. The determination is not being made on the basis that Ministers agree that there was any error in law in the decision by the Crown. The Lord Advocate has set out publicly the basis for the decision not to progress a prosecution following the Bin Lorry tragedy.”

Notes To Editors

The upcoming hearing will allow the High Court to consider whether the Bill for Criminal letters raises exceptional circumstances that would justify a private prosecution proceeding.

The determination is not being made on the basis that Ministers agree that the circumstances set out in the application for funding constitute exceptional circumstances - which is clearly a matter for the Court to consider.

These are not matters on which Scottish Ministers have any role to comment. The independence of the Lord Advocate in the system of criminal prosecutions is guaranteed by the Scotland Act 1998.

The determination is made under section 4(2)(c) of the Legal Aid (Scotland) Act, requiring the Scottish Legal Aid Board to make legal aid available for preparation and for the hearing before the High Court to consider the Bill for Criminal Letters. 

The full parliamentary answer on this issue can be accessed on the Scottish Parliament website.


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