21/01/2016 Scotland 2016

More families try to bring a private prosecution

The families of two women killed by a driver with a history

of blackouts try to bring a private prosecution.

And a "deferential culture" at the BBC with "untouchable" stars

allowed Jimmy Savile to abuse for decades.

Mairi Convoy and Laura Stewart died after William Payne fell unconscious

at the wheel of his Land Rover in December 2010.

Today we learned their families will now pursue a private

prosecution against him for their deaths.

It comes after relatives of three of the victims of the Glasgow bin

lorry crash launch their own bid at a private prosecution of driver,

Here's our Home Affairs Correspondent, Reevel Alderson.

Two tragic Rd accidents in Glasgow city centre separated by four years

and are just a quarter of a mile. In December 2010, this range Rover

mounted the curb and killing two young women on a Christmas shopping

trip. The driver, William Payne had collapsed at the wheel. The two

women were killed. Prosecutors decided not to bring charges against

the driver. Four years later, six other Christmas shoppers died when a

Glasgow council bin lorry ran out of control in Queen Street, finally

crashing into a hotel in George Square. Its driver had also

collapsed at the wheel. In the other tragedy, Harry Clarke faced no

charges. Now he and William Payne could be the subject of private

prosecutions. We hope that our girls to lives can be worth something,

just not swept under the carpet. Somebody needs to be accountable and

we think that is the driver. Jack and Lorraine Sweeney and their

granddaughter died in the bin lorry crash. Now the families have lodged

a bill of criminal letters to allow them to prosecute Harry Clarke. The

natural course of justice will be a criminal prosecution. If the driver

is acquitted, the driver is acquitted. The family can thereafter

move on. In six years they can at least say they have done their best

for the parents and daughter they lost. A deserted scrap yard in the

East End of Glasgow where a woman was raped. She successfully brought

a private prosecution, only the second such case last century. There

have been nonsense. The legal hurdles for this sort private keys

are tough. The Lord Advocate must grant concurrence, signifying he is

happy for it to go ahead. If he doesn't, the High Court can still

allowed, is allowing that is a sufficiency of evidence, whether the

case has a good chance of succeeding. The court must also

establish if there are exceptional circumstances to allow a private

prosecution, bearing in mind the Crown has decided not to bring

charges. Last August, the senior prosecutor, the Lord Advocate, told

me why in law the bin lorry driver couldn't be prosecuted. It is quite

clear, there is no dispute, Mr Clarke was unconscious at the wheel

of the bin lorry. He is not in control of the bin lorry, so he

doesn't have the required criminal intention, unless you can

demonstrate foreseeability. What does that mean? It means it must be

foreseeable, in other words, Mr Clarke, as a result of his ongoing

medical condition, must know that he was unfit to drive on that day. The

Crown believed that decision remains correct, but this leading QC says a

case could have been brought against Harry Clarke, but he recognises how

difficult it would be for families to bring a private case against him

or against William Payne. One of the concerns I suspect any court dealing

with this matter will have will beat the floodgates argument, that if you

allow private prosecutions to take place on any kind of regular bases

then the courts, potentially, it could be inundated with people

making such requests. If the High Court decides not to allow these two

tragic cases to proceed, the families will be left with questions

unanswered because neither driver give evidence to the fatal accident

enquiry, fearing it could prejudice any further prosecution.

And joining me in the studio to try and guide us through some of this

are a couple of legal brains, Thomas Ross, President

of the Scottish Criminal Bar Association and the Blogger Law

Lecturer at Caledonian University, Andrew Tickell.

As we pointed out, there are tough legal hurdles for these families to

overcome. Firstly, convincing the man who ruled against a criminal

prosecution that a private prosecution should go ahead, what

are the chances? That wouldn't be fatal. If the Lord Advocate was to

take the view that he could not support a prosecution it would still

be possible for them to petition the court to enable it to go ahead. They

have an uphill struggle in relation to that because the Lord Advocate

has declared publicly that, in his view, there is insufficient

evidence. Is there a conflict of interest in having the Lord Advocate

involved in this decision? I don't think so. He has refreshed look at

this but he doesn't have the last word. This is a decision that will

be taken by judges based on the law and that is quite right. The High

Court can still give the go-ahead if it runs the case as a good chance of

succeeding, what are the chances of that, given the Crown has already

decided not bring charges? It is almost impossible to assess because

the only recent case took place in the 1980s and that was a case where

there had been a procedural mess up and, in short, everyone was

delighted the prosecution should go ahead. There was no counterargument

in relation to God so we are entering new ground so far as the

tests which will be applied by the High Court are concerned. They have

used language such as exceptional and special circumstances and

language of that type. It might be difficult for them to argue that in

the decision by one of the law officers to the effect that there is

insufficient evidence would constitute special circumstances. Is

the case that there are now two private prosecutions running

alongside one another, does that make it more or less likely that the

High Court would ruin these are exceptional circumstances? A good

question. I think the families, the first petitioners might be worried

because the floodgates argument must be in the minds of judges. Here we

have two private prosecutions are being brought forward and as Thomas

said, the person is exceptional and special circumstances.

the families involved in this. Are you convinced that the right

decision was taken in each of these cases? I am not, to be honest, but

the right decision was taken in the bin lorry case, however it has to be

said that the Lord Advocate takes thousands or tens of thousands of

decisions every year and that is the one which has been identified. He

asked 100 one which has been identified. He

haven't seen the bill of criminal matters, but there are many charges

which would cover the allegations which have been made against him.

Also, his interests have to be considered because he has

effectively been given finality by the letter of the Lord Advocate.

There wouldn't have been a lawyer in the country who would have said to

him if he asked for advice at that stage that you may be the first

person in 100 years to be made the subject of the bill of criminal

letters in these circumstances. It is unusual to have two private

prosecutions at the same time. Do you think there needs to be a leak

again at the law in these cases? Is it fit for purpose? It does the

old-fashioned. We have two in a century and two in the course of two

days. It shows you that this will be something in number of aggrieved

families and individuals will look at and think they could do that. It

is something we may have to look at. There we must leave it. Thank you

both coming in this evening. A deferential culture in which stars

were untouchable and managers That's what allowed Jimmy Savile

to perpetrate decades of sexual abuse at the BBC, according

to a leaked draft report of Dame Janet Smith's review

into the former presenter, published by the investigative

website Exaro News. The Director General has described

it as a dark chapter So how did Savile evade

detection for so long? Jimmy Savile, one of the biggest

stars in the country. ADG, TV presenter and charity fundraiser.

For almost five decades he groomed a nation. Jimmy Savile was a sexual

predator who abused children, staff and visitors at institutions all

over the country. The BBC was no exception. In fact, it made him a

star and give him access to victims. Victims like Marion who worked at

the BBC in the early 70s. When she asked Savill for a request on his

radio show, she was invited to his caravan to recorded. I got up to go

and he said, does it deserve a case? I went to kiss on the and suddenly I

was pushed back on the bed and he was on top of me and from somewhere

he put a light out. He was very strong. He pinned me down but he was

slobbering up and down my neck. For more than three years now, Dame

Janet Smith has been investigating the culture and practices at the

corporation during the four decades saddle spent at the BBC. According

to a leaked draft of the review, Southwell committed 61 sexual

assaults, including for rates. These took place in virtually every BBC

premises he worked in, including Glasgow. The report also suggests it

is possible that another predatory child abuser could be lurking

undiscovered in the BBC. Even today. How did Southwell get away with it?

There was a deferential culture at the BBC that meant that people who

worked at the BBC who had some idea or knew what was going on Beard

reporting it to anyone in a senior position and there was a deferential

culture toward stars. They were untouchable. Of course, there were

rumours, many of them. Jimmy Savile himself talked about them to the

journalist Lisa Rowe. It is easy for me to say I do not

like children. That puts a lot of salacious tabloid people off the

hunt. Are you saying that tabloid people do not pursue this is he or

is he not a paedophile line? Yes. Since reports of Jimmy Savile's

abuse became public many people have come forward. The report will be

valuable in helping us to understand what happened and to do everything

in sure it does not happen again. The review has said that this is an

early draft which has changed considerably. While I am impatient

to learn those lessons that responsible thing must be to act on

the final report which we have yet to see. It is due in six weeks. It

is not expected to find any manager personally responsible but it will

find deep flaws in the institution. The culture stops people reporting

what the new and the ability for people to all the Russell is even

worse now than it was then -- to all the whistle is even worse

now. Before we came on air I spoke

to writer and broadcaster Stuart Cosgrove and from London

the Guardian's media editor Jane How damaging is this at a corporate

level for the BBC? It is like an undertaker to bomb. They have been

meeting for the release. Yesterday she said it would take another six

weeks. Last night the draft copy was leaked. Really damaging. The worst

sort of crimes that the BBC was culpable, they were largely

exonerated in this draft report but Dame Janet Smith did move quickly to

see this as an out of date report, there are some things that are going

to change. But the horror that was the Jimmy Savile scandal for the BBC

led to one DJ leaving, it has led to full revelations about sexual

assaults in every part of the BBC. All these of all things. One of the

assaults was on camera. Some of the assaults were against children as

young as nine. Anything which remains the public what went on

cannot say anything but damaging. This is an early draft but it looks

like the one at the top will be blamed. It is untenable. If you go

back to the high period when much of these accusations were made I

remember vividly in the early 1990s doing an interview with the

journalist which was broadcast on Channel 4 in which the issue was

directly addressed and where Jimmy Savile was named and where that was

seen within the wider industry as a mainstream fault about Jimmy Savile.

It was not in the margins, it was discussed within the media. I find

it untenable that people at the BBC at a high level were not suspicious

of that. Secondly, this is to do with the

cultural nature of the BBC, the BBC is a culture that refers up to

senior managers. The idea that there can be 64 incidents across the

various studios including Queen Margaret Drive studios in Glasgow,

studios in Manchester, London, various different things that have

been accused, that somehow they stayed within security S and never

made it up to senior management I find that unbelievable. The report

fox about this culture of deference and the power of celebrity. Is it

plausible that people just did not want to tell all the celebrities

because they thought they would get it in the neck? There are a couple

of things in the report which shows the culture in the 1970s and 1980s

when a lot of these crimes were being carried out, but also worrying

signs that these have not improved. A child said something was happening

and she was effectively hustled out of the studio.

A teenage girl said something and they said that is just Jimmy Savile

fooling around. In the report, in the final summary,

Dame Janet Smith said that where she felt child protection measures had

been is used because of legal measures and where women were more

respected, when it came to whistle-blowers, people at the BBC

being confident to speak up, she thought that had got worse, and all

the people that had top to her said it would only do so if we could do

so anonymously, they were running if it goes back to the BBC that they

had to criticise anybody more senior, they would, because of this

culture of not having job security, they were worried that they would

lose their job in a competitive field. Lots of people want to work

for the BBC. And the culture of celebrity was interesting and

worrying because if anything the culture of celebrity, with

presenters being paid more, being seen as above the law, with

producers and staff building being deferential and allowing them to get

away with behaviour that is not acceptable, that has continued, and

the report ends by saying that is the danger. Is that a continuing

problem? You must meet a lot of young staff in broadcasting. Do you

hear stories these days about harassment and bullying? Would did

the confidence to report it? There is a distinction to be made between

those areas of those industries where there is still a culture of a

job for life, within the media industry, not only is it freelance

and short-term, many productions are also outsourced to independent TV

production companies and are at arms length from the BBC and that makes

it difficult for you to have that culture where a whistle-blower can

be confident of their future. At First Minister's Questions

earlier, it was child care provision and council budgets that

came under scrutiny. The First Minister defended her

plans to extend free childcare after they were branded

a great big con by Labour. Let as get this absolutely clear.

The First Minister needs 650 new nurseries but she has reduced the

capital budgets to build them. She needs ?880 million for childcare

services but she has reduced council budgets by ?500 million. Only in the

world of the SNP will that deliver a childcare revolution. The First

Minister's childcare policy is a mess. Is she hoping valence are just

too busy to notice Mr Mark to be fair to Kezia Dugdale I know that

her day-to-day working experience involves a rather large mess

otherwise known as the Labour Party. No wonder it is it worth that is

uppermost in her mind. She will be a where, or she should be aware, John

Swinney has eyes like that, that the capital budget has been re-profiled,

money will be reallocated to local authorities in future years.

With me to talk about that and some of the day's other news

is Amy Dalrymple - Vice Chair of the Centre

for Scottish Policy, And Magnus Gardham -

Re-profiling, what does that mean? It means cuts. It is one of the

iPlayer euphemisms that we have encountered. I thought Kezia Dugdale

did well today although I am in two minds as to how effective that line

is going to be. We will hear a lot from the SNP about this promise to

double the amount of free childcare available. For Labour it makes sense

to say, a significant number of families are not getting the

childcare which they are entitled to know because of the way it is

delivered. It makes sense for them to lay down a marker before the

election. Having said that Labour to find themselves talking about what

will probably be a popular SNP policy and Labour still do not have

a policy of their own. Ultimately, although they were wise to lose

this, the first master had a good comeback where she said, where is

Labour policy on this? If they cannot deliver on this childcare

policy Victor be a public backlash? The problem you have got is that

Labour has not got a comeback. You are going to have problems with

this. I am glad there is a cross-party consensus that you have

got a recruitment problem in care professions are across-the-board,

not just childcare. If -- therefore you are going to find it difficult

to make a policy to improve services. Across the board they need

to be doing more work in terms of identifying high that is going to

happen and there are other surrounding policies that are not

going to help. The former SNP deputy leader Jim

Sillars has said he will be campaigning for the UK to leave the

EU. He said he has been astonished by how many SNP figures were not

willing to speak out stop are you aware of a silent minority in the

party? I am not. I am not surprised that Jim Sillars has said this. If

you look at the interventions of Jim Sillars during the referendum

campaign, one of his reasons for independence was that it would give

Scotland the opportunity to leave the EU. He makes a couple of points

about this. He believes the EU the situation is our hostile to the

notion of independence and would not be helpful if it came to a second

referendum. He is coming at it from an old-fashioned idol and from the

left which sees the EU is being more about trade and big business than

the rights of workers. And yet in the 1980s he was the architect of

the SNP independence in Europe campaign stop the SNP used to be

against EU membership stop are you surprised he has taken this view

now? When you look at his logic it is to do with a lot of what Magnus

outlined and what happened in the referendum. And it does fit. Back

when he was designing and independence in Europe policy it was

politically the right thing to do at the time and there is nothing wrong

with moving with The Times if the facts change. That I did chuckle

when I saw the news that he had come out in favour of an exit because it

was done in atypical Jim Sillars we. It is quite lustily.

-- quite blustery. It will be interesting to see what impact this

will have on the campaign. It'll have a slight impact. Liberal really

like the EU. Labour are the next keenest. SNP after that. That does

not reflect the SNP position. It might be that Jim Sillars vestige

chimes with some SNP supporters who say the EU in the same way that they

say this UK as obstacles to two independents. Jim Sillars has now

held out the olive branch to the person running the Labour leave

campaign. We will see different formations.

News about Ed Miliband's stone. It was broken up. I suppose you can

understand why that was not detailed in election invoices. A big mistake?

It was terrible. It looked desperate. Politicians should not

write things on stones. They should not write things about tuition fees,

pledges. It was dreadful. That's it for tonight

and for this week. Eight famous pensioners are looking

to retire to an exotic land... I had never thought

about India, but maybe! ..enjoying the fantastic

local cultures, discovering true

spiritual enlightenment... ..and finding out if they could

spend their golden years... Wow! It really does feel like home.

You come face-to-face with yourself. It's been a long time coming -

nine years since he died - but at last, the full story of

the death of Alexander Litvinenko,