THE Crown Office’s “irreversible” decision not to prosecute Glasgow bin lorry driver Harry Clarke and his employers, Glasgow City Council, can be reversed – by the Crown Office itself.

That is the verdict of top lawyer Fraser Simpson who represents the families of Mhairi Convy, 18, and Laura Stewart, 20, who were killed by an unconscious driver in Glasgow in 2010.

In that case, too, the Crown Office decided not to continue with its prosecution of the driver, William Payne, and dropped the charges against him, meaning that Payne could never be prosecuted. The Crown, though, has recently indicated it will review that decision.

At the Fatal Accident Inquiry which took place four years after the tragedy, it emerged that Payne had suffered previous blackouts while driving. Similar evidence has now surfaced about Harry Clarke, who fell unconscious at the wheel of the bin lorry that went on to kill six people and injure 15 others at George Square in December.

Simpson, a partner with Digby Brown, claims there is now a precedent which would allow the Crown Office to review its decision not to prosecute Clarke or Glasgow City Council, who could have faced charges under health and safety laws.

On July 1, the Victims and Witnesses (Scotland) Act 2014 came into effect which gives the victims of incidents, including their families, the right to a review of any Crown decision not to prosecute. The new right is not retrospective, however, which would appear to rule out a review of the decisions in the bin lorry case.

The National revealed yesterday that Professor James Chalmers of Glasgow University Law School has doubts about Scotland’s new rules complying with the European Union directive on giving more status to victims.

There was almost a tacit admission by the Crown Office on July 1, the day the new rules came into force, that victims did have at least a good case for having historical “no prosecution” decisions reviewed.

Simpson and his clients met the Crown Office on that day, and after a long discussion involving Solicitor General for Scotland, Lesley Thomson, QC, the Crown’s position changed.

“They indicated that notwithstanding the prospective nature of the new legislation,” said Simpson, “they would undertake to review their decision-making and the reasons for them coming to the decision.”

Simpson doubts whether the review will end in success for the families he represents – “I don’t think we are going to get a prosecution,” he said.

However, he agrees with Professor Chalmers that Scotland’s new laws on the right to a review of the prosecutors’ decisions may not comply with the EU directive – and that opens the door for the families of the bin lorry victims to challenge the Crown decision.

The key issue is whether the law that took effect on July 1 can itself be challenged.

Simpson said: “The problem in both cases is that this legislation is only prospective and not retrospective. But it is always open to consider the possibility of a judicial review.

“That is about looking at the decision-making process within the framework of the law, and inviting a higher court to conclude that the decision-making process of the public prosecution body was simply wrong and irrational.”

Simpson cannot see that route being followed as yet, but suggested that the precedent set by the Crown Office with his clients on July 1 might encourage the families of the bin lorry victims to think of a review of the “no prosecution” decision.

He said: “In fairness to the Solicitor General, in my case they have stated that they are prepared to apply the spirit of the new legislation and that’s why we have an undertaking that they are conducting this further review.”

The Crown Office has insisted all along that it was aware of all the evidence which has become public at the Fatal Accident Inquiry and has said it will stand by its decision not to prosecute either Clarke or the council.