HC Deb 02 May 1996 vol 276 cc1321-30

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Ottaway.]

4.47 pm
Mr. Bill Walker (North Tayside)

I should like to thank Madam Speaker for selecting for an Adjournment debate the tragic case involving the death of my constituent, Joseph Marshall, and my plea for a fatal accident inquiry. Last Friday, I drew attention to the advantages of the United Kingdom's unwritten constitution. Today I am making use of one of those advantages: the Adjournment debate.

It is always difficult for parents to come to terms with the death of a young adult son as the result of a road accident. It is made more difficult when the parents believe that the accident was not properly or fully investigated at the time. Pat and Betty Marshall are not vindictive people, although circumstances and events have made them distrustful and very apprehensive. All they have ever sought is that all the evidence in this tragic case should be brought out into the public domain. That is what my attempt this evening in this Adjournment debate is all about. Anyone who knows the road between Alyth and Blairgowrie, where the accident happened, will be aware that it is a narrow road with dips and bends, on which a number of nasty accidents have occurred.

Joseph Marshall was driving a Ford Sierra and he was in collision with a large horse box. I remind my hon. Friend the Minister that the road is narrow with dips and bends and consequently there are many blind spots. The horse box in question is 21 ft long and 8 ft wide and can only be described as a very large vehicle. So we have a large vehicle on a narrow road with dips and bends.

The Marshalls have been very disturbed by the conflicting evidence which they have managed to uncover. They have also been deeply concerned and shocked about what they believe were failures in the way in which the police conducted their investigation into the accident at the time.

In an attempt to get at the truth, the Marshalls have put a number of questions to the Lord Advocate and the Secretary of State. For the record, I shall detail the questions, some of which have never been fully answered. Had they been answered, there would be no need for this debate tonight. The questions were as follows: Why, despite laid down procedures in relation to slight injuries, was there no breath-test taken from the driver of the horsebox at the scene of the accident? Why have several witnesses indicated the horsebox driver was drunk? Why was a statement not taken from a business partner of the driver of the horsebox even though the person was on the scene of the accident before the emergency services and could have key information? How did so many relatives and associates of the horsebox driver come to be on the scene and why has it been accepted without question by police that testimony from these witnesses, forming the bulk of their 'case', is uninfluenced and therefore independent? Why are there so many conflicting, contradictory and self contradictory statements from witnesses? Why have police intimidated witnesses whose statements challenge the accepted version? Why were other, truly independent witnesses whose testimony may have been crucial, ignored? Why did a known associate of the horsebox driver and subsequently a vital witness to the accepted version of events, go home and then return in a different car to pick up the passengers left behind at the scene? Why did this same witness say he saw, prior to the accident and travelling in the opposite direction, only one of the other key witnesses despite this witness (white car) insisting that he was racing nose to tail with another of the witnesses in a silver car the whole time? Why does testimony from this same witness conflict with that of his passengers? Why is there doubt as to whether this witness was where he said he was at the time of the accident? Why did police insist that the time of the accident was between 8.20-8.30 PM despite corroborated evidence which puts the time of the accident at approx. 8.45 PM? Why did police insist that they have no knowledge of the driver of the white car despite interviewing him at the roadside at the time of the accident? Why have police been selective with regard to which skidmarks were recorded as pertinent, completely ignoring marks which point to an entirely different scenario? The car was fitted with an ABS braking system and should have left distinctive tyremarks on the road if it had gone into a skid. These marks were not present, why? Independent experts have completely refuted the police assessment of the skid mark evidence, why? The father of Joseph Marshall asked for and offered to fund, a reconstruction—this was refused, why? Why do police insist that the 7.5 ton horsebox, travelling downhill at a minimum '35-40 mph', was brought to an immediate standstill by the force of the impact even though elementary physics clearly shows this to have been an impossibility? Why do police insist that the 21 foot long, 8.5 foot wide, 7.5 ton lorry, fitted with a tachograph and capable of carrying 5 fully grown horses, is 'a van'? Why was this same horsebox released from police care and dismantled immediately despite the most strenuous objections of the Marshall family that they have evidence which challenges the accepted version of events? The tachograph disc from the horsebox is missing, why? Why was a potentially crucial witness who saw the horsebox driving erratically' just prior to the accident told by police that this was unimportant to the case and therefore irrelevant? Why was the police video of the accident scene delayed until several months after the accident and then filmed in weather conditions which effectively masked skid mark evidence? Why on this same video was Joseph Marshall named as 'The Accused' even though firemen in attendance at the time of the accident were told that it would be the driver of the horsebox who would be charged with manslaughter? How did the driver of the horsebox manage to locate his daughter and arrange for the ambulance he was travelling in to stop outside a public house en route to the hospital in order to pick her up even though his injuries were slight and he already had at least one son in the ambulance with him? Why did a senior representative of General Accident with many years experience in his field state categorically that: 'The car [Sierra] was hit on its own side of the road giving the driver no chance'? Why does the damage to the car challenge the 'accepted' version? Why did one vital witness keep people away from Joseph Marshall as he lay fatally injured by claiming to be 'a nurse' when in reality she was employed as a process worker in a nearby factory? Why did Mr. McLeod, Senior Procurator Fiscal, when faced with the evidence collected by Pat and Betty Marshall and presented by them in the company of their solicitor, say; 'I would not insult you both by trying to explain how the police came to this conclusion'? Why is the evidence held by the Crown Office now subject to a Confidentiality Order (similar to Official Secrets Act), preventing anyone acting on behalf of Pat and Betty Marshall from examining it and effectively barring further investigation or any form of private prosecution? Why, despite all of the above information being in the hands of the authorities, have Pat and Betty Marshall been refused, time and again, the only thing they have ever asked for—a Fatal Accident Inquiry? Why did Officer Barclay, when asked by Pat Marshall when the breath-test was taken, reply: 'I don't know. The officer who did the test forgot to sign and date it'? Why did Officer Barclay read out a statement allegedly taken from firemen in respect of the horsebox being cut to free the driver despite this being clearly not the case and then, after seeing the horsebox for himself, say to Pat and Betty Marshall that he must have misread it? Why did Officer Barclay say to Pat, Betty and their 13–year-old daughter Michele, who were reading the messages of support contained in the floral tributes which had been laid at the crash scene by friends in the 3 days since the accident: Tat, these [tyre] marks don't measure up to the statements these people have given. I will have to go and see the'"— so-and-so's— 'again'"? Why did it take Officer Barclay three weeks to inform Pat and Betty Marshall that there were three more official witnesses to the crash, bringing the total to six, all of whom have given conflicting or self-contradictory statements? Why did Officer Barclay say to Pat and Betty Marshall that 'the best thing you could do is just scrap the car [Sierra] and forget it'? Why did PC Barclay, in Pat and Betty Marshall's own home, say about the horse box driver: 'He's probably had four or five pints. What's hat? It would have worn off by the time of the crash?' How could Inspector Beaton (Blairgowrie Police) when asked by Pat Marshall if he would have the blood stains across the roof of the car analysed say: 'It's none of our business'? What made this same inspector say to Pat and Betty Marshall: What's the fuss? Your son went up the road and killed himself.' Why did the police issue Pat and Betty Marshall with their own insurance company claim number with the man at the desk quoting the Sergeant upstairs as saying: 'Just give him that one there, and that's all you're getting.'? The Lord Advocate wrote to me on 23 January 1996 detailing his reasons for believing that the evidence points to this accident having been caused by the deceased's vehicle rounding a bend at speed, on the wrong side of the road, and apparently out of control. The letter continues: The photographs and the sketch plan, both of which he has seen, do not seem to offer any support to Mr. Marshall's contention that it was the other vehicle which was on the wrong side of the road. On the contrary, this evidence seems to entirely support the evidence of the eye-witnesses. Yet the damage to the car, confirmed by accident experts contradicts that claim.

If the Lord Advocate is so confident that the facts are as he sees them, and I am satisfied that he believes that, I cannot understand why he cannot grant what I am asking for this evening. I remind my hon. Friend the Minister that on 23 August 1995, I asked for the case to be re-examined and in my letter to the Lord Advocate, I especially drew attention to the skid marks shown in the photographs and on the video.

I believe that I have demonstrated that there is enough evidence to question the conclusions reached by the procurator, the police and the Lord Advocate. I further submit that the only way to put the matter to rest is to have a fatal accident inquiry at which all the evidence, including that of all the witnesses, can be properly evaluated and the evidence of the accident experts properly heard. That can be achieved only through a fatal accident inquiry. It is the only way to get rid of all the doubts.

Almost everyone in Blairgowrie talks about the case and the fact that it has not been properly addressed. No one believes that it has. If after those matters are properly and fully evaluated, it is clear that the Marshalls' questions are wrong and that the facts that they believe that they have unearthed are wrong, it would all come out. As things are, nothing is being addressed. There is a great deal of secrecy. There is certainly evidence of intimidation, on which I shall not touch tonight because it will probably be dealt with in the courts. I find the whole thing distasteful and disturbing.

I am delighted that we have the unwritten United Kingdom constitution that gives me the opportunity through the use of an Adjournment debate to raise these matters where they can be properly addressed.

5.3 pm

The Minister of State, Scottish Office (Lord James Douglas-Hamilton)

I congratulate my hon. Friend the Member for North Tayside (Mr. Walker) on securing this debate on behalf of his constituent. All the points that he has raised are matters for the Lord Advocate, and I shall ensure that my hon. Friend's request for a fatal accident inquiry is drawn to his attention. It is fair for me to put before my hon. Friend the sequence of events and the up-to-date position, as I understand it, in relation to this unfortunate matter. Before I respond to the points that my hon. Friend raised, I express my sympathy to the family of the late Mr. Marshall for their tragic loss.

Investigations conducted by officers of Tayside police and by the procurator fiscal at Perth into the death of Joseph Marshall have established that, on the evening of Saturday 28 August 1994, the deceased left the family home alone in possession of his father's Ford Sierra 4x4 motor car. He travelled to the Wellmeadow area of Blairgowrie, where he met up with friends who were in two other cars. The youths chatted for a while and then drove round Blairgowrie town centre in the three vehicles.

At about 8.35 pm, all three vehicles were driven eastwards on the A926, the Blairgowrie to Alyth road. The deceased was at the rear of the convoy. At about 8.40 pm, the deceased's vehicle collided with a Bedford horse box. The driver of the other vehicle involved in the accident was travelling west on the same road. He was accompanied by two other persons who were front-seat passengers. A Metro motor car was being driven behind the Bedford horse box. There were two passengers in the Metro in addition to the driver.

Those individuals, that is the three persons in the horse box and the three persons travelling in the Metro, were the only persons who witnessed the collision. In the statements that they gave to the police, they described seeing the deceased's vehicle rounding a bend at speed, on the wrong side of the road and apparently out of control.

The deceased's vehicle collided, side-on, with the front of the horse box, trapping the deceased and the driver of the horse box in their respective vehicles. One of the passengers from the Metro supported the deceased's head until the arrival of medical assistance. The driver of the horse box sustained a broken left kneecap and was trapped by the legs in his vehicle.

A doctor who had been driving to Alyth came upon the scene of the accident and provided what assistance he could to the deceased. The deceased was unconscious and never regained consciousness. The doctor pronounced life extinct at 9.30 pm. The post mortem examination established that the deceased had sustained multiple injuries.

The evidence of the witnesses to the accident, and the evidence of those who observed the position of the vehicles immediately thereafter, showed that the deceased drove round a bend at speed, lost control of his vehicle, crossed to the wrong side of the carriageway and slid sideways into the oncoming horse box.

The deceased's father, Mr. Patrick Marshall, has never accepted this version of events, as my hon. Friend described. He has accused Tayside police of failing adequately to investigate the circumstances of the accident. He has suggested that the marks left on the road by the two vehicles do not support the version given by the witnesses, and that the six eye-witnesses have given conflicting or self-contradictory statements. He believes that it was the driver of the horse box who caused the accident.

The fact remains, however, that the evidence of all six witnesses exculpates the driver of the horse box and places the blame for the collision on the deceased. Mr. Marshall has suggested that the witnesses have not been truthful and that there has been an attempt to conceal the true nature of the accident. He has suggested that the driver of the horse box was driving at excessive speed and erratically; that the witnesses in the car travelling behind the horse-box were his friends and are protecting him; that the damage to the deceased's vehicle was not consistent with the explanation of the accident given by the witnesses; and that the skid marks left at the locus were not consistent with the evidence of the witnesses.

One of Mr. Marshall's specific allegations has been that the driver of the horse box was not trapped in his vehicle. He has also alleged that the driver was under of the influence of drink. The evidence, not only from the civilian witnesses but also from fire and ambulance personnel who attended at the scene, flatly contradicts his allegations.

The police officer who attended at the locus spoke to the driver of the horsebox and confirmed that he was trapped by the legs. Ambulance personnel who arrived at the locus at about 20.45 hours also spoke of seeing the driver trapped within his vehicle. Indeed, one of the ambulance technicians remained with the driver of the horsebox until the fire brigade managed to move the Ford Sierra from the front of the horsebox. That witness was then able to free the driver with the assistance of the fire brigade.

The allegation that the driver of the horsebox was under the influence of drink was disproved by the fact that he was subjected to a breath test that proved negative.

Mr. Marshall has made many of his allegations in the form of a complaint to the chief constable. He has alleged that officers dealing with the accident were in neglect of their duty and that they failed to carry out a full and thorough investigation into the accident. Mr. Marshall has suggested that the witnesses travelling in the Metro were known to the driver and occupants of the horsebox and that they collectively involved themselves in a conspiracy to conceal the true facts of the accident. There is, however, no evidence of collusion between the witnesses.

Mr. Marshall has alleged that one of the firemen who attended at the locus was alleged to have told his work mates that the driver of the horsebox was to be charged with manslaughter and drunk driving. That fireman was also alleged to have said that the driver of the horsebox was not trapped in his vehicle. Inquiry revealed that the fireman identified by Mr. Marshall had not attended the scene of the accident. He denied ever having discussed the accident with any of his work mates.

Mr. Marshall has also alleged that an officer of Tayside police had told him that the driver of the horsebox had drunk five or six pints on the day of the accident. The officer was also alleged to have told Mr. Marshall that there was no written record of the breath test having been carried out. Inquiry into those allegations failed to uncover any evidence to substantiate them. The officer identified by Mr. Marshall vehemently denied having made the remarks. There is written record of the breath test procedure that was carried out as a matter of routine given the nature of the accident. The senior police officer who investigated Mr. Marshall's allegations found that all were unsubstantiated.

The statements taken by the police were submitted to the procurator fiscal at Perth. He then conducted his own independent investigation into the circumstances of the death. He precognosced a number of key witnesses to check the accuracy of the statements given to the police. The procurator fiscal confirmed that the witnesses' position was that the horse box was at all times on its own side of the road; that the driver was driving carefully; and that he reacted quickly on seeing the deceased's vehicle approach.

The evidence given by the witnesses was unequivocal. It may assist my hon. Friend if I quote from the statement given by the driver of the car travelling behind the horsebox, who said: As I approached the bend I saw a white Ford Sierra motor car swerve across the road and into a carriageway, colliding with the oncoming horse float in front of me. I braked and managed to avoid colliding with the rear of the horse float. The white Ford Sierra appeared to have been travelling at speed. I would say excessively for the bends which it come through". That witness concluded his statement by stating the driver of the white Sierra motor car was most definitely to blame for the accident". It should be emphasised that there are no witnesses who contradict that version of events.

Mr. Marshall has suggested that the skid marks observed at the locus following the accident are evidence that the horsebox was being driven on the wrong side of the road. Officers of Tayside police who attended at the scene of the accident prepared a sketch of the locus. On that sketch, they recorded the position of the vehicles on the road and the skid marks that appeared to have been made by both the deceased's vehicle and the horsebox. From the evidence available to him, the procurator fiscal was satisfied that neither the skid marks nor the final position of the vehicles on the road supported Mr. Marshall's assertion that the horsebox was being driven on the wrong side of the road.

The procurator fiscal reported the circumstances to the Crown office in January 1995. Crown counsel instructed that there should be no further proceedings. As my hon. Friend will know from his correspondence with the Lord Advocate, the procurator fiscal thereafter had a lengthy meeting in February with Mr. and Mrs. Marshall and their solicitor. At that meeting, Mr. Marshall raised a number of matters which the procurator fiscal agreed to consider.

The procurator fiscal concluded, having completed his re-examination of the evidence, including all the additional information provided by Mr. Marshall, that no significant additional evidence had been uncovered. The fiscal then had a second meeting with Mr. and Mrs. Marshall and their solicitor in August. During those meetings, the procurator fiscal attempted to provide Mr. and Mrs. Marshall with all the information that was available to him. Mr. Marshall has seen the sketch plan of the locus and a video film made by the police. The procurator fiscal has co-operated with Mr. and Mrs. Marshall's solicitor and has provided the solicitor with a copy of the photographs taken by the police, a copy of the sketch plan and a copy of the post mortem report.

The procurator fiscal has also provided the solicitor with a full list of witnesses to enable him to precognosce those witnesses himself. Throughout, the fiscal has made it clear to Mr. and Mrs. Marshall that he is prepared to consider any new information which they or their solicitor draw to his attention. The fact remains, however, that no significant new evidence has been uncovered and, in particular, nothing that contradicts the evidence of the eye witnesses.

My hon. Friend has referred to a lengthy list of questions which Mr. Marshall has also sent to a number of Members of Parliament. I believe that there are up to 41 questions on Mr. Marshall's list, and that most take the form of an allegation that there is evidence that contradicts the police version of events. I do not wish to refer in detail to those questions, but I can say that those matters were carefully considered by the procurator fiscal. He re-examined the evidence in the case, including all the additional information provided by Mr. Marshall, but, as I have already said, concluded that no significant additional evidence had been uncovered.

The possibility of instructing an accident reconstruction expert has been discussed. As the Lord Advocate has explained to my hon. Friend, the advice to the procurator fiscal is that it would be impossible to carry out a proper accident reconstruction at this stage. An expert would base a reconstruction on his examination of the locus, including the distribution of debris, damage to vehicles and marks on the road surface. Proper accident reconstruction is very dependent on the locus having been preserved as nearly intact as possible. In this case, the skid marks are no longer visible and the debris has obviously long since disappeared, as have the vehicles. In the circumstances, the procurator fiscal does not intend to take any further action in respect of the matter.

To carry out a form of reconstruction using only the sketch plan and the photographs would be of little value. Nevertheless, those are available to Mr. and Mrs. Marshall and they are free to instruct an expert to examine that material. In that connection, I understand that Mr. Marshall claims to have obtained the opinion of two independent crash analysts who allegedly say that the sketch plan prepared by the police was inaccurate. Mr. Marshall was asked in March of this year to provide the procurator fiscal with a copy of their report, but I understand that he has not done so. Obviously, I would say to my hon. Friend that if there is any such evidence it will be considered by the procurator fiscal, who will then decide whether any further action needs to be taken.

As I have already said, Crown counsel has instructed that no proceedings should be taken in connection with the incident. Accordingly, in the view of the Lord Advocate, a fatal accident inquiry will not be held. The Lord Advocate has reviewed the papers in the case and he is satisfied that all the circumstances of the unfortunate accident have been fully investigated. He has said, however, that the procurator fiscal will be carry any further inquiries if significant new material comes to light. For the present, the Lord Advocate is satisfied that the Crown counsel's decision not to instruct a fatal accident inquiry was appropriate.

A discretionary fatal accident inquiry will be held only when the Lord Advocate is satisfied that it is expedient in the public interest that an inquiry should be held into the circumstances. The Lord Advocate has had such a discretion since 1906 and it was continued by the Fatal Accident and Sudden Death Inquiries (Scotland) Act 1976, which consolidated the legislation and modernised the procedures. The Lord Advocate, in the exercise of his discretion, acts in a quasi-judicial capacity when deciding whether an inquiry should be held.

In the case of a road traffic fatality, an inquiry would normally be held only if it were thought that there was a need to inquire into matters which might result in the sheriff finding that there were reasonable precautions whereby the death, or any accident resulting in death, might have been avoided. Fatal accident inquiries in road traffic cases are normally held to consider matters such as the layout of the road, the appropriateness of any speed limits at the locus or the adequacy of street lighting. In other words, a fatal accident inquiry will be held where there is a need to address issues of road safety.

In this case, what is at issue is whether the driver of the horse box or the deceased was at fault. Where it is considered that a driver of a vehicle was at fault to the extent that his driving was thought to have been careless or dangerous, the appropriate step would be for criminal proceedings to be instituted. Where criminal proceedings are not appropriate—as in this case, where the evidence indicates that it was the deceased who was at fault—and issues of road safety are not raised, a fatal accident inquiry would not be appropriate, especially when the investigation by the police and by the procurator fiscal has already clearly established the circumstances leading up to the accident.

Mr. Bill Walker

The critical point is the road layout. When one discusses this, one must realise that a large vehicle on a narrow road, with bends and dips, would trigger such an accident. I drive my daughter's horse box on that road and I am astonished by some of the comments.

Lord James Douglas-Hamilton

I repeat what I said earlier: if Mr. Marshall genuinely has opinions from two independent crash analysts who have submitted a report, I recommend that it be forwarded to the procurator fiscal, who can then take a strong view as to what further action, if any, is required. In relation to the layout of the road, that is the best way forward if that evidence exists—and my hon. Friend has led me to believe that it does.

Crown counsel is satisfied that the circumstances in this case are not unexplained and that they do not give rise to any serious public concern. Therefore, a fatal accident inquiry would not be appropriate. That decision can be reviewed if new evidence comes to light. In that connection, I can confirm that in March of this year Mr. Marshall's solicitor provided the procurator fiscal with copies of statements from two additional witnesses. He has promised to provide the procurator fiscal with the statement of a third witness.

Once that information has been obtained, the procurator fiscal will consider whether he needs to carry out a further investigation. The results of any such investigation will be reported to Crown counsel. I assure my hon. Friend that the Lord Advocate has confirmed that the decision not to hold a fatal accident inquiry will be reviewed in the light of the new evidence, assuming that it is found to be reliable and relevant.

I regret that Mr. Marshall has been so traumatised by the loss of his son that he is unable to accept that the circumstances of the accident have been fully and properly investigated. It is clear that Mr. Marshall has failed to come to terms with the death of his son and that he is now obsessed with allegations that there has been a cover-up. In this connection, I understand that he was convicted at Perth sheriff court on 25 April on a charge of conducting himself in a disorderly manner by telephoning a British Telecom operator and stating to her that he intended to purchase a gun and ammunition and use it to injure various people who were involved either in the accident or in the investigation of it. Sentence in that case, which is sub judice, has been deferred to 25 May and, therefore, I cannot discuss the details of the case.

I can only hope that this debate, and the fact that Mr. Marshall's concerns have been given such a public airing, will go some way towards showing him that there is no conspiracy and that those involved in investigating this tragic accident have nothing to hide. I thank my hon. Friend the Member for North Tayside for initiating the debate. I suggest that the best way forward is for the new evidence to be submitted to the Procurator Fiscal. As I promised at the outset of my remarks, I shall ensure that my hon. Friend's comments are passed on to the Lord Advocate.

Question put and agreed to.

Adjourned accordingly at twenty-five minutes past Five o'clock.