Friday, 26 July 2019

Insane automatism and driving

On 25 July, in the House of Commons, the death of 15 year old Katelyn Dawson was raised by Mr Barry Sheerman MP (Huddersfield).  Mr Sheerman asked the Leader of the House of Commons (Mr Jacob Rees-Mogg MP) -

"On 10 January 2018, Katelyn Dawson was killed and two other women were very badly injured when a white BMW crashed into a queue of people as Katelyn was going to school. She was 15 and an only child. Could we have an early debate on what is going on in the Crown Prosecution Service? It has been many months and now the Crown Prosecution Service has decided not to bring any charge against the driver ....  He got off because the CPS thought he was going to argue insane automatism, which is increasingly being used by wealthy and well-connected people to get off charges when they kill people."

The proceedings may be read at Hansard 25 July.

Mr Rees-Mogg replied - "This is an issue of the greatest importance. These terrible events move anybody who hears about them. The death of a 15-year-old through a criminal act is invariably tragic. I absolutely believe that one of the founding principles of our nation is that justice is blind and there is equal justice for everybody, and that is something that all Members of Parliament should commit to. As regards a debate, the Chairman of the Backbench Business Committee will have heard the hon. Gentleman’s appeal, which I am sure that many other Members of the House may want to support."

Prosecutorial Decisions:

The Crown Prosecution Service (CPS) applies a two-stage test when deciding whether to prosecute - see Code for Crown Prosecutors.  (1) Is there enough evidence against the defendant? (2) Is it in the public interest for the CPS to bring the case to court?

Katelyn, 15, was waiting at a bus stop on Wakefield Road in Moldgreen, Huddersfield when a BMW drove on to the pavement and hit the youngster and two other pedestrians.  Following a lengthy Police investigation, the CPS had to decide whether to prosecute the driver.  It decided not to do so - a difficult decision to make but one which devastated Katelyn's family.

In March 2019, the Crown Prosecution Service (CPS) said that - “In deciding whether the accused should be prosecuted we had to decide if the evidence was sufficient to show that his driving fell below that of a careful and competent driver.  Taking into consideration all the material presented to us, including the medical reports,  we  have decided that there is insufficient evidence for a realistic prospect of conviction and that therefore no further action should be taken" -  ExaminerLive March 2019.

Katelyn's family asked for a review of the decision not to prosecute the driver - see CPS Victims' Right to Review Scheme.  The outcome of the review was that there was sufficient evidence for a prosecution BUT it was not in the public interest to prosecute.

The ExaminerLive 24 July 2019 covered the story.  It appears that medical evidence presented to the CPS shows that the driver "experienced a fainting episode at the wheel of his car and lost consciousness."  A consultant neurologist had concluded that the suspect suffered a medical event and it is likely that this was caused by a respiratory tract infection.  According to the CPS, this evidence was relevant to any potential prosecution because the suspect might have the defence of "insane automatism" to any charges of causing death or serious injury by dangerous driving.

Road traffic offences of causing death:

Causing death by dangerous driving is an offence under the Road Traffic Act 1988 section 1.   Causing serious injury by dangerous driving is an offence under section 1A.  Dangerous driving is defined in section 2A.   Causing death by careless or inconsiderate driving is an offence under section 2B and the meaning of careless driving is set out in section 3ZA.

Reading those sections highlights a difference of degree between dangerous and careless driving.  For dangerous driving, the driving has to fall "far below" what would be expected of a competent and careful driver.  For careless driving, the test is that the driving "falls below" what would be expected of a competent and careful driver.

Automatism:

Automatism as a defence is based on the notion that it is not appropriate to prosecute those who are not responsible actors because their actions were INVOLUNTARY.  The law is difficult but, in essence, the defence involves conduct which may be brought about by factors external to the defendant (non-insane automatism) or factors internal to the defendant such as medical conditions (insane automatism).  A successful plea of non-insane automatism entitles the defendant to acquittal.  A successful plea of insane automatism entitles the defendant to the "special verdict" of  "not guilty by reason of insanity" - Criminal Procedure (Insanity) Act 1964.

There is little that can be favourably said about the present law.  In Loake v CPS [2017] EWHC 2855 (Admin) Irwin LJ said - "As the Law Commission noted in its 2013 Discussion Paper Criminal Liability: Insanity and Automatism at para 1.2, the existing law has long been the subject of academic criticism as being unfair, out of date and failing to reflect advances made in medicine, psychology and psychiatry. Various bodies have reviewed the defence of insanity and recommended reform, but the substance of the defence has remained unchanged."

The CPS reviewing lawyer decided that, in the light of the medical evidence, it would have been "highly likely" that the driver would have succeeded in a defence of "insane automatism."

"He suffered a medical event which affected the functioning of his mind and body and which he could not have known was likely to occur. The relevance of this is the impact it would have on the powers of the court."

According to ExaminerLive, the CPS went on to point out that a successful defence leaves the court with only limited powers.  A special verdict of not guilty by reason of insanity is NOT a conviction and no finding of guilt would be recorded against the suspect.   This would mean that the suspect could not be disqualified from driving if the defence of insane automatism were successful.

Thus, whilst the case was of the "utmost gravity" there was a decision not to prosecute because, according to the CPS, the driver could not be punished if a plea of insane automatism was successful.

The powers of the court following a special verdict "not guilty by reason of insanity" were amended by the Domestic Violence, Crime and Victims Act 2004 s.24.   The court shall make in respect of the accused (a) a hospital order (with or without a restriction order); (b) a supervision order; or (c) an order for his absolute discharge.

R (Johnson) v CPS [2019]:

In R (Johnson) v CPS [2019] EWHC 317 (Admin) the High Court (Mrs Justice Yip) dealt with a permission application for judicial review brought by Mr Johnson who is the widower of Mrs Lauren Johnson who died on 28 October 2016 having been struck by a car driven by Mr George Steele.  Mr Johnson sought to challenge the decision of the Crown Prosecution Service not to prosecute Mr Steele for causing death by dangerous driving. Yip J refused permission for the judicial review.  In summary (at para 66) she said that the CPS decision was rational and lawful.  "The conclusion that prosecution was likely to result in a special verdict of not guilty by reason of insanity and an absolute discharge was one that was reasonably open to the Defendant on the evidence. The Defendant has complied with the duty of candour and further disclosure is not necessary to dispose of this matter fairly and justly. The Claimant's grounds are not properly arguable. Accordingly, while echoing the sympathy HHJ Pelling QC expressed for the Claimant and Mrs Johnson's family, I must refuse the application for permission to claim judicial review."

Mr Johnson's case shows the difficulty in obtaining permission for a judicial review of CPS prosecutorial decisions and also shows that the CPS are entitled to consider the likely outcome of a case if the defence of insane automatism is successful.

CPS Guidance on automatism:

The CPS Guidance relating to automatism is published via their website:  

"Automatism involves a total loss of control such that a suspect acts wholly involuntarily."

It goes on to state:

"The areas which a prosecutor may scrutinise will include: was there a total loss of control or was control merely impaired? Could the suspect have reasonably foreseen the condition? Were there any sign of its onset? What could have been done to avoid it?"

Requirement to report certain medical conditions:

A failure to disclose without reasonable excuse certain medical conditions to DVLA is an offence under the Road Traffic Act 1988 s.94 (applicable in Scotland and in England and Wales) and see DVLA Health conditions.   Disclosure can, if appropriate, result in licence revocation.  The duty to report in section 94 is placed on the licence holder - a self-reporting duty.  Following a fatal accident in Glasgow in December 2014, a Fatal Accident Inquiry report by Sheriff John Beckett made various observations about section 94.

In particular, see Recommendations 5.17 to 5.19 of Sheriff Beckett's report:


5.17 The Secretary of State for Transport should instigate a consultation on how best to ensure the completeness and accuracy of the information available to DVLA in making fitness to drive licensing decisions with a view to making legislative change.
 5.18 Part of this exercise should involve considering increasing the penalties and altering the mode of prosecution for contravention of section 94 of the Road Traffic Act 1988.
 5.19 The Secretary of State for Transport should instigate a consultation on whether it is appropriate that doctors should be given greater freedom, by the General Medical Council, or an obligation, by Parliament, to report fitness to drive concerns directly to DVLA.


See also General Medical Council - Driving and medical conditions: doctors' roles and responsibilities

A medical condition is not always known to the individual before driving.  However, a possible reform might be to require the CPS to inform DVLA of any decisions not to prosecute in cases where medical issues may have contributed to a road accident.

At least, I hope that Mr Sheerman MP is successful in securing a debate on this matter and that the relevant law is reviewed.

Further reading:

Law Commission - Insanity and Automatism



5 comments:

  1. I know the Majewski case involves intoxication but the principle should be applicable -if this man knew that he has a condition that puts the public at risk then he should not be allowed behind a driving wheel. Alternatively, if it was an out of the blue episode how do the doctors know if he momentarily blacked out or was actually driving dangerously? Their diagnosis is probably based on his say so -and how deep his pocket are.

    ReplyDelete
    Replies
    1. If it was an out of the blue fainting episode, and medical experts are claiming that he fainted - based on his say so, how can this be challenged?

      Delete
    2. Hi

      I suppose the route the family are taking is the only, or possible, way of challenge by driving the public interest angle. The reason for no prosecution is not very clear to the family or to the public -any number of prosecution cases are faced with strong defence arguments. If, in this case, there is an emerging defence for random acts of dangerous driving then let the court devine it in the public interest. Even if the driver did have some sort of fainting spell he should not simply be able to dust himself off without the facts being thrashed out.

      Delete
    3. "there was a decision not to prosecute because, according to the CPS, the driver could not be punished if a plea of insane automatism was successful."

      That could be said of any defendant's plea if it was successful. How dumb is that statement from the CPS? It's certainly not a valid reason on its own for not pursuing a prosecution.

      Delete
    4. Hi
      You make a good point! But sadly this is the decision of the CPS. And without a lot of money to fight the decision or a private prosecution, there is very little the family can do.

      Delete