Attorney General's Reference (No. 2 of 1992)
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 27 May 1993 |
| Judgment citation (vLex) | [1993] EWCA Crim J0527-15 |
| Docket Number | No. |
| Court | Court of Appeal (Criminal Division) |
| Date | 27 May 1993 |
[1993] EWCA Crim J0527-15
IN THE COURT OF APPEAL CRIMINAL DIVISION
Before: The Lord Chief Justice of England (Lord Taylor of Gosforth) Mr Justice Judge and Mr Justice Blofeld
No.
MR ALUN JONES QC and MR GRAHAM CLIFF appeared on behalf of THE ATTORNEY GENERAL
MR AMJAD MALIK appeared on behalf of THE RESPONDENT
This is a Reference (No. 2/92) pursuant to Section 36 of the Criminal Justice Act 1972, whereby Her Majesty's Attorney General seeks the opinion of this Court on a point of law following an acquittal on indictment.
The point is defined in the reference as follows:
"Whether the state described as 'driving without awareness' should, as a matter of law, be capable of founding a defence of automatism."
This formulation relates to expert evidence given in the particular case. However, we take the point more generally to raise the question: "What are the requirements and limits of the defence of automatism?
On 6 September 1991 at Worcester Crown Court, the respondent was acquitted after a five-day trial of two offences of causing death by reckless driving.
On 16 April 1991 the respondent, who was a professional heavy-goods lorry driver, drove his lorry from Lincolnshire to Liverpool between the hours of 10.00 a.m. and 4.00 p.m. At about 6.00 p.m. he set off again, driving south on the M6 and then on the M5. Throughout the day he had taken appropriate breaks to comply with regulations. He ate a full meal at a service station between 10.00 and 10.30 p.m. He stopped at another service station later and put on an extra coat. He then drove a further 22 miles before the accident occurred. After junction 6 on the M5, the motorway narrowed from three to two lanes. On passing junction 7, the respondent steered, apparently deliberately, onto the hard shoulder. He drove some 700 metres along that shoulder with only inches to spare on either side before crashing into a stationary white van. The van had its hazard lights flashing and in front of it was a recovery vehicle with a rotating yellow light. Standing between the two vehicles were the two victims who received fatal injuries as the van was pushed into the recovery vehicle. Marks on the road showed that braking had occurred only at the very last moment.
The respondent had been driving for over six hours out of the preceding twelve and had covered 343 miles.
It was the prosecution case that the respondent had been overcome by sleep at the wheel. In the course of a lengthy interview with the police, he ultimately acknowledged that he was tired but had decided to push on to the next service station and must have fallen asleep.
Both the prosecution and the defence had obtained expert evidence. For the defence, there was a report from Professor Brown, a chartered psychologist and assistant director of the Medical Research Council's Applied Psychology Unit in Cambridge. The Crown had obtained a report from Professor Horne, director of the Sleep Research Laboratory at Loughborough University. It was agreed by counsel that the evidence of each of these experts should be adduced and the judge admitted it. Professor Horne was called as part of the prosecution case. The respondent did not give evidence but relied upon Professor Brown's expert testimony which is central to this reference.
Professor Brown described to the Court a condition known as "driving without awareness" and on the basis of his evidence it was contended for the defence that the respondent was in a state of automatism at the time of the accident and was therefore not to be regarded as driving at all. Professor Horne did not accept Professor Brown's analysis. However, the learned judge in summing up to the jury left the defence of automatism based upon Professor Brown's evidence as an issue properly open for the jury's consideration.
It is common ground that, for the purposes of this reference, the Court should proceed on the basis of Professor Brown's evidence at its highest.
He said that "driving without awareness" is not a scientific term but a provisional, or interim, descriptive phrase coined at a conference he had attended. He said that there are two essential components to the act of driving: collision avoidance and steering within highway lanes. In a state of "driving without awareness", the driver's capacity to avoid a collision ceases to exist. This is because repetitive visual stimuli experienced on long journeys on straight, flat, featureless motorways can induce a trance-like state in which the focal point of forward vision gradually comes nearer and nearer until the driver is focusing just ahead of his windscreen. He therefore fails to see further ahead in the central field of vision. However, peripheral vision continues to send signals which are dealt with sub-consciously and enable the driver to steer within highway lanes.
Professor Brown said this condition can occur insidiously without the driver being aware it is happening. However, he also said that usually a driver would "snap out" of the condition in response to major stimuli appearing in front of him. Thus flashing lights would usually cause him to regain full awareness. Professor Brown was unable to explain why that had not happened in the present case. In fact, the respondent told the police when interviewed that he had seen the flashing lights some quarter of a mile before reaching them. Professor Brown was also unable to explain why the respondent should have steered, apparently deliberately, on to the hard shoulder.
Despite his phrase "driving without awareness", Professor Brown agreed that the driver's body would still be controlling the vehicle, that there would be sub-conscious motivation to his steering and that although "largely unaware of what was happening ahead" and "largely unaware of steering either" the unawareness was not total. Asked if nothing intrudes into the driver's consciousness when he is in this state, the Professor said: "I would not go so far as to say nothing, but very little". There must, as a matter of common-sense, be some awareness if, as Professor Brown accepted, the driver will usually be caused to "snap out" of the condition by strong stimuli noticed by his eyes.
Against this evidential background, the learned Recorder directed the jury as follows:
"Professor Brown …. has told you that in his opinion [the respondent] was driving in a state which he describes as 'driving without awareness' in which he moved on to the hard shoulder, mistaking it for the nearside lane, and then continued steering sub-consciously until a fraction of a second before the collision. Indeed, Professor Brown's view was that that state of driving without awareness had persisted for quite a long time and had included not only that last half mile, but had included the manoeuvre at junction 6 illustrated in the photograph some miles before.
As a matter of law I direct you that if, because of this state of driving without awareness, [the respondent's] consciousness was, or may have been, so impaired that his mind did not control his actions, he is not guilty of the offence and it is for the prosecution to make you sure that that was not his condition."
The contention on behalf of the Attorney General is that on the evidence given by Professor Brown, even taken at its highest, there was no basis for leaving the defence of automatism to...
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