Attorney-General Reference (No 2 of 1992)

Facts

The defendant, a lorry driver, was driving along a motorway when his lorry ran into a stationary vehicle on the hard shoulder, killing two people. He was charged with causing death by reckless driving. His defence, supported by expert evidence, was that long monotonous driving on a straight road had put him into a condition of driving without awareness, so that he was not in conscious control of the lorry at the time.

History

The trial ended in the acquittal of the defendant after the defence of automatism was left to the jury. The Attorney General referred points of law to the Court of Appeal under the procedure allowing a reference after an acquittal, which does not affect the acquittal itself.

Issue

Whether driving without awareness, arising from a trance-like state, is capable of amounting to the defence of automatism; and whether a driver who is aware of the risk of such a state, or who brings it about by his own conduct, can rely on the defence to a charge founded on recklessness.

Held

The points of law were answered in favour of the Attorney General. Driving without awareness is not a separate defence, and automatism is not made out unless there was a total destruction of voluntary control. The acquittal of the defendant was not disturbed.

Ratio

• The defence of automatism requires a total destruction of the voluntary control of the defendant over his actions; impaired, reduced or partial control, including a loss of awareness while some control is retained, is not sufficient.

Key reasoning

• Automatism is a defence because it negates the voluntariness of the act, and the earlier authorities such as Bratty v Attorney-General for Northern Ireland [1963] AC 386 and Watmore v Jenkins [1962] 2 QB 572 treat it as involving an act done without any voluntary control.
• A driver who is in a state of reduced awareness, but who is still steering and responding in some degree, has not lost control altogether; the evidence described a spectrum of awareness rather than the complete absence of control that the defence requires.

Where it fits in the module

The case belongs to the Mods debate about the voluntariness requirement and where the line is drawn between an involuntary act and a culpable failure of attention. It shows the court insisting on an all-or-nothing test for the actus reus, and it raises the question whether the law should instead assess fault at the earlier point at which the defendant chose to carry on driving. It connects with the topics on conduct, mens rea and the treatment of self-induced states.

Criticisms

• The test of total destruction of control is an all-or-nothing rule that does not match the medical evidence, which describes degrees of awareness, so that a defendant who has truly lost conscious control may be treated as fully responsible.
• Requiring a complete loss of control makes the defence practically unavailable in driving cases, which leaves a driver who could not have foreseen his lapse exposed to a conviction without any fault.