Automatism as a Legal Defence

Debate between Barry Sheerman and Alex Chalk

Tuesday 14th May 2019 Westminster Hall

[Mr Sheerman]

I thank my hon. Friend for that intervention. I was going to mention the R.E.M. case, which, as he says, is a very famous one. Can I come back to that? He is absolutely right, and I will come back to it in a moment.

The requirements of a defence of non-insane automatism—I am not dealing with insane automatism—are that, first, there must exist an involuntary action arising from an external source or reflex action; secondly, the action must be completely involuntary; and thirdly, the automatism must not be self-induced. Some academic literature states that the automatism defence is increasingly being used, but the problem is that no statistics are kept on how often the automatism defence is pleaded or succeeds. The word I hear from the justice system more broadly is when a senior policeman or policewoman comes up to me and says, “Look, we’re in real difficulties prosecuting here, because the defendant is going to use automatism. It’s going to be very, very difficult, because the CPS will be very reluctant to bring the prosecution.” In a sense, what I am trying to bring to the public gaze today is this question: why do we not know how many cases are not proceeded with because the Crown Prosecution Service thinks that it is all too difficult, that the chances of getting a conviction are not good with a clever lawyer using automatism as the reason for the defendant’s behaviour?

I want to give a couple of examples. In 2014, there was the terrible accident in Glasgow involving a council-owned waste lorry that collided with pedestrians in the city centre, killing six people and injuring 15 others. The driver said that he had passed out at the wheel, and he was not prosecuted. Glasgow sheriff court was told that the driver had passed out at the wheel and heard evidence regarding his alleged failure to disclose a history of dizziness and blackouts in job applications and when renewing his licence.

Nicky Selby-Short, a solicitor in Access Legal’s specialist personal injury team, comments:

“There may be occasions when such a defence is entirely justified, but claiming automatism is likely to continue to be used by defendants since it is a good tactic; however, it is accepted it will leave innocent claimants with no award whatsoever for what are often very serious injuries”

and, of course, death.

[Alex Chalk (Cheltenham) (Con)]

The hon. Gentleman is of course raising a really important issue, but it is important not to lose sight of the fact that to make out this defence, the burden is on the defendant to advance evidence, which may be in the form of medical evidence. It would be quite wrong to give the impression that somehow a defendant could simply say, “I’m invoking non-insane automatism,” and get off scot-free. The burden is on him to prove it. Does the hon. Gentleman agree?

[Mr Sheerman]

Absolutely, I agree with that, but as I make my case, I think the hon. Gentleman will understand why I am worried about what happens at the moment.

The second case I want to mention is R v. Burton in 2007. An elderly motorist killed a married couple in a high-speed crash and was controversially cleared of all blame by a judge, after claiming that he may have been in a state of automatism at the time. Experts said that retired businessman Arnold Burton may not have known what he was doing when he smashed head-on into the couple’s car, while doing at least 76 mph in a 30-mile speed limit in his Jaguar X-Type.

Leeds Crown court was told that the 89-year-old, whose father founded the Burton clothing empire, could have been suffering from a lack of blood to the brain. Prosecutors decided to offer no evidence on two charges of causing death by dangerous driving after psychiatrists concluded that Mr Burton might not have been aware at the time. The recorder of Leeds, Judge Norman Jones, said that the elderly motorist was “driving automatically” and that his

“brain was not in control of his body”

when the crash happened.

In Glasgow, in 2010, two little girls were killed while Christmas shopping by a Range Rover that hit them on the pavement. The charges against the driver were dropped, because he suffered a loss of consciousness, owing to an undiagnosed medical condition.

[Alex Chalk]

I am grateful to the hon. Gentleman for generously giving way. Where a road accident leads to someone losing a life, one’s heart goes out to the victims and those who are left behind. However, it is important that one injustice is not replaced by another injustice. If it really is the case that that individual was effectively unconscious, surely the hon. Gentleman is not suggesting that he should be criminally culpable none the less. It may be that he should not have his driving licence, but that is another issue. If he is truly unconscious, surely he is not criminally liable.

[Mr Sheerman]

I agree entirely with the hon. Gentleman. I believe in evidence-based policy. We have a great deficiency in the transport safety area that I keep nagging the Government about. In Sweden, every time there is a fatality on the roads, there is a thorough investigation. That does not happen in the United Kingdom. There is no highly skilled investigation of an accident involving a death. There is a real problem finding out what really happened.

I will whisk through the prominent case that highlights how automatism might be used too broadly. It involves Peter Buck from the band R.E.M., who was acquitted of charges of two counts of common assault and one count of criminal damage while being drunk on a plane. There was a good defence. What distinguished Mr Buck’s case from others of this nature was that he raised the defence of automatism in a Court of Appeal, which described non-insane automatism as

“malfunctioning of the mind of transitory effect caused by the application to the body of some external factor such as violence, drugs, including anaesthetics, alcohol and hypnotic influences”.

Mr Buck sought to establish that the commission of the offences he was charged with lacked a mental element due to a transitory effect caused by the external factor of red wine combined with sleeping tablets.

However, a defendant cannot simply absolve himself of all responsibility for his actions by blaming pills and alcohol. A self-induced incapacity will not excuse; nor will one that could reasonably have been foreseen, such as the result of taking alcohol against medical advice after using certain prescribed drugs or failing to have regular meals while taking insulin. However, Mr Buck produced his prescription bottle, which did not contain a warning about mixing alcohol, so he was acquitted.

While it is difficult to put forward a defence of automatism, once such a defence has been established—this is what legal experts tell me—it falls on the prosecution to disprove the evidence of automatism beyond reasonable doubt. I am not trying to turn the justice system upside down; I am merely shining a light on the increasing use of automatism as a defence.

Forms of automatism have also been used to defend people who have been accused of rape. Sexsomnia is being used internationally. In 2007, in the UK a man was let off for raping a 15-year-old because he claimed sexsomnia. Let us remember that, according to a 2002 London Metropolitan University study, just 6% of cases result in conviction, because of loopholes in the law such as automatism.

Dr Cosmo Hallström, a member of the Royal College of Psychiatrists, said:

“People do sleep walk and they do strange things in their sleep, but it is usually no more complex than grinding of the teeth or smacking the lips—at most they may get up and make a cup of tea. I would think it was extremely difficult to perform such a complex manoeuvre as having sexual intercourse while asleep—especially if the other person is unwilling.”

Harry Cohen spoke on this in the House of Commons only 11 years ago:

“Anybody up in court on a rape charge could get a few friends and family to claim that he sleepwalks, and he will almost certainly get off.”—[Official Report, 15 October 2008; Vol. 480, c. 801.]

Harry Cohen introduced the Rape (Defences) Bill in 2008 to address this. That Bill sought to prohibit the use of a defence of sleepwalking or non-insane automatism in proceedings relating to the offence of rape.

[Alex Chalk]

The hon. Gentleman is being extremely generous with his time. We all want to see more people who are guilty of rape convicted. We all agree that the statistics are shocking. However, on the example that he gave, if the prosecution were able to call evidence to suggest that what was being posited—namely that the defendant raped through non-insane automatism—was a complete fiction and entirely implausible, a jury should have little difficulty giving that defence short shrift and finding the defendant guilty. Does he agree that if it is a bad defence, the prosecution can call evidence to expose it as such?

[Mr Sheerman]

The hon. Gentleman is right, but I am trying to get the balance right. There are so few successful prosecutions for rape and there is an increasing tendency worldwide to use this as a reason why the person—usually a man—was unable to know what they were doing.

In 2008, another good former comrade—sorry, colleague —of ours, Dr Brian Iddon introduced the Road Traffic (Accident Compensation) Bill, which sought to provide no-fault compensation for personal injury in road traffic accidents where liability cannot be established. This is the nub of the matter. However many people are killed or injured in an accident involving automatism, there is no compensation. How can that be just? In such cases, the victim is left injured or killed, but with no compensation for the family. Surely, the Minister would agree that it is time to consider introducing a no-fault compensation system in this area, as is used in other countries such as New Zealand.

We are coming to the end of the story. In 2013 the Law Commission undertook a review and produced a discussion paper called “Criminal Liability: Insanity and Automatism”. It produced a range of recommendations for reform of this defence. I hope that the hon. Member for Cheltenham (Alex Chalk), who intervened on me two or three times, will be able to hear this, because it is germane to his interventions. Much of the report focused on the need for modernisation and reform of the law around insane automatism or the insanity defence. It recommended that the arcane criminal law be reformed by replacing it with the new defence of

“not criminally responsible by reason of recognised medical condition”.

However, it also proposed to abolish the less clearly defined common law defence of automatism in favour of a reformed automatism defence that was clearer and narrower in scope. To the best of my knowledge, the Government have not since acted on those recommendations. I ask the Minister what actions, if any, the Government have taken in relation to clearing up the legal problems identified by the Law Commission. Will the Government undertake to enact any of the proposed reforms recommended by the Law Commission?

This is about victims and justice. What is really going on in the undisclosed statistics from the Crown Prosecution Service? What is going on in the desperately underfunded justice system that we operate in this country? I co-chair the all-party parliamentary group on miscarriages of justice. How many more miscarriages of justice will happen, not because of ill-will or badly motivated, wicked people, but because of a lack of resources, investment and personnel?

There is no scheme in the UK to compensate victims of genuine automatism. A person who is injured through no fault of their own has no opportunity for compensation for what are often serious injuries or death. Sometimes an insurance company makes an ex gratia payment to an injured party, but that is rare. As it stands, the law offers no protection to the often entirely blameless victims of the automatism defence.

It is not surprising that this effective get-out-of-jail-free card is being used more frequently by defendants. Countries that operate no-fault compensation schemes include France—it has implemented a no-fault standard for serious and unforeseen medical injuries, and a fault standard—and New Zealand, which has also put in place a no-fault compensation scheme with the broadest eligibility criteria; the no-fault standard is applicable to any unexpected treatment injury.

On the Crown Prosecution Service and the police, an article in the International Journal of Law and Psychiatry notes that in a criminal trial, it can be difficult to decide whether to hold responsible a defendant who did the act but claims that their mental state was abnormal because of the lack of objective evidence. There is no brain scan or blood test to measure responsibility. The best witness to what was in the defendant’s mind is usually the defendant, who obviously has an interest in what the court decides.

I have always said that we need good evidence-based policy, but we lack the evidence and statistics about how often automatism is evoked as a legal defence. As I talk to people in the police and the Crown Prosecution Service up and down the country, there is a suspicion in my mind that the defence is increasingly becoming a way for well-heeled people who can get the right solicitor to get off dreadful crimes on the road. We know that there is a group of solicitors who can find some defence to get rock stars or people in the public eye off.

Despite many high-profile cases, we do not know how often this occurs. How many cases are not being brought to trial because prosecutors have lost confidence that they can challenge the evidence? How aware are the police, while they are investigating a case, about people invoking automatism? We need evidence to evaluate whether clever lawyers are using the defence to get people off.

This is about justice for people who can no longer fight their own corner. This Chamber is the right environment for this debate, and I hope I have made a coherent case.

Stalking Protection Bill

Debate between Barry Sheerman and Alex Chalk

3rd reading: House of Commons & Report stage: House of Commons
Friday 23rd November 2018 Commons Chamber

[Alex Chalk]

That is precisely it. The weight of that experience means that something that might be perceived to be innocuous in isolation becomes a deeply upsetting episode. I shall deal with that in a little more detail in due course.

[Mr Barry Sheerman (Huddersfield) (Lab/Co-op)]

The hon. Gentleman might not know this, but I always sit in front of the memorial to my parliamentary neighbour Jo Cox. As the whole House knows, she was a victim of a type of stalking. I served on the anti-stalking commission, and that really opened my eyes to the misery of victims and the fact that very often they do not complain because they are terrified to do so.

[Alex Chalk]

That is absolutely right, and the hon. Gentleman will know that the rise of digital means of stalking has magnified the problem over the past decade or so. It used to be that the stalking might consist of the person turning up at someone’s home address and then doing that threatening but apparently innocuous act of driving past. Of course, people can now stalk others using multiple fake identities. I heard about an appalling case in which somebody had generated the identity of the victim’s dead partner—you could not make it up. They were seeking to harass, intimidate and upset that individual.

When I was working on this issue with my hon. Friend the Member for Gloucester (Richard Graham), it became clear to us that although society and this place had started to react to the issue by generating the offence of stalking, the penalties that existed for it were manifestly inadequate. The penalty at the time of only five years’ imprisonment was less than the maximum penalty for the theft of a Mars bar, which is seven years, and less than the maximum penalty for non-residential burglary—lock-up burglaries and so on—which is 10 years or so, yet stalking can genuinely ruin people’s lives. The sentence was insufficient.

Stalking Protection Bill (First sitting)

Debate between Barry Sheerman and Alex Chalk

Committee Debate: House of Commons & Committee: 1st sitting: House of Commons
Monday 9th July 2018 Public Bill Committees

[Mr Barry Sheerman (Huddersfield) (Lab/Co-op)]

I, too, congratulate the hon. Member for Totnes. I was one of the original members of the commission on stalking, which had members from the House of Lords and the House of Commons. It was pretty new, and it was a very good group. All of us who are still in contact think that the Bill builds on the foundations we created. We thank her immensely and hope the Bill comes to fruition quickly.

[Alex Chalk]

I want to reflect on how far we have come on this issue in such a short time. It is hard to think that stalking was made a criminal offence only in 2012. Prior to that, it was the stuff of almost amusement. It is only now that we, as a society, have come to realise its appalling and corrosive impact. We have made that progress because of great campaigners such as my hon. Friend the Member for Totnes, who has been ably and graciously supported by the hon. Member for Rotherham.

I have one observation. This is an excellent Bill that will provide an important tool for early intervention. Critically, it allows to be placed on the individual not just a prohibition, but a requirement potentially to get some sort of treatment. We all want the stalking to stop, and sometimes the critical factor is to ensure that the individual gets treatment, be that talking therapy or whatever, to address the fixation that has got into his or her head. I hope that magistrates courts will take the opportunity that this excellent piece of legislation provides to protect victims and assist perpetrators.