Automatism as a Legal Defence

Debate between Nick Thomas-Symonds and Barry Sheerman

Tuesday 14th May 2019 Westminster Hall

[Nick Thomas-Symonds (Torfaen) (Lab)]

It is, as always, a pleasure to serve under you as Chair, Mr Owen. It is also a pleasure to follow the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald); I congratulate him on his speech.

I also refer at the outset to my entry in the Register of Members’ Financial Interests. I am a non-practising barrister now at Civitas Law in Cardiff. I was a practising barrister for a number of years before entering the House, but I practised in criminal law only for a few years at the start of my career at the Bar.

I also warmly congratulate my hon. Friend the Member for Huddersfield (Mr Sheerman) on his opening speech and on bringing this matter before the House. Although they are no longer in their places, I am grateful to my hon. Friend the Member for Leeds North West (Alex Sobel) and the hon. Member for Cheltenham (Alex Chalk) for their contributions to the debate.

I entirely agree with my hon. Friend the Member for Huddersfield about the utility of Westminster Hall, particularly for a debate on an issue such as this, which is very important but none the less quite technical in terms of how we deal with it. I share my hon. Friend’s passion for road safety, and he spoke movingly of a knock on the door bringing extremely bad news about a close family member.

My hon. Friend is also entirely right to say that the automatism defence is little understood, and I think that it is indicative that it has not even been mentioned in Hansard since 2008, which shows how long this House and this Parliament have gone without considering it.

On the issue of statistics, in the past I have argued about statistics in relation to a number of different offences. It is clearly an issue for the Crown Prosecution Service, superintended of course by the Law Officers, to determine what statistics are collected, when they are collected and for which particular offences. Particularly in cases where there are clearly victims who will be extraordinarily affected by the events, it is important that it is transparent as to what has happened at each stage of the process. If something does not reach prosecution in the first place, why does it not reach prosecution? There should be a full explanation. If the matter is discontinued at some stage between charge and trial, why is that? If there is a not guilty verdict in the end, why has that happened? Communication to victims throughout the process is vital.

[Mr Sheerman]

On that point, I said that in Sweden there is an absolutely high-class specialist unit that examines every death on the road, whereas in England and Wales the fact is that there is only very patchy expertise when it comes to investigating such a death. A defence of automatism is quite an unusual thing to happen in a police area and the competences required to investigate it are very specific indeed. Does my hon. Friend agree that, given some of the recent cuts in the police of this country, that aspect of the investigative side of affairs has been badly hit?

[Nick Thomas-Symonds]

My hon. Friend is absolutely right to draw attention to the issue of cuts in police officers affecting things right across the board. Clearly, there are different levels of investigation. For example, if there is an injury in a road traffic accident, that triggers a certain level of investigation, and similarly if there is a death. However, in a sense, the fact that we do not have a body equivalent to the one in Sweden underlines the point that I am making about the need for transparency throughout the process.

By the way, I will also add, regarding the decisions made by prosecutors, that every prosecutor has to apply the code for Crown prosecutors. First, is there a realistic prospect of conviction? Secondly, is it in the public interest to bring a prosecution? If that process is not happening, that needs to be brought to light, and the superintendence by the Law Officers is absolutely vital to ensure that, right through the system, that process is happening. If there is anywhere where it is not happening, that should not be the case.

While I am on the subject of the Crown Prosecution Service, I will refer to the sleepwalking cases that my hon. Friend mentioned. The CPS has recently issued legal guidance about the sleepwalking cases, which should be available to everyone involved in the area, including the prosecutors, on how to challenge the automatism defence appropriately before a judge, if it is raised. If the defence uses expert evidence, which it is likely to, the CPS says this to its prosecuting lawyers:

“Such evidence should always be analysed by an expert for the prosecution.”

That is what we would expect to happen. Indeed, as long ago as 1958, Mr Justice Devlin, in the case of Hill v. Baxter, said:

“I do not doubt that there are genuine cases of automatism, but I do not see how the layman can safely attempt, without the help of some medical or scientific evidence, to distinguish the genuine from the fraudulent.”

We would expect there to be experts on both sides in such a case that came before the criminal courts, and for many of the reasons that my hon. Friend outlined during his fine speech that is how it should be, and I would hope to see that in the criminal courts.

My hon. Friend also referred to the comments of the Law Commission on this issue, and I will come on to them with the Minister. Actually, the Law Commission’s document was very useful, in terms of the need for reform in this area. Looking at the defence of insanity—I appreciate that there is a distinction between non-insane and insane automatism, and I will come to that in a moment—in essence, it goes back to 1843. Frankly, it has not changed much since then, which is a real issue.

The Law Commission accepted the principle of the automatism defence, but it made a substantial number of criticisms of it, regarding what has to be done to bring it up to date and make it fit for the modern day. The Law Commission said:

“We take the view that it is unjust to hold people criminally responsible when they could not have avoided committing the alleged crime, through no fault of their own. Put another way, a person should be exempted from criminal responsibility if he or she totally lacked capacity to conform to the relevant law.”

Of course, that excludes situations where the automatism is self-induced, or situations in which, given what someone did, it was foreseeable that they could end up in a particular state. It excludes that, and so it should, because the defence is very narrow in what it refers to.

The Law Commission has made many important criticisms of the law as it stands. First is the criticism that it is technically deficient. We are distinguishing between the mental and physical elements of the crime, but that is not always possible. It is not easy to see possessing something that is illegal to possess purely as an act; there must be the intent to hold on to it, and it is not easy to make that distinction. Secondly, has the law really kept up with developments in medicine, psychology and psychiatry in how we classify mental illness? No, it has not. It has not changed substantially for more than 150 years. Bizarrely as well, this is not available in magistrates court. Why should it be that the defence is applicable in our Crown courts but not in magistrates? That is clearly a loophole that needs to be dealt with.

There is an argument that defendants can find themselves acquitted but stigmatised because of the word “insanity”, which is still used as it is central to the defence. In addition, and as was at the heart of my hon. Friend’s speech, how does the defence sit with the victim’s human rights? Like everyone else, the victim in these cases is entitled to the right to life—article 2 of the Human Rights Act 1998—and where there has been a tragic death that article has been clearly violated.

There is also article 3 on inhuman and degrading treatment, and article 8 on the right to a private life. We really must ensure that the defence, as it is framed today with appropriate safeguards, is compatible with the victim’s human rights. One can understand the situation in the road traffic incidents described by my hon. Friend, where either automatism has ended up, it seems, with prosecutors not seeing the case as passing the evidence test or something has happened further down the line, with victims not being aware of why that had happened. That is a real issue.

[Mr Sheerman]

May I make a cynical point? A road traffic academic expert pointed out to me that it is ironic that the number of cases in which people plead automatism has risen almost exactly in parallel with the use of mobile phones in cars.

[Nick Thomas-Symonds]

There may well be a number of reasons for that; we may simply have more offences. However, I entirely take on board my hon. Friend’s point, and it would indeed reinforce the need for an understanding and an awareness of the defence and why certain cases are not being proceeded with or are not successful.

The other point I make to the Minister is about Parliament as it is at the moment. The Law Commission has papers about reform of the law—not just on automatism, but in many other areas too—that would not be partisan and would be likely to command widespread support. We have not had a vote in Parliament for the past month, so it seems that at this point in our parliamentary history, and when the Law Commission has made recommendations, there is room in the timetable for laws to be introduced. If this situation of so little substantive business continues, real thought ought to be given in Government to at least trying to use the time productively on matters that, while perhaps not partisan, would make a big difference to the lives of our constituents.