2012 Koestler awards: Blossom, Reaside Clinic

My dearly loved brother was killed in a head on collision when a motorist, having gone onto the nearside grass verge , changed direction and steered the car back onto the road and crossed completely onto the wrong side of the road.

The defence pleaded insane automatism.

Their case was based on one isolated abnormality found on an ECG some 10 or 11 months after the collision. The CPS produced a forensic investigator at court but no medical ‘expert’ witnesses, the defence produced five. We requested a meeting with the prosecution barrister to discuss the cross examination of the defence’s ‘expert’ medical witnesses in view of the fact that the jury heard evidence only from the defence, but this was refused.

The defendant was found not guilty by reason of ‘insanity’ and given an absolute discharge with no restrictions.

Following the trial we petitioned against the CPS’ management of the case, the trial proceedings and the outcome. We were told by the CPS that we would have to go through the CPS’s complaint process; we duly did believing this would allow us to be heard.

We were not told that all the CPS would do was to look at the way the complaint was handled not at the complaint itself. We contacted the HMS CPS Inspectorate; they informed us they would not look at individual cases. We contacted the Office for Judicial Review they told us they would not be able to look into our concerns at the court proceedings.

No right of appeal
We have been told by leading lawyers that, despite agreeing that “the case was handled disastrously” and that we had “strong confirmatory evidence that the outcome was wrong”, we have no rights of appeal within the law because “we were not a party to the proceedings”.

We were told in court by the judge that sympathy plays no part in court proceedings and we understood that, but we expected the rule of law to be upheld in the name of justice.

The issues that we asked to be addressed were the acceptance of the plea of insane automatism based on the fact that we believe that there wasn’t a proper legal foundation for the automatism defence, and secondly the testing of the medical evidence.

The only evidence that the defence produced was referred to by the CPS as general, which gave hypothetical situations which they viewed as irrelevant as there was no evidence of them occurring at the time. The report by the neuropsychiatrist was also referred to as not taking the case forward.

Automatism
For background, the defence of automatism is available if a person totally lacked control of his or her body at the time of the offence, and that lack of control was not caused by his or her own prior fault.

The law has adopted a distinction between the accused’s lack of control as to whether it was due to an internal factor (insane automatism) or external factor (sane automatism).

Under the present law, if the defendant claims his or her loss of control was due to a condition which constitutes an internal malfunctioning of the body (amounting to a “disease of the mind”) that constitutes a plea of “insane automatism” within the M’Naghten Rules. The onus is then on the defendant to prove on the balance of probabilities that he or she was suffering from that condition and that it caused the insane automatism and that the elements of the insanity plea are met.

If the plea is based on sane or insane automatism then there must be no control over the driving. AG’s Reference (No 2 of 1992) holds that in driving offences “the defence of automatism requires that there was a total destruction of voluntary control on the defendant’s part impaired, reduced or partial control is not enough”. This issue has been consistently adopted when the plea is raised inroad traffic offences (Watmore v Jenkins 1962). Without this requirement a proper foundation for the plea of sane or insane automatism cannot be made.

During our quest to be heard, I have contacted many legal experts and academics who have kindly availed me of their time and their expertise. Those most prominent in my account that follows and who have been unwavering in their support are Professor Ronnie Mackay, a professor of criminal policy and mental health at De Montford University (and consultee to the Law Commission’s discussion paper on Insanity and Automatism), and John Rumbold, a postgraduate researcher at Keele University,

Professor Mackay said the law clearly requires a complete loss of control on the driver’s part. This was made clear by the Court of Appeal in Attorney-General’s Reference (No 2 of 1992) which should have been raised by the CPS. Once the issue is raised, the judge must hear legal argument in the absence of the jury, to decide whether there was a proper foundation for the automatism defence and whether or not to withdraw the automatism plea from the jury. If he had done so, they would not have had to consider it at all, as once the defence went to the jury the issue of reduced awareness becomes just a question of fact rather than a question of law.He commented further by saying that it was odd that the trial judge chose to ignore this clear authority, that the vital point of a total destruction of voluntary control on the defendant’s part was ignored by the judge, yet testimony from the defence’s experts referred to the fact that there may have been only reduced awareness was used many times as part of the judge’s summing up. All of this testimony needed to be at least questioned by the CPS in the light of the need for “a total destruction of voluntary control”.

The CPS stated: “There was evidence that the defendant’s car suddenly left the carriageway travelled a distance along the verge before returning to the road and continuing across the centre line and end with the collision completely on the wrong side of the road.”

The prosecuting barrister for the CPS argued in court that the defendant had over steered after going onto the verge and ended up on the wrong side of the road. He argued that this manoeuvre proved he had been in a reasonable state of consciousness. “The reality of this is that, for a very short period of time, you took your eyes off the road and then over steered as you attempted to correct this error, and collided with…,’ he said.

Professor Mackay commented on the fact that at the very least he would have expected the CPS to have their own experts testify on this point.

So why was this point not fully pursued?

I contacted Professor Maden, professor of forensic psychiatry at Imperial College, London. He replied by saying “that the first step in the insanity defence is to establish that there is a disease of the mind”. Although the term has been interpreted as referring to serious mental illnesses as well as diseases of the brain, it would have to be a well established medical condition so a “hypothetical medical condition with no foundation” would not qualify. There would have to be evidence of the disease of the mind independent of the act of killing, i.e. one can’t use the offence as the only evidence of insanity”

I contacted John Rumbold for his opinion, he was not only generous with his response but contacted a consultant cardiologist and cardiac electro-physiologist for his review of the evidence. I am not aware that any of the ‘expert’ witnesses called by the defence were specialists in this field of cardiology. The cardiologist referred to the isolated finding produced by the defence as of little significance since three seconds of arrhythmia would not result in a loss of consciousness (interestingly this was reiterated by the defence experts). His opinion was that the overwhelming likelihood was that an arrhythmia was not the cause of the crash.

John Rumbold has written that there are a number of cases reported in the media that illustrate the weak medical evidence that has supported successful automatism and insanity defences. As part of his thesis he wrote that he was able to interview one lady (namely myself) who had been profoundly affected by the death of her brother, where the accused was charged with causing death by careless driving, but was found not guilty by reason of insanity.

He commented further by saying, as this was a case of insane automatism, the burden of proof was on the defence to prove a cause of insanity on the balance of probabilities. He said it was difficult to understand why the defence succeeded, and reform of the law on automatism probably would not help in cases like this, the issue of admissibility of evidence is more relevant. He went onto say that the medical evidence just doesn’t seem to satisfy the level of proof required and that he really didn’t know why the jury were persuaded. He wondered whether the jury were correctly directed by the judge or from what I’d said that the CPS didn’t really challenge the evidence effectively. He felt the biggest issue seemed to be the testing of the medical evidence. If the defence offer such weak medical evidence, it was up to the prosecution “to rip it to shreds”.

It has already been mentioned that in road traffic offences that the law clearly requires a complete loss of control on the driver’s part.

“I don’t think it’s a problem with the legal principles involved with the insanity defence but all to do with the correct application of the law”.
John Rumbold

Professor Mackay suggested that the only route would be an Attorney-General’s Reference but thought it unlikely in the light of the fact that the law is already clear as a result of Attorney-General’s Reference ( No 2 of 1992) and therefore the plea of insane automatism should not have been accepted in the first place.

How can it be that we are told our only recourse is a civil action when the law is clear on what should have happened?

Who will listen?

Where do we go from here?