Dr John Rumbold, Lecturer at NLS NTU https://www.ntu.ac.uk/staff-profiles/law/john-rumbold
In July 2023, a Land Rover Defender crashed through a fence outside a prep school in Wimbledon, London. The school was holding an end of year party, and the car crash killed two eight-year-old girls in the playground and injured several others. The result of the investigation into the Wimbledon school crash demonstrated the relevance of the doctrine of prior fault in cases of a sudden loss of control (automatism). Early reports made it appear likely that the Wimbledon school was due to a medical episode at the wheel. The footage showed the vehicle driving in a straight line without any attempt at braking. This is strongly suggestive of a complete loss of consciousness.
The investigation found that the cause of the accident was that the driver had suffered an epileptic seizure. The police and CPS were satisfied that the driver had not suffered previous seizures and that she was previously in good health. The families do not believe that justice had been done.
There are various medical conditions that can cause a sudden and compete loss of control. Examples include strokes, syncope, sleep apnoea and seizures. Syncope is a “blackout”, “fainting” or “passing out” and has a number of different causes. If these episodes occur whilst driving, then a serious incident is likely to occur. Past examples include the Selby rail disaster (sleep deprivation), the Glasgow bin lorry crash (blackout), and the M53 school bus crash (collapse at the wheel, probably a cardiac arrest).
The criminal defence of automatism simpliciter (also known as non-insane automatism) requires a total loss of voluntary control. Someone who has suffered a major stroke, syncope, seizure, or a sudden loss of consciousness by falling asleep has no control over their limbs. They cannot be held responsible for their actions or (more importantly in the case of driving) omissions at the time of the incident.
However, there are good reasons to hold people responsible for driving when they are aware of dangerous medical conditions. They also have a responsibility to prevent the development of conditions such as hypoglycaemia (low blood sugar) due to the treatment of diabetes. They also have a responsibility not to drive when they have not had enough sleep, or at the very least recognise when they are in danger of falling asleep at the wheel. The Selby rail disaster is an example of this. If someone has an epileptic seizure or blackout for the first time or subsequently, they need to inform the DVLA. They are also legally required to stop driving immediately, even before their driving licence is taken away.
If the driver gets behind the wheel in a dangerous state, having a condition likely to suddenly cause a total loss of control, then they can be held criminally responsible on the basis of prior fault. A criminal offence typically requires both a physical element (the actus reus) and a mental element (the mens rea) occurring at the same time. The requisite mens rea is satisfied at this stage, when they start driving knowing that they have a dangerous condition. This is when the act of driving starts, which continues until the time of any criminal offence that revolves around a crash. We can therefore say that the mens rea and actus reus occurred at the same time.
The importance of prior fault to criminal responsibility is not always appreciated, as a commentary submitted by myself and colleagues to Sleep Medicine Review highlighted. I was responding to an article that stated that where the defendant has particular features of sleepwalking, they should not be found responsible. We reminded readers that a state of automatism is not enough to excuse a defendant in all circumstances.
Cases of sleep apnoea are examples of where prior fault is in play but not always as easy to prove to the satisfaction of the jury. When someone has sleep apnoea, they suffer from sleep deprivation due to frequently waking during the night and experiencing poor-quality sleep. This results in excessive daytime sleepiness; and sufferers from sleep apnoea fall asleep in unusual circumstances, and may fall asleep at the wheel. Although patients often do not appreciate quite how badly they are affected by sleep apnoea, they are likely to realise that there is something wrong. Despite the potential for a finding of criminal responsibility, juries often acquit defendants responsible for accidents due to sleep apnoea. This is in contrast to the driver in the Selby rail disaster.
If the person is deemed to have had some warning of becoming unwell, they may be found criminally responsible if they carry on driving despite these warning signs. This is often the situation with drivers with diabetes.
The situation here appears to be that the driver was blameless. Despite the tragic consequences, after the first investigation it was determined that there were no grounds for charging her given that she had no prior warning of the possibility of an epileptic fit. The reaction of the families is perhaps understandable, but justice is not only about blame and punishment. Sometimes there is no one to blame.
However, the investigation into the Wimbledon crash is not over. Following the complaints of the affected families, a new investigation was opened on the 24th October 2024. A spokesperson stated they had "identified a number of lines of inquiry that require further examination". It is difficult to envisage what these new lines of inquiry might be, but time will tell if any prosecution and conviction results from this new investigation.
Further Reading
Horne, J. and Rumbold, J., 2015. Sleep-related road collisions. Medicine, Science and the Law, 55(3), pp.183-185.
Rumbold, J., 2013. Automatism and driving offences. Journal of forensic and legal medicine, 20(7), pp.825-829.
Rumbold, J., Morrison, I. and Riha, R., 2024. Commentary on Castelnovo et al the parasomnia defense in sleep-related homicide. Sleep Medicine Reviews, 76, pp.e101952-e101952.
Wasik, M. and Rumbold, J., 2011. Case comment: Diabetic drivers, hypoglycaemic unawareness, and automatism. Criminal Law Review, (11), pp.863-872.
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