As solicitors specialising in motoring and haulage law, our team has been involved in its fair share of dangerous driving prosecutions.
As a result, it is rare to come across a case that surprises us.
Recently though, we secured a client’s acquittal by demonstrating that she was an ‘automaton’ at the time she was driving dangerously. With our client’s kind permission, and the assistance of her bariatric physician as expert witness, we can shed some light on this rare defence.
By definition, automatism is when a particular act is committed during a state of ‘unconsciousness’, or when consciousness is severely impaired, with no criminal intent.
Automatism can be a defence in court in relation to road traffic incidents, whereby a person cannot be held responsible for their actions if they were not ‘conscious’ or had no control over their body at the time.
These episodes can be a result of a number of health conditions, where a person can lose control of a vehicle due to an epileptic fit or certain symptoms surrounding hypoglycaemia, a condition relating to the impacts of low blood sugar.
It was hypoglycaemia that took hold of this particular client.
As part of the case, we needed to gather evidence to persuade the court that our client’s actions were down to the following hypoglycaemic episode.
At around 11 am on Friday 11th October 2019, the defendant was driving a black Volkswagen Transporter the wrong way along the A448 Bromsgrove Highway for five miles in lane two.
Being an already congested stretch of dual carriageway, dashcam footage shows the defendant travelling at a considerable speed towards oncoming traffic, narrowly avoiding head-on collisions with at least six other vehicles.
The footage also shows drivers swerving and notifying the defendant of their driving by flashing their headlights to warn her of the dangers.
Our client is seen to slow down on a number of occasions, but continues her journey the wrong way down the carriageway, although there was plenty of opportunity to pull over or exit the road.
This level of driving fell far below the standard that would be expected of a reasonable and competent driver, and so undoubtedly amounted to dangerous driving.
But, the client’s explanation highlighted how she had no recollection of the event and only remembered being parked up close to a barrier feeling confused a few minutes following the incident.
Our client prepared a statement for the police, recalling the morning of the event as being busy; dropping her children off at school, and not having eaten much that day.
At the time of the incident, our client had been driving to a dental appointment but did not remember driving up the wrong side of the dual carriageway.
Her next memory was of being stopped at a roundabout. In confusion, she then drove to a nearby supermarket car park.
Since the incident, our client has been diagnosed with ‘Reactive Hypoglycemia’.
In legal terms, if a defendant can raise credible evidence that she was temporarily not in control of her vehicle due to a ‘hypoglycaemic episode’, there will be grounds for a defence of automatism.
To raise this as credible evidence in court, there must be:
- An expert opinion stating that if the defendant was to suffer from this condition, this may explain why the incident occurred
- Evidence from the defendant about the incident, giving an opportunity for the case to be tested in court
The Court of Appeal has stated that the defence of automatism requires a ‘total destruction of voluntary control’ on the defendant’s part.
Alternatively, the defence would fail in court if the prosecution was able to establish that the defendant was aware of the risks or chose to drive whilst she was already feeling unwell.
It was, therefore, necessary to obtain an expert medical opinion as part of the case. We were able to discuss the defendant’s medical history with her bariatric physician, a consultant in chemical pathology and metabolic medicine.
The consultant explained that our client was referred and first seen in the clinic on 4th December 2019, where she was complaining of funny turns and sweating from time to time.
Prior to these episodes, our client had undergone a ‘Roux-en-Y’ gastric bypass at Walsall Hospital in 2012 for obesity and was not made aware of the long term effects of the surgery.
In 2015, our client had also undergone a cholecystectomy, a repair of an incisional hernia in 2016, along with two previous Caesarean sections.
The consultant was quick to notice that the particular procedures our client had undergone may have been the reason behind her funny turns, following new medical evidence.
Over the last decade, there has been a large increase in the number of Roux-en-Y gastric bypass operations performed, and concerning long-term health complications have more recently come to light.
Following bariatric surgery, medical professionals have noticed two causes of hypoglycaemia including ‘dumping syndrome’ and ‘postprandial hyperinsulinaemic hypoglycaemia’.
Nonspecific postprandial symptoms attributable to hypoglycaemia (low blood sugar) are rather common in patients who have had gastric bypass surgery but don’t show symptoms until many months or even years later.
To confirm a hypoglycaemia diagnosis, a mixed meal test was arranged on 13th January to monitor our client’s response to food as evidence of the condition.
On the test day, our client became hypoglycaemic in response to a meal and was symptomatic at this time.
When she was hypoglycaemic she had difficulty in counting down from 100 and exhibited ‘neuroglycopenic’ effects, where there is a shortage of glucose in the brain and brain function is affected. This can change the behaviour of the patient.
Upon the results, the test confirmed that our client has hypoglycaemia in response to a meal.
As the symptoms have only come to light many years after her gastric bypass, medical professionals also presented that the response is likely to represent postprandial hyperinsulinaemic hyperglycaemia.
This is now a recognised long term effect of surgery, and as our client ate the same meal that she had on the day she was driving, professionals stated that it is possible she was hypoglycaemic at the time of driving.
As a result of this, following a diagnosis of the rare condition of ‘hyperinsulinaemic hypoglycaemia’, the Regan Peggs team was able to successfully win the case for their client.
Regan is an accredited mediator and arbitrator. He is a member of the Chartered Institute of Arbitrators and a panel mediator for ADR ODR International. Regan has experience in mediating commercial, family and local political disputes, and representing his clients in those sessions.
Regan is a former Chair of the Board of Directors at the Birmingham Law Society and a former chair of its Criminal Law Committee. He has been a lecturer for law students at the Open University. He is the only defence solicitor in the UK to be regularly invited to address international military students at the Royal College of Defence Studies.
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