Roymondo:
Stanley Knife:
djw:
the driver would have a complete defence to any offences committed whilst he was unconscious called non-insane automatism as the driver was not in control of his actions for a reason that was not his fault.
Looking at this through a layman’s eyes, does the issue of the false statements he made about his medical condition not have any bearing on the above in bold? Does cause and effect not apply legally?
No. From a legal standpoint there is no link between the false statements made in order to renew his licence/get the job and the driving on that day.
The offences of (Causing Death by) Careless or Dangerous Driving take no account of whether the driver had the correct licence, experience or permission to be driving - and as stated earlier, the fact that he was unconscious at the time means he has a complete defence to any such charge.
Stanley Knife highlighted “that was not his fault” in my earlier post. The defence of non-insane automatism does not apply if you were responsible for your unconsciousness at the time in question - but this only really excludes voluntary intoxication by drink or drugs, also falling asleep when tired.
For what are hopefully fairly obvious reasons, the law holds a person responsible for anything they do whilst drunk or impaired through drugs; if it did not, you could drink 10 pints, murder someone and potentially have a complete defence on the basis that you were too drunk to be aware of what you did. Equally, the law holds drivers responsible for the consequences of driving when tired, as they should have known there was a risk of losing control through falling asleep.
I believe the driver in the Glasgow crash is believed to have (or has actually been diagnosed with) vasovagal syncope, which is where the body overreacts to certain events by dropping blood pressure, leading to a faint and unconsciousness. Even with the limited treatments available and the patient learning to recognise their triggers, they cannot avoid all episodes and their response when they do become unconscious is entirely involuntary.
Under the law of England and Wales, the highest charge potentially applicable to the circumstances would be manslaughter by gross negligence. This is a somewhat unusual offence under criminal law, in that some elements of the requirements for conviction are imported from the civil law of negligence - that a duty of care is owed, that duty was breached, and that the breach led to the death (referred to as ‘causation’). There is a requirement that the negligence is ‘gross’, which is that it shows such a disregard for the life and safety of others that it amounts to a crime.
It seems very unlikely a conviction for manslaughter by gross negligence would be possible had the Glasgow crash taken place in England and Wales.
It could probably be argued successfully that a driver owed a duty of care to declare a potentially impairing medical condition to DVLA, as it is a criminal offence to fail to declare (animal seemed to imply there is no requirement to tell DVLA about an impairing medical condition unless they ask, which is incorrect - failure to declare is an offence leading to a fine of up to £1000 on conviction). It might also be possible to establish that a driver owes a duty of care to stop driving if they should have known from previous events that there is an elevated risk of them becoming unconscious at the wheel.
However, it is difficult to argue successfully that a driver’s failure to recognise that their elevated risk of unconsciousness should lead them to stop driving (by declaring to DVLA and submitting to DVLA’s decision, or deciding to stop driving by themselves) caused the fatal crash. The immediate cause of the fatal crash was the driver becoming unconscious at the time in question, not the driver’s omission by failing to recognise and respond to his previous history of unconsciousness. Under the civil law of negligence, any cause that is not 50% responsible for the events in question is disregarded, and I believe this would also apply to manslaughter by gross negligence.
In any event, the defence of non-insane automatism would be available and likely to apply to any manslaughter charge.
Scots criminal law does not have manslaughter, but instead has an offence known as culpable homicide. My knowledge of Scottish law is rather limited, but involuntary culpable homicide works along very different lines to manslaughter by gross negligence. There is no requirement to establish a duty of care. Instead, it is necessary to show that the defendant showed complete disregard as to the dangers and consequences of his conduct. The driver’s conduct only became impaired at the time he became unconscious, but the unconscious person cannot form any sort of intent or disregard - they are acting in a manner entirely out of their control, which is non-insane automatism when the person is not responsible for their unconsciousness.
The difficulty of showing manslaughter or culpable homicide in driving cases are why the offences of causing death by dangerous driving and, later on, causing death by careless driving were introduced. As Raymundo notes, conviction for these offences and all other road traffic offences relating to the crash itself appears impossible because of the availability of the non-insane automatism defence.
It would have been open to the Scottish authorities to prosecute the driver for making false statements about his health when renewing his LGV entitlement and when applying for the job. Under the law of England and Wales, any false statements could be seen as fraud (not least, in relation to the driving licence, the offence of fraud by failure to disclose information contrary to s. 3 Fraud Act 2006), though Scots law in this area is different and the position might be much less clear. There is also possible offence of failure to declare the medical condition to DVLA, though that can only result in a fine of up to £1000.
However, it is unclear whether there was a clear failure by the driver to declare a medical condition. There clearly had been a history of a few episodes of fainting or unconsciousness, but I’m unclear whether these were recognised as a medical condition until after the fatal crash. What is being said by lawyers acting on behalf of the deceased during the Fatal Accident Inquiry, and being reported in the media, is said with the benefit of hindsight and is just that lawyer’s potentially unsustainable argument.
The public interest is taken into account in any decision to prosecute. What is more important - the driver’s full co-operation with the Fatal Accident Inquiry, or a possible conviction for covering up his medical history when he applied for his driving licence or his job?
Nothing can bring back the deceased. If the media is to be believed, the driver’s car and vocational (LGV and PCV - I believe he held both) entitlements have now been revoked by DVLA. The driver appears to have co-operated fully with the Fatal Accident Inquiry and hopefully lessons will be learned as a result. The driver has been publicly pilloried by the media. Maybe the public interest has been served by a decision not to prosecute.
In any event, it now seems impossible to prosecute the driver for any false statement offences, as his lawyers could argue that his chances of a fair trial have been prejudiced by the Fatal Accident Inquiry proceedings. If there was to be a trial, it would really have had to take place before the FAI.
