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Can the Defence of Automatism ever work in practice?

Automatism is rarely a defence

Maher Ben Elwaer, a butcher in Norwich, has stated he would need a miracle in order to reopen his store after a car crashed through the front of his shop. Elwaer has claimed £45,000 worth of damages was caused due to the crash which damaged his halal butchers on Magdalen Street in August of 2016. Not only was Elwaer’s shop damaged but he also suffered a number of injuries due to the incident and has been in physiotherapy for months.

The accident is understood to have occurred due to the driver passing out whilst driving which was caused because of a medical emergency. Elwaer was forced to close the shop due to the damage losing even more money. Elwaer’s fear it that he will not receive money from the defendant’s insurance because it will be deemed not to be his fault.

Elwaer claims to be sinking further into debt the longer his shop is out of service, he is continuing to look after himself and his five-year-old son which adds expense, he also has noted fixing the shop is not in his ability. The insurance agency has supposedly finished their investigation providing evidence which suggests automatism and stating Elwaer may not be entitled to any compensation.

The defendant’s criminal solicitors have informed Elwaer that they are raising a defence of automatism, claiming the defendant had no voluntary control of his actions that evening. If the defence is successful then the defendant cannot be held responsible because of their lack of conscious thought at the time of the incident. However, the UK insurance agency, which underwrites the defendant’s insurance company, has claimed that no final decision is made on the incident.

The accident happened in August of 2016, just months after Elwaer claims to have spent £25,000, spending all of his savings, refurbishing his shop. Although the building itself is covered under his own insurance the contents of the shop were not. Luckily, Elwaer has been in receipt of support from generous members of his local community and advise from a number of criminal solicitors.

The crash itself caused physical damage to Elwaer. He had been standing in the shop leaning on one of his displays when the car crashed through the front of the shop. The impact from the white Citroen sent him flying from the display into a wall whilst meanwhile his feet remained trapped beneath the counter. The crash left Elwaer needing hospital treatment for soft tissue damage, which has been caused in his neck and back.

The claim of automatism should be evaluated, as although it has been suggested by the criminal solicitors to be in play, automatism is hard to argue and achieve in court. Claiming to act autonomously is not a defence like consent or self-defence but instead it is a denial of offending. The defendant claims that any act, was not a complete voluntary act, therefore the defendant claims they did not complete the offence. In order to claim automatism, the claim cannot be caused by intoxication or caused by an internal factor; they must be caused by an external element.

In Bratty V A-G Northern Ireland [1963] it was held that automatism means an act, which is done by the muscles without any control of the mind, such involuntary action included spasm, a reflex action or a convulsion. Alternatively, it could be an act done by a person who is not conscious of what he is doing, such as, an act done whilst suffering from concussion or whilst sleepwalking. It is not enough for the defendant to simply not remember his actions or because they could not control an impulse to do said action.

In recent times courts have been skeptical to the idea of automatism. Criminal solicitors have had to work extra hard in order to secure top barristers to take on the cases. Driving offences in particular have become increasingly hard to make a claim of automatism, this is because the courts have not wanted people to drive for too long and then be able to blame their incompetent driving on automatism. Two cases that demonstrate the courts changes in stance are Broom v Perkins and AG Reference (no2 of 1992). In the former the court held that the driver was not completely unconscious therefore they would have had semi-control of the vehicle. In the latter the driver was in a state of unawareness so could focus on basic stimulants and was able to react over short distances but he was in a detached state. It was held that automatism should not be open to the defendant because impaired; reduced or even partial consciousness is still not enough for automatism.

The courts tried to clarify their position of automatism in 2013 with the cases of Kooli, Magi and Harris. In Kooli, the defendant had been smoking cannabis and playing violent video games, during the evening he blacked out. Kooli whilst blacked out, dressed in camouflage gear, picked up a Rambo knife and went to his neighbour’s room where he confronted him. Kooli’s actions were described as a psychotic episode by his criminal solicitors, although this was accepted by the court it was held, due to the complex movements enacted by Kooli this could not be considered automatism.

In McGee, it was clarified by the court that the intake of alcohol and diazepam meant automatism was excluded and only the intoxication rules could be relied on. Following on from this the case of Harris clarified that a psychological state, caused by an alcoholic stopping drinking alcohol, was also not automatism.

In Most cases, the courts do not want to allow automatism to be used as a denial of offending. Especially in driving cases, as highlighted above, the courts are reluctant to allow it. Although Elwaer has been told by the criminal solicitors that there is evidence of automatism, it would still be extremely hard for the evidence to create a verdict in court of not guilty. Unfortunately, even diabetics who have had a hypoglycaemic or hyperglycaemic episode have not been able to rely on the defence in recent times.