Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 3

HCA/2015/3144/XJ

Lord Justice Clerk

Lord Brodie

Lord Drummond Young

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in

STATED CASE

by

HELEN ALEXANDER

Appellant;

against

PROCURATOR FISCAL, EDINBURGH

Respondent:

Appellant: S Collins, Solicitor Advocate; Capital Defence

Respondent: Edwards AD; the Crown Agent

 

19 January 2016

[1]        On 3 August 2015, at the Sheriff Court in Edinburgh, the appellant was convicted of dangerous driving contrary to section 2 of the Road Traffic Act 1988.  The libel was that the dangerous driving consisted in the action of falling asleep on 7 September 2014, when driving in Longniddry, causing the appellant’s car to cross the central reservation and to collide with an oncoming car, causing damage to both cars and injury to the passengers in the other car.  At the outset of the trial, the appellant offered to plead guilty to the lesser offence of careless driving in terms of section 3 of the 1988 Act, but this was not accepted by the respondent.

[2]        The appellant had got up at 6.30am.  She had worked a shift as a community staff nurse from 8.00am to 12.30pm, as she had done on the previous day.  She had gone to visit her mother for about three hours.  She was driving home at about 5.00pm when the accident occurred.  The sheriff found that the appellant “had been lethargic and lacking energy as a result of menopausal symptoms”.  There is a specific finding that, “by falling asleep while driving”, the appellant’s driving fell far below what would be expected of a competent and careful driver.  It would be obvious to such a driver that to fall asleep when driving would be dangerous.

[3]        The sole question is whether the sheriff was entitled to convict the appellant of dangerous driving by reason of her falling asleep.  The test for what constitutes dangerous driving is an objective one (Allan v Patterson 1980 JC 57).  It is whether the driving falls far below the standard to be expected of a competent and careful driver and occurs in the face of obvious and material dangers which were or ought to have been observed, appreciated and guarded against (ibid LJG (Emslie) at 60).  It is no defence for a driver to assert that he did not intend to drive in a manner which was dangerous or that he did not intend to fall asleep at the wheel.            

[4]        The act of driving, which is deemed to be dangerous, still requires to be voluntary.  Involuntary actions cannot form the basis for a conviction.  Once a driver is asleep, his actions cannot be said to be voluntary, as he lacks consciousness.  However, the act of falling asleep, in the absence of special circumstances, is a voluntary act and, when it occurs in the context of driving, will usually be regarded as dangerous.  That is because drivers who fall asleep:

“are always aware that they are feeling sleepy, ... there is always a feeling of profound sleepiness and they reach a point where they are fighting sleep …”.

 

Although that is a passage of testimony quoted from R v Wilson [2011] 1 Cr App R (S) 11 (at p 13), it coincides with human experience (see AG’s Reference No. 1 of 2009 [2009] 2 Cr App R (S) 742 at 745; Kay v Butterworth (1945) 61 TLR 452).  It does not require formal proof.  A jury is entitled to infer, from the fact that a driver falls asleep, that, prior to falling asleep, he or she was aware of doing so and ignored the obvious dangers in so doing.

[5]        There may be special circumstances which make falling asleep involuntary.  These include the onset of a medical condition, such as sleep apnoea, narcolepsy or a hypoglycaemic episode (eg Farrell v Stirling 1975 SLT (Sh Ct) 71; Macleod v Mathieson 1993 SCCR 488).  However, a driver who knows of his medical condition, and can foresee that he may fall asleep, will be precluded from relying on that condition.  It is for an accused to put any special circumstances in issue, and thereafter for the Crown to establish beyond reasonable doubt that the act of driving was nevertheless voluntary because the special circumstance ought to have been foreseen (Hill v Baxter [1958] 1 QB 279).

[6]        The court has had regard to the views of the High Court of Australia in Jiminez v The Queen (1992) 173 CLR 572.   However, the decision in Jiminez was based upon a recognition that a driver may have no warning of the onset of sleep (para 19).  There is no basis for such a possibility in this case for the reasons given.  The question must be answered in the affirmative and the appeal refused.