Controversy after not proven verdict is returned in dangerous driving trial - Roz Boynton

There was controversy last month when a jury returned a ‘not proven’ verdict against a car driver following a trial at the High Court in Glasgow.

Roz Boynton, Associate, Road Traffic Accident Law (Scotland) LLP

Jordan McDowall, 21, was acquitted of causing the death by dangerous driving In 2018, of cyclist Kevin Gilchrist, 51, a husband and father-of three.

Jordan McDowall pleaded not guilty to the charge of causing death by dangerous driving, claiming she had no recollection of the incident. She did not argue she had some new or sudden medical condition of which she was not previously aware – but that she simply could not recall what had happened and there was a ‘gap’ in her memory.

Although the decision is controversial, the legal defence behind it is perhaps even more so and wasn’t widely reported. In criminal law, to be convicted of most crimes, it must be shown you have criminal intent, through wickedness or recklessness. If it can be shown the accused was not in control of their actions due to no fault of their own and have no knowledge of the incident, a defence of automatism will be argued and can be sufficient to secure acquittal.

Automatism- one of the six special defences to a crime in Scotland (along with self-defence, necessity, alibi, incrimination and insanity) - is where someone involuntarily loses control of their body through no fault of their own. For example, if a driver with no previous medical history, suddenly and without warning, suffers an epileptic fit whilst driving and kills or injures another road user, they could use the defence of automatism against criminal charges.

Whilst automatism is a defence to criminal charges, what of civil law? Is it fair and equitable to use it as full defence in civil cases, denying compensation to those injured or bereaved by a driver who had no control of their actions at the point of collision?

In civil cases for damages, it is up to the injured person to establish negligence. There can be no negligence if a driver’s action is involuntary, so compensation can be denied to those injured through no fault of their own. Take the example where the driver who suffers an unexpected epileptic fit causes life-changing injuries to a young woman, meaning she will suffer life-long pain and never work again. The driver is fully insured, yet despite a valid policy of insurance, the young woman cannot recover compensation for her injuries and loss.

Where automatism is argued in a civil case, it is up to the defender, often an insurer, to establish their policyholder was not in control of their actions. Careful investigation can defeat the defence of automatism, often by scrutiny of medical records and detailed investigation as to the general health of a driver in the days before the collision.

In a legal system where there is already compulsory insurance for drivers, a defence of automatism ought to be removed for civil cases. This would allow those injured through no fault of their own, to obtain compensation for their injuries and tragically, like the family of Kevin Gilchrist, the loss of their loved ones.

Roz Boynton, Associate, Road Traffic Accident Law (Scotland) LLP