Dangerous driver loses appeal against conviction as falling asleep at wheel is a ‘voluntary act’

Judges in the Criminal Appeal Court ruled that in the absence of special circumstances the act of falling asleep is a “voluntary act” and that a jury is entitled to infer that a driver is aware that that they are about to fall asleep and “ignored the obvious dangers” of doing so.

The Lord Justice Clerk said: “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.”

Lord Carloway, sitting with Lord Brodie and Lord Drummond Young, heard that on 3 August 2015 at Edinburgh Sheriff Court, the appellant Helen Alexander 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 Crown.

The court was told that the appellant had got up at 6.30am and had worked a shift as a community staff nurse from 8am to 12.30pm.

She had then gone to visit her mother for about three hours and was driving home at about 5pm when the accident occurred.

The sheriff found that the appellant “had been lethargic and lacking energy as a result of menopausal symptoms”.

There was also 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”.

The appeal judges observed that the act of driving, which is deemed to be dangerous, still requires to be voluntary, and that involuntary actions cannot form the basis for a conviction.

Once a driver is asleep, their actions cannot be said to be voluntary, as they lack 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, 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…”.

Delivering the opinion of the court, the Lord Justice Clerk said: “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.

“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.

“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.”

The court had regard to the views of the High Court of Australia in the 1992 case of Jiminez v The Queen, but that was based upon a recognition that a driver may have no warning of the onset of sleep, and there was “no basis for such a possibility in this case,” the judges said.