DPP v Majewski [1976] UKHL 2

House of Lords

Between

DPPAppellant

MajewskiRespondent

My Lords,

Robert Stefan Majewski appeals against his conviction on 7th November 1973 at Chelmsford Crown Court on three counts of assault occasioning actual bodily harm and three counts of assault on a police constable in the execution of his duty. He was bound over to come up for judgment when called upon. On 5th December 1973 he was placed on probation for three years. Later he committed a further offence for which he was given an additional sentence of six months imprisonment for the original offences.

The appellant's case was that when the assaults were committed he was acting under the influence of a combination of drugs (not medically pre- scribed) and alcohol, to such an extent that he did not know what he was doing and that he remembered nothing of the incidents that had occurred. After medical evidence had been called by the defence as to the effect of the drugs and drink the appellant had taken, the learned judge, in the absence of the jury ruled that he would direct the jury in due course that on the charges of assault or assault occasioning actual bodily harm, the question of whether he had taken drink or drugs was immaterial. The learned judge directed the jury that in relation to an offence not requiring a specific intent, the fact that a man has induced in himself a state in which he is under the influence of drink and drugs, is no defence. Since the counts for assault did not require proof of any specific intent, the fact that the accused might have taken drink or drugs was irrelevant, provided the jury was satisfied that the state which he was in as a result of drink and drugs or a combin- ation of both was self-induced. He concluded ". . . upon my direction in " law you can ignore the subject of drink and drugs as being in any way a " defence to any one or more of the counts in this Indictment". In dealing with assault, he directed that it meant some blow or kick, " not something " which is purely accidental ".

In view of the conclusion to which I have come that the appeal should be dismissed and of the questions of law which arise in the case, it is desir- able that I should refer in some detail to the facts, which were largely undisputed. During the evening of 19th February 1973 the appellant and his friend, Leonard Stace, who had also taken drugs and drink, went to the Bull public house in Basildon. The appellant obtained a drink and sat down in the lounge bar at a table by the door. Stace became involved in a disturbance. Glasses were broken. The landlord asked Stace to leave and escorted him to the door. As he did so, Stace called to the appellant:

" He's putting me out."

The appellant got up and prevented the landlord from getting Stace out and abused him. The landlord told them both to go. They refused. The appellant butted the landlord in the face and bruised it, and punched a customer. The customers in the bar and the landlord forced the two out through the bar doors. They re-entered by forcing the outer door, a glass panel of which was broken by Stace. The appellant punched the landlord and pulled a piece of broken glass from the frame and started swinging it at the landlord and a customer, cutting the landlord slightly on his arm. Majewski then burst through the inner door of the bar with such force that he fell on the floor. The landlord held him there until the police arrived. The appellant was violent and abusive and spat in the

landlord's face. When the police came, a fierce struggle took place to get him out. He shouted at the police:

" You pigs, I'll kill you all, you f. . . " pigs, you bastards."

P.C. Barkway said the appellant looked at him and kicked him deliberately.

P.C. Bird was kicked on the shins. During the struggle to get the appellant into the police car he said to P.C. Barrett: "You bastard, I'll get you" and then kicked him.

The appellant was placed in the cells of Basildon Police Station. The next morning Police Inspector Dickinson heard banging and saw the appellant in his cell trying to remove a metal flap under the bed platform. The Inspector asked him what he was doing. According to the Inspector he said:

" Come in here and I will stripe you with this. I'll break your neck "

. The Inspector and other officers entered the cell. Before he was restrained, he struck the Inspector with the handcuffs on his wrists. Dr. Mitchell arrived and gave him an injection.

Cross-examined as to the appellant's condition that evening the publican said he seemed to have gone berserk, his eyes were a bit glazed and protruding. A customer said he was " glarey-eyed ", and went " berserk " when the publican asked Stace to leave. He was screaming and shouting. A policeman said he was in a fearful temper.

The appellant gave evidence and said that on Saturday, 17th February 1973, he bought, not on prescription, about 440 Dexadrine tablets (" speeds ") and early on Sunday morning consumed about half of them. That gave him plenty of energy until he " started coming down ". He did not sleep through- out Sunday. On Monday evening at about 6 p.m. he acquired a bottle full of sodium nembutal tablets which he said were tranquillisers—" downers ", " barbs " and took about 8 of them at about 6.30.

He and his friends then went to the Bull. He said he could remember nothing of what took place there save for a flash of recollection of Stace kicking a window. All he recollected of the police cell was asking the police to remove his handcuffs and then being injected.

In cross-examination he admitted he had been taking amphetamines and barbiturates, not on prescription, for two years, in large quantities. On occasions he drank barley wine or Scotch. He had sometimes "gone " paranoid ". This was the first time he had " completely blanked out ".

Dr. Bird called for the defence, said that the appellant had been treated for drug addiction since November 1971. There was no history in his case of psychiatric disorder or diagnosable mental illness, but Majewski had a personality disorder. Dr. Bird said that barbiturates and alcohol are known to potentiate each other and to produce rapid intoxication and affect a person's awareness of what was going on. In the last analysis one could be rendered unconscious and a condition known at pathological intoxication can occur, but it is uncommon and there are usually well-marked episodes. It would be possible, but unlikely, to achieve a state of automatism as a result of intoxication with barbiturates and alcohol or amphetamines and alcohol. Aggressive behaviour is greater. After a concentration of alcohol and barbiturates it was not uncommon for " an amnesic patch " to ensue.

In cross-examination, Dr. Bird said he had never in practice come across a case of " pathological intoxication " and it is an unusual condition. It is quite possible that a person under the influence of barbiturates, ampheta- mines and alcohol or all three in combination may be able to form certain intentions and execute them, punching and kicking people, and yet after- wards be unable to remember anything about it. During such " disinhibited " behaviour " he may do things which he would not do if he was not under the influence of the various sorts of drink and drugs about which evidence has been given.

In a statement Dr. Mitchell expressed the opinion that at the police station on the morning of 20th February, the appellant was completely out of control mentally and physically, which might have been due to " withdrawal symptoms ".

The Court of Appeal ([1975] 3 W.L.R. 401) dismissed the appeal against conviction but granted leave to appeal to your Lordships' House certifying that the following point of law of general public importance was involved:

" Whether a defendant may properly be convicted of assault not- " withstanding that, by reason of his self-induced intoxication, he did " not intend to do the act alleged to constitute the assault".

The appeal raises issues of considerable public importance. In giving the judgment of the Court of Appeal Lawton L.J. rightly observed that " The facts are commonplace—indeed so commonplace that their very " nature reveals how serious from a social and public standpoint the " consequences would be if men could behave as the [appellant] did and " then claim that they were not guilty of any offence ". Self-induced alcoholic intoxication has been a factor in crimes of violence, like assault, throughout the history of crime in this country. But voluntary drug taking with the potential and actual dangers to others it may cause has added a new dimension to the old problem with which the courts have had to deal in their endeavour to maintain order and to keep public and private violence under control. To achieve this is the prime purpose of the criminal law. I have said " the courts ", for most of the relevant law has been made by the judges. A good deal of the argument in the hearing of this appeal turned on that judicial history, for the crux of the case for the Crown was that, illogical as the outcome may be said to be, the judges have evolved for the purpose of protecting the community a substantive rule of law that, in crimes of basic intent as distinct from crimes of specific intent, self-induced intoxication provides no defence and is irrelevant to offences of basic intent, such as assault.

Mr. Tucker's case for the appellant was that there was no such sub- stantive rule of law and that if there was, it did violence to logic and ethics and to fundamental principles of the criminal law which had been evolved to determine when and where criminal responsibility should arise. His main propositions were as follows: —

I. No man is guilty of a crime (save in relation to offences of strict

liability) unless he has a guilty mind.

II. A man who, though not insane, commits what would in ordinary

circumstances be a crime when he is in such a mental state (whether it is called " automatism " or " pathological intoxication " or anything else) that he does not know what he is doing, lacks a guilty mind and is not criminally culpable for his actions.

This is so whether the charge involves a specific (or " ulterior ") intent or one involving only a general (or " basic ") intent.

The same principle applies whether the automatism was the result of causes beyond the control of the accused or was self-induced by the voluntary taking of drugs or drink.

V. Assaults being crimes involving a guilty mind, a man who in a

state of automatism unlawfully assaults another must be regarded as free from blame and be entitled to acquittal.

VI. It is logically and ethically indefensible to convict such a man of assault; it also contravenes section 8 of the Criminal Justice Act 1967.

VII. There was accordingly a fatal misdirection.

A great deal of the argument in the hearing of the appeal turned on the application to the established facts of what Cave J. in R. v. Tolson (1889) 23 Q.B.D. 168 at page 181 called "the somewhat uncouth maxim actus non " facit reum, nisi mens sit rea". The judgment of Stephen J. in that case has long been accepted as authoritative. He said (at page 185): "Though " this phrase is in common use, I think it most unfortunate, and not only " likely to mislead, but actually misleading, on the following grounds. It " naturally suggests that, apart from all particular definitions" of crimes, " such a thing exists as a ' mens rea ', or ' guilty mind', which is always 4

" expressly or by implication involved in every definition. This is obviously " not the case, for the mental elements of different crimes differ widely. ".'Mens rea' means in the case of murder, malice aforethought; in the " case of theft, an intention to steal; in the case of rape, an intention to " have forcible connection with a woman without her consent; and in the " case of receiving stolen goods, knowledge that the goods were stolen. " In some cases it denotes mere inattention. For instance, in the case of " manslaughter by negligence it may mean forgetting to notice a signal. It " appears confusing to call so many dissimilar states of mind by one name ". Stephen J. concluded, at page 187:

"The principle involved appears to " me, when fully considered, to amount to no more than this. The full " definition of every crime contains expressly or by implication a propo- " sition as to a state of mind. Therefore, if the mental element of any conduct " alleged to be a crime is proved to have been absent in any given case, " the crime so defined is not committed; or, again, if a crime is fully " defined, nothing amounts to that crime which does not satisfy that " definition."

What then is the mental element required in our law to be established in assault? This question has been most helpfully answered in the speech of Lord Simon of Glaisdale in R v Morgan [1975] 2 W.L.R. 913 at page 939:

" By ' crimes of basic intent' I mean those crimes whose definition " expresses "(or, more often, implies) a mens rea which does not go beyond " the actus reus. The actus reus generally consists of an act and some " consequence. The consequence may be very closely connected with the " act or more remotely connected with it: but with a crime of basic intent " the mens rea does not extend beyond the act and its consequence how- " ever remote as defined in the actus reus. I take assault as an example " of a crime of basic intent where the consequence is very closely connected " with the act. The actus reus of assault is an act which causes another " person to apprehend immediate and unlawful violence. The mens rea " corresponds exactly. The prosecution must prove that the accused fore- " saw that his act would probably cause another person to have apprehen- " sion of immediate and unlawful violence or would possibly have that " consequence, such being the purpose of the act, or that he was reckless " as to whether or not his act caused such apprehension. This foresight " (the term of art is ' intention') or recklessness is the mens rea in assault. "

For an example of a crime of basic intent where the consequence of the " act involved in the actus reus as defined in the crime is less immediate, " I take the crime of unlawful wounding. The act is, say, the squeezing " of a trigger. A number of consequences (mechanical, chemical, ballistic " and physiological) intervene before the final consequence involved in the " defined actus reus—namely, the wounding of another person in circum- " stances unjustified by law. But again here the mens rea corresponds " closely to the actus reus. The prosecution must prove that the accused " foresaw that some physical harm would ensue to another person in circum- " stances unjustified by law as a probable (or possible and desired) con- " sequence of his act, or that he was reckless as to whether or not such " consequence ensued,"

How does the factor of self-induced intoxication fit into that analysis? If a man consciously and deliberately takes alcohol and drugs not on medical prescription, but in order to escape from reality, to go " on a trip", to become hallucinated, whatever the description may be, and thereby disables himself from taking the care he might otherwise take and as a result by his subsequent actions causes injury to another—does our criminal law enable him to say that because he did not know what he was doing he lacked both intention and recklessness and accordingly is entitled to an acquittal?

Originally the common law would not and did not recognise self-induced intoxication as an excuse. Lord Justice Lawton spoke of the "merciful " relaxation " to that rule which was introduced by the judges during the

19th century, and he added (page 411 G) "Although there was much " reforming zeal and activity in the 19th century, Parliament never once " considered whether self-induced intoxication should be a defence generally " to a criminal charge. It would have been a strange result if the merciful " relaxation of a strict rule of law had ended, without any Parliamentary " intervention, by whittling it away to such an extent that the more drank " a man became, provided he stopped short of making himself insane, the " better chance he had of an acquittal. . . . The common law rule still " applied but there were exceptions to it which Lord Birkenhead L.C. tried " to define by reference to specific intent."

There are, however, decisions of eminent judges in a number of Com- monwealth cases in Australia and New Zealand, (but generally not in Canada nor in the United States) as well as impressive academic comment in this country, to which we have been referred, supporting the view that it is illogical and inconsistent with legal principle to treat a person who of his own choice and volition has taken drugs and drink, even though he thereby creates a state in which he is not conscious of what he is doing, any differently from a person suffering from the various medical conditions like epilepsy or diabetic coma and who is regarded by the law as free from Fault. However our courts have for a very long time regarded in quite another light the state of self-induced intoxication. The authority which for the last half century has been relied upon in this context has been the speech of Lord Birkenhead L.C. in Director of Public Prosecutions v Beard [1920] A.C. 479: who stated (at page 494):

" Under the law of England as it pre- " vailed until early in the 19th century voluntary drunkenness was never " an excuse for criminal misconduct; and indeed the classic authorities " broadly assert that voluntary drunkenness must be considered rather an " aggravation than a defence. This view was in terms based upon the " principle that a man who by his own voluntary act debauches and " destroys his will power shall be no better situated in regard to criminal " acts than a sober man."

Lord Birkenhead made a historical survey of the way the common law from the 16th century on dealt with the effect of self-induced intoxication upon criminal responsibility. This indicates how, from 1819 on, the judges began to mitigate the severity of the attitude of the common law in such cases as murder and serious violent crime when the penalties of death or transportation applied or where there was likely to be sympathy for the accused as in attempted suicide. (At page 499) Lord Birkenhead concluded that (except in cases where insanity is pleaded) the decisions he cited "establish that where a specific intent is an essential " element in the offence, evidence of a state of drunkenness rendering the " accused incapable of forming such an intent should be taken into con- " sideration in order to determine whether he had in fact formed the intent " necessary to constitute the particular crime. If he was so drunk that " he was incapable of forming the intent required he could not be convicted " of a crime which was committed only if the intent was proved. ... In " a charge of murder based upon intention to kill or to do grievous bodily " harm, if the jury are satisfied that the accused was, by reason of his " drunken condition, incapable of forming the intent to kill or to do " grievous bodily harm ... he cannot be convicted of murder. But never- " theless unlawful homicide has been committed by the accused, and con- " sequently he is guilty of unlawful homicide without malice aforethought, " and that is manslaughter: per Stephen J. in Doherty's case (16 Cox C.C. " 307)." He concludes the passage:

" the law is plain beyond all question " that in cases falling short of insanity a condition of drunkenness at the " time of committing an offence causing death can only, when it is avail- " able at all, have the effect of reducing the crime from murder to man- " slaughter."

From this it seemed clear—and this is the interpretation which the judges have placed upon the decision during the ensuing half century—that it is only in the limited class of cases requiring proof of specific intent that drunkenness can exculpate. Otherwise in no case can it exempt completely from criminal liability.

Unhappily what Lord Birkenhead described on page 499 as " plain beyond " question ? ' becomes less plain in the passage in his speech on page 504 upon which Mr. Tucker not unnaturally placed great emphasis. It reads " I do not think that the proposition of law deduced from these earlier " cases is an exceptional rule applicable only to cases in which it is necessary " to prove a specific intent in order to constitute the graver crime—e.g., ".wounding with intent to do grievous bodily harm or with intent to kill. " It is true that in such cases the specific intent must be proved to constitute " the particular crime, but this is, on ultimate analysis, only in accordance " with the ordinary law applicable to crime, for, speaking generally (and " apart from certain special offences) a person cannot be convicted of a crime " unless the mens was rea. Drunkenness, rendering a person incapable of the " intent, would be an answer, as it is for example in a charge of attempted " suicide."

Why then would it not be an answer in a charge of manslaughter, contrary

to the earlier pronouncement at page 499? In my view these passages are not easy to reconcile, but I do not dissent from the reconciliation suggested by my noble and learned friend Lord Russell of Killowen. Commenting on the passage on page 504 in 1920 shortly after it was delivered, however, Stroud wrote (36 L.Q.R. 270):

"The whole of these observations . . . " suggest an extension of the defence of drunkenness far beyond the limits " which have hitherto been assigned to it. The suggeston, put shortly, is " that drunkenness may be available as a defence, upon any criminal charge, " whenever it can be shown to have affected mens rea. Not only is there no " authority for the suggestion; there is abundant authority, both ancient and " modern, to the contrary."

It has to be said that it is on the latter footing that the judges have applied the law before and since Beard's case and have taken the view that self-induced intoxication, however gross and even if it has produced a condition akin to automatism, cannot excuse crimes of basic intent such as the charges of assault which have given rise to the present appeal.

In Attorney-General for Northern Ireland v. Gallagher

[1963] AC 349

, Lord Denning spoke (at page 380) of " the general principle of English law " that, subject to very limited exceptions, drunkenness is no defence to a " criminal charge, nor is a defect of reason produced by drunkenness. This " principle was stated by Sir Matthew Hale in his Pleas of the Crown, I, " page 32, in words which I would repeat here: 'This vice' [drunkenness] " ' doth deprive men of the use of reason, and puts many men into a perfect, " ' but temporary phrenzy. ... By the laws of England such a person " ' shall have no privilege by this voluntary contracted madness, but shall " ' have the same judgment as if he were in his right senses.'"

Gallagher's case was followed by Bratty v. Attorney-General for Northern Ireland

[1963] AC 386

. Lord Denning said at page 409:

"No act is punish- "able if it is done involuntarily: and an involuntary act in this context— " some people nowadays prefer to speak of it as ' automatism '—means an " act which is done by the muscles without any control by the mind, such as " a spasm, a reflex action or a convulsion; or 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 sleep-walking. The point was well put by "

Stephen J. in 1889:

' Can anyone doubt that a man who, though he might "' be perfectly sane, committed what would otherwise be a crime in a state "' of somnambulism, would be entitled to be acquitted? And why is this? "'

Simply because he would not know what he was doing', see Reg. v " Tolson. The term ' involuntary act is, however, capable of wider con- " notations: and to prevent confusion it is to be observed that in the " criminal law an act is not to be regarded as an involuntary act simply " because the doer does not remember it." Later Lord Denning said:

" Nor is an act to be regarded as an involuntary act simply because it is " unintentional or its consequences are unforeseen."

He continued at page 410: " Another thing to be observed is that it is not every involuntary act which " leads to a complete acquittal. Take first an involuntary act which " proceeds from a state of drunkenness. If the drunken man is so drunk that

" he does not know what he is doing, he has a defence to any charge, such " as murder or wounding with intent, in which a specific intent is essential, " but he is still liable to be convicted of manslaughter or unlawful wounding " for which no specific intent is necessary, see Beard's case." The seal of approval is clearly set on the passage at page 499 of the Beard decision. In no case has the general principle of English law as described by Lord Denning in Gallagher's case and exposed again in Bratty's case been overruled in this House and the question now to be determined is whether it should be.

I do not for my part regard that general principle as either unethical or contrary to the principles of natural justice. If a man of his own volition takes a substance which causes him to cast off the restraints of reason and conscience, no wrong is done to him by holding him answerable criminally for any injury he may do while in that condition. His course of conduct in reducing himself by drugs and drink to that condition in my view supplies the evidence of mens rea, of guilty mind certainly sufficient for crimes of basic intent. It is a reckless course of conduct and recklessness is enough to constitute the necessary mens rea in assault cases; see R v. Venna [1975] 3 W.L.R. 737 per James L.J. at page 743. The drunkenness is itself an intrinsic, an integral part of the crime, the other part being the evidence of the unlawful use of force against the victim. Together they add up to criminal recklessness. On this I adopt the conclusion of Stroud in 1920 36 L.Q.R. at page 273 that:

" It would be contrary to all principle and authority to " suppose that drunkenness " (and what is true of drunkenness is equally true of intoxication by drugs) " can be a defence for crime in general on the " ground that ' a person cannot be convicted of a crime unless the mens "

' was rea '. By allowing himself to get drunk and thereby putting himself " in such a condition as to be no longer amenable to the law's commands, " a man shows such regardlessness as amounts to mens rea for the purpose " of all ordinary crimes."

This approach is in line with the American Model Penal Code (S. 2.08(2)):

" When recklessness establishes an element of the offence, if the actor, due " to self-induced intoxication, is unaware of a risk of which he would have " been aware had he been sober, such unawareness is immaterial."

Acceptance generally of intoxication as a defence (as distinct from the exceptional cases where some additional mental element above that of ordinary mens rea has to be proved) would in my view undermine the criminal law and I do not think that it is enough to say, as did Mr. Tucker, that we can rely on the good sense of the jury or of magistrates to ensure that the guilty are convicted. It may well be that Parliament will at some future time consider, as I think it should, the recommendation in the Butler Committee Report on Mentally Abnormal Offenders (Cmnd. 6244, 1975) that a new offence of " dangerous intoxication " should be created. But in the meantime it would be irresponsible to abandon the common law rule, as " mercifully relaxed ", which the courts have followed for a century and a half.

How the court of trial should deal with an offender in the circumstances we are considering is not a problem which arises on this appeal. It would no doubt take full account of the relevant medical evidence and of all mitigating factors and give careful consideration to the various alternatives, custodial and non-custodial, punitive and curative, now available to the courts. There is no minimum punishment for the class of assaults with which this appeal is concerned and the court's discretion as to how to deal with the offender is wide.

The final question that arises is whether section 8 of the 1967 Act has had the result of abrogating or qualifying the common law rule. Thai section emanated from the consideration the Law Commission gave to the decision of the House in Director of Public Prosecutions v. Smith [1961] A.C. 290. Its purpose and effect was to alter the law of evidence about the presumption of intention to produce the reasonable and probable conse- quences of one's acts. It was not intended to change the common law rule. In referring to " all the evidence " it meant all the relevant evidence. But if there is a substantive rule of law that in crimes of basic intent, the factor

of intoxication is irrelevant (and such I hold to be the substantive law), evidence with regard to it is quite irrelevant. Section 8 does not abrogate the substantive rule and it cannot properly be said that the continued applic- ation of that rule contravenes the section. For these reasons, my conclusion is that the certified question should be answered " Yes ". that there was no misdirection in this case and that the appeal should be dismissed.

My noble and learned friends and I think it may be helpful if we give the following indication of the general lines on which in our view the jury should be directed as to the effect upon the criminal responsibility of the accused of drink or drugs or both, whenever death or physical injury to another person results from something done by the accused for which there is no legal justification and the offence with which the accused is charged is manslaughter or assault at common law or the statutory offence of unlawful wounding under section 20, or of assault occasioning actual bodily harm under section 47 of the Offences Against the Person Act 1861.

In the case of these offences it is no excuse in law that, because of drink or drugs which the accused himself had taken knowingly and willingly, he had deprived himself of the ability to exercise self-control, to realise the possible consequences of what he was doing, or even to be conscious that he was doing it. As in the instant case, the jury may be properly instructed that they "can ignore the subject of drink or drugs as being in any way a defence" to charges of this character.

Lord Diplock

My Lords,

I have had the advantage of reading the speech of my noble and learned friend, the Lord Chancellor. I agree with it and with his conclusions. I also agree with my noble and learned friend, Lord Russell of Killowen, in his analysis of the speech of Lord Birkenhead L.C. in Beard's case. I would dismiss this appeal.

Lord Simon of Glaisdale

My Lords,

I have had the advantage of reading the speech prepared by my noble and learned friend on the Woolsack. I agree with it, and I would therefore dismiss the appeal. What follows is by way of marginal comment.

One of the prime purposes of the criminal law, with its penal sanctions, is the protection from certain proscribed conduct of persons who are pursuing their lawful lives. Unprovoked violence has, from time immemorial, been a significant part of such proscribed conduct. To accede to the argument on behalf of the appellant would leave the citizen legally unprotected from unprovoked violence, where such violence was the consequence of drink or drugs having obliterated the capacity of the perpetrator to know what he was doing or what were its consequences.

Though the problem of violent conduct by intoxicated persons is not new to society, it has been rendered more acute and menacing by the more widespread use of hallucinatory drugs. For example, in Lipman [1970] 1 Q.B. 152, the accused committed his act of mortal violence under the hallucination (induced by drugs) that he was wrestling with serpents. He was convicted of manslaughter. But, on the logic of the appellant's argument, he was innocent of any crime.

The Butler Committee on Mentally Abnormal Offenders (Comnd. 6244 of 1975) recognised that even the traditional view of the effect of intoxication in relation to conduct prohibited by law left a gap in the protection which the criminal law should afford to innocent citizens; this required, in their view, to be closed by legislation. Their recommendation 56 was:

"... We propose that it should be an offence for a person while " voluntarily intoxicated do an act (or make an omission) that would "amount to a dangerous offence if it were done or made with the " requisite state of mind for such offence."

The maximum sentence recommended for such offence was imprisonment for one year for a first offence or for three years on a second or subsequent offence (para. 18.58).

But, on the traditional view, much anti-social conduct is still criminal notwithstanding the intoxication—murder is reduced, not to innocent homicide, but to manslaughter; intoxication may reduce the offences of causing grievous bodily harm with intent, or wounding with intent to do grievous bodily harm, to unlawful wounding, but gives no entitlement to an acquittal of all crime; similarly, assault with intent may be reduced to common assault, and stealing a motor car to taking and driving it away without the owner's consent.

On the appellant's argument, on the other hand, "the Butler gap" is enormously widened. I have already given the example of Lipman. Another would be an erroneous belief, brought about by self-induced intoxication that a woman is consenting to sexual intercourse (cf. Reg. v. Morgan [1975] 2 W.L.R. 913). Examples could be readily multiplied. Indeed, the instant appeal is a case where the criminal law would, in my view, seriously depart from the common consent which it should desirably command were it to hold that the appellant's intoxication exculpated him. Certainly, the Butler Committee's recommendations as to sentence might require reconsideration were " the Butler gap " so dramatically widened.

(4) As the judgment of Lawton L.J. explained, a considerable difficulty in this branch of the law arises from the terminology which has been used. I do not suggest that the criminal law should be founded on Byzantine linguistic refinements. The primary test for its efficacy is that it should be found by experience to extend, on the one hand, an effective protection to the public and, on the other, justice to the accused. Nevertheless, it is desirable that it should, in addition, if possible be so framed as to be compre- hensible by statements of coherent and cohesive general rules. For this, and for juristic analysis generally, it is desirable that the terms used should be defined, unambiguous and used consistently.

There is an immediate difficulty. Fundamental to the criminal law is the concept of mens rea. But, first, this phrase is taken from a legal maxim phrased in highly elliptical Latin. Secondly, apart from the quite exceptional case of one type of treason, there is no such thing as a " guilty mind ". The criminal law prohibits certain defined conduct (actus reus). But it goes on to say that a person who perpetrates such conduct is not criminally respon- sible, in general, unless such conduct is accompanied by a wrongful state of mind which is expressed or implied in the definition of the offence (mens rea). This wrongful state of mind can vary greatly with the various offences contained in the criminal code, as is shown by the quotations by my noble and learned friend on the Woolsack from the judgment of Stephen J. in T olson (1859) 23 Q.B.D. 168, 185, 187. Mens rea is therefore on ultimate analysis the state of mind stigmatised as wrongful by the criminal law which, when compounded with the relevant prohibited conduct, constitutes a par- ticular offence. There is no juristic reason why mental incapacity (short of M'Naghten insanity), brought about by self-induced intoxication, to realise what one is doing or its probable consequences should not be such a state of mind stigmatised as wrongful by the criminal law ; and there is every practical reason why it should be.

But, in order to understand this branch of the law in general and Beard [1920] A.C. 479 in particular, it is desirable to have further tools of analysis. A term that appears frequently in discussion of this aspect of the law and crucially in Beard is " specific intent". Smith and Hogan, Criminal Law, 3rd ed. 1973, page 47, justly criticises this term as potentially ambiguous, since it has been used in three different senses. The first sense is that particular state of mind which, when compounded with prohibited conduct, constitutes

a particular offence. This is an unnecessary and misleading usage; and, since " specific intent" has been frequently and usefully employed in other senses, should merely be abandoned. A second sense in which "specific intent" has been used is what in Morgan I called " ulterior intent", having taken the term from Smith and Hogan . I needed that particular concept for the analysis on which I ventured in Morgan: unfortunately my argument failed to command the assent of the majority of the Appellate Committee, or, on further appeal, some academic commentators and the Advisory Group on the Law of Rape (Cmd. 6352 of 1975). But I would not wish it to be thought that I consider " ulterior intent" as I defined it in Morgan as interchangeable with " specific intent" as that term was used by Stephen, for example, in his Digest (Article 8), by the Earl of Birkenhead in Beard, or by Lord Denning and others in comment- ing on Beard. " Ulterior intent", which I can here summarily describe as a state of mind contemplating consequences beyond those defined in the actus reus, is merely one type of " specific intent" as that term was used by the Earl of Birkenhead, etc. "Ulterior intent" does not accurately describe the state of mind in the crime of doing an act likely to assist the enemy with intent to assist the enemy (Steane [1947] K.B. 997) or causing grievous bodily harm with intent to do some grievous bodily harm (Offences against the Person Act 1861, section 18, as "amended by the Criminal Law Act 1967) or even murder. None of these requires by its definition contemplation of consequences extending beyond the actus reus.

I still have the temerity to think that the concept of " crime of basic intent " is a useful tool of analysis ; and I explained what I meant by it in the passage in Morgan generously cited by my noble and learned friend on the Woolsack. It stands significantly in contrast with " crime of specific intent" as that term was used in Stephen's Digest and by the Earl of Birkenhead in Beard. The best description of " specific intent " in this sense that I know is contained in the judgment of Fauteux J. in R. v. George (1960) 128 C.C.C. 289 at page 301:

" In considering the question of mens rea, a distinction is to be made " between (i) intention as applied to acts considered in relation to their " purposes and (ii) intention as applied to acts apart from their purposes. " A general intent attending the commission of an act is, in some cases. " the only intent required to constitute the crime while, in others, there " must be, in addition to that general intent, a specific intent attending " the purpose for the commission of the act."

In short, where the crime is one of " specific intent" the prosecution must in general prove that the purpose for the commission of the act extends to the intent expressed or implied in the definition of the crime.

(5) Either Beard is a completely broken-backed authority, the first part, with its constant references to " specific intent ", being irrelevant to and inconsistent with the passage on page 504, or the latter passage is explicable on the lines described in the speech to be delivered by my noble and learned friend. Lord Russell of Killowen. It seems to me most unlikely that the Earl of Birkenhead, with the unanimous assent of his distinguished col- leagues, should have unwittingly delivered a broken-backed and inconsistent judgment. The explanation by my noble and learned friend reconciles any apparent discrepancy, and brings the law as stated by the Earl of Birkenhead into line with that stated by Stephen's Digest and accords with the view of Beard expressed by Lord Denning in Bratty

[1963] AC 386

and Gallagher

[1963] AC 349

Even were this not so, I respectfully agree with the explanation of the historical background by Lawton L.J. in the Court of Appeal and I would, in any event, accept his conclusion on practical grounds and as consonant with what I understand to be the needs of society as viewed by the criminal law.

But I do not in fact believe that the distinction drawn by Stephen and the Earl of Birkenhead between the effect of self-induced intoxication

on crimes of basic intent, on the one hand, and on crimes of specific intent, on the other, is juristically unjustifiable and to be supported only on historical and practical grounds.

The concept of mens rea goes back to the Laws of Henry I and is clearly stated in its mature form in Coke. The argument for the appellant (that, if self-induced intoxication may negative specific intent, it must logically be capable of negativing basic intent) would mean that jurists from Coke to the Earl of Birkenhead (including Hale, Blackstone and Stephen) not only formed a fallacious view of the law, but failed to recognise that there was even any problem posed by their formulation. So too, later, with Lord Denning. This seems to me inherently improbable.

As I have ventured to suggest, there is nothing unreasonable or illogical in the law holding that a mind rendered self-inducedly insensible (short of M'Naghten insanity), through drink or drugs, to the nature of a prohibited act or to its probable consequences is as wrongful a mind as one which consciously contemplates the prohibited act and foresees its probable con- sequences (or is reckless as to whether they ensue). The latter is all that is required by way of mens rea in a crime of basic intent. But a crime of specific intent requires something more than contemplation of the prohi- bited act and foresight of its probable consequences. The mens rea in a crime of specific intent requires proof of a purposive element. This purpo- sive element either exists or not; it cannot be supplied by saying that the impairment of mental powers by self-induced intoxication is its equi- valent, for it is not. So that the nineteenth century development of the law as to the effect of self-induced intoxication on criminal responsibility is juristically entirely acceptable; and it need be a matter of no surprise that Stephen stated it without demur or question.

Lord Kilbrandon

My Lords,

I have had the advantage of reading the speech of my noble and learned friend the Lord Chancellor. I entirely agree with it and with his conclusions.

I would accordingly dismiss this appeal.

Lord Salmon

My Lords,

The facts of this case which have been so fully and lucidly set out by your Lordships are commonplace but the point of law which they raise is of great public importance.

The appellant undoubtedly committed a number of what appear to have been serious assaults occasioning actual bodily harm. His defence was that he had tilled himself with such a quantity of alcohol and drugs that at the time of the alleged offences he did not know what he was doing, and had no intention of kicking or striking anyone. The learned judge directed the jury that the amount of drugs or drink which the appellant had voluntarily taken was irrelevant and could afford him no defence. The appellant was duly convicted. He appealed to the Court of Appeal on the ground that the judge's direction was wrong in law. His appeal was dismissed and he now appeals to this House.

On the evidence, which I need not recite, it is fairly obvious that the defendant knew quite well what he was doing, although maybe he would not have acted as he did but for the aggressiveness and lack of control induced by what he had ingested. It follows that the appellant was unlikely to have been acquitted even if the judge had given the direction which Mr. Tucker had argued was required by law. Nevertheless, Mr. Mathew for the

Crown rightly refused to rely on the proviso because it was impossible for him to contend that the jury might not have acquitted the appellant if they had been given the direction which Mr. Tucker submits that they should have received and to which I shall presently refer.

It has long been established that except for special cases in which crimes of absolute liability are created by Statute, no one can be convicted of any crime unless he has a guilty mind (3 Cokes Institutes 6). The elements constituting a guilty mind naturally differ widely from crime to crime just as the elements constituting different crimes themselves necessarily differ widely. In cases such as assault and assault occasioning actual bodily harm, the accused is not guilty unless it is proved beyond reasonable doubt that he intended to do what he did, i.e., commit the assault or was recklessly indifferent as to whether or not what he did might amount to an assault. It is not necessary to prove that he intended to cause the bodily harm which resulted from the assault. In other crimes such as causing grievous bodily harm with intent to cause grievous bodily harm, the accused cannot be convicted of the offence charged unless it is proved beyond reasonable doubt that he intended to do grievous bodily harm. If this latter element is not proved, the accused must be acquitted of the offence charged but may nevertheless be convicted of the lesser offence of unlawful wounding. Similarly, if the accused is charged with murder, he cannot be convicted unless it is proved beyond reasonable doubt that he killed with intent to murder or cause grievous bodily harm. If neither of these latter elements is established, the accused must be acquitted of murder but may be convicted of the lesser offence of manslaughter.

Prior to the 19th century, for a prisoner to have committed a crime, having voluntarily made himself drunk, was never regarded as any excuse or mitigation but rather as an aggravation of his offence. Hawkins' Pleas of the Crown, Book 1, C.1, S.6: Coke upon Littleton 247a ; Blackstone's Commentaries, Book IV, C.2, SIII, page 25. This attitude, however, began to change under the more humane influences of the 19th century. The penalty for murder or for causing grievous bodily harm with intent to cause grievous bodily harm was death or deportation. It was felt that sentencing a man to be hanged or deported who had done either of these things when so drunk that he had had no intention of doing what he in fact did was unnecessarily harsh. Accordingly, if a man killed or committed grievous bodily harm whilst he was drunk, this factor was taken into account with all the other evidence in deciding whether he had intended to kill or to commit grievous bodily harm. If this question were decided in the accused's favour, he would be found not guilty of murder or causing grievous bodily harm with intent to commit grievous bodily harm but guilty of manslaughter or unlawful wounding and sentenced accordingly. Reg. v. Doherly 16 Cox C.C. 306, 308. This does not mean that drunkenness, of itself, is ever a defence. It is merely some evidence which may throw a doubt upon whether the accused had formed the special intent which was an essential element of the crime with which he was charged. Often this evidence is of no avail because obviously a drunken man may well be capable of forming and does form the relevant criminal intent: his drunkenness merely diminishes his powers of resisting the temptation to carry out this intent.

Reverting to assault and assault occasioning actual bodily harm and all other crimes of which a man may be guilty without forming any special intent, the question is—can the accused rely by way of defence on evidence that, at the time of the alleged offence he was so much under the influence of drink or drugs, taken voluntarily, that he did not know what he was doing. It follows from what I have said earlier in this speech that an assault committed accidentally is not a criminal offence. A man may, e.g., thought- lessly throw out his hand to stop a taxi, or open the door of his car and accidentally hit a passer-by and perhaps unhappily cause him quite serious bodily harm. In such circumstances, the man who caused the injury would be liable civilly for damages but clearly he would have committed no crime. It is, I agree, possible to commit assault and other crimes of violence recklessly, not caring whether or not what you do causes injury. There are

no doubt some contexts, e.g.. commercial contracts, in which the words " very carelessly " and " recklessly " are synonymous, but I do not think that this is usually true in the context of the criminal law. except perhaps in the case of manslaughter. I do not, however, wish to take up your Lordships' time in discussing this topic further for it is hardly relevant to the question before this House.

There are many cases in which injuries are caused by pure accident. I have already given examples of such cases: to these could be added injuries inflicted during an epileptic fit. or whilst sleep walking, and in many other ways. No one, I think, would suggest that any such case could give rise to criminal liability.

It is argued on behalf of the appellant that a man who makes a vicious assault may at the material time have been so intoxicated by drink or drugs that he no more knew what he was doing than did any of the persons hi the examples I have given and that therefore he too cannot be found guilty of a criminal offence.

To my mind there is a very real distinction between such a case and the examples I have given. A man who by voluntarily taking drink and drugs gets himself into an aggressive state in which he does not know what he is doing and then makes a vicious assault can hardly say with any plausibility that what he did was a pure accident which should render him immune from any criminal liability. Yet this in effect is precisely what Mr. Tucker contends that the learned judge should have told the jury.

A number of distinguished academic writers support this contention on the ground of logic. As I understand it, the argument runs like this: Intention whether special or basic (or whatever fancy name you choose to give it) is still intention. If voluntary intoxication by drink or drugs can, as it admittedly can, negative the special or specific intention necessary for the commission of crimes such as murder and theft, how can you justify in strkt logic the view that it cannot negative a basic intention, e.g., the intention to commit offences such as assault and unlawful wounding? The answer is that in strict logic this view cannot be justified. But this is the view that has been adopted by the common law of England, which is founded on common sense and experience rather than strict logic. There is no case in the nineteenth century when the courts were relaxing the harshness of the law in relation to the effect of drunkeness upon criminal liability in which the courts ever went so far as to suggest that drunkeness, short of drunkeness producing insanity, could ever exculpate a man from any offence other than one which required some special or specific intent to be proved. In the case of D.P.P. v. Beard 1970 A.C. 479, Lord Birkenhead L.C. said:

" . . . ; the law is plain beyond all question that in cases falling short " of insanity a condition of drunkeness at the time of committing an " offence causing death can only, when it is available at all, have the " effect of reducing the crime from murder to manslaughter." (See p. 500.)

and

" That evidence of drunkenness which renders the accused incapable of " forming the specific intent essential to constitute the crime should be " taken into consideration with the other facts proved in order to " determine whether or not he had this intent." (See page 501.)

Lord Birkenhead clearly was purporting to be stating the established law. I do not think that these passages are consistent with the view that, apart from those cases where it is necessary to prove some special intent in order to establish guilt, drunkeness can be relevant to any defence. Otherwise there would surely be cases in which a man charged with murder could show that not only was he so drunk that he had no intention to kill or cause grievous bodily harm but that he was so drunk that he did not know what he was doing when he struck the fatal blow, i.e. that he had no basic intent to do the unlawful act which caused death. I doubt very much whether criminal negligence could be attributed to a man in such a condition. It

follows that in such a case the prosecution would have failed to prove either murder or manslaughter and the only possible verdict would be not guilty. Perhaps a logical, but certainly a very disconcerting result from the point of view of public safety. I am, however, a little perplexed by what Lord Birkenhead says at page 504:

" I do not think that the proposition of law deduced from these " earlier cases is an exceptional rule applicable only to cases in which " it is necessary to prove a specific intent in order to constitute the " graver crime . . . but this is ... only in accordance with the ordinary " law applicable to crime, for, speaking generally (and apart from certain " special offences), a person cannot be convicted of a crime unless the " mens was rea."

But then he illustrates his proposition by referring to the crime of attempted suicide which, in my view, does require a specific intent. A man may cut his throat but he could not be convicted of attempted suicide unless it were proved that he did so with the specific intention of killing himself. I am inclined to think that Lord Birkenhead was meaning to point out that drunkenness was relevant to all cases in which it was necessary to prove a specific intent and was not confined to those cases in which, if the prosecu- tion failed to prove such an intent, the accused could still be convicted of a lesser offence. I confess that I find the passage somewhat obscure but I prefer the construction which makes it consistent with rather than contra- dictory of the first part of the speech. There can be no doubt that that is how it was understood by the judges, who continued to direct juries in the same way as they always had done and as the learned judge did in the present case. Many distinguished academic writers however, from Stroud (with disapproval) to Professor Glanville Williams (with approval) put the sjme construction on page 504 of Lord Birkenhead's speech as that for which Mr. Tucker contends.

If, however. Lord Birkenhead and the distinguished Law Lords sitting with him had intended to make the suggested drastic change in the law, I fee! confident that they would have made it crystal clear that they were doing so. This would have been to ensure that the judges would not make the mistake of continuing to sum up on this topic along the lines they had summed up for about a century before Beard's case and have continued so to sum up ever since.

As I have already indicated, I accept that there is a degree of illogicality in the rule that intoxication may excuse or expunge one type of intention and not another. This illogicality is, however, acceptable to me because the benevolent part of the rule removes undue harshness without imperilling safety and the stricter part of the rule works without imperilling justice. It would be just as ridiculous to remove the benevolent part of the rule (which no one suggests) as it would be to adopt the alternative of removing the stricter part of rule for the sake of preserving absolute logic. Absolute logic in human affairs is an uncertain guide and a very dangerous master. The law is primarily concerned with human affairs. I believe that the man object of our legal system is to preserve individual liberty. One important aspect of individual liberty is protection against physical violence.

If there were to be no penal sanction for any injury unlawfully inflicted under the complete mastery of drink or drugs, voluntarily taken, the social consequence could be appalling. That is why I do not consider that there is any justification for the criticisms which have been made of the Court of Appeal's decision in Lipman [1970] 1 Q.B.152. Lipman was convinced of manslaughter because he had killed his companion by stuffing bedclothes down her throat under the illusion, induced by the hallucinatory drugs he had taken, that he was fighting for his life against snakes. Had she survived his attack he could have been properly convicted of causing grievous bodily harm or of assault occasioning actual bodily harm under sections 20 and 47 respectively of the Act of 1861. These, like manslaughter, are all offences of basic intent and do not require the proof of any specific intent in order to establish guilt. According to our law as it has stood for about 150 years, in such cases evidence that the injuries were inflicted by a man not knowing

what he was doing because he was intoxicated by drinks or drugs which he has voluntarily taken is wholly irrelevant. Certainly this rule seems, in practice, to have worked well without causing any injustice. The judge always carefully takes into account all the circumstances (which vary infinitely from case to case) before deciding which of the many courses open should be adopted in dealing with the convicted man.

If, as I think, this long standing rule was salutory years ago when it related almost exclusively to drunkenness and hallucinatory drugs were comparatively unknown, how much more salutory is it today when such drugs are increasingly becoming a public menace? My Lords, I am satisfied that this rule accords with justice, ethics and common sense, and I would leave it alone even if it does not comply with strict logic. It would, in my view, be disastrous if the law were changed to allow men who did what Lipman did to go free. It would shock the public, it would rightly bring the law into contempt and it would certainly increase one of the really serious menaces facing society today. This is too great a price to pay for bringing solace to those who believe that, come what may, strict logic should always prevail. I agree with my noble and learned friend on the Woolsack that, for the reasons he gives, section 8 of the Criminal Justice Act 1967 does not touch the point raised in this appeal, and I also agree that directions along the lines laid down by my noble and learned friend on the Woolsack should be given by trial judges to juries in the kind of cases to which my noble and learned friend refers.

My Lords,

for these reasons, I would dismiss the appeal.

Lord Edmund-Davies

My Lords,

During a brawl in a public house the appellant attacked the landlord and two others, injuring all three of them. When the police arrived, he assaulted the officer who arrested him. Another officer was struck by the appellant when he was being driven to the police station. The next morning in his cell he attacked a police inspector. As a result, he was indicted at the Chelmsford Crown Court on four counts of occasioning actual bodily harm and on three counts of assaulting a police constable in the execution of his duty. The appellant testified that he had no recollection of the greater part of what had transpired after he entered the public house, and that during the preceding 48 hours he had taken a substantial quantity of drugs and had ordered one drink at the public house. There was adduced a statement from a doctor who saw him the following morning and evidence by another doctor as to the possible effect of the ingestion of such drink and drugs as the appellant had spoken of. During the course of legal submissions, the attention of the learned judge was drawn to the short report of Bolton v. Crawley [1972] Crim. L R. 222 in which the Court of Appeal held that on a charge of assault occasioning actual bodily harm the consumption of drink or drugs was irrelevant to criminal responsibility. Accordingly, after telling the jury that an assault " means some blow, not something which is purely " accidental ", the judge directed them that "... the fact that Majewski " may have taken drink and drugs is irrelevant, provided you are satisfied " that the state which he was in was a result of those drink and drugs (sic) " or a combination of both was self-induced . . ." The jury convicted on six of the seven counts and the convictions were upheld by the Court of Appeal (119751 3 W.L.R. 401), who, however, granted leave to appeal, certifying that the following point of law of general importance was involved: Whether a defendant may properly be convicted of assault not- withstanding that, by reason of his self-induced intoxication, he did not intend to do the act alleged to constitute the assault.

My noble and learned friend the Lord Chancellor has already related in some detail the facts of the case. I therefore propose to confine myself to a more general consideration of the problems inherent in the appeal. It is said by appellant's counsel to illustrate the importance of logic in the law. He submits that any law that is not entirely logical is unacceptable both for

that reason alone and also because it ignores the ethics which should always govern criminal culpability. The argument advanced on behalf of Majewski can be summarised in the following propositions :

I. Save in relation to offences of strict responsibility, no man is guilty

of a crime unless he has a guilty mind.

II. A person who, though not insane, commits what would in ordinary

circumstances be a crime when he is in such a mental state (whether it be called " automatism " or by any other name) that he does not know what he is doing lacks a guilty mind and is therefore not criminally culpable for his actions.

Such freedom from culpability exists regardless of(a) whether the offence charged is one involving a " specific " (or " ulterior ") intent or one involving only a " general " (or " basic") intent; and

(b) whether the automatism was due to causes beyond the control of the person charged or was self-induced by the voluntary taking of drink or drugs.

Assaults being crimes involving a guilty mind, a man who in a state of automatism unlawfuly assaults another must be treated as free from all blame and is accordingly entitled to be wholly acquitted: the certified question therefore demands a negative answer.

V. Not only is it logically and ethically indefensible to convict such a

man of assault; it also constitutes a contravention of section 8 of the Criminal Justice Act 1967.

VI. There accordingly having been a fatal misdirection, the appeal should be allowed.

The basic submission of the respondent, on the other hand, may be far more shortly stated thus: A rule of law has been established that self- induced intoxication can provide a defence only to offences requiring an " ulterior " intent, and is therefore irrelevant to offences of " basic " intent such as assaults. The direction given was accordingly right, the certified question must be answered in the affirmative, and the appeal should be dismissed.

The commonplace nature of the incidents involved in the convictions appealed from serves of itself to highlight the importance of this appeal; So frequently do such cases appear in the lists for summary disposal in magistrates' courts throughout the country and to a lesser (though still frequent) extent in Crown Court calendars that, as Lawton L.J. said ([1975] 3 W.L.R. 404a:

"... their very nature reveals how serious from a social and public " standpoint the consequences would be if men could behave as the " defendant did and then claim that they were not guilty of any offence."

Its importance is also vastly increased by the virtually unlimited effect upon criminal culpability in general involved in acceptance of the appellant's submissions, a point which, though not developed fully before your Lord- ships during the hearing of the appeal, needs, as I think, to be realised fully, as I shall seek to demonstrate later.

It is impossible to deal with the foregoing propositions as though each belonged to a watertight compartment, but one can at least conveniently begin \vith Proposition I.

The maxim familiar to English lawyers that there can be no crime without a guilty mind (3 Coke's Institutes, 6) was greatly disliked by Stephen J. who said in a famous passage in R. v. Tolson (1899) 23 Q.B.D. 185-7:

. . I think it most unfortunate, and not only likely to mislead, " but actually misleading, on the following grounds. It naturally suggests " that, apart irom all particular definitions of crimes, such a thing exists " as a ' mens rea' or ' guilty mind', which is always expressly or by "implication involved in every definition. This is obviously not the " case, for the mental elements of different crimes differ widely . . . .

" In some cases it denotes mere inattention. For instance, in the case " of manslaughter by negligence it may mean forgetting to notice a " signal. It appears confusing to call so many dissimilar states of mind " by one name. . . . The principle involved appears to me, when " fully considered, to amount to no more than this: The full definition " of every crime contains expressly or by implication a proposition as to " a state of mind. Therefore, if the mental element of any conduct " alleged to be a crime is proved to have been absent in any given case, " the crime so defined is not committed; or, again, if a crime is fully " defined, nothing amounts to that crime which does not satisfy that " definition.'

The mental element required to be present in assault has long been established in our law. As long ago as 1669 it was said in Tuberville v. Savage (I Mod. Rep. 3), that,

"... the intention as well as the act makes an assault. Therefore, " if one strike another upon the hand, or arm, or breast in discourse, " it is no assault, there being no intention to assault . . .".

The striking has to be done with a hostile intention (Coward v. Baddeley (1859) 28 L.J. Ex. 260). More recently, Lord Parker C.J. said obiter in Pagan v. Metropolitan Police Commissioner [1969] 1 Q-B. 439, at 444D that—

" An assault is any act which intentionally—or possibly recklessly— " causes another person to apprehend immediate and unlawful personal " violence."

I respectfully adopt the observations of Lord Simon of Glaisdale, who said in Morgan [1975J 2 W.L.R. at 949C:

" The actus reus of assault is an act which causes another person to " apprehend immediate and unlawful violence. The mens rea corre- " sponds exactly. The prosecution must prove that the accused foresaw " that his act would probably cause another person to have apprehension " of immediate and unlawful violence or would possibly have that con- " sequence, such being the purpose of the act, or that he was reckless " as to whether or not his act caused such apprehension '".

As James L.J. said in Venna [19751 3 W.L.R. at 743G,

" In many cases the dividing line between intention and recklessness " is barely distinguishable ".

If logic is to be the sole guide, it follows that a man can never be regarded as committing an assault unless he is conscious of what he is doing. What- ever be the reason for its absence, if he in fact lacks such consciousness he cannot be said to act either intentionally or recklessly. It is submitted on the appellant's behalf that he was at all material times in a condition of "non-insane automatism resulting from pathological intoxication". In Bratty [19631 A.C. at 401 Lord Kilmuir L.C. acceptably defined " auto- " matism " as:

"... the state of a person who, though capable of action, is not " conscious of what he is doing ... It means unconscious involuntary " action, and it is a defence because the mind does not go with what " is being done".

In strict logic it may be that a physical action performed in such a state ought never to be punished as a criminal assault, no matter how grievous the injury thereby inflicted upon the person attacked.

Then is it the case that a man is always to be absolved by the criminal law from the consequences of acts performed when in a state of automatism, regardless of how that state was brought about? The law is certainly clear and commendable in relation to cases where the actor is wholly free from fault in relation to the onset of such a mental state. The decided cases show that a wide range of organic and pathological conditions can reduce a man to a state of automatism. Writing in Canada, Prof. J. LL. J. Edwards (1965-66 8 Crim. Law Quarterly, page 286) commented that—

"Whether it be arterio-sclerosis, diabetic coma, hypoglycaemia, " carbon-monoxide poisoning or a blow on the head, the conduct of a " person suffering from one of these conditions can give rise to serious " doubts as to his conscious knowledge of what he is doing. Two cases " of somnambulism . . . add to the collection of causative factors relied " upon by the defence in cases of murder. Moreover, ... the range of " crimes to which a plea of automatism has been tendered by the defence " ranges from homicide to malicious wounding, and from impaired or " dangerous driving to simple failure to observe a stop sign on the " highway. And we have by no means seen the end of the list of " offences that may involve a defence of automatism."

In this country in 1955 there was the notable direction of Barry J. in Charlson [1955] 1 All E.R. 859 in relation to the criminal responsibility of a defendant (possibly suffering from a cerebral tumour) for a violent attack on his son, that,

" If he struck . . . knowing what he was doing ... he is guilty. " . . . But if he did not know, he is in the same position as (if in) an " epileptic fit and is not guilty ".

And in Canada, the Ontario Court of Appeal in R. v. King (1961) 34 C.R. 264, on a charge of impaired driving to which the defence was that the motorist was at the material time still affected by an anaesthetic administered shortly before by his dentist, the Court held that the driving was not, in the circumstances, a conscious act of volition. " If it were otherwise ", declared Schroeder, J.A., " the act of an epileptic in one of his paroxysms, the act " of a fever patient in his delirium, or of a somnambulist in his sleep, would " be imputable to him both criminally and civilly, a postulate to which I am " not prepared to subscribe ".

But a markedly different attitude has long been taken in respect of a state of automatism brought about by the voluntary act of the person charged with a crime. Aristotle apparently approved of the double penalization of intoxicated harm-doers (Ethics, Book 111, ch. 5, 1113b, 31) and for a long time judges in this country regarded voluntary drunkenness as aggravating culpability rather than as lessening or eliminating it.

My Lords have already described the development by the judiciary during the last century of a more sympathetic attitude towards the plea that the crime charged was committed under the influence of drink. So it was that in 1883 Stephen J. said (R. v. Doherty 16 Cox C.C. 308):

" A drunken man may form an intention to kill another, or to do " grievous bodily harm to him, or he may not; but if he did form that " intention, although a drunken intention, he is just as much guilty of " murder as if he had been sober . . .; but if his drunkenness prevented " his forming such an intention, he would be guilty of manslaughter, " and not of murder, though such an act in a sober man would prove an " intention to do grievous bodily harm."

As Professor Jerome Hall observed (General Principles of Criminal Law, 2nd Ed. (I960) 544), it is easy to understand what led Stephen J. and judges before him to rely on specific intent,

" as the most acceptable means of achieving mitigation and they formu- " lated the rule which achieved a degree of exculpation upon it. What- " ever the attitude in earlier years, in modern times it is commonly felt " that an injury inflicted under gross intoxication ought to be distin- " guished from a similar injury committed by a sober person ".

Nevertheless, the earlier attitude persisted to the extent that it was considered that complete exculpation of crimes committed under the influence even of gross intoxication could not be allowed.

" The rules on criminal intent lay closest at hand to suggest a plausible " mediation. Most of the harms met in these cases were homicides and " aggravated assaults, and here the accepted distinction concerning " general' and ' specific ' intent could operate to produce the desired " end in England and a minority of States where the resulting liability " for the homicide was manslaughter ". (ibid.)

So it was that in Beard [1920] A.C. 479 at 501, Lord Birkenhead enumerated his second proposition—

" That evidence of drunkenness which renders the accused incapable " of forming the specific intent essential to constitute the crime should " be taken into consideration with the other facts proved in order to " determine whether or not he had this intent."

But, as has frequently been pointed out by judges and academics alike, this singling out of a " specific intent" from a " general intent" has given rise to great difficulty and confusion. Professor Hall commented (ibid. 142):

" Each crime, as Stephen pointed out, has its distinctive mens rea: " e.g. intending to have forced intercourse, intending to break and enter " a dwelling-house and to commit a crime there, intending to inflict a " battery, and so on. It is evident that there must be as many mentes reae " as there are crimes. And, whatever else may be said about intention, " an essential characteristic of it is that it is directed towards a definite " end. To assert therefore that an intention is ' specific' is to employ " a superfluous term just as if one were to speak of a ' voluntary act' ".

For my part, I do not find it surprising that, the charge in Beard being murder, Lord Birkenhead dealt first and at length with the traditional view regarding the " specific " intent which must be proved on such a charge. But, having done that, it is said by some that he proceeded (in the short passage appearing at page 504 of his speech) to deal on more expansive lines with the matter of general criminal intent. The setting is said to be found in the opening sentence, " I do not think that the proposition of law deduced " from those earlier cases is an exceptional rule applicable only to cases " where it is necessary to prove a specific intent in order to constitute the " graver crime ". And it is said that Lord Birkenhead rounded the passage off by observing that,

"... this is, on ultimate analysis, only in accordance with the ordinary " law applicable to crime, for, speaking generally (and apart from certain " special offences) a person cannot be convicted of a crime unless the " mens was rea ".

The practical effect of these words in the present case, so it is submitted, is that intoxication was relevant and the jury were accordingly completely misdirected.

Mr. Mathew, on the other hand, submitted that Lord Birkenhead was throughout speaking only of crimes having as an ingredient a specific intent and was restricting his observations to such cases. But it has to be said that some academic writers commenting on Beard shortly after it was decided treated the passage in the same way as later writers such as Professor Glan- ville Williams and the eminent authors of Smith and Hogan (3rd Ed. page 153) did. For example, Stroud wrote ((1920) 36 L.Q.R. 270):

" The whole of these observations . . . suggest an extension of the " defence of drunkenness far beyond the limits which have hitherto been " assigned to it. The suggestion, put shortly, is that drunkenness may " be available as a defence, upon any criminal charge, whenever it can " be shown to have affected mens rea. Not only is there no authority " for this suggestion ; there is abundant authority, both ancient and " modern, to the contrary."

Again, an unnamed contributor to 34 Harvard Law Review, referring, again in 1920, to the same passage in Beard said (at page 80) that,

" Janus-like ... it looks in the opposite direction in certain of its dicta ", and continued—

" It suggests that drunkenness may affect the ordinary mens rea. This is rank heresy in the common law and no attempt to support it has been "successful".

Hall (General Principles, 2nd Ed. 1960, 548 n.) read th6 passage at page 504 in a similar way. And, perhaps clearest of all the commentators Holdsworth (VIII, page 442) observed that Beard—

"... put the law on a clear and logical footing, by holding that, " inasmuch as a mens rea is, with very few exceptions "—the reference here is to Vol. HI, 374, dealing with offences of strict liability—"a " necessary ingredient of all crimes, the true rule is that, if the drunken- " ness has produced in a person accused of a crime, an incapacity " to form the particular intent necessary for the commission of that " crime, he cannot be convicted ".

Some of your Lordships have less difficulty in dealing with the particular passage in Beard than I, like these commentators, have experienced. And it is undoubtedly the case that judges and practitioners alike have treated the case as deciding that only up to a point may drunkenness serve to exculpate, but that in no case can it serve to exculpate completely from criminal liability. In the result, the work of the criminal courts of this country has in this respect been administered since 1920 in exactly the same way as it was before. It has also to be said that Lord Birkenhead did not appear to be bent upon exposing past errors in principle or practice (save, of course, in relation to R. v. Meade

[1909] 2 Cr. App. R. 54

), but purported merely to be stating what he regarded as established law.

Be all that as it may, if the passage at page 504 was, indeed, intended to be read as indicating that gross intoxication can relieve a man from culp- ability even for such crimes of basic intent as assault, it was clearly not correctly stating the law as it had existed for about 100 years. In the result, whether Lord Birkenhead and the other noble and learned Lords sitting with him were thus in error, or whether the academic writers quoted have misunderstood what this House was then saying, the established law then was and is now that self induced intoxication, however gross, cannot excuse crimes of basic intent such as that giving rise to this appeal.

Of recent years there has been increasing academic criticism of this virtually uniform judicial attitude. Such criticism is understandable, being based upon what is advanced as the logical necessity of acquitting an accused who acted without mens rea, whatever be the reason for its absence. Thus Professor Glanville Williams comments (ibid, at page 569),

" There is no reason why drunkenness should not negative a battery, " if it tends to show that the accused did not intend to hit anyone ".

The contrary view applied in our courts certainly presents problems. So much so that Mr. Tucker denies that it is the law. He submits without qualification that legal principle requires that automatism shall constitute a complete defence to all crimes (including those having recklessness as a constituent element) and he relied on the aforementioned passage from Beard as supporting that proposition. The attention of your Lordships was also drawn to some Commonwealth cases in support of the submission, including R. v. Ryan ((1967) A.L.R. 577 at 583) where Sir Garfield Barwick. C.J. said:

" In my opinion, the authorities establish, and it is consonant with . " principle, that an accused is not guilty of a crime if the deed which " would constitute it was not done in exercise of his will to act. . . . " If voluntariness is not conceded and the material to be submitted to " the Jury . . . provides a substantial basis for doubting whether the " deed charged as a crime was the voluntary or willed act of the " accused ... the accused must be acquitted."

Such is undoubtedly the logical basis of acquitting those who, owing to some such involuntary or inherent mental or physical conditions as have earlier been referred to, behave in a manner which in other circumstances would have caused them to be convicted of crime. And it is, I think, vitally important to realise how wide is the impact upon the criminal law of such a plea. Thus, Professor J. LL. J. Edwards has rightly condemned "the fallacy ... of the belief that the defence of automatism has no

" application to offences of absolute prohibition " (1965-66 8 Criminal Law Quarterly, 282) and recalls the insistence of this House in Bratty v. A .G. of Northern Ireland [1963] A.C. at 407, 409 and 415 on the requirement of a voluntary act as the foundation for criminal responsibility. Accordingly, Lord Goddard was, in my judgment, undoubtedly correct in saying in Hill v. Baxter [1958] 1 Q.B. 277 that it would have been a complete defence to a charge of breaching the absolute prohibition against ignoring " Halt" signs that the defendant was at the material time suffering from a stroke or an epileptic fit, for " he might well be in the driver's seat even with his hands " on the wheel, but in such a state of unconsciousness that he could not " be said to be driving ".

Why, then, should the trial judge have directed the jury, " You can ignore " the subject of drink and drugs as being in any way a defence", even though they had reduced Majewski to an automaton? Does the law demand that he be treated differently from one who attacks another in, for example, a diabetic coma (as in R. v. Quick and Paddison

(1873) 57 Cr.App.R.722

), simply because he had drugged himself? It seems that all the academic writers answer that question in the negative, and Professor J. C. Smith is good enough to say ([1975] Cr.L.R. 574) that, "It is time for the House " of Lords to go back to first principles and to recognise that if a particular " mens rea is an ingredient of an offence no one can be convicted of that " offence if he does not have the mens rea in question, whether he was drunk " at the time or not".

Judicial authority from the Commonwealth courts in support of that advice to your Lordships' House is not tacking. To take but one example, in Keogh ([1964] V.R. 400), Monahan, J. said, regarding charges of assault occasioning actual bodily harm, " Speaking for myself, I hold firmly to the " view that a state of automatism, even that which has been brought about " by drunkenness, precludes the forming of the guilty intent which is the " fundamental concept in criminal wrong-doing ".

The criticism by the academics of the law presently administered in this country is of a two-fold nature:(1) It is illogical and therefore inconsistent with legal principle to treat a person who of his own volition has taken drink or drugs any differently from a man suffering from some bodily or mental disorder of the kind earlier mentioned or whose beverage had, without his connivance, been " laced " with intoxicants.

(2) It is unethical to convict a man of a crime requiring a guilty state of mind when, ex hypothesi, he lacked it. I seek to say something about each of these two criticisms.

(1) illogicality

Appellant's counsel places strong reliance on a passage in the speech of Lord Hailsham of St. Marylebone in Morgan [1975] 2 W.L.R. 913, at 936B, in which, alluding to criminal intent, he said:

"... once it be accepted that an intent of whatever description " is an ingredient essential to the guilt of the accused I cannot myself " see that any other direction can be logically acceptable. Otherwise " a jury would in effect be told to find an intent where none existed " or where none was proved to have existed. I cannot myself reconcile " it with my conscience to sanction as part of the English law what I " regard as logical impossibility, and, if there were any authority which, " if accepted, would compel me to do so, I would feel constrained to " declare that it was not to be followed ".

Well, I have respectfully to say that were such an attitude rigorously adopted and applied, it would involve the drastic revision of much of our established law. Many would say that this would not be a bad thing, but it is well to realise clearly that such would be the consequence, for the criminal law is unfortunately riddled with illogicalities.

Logically, if a man who wounds does not know what he is doing he should be acquitted not only of wounding with intent (Offences against the Person Act 1861, section 18) but also of unlawful wounding (ibid., section

20), and even of common assault. Again, if a person charged with murder was at the material time in a similar mental state, there ought not to be a conviction of manslaughter, for logic requires that (as Crockett, J., said in Haywood [1971] V.R. 755, at 758) there should be an absolute acquittal. Indeed, Lord Birkenhead himself expressed in Beard (ante, at page 500) some doubt as to the soundness of holding that there must necessarily be a con- viction of manslaughter in homicide charges " falling short of insanity ", and concluded that, "... in truth, it may be that the cause of the punishment " is the drunkenness which has led to the crime, rather than the crime itself ". Professor Glanville Williams summarised the effect of the decided cases by stating that, " Drunkenness is no defence on a charge of manslaughter, " because the standard of care required of a drunkard is the same as that " required of anyone else. Thus, if D. kills P. in a drunken wrath, and " sets up a defence that he did not know what he was doing, the evidence " may justify an acquittal of murder, but there must be a conviction of " manslaughter". (Criminal Law, 2nd Ed., page 572). If the unqualified proposition is intended to apply equally to a conviction for manslaughter on the basis of criminal negligence and to one arrived at because death was the consequence of an unlawful act of violence (as, from the example cited, appears to be the case), it is indeed puzzling. And the distinction is not to be brushed aside, for it is of practical importance, if only in relation to the matter of sentence, leading Stephen, J. to conclude his direction to the jury in Doherty (ante, at page 309) by saying:

" If, gentlemen, you convict the prisoner of manslaughter, I must " ask you to be good enough to say whether you mean manslaughter ." by violence wilfully inflicted, or by culpable negligence, for, of course, " it will make a considerable difference in the punishment ".

So we find the. Court of Appeal decision in Lipman [1970] 1 Q. B. 152 criticised (Glazebrook [1970] Crim. L.R. 22) because Lord Widgery C.J. justified the conviction for manslaughter on the basis of death being caused by what was described as the unlawful act of the accused in stuffing bedclothes down his companion's throat under the delusion (induced by the drugs he had taken) that he was dealing with snakes. The criticism is that, although had the verdict been based on a finding that Lipman's act was grossly negligent, it would have been unassailable, on the other hand—

" Had (the victim) survived her ' trip ' and Lipman been faced with " any other charge based on her injuries, whether of causing grievous " bodily harm with intent (1861 Act, section 18) or of an assault occa- " sioning actual bodily harm (ibid, section 47) he would, in the absence " of evidence that he had realised that harm was likely to befall his " fellow-tripper, have been acquitted ".

But would Lipman's conviction even on the basis of culpable negligence be logically acceptable? This critic clearly thinks it would be, but how can a man who ex hypothesi does not know what he is doing be guilty of criminal negligence? If logic is indeed to be the sole guide, I find it easier to understand the views of another writer ([1970] C.L.J. 214) who states that,

" It has been accepted that automatism provides a defence to offences " of strict liability, and a fortiori it will be a defence where negligence " is required ",

and then continues:

" Thus the facts in Lipman present a problem if it is sought to convict " D of manslaughter by gross negligence, for it would seem that at the " relevant time D was ' acting' in a state of automatism: he had no " consciousness of what his limbs were actually doing—his limbs were " not controlled by his conscious mind. It appears, therefore, that either " D cannot be convicted of manslaughter or the extent to which " automatism may provide a defence is limited to exclude such a case ".

The undeviating application of logic leads inexorably to the conclusion that a man behaving even as Lipman unquestionably did must be completely discharged from all criminal liability for the dreadful consequences of his

conduct. It was, as I recall, submissions of this startling character which led my noble and learned friend. Lord Simon of Glaisdale, to comment trenchantly to appellant's counsel,

" It is all right to say ' Let justice be done though the heavens fall'. " But you ask us to say ' Let logic be done even though public order be "' threatened', which is something very different".

Are the claims of logic, then, so compelling that a man behaving as the Crown witnesses testified Majewski did must be cleared of criminal responsibility? As to this, Lawton L.J. rightly said (ibid. 411, F-G):

" Although there was much reforming zeal and activity in the 19th "century, Parliament never once considered whether self-induced " intoxication should be a defence generally to a criminal charge. It " would have been a strange result if the merciful relaxation of a strict " rule of law has ended, without any Parliamentary intervention, by " whittling it away to such an extent that the more drunk a man became, " provided he stopped short of making himself insane, the better chance " he had of an acquittal".

If such be the inescapable result of the strict application of logic in this branch of the law, it is indeed not surprising that illogicality has long reigned, and the prospect of its dethronement must be regarded as alarming.

(2) lack of ethics

It is sometimes said in such cases as the present that it is morally wrong to convict of a crime involving a certain state of mind even where it be established that the charge is based on a man's behaviour when he lacked that guilty mind. Rightly or wrongly, Coke was not of that view, for although he asserted that " Actus non facit reum nisi mens sit rea " he also said that, so far from gross intoxication excusing crime, it aggravated the culpability.

Your Lordships are presently concerned with a public-house brawl, which is said to have been due to the ingestion of drugs rather than drink. Such a plea is becoming much more common, and those acting judicially or who have otherwise acquired any knowledge of addiction are familiar with such parlance of the drug scene as " going on a trip " or " blowing the mind ", the avowed intention of the taker of hallucinatory drugs being to lose contact with reality. Irrationality is in truth the very essence of drug-induced phantasies.

Illogical though the present law may be, it represents a compromise between the imposition of liability upon inebriates in complete disregard of their condition (on the alleged ground that it was brought on voluntarily), and the total exculpation required by the defendant's actual state of mind at the time he committed the harm in issue. It is at this point pertinent to pause to consider why legal systems exist. The universal object of a system of law- is obvious—the establishment and maintenance of order.

"The first aim of legal rules is to ensure that members of the " community are safeguarded in their persons and property so that their " energies are not exhausted by the business of self-protection ". (Stein & Shand, "Legal Values in Western Society", 1974, page 31.) The relevant quotations on the purpose of law are endless and they serve to explain (if, indeed, any explanation be necessary) the sense of outrage which would naturally be felt not only by the victims of such attacks as are alleged against the appellant—and still more against Lipman—were he to go scot-free. And a law which permitted this would surely deserve and earn the contempt of most people. But not, it seems, of the joint authors of Smith & Hogan, who in the 3rd edition of their valuable book write (p. 37):

" While a policy of not allowing a man to escape the consequence of " his voluntary drunkenness is understandable, it is submitted that the " principle that a man should not be held liable for an act over which " he has no control is more important and should prevail "

. They add that this is not to say that such a man should in all cases escape criminal liability but that, if he is to be held liable, it should be for the voluntary act of taking the drink or drug.

Such a suggestion is far from new. Thus, it appears from Male's Pleas of the Crown, vol. 1, page 32, that some lawyers of his day thought that the formal cause of punishment ought to be the drink and not the crime committed under its influence. Edwards (ante, pp. 266, 278) expressed concern in 1965 over the possible existence of this gateway to exemption from criminal responsibility and stressed the need for urgent attention to the provision of new statutory powers under which the courts may place such offenders on probation or committing them, as the case may require, to a hospital capable of treating them for the underlying cause of their propensity to automatism. Glanville Williams (ante, at page 571) anticipated in 1961 the Butler Report on Mentally Abnormal Offenders (Cmnd. 6244, 1975) by recommending the creation of an offence of being drunk and dangerous, and the Committee itself proposes that a new offence of " dangerous intoxication " be punishable on indictment for one year for a first offence or for three years on a second or subsequent offence.

Such recommendations for law reform may receive Parliamentary con- sideration hereafter but this House is presently concerned with the law as it is. The merciful relaxation of the old rule that drunkenness was no defence appears to have worked reasonably well for 150 years. As to the complaint that it is unethical to punish a man for a crime when his physical behaviour was not controlled by a conscious mind, I have long regarded as a convincing theory in support of penal liability for harms committed by voluntary inebriates, the view of Austin, who argued (Lectures on Jurisprudence, 1879, 512-513} that a person who voluntarily became intoxicated is to be regarded as acting recklessly, for he made himself dangerous in disregard of public safety.

But, to my way of thinking, the nearest approach to a satisfactory refutation of charges of lack of both logic and ethics in punishing the most drunken man for actions which, were he sober, would call for his criminal conviction is that of Stroud, who wrote (" Mens Rea ", 1914, 115):

" It has been suggested by various writers, in explanation of the " doctrine respecting voluntary drunkenness as an excuse for crime, " that the effect is ' to make drunkenness itself an offence, which is " 'punishable with a degree of punishment varying as the consequences " 'of the act done'. (Clark, Analysis of Criminal Liability, 1880, " page 30.;

" This is not exactly correct, although it is not far from the true " explanation of the rule. The true explanation is, that drunkenness " is not incompatible with mens rea, in the sense of ordinary culpable " intentionalily, because mere recklessness is sufficient to satisfy the " definition of menu rea, and drunkenness is itself an act of recklessness. " The law therefore establishes a conclusive presumption against the " admission of proof of intoxication for the purpose of disproving mens " rea in ordinary crimes. Where this presumption applies, it does not " make ' drunkenness itself' a crime, but the drunkenness is itself an " integral part of the crime, as forming, together with the other unlawful " conduct charged against the defendant, a complex act of criminal " recklessness.

" This explanation affords at once a justification of the rule of law, " and a reason for its inapplicability when drunkenness is pleaded by " way of showing absence of full intent, or of some exceptional form " of mens rea essential to a particular crime, according to its definition."

Reverting to the same topic immediately after the decision in Beard, Stroud added ((1920) 36 L.Q.R. at 273):

" It would be contrary to all principle and authority to suppose that " drunkenness can be a defence for crime in general on the ground that " a person cannot be convicted of a crime unless the mens was rea'. " By allowing himself to get drunk, and thereby putting himself in such " a condition as to be no longer amenable to the law's commands, a man " shows such regardlessness as amounts to mens rea for the purpose of

" all ordinary crimes (nam crimen ebrietas et ineendit et detegit). His " drunkenness can constitute a defence only in those exceptional cases " where some additional mental element, of a more heinous and " mischievous description than ordinary mens rea, is required by the " definition of the crime charged against him, and is shown to have " been lacking in consequence of his drunken condition."

Professor Glanville Williams would probably condemn such an approach as savouring of " judge-made fiction " (see his Mental Element in Crime, 1965, p. 20). While generally sharing his dislike of such fictions, in my judgment little can properly be made out of the criticisms that a law which demands the conviction of such persons who behave as Majewski did is both illogical and unethical. It may be that Parliament should look at it, and devise a new way of dealing with drunken or drugged offenders. But, until it does, the continued application of the existing law is far better calculated to preserve order than the recommendation that he and all who act similarly should leave the dock as free men.

It remains to deal shortly with the point several times advanced by Profesor J. C. Smith that to ignore evidence of intoxication when determining criminal culpability is to contravene section 8 of the Criminal Justice Act 1967, and is in defiance of Lord Goddard, C.J. who said in Steane [1947] K.B. 997, 1004 that it is " the totality of the evidence " and " the whole " evidence " which the jury must consider. With reference to the Court of Appeal decision in the instant case, Professor Smith asserts (1975 Crim. L.R. 574) that the decision as it stands necessitates the addition of the following words to section 8 as enacted:

"... except (where a specific intent is not in issue) evidence of the " voluntary taking by that person of drink or drugs and the effect on him " thereof ".

He comments that no known principle of statutory interpretation justifies " the interpolation of such words, to the detriment of a person accused of " crime ".

I believe that such criticism is misplaced. Section 8 deals with the matter of proof, of evidence. In those cases where a party's state of mind is relevant, it directs how the magistrate or jury is to ascertain it, namely, " by " reference to all the evidence ". But section 8 has nothing to do with substantive law, it does not lay down in what cases the establishment of guilt is dependent on proof of intention or foresight or any other mental state. Accordingly, only if the law were that, in all cases and circumstances, a man who, by reason of self-induced intoxication, lacks the necessary intent is entitled to a complete acquittal would the criticism advanced be well- founded. But it begs the very question which lies at the heart of this appeal. It assumes that such is the law, and only on that assumption can such criticism be advanced. But if the established law is that such a defendant cannot excuse his conduct by saying, " Through the drink (or drugs) I took, " I didn't know what I was doing "—and, as indicated, such I believe the law to be, save (illogically but with historically understandable benevolence) in relation to the formation of a " specific " or " ulterior " intent—it follows that section 8 has no application and was rightly ignored at the trial of the present appellant on charges of assault.

Professor Smith's criticism would be justified were a judge to direct, in a trial for an offence involving a specific intent, that even gross intoxication was irrelevant to the question of whether the Crown had established that the accused had such intent. But under our long-established law, such a direction in relation to a basic intent (as in the present case) would be and is perfectly correct.

For these reasons, I concur in holding that " Yes" is the proper answer to the certified question and that, there having been no misdirection, the appeal should be dismissed.

Lord Russell of Killowen

My Lords,

Your Lordships have dealt so fully with the considerations to which this appeal has given rise that I will be brief. I entirely agree that the answer to the question posed is in the affirmative. That the facts of the case give rise to the question, I doubt. Majewski's participation in the events of the evening begin when he is told by the other man that the latter is to be ejected : whereupon Majewski stationed himself before the door to prevent that, which shows comprehension and intention on his part. When the police arrived Majewski called them adjectival pigs, a word which has of recent years been revived as a reference to law enforcement officers, having been current in the early 19th century (sec Pierce Egan's Life in London 1821): this also negatives lack of understanding. Nevertheless, the question requires (o be answered, and I agree with the answer proposed.

There arc those who consider that the pendulum should swing the whole way from the old attitude of the criminal law that self-induced intoxication was if anything an aggravation of the crime committed while under its influence, to an attitude whereunder if the intoxication deprives a man of the ability to appreciate what he was doing he cannot be held guilty of any crime at all, save one of absolute liability or in which drunkenness is itself a constituent element of the crime. A man who has no knowledge of what he does cannot, it is said, be a guilty man, whatever may have deprived him of that knowledge. There is at least superficially, logic in that approach: but logic in criminal law must not be allowed to run away with common sense, particularly when the preservation of the Queen's Peace is in question. The ordinary citizen who is badly beaten up would rightly think little of the criminal law as an effective protection if, because his attacker had deprived himself of ability to know what he was doing by getting himself drunk or going on a trip with drugs, the attacker is to be held innocent of any crime in the assault. Mens rea has many aspects. If asked to define it in such a case as the present I would say that the element of guilt or moral turpitude is supplied by the act of self-intoxication reckless of possible consequences, (in the early history of the criminal law it was always recognised that intoxication not self-induced—the surreptitiously laced drink—gave rise to quite different considerations: and this was because it was not the man's " fault", And so nowadays.) If, however, the crime charged was, as described in Beard's case, one which required a " specific intent " to con- stitute the crime, and the self-induced intoxication was such that he had not the required specific intent, the accused is not to be found guilty of that particular crime: though commonly there will be a lesser crime to which the intoxication—however mind stealing—will be no defence: murder and manslaughter are such: assault causing grievous bodily harm with intent to cause grievous bodily harm, and assault causing grievous bodily harm or actual bodily harm is another example.

There are two aspects of Beard's case which have given rise to misunder- standing as to what was there said. One misunderstanding is that a passage in the speech of Lord Birkenhead L.C. is inconsistent with and indeed contradictory of the main tenor thereof. -The other is that it lays down or assumes that rape is a crime of specific intent.

The first aspect to which I have referred is related to the passage at page 504 of the report:

" I do not think that the proposition of law deduced from these earlier " cases is an exceptional rule applicable only to cases in which it is " necessary to prove a specific intent in order to constitute the graver " crime—e.g., wounding with intent to do grievous bodily harm or with " intent to kill. It is true that in such cases the specific intent must be " proved to constitute the particular crime, but this is, on ultimate " analysis, only in accordance with the ordinary law applicable to " crime, for, speaking generally (and apart from certain special offences),

" a person cannot be convicted of a crime unless the mens was rea. " Drunkenness, rendering a person incapable of the intent, would be an " answer, as it is for example in a charge of attempted suicide. In Reg. " v. Moore 3 C. and K. 319 drunkenness was held to negative the intent " in such a case, and Jervis C.J. said: ' If the prisoner was so drunk " ' as not to know what she was about, how can you say that she " ' intended to destroy herself?'"

In my opinion this passage is not to be taken as stating in effect the opposite of the whole previous tenor of the speech in the course of denying the applicability of the statement in Meade. The clue to the cited passage appears to me to be in the words " in order to constitute the graver crime ". In my opinion the passage cited does no more than to say that special intent cases are not restricted to those crimes in which the absence of a special intent leaves available a lesser crime embodying no special intent, but embrace all cases of special intent even though no alternative lesser criminal charge is available. And the example given of attempted suicide is just such a case.

The second aspect of Beard to which I have referred relates to two pas- sages. The first is at page 504:

" My Lords, drunkenness in this case could be no defence unless it " could be established that Beard at the time of committing the rape was " so drunk that he was incapable of forming the intent to commit it, " which was not in fact, and manifestly, having regard to the evidence, " could not be contended. For in the present cate the death resulted " from two acts or from a succession of acts, the rape and the act of " violence causing suffocation. These acts cannot be regarded separately " and independently of each other. The capacity of the mind of the " prisoner to form the felonious intent which murder involves is in " other words to be explored in relation to the ravishment; and not in " relation merely to the violent acts which gave effect to the ravishment."

The second is at page 507:

" There was certainly no evidence that he was too drunk to form the " intent of committing rape."

In my opinion these passages do not indicate an opinion thai rape is a crime of special intent. All that is meant is that conscious rape is require;.! to supply " the felonious intent which murder involves." For the crime of murder special or particular intent is always required for the necessary malice aforethought. This may he intent to kill or intent to cause grievous bodily harm: or in a case such as Beard of constructive malice, this required the special intent consciously to commit the violent felony of rape in the course and furtherance of which the act of violence causing death took place. Beard, therefore, in my opinion does not suggest that rape is a crime of special or particular intent.

I too would dismiss this appeal.

(328790) 200 4/76 StS

Cited in 1 later judgment

Carroll v Director of Public Prosecutions 2009