R v Kingston [1994] UKHL 9

House of Lords
Between
RAppellantKingstonRespondent
Before
Lord Keith of KinkelDate 21 July 1994
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal (Criminal Division) of the 5th day of October 1993 complained of in the said Appeal be, and the same is hereby, Set Aside, that the first part of the certified question be answered in the negative and that consequently no answer be given to the second part of that question: And it is further Ordered. That the Cause be, and the same is hereby, remitted back to the Court of Appeal (Criminal Division) with a direction to dispose of the grounds of appeal not already disposed of by that Court, including if appropriate the appeal against sentence, in accordance with the views expressed in this House, and to determine whether the conviction of the Respondent by Lewes Crown Court on the 16th day of March 1992 should be upheld or quashed.Cler: Parliamentor;

Judgment: 21 July 1994 HOUSE OF LORDS

REGINA

v.

KINGSTON (RESPONDENT) (ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL DIVISION))

Lord Keith of Kinkel Lord Goff of Chieveley Lord Browne-Wilkinson Lord Mustill Lord Slynn of Hadley

LORD KEITH OF KINKEL

My Lords.For the reasons given in the speech to be delivered by my noble and learned friend Lord Mustill, which I have read in draft and with which I agree, I would allow this appeal.

LORD GOFF OF CHIEVELEY

My Lords.1 have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Mustill and for the reasons he gives I, too, would allow the appeal.

LORD BROWNE-WILKINSON

My Lords.I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Mustill and for the reasons he gives I, too, would allow the appeal.

- 1 -

LORD MUSTILL

My Lords.This appeal concerns the effect on criminal liability of involuntary intoxication.At a trial in the Lewes Crown Court in March 1992 the respondent Barry Kingston and a man named Penn were jointly indicted on a count of indecent assault on a youth aged 15 years. Penn also faced a second count that he unlawfully caused to be taken by that youth a stupefying drug with intent. At the close of the prosecution case Penn pleaded guilty to the first count, but maintained his plea of not guilty to the second. In the event the jury convicted Penn on the outstanding charge of administering a drug and the respondent on the single charge of indecent assault. The conviction of the respondent was by a majority. The trial judge (Potts J.) sentenced each defendant to five years imprisonment on the charges of indecent assault and Penn to an additional consecutive period of one year on the second count. The relevant tacts are simple. The respondent was in dispute over business matters with a couple named Foreman, who employed Penn to obtain damaging information which they could use against the respondent, who is a homosexual with paedophiliac predilections. As part of this plan Penn invited the youth to his room. According to the evidence given by the youth at the trial he remembered nothing between a time when he was sitting on the bed and when he woke up, still in Penn's room, the following morning. It was the case for the prosecution, which the jury by their verdict on the second count must have accepted, that the boy fell asleep because Penn had secretly given him a soporific drug in a drink. On the same evening the respondent went to the room where the youth lay unconscious. He and Penn indulged in gross sexual acts with him. As part of the plan Penn made a recording of what was going on, and also took some photographs. Since an appeal against sentence is pending I will say nothing about these, although they obviously played an important part in the trial. Later, this material came into the hands of the police and charges were brought.At the outset of the trial counsel for the respondent foreshadowed a defence on the lines that as part of the plan Penn had secretly administered drugs not only to the boy but also to the respondent. It was not said, and in the light of the recordings and photographs could not have been said, that the consequence was to make the respondent, like the boy, insensible: nevertheless his case was he had suffered effects which annulled the criminal liability which his acts would otherwise have involved. At rather short notice two questions were raised for decision:
"(i) If the jury find that Mr Kingston assaulted (the boy) pursuant to an intent induced by the influence of drugs administered secretly to him by Penn, is it open to them to find him not guilty?

- 2 -

(ii) If the jury find that at the time of the alleged offence Mr Kingston was intoxicated by drugs secretly administered to him by Kevin Penn, is it open to them to find that this intoxication made negative intent/mens rea so as to find Mr Kingston not guilty?"It was made clear by counsel for the defendant in argument before the judge that the first question presupposed that the respondent had, notwithstanding any intoxication, the intent necessary to found the offence: although, of course, he did not accept that aside from assumptions made for the purpose of the question of law he did in fact have any such intention. After argument the learned judge gave a provisional answer "No" to the first question. In the course of the trial there was expert evidence concerning the effects of three medicinal drugs found in the possession of Penn when seen by the police some months after the offence. These had been prescribed after the date of the offence, although of course it does not follow that similar drugs had not previously been in the possession of Penn; and indeed the youth did say something in his evidence about valium (diazepam). The evidence (which your Lordships have not seen) appears to have been concerned mainly with the soporific effect of the drugs on the boy. There seems to have been little attention given to the impact, if any, of these three drugs, or possibly other drugs, on the behaviour of the respondent. Perhaps this was due to the discouraging effect of the judge's preliminary ruling. At all events, the only evidence relevant to the present appeal was given under cross-examination by the expert called on behalf of the respondent, who said that (triazolam) would never make anybody do anything that they would not be induced to do under normal circumstances. Counsel returned to the matter at the conclusion of the case. Although there was no formal response to the questions it is plain that the learned judge adhered to his earlier ruling that the answer to the first question was "No"; and it is implicit in the way the matter was put to the jury that his answer to the second question was "Yes" - an answer which, given the very wide terms of the question, is accepted on all sides as correct.What

the judge told the jury was this:

"For the purposes of this case an assault is an act by which a person intentionally applies, intentionally or recklessly applies, unlawful force to another. The degree of force does not matter, thus a touching is enough. An indecent assault is an assault accompanied by circumstances of indecency, on the part of the accused whose case you are considering, towards the victim, in this case [D.C.]. Thus, so far as Mr. Kingston is concerned on the first count, the Crown must prove that he intentionally - intentionally - assaulted [D]; that the assault or the circumstances accompanying, were capable of being considered by right-minded people as indecent (and having seen those photographs can you doubt that?) and that the defendant Kingston intended such indecency. Thus, ladies and gentlemen. Kingston's intention is of all importance for you may think the fact as to what happened is beyond

- 3 -

dispute - but there I go into your province, you decide whether a fact of what happened is beyond dispute or not. In that connection you have the photographs and the tape. In deciding what Kingston's intent was at the time of the alleged offence - and I emphasize that: intent at the time of the offence - you can look at what he did and what he said at the time, and here you have the photographs of the one and the tape of the other. You look at his actions before, at the time and after the alleged offence. All these things may shed light on his intention at the critical moment.
"In deciding whether Kingston intended to commit this offence, you must take into account any findings that you may make that he was affected by drugs. If you think that because he was so affected by drugs he did not intend or may not have intended to commit an indecent assault upon [D.C.], then you must acquit him; but if you are sure that despite the effect of any drugs that he might have been slipped - and it is for you to find whether he was drugged or not - this part of the case is proved, because a drugged intent is still an intent. So intention is crucial, intention at the time; and, of course, members of the jury, you will bear in mind there is a distinction between intention at the time and a lack of memory as to what happened after the time. "
After this direction the jury by a majority returned a verdict of Guilty against the respondent on the first count, and the learned judge imposed a sentence of five years' imprisonment. The respondent appealed against conviction and sentence. The Court of Appeal (Criminal Division) allowed the appeal and quashed the convictions [1994] Q.B. 81. After citing from decisions and commentaries the court, in a judgment delivered by Lord Taylor C.J., continued, at pp. 89-90:
"In our judgment, the question can be answered by turning to first principles. The importance of ensuring, under a system of law, that members of the community are safeguarded in their persons and property is obvious and was firmly stated in Reg. v. Majewski [1977] A.C. 443 (see for example the speech of Lord Edmund Davies at p. 495). However, the purpose of the criminal law is to inhibit, by proscription and by penal sanction, anti-social acts which individuals may otherwise commit. Its unspoken premise is that people may have tendencies and impulses to do those things which are considered sufficiently objectionable to be forbidden. Having paedophiliac inclinations and desires is not proscribed; putting them into practice is. If the sole reason why the threshold between the two has been crossed is or may have been that the inhibition which the law requires has been removed by the clandestine act of a third party, the purposes of the criminal law are not served by nevertheless holding that the person performing the act is guilty of an offence. A man is not responsible for a condition produced 'by stratagem, or the fraud of

- 4 -

another.' If therefore drink or a drug, surreptitiously administered, causes a person to lose his self control and for that reason to form an intent which he would not otherwise have formed, it is consistent with the principle that the law should exculpate him because the operative fault is not his. The law permits a finding that the intent formed was not a criminal intent or, in other words, that the involuntary intoxication negatives the mens rea. As was pointed out in argument, there is some analogy to be found here in the rationale underlying the defence of duress. While it is not necessary for the decision of this case, it appears to us that if the principle applies where the offence is one of basic intent, it should apply also where the offence is one of specific intent.
"We would add that there must be evidence capable of giving rise to the defence of involuntary intoxication before a judge is obliged to leave the issue to the jury. However, once there is an evidential foundation for the defence, the burden is upon the Crown to prove that the relevant intent was formed and that notwithstanding the evidence relied on by the defence it was a criminal intent.
"By answering the first of the questions put to him at the beginning of the trial in the negative, the learned judge may have inhibited a sufficient ventilation of this issue at a later stage. Further, by summing up as he did, the learned judge effectively withdrew the issue from the jury. In our judgment, that amounted to a material misdirection."
The court accordingly quashed the conviction.In due course the prosecutor obtained from the Court of Appeal a certificate that a point of law of general public importance was involved in the decision to allow the appeal, namely:
"(a) Whether, if it is proved that the necessary intent was present when the necessary act was done by him, a defendant has open to him a defence of involuntary intoxication? (b) If so, on whom does the burden of proof lie?"
The prosecutor now appeals by leave of your Lordships' House.In academic circles the decision under appeal has not been favourably received. In particular Sir John Smith, [1983] Crim. L.R. 794. Professor Edward Griew, Archbold News, 28 May 1993, p. 5 and Mr. J.R. Spencer. [1994] C.L.J. 6 have characterised it as surprising, dangerous and contrary to principle. On the other hand there is an instinctive attraction in the proposition that a retributory system of justice should not visit penal consequences on acts which are the ultimate consequence of an event outside the volition of the actor, and that it is not sufficient to acknowledge the special

- 5 -

circumstances by mitigating the penalty which would otherwise be appropriate. This point of view is forcefully argued by Mr. G.R. Sullivan, [1994] Crim. L.R. 272, although the author does not accept the judgment of the Court of Appeal in its fullest extent. This divergence of opinion reflects a general issue of fundamental importance, as well as a more technical question on the law of intoxication. Since the matter is also of increasing practical significance, given the availability of hallucinogenic drugs whose ingestion in very small quantities can lead to behaviour which is bizarre, unpredictable and violent, it must be considered in some detail. The essential facts must be identified.The starting point is the verdict of Guilty coupled with the judge's direction on the necessity for intent. This implies that the majority either(a) were sure that the respondent had not involuntarily taken a drug or drugs at all or(b) were sure that whatever drug he may have taken had not had such an effect on his mind that he did not intend to do what he did. We are therefore not concerned with what is picturesquely called automatism; nor was it suggested that the effect of the drug was to produce a condition of temporary insanity. What then was said to have been the induced mental condition on which the respondent relies? Inevitably, since the judge's ruling meant that whatever medical evidence there may have been was not developed we cannot be sure. Still, the general nature of the case is clear enough. In ordinary circumstances the respondent's paedophiliac tendencies would have been kept under control, even in the presence of the sleeping or unconscious boy on the bed. The ingestion of the drug (whatever it was) brought about a temporary change in the mentality or personality of the respondent which lowered his ability to resist temptation so far that his desires overrode his ability to control them. Thus we are concerned here with a case of disinhibition. The drug is not alleged to have created the desire to which the respondent gave way, but rather to have enabled it to be released. The situation is therefore different from that which led to the acquittal of the accused in the first of the Scottish cases to which I shall refer, where the drug directly brought about the violent conduct with which he was charged.On these facts there are three grounds on which the respondent might be held free from criminal responsibility. First, that his immunity flows from general principles of the criminal law. Secondly, that this immunity is already established by a solid line of authority. Finally, that the court should, when faced with a new problem acknowledge the justice of the case and boldly create a new common law defence.It is clear from the passage already quoted that the Court of Appeal adopted the first approach. The decision was explicitly founded on general principle. There can be no doubt what principle the court relied upon, for at the outset the court [1994] Q.B. 81, 87 recorded the submission of counsel for the respondent - "... the law recognises that, exceptionally, an accused person may be entitled to be acquitted if there is a possibility that although his act was intentional, the intent itself arose out of circumstances for which he

- 6 -

bears no blame". The same proposition is implicit in the assumption by the Court that if blame is absent the necessary mens rea must also be absent.My Lords,with every respect I must suggest that no such principle exists or. until the present case, had ever in modern times been thought to exist. Each offence consists of a prohibited act or omission coupled with whatever state of mind is called for by the statute or rule of the common law which creates the offence. In those offences which are not absolute the state of mind which the prosecution must prove to have underlain the act or omission - the "mental element" - will in the majority of cases be such as to attract disapproval. The mental element will then be the mark of what may properly be called a "guilty mind". The professional burglar is guilty in a moral as well as a legal sense; he intends to break into the house to steal, and most would confidently assert that this is wrong. But this will not always be so. In respect of some offences the mind of the defendant, and still less his moral judgment, may not be engaged at all. In others, although a mental activity must be the motive power for the prohibited act or omission the activity may be of such a kind or degree that society at large would not criticise the defendant's conduct severely or even criticise it at all. Such cases are not uncommon. Yet to assume that contemporary moral judgments affect the criminality of the act. as distinct from the punishment appropriate to the crime once proved, is to be misled by the expression "mens rea", the ambiguity of which has been the subject of complaint for more than a century. Certainly, the "mens" of the defendant must usually be involved in the offence: but the epithet "rea" refers to the criminality of the act in which the mind is engaged, not to its moral character. If support from the commentators for this proposition is necessary it may be found in Smith & Hogan. Criminal Law, 7th ed. (1992). pp.79-80; Glanville Williams. Textbook of Criminal Law 2nd ed. (1983), p. 221 and also p. 75; and Russell on Crime 12th ed. (1964). Vol. 1, at p. 80, 86.My Lords,it is hard to discuss the respondent's contrary argument at length, for no decided case has been cited to support it; nor indeed was any cited against it, and this is not surprising, since there can have been few occasions in modern times when the dissociation between the mental and the moral aspects of a crime has been doubted. By coincidence, however, this very question has recently been considered by the Judicial Committee of the Privy Council. In Yip Chui Cheung v . The Queen (16 June 1994) the appellant was charged with conspiracy to traffic in a dangerous drug, contrary to the common law and section 4 of the Dangerous Drugs Ordinance. Cap. 134, of Hong Kong. So far as material the facts were as follows. The case for the prosecution was that the appellant had a series of meetings in Thailand with a man named Needham. who unknown to the appellant was an undercover drug enforcement officer of the United States of America. In the course of these meetings it was arranged that Needham would act as courier to carry a consignment of drugs by air from Hong Kong to Australia, the plan being that Needham would travel to Hong Kong, collect the drugs and fly on to Australia. Needham said that throughout his dealings with the appellant he

- 7 -

kept the authorities in Hong Kong and Australia informed of the plans and they agreed that he would not be prevented from carrying the drugs out of Hong Kong and into Australia. Although Needham fully intended to carry it out this scheme foundered for practical reasons and he never in fact went to Hong Kong. On an appeal against conviction one of the arguments for the appellant was that he could not be guilty of conspiring with Needham since Needham himself had committed no offence. In an opinion delivered by Lord Griffiths after the conclusion or the arguments in the present appeal, the Board dismissed this contention in the following terms:
"On the principal ground of appeal it was submitted that the trial judge and the Court of Appeal were wrong to hold that Needham, the undercover agent, could be a conspirator because he lacked the necessary mens rea or guilty mind required for the offence of conspiracy. It was urged upon their Lordships that no moral guilt attached to the undercover agent who was at all times acting courageously and with the best of motives in attempting to infiltrate and bring to justice a gang of criminal drug dealers. In these circumstances it was argued that it would be wrong to treat the agent as having any criminal intent, and reliance was placed upon a passage in the speech of Lord Bridge of Harwich in Reg. v. Anderson (William Ronald) [1986] A.C. 27 at pp. 39-39; but in that case Lord Bridge was dealing with a different situation from that which exists in the present case. There may be many cases in which undercover police officers or other law enforcement agents pretend to join a conspiracy in order to gain information about the plans of the criminals, with no intention of taking any part in the planned crime but rather with the intention of providing information that will frustrate it. It was to this situation that Lord Bridge was referring in Anderson. The crime of conspiracy requires two or more persons to commit an unlawful act with the intention of carrying it out. It is the intention to carry out the crime that constitutes the necessary mens rea for the offence. As Lord Bridge pointed out, an undercover agent who has no intention of committing the crime lacks the necessary mens rea to be a conspirator.
The facts of the present case are quite different. Nobody can doubt that Needham was acting courageously and with the best of motives; he was trying to break a drug ring. But equally there can be no doubt that the method he chose and in which the police in Hong Kong acquiesced involved the commission of the criminal offence of trafficking in drugs by exporting heroin from Hong Kong without a licence. Needham intended to commit that offence by carrying the heroin through the customs and on to the aeroplane bound for Australia."I would therefore reject that part of the respondent's argument which treats the absence of moral fault on the part of the appellant as sufficient in itself to negative the necessary mental element of the offence.

- 8 -

Before proceeding to the next stage two remarks must be made. The first is that in the passage above-quoted the Court of Appeal echoed part of a dictum in Pearson's case (1835) 2 Lew. C.C. 144:
"If a party be made drunk by stratagem, or the fraud of another, he is not responsible"
. If it is an essential part of the reasoning of the court that the intervention of a third party is involved I must join with Sir John Smith in pointing out that a loss of self control through the acts of a third party does not in general constitute a defence, as witness the example given by Sir John of a man who severely injures the victim when enraged by lies told by a third party against the victim. In such a case there is substantial mitigation but no defence recognised by law. Secondly I have felt some concern about whether, in the discussion so far, the principle relied upon has been correctly stated. That counsel was arguing for the proposition that mens rea is to be equated with moral fault is clear, for he gave as an example of the absence of mens rea a mother who took goods from a supermarket without payment in order to feed a starving child: an example which in fact demonstrates as clearly as any could the difference between mitigation and defence. I have however wondered whether the Court of Appeal meant something different and more narrow, namely that there is no mens rea if the intent is set in motion by a condition which the defendant did not bring about by his own deliberate act. This proposition was not separately argued and I hesitate to say anything about it, except that if it were right as a matter of general law an irresistible impulse brought about by an inherent medical condition would, aside from all questions of insanity and diminished responsibility, be a defence at common law; which it is not.Accordingly, so far as general principles of criminality are concerned I would reject the respondent's argument. His second ground is more narrow, namely that involuntary intoxication is already recognised as a defence by authority which the House ought to follow. In his resilient argument Mr. Taylor repeatedly stressed the importance of two sources. The first of these was Pearson's case 2 Lew. C.C. 144, which was heard at Carlisle Assizes. The report in which it appears collects under subject headings a series of epitomes of things said and rulings given on the Northern Circuit in the first part of the last century. The report is so brief that it may be quoted in full:
"The prisoner was indicted for the murder of his wife.
It was proved, that, in a fit of drunkenness, he had beaten her in a cruel manner with a rake-shank, and that she died of the wounds and bruises which she received. His only defence was. that he was drunk.Park. J. - 'Voluntary drunkenness is no excuse for crime.
'If a party be made drunk by stratagem, or the fraud of another, he is not responsible.

- 9 -

'So, drunkenness may be taken into consideration to explain the probability of a party's intention in the case of violence committed on sudden provocation.'"For two reasons I cannot place reliance on this dictum as a foundation for a modern law of involuntary intoxication. First, because the dictum was uttered at a time when the law concerning the mental element of crime, and the particular place of intoxication within it, was in an early state of development. The scholarly account given by R.U. Singh in History of the Defence of Drunkenness in English Criminal Law, (1933) 49 L.Q.R. 528 shows to my mind quite clearly that it would be perilous to base any decision today on old dicta on this topic, unless endorsed by modern authority - as is evident that part of Pearson which deals with the effect of drunkenness on a defence of provocation in a way which is no longer the law.Secondly, although Park J. was an eminent judge whose pronouncements are worthy of respect, I am sceptical about reliance on a report of this kind as a basis for treating the law as settled. Nothing is disclosed about the source of the statement; whether it was an observation arguendo. or part of a ruling, or part of a direction to the jury. Nor does it appear whether it had even been suggested that the defendant had been made drunk by a stratagem or by the fraud of another, or that whether the question had been the subject of argument, or whether the learned judge's observations were considered or extempore. Some important criminal law has been made on Assize, but in this instance I must agree with the observation of Professor Smith in a case note on Reg. v. Davies [1983] Crim. L.R. 741. and repeated by the author as Sir John Smith in his note on the present case ([1993] Crim L.R. 794). that it would be unwise to found any principle at all upon the report.The second authority relied upon was a single page plucked from the 1830 edition of Sir Matthew Hale's Historia Placitorum Coronae. The subject was 'dementia affectata, namely Drunkenness", which was said to deprive men of the use of reason and put them into a "perfect, but temporary phrenzy". The gist of the passage was that according to English law voluntary drunkenness was not a "privilege" but left the person in the same position as if he were in his right senses. There were, however, certain mitigations, one of which was that if a person by the contrivance of his enemies had eaten or drunk such a thing as caused a temporary or permanent phrenzy this put him into the same condition as any other phrenzy and equally excused him. Read in isolation this passage is hard to penetrate, but a subsequent opportunity to read the chapter as a whole makes it easier to comprehend. The chapter (pp. 29 et seq.) is entitled "Concerning the effect of ideocy, madness and lunacy ..." The author began by stating that these three conditions, together called dementia, did not generally amount to an excuse, although in respect to capital offences in some cases the accused might have the advantage of them. The author proceeded to a tri-partite categorisation. First, "Ideocy,

- 10-

or fatuity a nativitate." This was an excuse in cases of treason and felony. Secondly, there was "Dementia accidentalis." This might arise from the distemper of the humours of the body; or from a disease; or from a concussion or hurt of the brain. This category was subdivided into partial and total insanity. The latter excused from responsibility for treason or felony; the former did not. There was also a division into permanent or interpolated insanity, the latter usually called lunacy, being affected by the phases of the moon. In the latter instance, if the offence was committed during a lucid interval the position was the same as if the accused had not suffered from the disorder, whereas a person who kills another whilst "absolutely mad for a day" is equally not guilty as if he were mad without intermission. The ground for the excuse is that if dementes "are totally deprived of the use of reason, they cannot be guilty ordinarily of capital offences, for they have not the use of understanding, and act not as reasonable creatures, but their actions are in effect in the condition of brutes."Read in this context it seems plain that Sir Matthew Hale was contemplating a state of involuntary intoxication profound enough to be akin to a temporary M'Naghten insanity, and that he would go no further than to suggest that (at least in the case of capital offences) if the accused was incapable of forming the necessary intent the crime was not made out. So understood the extract from Hale is consistent with the existing law. But legal concepts of criminal responsibility in the 17th century, when the manuscript of the work was prepared, are so different from what they are today that I am unable to place any substantial reliance on Hale as a starting-point for the development of a contemporary doctrine of intoxication.There is. however, another line of authority to be considered, for it is impossible to consider the exceptional case of involuntary intoxication without placing it in the context of intoxication as a whole. This area of the law is controversial, as regards the content of the rules, their intellectual foundations, and their capacity to furnish a practical and just solution. Since the law was not explored in depth during the arguments and since it is relevant only as part of the background it is better not to say any more about it than is strictly necessary. Some consideration of the law laid down in Reg. v. Majewski [1977] AC 443 is however inevitable. As I understand the position it is still the law that in the exceptional case where intoxication causes insanity the M'Naghten Rules (M'Naghten's case (1843) 10 CI. & Fin. 206) apply: see Director or Public Prosecutions v. Beard [1920] A.C. 479, 501 and Attorney - General for Northern Ireland v. Gallagher [1963] AC 349 . Short of this, it is no answer for the defendant to say that he would not have done what he did had he been sober, provided always that whatever element of intent is required by the offence is proved to have been present. As was said in Reg. v. Sheehan [1975] 1 W.L.R. 739, 744c, "a drunken intent is still an intent". As to proof of intent, it appears that at least in some instances self-induced intoxication can be taken into account as part of the evidence from which the jury draws its conclusions; but that in others it cannot. I express the matter

- 11 -

in this guarded way because it has not yet been decisively established whether for this purpose there is a line to be drawn between offences of "specific" and of "basic" intent. That in at least some cases a defendant cannot say that he was so drunk that he could not form the required intent is however clear enough. Why is this so? The answer must I believe be the same as that given in other common law jurisdictions: namely that such evidence is excluded as a matter of policy. As Mason J. put the matter in The Queen v. O'Connor (1979-1980) 146 C.L.R. 64. 110:.
". . . the view is taken that the act charged is voluntary notwithstanding that it might not be ordinarily considered so by reason of the condition of the perpetrator, because his condition proceeds from a voluntary choice made by him. These cases therefore constitute an exception to the general rule of criminal responsibility."
There remains the question by what reasoning the House put this policy into effect. As I understand it two different rationalisations were adopted. First that the absence of the necessary consent is cured by treating the intentional drunkenness (or more accurately, since it is only in the minority of cases that the drinker sets out to make himself drunk, the intentional taking of drink without regard to us possible effects) as a substitute for the mental element ordinarily required by the offence. The intent is transferred from the taking of drink to the commission of the prohibited act. The second rationalisation is that the defendant cannot be heard to rely on the absence of the mental element when it is absent because of his own voluntary acts. Borrowing an expression from a far distant field it may be said that the defendant is estopped from relying on his self-induced incapacity.Your Lordships are not required to decide how these two explanations stand up to attack, for they are not attacked here. The task is only to place them in the context of an intoxication which is not voluntary. Taking first the concept of transferred intent, if the intoxication was not the result of an act done with an informed will there is no intent which can be transferred to the prohibited act, so as to fill the gap in the offence. As regards the "estoppel" there is no reason why the law should preclude the defendant from relying on a mental condition which he had not deliberately brought about. Thus, once the involuntary nature of the intoxication is added the two theories of Majewski fall away, and the position reverts to what it would have been if Majewski had not been decided, namely that the offence is not made out if the defendant was so intoxicated that he could not form an intent. Thus, where the intoxication is voluntary Majewski does not subtract the defence of absence of intent: but there is nothing in Majewski to suggest that where intent is proved a voluntary intoxication adds a further defence.My Lords,in the absence of guidance from English authorities it is useful to enquire how other common law jurisdictions have addressed the same problem. I begin with two decisions of the High Court of Justiciary, neither of which was cited to the Court of Appeal. The reasoning of the High

- 12 -

Court cannot be applied directly to the present case, since the law of Scotland concerning the mental element of crime and the effect on it of a disturbance of the defendant's mental condition is not precisely the same as that which prevails in England. Nevertheless the closely-reasoned judgments contain much the most extensive treatment of the problem in any of the materials before the House, and if read with appropriate caution give valuable guidance both on general principle and on the solution to the particular problem in hand.The first is Ross v. H.M. Advocate 1991 SLT 564 . The defendant was charged with offences of attempted murder, malicious damage and aggravated assault. He had been drinking lager beer from a can. Unknown to him there had been inserted by someone else a quantity of temazepam and LSD. Within a short while he began to scream continuously and to lunge about in all directions with a knife. Various complete strangers were seriously injured by the knife, and it was not until the defendant had been taken to hospital and given an antidote that he was brought under control. The argument for the defendant at the trial was that the effect of the ingestion of these drugs was to deprive him of his self control to such an extent that he was incapable of mens rea, and that it should be left to the jury to consider whether or not they should acquit him on this ground. The trial judge took the view that he was bound by the decision in H.M. Advocate v. Cunningham 1963 S.L.T 345 and directed that the evidence about the defendant's mental state could not result in an acquittal. For present purposes it is not necessary to summarise the Court's treatment of Cunningham and its opinions on the questions of insanity and voluntary intoxication, although the law as stated by the Lord Justice-General (Lord Hope) differs little, if at all, from that which prevails in England. What matters here is that the court treated the case as one where the accused committed the acts with which he was charged while he was not conscious of what he was doing, and that he was in the state which had been described in some of the cases as non-insane automatism. On that basis his Lordship, in common with the four other learned judges, considered that the exclusion of the medical evidence was incorrect and that the conviction should be quashed. Since this decision was soon afterwards explained in Cardle v. Mulrainey 1992 S.L.T. 1152 by reference to facts much closer to the present it is sufficient to quote only briefly from some of the full judgments delivered.Per Lord Hope, at p. 569 D-F:
"The discussion in Lord Justice-General Clyde's opinion [in Cunningham ] at 1963 S.L.T. pp. 346-347 is directed principally to the question whether the categories of special defences should be extended to include what he saw as a new one which, although short of insanity, would lead to an acquittal. There is no discussion of the principle that mens rea is a necessary ingredient of any crime. The whole approach seems to be one directed to grounds of public policy. It is said

- 13 -

that to allow such a novel type of defence could lead to serious consequences so far as the safety of the public is concerned, and Lord Murray's approach is criticised on the ground that 'To affirm or even extend that decision would lead to laxity and confusion in our criminal law which could do nothing but harm'. In my opinion these strictures are not justified in cases where the defence is based, as it was in Ritchie, on an inability to form mens rea due to some external factor which was outwith the accused's control and which he was not bound to foresee. I do not see why laxity or confusion should result if we were to recognise that, where the point is sufficiently put in issue, an accused should be acquitted if the jury are not satisfied that the Crown has proved mens rea. That would be entirely consistent with the principle that the onus rests throughout on the Crown. The requirements that the external factor must not be self induced, that it must be one which the accused was not bound to foresee, and that it must have resulted in a total alienation of reason amounting to a complete absence of self control, provide adequate safeguards against abuse."Per Lord Allanbridge. at p. 572 C-E:
"In the present case the appellant alleged that unknown to him his can of lager had temazepam and a quantity of LSD squeezed into it with the result that he was deprived of his self control to such an extent that he was incapable of mens rea. If this in fact was the effect of the drugs and he was in such a mental condition that he was unable to form any intent - be it good or evil - then clearly he could not have the necessary mens rea to be guilty of a criminal offence.
"In such a situation I agree that the case of Cunningham, along with the following cases of Clark and Carmichael, should now be overruled in so far as they conflict with the view that an accused will not have the necessary mens rea if his mind is so affected by a non-self-induced and unforeseeable factor that the result is a total loss of control over his actions which have led to the alleged crime charged being committed."
Per Lord Weir, at p. 577 H-J:
"In recognising the existence of a category of defence of the kind which we have been considering, it is important, in my view, to recognise the strict limits within which such a defence can be said to have validity. I agree that the necessary conditions are that at the time in question the accused must have been suffering from a total alienation of reason rendering him incapable of controlling or appreciating what he was doing,

- 14 -

that such alienation was caused by an external factor and that this factor was neither self induced nor one which he was bound to foresee. Anything short of this will not suffice and in the absence of evidence from which the necessary conclusion can be drawn it will be for the judge to direct the jury that such a defence is not open for consideration by them."

Per Lord Brand, at pp. 577L-578A

"I agree with the opinion of your Lordship in the chair. I agree, in particular, with your Lordship's statement that 'A verdict of acquittal would be an appropriate verdict if the jury are not satisfied beyond reasonable doubt as to the accused's ability to form the intention to commit the crime with which he is charged.'"
I now turn to Cardle v. Mulrainey, 1992 S.L.T. 1152, another case where the defendant drank lager into which a third party had introduced amphetamine. Afterwards he tried but failed to start vehicles belonging to others with the intention of taking them away. He also took some property from one of the vehicles. In due course he was arrested and tried. The sheriff acquitted him. The procurator fiscal appealed and the sheriff stated a case, in the course of which he found that (p. 1154):
"(16) The respondent was aware of his actions in the early hours of 29 March 1991. He was aware that these actions were wrong, in so far as they comprised the conduct of the respondent found to be criminal herein. The respondent's ability to reason the consequences of his actions to himself was affected by his ingestion of the drug amphetamine. He was unable to take account of the fact that they were criminal in character by reason of his ingestion of amphetamine. The respondent was unable to refrain from these criminal actions by reason of his ingestion of the drug amphetamine."
In a note annexed to the special case the learned sheriff based his decision on Ross and also on the definition of insanity given in H.M. Advocate v. Kidd 1960 SLT 82 . He added, at p. 1158:
"Plainly [the defendant's] whole ability to reason was not affected. He was able apparently to form an intention to carry out acts of a criminal nature and also appears to have realised they were in some way wrong. What he could not do was complete the reasoning process, take account of his knowledge that the acts were wrong and thus stop himself from doing the acts."
On these facts the High Court allowed the appeal and remitted the case to the sheriff. The opinion of the court was delivered by the Lord Justice-General (Lord Hope). At p. 1160 of the report we find the following passage:

- 15 -

"Where, as in the present case, the accused knew what he was doing and was aware of the nature and quality of his acts and that what he was doing was wrong, he cannot be said to be suffering from some total alienation of reason in regard to the crime with which he is charged which the defence requires. The sheriff found in finding 16 that the respondent's ability to reason the consequences of his actions to himself was affected by his ingestion of the drug. The finding narrates that he was unable to take account in his actions of the fact that they were criminal in character and to refrain from them. But this inability to exert self control, which the sheriff has described as an inability to complete the reasoning process, must be distinguished from the essential requirement that there should be a total alienation of the accused's mental faculties of reasoning and of understanding what he is doing. As in the case of provocation, which provides another example of a stimulus resulting in a loss of self control at the time of the act, this may mitigate the offence but it cannot be held to justify an acquittal on the ground that there is an absence of mens rea."
Then, after a discussion of H.M. Advocate v. Kidd 1960 SLT 82 and Brennan v. H.M. Advocate 1977 SLT 151 the Court continued:
"It is clear therefore that not every weakness or aberration of the mind will amount to insanity. So it is in the case of the defence with which the decision in Ross was concerned. Not every weakness or aberration induced by the external factor will provide the defence. Hence the insistence in Ross on a total alienation of reason in relation to the crime charged. This is necessary in order to distinguish the condition from other conditions which may be regarded at best as merely mitigating the offence. What will amount to a total alienation of reason, or as was said in Ross, 1991 SLT 564 , 572A, a total loss of control of the accused's actions in regard to the crime with which he is charged, must be a question of fact in each case. But so far as the present case is concerned the sheriff has made express findings in regard to several of the crimes with which the respondent was charged that he intended to do what he did. There are findings that he intended to start the motor vehicles, steal them and drive them away. In the light of these findings the sheriff's conclusion that the respondent's ability to reason the consequences of his actions to himself was affected by his ingestion of the drug and that he was unable to refrain from them was relevant at best only to mitigation. He should have held that the respondent's reason in relation to the crimes charged was not totally alienated and that he did not have a proper basis for the defence."
My Lords,making due allowance for the differences between the laws of the two jurisdictions these cases are clear authority against the proposition

- 16-

that mere disinhibition is sufficient to found a defence. As regards other common law jurisdictions very little was cited from the Commonwealth, and indeed the rejection in some countries (such as Australia) of the approach exemplified in Majewski [1977] AC 443 would make it hard to deploy the decisions of those courts in an English context. One case was cited from Canada, namely The Queen v. King [1962] S.C.R. 746. Without appreciating the risk the defendant drove a car whilst suffering from the after-effects of a medicinal drug which induced a state in which he might suddenly be unable to know what he was doing. The Supreme Court upheld an appeal against a conviction of driving while his ability to drive was impaired. At first sight some parts of the judgments appear to support the present respondent's argument, but on closer study I am satisfied that they were directed only to a situation in which, without his own fault, the defendant lacked the mental element to make his driving an offence; and it was with the identification of the mental element that the decision was primarily concerned. This is entirely consistent with the view expressed above that in the absence of intention the involuntary nature of the intoxication would take a case such as the present outside Majewski and enable the defendant to rely on the absence of the necessary mental element. But there is nothing in The Queen v. King to say that if. as here, the necessary mental element is proved the fact that the defendant was in a lesser degree under the influence of a drug entitled him to an acquittal.Turning to the United States, since questions of drunkenness and criminal intent will usually arise in State rather than Federal jurisdictions the decisions are likely to be numerous and not necessarily unanimous. To be useful they would need to be fully marshalled and then carefully scrutinised to eliminate those concerned with voluntary intoxication, with lack of the necessary mental element or. like the sole Federal case referred to. Perkins v . United States (1915) 228 Fed. R. 408. with temporary insanity. No such exercise was attempted in argument. There was however reference to the Model Penal Code, cited in the judgment of the Court of Appeal. This Code, which was the origin of legislation in many individual States, provides in its final version (1985) as follows:
"Section 2.08. Intoxication.
(1) Except as provided in subsection (4) of this Section, intoxication of the actor is not a defense unless it negatives an element of the offense.. . . .(4) Intoxication that(a) is not self-induced or(b) is pathological is an affirmative defense if by reason of such intoxication the actor at the time of his conduct lacks substantial capacity either to appreciate its criminality [wrongfulness] or to

- 17 -

conform his conduct to the requirements of the law."

At first sight the concluding words of subsection 4 give cause for thought, but when reference is made to the extensive and illuminating commentary on the whole of section 2.08 (American Law Institute, Model Penal Code and Commentaries, Part 1) the following is found (p. 363):
"Subsection (4) details two instances when intoxication can be offered as an excuse for crime. The first includes intoxication that is not self-induced, as was said to be the case under the prior law. Such intoxication, however, excuses only if the resulting incapacitation is as extreme as that which would establish irresponsibility had it resulted from mental disease. The actor whose personality is altered by intoxication to a lesser degree is treated like others who may have difficulty in conforming to the law and yet are held responsible for violations."
A footnote to the second sentence of this commentary reads:
"While there are many dicta saying that involuntary intoxication is a defense, no reported case has been found in which the defense has been successfully asserted. [Citation of authorities]. The courts have been exceedingly restrictive in determining what pressures overcome the will of the actor."
My Lords,I cannot find in this material any sufficient grounds for holding that the defence relied upon is already established by the common law. any more than it can be derived from general principles. Accordingly I agree with the analysis of Professor Griew. Archbold News, 28 May 1993,pp. 4-5:
"What has happened is that the Court of Appeal has recognised a new defence to criminal charges in the nature of an exculpatory excuse. It is precisely because the defendant acted in the prohibited way with the intent (the mens rea) required by the definition of the offence that he needs this defence."
There is thus a crucial difference between the issue raised by the second line of argument and that now under scrutiny. As to the former, the Law Commission aptly said, in Consultation Paper No. 127 (1993) on Intoxication and Criminal Liability, para. 1.12:
"The person who commits criminal acts while he is intoxicated, at least when he is voluntarily so intoxicated, does not therefore appeal to excuse; but rather raises the prior question of whether, because of his intoxicated state, he can be proved to have been in the (subjective) state of mind necessary for liability. Issues of intoxication are, thus, intimately bound up with the prosecution's task of proving the primary

- 18 -

guilt of the defendant: that he did indeed do the act prohibited by the definition of the offence with the relevant state of mind."By contrast, the excuse of involuntary intoxication, if it exists, is superimposed on the ordinary law of intent.To recognise a new defence of this type would be a bold step. The common law defences of duress and necessity (if it exists) and the limited common law defence of provocation are all very old. Since counsel for the appellant was not disposed to emphasise this aspect of the appeal the subject was not explored in argument, but I suspect that the recognition of a new general defence at common law has not happened in modern times. Nevertheless, the criminal law must not stand still, and if it is both practical and just to take this step, and if judicial decision rather than legislation is the proper medium, then the courts should not be deterred simply by the novelty of it. So one must turn to consider just what defence is now to be created. The judgment under appeal implies five characteristics:The defence applies to all offences, except perhaps to absolute offences. It therefore differs from other defences such as provocation and diminished responsibility.The defence is a complete answer to a criminal charge. If not rebutted it leads to an outright acquittal, and unlike provocation and diminished responsibility leaves no room for conviction and punishment for a lesser offence. The underlying assumption must be that the defendant is entirely free from culpability.It may be that the defence applies only where the intoxication is due to the wrongful act of another and therefore affords no excuse when, in circumstances of no greater culpability, the defendant has intoxicated himself by mistake (such as by short-sightedly taking the wrong drug). I say that this may be so, because it is not clear whether, since the doctrine was founded in part on the dictum of Park J., the "fraud or stratagem of another" is an essential element, or whether this was taken as an example of a wider principle.The burden of disproving the defence is on the prosecution.The defence is subjective in nature. Whereas provocation and self-defence are judged by the reactions of the reasonable person in the situation of the defendant, here the only question is whether this particular defendant's inhibitions were overcome by the effect of the drug. The more susceptible

- 19 -

the defendant to the kind of temptation presented, the easier the defence to establish.My Lords,since the existence or otherwise of the defence has been treated in argument at all stages as a matter of existing law the Court of Appeal had no occasion to consider the practical and theoretical implications of recognising this new defence at common law, and we do not have the benefit of its views. In their absence, I can only say that the defence appears to run into difficulties at every turn: In point of theory, it would be necessary to reconcile a defence of irresistible impulse derived from a combination of innate drives and external disinhibition with the rule that irresistible impulse of a solely internal origin (not necessarily any more the fault of the offender) does not excuse. Equally, the state of mind which founds the defence superficially resembles a state of diminished responsibility, whereas the effect in law is quite different. It may well be that the resemblance is misleading, but these and similar problems must be solved before the bounds of a new defence can be set.On the practical side there are serious problems. Before the jury could form an opinion on whether the drug might have turned the scale witnesses would have to give a picture of the defendant's personality and susceptibilities, for without it the crucial effect of the drug could not be assessed: pharmacologists would be required to describe the potentially disinhibiting effect of a range of drugs whose identity would, if the present case is anything to go by. be unknown: psychologists and psychiatrists would express opinions. not on the matters of psychopathology familiar to those working within the framework of the Mental Health Acts but on altogether more elusive concepts. No doubt as time passed those concerned could work out techniques to deal with these questions. Much more significant would be the opportunities for a spurious defence. Even in the field of road traffic the "spiked" drink as a special reason for not disqualifying from driving is a regular feature. Transferring this to the entire range of criminal offences is a disturbing prospect. The defendant would only have to assert, and support by the evidence of well-wishers, that he was not the sort of person to have done this kind of thing, and to suggest an occasion when by some means a drug might have been administered to him for the jury be sent straight to the question of a possible disinhibition. The judge would direct the jurors that if they felt any legitimate doubt on the matter - and by its nature the defence would be one which the prosecution would often have no means to rebut - they must acquit outright, all questions of intent, mental capacity and the like being at this stage irrelevant.My Lords,the fact that a new doctrine may require adjustment of existing principles to accommodate it, and may require those involved in criminal trials to learn new techniques, is not of course a ground for refusing to adopt it. if that is what the interests of justice require. Here, however, justice makes no such demands, for the interplay between the wrong done to the victim, the individual characteristics and frailties of the defendant, and the

- 20 -

pharmacological effects of whatever drug may be potentially involved can be far better recognised by a tailored choice from the continuum of sentences available to the judge than by the application of a single Yea-or-Nay jury decision. To this, there is one exception. The mandatory life sentence for murder, at least as present administered, leaves no room for the trial judge to put into practice an informed and sympathetic assessment of the kind just described. It is for this reason alone that I have felt any hesitation about rejecting the argument for the respondent. In the end however I have concluded that this is not a sufficient reason to force on the theory and practice of the criminal law an exception which would otherwise be unjustified. For many years mandatory sentences have impelled juries to return merciful but false verdicts, and have stimulated the creation of partial defences such as provocation and diminished responsibility whose lack of a proper foundation has made them hard to apply in practice. I do not think it right that the law should be further distorted simply because of this anomalous relic of the history of the criminal law.All this being said. I suggest to your Lordships that the existing work of the Law Commission in the field of intoxication could usefully be enlarged to comprise questions of the type raised by this appeal, and to see whether by statute a merciful, realistic and intellectually sustainable statutory solution could be newly created. For the present, however. I consider that no such regime now exists, and that the common law is not a suitable vehicle for creating one.For these reasons I consider that both the ruling and the directive of the learned judge were correct. Accordingly I would answer the first certified question in the negative and would allow the appeal. This is not the end of the matter. There remain certain grounds of appeal which, given the conclusion reached on the broader question, were not dealt with in the court below. I propose that your Lordships should remit them for consideration by the Court of Appeal, pursuant to the practice recently endorsed in Reg. v. Mandair [1994] 2 W.L.R. 700. Also a quite separate appeal against sentence which was not before the House will fall to be considered if the occasion demands.

LORD SLYNN OF HADLEY

My Lords,For the reasons given by my noble and learned friend Lord Mustill. whose speech I have had the advantage of reading in draft. I too would allow this appeal and remit the matter as he proposes.

- 21 -