England and Wales Court of Appeal (Criminal Division) Decisions

in the COURT of appeal
CRIMINAL DIVISION

		Royal Courts of Justice,
		31st July 1984.

(As approved by the Judge)

LORD JUSTICE PARKER: On 21st June, 1982, in the Crown Court at Croydon, the Appellant was convicted by a unanimous verdict of the jury of an offence of arson contrary to section 1(2) and (3) of the Criminal Damage Act 1971. No verdict was taken on an alternative count of arson contrary to section 1(1) and (3) of that Act. On 8th July, 1982, the Appellant was sentenced to two years' imprisonment.

His appeal against conviction brought by leave of the single judge, who also granted an extension of time of some 44 weeks, was heard on 18th July, 1984. On that date the appeal was allowed and the conviction quashed for reasons to be given later. Such reasons follow.

The Facts.

Shortly after 9.15p.m. on 2nd January, 1982, fire broke out in a wardrobe in the bedroom of the ground floor flat at 55 Bassingham Road, London SW10. At that time there were in the flat the Appellant, Mrs Jeanette Hardie, with whom the Appellant had been living at the premises since May, 1974, and who had changed her name to Hardie by deed poll in 1976, and her daughter Tonia. The upstairs flat was occupied by a Mrs Young.

Shortly before 2nd January, the Appellant's relationship with Mrs Hardie had broken down and she had insisted that he must leave. He did not wish to do so, but on the morning of 2nd January he packed a suitcase. At about lunchtime the Appellant found two bottles of tablets in a cabinet. One contained Valium which Mrs Hardie had had in 1974 and the other some tablets to assist urination.

The Appellant's evidence in regard to this was that he had never taken Valium before, that he took one about 12 o'clock to calm him down for he was in a distressed state, that it did not have much effect, that he and Mrs Hardie had then gone shopping, that he had taken two more in front of her and she had said, "take as many as you like, they are old stock and will do you no harm", that he had taken two more shortly afterwards, that he may have taken two of the other tablets also, and that shortly thereafter on return to the house he had fallen into a deep sleep and could thereafter remember only periods.

He was in fact collected from the flat by his mother and remained with her until returning to the flat again at 9.15 p.m. It was not disputed that he must have started the fire for he was alone in the bedroom when it started. Having started it, he emerged, returned to the sitting room where were Mrs Hardie and Tonia and stayed there. Shortly afterwards Mrs Hardie heard sounds from the bedroom, went there and found smoke and flames coming from the wardrobe. There was evidence that before, at the time of and after the fire the Appellant was exhibiting signs of intoxication and that such signs might have resulted from the taking of Valium some hours earlier.

The defence was that the Appellant was so affected by the Valium that he could remember nothing about the fire and had not the necessary mens rea to constitute either of the offences charged. On the basis no doubt of Director of Public Prosecutions v. A (1977) A C 443 and Commissioner of Police of the Metropolis v. Caldwell (1982) A C 341, the judge directed the jury in effect that, as the Valium was voluntarily self-administered it was irrelevant as a defence and its effects could not negative mens rea. The first point taken on appeal was that this was a misdirection.

The second point taken by Mr. Slowe was a point of extreme subtlety. It arises in this way. Section 1(2) of the Act provides:

"A person who without lawful excuse destroys or damages any property, whether belonging to himself or another - (a) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and (b) intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered; shall be guilty of an offence."

In the instant case, Count 1 of the indictment included recklessness as an alternative to intent under both (a) and (b) of the subsection. On the basis of Caldwell (supra) evidence of self-induced intoxication could not therefore be relevant. However, Caldwell establishes that such alternative is made out under (a) of the subsection if the accused (i) does an act which creates an obvious risk that property will be destroyed or damaged and (ii) when he does the act he either has not given any thought to the possibility of there being any such risk or has recognised that there was some risk involved but has nonetheless gone on to do it. This being so it is clear that when the jury is considering whether the prosecution has established the requirements of (a) of the subsection it might come to the conclusion that it had done so solely on the ground that the accused had given no thought at all to the possibility of there being any risk that property would be destroyed or damaged. If it in fact came to such a conclusion Mr. Slowe submitted that the requirements of (b) of the subsection could not be satisfied because, if an accused had given no thought at all to the risk of damage to property he could not possibly either (a) intend by such destruction to endanger the life of another or (b) be reckless as to whether the life of another would be endangered by such destruction. Finally it was submitted that since in the instant case the jury might have concluded that (a) of the subsection was satisfied solely on the ground of no thought at all, the conviction could not stand because upon such a conclusion (b) of the subsection could not be satisfied.

The Law.

We deal first with the second of Mr. Slowe's two contentions.

Mr. Slowe appreciated that the argument was difficult to sustain in the light of Caldwell but distinguished that case on the ground that, there, the accused had pleaded guilty to a charge under section 1(1) of the Act and had himself given evidence that his actual intention was to damage the property in question. The distinction is valid hut in our view of no assistance. The argument advanced really stems from Lord Diplock's speech at page 354 and 355 of the report where he says:

"Where the charge is under section 1(2) the question of the state of mind of the accused must he approached in stages, corresponding to paragraphs (a) and (b). The jury must be satisfied that what the accused did amounted to an offence under section 1(1), either because he actually intended to destroy or damage the property or because he was reckless (in the sense that I have described) as to whether it might be destroyed or damaged. Only if they are so satisfied must the jury go on to consider whether the accused also either actually intended that the destruction or damage of the property should endanger someone's life or was reckless (in a similar sense) as to whether a human life might be endangered. "

For the convenience of the jury in their deliberations it is no doubt necessary that they approach the question of the accused's state of mind by stages. They are, however, concerned with that state of mind at one stage only, namely when he does the relevant act. If, when doing that act, he creates an obvious risk both that property will be destroyed and that the life of another will be endangered and gives no thought to the possibility of there being either risk, the requirements of the subsection are in our judgment clearly satisfied. If, for example, a person drops a lighted match at a petrol station into a bin containing oily rag by a pump in use by the attendant to fill a car and he thereby creates an obvious risk both that property will be damaged and that the life of the attendant will he endangered, hut has given no thought to either matter, it would he farcical to say that the elements of the offence in subsection (1) had been fulfilled hut those of subsection (2) had not. We reject the contention on the second point.

We now revert to the first point. It is clear from Caldwell that self-induced intoxication can he a defence where the charge is only one of specific intention. It is equally clear that it cannot he a defence where, as here, the charge included recklessness. Hence, if there was self-intoxication in this case the judge's direction was correct. The problem is whether, assuming that the effect of the Valium was to deprive the Appellant of any appreciation of what he was doing it should properly he regarded as self-induced intoxication and thus no answer.

In A (supra) the Lord Chancellor said:

"If a man consciously and deliberately takes alcohol and drugs not on medical prescription, hut in order to escape from reality, to go 'on a trip, ' to become hallucinated, whatever the description may he 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?"

A little later he said:

"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 Reg. v. Venna (1976) Q B 421, per James L. J. at p. 429. 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. 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. '"

Later at page 476:

"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. "

Majewski was a case of drunkenness resulting from alcoholic consumption by the accused whilst under the influence of non-medically prescribed drugs. Caldwell was a case of plain drunkenness. There can be no doubt that the same rule applies both to self-intoxication by alcohol and intoxication by hallucinatory drugs, but this is because the effects of both are well-known and there is therefore an element of recklessness in the self-administration of the drug. R. v. Lipman (1970) 1 Q. B. 152 is an example of such a case.

"Intoxication" or similar symptoms may, however, arise in other circumstances. In R. v. Bailey (1983) 2 All. E. R. 503 this court had to consider a case where a diabetic had failed to take sufficient food after taking a normal dose of insulin and struck the victim over the head with an iron bar. The judge directed the jury that the defence of automatism, i. e. that the mind did not go with the act, was not available because the incapacity was self-induced. It was held that this was wrong on two grounds (a) because on the basis of A it was clearly available to the offence embodying specific intent and (b) because although self-induced by the omission to take food it was also available to negative the other offence which was of basic intent only.

Having referred to A and Lipman Lord Justice Griffiths giving the considered judgment of the court said:

"It was submitted on behalf of the Crown that a similar rule should be applied as a matter of public policy to all cases of self-induced automatism. But it seems to us that there may be material distinctions between a man who consumes alcohol or takes dangerous drugs and one who fails to take sufficient food after insulin to avert hypoglycaemia.

"It is common knowledge that those who take alcohol to excess or certain sorts of drugs may become aggressive or do dangerous or unpredictable things; they may be able to foresee the risks of causing harm to others, but nevertheless persist in their conduct. But the same cannot be said, without more, of a man who fails to take food after an insulin injection. If he does appreciate the risk that such a failure may lead to aggressive, unpredictable and uncontrollable conduct and he nevertheless deliberately runs the risk or otherwise disregards it, this will amount to recklessness. But we certainly do not think that it is common knowledge, even among diabetics, that such is a consequence of a failure to take food; and there is no evidence that it was known to this appellant. Doubtless he knew that if he failed to take his insulin or proper food after it he might lose consciousness, but as such he would only be a danger to himself unless he put himself in charge of some machine such as a motor car, which required his continued conscious control.

"In our judgment, self-induced automatism, other than that due to intoxication from alcohol or drugs, may provide a defence to crimes of basic intent. The question in each case will be whether the prosecution has proved the necessary element of recklessness. In cases of assault, if the accused knows that his actions or inaction are likely to make him aggressive, unpredictable or uncontrolled with the result that he may cause some injury to others and he persists in the action or takes no remedial action when he knows it is required, it will be open to the jury to find that he was reckless. "

In the present instance the defence was that the Valium was taken for the purpose of calming the nerves only, that it was old stock and that the Appellant was told it would do him no harm. There was no evidence that it was known to the Appellant or even generally known that the taking of Valium in the quantity taken would be liable to render a person aggressive or incapable of appreciating risks to others or have other side effects such that its self-administration would itself have an element of recklessness. It is true that Valium is a drug and it is true that it was taken deliberately and not taken on medical prescription, but the drug is, in our view, wholly different in kind from drugs which are liable to cause unpredictability or aggressiveness. It may well be that the taking of a sedative or soporific drug will, in certain circumstances, be no answer, for example in a case of reckless driving, but if the effect of a drug is merely soporific or sedative the taking of it, even in some excessive quantity, cannot in the ordinary way raise a conclusive presumption against the admission of proof of intoxication for the purpose of disproving mens rea in ordinary crimes, such as would be the case with alcoholic intoxication or incapacity or automatism resulting from the self-administration of dangerous drugs.

In the present case the jury should not, in our judgment, have been directed to disregard any incapacity which resulted or might have resulted from the taking of Valium. They should have been directed that if they came to the conclusion that, as a result of the Valium, the Appellant was, at the time, unable to appreciate the risks to property and persons from his actions they should then consider whether the taking of the Valium was itself reckless. We are unable to say what would have been the appropriate direction with regard to the elements of recklessness in this case for we have not seen all the relevant evidence, nor are we able to suggest a model direction, for circumstances will vary infinitely and model directions can sometimes lead to more rather than less confusion. It is sufficient to say that the direction that the effects of Valium were necessarily irrelevant was wrong.

In Bailey the court upheld the conviction notwithstanding the misdirection, being satisfied that there had been no miscarriage of justice and that the jury properly directed could not have failed to come to the same conclusion. That is not so in the present case. Properly directed the jury might well have come to the same conclusion. There was, for example, evidence that the Valium really did not materially affect the Appellant at all at the relevant time, but we are quite unable to say that they must have come to the same conclusion.

For the above reasons the appeal was allowed. We should add, however, certain observations. This court has said more than once that it is highly desirable that, where there is reliance in the alternative on specific intent and recklessness, the alternatives should be embodied in separate counts so that, when sentencing, the judge should know on what basis the jury have convicted. We repeat past exhortations to adopt such a practice and add that it is not only desirable for the purpose of sentencing, it is also desirable for the assistance of the judge in summing-up and of the jury in understanding the summing-up. With all respect to the judge it is necessary to say that all the members of this court, having read the summing-up in this case, felt that the jury might well have failed to understand of what they had to be sure in order to convict. This matter was not raised by Mr. Slowe and we, therefore, heard no argument upon it, hut had we done so we might well have quashed the conviction on the basis of a lurking doubt that there had been a miscarriage of justice. Having said this we should also express some sympathy for the judge. Despite the clarification of the law by the House of Lords, experience has shown that juries, if given the model directions only, frequently ask for further assistance. This difficulty should be much alleviated if the alternatives are made the subject of separate counts. If an indictment is drawn so as to embody the alternatives in one count the judge therefore should direct that it be amended.