Die
Martis, 13° Aprilis 1976
Parliamentary
Archives,
HL/PO/JU/4/3/1282
HOUSE OF LORDS
DIRECTOR OF PUBLIC
PROSECUTIONS
(RESPONDENT)
v.
MAJEWSKI (APPELLANT)
(on
Appeal from the Court of Appeal (Criminal Division))
Lord Chancellor
Lord
Diplock
Lord Simon of Glaisdale
Lord Kilbrandon
Lord
Salmon
Lord Edmond-Davies
Lord Russell of Killowen
Lord
Elwyn-Jones (Lord Chancellor)
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
2
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 ".
3
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
5
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.
6
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
7
" 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
8
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:
9
"... 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
Tolson (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
10
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
11
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
12
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
13
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
14
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
15
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
16
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 . . . .
17
" 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—
18
"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.)
19
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".
20
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
21
" 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
22
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
23
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.
7
24
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
25
" 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.
26
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),
27
" 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
