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URL: http://www.bailii.org/uk/other/journals/WebJCLI/1995/issue4/boland4.html
Cite as: Involuntary Intoxication Is Not A Defence
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Involuntary Intoxication Is Not A Defence
Faye Boland
Centre for Criminal Justice Studies, University of Leeds
Copyright © 1995 Faye Boland.
First Published in Web Journal of Current Legal Issues in association with Blackstone
Press Ltd.
Summary
In R v Kingston [1994] 3 All ER 353, HL, it was held that involuntary intoxication is no defence to a criminal charge and is only relevant insofar as it disproves or proves mens rea. An intent produced by the surreptitious administration of drink or drugs is still a criminal intent.
Web JCLI | [1995] 4 Web JCLI | Download this file.
Contents
Bibliography
Facts
The defendant who had paedophiliac homosexual proclivities was invited by P to his flat where he video and audio-taped him sexually abusing a 15 year old boy. This evidence was intended to be used for the purpose of blackmailing the defendant, at the request of two former business associates. P lured the 15 year old boy to his flat where he gave him a seemingly innocuous drink and some cannabis. The boy fell asleep and remembered nothing until he woke up next morning. While asleep, the defendant and P indulged in gross sexual acts with him. The defendant's defence was that P had also laced his drink. He admitted seeing the boy lying on the bed but claimed no recollection of events until he woke up in his own house next morning.
The trial judge directed the jury that they should acquit the defendant if they found that because he was so affected by drugs he did not intend or may not have intended to commit an indecent assault on the boy, but that if they were sure that despite the effect of any drugs he still intended to commit an indecent assault the case was proved because a drugged intent is still an intent. The defendant was convicted and sentenced to five years' imprisonment. He appealed to the Court of Appeal against conviction and sentence. The Court of Appeal allowed the appeal, Lord Chief Justice Taylor giving the following judgment:
"[T]he purpose of the criminal law is to inhibit, by proscription and by penal sanction, antisocial acts which individuals may otherwise commit. Its unspoken premise is that people may have tendencies and impulses to do those things which are considered sufficiently objectionable to be forbidden. Having paedophiliac inclinations and desires is not proscribed; putting them into practice is. If the sole reason why the threshold between the two has been crossed is or may have been that the inhibition which the law requires has been removed by the clandestine act of a third party, the purposes of the criminal law are not served by nevertheless holding that the person performing the act is guilty of an offence. A man is not responsible for a condition produced 'by stratagem, or the fraud of another'. If therefore drink or a drug, surreptitiously administered, causes a person to lose his self-control and for that reason to form an intent which he would not otherwise have formed, it is consistent with the principle that the law should exculpate him because the operative fault is not his. The law permits a finding that the intent formed was not a criminal intent or, in other words, that the involuntary intoxication negatives the mens rea".
Judgment
The prosecution obtained a certificate from the Court of Appeal that a point of law of law of public importance was involved and the issue of involuntary intoxication went before the House of Lords. The decision of the House was delivered by Lord Mustill. The House was satisfied that the jury's verdict of guilty implied that the majority either were sure that the defendant had not involuntarily taken a drug or drugs at all or were sure that whatever drug he may have taken had not had such an effect on his mind that he did not intend to do what he did. The case was, rather, one of disinhibition: in ordinary circumstances the defendant's paedophiliac tendencies would have been kept under control, even in the presence of the sleeping or unconscious boy on the bed. The ingestion of the drug (whatever it was) lowered his ability to resist temptation, so that his desires overrode his ability to control them.
The House noted that there were three grounds on which the defendant might be exempted from criminal liability. First, that his immunity flowed from general principles of law. Secondly, that this immunity was established by a solid line of authority and thirdly, that the court should, when faced with a new problem, acknowledge the justice of the case and boldly create a new common law defence. Clearly the Court of Appeal had adopted the first approach.
The Law Lords rejected the existence of any principle allowing for an acquittal despite the presence of mens rea, where the defendant was rendered intoxicated involuntarily so that he committed a criminal act which he would otherwise not have done. Although generally the mental element of a crime will involve a guilty mind, this is not always so. The epithet rea refers to the criminality of the act, not to its moral character. The House also rejected the proposition that the defence relied upon is already established by the common law and expressed agreement with Professor Griew Archbold News, 28 May 1993, that the Court of Appeal had created a new defence to criminal charges in the nature of an exculpatory excuse.
The House went on to consider the final ground for recognising a defence of involuntary intoxication: that the criminal law must not stand still, and if it is both practical and just to take this step and if judicial decision rather than legislation is the proper medium, then the courts should not be deterred simply by the novelty of it. However several theoretical and practical difficulties militated against recognition. Theoretically, the defence would apply to all offences, except perhaps to absolute offences; The defence would be a complete answer to a criminal charge and unlike defences like provocation and diminished responsibility would leave the defendant entirely free from punishment; It is not clear whether the defence would be founded on the requirement of "fraud or stratagem of another" or whether mistaken intoxication would give rise to the defence; The burden of disproving the defence would be on the prosecution; The defence would be subjective in nature so that the more susceptible the defendant to the kind of temptation presented, the easier it would be to establish the defence. It would also be necessary to reconcile a defence of irresistible impulse derived from a combination of innate drives and external disinhibition with the rule that irresistible impulse of a solely internal origin (not necessarily any more the fault of the offender) does not in itself excuse although it may be a symptom of a disease of the mind.
The defence would be beset by serious practical difficulties. Before the jury could form an opinion on whether the drug might have turned the scale, witnesses would have to give a picture of the defendant's personality and susceptibilities, for without it the crucial effect of the drug could not be assessed; pharmacologists would be required to describe the potentially disinhibiting effect of a range of drugs whose identity would, if the present case is anything to go by, be unknown; psychologists and psychiatrists would express opinions, not on the matters of psychopathology familiar to those working within the framework of the Mental Health Acts but on altogether more elusive concepts. Much more significant would be the opportunities for a spurious defence. Even in the field of road traffic the "spiked" drink as a special reason for not disqualifying from driving is a regular feature. Transferring this to the entire range of criminal offences is a disturbing prospect. The defendant would only have to assert, and support by the evidence of well- wishers, that he was not the sort of person to have done this kind of thing, and to suggest an occasion when, by some means, a drug might have been administered to him for the jury to be sent straight to the question of a possible disinhibition. The judge would direct the jurors that if they felt any legitimate doubt on the matter - and by its nature the defence would be one which the prosecution would often have no means to rebut - they must acquit outright, all questions of intent, mental capacity and the like being at this stage irrelevant. For these reasons the House declined to create a new doctrine of involuntary intoxication.
Commentary
By recognising a defence of involuntary intoxication despite the presence of mens rea, the court would have to address the question whether the defendant would have committed the act but for the surreptitious administration to him of drink or drugs. It would be impossible to answer this hypothetical and speculative question with any certainty (Spencer 1994). With the burden of proving the elements of the offence beyond reasonable doubt on the prosecution, including that the offence would have been committed notwithstanding the involuntary intoxication, the benefit of the doubt would be given to the defence. This would increase the already extant opportunities for a spurious defence. The House of Lords' decision in Kingston is laudable, therefore, for its repudiation of the hypothetical and its return to first principles. If the defendant's mens was rea he is to be convicted of a criminal offence notwithstanding that it was brought about by the surreptitious administration to him of drink or drugs. Henceforth, involuntary intoxication is to be considered as a mitigating factor in sentencing.
The only difficulty arises in the case of the mandatory life sentence for murder where involuntary intoxication cannot be taken into account at the sentencing stage. It was for this reason alone that the House had any hesitation in rejecting the creation of a new defence. In the end Lord Mustill concluded that this was not a sufficient reason to force on the theory and practice of the criminal law an exception which would otherwise be unjustified. The law should not be further distorted simply because of this anomalous relic of the history of the criminal law. If the life of the law has not been logic but experience, in Kingston logic has triumphed over experience.
Spencer, JR (1994) 'Involuntary Intoxication is a Defence' 53 Cambridge Law Journal 6.