Law Report: Involuntary intoxication rejected: Regina v Kingston - House of Lords (Lord Keith of Kinkel, Lord Goff of Chieveley, Lord Browne-Wilkinson, Lord Mustill and Lord Slynn of Hadley), 21 July 1994.

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A defendant who acted in a prohibited way with the necessary mental intent required for the offence cannot rely on the defence of involuntary intoxication to negative the mental element.

The House of Lords unanimously allowed the prosecutor's appeal against the Court of Appeal's decision ((1994) QB 81) to quash the defendant's conviction of indecent assault and remitted the case to the Court of Appeal to consider other grounds of appeal.

The defendant was a homosexual with paedophiliac predilections. His co-defendant, Penn, arranged to blackmail the defendant by inviting a boy to his room, drugging the boy unconscious and then photographing and recording the defendant and co-defendant indulging in sexual acts with the boy. The defendant's defence was that Penn had secretly administered drugs on the defendant so that he suffered effects which annulled the criminal liability which his acts would otherwise have involved.

The trial judge directed the jurors that if they thought the defendant was so affected by drugs that he did not intend or might not have intended to commit an indecent assault, then he must be acquitted, but if they were sure that despite the effect of any drugs, he intended to commit the offence, the case was proved because a drugged intent was still an intent.

The defendant's appeal against conviction was allowed by the Court of Appeal which decided that if the necessary intent was proved, the defendant had open to him a defence of involuntary intoxication.

Vivian Robinson QC and Brian Lett (CPS) for the prosecutor; Charles S Taylor and Colin Morgan (Edward Harte & Co) for the defendant.

LORD MUSTILL said that there was an instinctive attraction in the proposition that a retributory system of justice should not visit penal consequences on acts which were the ultimate consequence of an event outside the volition of the actor, and that it was not sufficient to acknowledge the special circumstances by mitigating the penalty.

The defendant's case was that in ordinary circumstances his paedophiliac tendencies would have been kept under control, even in the presence of the sleeping or unconscious boy, and the ingestion of the drug brought about a temporary change in the mentality or personality of the defendant which lowered his ability to resist temptation so far that his desires overrode his ability to control them. This was a case of disinhibition. The drug was not alleged to have created the desire but enabled it to be released.

The defendant might be free from criminal responsibility on three grounds: his immunity flowed from general principles of the criminal law; his immunity was already established by a solid line of authority; or the court should, when faced with a new problem, acknowledge the justice of the case and boldly create a new common law defence.

The Court of Appeal's decision was founded on the principle that the law recognised that, exceptionally, an accused might be entitled to be acquitted if there was a possibility that although his act was intentional, the intent arose out of circumstances for which he bore no blame. The same proposition was implicit in the assumption by the Court of Appeal that if blame was absent the necessary mens rea must also be absent.

No such principle existed. To assume that contemporary moral judgments affected the criminality of the act, as distinct from the punishment appropriate, was to be misled by the expression 'mens rea', which referred to the criminality of the act in which the mind was engaged, not to its moral character. The argument which treated the absence of moral fault on the part of the defendant as sufficient in itself to negative the necessary mental element of the offence was rejected.

There was no material to find grounds for holding that involuntary intoxication was already established by common law as a defence. To recognise a new defence of this type would be a bold step. The defence appeared to run into difficulties at every turn. It would be necessary to reconcile a defence of irresistible impulse derived from a combination of innate drives and external disinhibition with the rule that irresistible impulse of a solely internal origin, not necessarily any more the fault of the offender, did not excuse.

On the practical side there were serious problems. Witnesses would have to give a picture of the defendant's personality and susceptibilities. Pharmacists would be required to describe the potentially disinhibiting effect of a range of drugs. More significant would be the opportunities for a spurious defence. The interests of justice did not require a new doctrine. Justice made no demands, for the interplay between the wrong done to the victim, the individual characteristics and frailties of the defendants, and the pharmacological effects of whatever drugs might be potentially involved could be far better recognised by a tailored choice from the continuum of sentences available to the judge than by the application of a single yeah-or-nay jury decision.

The trial judge's direction was correct. Certain grounds of appeal were not dealt with in the Court of Appeal and they should be remitted for consideration.