Law Report: Involuntary intoxication defence: Regina v Kingston. Court of Appeal (Criminal Division)(Lord Taylor of Gosforth, Lord Chief Justice, Mr Justice Pill and Mr Justice Sedley), 6 May 1993

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If there is evidence capable of giving rise to the defence of involuntary intoxication, the jury should be left to consider whether the accused's intent to commit the criminal act was induced by involuntary intoxication and thereby negatived.

The Court of Appeal allowed an appeal by Barry Kingston against conviction of indecent assault.

The appellant, now aged 48, had admitted paedophiliac homosexual tendencies. A man named Kevin Penn arranged to blackmail the appellant by photographing and audio-taping him in a compromising situation with a boy. Penn lured a boy of 15 to his flat. The boy, after taking a drink and some cannabis, fell asleep and remembered nothing. Penn invited the appellant to abuse the boy sexually. The appellant did so and was photographed and taped.

Both men were charged with indecent assault on the boy. Sedative drugs were found in Penn's flat. The tape of the appellant contained the passage: 'I don't know why, am I falling asleep?' and 'Have you put something in my coffee?'. The trial judge directed the jurors that if they found that the appellant was so intoxicated by drugs administered to him secretly that he did not intend to commit an indecent assault, it was open to the jury to find the appellant not guilty. However, he directed the jury that a drugged intent was still an intent.

The appellant appealed against conviction on the ground, among others, that the jurors should have been directed that it was open to them to find the appellant not guilty if they found the appellant assaulted the boy pursuant to an intent induced by the influence of drugs administered secretly by Penn.

Charles S Taylor (Registrar of Criminal Appeals) for the appellant; Brian Lett (CPS) for the Crown.

LORD TAYLOR LCJ said the appellant had committed the actus reus of an indecent assault on the boy, even though he had been in some measure entrapped into doing so. It was clear from the verdict that the jury found that drugged or not, the appellant had been capable of forming and had formed the necessary intent. It was submitted that the law recognised that an accused person might be entitled to be acquitted if there was a possibility that although his act was intentional, the intent itself arose out of circumstances for which he bore no blame.

Turning to first principles, the importance of ensuring, under a system of law, that members of the community were safeguarded in their persons and property was obvious. However, the purpose of the criminal law was to inhibit, by proscription and penal sanction, anti-social acts which individuals might otherwise commit. Having paedophiliac inclinations and desires was not proscribed; putting them into practice was.

If the sole reason why the threshold between the two had been crossed was or might have been that the inhibition which the law required had been removed by the clandestine act of a third party, the purposes of the criminal law were not served by nevertheless holding that the person performing the act was guilty of an offence. A man was not responsible for a condition produced 'by stratagem or the fraud of another'.

If drink or a drug, surreptitiously administered, caused a person to lose his self-control and for that reason to form an intent which he would not otherwise have formed, it was consistent with the principle that the law should exculpate him because the operative fault was not his. The law permitted a finding that the intent formed was not a criminal intent, or in other words, that the voluntary intoxication negatived the mens rea.

There must be evidence capable of giving rise to the defence of involuntary intoxication before a judge was obliged to leave the issue to the jury. Once there was an evidential foundation for the defence, the burden was on the Crown to prove that the relevant intent was formed and that notwithstanding the evidence relied on by the defence it was a criminal intent.

The judge, by summing up as he did withdrew the issue from the jury. That amounted to a material misdirection and the conviction must be quashed.