R v Heard (Lee)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HUGHES,Lord Justice Hughes |
| Judgment Date | 13 February 2007 |
| Neutral Citation | [2007] EWCA Crim 125,[2006] EWCA Crim 2877 |
| Docket Number | Case No: 2006/01836/B2,No: 200601836/B2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 13 February 2007 |
[2006] EWCA Crim 2877
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Lord Justice Hughes
Mr Justice Henruques
Mr Justice Field
No: 200601836/B2
MR T STERN appeared on behalf of the APPELLANT
MR D PERRY QC appeared on behalf of the CROWN
This appeal will be dismissed. Our reasons we will give on a later occasion. But the defendant, and anybody else who is concerned with the case, ought to know the result of this appeal. How far we go with the interesting moot question remains to be seen. Thank you both very much indeed.
[2007] EWCA Crim 125
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM MAIDSTONE CROWN COURT
HIS HONOUR JUDGE PATIENCE QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hughes
Mr Justice Henriques and
Mr Justice Field
Case No: 2006/01836/B2
MR T STERN (instructed by THE REGISTRAR OF CRIMINAL APPEALS) for the
APPELLANT LEE HEARD
MR D PERRY QC (instructed by THE CROWN PROSECUTION SERVICE) for the CROWN
Hearing date: 6/11/2006
This appellant was convicted in the Crown Court at Maidstone of an offence of sexual assault contrary to section 3 Sexual Offences Act 2003. The issue to which his conviction gives rise is whether he can or cannot be heard to say that by reason of voluntary intoxication he did not have the necessary state of mind to commit the offence.
The evidence
Police Officers were called to the place where the appellant lived. He was found in an emotional state and he had cut himself. He had plainly been drinking heavily. He said that he wanted help and they took him to the hospital at his request. There, in the waiting area, he became abusive and began to sing noisily, so they took him to wait outside where he would be less of a disturbance to others. He then began to dance suggestively in front of one of the officers, and put his hand to his own groin. Next, he made to re-enter the hospital and, when discouraged, he became angry. He punched the officer in the stomach. Then he undid his trousers, took his penis in his hand and rubbed it up and down the thigh of the officer. He was arrested. At the police station, where he was plainly seen to be drunk, he made the remark that “The only way I can make money is by moving my hips in a sexual way in Soho and I thought I would get away with doing it to you but I obviously didn't.” In interview the next day the appellant said that he could not remember anything which had occurred, but talk of dancing in Soho made sense because he had done it when younger; he said that he would in those days touch himself on the groin and probably the penis. He added that although he could not remember anything which had occurred, he accepted that when he was ill or in drink he sometimes might 'go silly and start stripping'.
That evidence was given at trial. The appellant neither accepted nor disputed it, because it remained his case that he could not remember anything about what had occurred. He added that he was depressed at the time, having recently separated from his male partner.
There was no medical evidence. It was not suggested that there was any reason connected with mental health which prevented him from forming the state of mind necessary to commit the offence.
The charge
The charge was a single one of sexual assault contrary to s 3 Sexual Offences Act 2003. The section which creates this offence provides as follows:
“3 Sexual assault
(1) A person (A) commits an offence if—
(a) he intentionally touches another person (B),
(b) the touching is sexual,
( c) B does not consent to the touching, and
(d) A does not reasonably believe that B consents.
(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
(3) Sections 75 and 76 apply to an offence under this section.”
We should set out also section 78, which defines the meaning of element (b) of this offence, namely that the touching must be 'sexual':
“78 “Sexual”
For the purposes of this Part (except section 71) penetration, touching or any other activity is sexual if a reasonable person would consider that –
(a) whatever its circumstances or any person's purpose in relation to it, it is because of its nature sexual, or
(b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.”
The Judge's ruling
Before speeches and summing up the Judge was asked to rule whether the offence charged was one to which voluntary drunkenness could afford a defence in the sense that it might prevent the defendant from having the necessary state of mind. The question which he was asked was whether the offence was one of specific or of basic intent. The question was formulated in that way because of the decision in DPP v Majewski [1977] AC 443.
The Judge answered that question by saying that the offence was one of basic intent. In greater detail he ruled that the offence was one which had to be committed deliberately rather than accidentally – that was the meaning, he held, of the word 'intentionally' in s 3(1)(a). He contrasted the offence with one which requires proof of an intention which goes beyond the prohibited act, such as for example the offence created by s 66, which provides:
“ 66 Exposure
(1) A person commits an offence if—
a) he intentionally exposes his genitals, and
b) he intends that someone will see them and be caused alarm or distress.”
The Judge graphically described a requirement such as that in s 66(1)(b), that there be proved an intention that someone would see the exposed genitals and be caused alarm or distress, as a 'bolted on' intention, going beyond the intention to expose oneself required by s 66(1)(a).
In consequence of his ruling, the Judge held that because the offence contrary to section 3 was a crime of basic intent, drunkenness could not be relied upon in defence. In due course he directed the jury that the Crown had to prove that the defendant touched the PC deliberately. Then he went on to direct the jury about the other elements of the offence stipulated for in subsections (1)(b)(c) & (d). The crux of his direction was the following:
“First of all, they have to prove that the defendant….intentionally, that is to say deliberately, touched PC Emery.
….lack of memory, or amnesia as it is sometimes called, is no defence. Secondly, the fact that the defendant was drunk—and there is no dispute about that, is there, clearly on the evidence you may think – the fact that he was drunk again does not provide him with any defence. Drunkenness is not a defence to this charge.
So, members of the jury, that is the law. If you are satisfied that he deliberately touched that officer with his penis in his hands, against the officer's thigh; if you are satisfied so that you are sure that that was sexual, that the officer was not consenting and that the defendant did not reasonably believe that he was consenting, then all the elements would be proved and ….you would return a verdict of guilty. If you were not sure of all or any of those elements, then you would acquit.”
The rival arguments
The appellant contends that the Judge's ruling was wrong. The offence is, it is said, one requiring proof of a specific intent and the jury should have been directed to consider whether the drink which the appellant had taken meant that he did not have the intention to touch. The Crown on the other hand contends that the offence is one of basic intent and that evidence of self-induced intoxication is simply irrelevant.
In a little more detail, Mr Stern's argument for the appellant runs like this:
i) The correct reading of DPP v Majewski and subsequent cases is that voluntary intoxication is incapable of being a defence only where recklessness suffices as the mens rea of the offence; it is such offences which are properly described as those of 'basic intent'.
ii) The present offence is one for which reckless touching will not suffice; only intentional touching will do.
iii) Therefore this is an offence of specific and not of basic intent. Voluntary intoxication is a relevant factor to consider when asking whether the appellant did or did not have the intention to touch required by the section.
For the Crown, Mr Perry's argument, similarly summarised, runs as follows:
i) The Majewski concept of crimes of basic intent, in which voluntary intoxication cannot be advanced as a defence, is not limited to those where recklessness suffices; the correct distinction is between crimes requiring ordinary intent (where voluntary intoxication cannot be relied upon), and those requiring specific or purposive intent (where it can).
ii) There is however no universally logical test for distinguishing between crimes in which voluntary intoxication can be advanced as a defence and those in which it cannot; there is a large element of policy; categorisation is achieved on an offence by offence basis.
iii) Before the Sexual Offences Act 2003, indecent assault could only be committed by intentional touching; yet voluntary intoxication was not a defence, as it was also not to rape. The decisions of Woods (1982) 74 Cr App R 312 and R v C [1992] Crim LR 642 are...
To continue reading
Request your trial
-
R v Martin Burke
...44 13 th Ed (2011) 45 Page 291. 46 Page 292. 47 Consultation Paper No 197 of October 2010 48 Para 6.7 49 At page 375H 50 Compare R v Head: [2008] QB 43 at [15] per Hughes LJ in relation to section 3 of the 51 The elements of that offence are different. The ambit of the offence was exhaustiv......
-
Scott Coley (1) (Appellant) The Queen (Respondent) Colin Mcghee (2) (Appellant) The Queen (Respondent) Darren Harris (3) (Appellant) The Queen (Respondent)
...of specific intent – see for example the (dissenting) opinion of Lord Edmund-Davies in Caldwell at 361D and the passing obiter reference in R v Heard [2008] QB 43 at [31], where, however, the offence under consideration (sexual assault) was one requiring not recklessness but (basic) intent.......
-
R v Musarrat Aslam
...act committed deliberately had the effect of interference. He relied upon paragraph 17–39A of Archbold and the case there referred to of R v Heard [2007] EWCA Crim 125; [2007] 1 Cr App R 37. Heard concerned an offence of sexual assault, contrary to section 3 of the Sexual Offences Act 2003......
-
R v Grout (Phillip)
...the child (B) engage in sexual activity. The causing or inciting must be intentional, ie. deliberate; recklessness or less will not do: see R v Head [2008] QB 43 at para 22, per Hughes LJ. Further, the child (B) must know what the defendant is saying or doing. If the offence charged is that......
-
Diminished Responsibility: No Defence without Evidence
...at trial that he had ‘no recollection of that afternoon because he had drunk a great deal of alcohol’ is no defence. In R v Heard [2007] EWCA Crim 125, [2008] QB 43, the accused had made a similar claim in response to an allegation of sexually assaulting a police officer contrary to s. 3 o......
-
Rape: Consent
...to at least be mindful of the former requirements of similar factevidence.Simon CooperSexual Assault; IntoxicationR v Heard [2007] EWCA Crim 125The appellant had been convicted of sexual assault, contrary to s. 3 ofthe Sexual Offences Act 2003. He had been drinking heavily, and, at hisreque......
-
Deconstructing Unlawful Act Manslaughter
...work only with what was displayed in and by the defendant’s criminal actions’.63. DPP vMajewski [1977] AC 443 (HL). Cf. RvHeard [2007] EWCA Crim 125, [2008] QB 43.64. See A. Ashworth, Principles of Criminal Law, 5th edn (Oxford University Press: Oxford, 2006).65. See Ashworth, above n. 36.L......
-
Cases: Parts 1, 2 and 3
...Republicof China 113K v R [2008] EWCA Crim 185 102Keogh v R [2007] EWCA Crim 528 190McEwan v DPP [2007] EWHC 740(Admin) 97R v Heard [2007] EWCA Crim 125 16R v Jheeta (Harvinder Singh) [2007]EWCA Crim 1699 11R v Johnston, Thompson, Johnston,Bowyer and Dudney [2007] EWCACrim 3133 196R v Kenne......