R v Kingston
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 06 May 1993 |
| Judgment citation (vLex) | [1993] EWCA Crim J0506-6 |
| Docket Number | No. 92/2421/Y2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 06 May 1993 |
[1993] EWCA Crim J0506-6
IN THE COURT OF APPEAL CRIMINAL DIVISION
Before: The Lord Chief Justice of England (Lord Taylor of Gosforth) Mr Justice Pill and Mr Justice Sedley
No. 92/2421/Y2
MR CHARLES TAYLOR appeared on behalf of THE APPELLANT
MR BRIAN LETT appeared on behalf of THE CROWN
This appeal against conviction, brought by leave of the single judge, calls upon the Court to resolve a longstanding question about involuntary intoxication as an answer to a criminal charge.
The appellant, now aged 48, is a man with admitted paedophiliac homosexual tendencies. Because of a dispute with two former business associates, a Mr and Mrs Foreman, a man named Kevin Penn who evidently had similar tendencies 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 where he gave the boy what seemed an innocuous drink and some cannabis. The boy fell asleep on the bed and remembered nothing until he woke the next morning. While the boy was in this state, Penn invited the appellant to come to his flat and after some conversation took him into the bedroom where he invited the appellant to abuse the boy sexually. This the appellant did, and he was photographed and taped doing it. His evidence was that he had seen the boy lying on the bed but had no recollection of any other events that night and had woken in his own home the next morning.
When Penn was arrested, two sedative drugs, diazepam (valium) and triazolam, and an empty box which had contained a third type of sedative drug, were found in his flat. It was the prosecution's case that Penn had laced the boy's drink with such a drug. Although the appellant was not able to say for sure in evidence whether he had had anything to drink before going to the bedroom, he sometimes drank coffee at Penn's flat and the tape itself contained a passage in which the appellant said: "I don't know why, am I falling asleep?" and: "Have you put something in my coffee?"
Medical evidence for the prosecution and defence established that diazepam would induce calm (according to the prosecution) or drowsiness (according to the defence); that triazolam would induce sleep (according to the prosecution) and could cause amnesia and impaired judgment (according to the defence witness). But neither medical witness suggested that either drug would make a person do anything which they would not do under normal circumstances.
The two men were indicted jointly for indecent assault on the boy; and Penn was further indicted for unlawfully causing a stupefying drug to be taken with intent to commit an indictable offence. The appellant contested the indecent assault count and was convicted by a majority of 10–2. Penn, upon re-arraignment, pleaded guilty to indecent assault. He was convicted of causing a stupefying drug to be taken. Each man was sentenced by the trial judge, Potts J, to five years' imprisonment for indecent assault, and Penn to twelve months consecutive for administering a stupefying drug. Kingston alone has appealed against both conviction and sentence; but for reasons to which we now turn it will not be necessary to consider his sentence. At the conclusion of argument on conviction the Court reserved judgment and granted him bail.
It will be apparent from the foregoing summary that 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 is also clear from the verdict of the jury that they found that the assault and the circumstances of indecency were intentional, for the trial judge had directed them as follows:
"…. the Crown must prove that he intentionally —intentionally —assaulted Darren; and that the assault, or the circumstances accompanying, were capable of being considered by right-minded people as indecent (and having seen those photographs, can you doubt that?); and that the defendant Kingston intended such indecency. Thus, ladies and gentlemen, Kingston's intention is of all importance, for you may think the fact as to what happened is beyond dispute …."
At the outset of the trial Mr Taylor, who represented the appellant, as he has done before this Court, advanced to the judge in the jury's absence two questions, inviting him to answer 'yes' to both:
"1. If the jury find that Mr Kingston assaulted [the boy] pursuant to an intent induced by the influence of drugs administered to him secretly by Kevin Penn, is it open to them to find Mr Kingston not guilty?
2. If the jury find that at the time of the alleged offence Mr Kingston was intoxicated by drugs secretly administered to him by Kevin Penn, is it open to them to find that this intoxication may negative intent/mens rea so as to find Mr Kingston not guilty?"
The learned judge, after relatively brief submissions made at the start of the trial and before any evidence had been called, expressed the provisional view that the answer to the first question was 'No' and to the second question 'Yes'. He concluded:
"I anticipate that, come what may, we ought really to consider the proposition at the end of the evidence and before speeches …."
but the law on this topic was not further canvassed before the judge summed up. In the result he directed the jury as follows:
"In deciding whether Kingston intended to commit this offence, you must take into account any findings that you may make that he was affected by drugs. If you think that because he was so affected by drugs he did not intend, or may not have intended to commit an indecent assault upon [the boy], then you must acquit him; but if you are sure that despite the effect of any drugs that he might have been slipped —and it is for you to find whether he was drugged or not —this part of the case is proved because a drugged intent is still an intent. So intention is crucial, intention at the time; and, of course, members of the jury, you will bear in mind there is a distinction between intention at the time and a lack of memory as to what happened after the time."
Mr Taylor makes no criticism of this passage as a direction conforming to the judge's affirmative answer to the second question formulated by him. The jury by their verdict found that, drugged or not, the appellant had been capable of forming, and had formed, the necessary intent. In these circumstances Mr Taylor can only succeed on his first ground if he can establish that his first question should also have been affirmatively answered and the jury directed accordingly. In approaching this question we accept (although the jury's verdict was necessarily silent on the point) that there was evidence from which it was possible to infer that Penn had administered a drug to the appellant without his knowledge.
Before turning to the law on this topic it is necessary to set out the two further grounds of appeal. The first is that the learned judge erred in law in refusing to allow the defence to elicit from Kenneth Self, a prosecution witness at trial, evidence which had been elicited from him at committal to the effect that Penn had in conversation told him that he managed to persuade boys to indulge in homosexual acts by the use of drugs. The witness quotes what he said were Penn's exact words: "It's surprising what a couple of valium in their drinks will do." Prosecuting counsel, whose instructions were that this related to a single conversation some two years before the material offences, did not propose to lead the evidence. The learned judge on a preliminary application ruled that the defence might not elicit it. He reminded himself of the ruling of Devlin J in Miller (1952) 36 Criminal Appeal Reports 169 that as between co-accused relevance was the sole test, but he held:
"In my view the passage at its highest does no more than indicate a propensity on the part of this defendant Penn to drug boys so as to have his way with them. It is not indicative of behaviour on his part in relation to adult men who may be present at the time of such conduct. In the circumstances I have reached the conclusion that this evidence is not relevant …."
The third ground is that the judge erred in law in permitting the Crown to put to the appellant in cross-examination some highly explicit homosexual pornography which had been found at his home. The basis for its admission was this passage of dialogue in cross-examination of the appellant:
"Q: You are obviously enjoying yourself [ie as shown by the tape and the photographs]
A: I would not, because I don't remember it happening; and if I had been in command of myself it would not have happened. I would not have allowed myself to get in that situation …. if I was fully compos mentis I would not have done it, that is what I am saying. It would seem that somebody dropped a Micky Finn in my coffee."
The appellant then confirmed what was put to him:
"My case is that I was slipped something in my drink which made me do what I otherwise would not have done."
The Crown sought to put in the pornographic literature in order, as
the judge put it:
"to show that this man would have done precisely what...
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