R v Lipman
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WIDGERY |
| Judgment Date | 29 July 1969 |
| Judgment citation (vLex) | [1969] EWCA Crim J0729-1 |
| Docket Number | No. 6912/68 |
| Court | Court of Appeal (Criminal Division) |
| Date | 29 July 1969 |
[1969] EWCA Crim J0729-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Widgery
Lord Justice Fenton Atkinson
and
Mr. Justice James
No. 6912/68
MR. M. EASTHAM, Q.C. and MR. N. KING appeared on behalf of the Applicant.
MR. J. MATTHEW and MR. B. LEARY appeared on behalf of the Crown.
This applicant was convicted at the Central Criminal Court on the 10th October 1968 of the manslaughter of one Claudie Delbarre. He was sentenced to six years' imprisonment, and he now seeks leave to appeal against both his conviction and his sentence.
Both the applicant and the victim were addicted to drugs, and on the evening of the 16th September 1967 both took a quantity of a drug known as L.S.D. Early on the morning of the 18th September the applicant (who is a United States citizen) hurriedly booked out of his hotel and left the country. On the following day (the 19th September) Delbarre's landlord found her dead in her room. She had suffered two blows on the head causing haemorrhage of the brain, but she had died of asphyxia as a result of some eight inches of sheet having been crammed into her mouth.
The applicant was returned to this country by extradition proceedings, and at the trial he gave evidence of having gone with Delbarre to her room and there experienced what he described as an L.S.D. "trip". He explained how he had the illusion of descending to the centre of the Earth and being attacked by snakes, with which he had fought. It was not seriously disputed that he had killed the victim in the course of this experience, but he said he had no knowledge of what he was doing and no intention to harm her. He was charged with murder, but the jury evidently accepted that he lacked the necessary intention to kill or to do grievous bodily harm.
As to manslaughter, the jury were directed that it would suffice for the Crown to prove that "he must have realised before he got himself into the condition he did by taking drugs that acts such as those he subsequently performed and which resulted in the death were dangerous". In this court Mr. Eastham contends that this was a misdirection, and that the jury should have been directed further that it was necessary for the Crown to prove that the applicant intended to do acts likely to result in harm, or foresaw that harm would result from what he was doing.
For the purposes of criminal responsibility we see no reason to distinguish between the effect of drugs voluntarily taken and drunkenness voluntarily induced. As to the latter there is a great deal of authority. First of all, in the case of the Director of Public Prosecutions v. Beard (1920 Appeal Gases 479) there appears (at page 499) the following oft-quoted passage from the speech of Lord Birkenhead, the Lord Chancellor: "Notwithstanding the difference in the language used I come to the conclusion that (except in cases where insanity is pleaded) these decisions establish that where a specific intent is an essential element in the offence, evidence of a state of drunkenness rendering the accused incapable of forming such an intent should be taken into consideration in order to determine whether he had in fact formed the intent necessary to constitute the particular crime. If he was so drunk that he was incapable of forming the intent required he could not be convicted of a crime which was committed only if the intent was proved. This does not mean that the drunkenness in itself is an excuse for the crime but that the state of drunkenness may be incompatible with the actual crime charged and may therefore negative the commission of that crime. In a charge of murder based upon intention to kill or to do grievous bodily harm, if the jury are satisfied that the accused was, by reason of his drunken condition, incapable of forming the intent to kill or to do grievous bodily harm, unlawful homicide with malice aforethought is not established and he cannot be convicted of murder. But nevertheless unlawful homicide has been committed by the accused, and consequently he is guilty of unlawful homicide without malice aforethought, and that is manslaughter". A little further on (on the same page) the Lord Chancellor says: "… the law is plain beyond all question that in cases falling short of insanity a condition of drunkenness at the time of committing an offence causing death can only, when it is available at all, have the effect of reducing the crime from murder to manslaughter."
More recently (in 1963) in two further cases in the House of Lords the same principle is to be found. The first is the case of Bratty v. Attorney-General for Northern Ireland (1963 Appeal Cases 386). I quote from the speech of Lord Denning at page 410, where he says: "Another thing to be observed is that it is not every involuntary act which leads to a complete acquittal. Take first an involuntary act which proceeds from a state of drunkenness. If the drunken man is so drunk that he does not know what he is doing, he has a defence to any charge, such as murder or wounding with intent, in which a specific intent is essential, but he is still liable to be convicted of manslaughter or unlawful wounding for which no specific intent is necessary, see Beard's case."
The other case is the Attorney-General for Northern Ireland v. Gallagher (reported in the same volume at page 349), and I cite a passage, again from Lord Denning, at page 381: "If a man is charged with an offence in which a specific intention is essential (as in murder, though not in manslaughter), then evidence of drunkenness, which renders him incapable of forming that intention, is an answer: see Beard's case."
These authorities show quite clearly, in our opinion, that it was well established that no specific intent was necessary to support a conviction for manslaughter based upon a killing in the course of an unlawful act and that, accordingly, self-induced drunkenness was no defence to such a charge.
In a case of manslaughter by neglect, however, it has been recognised that some mental element must be established, and for this I turn to the case of Andrews v. Director of Public Prosecutions (26 Criminal Appeal Reports 34). In that case Lord Atkin deals in some detail with the mental element involved in manslaughter by neglect. He says (on page 46): "To substantiate the charge of manslaughter, Lord Ellenborough said 'the prisoner must have been guilty of criminal misconduct, arising either from the grossest ignorance or the most criminal inattention.'
"The word 'criminal' in any attempt to define a crime is perhaps not the most helpful, but it is plain that the Lord Chief Justice meant to indicate to the jury a high degree of negligence. So, at a much later date, in Bateman (1925) (19 Criminal Appeal Reports 8) a charge of manslaughter was made against a qualified medical practitioner in similar circumstances to those of Williamson. In a considered judgment of the Court the Lord Chief Justice, after pointing out that in a civil case, once negligence is proved, the degree of negligence is irrelevant, said (at page 11): 'In a criminal Court, on the contrary, the amount and degree of negligence are the determing question. There must be mens rea.' After citing Cahill v. Wright (1856) (6 Ellis and Blackburn 891), a civil case, the Lord Chief Justice proceeded: 'In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, the Judges have used many epithets, such as "culpable", "criminal", "gross", "wicked", "clear", "complete". But, whatever...
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