R v Majewski

JurisdictionEngland & Wales
JudgeLORD JUSTICE LAWTON
Judgment Date19 June 1975
Judgment citation (vLex)[1975] EWCA Crim J0619-7
Docket NumberNo. 5170/A/73
CourtCourt of Appeal (Criminal Division)
Date19 June 1975

[1975] EWCA Crim J0619-7

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

Before:-

Lord Justice Lawton

Lord Justice James

and

Mr. Justice Milmo

No. 5170/A/73

Regina
and
Robert Stefan Majewski

MR. S. BROWN, Q.C. and MR. J. SLATER appeared as Counsel for the Appellant.

MR. J. MATHEW and MR. M. HILL appeared as Counsel for the Crown.

LORD JUSTICE LAWTON
1

This is an appeal by Robert Stefan Majewski against his conviction on 7th Novemher, 1973 at Chelmsford Crown Court on three counts of assault occasioning actual bodily harm (counts 1, 2 and 4) and three counts of assault on a police constable in the execution of his duty (counts 5, 6 and 7). He was bound over to come up for judgment when called upon. On 5th December, 1973 he was put on probation for three years. Later he committed another offence for which he was sentenced and he was given an additional sentence of six months' imprisonment for the original offence. A few days of that last sentence remain to be served.

2

The appeal, which is against conviction, is on a question of law alone and was advised by Counsel. It has an odd and unfortunate history which must be examined in some detail.

3

The facts are common place indeed so commonplace that their very nature reveals how serious from a social and public standpoint the consequences would be if men could behave as the Appellant did and then claim that they were not guilty of any offence.

4

During the evening of 19th February, 1973 a brawl started in The Bull public house in Basildon. The Appellant and another man were involved. The landlord tried to eject the other man. The Appellant intervened to stop him. When the landlord went to telephone for the police the Appellant butted him. Eventually these two unruly customers were ejected but they fought their way back in again. During the struggle to get back the Appellant cut the landlord's hand with a piece of glass. The Appellant was very violent. Another customer sustained a grazed wrist and a cut finger. Eventually the Appellant was overpowered and held on the floor until the police arrived. The police officer who arrested him was kicked and abused. Another was kicked and injured by the Appellant whilst he was being driven to the police station. The next morning he attacked a police inspector who went to his cell at the police station to see what he was doing.

5

At his trial he gave evidence. He said that for some time he had been taking a mixture of drugs and on that evening he had drunk a fair amount of alcohol whilst under the influence of the drugs. He claimed to have no recollection at all of what had happened in the public house or at the police station, until he woke up there and found himself handcuffed. He said he had a slight momentary recollection of struggling with the police. He called a Dr. Bird to say that the drugs he had been taking when followed by alcohol would lead to rapid intoxication and uninhibited aggressive paranoid behaviour and that afterwards there would be a loss of memory as to what had happened. A statement by a Dr. Mitchell was put in evidence. In it he referred to the Appellant's drug taking and expressed the opinion that at the police station on the morning of February 20 the Appellant had been suffering from withdrawal symptoms.

6

At the end of the oral evidence called on behalf of the Appellant, the trial Judge asked the Appellant's Counsel, Nr. Slater, what was the relevance of the evidence which he had called about drugs and alcohol. Now it is obvious from the transcript of the trial and from other papers in this case that Mr. Slater was aware of the criticisms which have been made in recent years by a number of academic writers, notably Professor Smith of Nottingham University, and some Commonwealth Judges, of the widely held opinion that self induced intoxication, whether by drugs or alcohol, cannot provide a defence to a criminal charge unless the resulting disturbance of faculties is of a degree which brings about what the law regards as insanity or goes to negative the existence of what has been called a "specific intent". He had wanted to submit in this case that the criticisms were well founded and to persuade the Judge that the jury should be left to decide whether the drugs and alcohol the Appellant had taken raised a doubt as to whether the Appellant had had an intent to commit an assault. He told the Judge what he had wanted to do but said that he could not do so in this trial because of a Divisional Court case, Bolton v. Crawley (unreported, No. 303/71). The Judge made it clear that he was going to direct the jury in accordance with the commonly held opinion and he did so. His direction was as follows: "Let us pass on to another matter which has been touched upon in this case, the question of drink and drugs. Now, the law upon this subject is clear that where an offence does not require a specific intent (any intention, for example, to cause grievous bodily harm as certain do or such offences such as theft requiring an intention of dishonesty) where no such intention is, as it were, a constituent part of the offence, then if a man has induced in himself a state in which he is under the influence of drink and drugs then that state is no defence. Indeed, in every single case in this Indictment the allegation is one of assault. That does not require the proof by the Prosecution of any specific intention and therefore the fact that "Majewski may have taken drink and drugs is irrelevant provided that you are satisfied that the state which he was in as a result of those drink and drugs or a combination of both was self-induced because, so that you can understand this, what the law really says is that, that, if a person disables himself by his own conduct, by the taking of drink and drugs, from having powers of comprehension as to what is going on or his powers of self-control, he cannot then turn round and say: 'I am not responsible for what I did' because he put himself into that position in the first place. That is the logic of it but the practical effect of it, Members of the Jury, is this, that upon my direction in law you can ignore the subject of drink and drugs as being in any way a defence to any one or more of the counts in this Indictment."

7

Mr. Slater thought this was wrong in law and that the many academic criticisms of this view of the law should be considered by this Court. He advised the Appellant to appeal and settled grounds of appeal for him. They were concise and clear. They raised a question of law and nothing else. The Appellant accepted Mr. Slater's advice and gave notice of appeal. He was entitled on this notice to appeal as of right: See Section 1(2)(a) of the Criminal Appeal Act, 1968.

8

From this moment the appellate machinery began to go wrong. Someone in the Registrar's office failed to appreciate that the notice of appeal raised a question of law alone. As a result he sent the papers to a single Judge pursuant to Section 31 of the 1968 Act. That section gave no jurisdiction to a single Judge to consider this case, which should have gone to the full Court as an appeal. The single Judge thought he had jurisdiction. He considered the question of law raised in the notice of appeal and adjudged that there was nothing in it. He refused leave. His order to this effect, which was dated 25th February, 1974, was a nullity; but the appellate machinery ground on. The Appellant was informed of the single Judge's order. He inferred that what had been done so far was correct and asked that his appeal, which the Court was treating as an application for leave to appeal, should be referred to the full Court. At this time he did not have available the services of either solicitors or Counsel. The Registrar's office decided to list the case for hearing on 25th March, 1974 before a court of two Judges as an application not attended by Counsel and gave notice of that hearing date to the Appellant. That notice never reached him as he had left the address which the Registrar had. Shortly before 25th March the papers were put before Lord Justice James, who was to preside on that date. He appreciated that the case did raise a question of law alone and told the Registrar's office so. As a result on 25th March the case was listed before the full Court as an appeal. The Appellant was not present, nor was any Counsel for the Crown.

9

At this point in the history recollections as to what happened are not clear. It seems probable that one member of the Court suggested that the appeal could be dealt with under Section 20 of the 1968 Act, which provides for the summary disposal of appeals which the Court considers to be frivolous or vexatious. The other members of the Court agreed. Thereupon the deputy Registrar, on the instructions of the Court, made to them what purported to be a reference under Section 20. It was in these terms: "This case involves a point of law alone and does not show any substantial ground of appeal. Accordingly the Registrar refers the appeal to the Court for Summary Determination under the provisions of Section 20 of the Criminal Appeal Act, 1968, and the matter has been moved up the list from the two Judge Court to the three Judge Court."

10

The Court then dealt with the appeal under the provisions of Section 20. A short judgment was delivered by Mr. Justice Browne, as he then was. It was to the effect that the direction set out above was not wrong in law. On 25th March, 1974 there was nothing in the short transcript to reveal that Mr. Slater had made the observations he had or to remind the Court of the academic criticisms which had been made of the commonly held opinion about the effect of self-induced intoxication upon criminal responsibility. Notification of the...

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