Re M (A Minor) (Care Orders: Threshold Conditions)
| Jurisdiction | England & Wales |
| Judge | Lord Keith of Kinkel,Lord Goff of Chieveley,Lord Browne-Wilkinson,Lord Mustill,Lord Slynn of Hadley |
| Judgment Date | 21 July 1994 |
| Judgment citation (vLex) | [1994] UKHL J0721-1 |
| Court | House of Lords |
| Docket Number | Parliamentary Archives, HL/PO/JU/18/254 |
| Date | 21 July 1994 |
[1994] UKHL J0721-1
HOUSE OF LORDS
Lord Keith of Kinkel
Lord Goff of Chieveley
Lord Browne-Wilkinson
Lord Mustill
Lord Slynn of Hadley
Parliamentary Archives, HL/PO/JU/18/254
My Lords.
For the reasons given in the speech to be delivered by my noble and learned friend Lord Mustill, which I have read in draft and with which I agree, I would allow this appeal.
My Lords.
have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Mustill and for the reasons he gives I, too, would allow the appeal.
Lord Browne-WilkinsonMy Lords.
I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Mustill and for the reasons he gives I, too, would allow the appeal.
Lord MustillMy Lords.
This appeal concerns the effect on criminal liability of involuntary intoxication.
At a trial in the Lewes Crown Court in March 1992 the respondent Barry Kingston and a man named Penn were jointly indicted on a count of indecent assault on a youth aged 15 years. Penn also faced a second count that he unlawfully caused to be taken by that youth a stupefying drug with intent. At the close of the prosecution case Penn pleaded guilty to the first count, but maintained his plea of not guilty to the second. In the event the jury convicted Penn on the outstanding charge of administering a drug and the respondent on the single charge of indecent assault. The conviction of the respondent was by a majority. The trial judge (Potts J.) sentenced each defendant to five years imprisonment on the charges of indecent assault and Penn to an additional consecutive period of one year on the second count. The relevant tacts are simple. The respondent was in dispute over business matters with a couple named Foreman, who employed Penn to obtain damaging information which they could use against the respondent, who is a homosexual with paedophiliac predilections. As part of this plan Penn invited the youth to his room. According to the evidence given by the youth at the trial he remembered nothing between a time when he was sitting on the bed and when he woke up, still in Penn's room, the following morning. It was the case for the prosecution, which the jury by their verdict on the second count must have accepted, that the boy fell asleep because Penn had secretly given him a soporific drug in a drink. On the same evening the respondent went to the room where the youth lay unconscious. He and Penn indulged in gross sexual acts with him. As part of the plan Penn made a recording of what was going on, and also took some photographs. Since an appeal against sentence is pending I will say nothing about these, although they obviously played an important part in the trial. Later, this material came into the hands of the police and charges were brought.
At the outset of the trial counsel for the respondent foreshadowed a defence on the lines that as part of the plan Penn had secretly administered drugs not only to the boy but also to the respondent. It was not said, and in the light of the recordings and photographs could not have been said, that the consequence was to make the respondent, like the boy, insensible: nevertheless his case was he had suffered effects which annulled the criminal liability which his acts would otherwise have involved. At rather short notice two questions were raised for decision:
"(i) If the jury find that Mr Kingston assaulted (the boy) pursuant to an intent induced by the influence of drugs administered secretly to him by Penn, is it open to them to find him not guilty?
(ii) 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 made negative intent/mens rea so as to find Mr Kingston not guilty?"
It was made clear by counsel for the defendant in argument before the judge that the first question presupposed that the respondent had, notwithstanding any intoxication, the intent necessary to found the offence: although, of course, he did not accept that aside from assumptions made for the purpose of the question of law he did in fact have any such intention. After argument the learned judge gave a provisional answer "No" to the first question. In the course of the trial there was expert evidence concerning the effects of three medicinal drugs found in the possession of Penn when seen by the police some months after the offence. These had been prescribed after the date of the offence, although of course it does not follow that similar drugs had not previously been in the possession of Penn; and indeed the youth did say something in his evidence about valium (diazepam). The evidence (which your Lordships have not seen) appears to have been concerned mainly with the soporific effect of the drugs on the boy. There seems to have been little attention given to the impact, if any, of these three drugs, or possibly other drugs, on the behaviour of the respondent. Perhaps this was due to the discouraging effect of the judge's preliminary ruling. At all events, the only evidence relevant to the present appeal was given under cross-examination by the expert called on behalf of the respondent, who said that (triazolam) would never make anybody do anything that they would not be induced to do under normal circumstances. Counsel returned to the matter at the conclusion of the case. Although there was no formal response to the questions it is plain that the learned judge adhered to his earlier ruling that the answer to the first question was "No"; and it is implicit in the way the matter was put to the jury that his answer to the second question was "Yes" - an answer which, given the very wide terms of the question, is accepted on all sides as correct.
What the judge told the jury was this:
"For the purposes of this case an assault is an act by which a person intentionally applies, intentionally or recklessly applies, unlawful force to another. The degree of force does not matter, thus a touching is enough. An indecent assault is an assault accompanied by circumstances of indecency, on the part of the accused whose case you are considering, towards the victim, in this case [D.C.]. Thus, so far as Mr. Kingston is concerned on the first count, the Crown must prove that he intentionally - intentionally - assaulted [D]; 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 - but there I go into your province, you decide whether a fact of what happened is beyond dispute or not. In that connection you have the photographs and the tape. In deciding what Kingston's intent was at the time of the alleged offence - and I emphasize that: intent at the time of the offence - you can look at what he did and what he said at the time, and here you have the photographs of the one and the tape of the other. You look at his actions before, at the time and after the alleged offence. All these things may shed light on his intention at the critical moment.
"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 [D.C.], 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."
After this direction the jury by a majority returned a verdict of Guilty against the respondent on the first count, and the learned judge imposed a sentence of five years' imprisonment. The respondent appealed against conviction and sentence. The Court of Appeal (Criminal Division) allowed the appeal and quashed the convictions [1994] Q.B. 81. After citing from decisions and commentaries the court, in a judgment delivered by Lord Taylor C.J., continued, at pp. 89-90:
"In our judgment, the question can be answered by turning to first principles. The importance of ensuring, under a system of law, that members of the community are safeguarded in their persons and property is obvious and was firmly stated in Reg. v. Majewski [1977] A.C. 443 (see for example the speech of Lord Edmund Davies at p. 495). However, the purpose of the criminal law is to inhibit, by proscription and by penal sanction, anti-social acts which individuals may otherwise commit. Its unspoken premise is that people may have tendencies and impulses to do those things which are considered sufficiently objectionable to be forbidden. Having paedophiliac inclinations and desires is not proscribed; putting them into practice is. If the sole reason why the threshold between the two has been crossed is or may have been that the inhibition which the law requires has been removed by the clandestine act of a third party, the purposes of the criminal law are not served by nevertheless holding that the person performing the act is guilty of an offence. A man is not responsible for a condition produced 'by stratagem, or the fraud of another.' If therefore drink or a drug, surreptitiously...
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