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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Asmelash v R  EWCA Crim 157 (22 February 2013)
Cite as:  1 Cr App R 33,  3 WLR 1056,  1 QB 103,  EWCA Crim 157,  QB 103,  WLR(D) 79,  Crim LR 599
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ON APPEAL FROM TEESSIDE CROWN COURT
HIS HONOUR JUDGE FOX QC
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE RAFFERTY
MR JUSTICE SIMON
| DAWIT ASMELASH
|- and -
A Edis QC for the Respondent
Hearing date: 5th February 2013
Crown Copyright ©
The Lord Chief Justice of England and Wales:
"Are you sure that a person of Dawit Asmelash's sex and age with a normal degree of tolerance and self restraint and in the same circumstances, but unaffected by alcohol, would not have reacted in the same or similar way?"
Amplifying this direction the judge told the jury that he had deliberately inserted the words "unaffected by alcohol" into his written route to verdict, because, as he put it, the law had never said that the "voluntary consumption of alcohol can assist a criminal offender. If it did, the flood gates – you may think – would be open and every violent drunk would say "I must be judged against the standards of other violently disposed drunken people even though I may be like a lamb when I am sober"."
"(1) where a person ('D') kills or is a party to the killing of another ('V'), D is not to be convicted of murder if …
(c) a person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or similar way to D …
Section 54(3) provides:
"In sub-section (1)(c) the reference to "the circumstances of D" is a reference to all of D's circumstances other than those whose only relevance to D's conduct is that they bear on D's general capacity for tolerance or self-restraint."
"The exception which prevents a defendant from relying on his voluntary intoxication, save upon the limited question of whether a "specific intent" has been formed, is well entrenched and formed the unspoken backdrop for the new statutory formula. There has been no hint of any dissatisfaction with that rule of law. If Parliament had meant to alter it, or depart from it, it would undoubtedly have made its intention explicit."