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Cite as: [1995] 2 AC 355, [1994] 3 WLR 519, [1994] UKHL 9, [1994] 3 All ER 353

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JISCBAILII_CASE_CRIME

    Parliamentary Archives,
    HL/PO/JU/18/254

    Regina v. Kingston (Respondent)
    (On Appeal from the Court of Appeal (Criminal Division))


    JUDGMENT

    Die Jovis 21° Julii 1994

    Upon Report from the Appellate Committee to whom was
    referred the Cause Regina against Kingston, That the Committee
    had heard Counsel as well on Wednesday the 18th as on Thursday
    the 19th days of May last upon the Petition and Appeal of the
    Director of Public Prosecutions of 50 Ludgate Hill, London EC4M
    7EX on behalf of the Crown Prosecution Service (on behalf of Her
    Majesty), praying that the matter of the Order set forth in the
    first Schedule thereto, namely an Order of Her Majesty's Court
    of Appeal (Criminal Division) . of the 5th day of October 1993,
    might be reviewed before Her Majesty the Queen in Her Court of
    Parliament and that the said Order might be reversed, varied or
    altered or that the Petitioner might have such other relief in
    the premises as to Her Majesty the Queen in Her Court of
    Parliament might seem meet; as upon the case of Barry Kingston
    lodged in answer to the said Appeal; and due consideration had
    this day of what was offered on either side in this Cause:

    It is Ordered and Adjudged, by the Lords Spiritual and
    Temporal in the Court of Parliament of Her Majesty the Queen
    assembled, That the said Order of Her Majesty's Court of Appeal
    (Criminal Division) of the 5th day of October 1993 complained of
    in the said Appeal be, and the same is hereby, Set Aside, that
    the first part of the certified question be answered in the
    negative and that consequently no answer be given to the second
    part of that question: And it is further Ordered. That the Cause
    be, and the same is hereby, remitted back to the Court of Appeal
    (Criminal Division) with a direction to dispose of the grounds
    of appeal not already disposed of by that Court, including if
    appropriate the appeal against sentence, in accordance with the
    views expressed in this House, and to determine whether the
    conviction of the Respondent by Lewes Crown Court on the 16th day
    of March 1992 should be upheld or quashed.

    Cler: Parliamentor;

    Judgment: 21 July 1994
    HOUSE OF LORDS

    REGINA

    v.

    KINGSTON
    (RESPONDENT)
    (ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL DIVISION))

    Lord Keith of Kinkel
    Lord Goff of Chieveley
    Lord Browne-Wilkinson
    Lord Mustill
    Lord Slynn of Hadley


    LORD KEITH OF KINKEL

    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.

    LORD GOFF OF CHIEVELEY

    My Lords.

    1 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-WILKINSON


    My 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.

    - 1 -

    LORD MUSTILL

    My 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?

    - 2 -

    (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

    - 3 -

    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

    - 4 -

    another.' If therefore drink or a drug, surreptitiously administered,
    causes a person to lose his self control and for that reason to form an
    intent which he would not otherwise have formed, it is consistent with
    the principle that the law should exculpate him because the operative
    fault is not his. The law permits a finding that the intent formed was
    not a criminal intent or, in other words, that the involuntary
    intoxication negatives the mens rea. As was pointed out in argument,
    there is some analogy to be found here in the rationale underlying the
    defence of duress. While it is not necessary for the decision of this
    case, it appears to us that if the principle applies where the offence is
    one of basic intent, it should apply also where the offence is one of
    specific intent.

    "We would add that there must be evidence capable of giving rise to
    the defence of involuntary intoxication before a judge is obliged to
    leave the issue to the jury. However, once there is an evidential
    foundation for the defence, the burden is upon the Crown to prove that
    the relevant intent was formed and that notwithstanding the evidence
    relied on by the defence it was a criminal intent.

    "By answering the first of the questions put to him at the beginning of
    the trial in the negative, the learned judge may have inhibited a
    sufficient ventilation of this issue at a later stage. Further, by
    summing up as he did, the learned judge effectively withdrew the issue
    from the jury. In our judgment, that amounted to a material
    misdirection."

    The court accordingly quashed the conviction.

    In due course the prosecutor obtained from the Court of Appeal a
    certificate that a point of law of general public importance was involved in the
    decision to allow the appeal, namely:

    "(a) Whether, if it is proved that the necessary intent was present
    when the necessary act was done by him, a defendant has open
    to him a defence of involuntary intoxication? (b) If so, on
    whom does the burden of proof lie?"

    The prosecutor now appeals by leave of your Lordships' House.

    In academic circles the decision under appeal has not been favourably
    received. In particular Sir John Smith, [1983] Crim. L.R. 794. Professor
    Edward Griew, Archbold News, 28 May 1993, p. 5 and Mr. J.R. Spencer.
    [1994] C.L.J. 6 have characterised it as surprising, dangerous and contrary
    to principle. On the other hand there is an instinctive attraction in the
    proposition that a retributory system of justice should not visit penal
    consequences on acts which are the ultimate consequence of an event outside
    the volition of the actor, and that it is not sufficient to acknowledge the special

    - 5 -

    circumstances by mitigating the penalty which would otherwise be appropriate.
    This point of view is forcefully argued by Mr. G.R. Sullivan, [1994] Crim.
    L.R. 272, although the author does not accept the judgment of the Court of
    Appeal in its fullest extent. This divergence of opinion reflects a general issue
    of fundamental importance, as well as a more technical question on the law
    of intoxication. Since the matter is also of increasing practical significance,
    given the availability of hallucinogenic drugs whose ingestion in very small
    quantities can lead to behaviour which is bizarre, unpredictable and violent,
    it must be considered in some detail. The essential facts must be identified.

    The starting point is the verdict of Guilty coupled with the judge's
    direction on the necessity for intent. This implies that the majority either (a)
    were sure that the respondent had not involuntarily taken a drug or drugs at
    all or (b) were sure that whatever drug he may have taken had not had such
    an effect on his mind that he did not intend to do what he did. We are
    therefore not concerned with what is picturesquely called automatism; nor
    was it suggested that the effect of the drug was to produce a condition of
    temporary insanity. What then was said to have been the induced mental
    condition on which the respondent relies? Inevitably, since the judge's ruling
    meant that whatever medical evidence there may have been was not developed
    we cannot be sure. Still, the general nature of the case is clear enough. In
    ordinary circumstances the respondent's paedophiliac tendencies would have
    been kept under control, even in the presence of the sleeping or unconscious
    boy on the bed. The ingestion of the drug (whatever it was) brought about a
    temporary change in the mentality or personality of the respondent which
    lowered his ability to resist temptation so far that his desires overrode his
    ability to control them. Thus we are concerned here with a case of
    disinhibition. The drug is not alleged to have created the desire to which the
    respondent gave way, but rather to have enabled it to be released. The
    situation is therefore different from that which led to the acquittal of the
    accused in the first of the Scottish cases to which I shall refer, where the drug
    directly brought about the violent conduct with which he was charged.

    On these facts there are three grounds on which the respondent might
    be held free from criminal responsibility. First, that his immunity flows
    from general principles of the criminal law. Secondly, that this immunity is
    already established by a solid line of authority. Finally, that the court should,
    when faced with a new problem acknowledge the justice of the case and
    boldly create a new common law defence.

    It is clear from the passage already quoted that the Court of Appeal
    adopted the first approach. The decision was explicitly founded on general
    principle. There can be no doubt what principle the court relied upon, for at
    the outset the court [1994] Q.B. 81, 87 recorded the submission of counsel for
    the respondent - "... the law recognises that, exceptionally, an accused
    person may be entitled to be acquitted if there is a possibility that although his
    act was intentional, the intent itself arose out of circumstances for which he

    - 6 -

    bears no blame". The same proposition is implicit in the assumption by the
    Court that if blame is absent the necessary mens rea must also be absent.

    My Lords, with every respect I must suggest that no such principle
    exists or. until the present case, had ever in modern times been thought to
    exist. Each offence consists of a prohibited act or omission coupled with
    whatever state of mind is called for by the statute or rule of the common law
    which creates the offence. In those offences which are not absolute the state
    of mind which the prosecution must prove to have underlain the act or
    omission - the "mental element" - will in the majority of cases be such as to
    attract disapproval. The mental element will then be the mark of what may
    properly be called a "guilty mind". The professional burglar is guilty in a
    moral as well as a legal sense; he intends to break into the house to steal, and
    most would confidently assert that this is wrong. But this will not always be
    so. In respect of some offences the mind of the defendant, and still less his
    moral judgment, may not be engaged at all. In others, although a mental
    activity must be the motive power for the prohibited act or omission the
    activity may be of such a kind or degree that society at large would not
    criticise the defendant's conduct severely or even criticise it at all. Such
    cases are not uncommon. Yet to assume that contemporary moral judgments
    affect the criminality of the act. as distinct from the punishment appropriate
    to the crime once proved, is to be misled by the expression "mens rea", the
    ambiguity of which has been the subject of complaint for more than a century.
    Certainly, the "mens" of the defendant must usually be involved in the
    offence: but the epithet "rea" refers to the criminality of the act in which the
    mind is engaged, not to its moral character. If support from the
    commentators for this proposition is necessary it may be found in Smith &
    Hogan. Criminal Law,
    7th ed. (1992). pp.79-80; Glanville Williams. Textbook
    of Criminal Law
    2nd ed. (1983), p. 221 and also p. 75; and Russell on Crime
    12th ed. (1964). Vol. 1, at p. 80, 86.

    My Lords, it is hard to discuss the respondent's contrary argument at
    length, for no decided case has been cited to support it; nor indeed was any
    cited against it, and this is not surprising, since there can have been few
    occasions in modern times when the dissociation between the mental and the
    moral aspects of a crime has been doubted. By coincidence, however, this
    very question has recently been considered by the Judicial Committee of the
    Privy Council. In Yip Chui Cheung v. The Queen (16 June 1994) the
    appellant was charged with conspiracy to traffic in a dangerous drug, contrary
    to the common law and section 4 of the Dangerous Drugs Ordinance. Cap.
    134, of Hong Kong. So far as material the facts were as follows. The case
    for the prosecution was that the appellant had a series of meetings in Thailand
    with a man named Needham. who unknown to the appellant was an
    undercover drug enforcement officer of the United States of America. In the
    course of these meetings it was arranged that Needham would act as courier
    to carry a consignment of drugs by air from Hong Kong to Australia, the plan
    being that Needham would travel to Hong Kong, collect the drugs and fly on
    to Australia. Needham said that throughout his dealings with the appellant he

    - 7 -

    kept the authorities in Hong Kong and Australia informed of the plans and
    they agreed that he would not be prevented from carrying the drugs out of
    Hong Kong and into Australia. Although Needham fully intended to carry it
    out this scheme foundered for practical reasons and he never in fact went to
    Hong Kong. On an appeal against conviction one of the arguments for the
    appellant was that he could not be guilty of conspiring with Needham since
    Needham himself had committed no offence. In an opinion delivered by Lord
    Griffiths after the conclusion or the arguments in the present appeal, the Board
    dismissed this contention in the following terms:

    "On the principal ground of appeal it was submitted that the trial judge
    and the Court of Appeal were wrong to hold that Needham, the
    undercover agent, could be a conspirator because he lacked the
    necessary mens rea or guilty mind required for the offence of
    conspiracy. It was urged upon their Lordships that no moral guilt
    attached to the undercover agent who was at all times acting
    courageously and with the best of motives in attempting to infiltrate
    and bring to justice a gang of criminal drug dealers. In these
    circumstances it was argued that it would be wrong to treat the agent
    as having any criminal intent, and reliance was placed upon a passage
    in the speech of Lord Bridge of Harwich in Reg. v. Anderson (William
    Ronald)
    [1986] A.C. 27 at pp. 39-39; but in that case Lord Bridge
    was dealing with a different situation from that which exists in the
    present case. There may be many cases in which undercover police
    officers or other law enforcement agents pretend to join a conspiracy
    in order to gain information about the plans of the criminals, with no
    intention of taking any part in the planned crime but rather with the
    intention of providing information that will frustrate it. It was to this
    situation that Lord Bridge was referring in Anderson. The crime of
    conspiracy requires two or more persons to commit an unlawful act
    with the intention of carrying it out. It is the intention to carry out the
    crime that constitutes the necessary mens rea for the offence. As Lord
    Bridge pointed out, an undercover agent who has no intention of
    committing the crime lacks the necessary mens rea to be a conspirator.

    The facts of the present case are quite different. Nobody can doubt
    that Needham was acting courageously and with the best of motives;
    he was trying to break a drug ring. But equally there can be no doubt
    that the method he chose and in which the police in Hong Kong
    acquiesced involved the commission of the criminal offence of
    trafficking in drugs by exporting heroin from Hong Kong without a
    licence. Needham intended to commit that offence by carrying the
    heroin through the customs and on to the aeroplane bound for
    Australia."

    I would therefore reject that part of the respondent's argument which
    treats the absence of moral fault on the part of the appellant as sufficient in
    itself to negative the necessary mental element of the offence.

    - 8 -

    Before proceeding to the next stage two remarks must be made. The
    first is that in the passage above-quoted the Court of Appeal echoed part of
    a dictum in Pearson's case (1835) 2 Lew. C.C. 144: "If a party be made
    drunk by stratagem, or the fraud of another, he is not responsible". If it is
    an essential part of the reasoning of the court that the intervention of a third
    party is involved I must join with Sir John Smith in pointing out that a loss
    of self control through the acts of a third party does not in general constitute
    a defence, as witness the example given by Sir John of a man who severely
    injures the victim when enraged by lies told by a third party against the
    victim. In such a case there is substantial mitigation but no defence
    recognised by law. Secondly I have felt some concern about whether, in the
    discussion so far, the principle relied upon has been correctly stated. That
    counsel was arguing for the proposition that mens rea is to be equated with
    moral fault is clear, for he gave as an example of the absence of mens rea a
    mother who took goods from a supermarket without payment in order to feed
    a starving child: an example which in fact demonstrates as clearly as any
    could the difference between mitigation and defence. I have however
    wondered whether the Court of Appeal meant something different and more
    narrow, namely that there is no mens rea if the intent is set in motion by a
    condition which the defendant did not bring about by his own deliberate act.
    This proposition was not separately argued and I hesitate to say anything about
    it, except that if it were right as a matter of general law an irresistible impulse
    brought about by an inherent medical condition would, aside from all
    questions of insanity and diminished responsibility, be a defence at common
    law; which it is not.

    Accordingly, so far as general principles of criminality are concerned
    I would reject the respondent's argument. His second ground is more narrow,
    namely that involuntary intoxication is already recognised as a defence by
    authority which the House ought to follow. In his resilient argument Mr.
    Taylor repeatedly stressed the importance of two sources. The first of these
    was Pearson's case 2 Lew. C.C. 144, which was heard at Carlisle Assizes.
    The report in which it appears collects under subject headings a series of
    epitomes of things said and rulings given on the Northern Circuit in the first
    part of the last century. The report is so brief that it may be quoted in full:

    "The prisoner was indicted for the murder of his wife.

    It was proved, that, in a fit of drunkenness, he had beaten her in a
    cruel manner with a rake-shank, and that she died of the wounds and
    bruises which she received. His only defence was. that he was drunk.

    Park. J. - 'Voluntary drunkenness is no excuse for crime.

    'If a party be made drunk by stratagem, or the fraud of another, he is
    not responsible.

    - 9 -

    'So, drunkenness may be taken into consideration to explain the
    probability of a party's intention in the case of violence committed on
    sudden provocation.'"

    For two reasons I cannot place reliance on this dictum as a foundation
    for a modern law of involuntary intoxication. First, because the dictum was
    uttered at a time when the law concerning the mental element of crime, and
    the particular place of intoxication within it, was in an early state of
    development. The scholarly account given by R.U. Singh in History of the
    Defence of Drunkenness in English Criminal Law,
    (1933) 49 L.Q.R. 528
    shows to my mind quite clearly that it would be perilous to base any decision
    today on old dicta on this topic, unless endorsed by modern authority - as is
    evident that part of Pearson which deals with the effect of drunkenness on a
    defence of provocation in a way which is no longer the law.

    Secondly, although Park J. was an eminent judge whose
    pronouncements are worthy of respect, I am sceptical about reliance on a
    report of this kind as a basis for treating the law as settled. Nothing is
    disclosed about the source of the statement; whether it was an observation
    arguendo. or part of a ruling, or part of a direction to the jury. Nor does it
    appear whether it had even been suggested that the defendant had been made
    drunk by a stratagem or by the fraud of another, or that whether the question
    had been the subject of argument, or whether the learned judge's observations
    were considered or extempore. Some important criminal law has been made
    on Assize, but in this instance I must agree with the observation of Professor
    Smith in a case note on Reg. v. Davies [1983] Crim. L.R. 741. and repeated
    by the author as Sir John Smith in his note on the present case ([1993] Crim
    L.R. 794). that it would be unwise to found any principle at all upon the
    report.

    The second authority relied upon was a single page plucked from the
    1830 edition of Sir Matthew Hale's Historia Placitorum Coronae. The subject
    was 'dementia affectata, namely Drunkenness", which was said to deprive
    men of the use of reason and put them into a "perfect, but temporary
    phrenzy". The gist of the passage was that according to English law voluntary
    drunkenness was not a "privilege" but left the person in the same position as
    if he were in his right senses. There were, however, certain mitigations, one
    of which was that if a person by the contrivance of his enemies had eaten or
    drunk such a thing as caused a temporary or permanent phrenzy this put him
    into the same condition as any other phrenzy and equally excused him. Read
    in isolation this passage is hard to penetrate, but a subsequent opportunity to
    read the chapter as a whole makes it easier to comprehend. The chapter (pp.
    29 et seq.) is entitled "Concerning the effect of ideocy, madness and
    lunacy ..." The author began by stating that these three conditions, together
    called dementia, did not generally amount to an excuse, although in respect
    to capital offences in some cases the accused might have the advantage of
    them. The author proceeded to a tri-partite categorisation. First, "Ideocy,

    - 10-

    or fatuity a nativitate." This was an excuse in cases of treason and felony.
    Secondly, there was "Dementia accidentalis." This might arise from the
    distemper of the humours of the body; or from a disease; or from a
    concussion or hurt of the brain. This category was subdivided into partial and
    total insanity. The latter excused from responsibility for treason or felony; the
    former did not. There was also a division into permanent or interpolated
    insanity, the latter usually called lunacy, being affected by the phases of the
    moon. In the latter instance, if the offence was committed during a lucid
    interval the position was the same as if the accused had not suffered from the
    disorder, whereas a person who kills another whilst "absolutely mad for a
    day" is equally not guilty as if he were mad without intermission. The
    ground for the excuse is that if dementes "are totally deprived of the use of
    reason, they cannot be guilty ordinarily of capital offences, for they have not
    the use of understanding, and act not as reasonable creatures, but their actions
    are in effect in the condition of brutes."

    Read in this context it seems plain that Sir Matthew Hale was
    contemplating a state of involuntary intoxication profound enough to be akin
    to a temporary M'Naghten insanity, and that he would go no further than to
    suggest that (at least in the case of capital offences) if the accused was
    incapable of forming the necessary intent the crime was not made out. So
    understood the extract from Hale is consistent with the existing law. But legal
    concepts of criminal responsibility in the 17th century, when the manuscript
    of the work was prepared, are so different from what they are today that I am
    unable to place any substantial reliance on Hale as a starting-point for the
    development of a contemporary doctrine of intoxication.

    There is. however, another line of authority to be considered, for it is
    impossible to consider the exceptional case of involuntary intoxication without
    placing it in the context of intoxication as a whole. This area of the law is
    controversial, as regards the content of the rules, their intellectual foundations,
    and their capacity to furnish a practical and just solution. Since the law was
    not explored in depth during the arguments and since it is relevant only as part
    of the background it is better not to say any more about it than is strictly
    necessary. Some consideration of the law laid down in Reg. v. Majewski
    [1977] AC 443 is however inevitable. As I understand the position it is still
    the law that in the exceptional case where intoxication causes insanity the
    M'Naghten Rules (M'Naghten's case (1843) 10 CI. & Fin. 206) apply: see
    Director or Public Prosecutions v. Beard [1920] A.C. 479, 501 and Attorney -
    General for Northern Ireland v. Gallagher
    [1963] AC 349. Short of this,
    it is no answer for the defendant to say that he would not have done what he
    did had he been sober, provided always that whatever element of intent is
    required by the offence is proved to have been present. As was said in Reg.
    v. Sheehan
    [1975] 1 W.L.R. 739, 744c, "a drunken intent is still an intent".
    As to proof of intent, it appears that at least in some instances self-induced
    intoxication can be taken into account as part of the evidence from which the
    jury draws its conclusions; but that in others it cannot. I express the matter

    - 11 -

    in this guarded way because it has not yet been decisively established whether
    for this purpose there is a line to be drawn between offences of "specific" and
    of "basic" intent. That in at least some cases a defendant cannot say that he
    was so drunk that he could not form the required intent is however clear
    enough. Why is this so? The answer must I believe be the same as that given
    in other common law jurisdictions: namely that such evidence is excluded as
    a matter of policy. As Mason J. put the matter in The Queen v. O'Connor
    (1979-1980) 146 C.L.R. 64. 110:

    .

    ". . . the view is taken that the act charged is voluntary
    notwithstanding that it might not be ordinarily considered so by reason
    of the condition of the perpetrator, because his condition proceeds
    from a voluntary choice made by him. These cases therefore
    constitute an exception to the general rule of criminal responsibility."

    There remains the question by what reasoning the House put this policy into
    effect. As I understand it two different rationalisations were adopted. First
    that the absence of the necessary consent is cured by treating the intentional
    drunkenness (or more accurately, since it is only in the minority of cases that
    the drinker sets out to make himself drunk, the intentional taking of drink
    without regard to us possible effects) as a substitute for the mental element
    ordinarily required by the offence. The intent is transferred from the taking
    of drink to the commission of the prohibited act. The second rationalisation
    is that the defendant cannot be heard to rely on the absence of the mental
    element when it is absent because of his own voluntary acts. Borrowing an
    expression from a far distant field it may be said that the defendant is
    estopped from relying on his self-induced incapacity.

    Your Lordships are not required to decide how these two explanations
    stand up to attack, for they are not attacked here. The task is only to place
    them in the context of an intoxication which is not voluntary. Taking first the
    concept of transferred intent, if the intoxication was not the result of an act
    done with an informed will there is no intent which can be transferred to the
    prohibited act, so as to fill the gap in the offence. As regards the "estoppel"
    there is no reason why the law should preclude the defendant from relying on
    a mental condition which he had not deliberately brought about. Thus, once
    the involuntary nature of the intoxication is added the two theories of
    Majewski fall away, and the position reverts to what it would have been if
    Majewski had not been decided, namely that the offence is not made out if the
    defendant was so intoxicated that he could not form an intent. Thus, where
    the intoxication is voluntary Majewski does not subtract the defence of absence
    of intent: but there is nothing in Majewski to suggest that where intent is
    proved a voluntary intoxication adds a further defence.

    My Lords, in the absence of guidance from English authorities it is
    useful to enquire how other common law jurisdictions have addressed the
    same problem. I begin with two decisions of the High Court of Justiciary,
    neither of which was cited to the Court of Appeal. The reasoning of the High

    - 12 -

    Court cannot be applied directly to the present case, since the law of Scotland
    concerning the mental element of crime and the effect on it of a disturbance
    of the defendant's mental condition is not precisely the same as that which
    prevails in England. Nevertheless the closely-reasoned judgments contain
    much the most extensive treatment of the problem in any of the materials
    before the House, and if read with appropriate caution give valuable guidance
    both on general principle and on the solution to the particular problem in
    hand.

    The first is Ross v. H.M. Advocate 1991 SLT 564. The defendant
    was charged with offences of attempted murder, malicious damage and
    aggravated assault. He had been drinking lager beer from a can. Unknown
    to him there had been inserted by someone else a quantity of temazepam and
    LSD. Within a short while he began to scream continuously and to lunge
    about in all directions with a knife. Various complete strangers were
    seriously injured by the knife, and it was not until the defendant had been
    taken to hospital and given an antidote that he was brought under control.
    The argument for the defendant at the trial was that the effect of the ingestion
    of these drugs was to deprive him of his self control to such an extent that he
    was incapable of mens rea, and that it should be left to the jury to consider
    whether or not they should acquit him on this ground. The trial judge took
    the view that he was bound by the decision in H.M. Advocate v. Cunningham
    1963 S.L.T 345 and directed that the evidence about the defendant's mental
    state could not result in an acquittal. For present purposes it is not necessary
    to summarise the Court's treatment of Cunningham and its opinions on the
    questions of insanity and voluntary intoxication, although the law as stated by
    the Lord Justice-General (Lord Hope) differs little, if at all, from that which
    prevails in England. What matters here is that the court treated the case as
    one where the accused committed the acts with which he was charged while
    he was not conscious of what he was doing, and that he was in the state which
    had been described in some of the cases as non-insane automatism. On that
    basis his Lordship, in common with the four other learned judges, considered
    that the exclusion of the medical evidence was incorrect and that the
    conviction should be quashed. Since this decision was soon afterwards
    explained in Cardle v. Mulrainey 1992 S.L.T. 1152 by reference to facts
    much closer to the present it is sufficient to quote only briefly from some of
    the full judgments delivered.

    Per Lord Hope, at p. 569 D-F:

    "The discussion in Lord Justice-General Clyde's opinion [in
    Cunningham] at 1963 S.L.T. pp. 346-347 is directed
    principally to the question whether the categories of special
    defences should be extended to include what he saw as a new
    one which, although short of insanity, would lead to an
    acquittal. There is no discussion of the principle that mens rea
    is a necessary ingredient of any crime. The whole approach
    seems to be one directed to grounds of public policy. It is said

    - 13 -

    that to allow such a novel type of defence could lead to serious
    consequences so far as the safety of the public is concerned,
    and Lord Murray's approach is criticised on the ground that
    'To affirm or even extend that decision would lead to laxity
    and confusion in our criminal law which could do nothing but
    harm'. In my opinion these strictures are not justified in cases
    where the defence is based, as it was in Ritchie, on an inability
    to form mens rea due to some external factor which was
    outwith the accused's control and which he was not bound to
    foresee. I do not see why laxity or confusion should result if
    we were to recognise that, where the point is sufficiently put in
    issue, an accused should be acquitted if the jury are not
    satisfied that the Crown has proved mens rea. That would be
    entirely consistent with the principle that the onus rests
    throughout on the Crown. The requirements that the external
    factor must not be self induced, that it must be one which the
    accused was not bound to foresee, and that it must have
    resulted in a total alienation of reason amounting to a complete
    absence of self control, provide adequate safeguards against
    abuse."

    Per Lord Allanbridge. at p. 572 C-E:

    "In the present case the appellant alleged that unknown to him his can
    of lager had temazepam and a quantity of LSD squeezed into it with
    the result that he was deprived of his self control to such an extent that
    he was incapable of mens rea. If this in fact was the effect of the
    drugs and he was in such a mental condition that he was unable to
    form any intent - be it good or evil - then clearly he could not have the
    necessary mens rea to be guilty of a criminal offence.

    "In such a situation I agree that the case of Cunningham, along with
    the following cases of Clark and Carmichael, should now be overruled
    in so far as they conflict with the view that an accused will not have
    the necessary mens rea if his mind is so affected by a non-self-induced
    and unforeseeable factor that the result is a total loss of control over
    his actions which have led to the alleged crime charged being
    committed."

    Per Lord Weir, at p. 577 H-J:

    "In recognising the existence of a category of defence of the
    kind which we have been considering, it is important, in my
    view, to recognise the strict limits within which such a defence
    can be said to have validity. I agree that the necessary
    conditions are that at the time in question the accused must
    have been suffering from a total alienation of reason rendering
    him incapable of controlling or appreciating what he was doing,

    - 14 -


    that such alienation was caused by an external factor and that
    this factor was neither self induced nor one which he was
    bound to foresee. Anything short of this will not suffice and
    in the absence of evidence from which the necessary conclusion
    can be drawn it will be for the judge to direct the jury that such
    a defence is not open for consideration by them."

    Per Lord Brand, at pp. 577L-578A

    "I agree with the opinion of your Lordship in the chair. I agree, in
    particular, with your Lordship's statement that 'A verdict of acquittal
    would be an appropriate verdict if the jury are not satisfied beyond
    reasonable doubt as to the accused's ability to form the intention to
    commit the crime with which he is charged.'"

    I now turn to Cardle v. Mulrainey, 1992 S.L.T. 1152, another case
    where the defendant drank lager into which a third party had introduced
    amphetamine. Afterwards he tried but failed to start vehicles belonging to
    others with the intention of taking them away. He also took some property
    from one of the vehicles. In due course he was arrested and tried. The
    sheriff acquitted him. The procurator fiscal appealed and the sheriff stated a
    case, in the course of which he found that (p. 1154):

    "(16) The respondent was aware of his actions in the early hours of
    29 March 1991. He was aware that these actions were wrong, in so
    far as they comprised the conduct of the respondent found to be
    criminal herein. The respondent's ability to reason the consequences
    of his actions to himself was affected by his ingestion of the drug
    amphetamine. He was unable to take account of the fact that they
    were criminal in character by reason of his ingestion of amphetamine.
    The respondent was unable to refrain from these criminal actions by
    reason of his ingestion of the drug amphetamine."

    In a note annexed to the special case the learned sheriff based his decision on
    Ross and also on the definition of insanity given in H.M. Advocate v. Kidd
    1960 SLT 82. He added, at p. 1158:

    "Plainly [the defendant's] whole ability to reason was not affected. He
    was able apparently to form an intention to carry out acts of a criminal
    nature and also appears to have realised they were in some way
    wrong. What he could not do was complete the reasoning process,
    take account of his knowledge that the acts were wrong and thus stop
    himself from doing the acts."

    On these facts the High Court allowed the appeal and remitted the case
    to the sheriff. The opinion of the court was delivered by the Lord
    Justice-General (Lord Hope). At p. 1160 of the report we find the following
    passage:

    - 15 -

    "Where, as in the present case, the accused knew what he was
    doing and was aware of the nature and quality of his acts and
    that what he was doing was wrong, he cannot be said to be
    suffering from some total alienation of reason in regard to the
    crime with which he is charged which the defence requires.
    The sheriff found in finding 16 that the respondent's ability to
    reason the consequences of his actions to himself was affected
    by his ingestion of the drug. The finding narrates that he was
    unable to take account in his actions of the fact that they were
    criminal in character and to refrain from them. But this
    inability to exert self control, which the sheriff has described
    as an inability to complete the reasoning process, must be
    distinguished from the essential requirement that there should
    be a total alienation of the accused's mental faculties of
    reasoning and of understanding what he is doing. As in the
    case of provocation, which provides another example of a
    stimulus resulting in a loss of self control at the time of the act,
    this may mitigate the offence but it cannot be held to justify an
    acquittal on the ground that there is an absence of mens rea."

    Then, after a discussion of H.M. Advocate v. Kidd 1960 SLT 82 and
    Brennan v. H.M. Advocate 1977 SLT 151 the Court continued:

    "It is clear therefore that not every weakness or aberration of the mind
    will amount to insanity. So it is in the case of the defence with which
    the decision in Ross was concerned. Not every weakness or aberration
    induced by the external factor will provide the defence. Hence the
    insistence in Ross on a total alienation of reason in relation to the
    crime charged. This is necessary in order to distinguish the condition
    from other conditions which may be regarded at best as merely
    mitigating the offence. What will amount to a total alienation of
    reason, or as was said in Ross, 1991 SLT 564, 572A, a total loss
    of control of the accused's actions in regard to the crime with which
    he is charged, must be a question of fact in each case. But so far as
    the present case is concerned the sheriff has made express findings in
    regard to several of the crimes with which the respondent was charged
    that he intended to do what he did. There are findings that he intended
    to start the motor vehicles, steal them and drive them away. In the
    light of these findings the sheriff's conclusion that the respondent's
    ability to reason the consequences of his actions to himself was
    affected by his ingestion of the drug and that he was unable to refrain
    from them was relevant at best only to mitigation. He should have
    held that the respondent's reason in relation to the crimes charged was
    not totally alienated and that he did not have a proper basis for the
    defence."

    My Lords, making due allowance for the differences between the laws
    of the two jurisdictions these cases are clear authority against the proposition

    - 16-

    that mere disinhibition is sufficient to found a defence. As regards other
    common law jurisdictions very little was cited from the Commonwealth, and
    indeed the rejection in some countries (such as Australia) of the approach
    exemplified in Majewski [1977] AC 443 would make it hard to deploy the
    decisions of those courts in an English context. One case was cited from
    Canada, namely The Queen v. King [1962] S.C.R. 746. Without appreciating
    the risk the defendant drove a car whilst suffering from the after-effects of a
    medicinal drug which induced a state in which he might suddenly be unable
    to know what he was doing. The Supreme Court upheld an appeal against a
    conviction of driving while his ability to drive was impaired. At first sight
    some parts of the judgments appear to support the present respondent's
    argument, but on closer study I am satisfied that they were directed only to
    a situation in which, without his own fault, the defendant lacked the mental
    element to make his driving an offence; and it was with the identification of
    the mental element that the decision was primarily concerned. This is entirely
    consistent with the view expressed above that in the absence of intention the
    involuntary nature of the intoxication would take a case such as the present
    outside Majewski and enable the defendant to rely on the absence of the
    necessary mental element. But there is nothing in The Queen v. King to say
    that if. as here, the necessary mental element is proved the fact that the
    defendant was in a lesser degree under the influence of a drug entitled him to
    an acquittal.

    Turning to the United States, since questions of drunkenness and
    criminal intent will usually arise in State rather than Federal jurisdictions the
    decisions are likely to be numerous and not necessarily unanimous. To be
    useful they would need to be fully marshalled and then carefully scrutinised
    to eliminate those concerned with voluntary intoxication, with lack of the
    necessary mental element or. like the sole Federal case referred to. Perkins
    v
    . United States (1915) 228 Fed. R. 408. with temporary insanity. No such
    exercise was attempted in argument. There was however reference to the
    Model Penal Code, cited in the judgment of the Court of Appeal. This Code,
    which was the origin of legislation in many individual States, provides in its
    final version (1985) as follows:

    "Section 2.08. Intoxication.

    (1) Except as provided in subsection (4) of this Section,
    intoxication of the actor is not a defense unless it
    negatives an element of the offense.

    . . . .


    (4) Intoxication that (a) is not self-induced or (b) is
    pathological is an affirmative defense if by
    reason of such intoxication the actor at the time
    of his conduct lacks substantial capacity either
    to appreciate its criminality [wrongfulness] or to

    - 17 -

    conform his conduct to the requirements of the
    law."

    At first sight the concluding words of subsection 4 give cause for thought, but
    when reference is made to the extensive and illuminating commentary on the
    whole of section 2.08 (American Law Institute, Model Penal Code and
    Commentaries, Part 1)
    the following is found (p. 363):

    "Subsection (4) details two instances when intoxication can be
    offered as an excuse for crime. The first includes intoxication
    that is not self-induced, as was said to be the case under the
    prior law. Such intoxication, however, excuses only if the
    resulting incapacitation is as extreme as that which would
    establish irresponsibility had it resulted from mental disease.
    The actor whose personality is altered by intoxication to a
    lesser degree is treated like others who may have difficulty in
    conforming to the law and yet are held responsible for
    violations."

    A footnote to the second sentence of this commentary reads: "While there are
    many dicta saying that involuntary intoxication is a defense, no reported case
    has been found in which the defense has been successfully asserted. [Citation
    of authorities]. The courts have been exceedingly restrictive in determining
    what pressures overcome the will of the actor."

    My Lords, I cannot find in this material any sufficient grounds for
    holding that the defence relied upon is already established by the common
    law. any more than it can be derived from general principles. Accordingly
    I agree with the analysis of Professor Griew. Archbold News, 28 May 1993,

    pp. 4-5:

    "What has happened is that the Court of Appeal has recognised
    a new defence to criminal charges in the nature of an
    exculpatory excuse. It is precisely because the defendant acted
    in the prohibited way with the intent (the mens rea) required by
    the definition of the offence that he needs this defence."

    There is thus a crucial difference between the issue raised by the
    second line of argument and that now under scrutiny. As to the former, the
    Law Commission aptly said, in Consultation Paper No. 127 (1993) on
    Intoxication and Criminal Liability, para. 1.12:

    "The person who commits criminal acts while he is intoxicated, at
    least when he is voluntarily so intoxicated, does not therefore appeal
    to excuse; but rather raises the prior question of whether, because of
    his intoxicated state, he can be proved to have been in the (subjective)
    state of mind necessary for liability. Issues of intoxication are, thus,
    intimately bound up with the prosecution's task of proving the primary

    - 18 -

    guilt of the defendant: that he did indeed do the act prohibited by the
    definition of the offence with the relevant state of mind."

    By contrast, the excuse of involuntary intoxication, if it exists, is
    superimposed on the ordinary law of intent.

    To recognise a new defence of this type would be a bold step. The
    common law defences of duress and necessity (if it exists) and the limited
    common law defence of provocation are all very old. Since counsel for the
    appellant was not disposed to emphasise this aspect of the appeal the subject
    was not explored in argument, but I suspect that the recognition of a new
    general defence at common law has not happened in modern times.
    Nevertheless, the criminal law must not stand still, and if it is both practical
    and just to take this step, and if judicial decision rather than legislation is the
    proper medium, then the courts should not be deterred simply by the novelty
    of it. So one must turn to consider just what defence is now to be created.
    The judgment under appeal implies five characteristics:

    1. The defence applies to all offences, except perhaps to
      absolute offences. It therefore differs from other defences such
      as provocation and diminished responsibility.

    2. The defence is a complete answer to a criminal charge.
      If not rebutted it leads to an outright acquittal, and unlike
      provocation and diminished responsibility leaves no room for
      conviction and punishment for a lesser offence. The
      underlying assumption must be that the defendant is entirely
      free from culpability.

    3. It may be that the defence applies only where the
      intoxication is due to the wrongful act of another and therefore
      affords no excuse when, in circumstances of no greater
      culpability, the defendant has intoxicated himself by mistake
      (such as by short-sightedly taking the wrong drug). I say that
      this may be so, because it is not clear whether, since the
      doctrine was founded in part on the dictum of Park J., the
      "fraud or stratagem of another" is an essential element, or
      whether this was taken as an example of a wider principle.

    4. The burden of disproving the defence is on the
      prosecution.

    5. The defence is subjective in nature. Whereas
      provocation and self-defence are judged by the reactions of
      the reasonable person in the situation of the defendant, here the
      only question is whether this particular defendant's inhibitions
      were overcome by the effect of the drug. The more susceptible

    - 19 -

    the defendant to the kind of temptation presented, the easier the
    defence to establish.

    My Lords, since the existence or otherwise of the defence has been
    treated in argument at all stages as a matter of existing law the Court of
    Appeal had no occasion to consider the practical and theoretical implications
    of recognising this new defence at common law, and we do not have the
    benefit of its views. In their absence, I can only say that the defence appears
    to run into difficulties at every turn: In point of theory, it would be necessary
    to reconcile a defence of irresistible impulse derived from a combination of
    innate drives and external disinhibition with the rule that irresistible impulse
    of a solely internal origin (not necessarily any more the fault of the offender)
    does not excuse. Equally, the state of mind which founds the defence
    superficially resembles a state of diminished responsibility, whereas the effect
    in law is quite different. It may well be that the resemblance is misleading,
    but these and similar problems must be solved before the bounds of a new
    defence can be set.

    On the practical side there are serious problems. Before the jury could
    form an opinion on whether the drug might have turned the scale witnesses
    would have to give a picture of the defendant's personality and susceptibilities,
    for without it the crucial effect of the drug could not be assessed:
    pharmacologists would be required to describe the potentially disinhibiting
    effect of a range of drugs whose identity would, if the present case is anything
    to go by. be unknown: psychologists and psychiatrists would express opinions.
    not on the matters of psychopathology familiar to those working within the
    framework of the Mental Health Acts but on altogether more elusive concepts.
    No doubt as time passed those concerned could work out techniques to deal
    with these questions. Much more significant would be the opportunities for
    a spurious defence. Even in the field of road traffic the "spiked" drink as a
    special reason for not disqualifying from driving is a regular feature.
    Transferring this to the entire range of criminal offences is a disturbing
    prospect. The defendant would only have to assert, and support by the
    evidence of well-wishers, that he was not the sort of person to have done this
    kind of thing, and to suggest an occasion when by some means a drug might
    have been administered to him for the jury be sent straight to the question of
    a possible disinhibition. The judge would direct the jurors that if they felt any
    legitimate doubt on the matter - and by its nature the defence would be one
    which the prosecution would often have no means to rebut - they must acquit
    outright, all questions of intent, mental capacity and the like being at this
    stage irrelevant.

    My Lords, the fact that a new doctrine may require adjustment of
    existing principles to accommodate it, and may require those involved in
    criminal trials to learn new techniques, is not of course a ground for refusing
    to adopt it. if that is what the interests of justice require. Here, however,
    justice makes no such demands, for the interplay between the wrong done to
    the victim, the individual characteristics and frailties of the defendant, and the

    - 20 -

    pharmacological effects of whatever drug may be potentially involved can be
    far better recognised by a tailored choice from the continuum of sentences
    available to the judge than by the application of a single Yea-or-Nay jury
    decision. To this, there is one exception. The mandatory life sentence for
    murder, at least as present administered, leaves no room for the trial judge to
    put into practice an informed and sympathetic assessment of the kind just
    described. It is for this reason alone that I have felt any hesitation about
    rejecting the argument for the respondent. In the end however I have
    concluded that this is not a sufficient reason to force on the theory and
    practice of the criminal law an exception which would otherwise be
    unjustified. For many years mandatory sentences have impelled juries to
    return merciful but false verdicts, and have stimulated the creation of partial
    defences such as provocation and diminished responsibility whose lack of a
    proper foundation has made them hard to apply in practice. I do not think it
    right that the law should be further distorted simply because of this anomalous
    relic of the history of the criminal law.

    All this being said. I suggest to your Lordships that the existing work
    of the Law Commission in the field of intoxication could usefully be enlarged
    to comprise questions of the type raised by this appeal, and to see whether by
    statute a merciful, realistic and intellectually sustainable statutory solution
    could be newly created. For the present, however. I consider that no such
    regime now exists, and that the common law is not a suitable vehicle for
    creating one.

    For these reasons I consider that both the ruling and the directive of
    the learned judge were correct. Accordingly I would answer the first certified
    question in the negative and would allow the appeal. This is not the end of
    the matter. There remain certain grounds of appeal which, given the
    conclusion reached on the broader question, were not dealt with in the court
    below. I propose that your Lordships should remit them for consideration by
    the Court of Appeal, pursuant to the practice recently endorsed in Reg. v.
    Mandair
    [1994] 2 W.L.R. 700. Also a quite separate appeal against sentence
    which was not before the House will fall to be considered if the occasion
    demands.

    LORD SLYNN OF HADLEY

    My Lords,

    For the reasons given by my noble and learned friend Lord Mustill.
    whose speech I have had the advantage of reading in draft. I too would allow
    this appeal and remit the matter as he proposes.

    - 21 -


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