Harm and Culpability

By A. P. Simester; A. T. H. Smith | Go to book overview

6
Making Excuses

G. R. Sullivan

A man has been invited to a flat to discuss some business matters, so he has been led to believe. Once there he is given coffee laced, though he does not know it, with soporific drugs. He is invited to a bedroom where a 15-yearold boy, also drugged, lies unconscious on a bed. The man, a homosexual with pædophiliac predilections, performs non-penetrative sexual acts on the boy. Subsequently, he is charged with indecent assault -- Kingston.1

The drugs at most produced a state of disinhibition.2 It was not claimed on behalf of the defendant that he was unaware of what he was doing or that he was compelled to do it. The most he could claim by way of excuse was that, had he not been slipped the drugs, he would not have acted as he did.3 For the trial judge4 this was not enough -- 'a drugged intent is still an intent'. The Court of Appeal saw it differently. An intent formed in such circumstances was not to be regarded as a 'criminal' intent and accordingly the conviction was quashed.

The House of Lords regarded this division between the two courts as raising 'a general issue of fundamental importance as well as a more technical question on the law of intoxication'.5 That issue was whether the absence of blame entailed the absence of mens rea. Lord Mustill, giving the judgment of the House, asserted that mens rea was a non-evaluative term. If the mental element specified in the definition of the crime was present then mens rea was present, the term meaning nothing more than the mental element for the

____________________
1
[ 1994] 3 All ER 353 (HL); [ 1993] 4 All ER 373 (CA).
2
The actual effects which the drugs produced were not determined at trial. The matter was not pursued consequent upon a ruling by the trial judge that involuntary intoxication did not give rise to a discrete defence.
3
There was evidence that the defendant had been slipped three kinds of soporific drug with properties which would affect judgment, consciousness, and memory. None of the medical witnesses testified that any of these drugs would give rise to compelled behaviour.
4
Potts J.
5
[ 1994] 3 All ER 353 at 372.
I am much indebted to Andrew Simester for many valuable suggestions. Thanks are due, too, to Carl Emery, Jeremy Horder, Harvey Teff, Colin Warbrick, and William Wilson. The views expressed are the author's.

-131-

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