• In the case of R v Kingston [1995] 2 AC 355, it was established that even if the mens rea present at the offence was induced by voluntary intoxication, voluntary intoxication still shall not act as a defence. The mens rea was, either way, present.

Facts of R v Kingston [1995] 2 AC 355

  • Whilst drugged by a friend D, Kingston, assaulted an underage boy
  • The whole thing was a set up by the friend who recorded the assault
  • Judge at first instance directed the jury to convict where intention was shown, even if induced by the intoxication
  • D had paedophilic tendencies which admitted to, but argued he kept it under control, and it was due to the drugs that he could not thereby committing the offence
  • As such, the Court of Appeal quashed his conviction; this was appealed

Issues in R v Kingston [1995] 2 AC 355

  • Can one be convicted of an offence where the mens rea is only present due to intoxication?

Held by the House of Lords

Appeal allowed; the Court of Appeal decision was reversed, and the conviction was reinstated.

Lord Mustill

Recognising the differing reactions to the quashed conviction, Lord Mustill noted

  • “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 circumstances by mitigating the penalty which would otherwise be appropriate.” [363]

In the present case, there are 3 grounds for the D’s conviction to remain quashed [364]

  1. “his immunity flows from general principles of the criminal law”
  2. “this immunity is already established by a solid line of authority”
  3. “the court should, when faced with a new problem acknowledge the justice of the case and boldly create a new common law defence”

The general principle relied upon by the Court of Appeal had no legal basis:

  • “no such principle exists … 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.” [364]

In the case that the Court of Appeal had relied upon outcome 3, creating a new defence, Mustill L agreed with Professor Griew [375]

  • “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” [Archbold News, 28 May 1993, pp. 4-5]

Such defence would be problematic [376 – 367]:

  • “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 in itself excuse although it may be a symptom of a disease of the mind: Attorney-General for South Australia v. Brown [1960] A.C. 432. Equally, the state of mind which founds the defence superficially resembles a state of diminished responsibility, whereas the effect in law is quite different.
  • “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; … The defendant would only have to assert … 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 to 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.”