Skip to main content Accessibility help

Pleading Involuntary Lack of Capacity

  • Jeremy Horder


The possibility that defendants may plead that, through no fault of their own, they lacked the capacity for free agency at the time of the alleged offence, raises the most fundamental issues of principle in the criminal law. The recent decision in R. v. T gives fresh impetus to a full discussion of those issues. In the course of this article we will see that the law is ill-equipped to deal with the full variety of kinds of involuntary lack of capacity, as I shall call it, that ought wholly or partially to excuse. In this the law is hampered by the partial and ill-defined character of its understanding of how people identify harmful conduct for which they were (not) responsible, and by the related fact that it can deal with involuntary lack of capacity only through the blunt instrument of acquittal on the grounds of insane or non-insane automatism. Through enriching the theoretical underpinnings of the law's conception of the scope for pleas of involuntary lack of capacity, and giving the judiciary a more sophisticated armoury of remedies to deal with them, it is in fact possible to sift out the deserving from the undeserving amongst such pleas in accordance with workable principles.



Hide All

1 [1990] Crim.L.R. 256 (Snaresbrook Crown Court: Southan J.) The facts and the decision will be discussed fully below.

2 For the distinction between criteria for agency being manifested and being met, see Shiner, R.,“Intoxication and Responsibility” (1990) 13 International Journal of Law and Psychiatry, 935.

3 The ensuing discussion is inspired by three sources in particular: Williams, Bernard, “Voluntary Acts and Responsible Agents” (1990) 10 O.J.L.S. 1; Gardner, J., “The Activity Condition in English Law” (1991) Recht und Moral 67; Watson, G., “Free Agency” (1975) Journal of Philosophy vol. Ixxii, 205. It should not be assumed that I am necessarily trying to expound any of these authors' views here.

4 As in the case of vicarious liability.

5 Bratty v. A.G. for Northern Ireland [1963) AC. 386, 409 per Lord Denning.

6 “Intention and Side-Effects”, in Frey, R. and Morris, C., Liability and Responsibility (Cambridge 1991), p. 32.

7 See e.g. R. v. Court [1989] A.C. 28, where when asked why he had spanked a young girl the defendant said: “I don't know; buttock fetish”. Such a person is responsible for his voluntary conduct, even though it may have been undesired and (to him) inexplicable, because he is responsible for the moral character to which the conduct can be related. The limits of responsibility for subconscious motivation should be noted. Voluntary conduct is a precondition of individual criminal responsibility for the causing of harm, whatever the nature of one's motivations. So the claim that harm caused during somnambulism was caused by a subconscious motivation of hatred against the person harmed has no relevance to criminal responsibility. See King v. Cogdon (unrep.), discussed by Clarkson, and Keating, Criminal Law: Text and Materials (lsted. 1984), pp. 8990.

8 It is, of course, notoriously difficult to rid oneself of annoying subrationally motivated habits, such as fidgeting, “mindless” whistling and so on. This fact should not be confused with a lack of evaluative control over such conduct. The difficulty stems not from the kind of lack of evaluative control characteristic of, say, addiction, but from the fact that the sheer triviality of such habits, and the unintcntionality (but not involuntarincss) of their manifestation, means that I am constantly liable to indulge in them without stopping to think.

9 See R. v. Byrne [1960] 2 OB. 396.

10 Ibid., 403.

11 See White, S., “Offences of Basic and Specific Intent” [1989] Crim.L.R. 271, for a more careful analysis of this issue than is usually found in any of the textbooks.

12 See R.v. Sheehan [1975] 1 W.L.R. 739.

13 The inclusion of the qualification “at the relevant time” is significant here, of course, because in some cases–such as where defendants deliberately make themselves the unconscious instruments of another's destruction–it may be appropriate to pinpoint mens rea as present at some earlier time than the commission of the aclus reus: see Smith, and Hogan, . Criminal Law (6th ed.), pp. 219220.

14 See R. v. Majewski [1977] A.C. 443, and the academic controversy it sparked off: esp.Dashwood, A., “Logic and the Lords in Majewski” [1977] Crim.L.R. 352; Ward, A., “Making Sense of Self-Induced Intoxication” [1986] C.L.J. 247, and now Shiner, R., “Intoxication and Responsibility” (1990) 13 International Journal of Law and Psychiatry 9.

15 Textbook of Criminal Law (2nd ed.), p. 464.

16 On the link between intoxication and diminished responsibility, see R. v. Tandy (1988) 87 Cr.App.Rep. 45.

17 For a very useful history of intoxication as a defence, see Singh, , “History of the Defence of Drunkenness in English Criminal Law” (1933) 49 L.Q.R. 528. I draw extensively although not exclusively on his sources in what follows in this section.

18 “Crude”, not because it is Aristotle's view, but because it takes his views out of context.

19 Nichomachean Ethics, Book 111, ch. 5.

20 (1550) 1 Plowd. 1. See also Coke, , On Littleton, 247a (describing kinds of non compos mentis): “He that by his own vitious act for a time depriveth himselfe of his memorie and understanding, as he that is drunken… shall [be] give[n] no privilege or benefit… a drunkard is voluntarius daemon.”

21 (1550) 1 Plowd. 1, 19.

22 Note, though, that Sergeant Pollard does not say that voluntariness is an aggravation of the offence; it is just, as is the case now in crimes of basic intent, that no advantage is to be gained by pleading voluntary intoxication. It could be, however, that in certain cases penalties would be increased in cases where offences were committed by drunkards. See Beverley's Case (1603) 4 Co.Rep. 125. For a contrary view, see McCord, R., “The English and American History of Voluntary Intoxication to Negate Mens Rea” (1990) 11 Journal of Legal History 372395.

23 See Hale 1 P.C. 32.

24 One of his examples of how one can become involuntarily intoxicated may be an interesting window on 17th century life. Apart from the obvious example of an enemy spiking one's food or drink. Hale mentions neglect on the part of a physician. This seems an eccentric example, until one remembers that Hale's society was plagued by “Mountebanks, Quicksalvers [and] Empiricks” as well as grasping Doctors who, as Burton said in his Anatomy of Melancholy (1621), ii, sec.l, “to get a fee… will give Physick to everyone that comes … most part they prescribe too much Physick and tire out [the patients'] bodies with continual potions to no purpose … to stir up the humour and not to purge it”.

25 1 P.C.32. In the 17th century, “phrenzy” was sometimes technically differentiated from madness on the grounds that the former was physically associated with fevcrishness, whereas the latter was not, although they were both forms of insanity. It is not clear whether Hale means to draw on this distinction, although the fact that he speaks of “phrenzics” as being induced by drugs such as “aconitum” (wolf's-bane) or “mix vomica” (a poisonous nut) suggests that he is speaking of “phrenzy” in its technically distinct sense.

26 For a case that is, in this regard, a direct Aristotelian descendant of Reniger v. Fogossa, see R. v. Meakin (1836) 7 C. & P. 297: “If a man chooses to get drunk, it is his own voluntary act: it is very different from a madness which is not caused by the act of any person. The voluntary species of madness which it is in a party's power to abstain from, he must answer for.” See also Blackstone, 4 Comm. 26.

27 R. v. Davies (1881) 14 Cox C.C. 563, per Stephen, J., and R. v. Baines, The Times, 25 01 1886, per Day J. Consonant with the more subjectivist spirit of the times, voluntary intoxication was sometimes also permitted to be taken into account in deciding (a) whether killers had been provoked to lose their self-control: see e.g. R. v. Thomas (1837) 7 C. ' P. 817, and (b) whether defendants genuinely believed that they were (or their property was) under threat: Marshall's case (1830) 1 Lew. 76; R. v. Gamlen (1858) 1 F. & F. 90. These cases stand in marked contrast to later objectivist approaches to the same issues, respectively in R. v. McCarthy [1954] 2 OB. 105, and R. v. O'Grady[1987] Q.B. 995.

28 (1838) 8 C. & P. 541,546.

29 (1849) 4 Cox C.C. 55. See also R. v. Stopford 11 Cox C.C. 643, and R. v. Moore (1852) 3 C. & K. 319.

30 [1909] K.B. 895.

31 For an early—perhaps the first—example of a direction to the jury that stresses the importance of whether the defendant simply did not form the requisite intent, see R. v. Dogherty (1887) 16 Cox C.C. 306, per Stephen J.: “you [the jury] may look at the fact that a man was in drink in considering whether he formed the intention necessary to commit the crime”.

32 Echoing the wording of t he relatively recently refurbished rules on insanity pleas, we find Day J. in R. v. Baines (loc. cit. note 27 ante) saying, “I have ruled that if a man were in such a state of intoxication that he d id not know the nature of his act, or that his act was wrongful, his act would be excusable”. The defendant in that case was suffering from delerium tremens, and it may have been that Day J. was referring in a short-hand way to Hale's view that when intoxication causes insanity, a defendant should be excused simply because he is insane; but Singh (loc. cit. note 17 ante, p. 542) takes Day J. to be making a point of general application about the effect of intoxication, and it certainly fits with such broader statements as that of Darling J. in R. v. Meade (text at note 30 ante) that what matters is whether intoxication led the defendant to be unaware that what he was doing was dangerous.

33 (1870) 19 Mich. 401,418.

34 See Porter, R., Mind-Forg'd Manacles-A History of Madness in England from the Restoration to the Regency (1987), at pp. 198201.

35 Burton, , Anatomy of Melancholy (1621), pt.i, sec.i.

36 4 Jac. c.5. The punishment for this “odious and loathsome sin” was a fine of 5 shillings or committal to the stocks for 6 hours.

37 See Porter, , op. cit. note 34 ante, ch. 4; see also Emile Zola's L'Assommoir.

38 Erasmus, Darwin, Zoonomia (London 1794), vol. i, pp. 250251, cited by Porter, , op. cit. note 34 ante, p. 197.

39 DrDonald, Dalrymple, in his resolution to Parliament in 1870 cited by Hood and Radzinowicz, The Emergence of Penal Policy (Oxford 1990), p. 289 n.4.

40 Trotter, T., An Essay, Medical, Philosophical, and Chemical, on Drunkenness, and its Effects on the Human Body (London 1804), 5, cited by Porter, , op. cit. note 34 ante, p. 199.

41 The phrases “deadly fever” and “derangement of the will” are respectively those of Buchan, William in his Domestic Medicine (London, 1776), p. 101, and of Rush, Benjamin, from his An Inquiry into the Effects of Spiritous Liquors on the Human Body (Edinburgh 1791), cited by Porter, , op. cit. note 34 ante, p. 199.

42 A Treatise on Madness (London 1758), p. 53.

43 See e.g. R. v. Meade [1909] 1 K.B. 895, per Lord Coleridge J.: “Insanity is not pleaded here, but … if the mind at the time is so obscured by drink, if the reason is dethroned and the man is incapable of forming the intent, it justifies the reduction of the charge from murder to manslaughter.” On the effect of intoxication on powers of reason, see also the civil case of Cooke v. Clayworth (1811) 18 Ves.16, where Sir William Grant speaks of: “that extreme state of intoxication, that deprives a man of his reason”.

44 This passage combines two directions. As far as “deterred him” the direction is that of Stephen J. in R. v. Davies (1881) 14 Cox 563. The remainder of the passage is from a direction to the jury given by Bray J. in R. v. Fryer (1915) 25 Cox 405. Both of these cases are cited by Walker, N., Crime and Insanity in England (Edinburgh 1968), p. 107 in a discussion of the fate of the “irresistible impulse” defence.

45 [1920] A.C. 479.

46 See [1920] A.C. 479, 498.

47 Ibid, at 501–502.

48 The authoritative modern affirmation that it is indeed only these two questions that matter, the voluntary agency and the blame questions, is to be found in the well-known dictum of Lord Denning in Bratty v. A.G. for Northern Ireland cited earlier, text at note 5 ante.

49 [1990] Crim.L.R. 256.

50 See e.g. Blair, , “The Medico-Legal Problems of Pathological Alcoholic Intoxication: An Illustrative Case” (1969) 9 Medicine Science and Law, 94;Tiffany, and Tiffany, , “Nosological Objections to the Criminal Defence of Pathological Intoxication: What do the Doubters Doubt?” (1990) 13 Journal of Law and Psychiatry, 49.

51 See e.g. R. v. Leslie Davies [1983] Crim.L.R. 741. In this case the defendant was in fact acquitted of burglary and theft after he claimed that his drink had been spiked; but the judge had ruled that involuntary intoxication would be no defence since a drunken intent is nonetheless an intent. Lack of capacity as a plea was ruled out through disapproval of a dictum in R. v. Pearson (1835) 2 Lewin 144 to the effect that “If a party be made drunk by strategem, or the fraud of another, he is not responsible”.

52 See e.g. the PMT homicide case of Anna Reynolds, discussed by Benn in the New Statesman, 7 December 1990.

53 [1978] R.T.R. 211, 216. For further discussion of this case, see MacKay, “Non-Organic Automatism–Some Recent Developments” [1980] Crim.L.R. 350. This article also contains useful discussion of Rabey (1980) 79 Dominion Law Reports 435 (see note 55 infra) and of other cases involving pleas of lack of capacity.

54 Consider also the tragic case of the brain-damaged rapist who was the subject of the lengthy litigation in Meah v. McCreamer (No. 1) [1985] 1 All E.R. 567.

55 This is perhaps the best justification for the guilty verdict in Rabey (1980) 79 Dominion Law Reports 435.

56 Cited by Walker, N., Crime and Insanity in England (Edinburgh 1968, vol. 1), p. 106.

57 See Wasik, M., “Partial Excuses in the Criminal Law” (1982) 45 M.L.R. 516.

58 The powers would thus be analogous to those now available when a defendant is acquitted on the grounds of insanity, by virtue of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, s. 5.

59 For an illuminating discussion of some of the issues, see Duff, R.A., Trials and Punishments (Cambridge 1986), pp. 102106, 172178.

60 See, for an example, the case discussed by Susanne, Dell (Murder into Manslaughter, Oxford, 1984, p. 24) of the youth brought up in a society riven by sectarian violence who claimed diminished responsibility having deliberately killed someone causing distress to his family. His claim was that his exposure to an abnormally violent society had meant that he had not developed a mature regard for the sanctity of life, and was thus suffering from an abnormality of mind amounting to diminished responsibility.

61 For the view that we are ordinarily responsible for our characters simply because we are constituted by our characters, see Moore, M., “Choice, Character and Excuse”, (1990) 7 Social Policy and Philosophy 29, 4246.

* Fellow and Tutor in Law, Worcester College Oxford.

Related content

Powered by UNSILO

Pleading Involuntary Lack of Capacity

  • Jeremy Horder


Full text views

Total number of HTML views: 0
Total number of PDF views: 0 *
Loading metrics...

Abstract views

Total abstract views: 0 *
Loading metrics...

* Views captured on Cambridge Core between <date>. This data will be updated every 24 hours.

Usage data cannot currently be displayed.