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, 9–35.CrossRefGoogle ScholarPubMed

³ The ensuing discussion is inspired by three sources in particular: Williams, Bernard, “Voluntary Acts and Responsible Agents” (1990) 10 O.J.L.S. 1Google Scholar; Gardner, J., “The Activity Condition in English Law” (1991) Recht und Moral 67Google Scholar; 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.CrossRefGoogle Scholar

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.CrossRefGoogle Scholar

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. 89–90.Google Scholar

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.Google Scholar

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.Google Scholar

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. 219–220.Google Scholar

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

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

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.Google Scholar

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.”Google Scholar

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 viewGoogle Scholar, see McCord, R., “The English and American History of Voluntary Intoxication to Negate Mens Rea” (1990) 11 Journal of Legal History 372–395.CrossRefGoogle Scholar

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.Google Scholar

²⁷ R. v. Davies (1881) 14 Cox C.C. 563, per Stephen, J., and R. v. Baines, The Times, 25 01 1886Google Scholar, 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.Google Scholar

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.Google Scholar

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”.Google Scholar

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. 198–201.Google Scholar

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

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.Google Scholar

³⁸ Erasmus, Darwin, Zoonomia (London 1794), vol. i, pp. 250–251Google Scholar, cited by Porter, , op. cit. note 34 ante, p. 197.Google Scholar

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.Google Scholar

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

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

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

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.Google Scholar

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;CrossRefGoogle ScholarTiffany, and Tiffany, , “Nosological Objections to the Criminal Defence of Pathological Intoxication: What do the Doubters Doubt?” (1990) 13 Journal of Law and Psychiatry, 49.CrossRefGoogle Scholar

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.Google Scholar

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.Google Scholar

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

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. 102–106, 172–178.Google Scholar

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.Google Scholar

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, 42–46.Google Scholar