Sexual assault and involuntary intoxication of the accused become central to the question of defence when the mens rea remains equally present despite the influences of a third party.

In this House of Lords appeal, the idea that perhaps existing criminal law has overlooked the subjective effects of those liable for acts against the person, is explored before deciding how best to answer it.

In this case, the actions of two men were complicit to the sexual assault and degradation of a fifteen year-old boy, while under the influence of a powerful sedative.

The background to the matter stemmed from a business arrangement gone sour, and that left the respondent victim to the subterfuge of his colleague, who unknown to him, was acting on behalf of the slighted party.

Having been paid to place the respondent in a compromising position, the man had arranged for them to invite the teenager to a room, before using a number of drugs to induce the victim into a state of unconsciousness, whereupon the respondent engaged in a variety of lewd and sexually abusive acts as his colleague secretly filmed and took pictures of his assault upon the boy.

When the images and recorded film were obtained by the police, the two men were taken to court and charged with indecent assault.

Upon conviction, the the respondent pleaded a defence of involuntary intoxication, on grounds that the co-defendant had also plied him with a similar drug, and that by extension, his actions upon the victim were as a result of diminished responsibility.

It was on this premise that the respondent pleaded his innocence and sought acquittal on the fact that as previous case law provided, involuntary intoxication was sufficient enough to remove the contributory effect of mens rea; and so while the intention to carry out an indecent sexual act was latent within the respondent, it was only manifested through the actions of another, and not by conscious choice.

Precedent for a defence under voluntary intoxication rested upon the outcome of R v Majewski, where the court found that the informed decision to drink excessive amounts of alcohol was not suffice to exemption from the consequences of damage caused afterwards.

However, where a defendant has lost conscious reasoning through the act of another, it was held that mens rea could not logically exist as the decision to act unlawfully was not one of full cognisance but diminished thinking.

In this instance, the capability to sexually abuse minors was knowingly present within the respondent, and so reliance upon an unwittingly ingested drug prior to the act, reduced the foundation of that defence when used as a means of acquittal.

Having subsequently been challenged in the Court Appeal, the conviction was quashed, after which the Crown appealed to the House for reasons of public interest.

The question raised was whether a predilection for young boys negated the defence of involuntary intoxication; and if so, whether it was for the prosecution to establish, or that of the defendant.

Having traced the legal position from as far back as 1830, the idea that temporary insanity or ‘lunacy’ could provide sufficient defence to a criminal act was rebuked when it appeared that certain generosities were afforded those accused, albeit in circumstances contrary to their normal course of behaviour.

In this instance, there was clear evidence that the respondent was predisposed to engaging in deviant sexual acts, and so regardless of what volume or form of intoxication preceded the acts, it was not such that became the source of that unlawfulness, but rather the mindset and neurology of the accused at the point of origin when establishing mens rea.

For that reason, the House denied that the current boundaries of involuntary intoxication defence were to extend further than as before, and that in light of that fact the Crown’s appeal was to be upheld, while going further to remind the parties that:

“[I]t 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.”