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.”


Intermittent delusions and moments of panic are obvious symptoms of repressed trauma, but in 1870 the diagnosis was quite different. When a testator suffering those very disturbances drafted his final will, the beneficiary passed soon afterwards, leaving their next-of-kin defending the right to inherit through intestacy when a claim of lunacy was used to challenge the validity of the will.

Known by many as a man of means, the deceased was prone to suffering immeasurable anxiety around a named individual, who even after his demise, was still considered by the testator to be haunting and molesting him in spirit as he had in life. This outlandish claim resulted in his being committed to the local lunatic asylum, before his eventual release and reintegration into the local community.

While his symptoms continued to a lesser degree, the testator was still regarded as somewhat insane by both the local doctor and parish clergyman, yet towards the end of his life he had made clear and concise arrangements with regard to the exactness of his will, the continued lease of owned property, and those he wished to attest to and benefit from, his legacy.

Upon his death in 1865, the will was executed as per prior instructions, whereupon his niece and sole beneficiary passed two years later, with no prepared will and absent of children; and so, at the point of litigation, the claimant argued that due to the testator’s susceptibility to psychological imbalances, the will was now invalid, and thus under the rules of intestacy the estate was due to the testator’s heir, and not the beneficiary’s half-brother.

When first heard, the court offered the opinion of a jury, who having heard the facts, agreed that the will was, despite any inconsistencies in the testator’s mental health, valid and duly executable.

With the court awarding so, the case was put before the Queen’s Bench, whereupon recent precedent was used to evaluate the contention raised.

As laid down in Smith v Tebbitt, the Court of Probate had previously ruled that:

“[A]ny degree of mental unsoundness, however slight, and however unconnected with the testamentary disposition in question, must be held fatal to the capacity of a testator.”

Smith v Tebbitt

However, in Greenwood v Greenwood Lord Kenyon had argued that:

“If he had a power of summoning up his mind, so as to know what his property was, and who those persons were that then were the objects of his bounty, then he was competent to make his will.”

Greenwood v Greenwood

While in Cartwright v Cartwright, Sir William Wynne had stipulated that:

“If a lunatic person, or one that is beside himself at some times, but not continually, makes his testament, and it is not known whether the same were made while he was of sound mind and memory or no, then, in case the testament be so conceived as thereby no argument of phrensy or folly can be gathered, it is to be presumed that the same was made during the time of his calm and clear intermissions…”

Cartwright v Cartwright

While adopting a supportive stance to those viewed above, Legrand du Saulle likewise wrote in ‘La Folie deviant les tribunaux’ that:

“[H]allucinations are not a sufficient obstacle to the power of making a will, if they have exercised no influence on the conduct of the testator, have not altered his natural affections, or prevented the fulfilment of his social and domestic duties…”

All of which, left the Court under no illusions as to how succinctly the testator had both discussed and prepared his will in line with his financial circumstances and clarity of mind, and so despite the urgency of the appellant where imperfection of the mind would result in nullity, there was simply not enough evidence to undermine the logic of the deceased, and so with notions of jury misdirection quickly dismissed, the court validated the will while holding that:

“The English law leaves everything to the unfettered discretion of the testator, on the assumption that, though in some instances, caprice, or passion, or the power of new ties, or artful contrivance,, or sinister influence, may lead to the neglect of claims that ought to be attended to, yet, the instincts, affections, and common sentiments of mankind may be safely trusted to secure, on the whole, a better disposition of the property of the dead, and one more accurately adjusted to the requirements of each particular case,, than could be obtained through a distribution prescribed by the stereotyped and inflexible rules of a general law.”