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In
R v Tandy [1989] D was an alcoholic who
strangled her 11-year-old daughter after drinking nine-tenths of a bottle of
vodka and upon learning that her daughter had been sexually abused.
She was
clearly suffering from an abnormality of mind at the time of the killing, and
the amount of alcohol in her bloodstream would have been lethal for most people.
However, the Court of Appeal upheld the conviction for murder based on the trial
judge's direction that, for the defence to succeed, the abnormality had to be
caused by the disease of alcoholism rather than by the voluntary ingestion of
alcohol on the particular occasion.
This would be the case 'If the alcoholism
had reached the level at which her brain had been injured by the repeated insult
from intoxicants so that there was gross impairment of her judgment and
emotional responses'.
Even if this was not the case
(as the jury must have found by their verdict), the alcoholism might still found
a defence if it meant that the intoxication was not voluntary, i.e. if 2she was
no longer able to resist the impulse to drink".
Although the defence medical
witnesses testified to this effect, the prosecution witness was of the view that
D had control over whether she had the first drink of the day, but
once she had had the first drink she was no longer in control, and the Court of Appeal said that
"the judge was correct in
telling the jury that, if the taking of the first drink was not involuntary,
then the whole of the drinking [on that day] was not involuntary".
Tandy was followed in Inseal [1992], where the Court of Appeal
approved of the trial judge's direction only in terms of this second issue of
whether the drinking
had become involuntary, since no medical evidence had been given on the first
question of whether the brain had been 'injured by the repeated insults from
intoxicants'.
The relevance in
Tandy of the distinction between voluntary and involuntary
intoxication is in answering the question of whether the abnormality of mind is
caused by disease, i.e. alcoholism.
If the intoxication is voluntary, then it
constitutes a novus actus interveniens and breaks the causal link between the
alcoholism and the abnormality of mind.
If it is involuntary, in the sense that the
accused's alcoholism meant she was no longer able to resist the impulse to take
(even the first) drink, then the actual intoxication is not a novus actus but
part of the causal chain between the alcoholism and the abnormality of mind.
Watkins LJ said
"'if her drinking was involuntary then
her abnormality of mind at the time of the act of strangulation was induced by
her condition of alcoholism".
If this is correct, then logically an alcoholic (or anybody else for that
matter) whose orange juice, for example, is surreptitiously laced with vodka by
another, might have difficulty relying on diminished responsibility.
Even though
his abnormality of mind is caused by involuntary intoxication, it would appear
that it is not induced by disease. This seems rather harsh but a possible answer
is that the abnormality might be said to be due to one of the other causes
specified in s. 2(1), i.e. "injury".
The spiker of the drinks could be said to
be inflicting an injury via the alcohol on the accused's brain, just as much as
if he clubbed him over the head, and thus the abnormality could be said to be
induced by "injury".
However, in
R v Di Duca (1959), the court was
'very doubtful' as to whether the transient effect of drink could amount to an
injury and in
R v O'Connell [1997] similar doubts were expressed in
respect of the transient effects of voluntarily ingested Halcion (a sleeping
drug).
These doubts can be explained on the grounds that the courts were
speaking of cases of voluntary intoxication. Rather than deny that the transient
effect of drink or drugs can ever constitute an injury, it would be better
merely to exclude voluntarily self-inflicted injuries (including the effects of
voluntary intoxication) from the meaning of "injury" within s. 2(1).
Their exclusion can be justified on the grounds
that, being voluntarily self-inflicted, they are not capable of substantially
impairing responsibility within the meaning of the section. |
