Tuesday, 12 March 2013

Criminal Law ~ Voluntary intoxication and Insanity

The Court of Appeal (Criminal Division) has handed down its judgment in  Coley v R; McGhee v R and Harris v R [2013] EWCA Crim 223.  The court comprised Hughes LJ (soon to be a Supreme Court Justice) and Hickinbottom and Holyrode JJ.  The case was concerned with the interplay between the rules of criminal law relating to voluntary intoxication and the rules relating to insanity or (non-insane) automatism.

Hughes LJ commenced by saying: 

"We have heard these three cases in succession because they have some features in common. Each raises a (different) question connected with the interplay between the law relating to voluntary intoxication and the law relating to insanity or (non-insane) automatism. Each calls, however, for consideration of its very particular facts. Neither individually nor collectively do they provide an occasion for any wide-ranging general statement of the law of insanity, still less of loss of capacity generally. We know
that this area of the law is under active consideration by the Law Commission, which work will, we think, be of value. Although there have historically been very few cases which raise insanity, that has been because the statutory provisions governing the disposal orders which must be made if there is a verdict of insanity have historically inhibited attempts to rely on it. More recent changes in those disposal provisions may well lead to an increase in numbers. Any review must, critically, address both the law of loss of capacity and the means of disposal in such cases, so as to pay proper regard both to the interests of the individual defendant and to the public risk which he represents."

The judgment concludes:

"These cases do not provide an occasion for a general review of the law of insanity, automatism or intoxication, but are illustrations of its application. A general review by the Law Commission into these related areas, such as is currently in train, will be welcome. It is we think essential that any such review addresses also the vital question of disposal following the differing verdicts which may ensue."

The Court of Appeal is clearly hoping for some legislative action in these areas once the Law Commission publishes the outcome of its work.  For my part, I am not holding my breath.  Generally, in relation to criminal law, there is a minimal response to Law Commission reports.  A modern criminal law requires more urgency on the part of the legislature.  Nevertheless, for students and practitioners, the Commission's reports are a cornucopia of information given the in-depth research which has gone into their preparation.

The Law Commission considered Intoxication and Criminal Liability  and, in 2009, published a report (Law Com 314). 

In July 2012, the Commission published a "scoping paper" related to Insanity - Law Commission Insanity - and the Commission stated:

"When we have considered the responses to this scoping paper we will consider how best to take the project forward to ensure that the law in practice is fit for purpose in the 21st century and reflects the changing approach to people with mental illness."

The defence of insanity in English law was considered on this blog in July 2011 - Breivik - Would he have a defence on insanity in English law?


  1. Thank you for sharing. If you are under suspicion, have been arrested, or have been charged with a crime, it is extremely important that you exercise your right to remain silent until you have a lawyer present. Be polite, be firm. Do not answer any questions from law enforcement or prosecutors until you have spoken to your attorney.

    - criminal lawyers in Patchogue, NY

    1. In English Law things are not that simple. On arrest, individuals are cautioned:

      “You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in Court. Anything you do say may be given in evidence.”
      The person cautioned is then asked “Do you understand?”

      If the person remains silent / refuses to answer questions, it is possible that inferences will be drawn at a subsequent trial.

      This law came about first in Northern Ireland and, later for England and Wales, by the Criminal Justice and Public Order Act 1994.

      There are many judicial decisions on this topic.

      GOOD legal representation for suspects is crucial in Police Stations.