This appellant was convicted in the Crown Court at Maidstone of an offence of sexual assault contrary to section 3 Sexual Offences Act 2003. The issue to which his conviction gives rise is whether he can or cannot be heard to say that by reason of voluntary intoxication he did not have the necessary state of mind to commit the offence.

Police Officers were called to the place where the appellant lived. He was found in an emotional state and he had cut himself. He had plainly been drinking heavily. He said that he wanted help and they took him to the hospital at his request. There, in the waiting area, he became abusive and began to sing noisily, so they took him to wait outside where he would be less of a disturbance to others. He then began to dance suggestively in front of one of the officers, and put his hand to his own groin. Next, he made to re-enter the hospital and, when discouraged, he became angry. He punched the officer in the stomach. Then he undid his trousers, took his penis in his hand and rubbed it up and down the thigh of the officer. He was arrested. At the police station, where he was plainly seen to be drunk, he made the remark that “The only way I can make money is by moving my hips in a sexual way in Soho and I thought I would get away with doing it to you but I obviously didn’t.” In interview the next day the appellant said that he could not remember anything which had occurred, but talk of dancing in Soho made sense because he had done it when younger; he said that he would in those days touch himself on the groin and probably the penis. He added that although he could not remember anything which had occurred, he accepted that when he was ill or in drink he sometimes might ‘go silly and start stripping’.

That evidence was given at trial. The appellant neither accepted nor disputed it, because it remained his case that he could not remember anything about what had occurred. He added that he was depressed at the time, having recently separated from his male partner.

There was no medical evidence. It was not suggested that there was any reason connected with mental health which prevented him from forming the state of mind necessary to commit the offence.

The charge was a single one of sexual assault contrary to s 3 Sexual Offences Act 2003. The section which creates this offence provides as follows:

We should set out also section 78, which defines the meaning of element (b) of this offence, namely that the touching must be ‘sexual’:

Before speeches and summing up the Judge was asked to rule whether the offence charged was one to which voluntary drunkenness could afford a defence in the sense that it might prevent the defendant from having the necessary state of mind. The question which he was asked was whether the offence was one of specific or of basic intent. The question was formulated in that way because of the decision in DPP v Majewski [1977] AC 443.

The Judge answered that question by saying that the offence was one of basic intent. In greater detail he ruled that the offence was one which had to be committed deliberately rather than accidentally – that was the meaning, he held, of the word ‘intentionally’ in s 3(1)(a). He contrasted the offence with one which requires proof of an intention which goes beyond the prohibited act, such as for example the offence created by s 66, which provides:

In consequence of his ruling, the Judge held that because the offence contrary to section 3 was a crime of basic intent, drunkenness could not be relied upon in defence. In due course he directed the jury that the Crown had to prove that the defendant touched the PC deliberately. Then he went on to direct the jury about the other elements of the offence stipulated for in subsections (1)(b)(c) & (d). The crux of his direction was the following:

The appellant contends that the Judge’s ruling was wrong. The offence is, it is said, one requiring proof of a specific intent and the jury should have been directed to consider whether the drink which the appellant had taken meant that he did not have the intention to touch. The Crown on the other hand contends that the offence is one of basic intent and that evidence of self-induced intoxication is simply irrelevant.

In a little more detail, Mr Stern’s argument for the appellant runs like this:

The correct reading of DPP v Majewski and subsequent cases is that voluntary intoxication is incapable of being a defence only where recklessness suffices as the mens rea of the offence; it is such offences which are properly described as those of ‘basic intent’.

The present offence is one for which reckless touching will not suffice; only intentional touching will do.

Therefore this is an offence of specific and not of basic intent. Voluntary intoxication is a relevant factor to consider when asking whether the appellant did or did not have the intention to touch required by the section.

For the Crown, Mr Perry’s argument, similarly summarised, runs as follows:

The Majewski concept of crimes of basic intent, in which voluntary intoxication cannot be advanced as a defence, is not limited to those where recklessness suffices; the correct distinction is between crimes requiring ordinary intent (where voluntary intoxication cannot be relied upon), and those requiring specific or purposive intent (where it can).

There is however no universally logical test for distinguishing between crimes in which voluntary intoxication can be advanced as a defence and those in which it cannot; there is a large element of policy; categorisation is achieved on an offence by offence basis.

Before the Sexual Offences Act 2003, indecent assault could only be committed by intentional touching; yet voluntary intoxication was not a defence, as it was also not to rape. The decisions of Woods (1982) 74 Cr App R 312 and R v C [1992] Crim LR 642 are relied upon. The new Act was not intended to change the law in this respect; on the contrary its object was to improve the protection of potential victims of sexual interference. To treat sexual assault as a crime of specific intent would mean treating similarly the very many other sexual offences created by the 2003 Act which are structured in the same way, including rape (section 1), assault by penetration (section 2) and most of the child sex offences. In sexual assault (and in rape and other similar offences) a defendant’s belief in consent is said by the statute to provide a defence only if it is reasonable, and that must mean that a drunken belief cannot be relied upon.

Where it applies, the rule that voluntary intoxication cannot be relied upon is a rule of substantive law; accordingly in sexual assault and other similarly structured sexual offences under the 2003 Act voluntarily taken intoxicants are simply to be ignored for all purposes when considering whether the offence has been committed.

Although the requirement that the touching be intentional means that it must be deliberate, if accident is suggested the question whether what happened was accidental or not must be answered as if the defendant had been sober, even though he was not.

The present case concerns alcohol. The same however must apply to intoxication or otherwise altered state of mind resulting from the voluntary taking of drugs or other substances. Indeed the mind-altering effects of some drugs, especially hallucinogenic ones, may be more far-reaching than the effects of alcohol. Majewski itself was a drugs case. When we refer to ‘voluntary intoxication’ we mean to include all such cases.

The first thing to say is that it should not be supposed that every offence can be categorised simply as either one of specific intent or of basic intent. So to categorise an offence may conceal the truth that different elements of it may require proof of different states of mind. In the law of rape, as it stood immediately before the passing of the Sexual Offences Act 2003, rape was sexual intercourse with a woman who did not in fact consent, by a man who either knew she did not or was reckless as to whether she did. No-one doubted that the act of intercourse could only be committed intentionally. But when it came to the defendant’s state of mind as to the woman’s lack of consent, either knowledge or recklessness sufficed for guilt: section 1 Sexual Offences (Amendment) Act 1976. Many other examples of the point could be cited. The current legislative practice of itemising separately different elements of offences created by statute, which is much exhibited in the Sexual Offences Act 2003, may occasionally have the potential to complicate matters for a jury, but it demonstrates the impossibility of fitting an offence into a single pigeon-hole, whether it be labelled ‘basic intent’ or specific intent’.

The offence of sexual assault, with which this case is concerned, is an example. The different elements of the offence, identified in paragraphs (a) to (d) of section 3, do not call for proof of the same state of mind. Element (a), the touching, must by the statute be intentional. Element (b), the sexual nature of the touching, takes one to section 78. By that section the primary question is a purely objective one, as set out in s 78(a). If, however, the act itself is objectively equivocal, the purpose of the Defendant may be a relevant consideration, as provided by s 78(b), and that must be a reference to his own (subjective) purpose. The state of mind in a defendant which must be proved in relation to element (c), the absence of consent, is expressly stipulated by element (d) and by s 3(2), and the stipulation is in terms which make it clear that the test is substantially objective; a belief in consent which was induced largely by drink would be most unlikely to be reasonable. It is accordingly of very limited help to attempt to label the offence of sexual assault, as a whole, one of either basic or specific intent, because the state of mind which must be proved varies with the issue. For this reason also, it is unsafe to reason (as at one point the Crown does) directly from the state of mind required in relation to consent to the solution to the present question.

Since it is only the touching which must be intentional, whilst the sexual character of the touching is, unless equivocal, to be judged objectively, and a belief in consent must be objectively reasonable, we think that it will only be in cases of some rarity that the question which we are posed in this appeal will in the end be determinative of the outcome.

We do not think that it determines this appeal. On the evidence the Appellant plainly did intend to touch the policeman with his penis. That he was drunk may have meant either:

that he was disinhibited and did something which he would not have done if sober; and/or

that he did not remember it afterwards.

We do not attempt the notoriously unrealistic task of foreseeing every possible permutation of human behaviour which the future may reveal. But it nevertheless seems to us that in the great majority of cases of alleged sexual assault, or of comparable sexual crimes, as in the present case, the mind will have gone with the touching, penetration or other prohibited act, albeit in some cases a drunken mind.

It is, however, possible to envisage the exceptional case in which there is a real possibility that the intoxication was such that the mind did not go with the physical act. In R v Lipman (1969) 55 Cr App R 600 the defendant contended that when he killed his victim by stuffing bedclothes down her throat he was under the illusion, induced by hallucinatory drugs voluntarily taken, that he was fighting for his life against snakes. If an equivalent state of mind were (assumedly genuinely) to exist in someone who committed an act of sexual touching or penetration, the question which arises in this appeal would be directly in point.

A different situation was also put to us in the course of argument. Its formulation probably owes much to Professor Ormerod’s current edition of Smith and Hogan’s Criminal Law (11^th edition, page 624). It is that of the intoxicated person whose control of his limbs is unco-ordinated or impaired, so that in consequence he stumbles or flails about against another person, touching him or her in a way which, objectively viewed, is sexual – for example because he touches a woman on her private parts. Can such a person be heard to say that what happened was other than deliberate when, if he had been sober, it would not have happened ?

In the present case the Judge directed the jury that drunkenness was not a defence, although coupling with it the direction that the touching must be deliberate. Whether or not the jury’s decision was likely to be that the appellant had acted intentionally (albeit drunkenly), the Judge had to determine whether or not it was necessary for the jury to investigate the suggestion that the appellant was so drunk that his mind did not go with his act. That question may also face judges and juries, as it seems to us, in many cases where a defendant wishes to contend that he was thus intoxicated, and scientific or medical evidence can say no more than that in an extreme case drink or drugs are capable of inducing a state of mind in which a person believes that what he is doing is something different to what he in fact does. In those circumstances, and in deference to the full argument which we have heard, we have concluded that we should address the issue, rather than confine ourselves to saying that this conviction is safe.

We are in the present case concerned with element (a), the touching. The Act says that it must be intentional. We regard it as clear that a reckless touching will not do. The Act plainly proceeds upon the basis that there is a difference between ‘intentionally’ and ‘recklessly’. Where it wishes to speak in terms of recklessness, the Act does so: see for example sections 63(1), 69(1)(c) & (2)(c) and 70(1)(c). It is not necessary to decide whether or not it is possible to conceive of a reckless, but unintentional, sexual touching. Like their Lordships in R v Court [1989] 1 AC 28, we think that such a possibility is a remote one, but we are unable wholly to rule it out. One theoretical possible example might be a Defendant who intends to avoid (just) actual physical contact, but realises that he may touch and is reckless whether he will.

Because the offence is committed only by intentional touching, we agree that the Judge’s direction that the touching must be deliberate was correct. To flail about, stumble or barge around in an unco-ordinated manner which results in an unintended touching, objectively sexual, is not this offence. If to do so when sober is not this offence, then nor is it this offence to do so when intoxicated. It is also possible that such an action would not be judged by the jury to be objectively sexual, on the basis that it was clearly accidental, but whether that is so or not, we are satisfied that in such a case this offence is not committed. The intoxication, in such a situation, has not impacted on intention. Intention is simply not in question. What is in question is impairment of control of the limbs. Accordingly we reject Mr Perry’s submission number (v) – see paragraph 12 above. We would expect that in some cases where this was in issue the Judge might well find it useful to add to the previously-mentioned direction that ‘a drunken intent is still an intent’, the corollary that ‘a drunken accident is still an accident’. To the limited, and largely theoretical, extent that a reckless sexual touching is possible the same would apply to that case also. Whether, when a defendant claims accident, he is doing so truthfully, or as a means of disguising the reality that he intended to touch, will be what the jury has to decide on the facts of each such case.

The remaining question is whether the Judge was also correct to direct the jury that drunkenness was not a defence.

We do not agree with Mr Stern’s submission for the appellant that the fact that reckless touching will not suffice means that voluntary intoxication can be relied upon as defeating intentional touching. We do not read the cases, including DPP v Majewski, as establishing any such rule. As we shall show, we would hold that it is not open to a defendant charged with sexual assault to contend that his voluntary intoxication prevented him from intending to touch. The Judge was accordingly correct, not only to direct the jury that the touching must be deliberate, but also to direct it that the defence that voluntary drunkenness rendered him unable to form the intent to touch was not open to him. Our reasons are as follows.

In Majewski the rival contentions before the House of Lords were these. For the appellant it was contended that if intoxication affected the mind of the defendant it was illogical and unethical to distinguish between its effect on one state of mind and on another; it was capable of destroying any state of mind which is required as a component of a criminal offence. There was thus, it was argued, no permissible distinction between offences of basic intent and those of specific intent. The Crown contended that that distinction had nevertheless represented the law of England for many years. The House upheld the Crown’s contention. It did so in the full knowledge that it was not perfectly logical. It so held, in large measure, on grounds of policy. As was observed by several of their Lordships, historically the law of England regarded voluntary intoxication as an aggravation rather than a potential excuse and the development of the law had been by way of a partial, but only a partial, relaxation of that common law rule where a specific intent was required. Both Lord Elwyn-Jones LC (at 471H) and Lord Edmund-Davies (at 494F) approved what Lawton LJ had said in the Court of Appeal:

Mr Stern’s proposition that Majewski decides that it is only where recklessness suffices that voluntary intoxication cannot be relied upon derives from a part of the speech of Lord Elwyn-Jones LC in Majewski and some observations, obiter, of Lord Diplock in the subsequent case of R v Caldwell 1982] AC 341. In Majewski, Lord Elwyn-Jones, having approved the distinction between crimes of specific and of basic intent, said this at page 474H:

In Caldwell, Lord Diplock added this, at page 355F

In Caldwell the charge was of arson, being reckless as to the endangering of life, contrary to s 1(2)(b) Criminal Damage Act 1971. The defendant accepted that he had deliberately set the fire, but claimed that his drunken state prevented him from appreciating the risk that people might be present and their lives be put in danger. The majority held, through the speech of Lord Diplock, that for the purposes of the use of the word in a criminal statute, recklessness was made out not only by the man who appreciated a risk yet ran it unreasonably anyway, but also by the man who failed to appreciate an objectively obvious risk.

There are a number of difficulties about extracting Mr Stern’s proposition from the passages cited.

Lord Elwyn-Jones was addressing the submission made on behalf of the appellant in Majewski that it was unprincipled or unethical to distinguish between the effect of drink upon the mind in some crimes and its effect upon the mind in others. In rejecting that submission, and upholding the distinction between crimes of basic and of specific intent, he was drawing attention to the fact that a man who has got himself into a state of voluntary intoxication is not, by ordinary standards, blameless. Both the Lord Chancellor and others of their Lordships made clear their view that to get oneself into such a state is, viewed broadly, as culpable as is any sober defendant convicted of a crime of basic intent, whether because he has the basic intent or because he is reckless as to the relevant consequence or circumstance. Throughout Majewski it is clear that their Lordships regarded those latter two states of mind as equivalent to one another for these purposes. It therefore does not follow from the references to recklessness that the same rule (that voluntary intoxication cannot be relied upon) does not apply also to basic intent; on the contrary, it seems to us clear that their Lordships were treating the two the same.

The new analysis of recklessness in Caldwell may have led readily to the proposition that voluntary intoxication is broadly equivalent to recklessness, thus defined. But that analysis and definition of recklessness have now been reversed by the House of Lords in R v G [2004] 1 AC 1034. As now understood, recklessness requires actual foresight of the risk.

Since the majority in Caldwell held that it was enough for recklessness that the risk was obvious objectively (thus, to the sober man) no question of drink providing a defence could arise; it follows that the explanation of Majewski which was advanced was plainly obiter.

Lord Diplock’s proposition in Caldwell attracted a vigorous dissent from Lord Edmund-Davies, who, like Lord Diplock, had been a party to Majewski, and with whom Lord Wilberforce agreed. They dissented not only from the new definition of recklessness, but also from the analysis of Majewski. Their view was that arson being reckless as to the endangering of life is an offence of specific, not of basic, intent; that would seem to have been because the state of mind went to an ulterior or purposive element of the offence, rather than to the basic element of causing damage by fire.

There were, moreover, many difficulties in the proposition that voluntary intoxication actually supplies the mens rea, whether on the basis of recklessness as re-defined in Caldwell or on the basis of recklessness as now understood; if that were so the drunken man might be guilty simply by becoming drunk and whether or not the risk would be obvious to a sober person, himself or anyone else. That reinforces our opinion that the proposition being advanced was one of broadly equivalent culpability, rather than of drink by itself supplying the mens rea.

It is necessary to go back to Majewski in order to see the basis for the distinction there upheld between crimes of basic and of specific intent. It is to be found most clearly in the speech of Lord Simon, at pages 478B to 479B. Lord Simon’s analysis had been foreshadowed in his speech in DPP v Morgan [1976] AC 182, 216 (dissenting in the result), which analysis was cited and approved in Majewski by Lord Elwyn-Jones (at 471). It was that crimes of specific intent are those where the offence requires proof of purpose or consequence, which are not confined to, but amongst which are included, those where the purpose goes beyond the actus reus (sometimes referred to as cases of ‘ulterior intent’). Lord Simon put it in this way at 478H:

We therefore accept Mr Perry’s submission number (i) (see paragraph 12 above). We also, however, recognise the accuracy of submission number (ii). There is a great deal of policy in the decision whether voluntary intoxication can or cannot be relied upon. We have already referred to one of several passages in Majewski where the rule is firmly grounded upon common sense, whether purely logical or not. We agree that it is unlikely that it was the intention of Parliament in enacting the Sexual Offences Act 2003 to change the law by permitting reliance upon voluntary intoxication where previously it was not permitted. R v Woods, relied upon by the Crown, does not entirely resolve the question which we are now addressing. What was there decided was that a defendant charged with rape could not rely on voluntary drunkenness when the question was whether he was reckless as to whether the woman consented. By the statute then in force, the presence or absence of reasonable grounds for belief in consent was made a factor to be taken into account. There are now separate, and differently expressed, statutory provisions as to belief in consent, which make it clear that belief must not only be held in fact but be objectively reasonable. As we have said in paragraph 15 above, it does not necessarily follow that the rule need be the same for different elements of the offence, especially given the new restrictive rules as to belief in consent. That said, the following observation of Griffiths LJ in Woods seems to us to be as relevant to this case now as it was to that case then:

For all these reasons, this conviction is in no sense unsafe. Further, our view is that the Judge’s directions were substantially correct. Sexual touching must be intentional, that is to say deliberate. But voluntary intoxication cannot be relied upon as negating the necessary intention. If, whether the Defendant is intoxicated or otherwise, the touching is unintentional, this offence is not committed.

As we announced at the hearing, this appeal is in consequence dismissed.