Boozed-up leg-rubbing, indefensible

R v Heard, Court of Appeal Criminal Division - Published March 6, 2007

This case seems to have gone to appeal on the basis of a rather fanciful and imaginative line of reasoning – one which is centred around well-settled law and in that sense should not have been given 'court-room'. The fact it went to appeal is disturbing in itself, mainly because the ‘point of law’ was simply shrouded in obfuscation and 'needed' an appeal judge to ‘set the record straight’. What a waste.

In short: a defendant who became voluntarily drunk and ‘rubbed-up’ against a police officer’s leg could not successfully rely on the defence of intoxication so as to avoid liability for sexual assault under section 3 of the Sexual Offences Act 2003. The defendant claimed he was so drunk he was not aware of his actions or in control of himself, so to speak.

For a section 3 offence to be made out the following are required:
- Defendant (D) intentionally touches another person, (victim) (V));
- the touching is sexual;
- V does not consent to the touching, and;
- D does not reasonably believe that V consents.

The trial judge directed the jury that the touching must be deliberate and the defence that voluntary intoxication with the effect that the defendant was unable to form the intent to touch was not available to him. This is based on well-settled law and is unshakeable in legal reasoning. Parenthetically, in the appeal, it was stated that there was no universal test for determining which crimes could be successfully defended through voluntary intoxication and those which could not – it would largely depend on public policy considerations.

The touching was clearly intentional: the defendant had not flailed around in an uncoordinated manner but rather deliberately rubbed his genitals up the police officer’s leg. If the touching was unintentional, irrespective of whether the defendant was intoxicated or not, a section 3 offence would not have been made out.

With that in mind, the defendant’s lawyers had one remaining ace to play for appeal: to argue that the offence was not one of basic intent but rather specific intent. Specific intent involves the concept of intention being considered in relation to the purposes of the criminal act; basic intent considers intention independently of the purposes. In this context, therefore, the defendant tried to argue that because of his drunken state, he was not fully aware of what he was doing and, – here comes the crucial point – the purpose of his touching was not sexual because of it. If the section 3 offence was to be viewed as one of specific intent, this line of reasoning might work, with clearly repugnant consequences: any drunken oaf could get away with a grope (or worse) claiming that because of their drunken state, the touching was not sexually motivated and thus a section 3 offence could not be made out.

Thankfully, the Court of Appeal were having none of this. Somewhat unhelpfully, though, they stated that some offences (such as s3 SOA) could not be straightforwardly viewed as requiring basic or specific intent as different elements of the offence required proof of different states of mind. While this argument was a neat way of justifying their decision, it had the effect of opening up a can of worms which, frankly, need not have been opened.

Clearly, voluntary intoxication in respect of a sexual offence could never be relied upon as negating the necessary intention irrespective of how it was sliced. It was always just a matter of seeing how and on what basis the Court of Appeal would shoot the argument down in flames.


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