Text:ICLR [2018] WLR(D) 482

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[2018] WLR(D) 482!

Court of Appeal

Regina v Taj (Simon)

[2018] EWCA Crim 1743!

2018 Apr 26; July 24

Sir Brian Leveson P, Gross, Davis LJJ, Haddon-Cave J, Sir Peter Openshaw

Crime— Homicide— Attempted murder— Self defence— Defendant acting under mistake of fact— Defendant suffering from drug or alcohol induced psychosis but not intoxicated at time of offence— Whether mistake attributable to intoxication— Criminal Justice and Immigration Act 2008 (c 4), s 76(4)(5)

At about 2.00 pm on a Sunday in January 2016 the defendant was driving a rented van along the Albert Embankment when he noticed MA, an electrician, whose car had broken down. The defendant parked his van alongside and asked if he could do anything to help. Being suspicious, the defendant (who had no security credentials of any sort) then proceeded to ask MA a number of questions regarding his employment, and requested to see his driving licence. He then walked around MA’s vehicle and, out of MA’s hearing, he called 999 to alert the authorities to the situation, which he described as a “possible bomb scare threat”. MA allowed the defendant to look in his boot which contained electrical equipment and wires. That caused the defendant to form the view that MA was involved in terrorist activity. The police arrived and, having conducted an inspection of the scene, quickly concluded that MA was not a terrorist and had simply broken down. The defendant nevertheless remained convinced that he was in the midst of a terrorist incident. He drove away but felt compelled to return because he thought MA might have a bomb. He then started to hit MA with a tyre lever. A number of people called 999 and police officers arrived at the scene. The defendant was arrested. He was charged with attempted murder. At trial the defence case was that he had acted in self-defence and in the defence of others, genuinely believing that MA was a terrorist who needed to be stopped. At the heart of the defence case was the proposition that the defendant did not have the requisite specific intent required either for attempted murder or for the alternative of causing grievous bodily harm with intent, contrary to section 18 of the Offences against the Person Act 1861, in that he neither intended to kill nor cause really serious harm. That proposition turned on the defendant’s mental state. It was agreed that he was suffering from drug-induced psychosis and from a drug or alcohol induced psychotic disorder at the time of the offence. The defendant admitted that he had abused drugs and alcohol from a very early age, that he had been out drinking heavily on the Friday and Saturday of that weekend and that he knew that alcohol and drugs could cause him to experience feelings of paranoia. The defence sought to rely on self-defence as codified in section 76 of the Criminal Justice and Immigration Act 2008, with particular reference to section 76(4)(b) which made it clear the defence was available even if the defendant was mistaken as to the circumstances as he genuinely believed them to be, whether or not the mistake was a reasonable one for him to have made. It was submitted that there was no suggestion that the defendant had alcohol or drugs present in his system at the time so that he was not “intoxicated” and thus was not deprived of the defence. The judge ruled that the phrase “attributable to intoxication” in section 76(5) was not confined to cases in which alcohol or drugs were then present in the defendant’s system if there was cogent evidence to the effect that the alcohol or drugs continued to render the person “disordered in intellect”. Accordingly, the defence of self-defence was not open to the defendant. The defendant was convicted of attempted murder. He appealed against conviction on the ground that the judge’s ruling on self-defence was wrong. The defendant contended for a narrow construction of the phrase “attributable to intoxication” and submitted that the phrase could only refer to the present state, where someone was actually intoxicated. The Crown contended for a broader construction and submitted, with particular focus on the word “attributable”, that the phrase included a mistaken state of mind brought about by earlier episodes of intoxication.

On the defendant’s appeal—

Held, appeal dismissed. The law, replicated and confirmed in section 76(5) of the 2008 Act, in relation to self defence had long been that a mistake of fact due to self-induced intoxication did not provide a defence to a criminal charge and there was no reason why that was not equally apposite to the immediate and proximate consequences of such misuse. A defendant who was suffering the immediate effects of alcohol or drugs in the system was not in a different position from a defendant who had triggered or precipitated an immediate psychotic illness as a consequence of proximate ingestion of alcohol or drugs in the system whether or not they remained present at the time of the offence. The words “attributable to intoxication” in section 76(5) were broad enough to encompass both a mistaken state of mind as a result of being drunk or intoxicated at the time and also a mistaken state of mind immediately and proximately consequent upon earlier drink or drug-taking, so that, even though the person concerned was not drunk or intoxicated at the time, the short-term effects could be shown to have triggered subsequent episodes or, for example, paranoia. That was consistent with common law principles but the conclusion did not extend to long-term mental illness precipitated, perhaps over a considerable period, by alcohol or drug misuses. Accordingly, the phrase “attributable to intoxication” was not confined to cases in which alcohol or drugs were still present in a defendant’s system (paras 44, 56, 60, 65).

Director of Public Prosecutions v Majewski [1977] AC 443!, HL(E) and R v Coley and others [2013] EWCA Crim 223! considered.

Abbas Lakha QC and Trevor Siddle (assigned by the Registrar of Criminal Appeals) for the defendant.

John McGuinness QC and Louise Oakley (instructed by the Crown Prosecution Service, Appeals Unit) for the Crown.

Reported by: Clare Barsby, Barrister.