Scottish High Court of Justiciary Decisons

At advising on 3rd June 1977 the opinion of the Court was delivered by the Lord Justice-General.

LORD JUSTICE-GENERAL (Emslie).—The appellant went to trial in the High Court at Glasgow. The principal charge was of the murder of his father by stabbing him with a knife. To this charge the appellant lodged a special defence of insanity at the time and sought to insist in it. In this he was no doubt encouraged by the charge of the trial Judge in H. M. Advocate v. Aitken 1975 S.L.T. (Notes) 86, and the proposition on which this special defence was conceived was that at the time of the alleged crime the appellant was so intoxicated by the voluntary consumption of drink or a drug or both, as to be insane within the meaning of the law. It was contended in any event on behalf of the appellant that the evidence of self-induced intoxication was such as to entitle the jury to hold that the quality of the appellant's crime should be reduced from murder to culpable homicide. The trial Judge, however, in charging the jury withdrew the special defence from their consideration and directed them that the evidence of the appellant's state of intoxication did not entitle them to return a verdict of culpable homicide. In the result the outcome of the trial was conviction of the appellant of murder.

In this appeal the first submission for the appellant was that the withdrawal of the special defence amounted to a misdirection and that the conviction should be quashed.

There was ample evidence that the appellant killed his father on the evening of 26th September 1976 by stabbing him with a knife in the chest. This incident took place in the appellant's mother's house and it appears that the appellant and his father had been quarrelling about a gramophone record and that the stabbing occurred during a scuffle between the two men. In the course of the day the appellant had consumed between 20 and 25 pints of beer, and about half an hour before the killing, had taken in addition, a microdot of LSD, a hallucinogenic drug. In consuming this drink and the drug the appellant was fully aware of their probable and unpredictable effects and indeed he consumed them for these effects in the knowledge that either or both together might deprive him of his ability to control his actions. What was said was that the appellant, at the time he stabbed his father, was so much under the influence of the drink and the drug he had taken as to be insane. This case accordingly is one in which the state of the appellant's mind was, according to the evidence, attributable merely to the transitory effects of alcohol and LSD deliberately consumed by the appellant with knowledge, from his previous experience of both, that they were bound to intoxicate him. It will be seen therefore that the first submission for the appellant raises the single and important question whether a temporary impairment of mental faculties resulting merely from self-induced intoxication may, in our law, amount to insanity for the purposes of a special defence such as the appellant tabled in this case. It is not suggested that so far as criminal responsibility is concerned the law makes any distinction between intoxication by drink and drugs. No such distinction is made in the Law of England either [see Reg. v. Lipman [1970] 1 Q.B. 152]. All we say accordingly in this connection is that self-induced intoxication due to drink has been increasingly a factor in crimes of violence committed in Scotland, and as Lord Elwyn-Jones, L.C., said in D.P.P. v. Majewski [1976] 2 W.L.R. 623:

"But voluntary drug-taking with the potential and actual dangers to others it may cause has added a new dimension to the old problem with which the courts have had to deal in their endeavour to maintain order and to keep public and private violence under control. To achieve this is the prime purpose of the criminal law."

In the development of the first submission the particular proposition was that if a person suffers total alienation of reason as the result of self-induced intoxication he will be regarded by our law as insane and thus free from any criminal responsibility. On the assumption that this proposition was sound it was then argued that there was evidence on which a jury would have been entitled to hold, on a balance of probability, that the special defence had been made out.

We ask ourselves first of all the fundamental question: What is insanity, according to the law of Scotland, for the purpose of a special defence of insanity at the time ? The question has nothing to do with any popular view of the meaning of the word "insanity," nor indeed is it a question to be resolved upon medical opinion for the time being. It is, on the contrary, a question which has been resolved by the law itself as matter of legal policy in order to set, in the public interest, acceptable limits upon the circumstances in which any person may be able to relieve himself of criminal responsibility.

In discovering what is insanity within the meaning of our criminal law we cannot do better than begin by noticing that Hume treated the nature of the plea, in Vol. I of the third edition of his work on Crimes, thus:

"Which condition, if it is not an assumed or imperfect but a genuine and thorough insanity and is proved by the testimony of intelligent witnesses, makes the act like that of an infant and equally bestows the privilege of an entire exemption from any manner of pain … I say where the insanity is absolute and is duly proved: For if reason and humanity enforce the plea in these circumstances it is no less necessary to observe such a caution and reserve in applying the law, as shall hinder it from being understood, that there is any privilege in a case of mere weakness of intellect, or a strange and moody humour, or a crazy and capricious or irritable temper. In none of these situations does or can the law excuse the offender … To serve the purpose of a defence in law the disorder must therefore amount to an absolute alienation of reason—such a disease as deprives the patient of the knowledge of the true aspect and position of things about him, hinders him from distinguishing friend or foe, and gives him up to the impulse of his own distempered fancy."

It is clear from the discussion which follows that Hume is speaking of absolute alienation of reason in relation to the act charged. It is abundantly clear, too, whatever may be comprehended within the word "disease" as Hume used it, that it does not include deliberate and self-induced intoxication for in the passage immediately following his treatment of insanity Hume (p. 45) contrasts insanity with "that sort of temporary madness which is produced by an excess in intoxicating liquors" and says of the latter:

"… certain it is that the law of Scotland views this wilful distemper with quite a different eye from the other which is the visitation of Providence; and if it does not consider the man's intemperance as an aggravation, at least sees very good reasons why it should not be allowed as an excuse to save him from the ordinary pains of his transgression. Not to mention that one cannot well lay claim to favour, on the ground of that which itself shows a disregard of order and decency. How are the different degrees of ebriety to be distinguished, or the real ebriety to be discerned from that which is affected; or what protection could we have, if this were law, against the attempts of such who might inflame themselves with liquor on purpose to gain courage to indulge their malice, and an opportunity to do it safely ? Besides, if there were no risk of such contrivances, it is indispensable to guard the safety of the peaceable and decent part of the community, who would otherwise be at the discretion of the dissolute and worthless. For these substantial reasons our custom utterly disowns any such defence, and this generally, and without regard to that distinction sometimes pleaded but nowise suited to practice, "

inter ebrios et ebriosos," between those who are habitual drunkards and those who are only accidentally in liquor." If these somewhat lengthy quotations, for which we may no apology, still represent correctly the law of Scotland it follows that the trial Judge was right to withdraw the special defence from the jury, and that the first submission for the appellant must be rejected.

We have no doubt that the law as stated by Hume is, and has always been, the law of Scotland and neither our own researches nor those of the learned Solicitor-General and senior counsel for the appellant have revealed that the accuracy of Hume's statement has ever been called in question. On the contrary, it has constantly been accepted and applied, and with the increasing misuse of drugs in these times it would be wholly irresponsible to alter or modify it in any way. Alison, it will be seen, contrasts insanity and the effects of intoxication in a similar way and says in terms:

"The defence of intoxication cannot be received against any criminal charge for an offence itself perilous or hurtful"

[Vol. I, p. 661]. In 1890 in the case of H. M. Advocate v. John M'Donald 2 White 517, the Lord Justice-Clerk (Macdonald) in charging the jury reaffirmed the clear distinction between total alienation of reason caused by unsoundness of mind, which will constitute insanity in law, and the mere effects of drink, which will not, and he did so in these terms:

"A defence of insanity can only be supported by proof that the prisoner was actually of unsound mind at the time. It is said that he had taken so large a quantity of ardent spirits that he was insane. Now, a man who is merely drunk is not held by the law to be insane merely because he is drunk. On the contrary, if a man when sober has no signs of insanity about him, gets himself into a state of intoxication, the presumption is that any abnormal acts he may commit when in that state, are attributable to the effects of the drink he has taken, and not to mental disease of which there has been no indication previously.

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It is the present presence of a poison in him which causes his brain to suffer, and his mind to wander and go away from its course of sober action, just as the body of a man is controlled by a hurricane of wind: he cannot control himself. But observe, the temporary cause of the disease is not anything in the brain itself, but a quantity of drink which he has taken which affects the brain. In ordinary language we talk of a man being mad with drink because at the time when he has got this drink in him he acts like a madman; but he is not in these circumstances a madman recognised by the law as irresponsible for his actions. It would be a very dangerous and a very sad thing indeed if it ever came to be laid down as a principle of law that a man was not responsible for his actions because he had brought himself to a state like that of a madman by pouring a quantity of alcohol down his throat. That is not the law; that has never been the law. A man in such circumstances is not the subject of disease, any more than a man who gives way to extreme passion and loses all self-control is for the time subject to disease. In the one case, he simply indulges his propensity to allow his passions to carry him away; in the other, he deliberately places himself in a position in which he may not have the command of his actions which he ought to have. The law holds that the man who brings himself into that state by drinking alcohol is responsible for what he does when he is in a state of drunkenness, just as a man is responsible to the law, and is severely punished by the law, when he allows himself to get into such a fury that he acts like a madman and inflicts injuries upon others. I will by-and-by say a word on the question whether a person who has come to be affected by actual brain disease in consequence of excessive indulgence is or is not in a different position; but I wish you meantime to understand distinctly this proposition, which you will accept from me, that the principle of the law is that a man is not excusable for what he does, because he has done it when in a state produced by taking a quantity of liquor." From this charge emerges clearly the necessity for unsoundness of mind, or disease, in the concept of what he calls "real" insanity, i.e., insanity in the legal sense; and we need hardly add that, if there is present the essential prerequisite of such unsoundness of mind, it is both unnecessary and irrelevant to inquire what caused it. Further, running throughout all more recent cases, and in all statements of the law on diminished responsibility, that necessity has invariably been reiterated. To illustrate what we have just said we simply draw attention to one example, the case of H. M. Advocate v. Kidd 1960 JC 61. In that case Lord Strachan in his charge to the jury on the special defence of insanity posed the question:

"What degree of mental illness is sufficient in law to excuse a person from responsibility for his actions ?"

and told the jury to ask themselves whether the accused was "of unsound mind" and stressed that "there must have been an alienation of reason in relation to the act committed. There must have been some mental defect … by which his reason was overpowered." That case also required consideration of the defence of diminished responsibility introduced into our law as early as the latter half of the nineteenth century at a time when the penalty for murder was death, and Lord Strachan's direction to the jury upon that defence included the quotation from the case of H. M. Advocate v. Savage 1923 JC 49 at p. 51 which Lord Justice-Clerk Cooper in H. M. Advocate v. Braithwaite 1945 J.C. 55 thought to give as explicit and clear a statement of the law as he could find. The quotation is as follows—"It is very difficult to put it in a phrase, but it has been put in this way: that there must be aberration or weakness of mind; that there must be some form of mental unsoundness; that there must be a state of mind which is bordering on, though not amounting to, insanity; that there must be a mind so affected that responsibility is diminished from full responsibility to partial responsibility—in other words, the prisoner in question must be only partially accountable for his actions. And I think one can see running through cases that there is implied … that there must be some form of mental disease." In short, insanity in our law requires proof of total alienation of reason in relation to the act charged as the result of mental illness, mental disease or defect or unsoundness of mind and does not comprehend the malfunctioning of the mind of transitory effect, as the result of deliberate and self-induced intoxication. As we understand it the law of England in spite of its different definition of insanity—the so-called M'Naghten rules which form no part of our law [see Breen v. Breen 1961 S.C. 158]—has reached precisely the same conclusion. This we deduce from the opinion of the Court delivered in the Court of Appeal by Lawton, L.J., in Reg. v. Quick [1973] 1 Q.B. 910 at p. 922. It must further be recognised that our law of diminished responsibility rests essentially upon the test which governs the defence of insanity. The only distinction between insanity and the state of diminished responsibility recognised by our law is that for the latter state to be established something less than total alienation of reason will suffice, and the defence of diminished responsibility cannot, any more than the special defence of insanity, be established upon mere proof of the transitory effects upon the mind of self-induced intoxication. As Lord Hill Watson charged the jury in H. M. Advocate v. M'Leod 1956 J.C. 20 at p. 21:

"If a man is not shown by the evidence to be within the category of diminished responsibility when sober, he cannot place himself within the category of diminished responsibility by taking drink."

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All that remains to be done before parting with the legal substratum of the first submission for the appellant is to say a word about the charge of the trial Judge in H. M. Advocate v. Aitken . The crime charged was attempted murder and a special defence of insanity at the time was lodged. The evidence established that the accused was at the time of the assault under the influence of the drug LSD. In charging the jury on the special defence the trial Judge very properly quoted extensively from the charge of Lord Strachan in Kiddwhich we have already discussed. He then proceeded to go wrong, for he left the special defence for the jury's consideration as if the question of insanity was to be answered upon the evidence given by various medical witnesses and without appreciating that the case was one of self-induced intoxication by drugs, proof of the effects of which cannot in the law of Scotland establish insanity. We have therefore to disapprove of his charge on this matter.

In the result the first submission of the appellant fails for it is wholly without warrant in law. In the law of Scotland a person who voluntarily and deliberately consumes known intoxicants, including drink or drugs, of whatever quantity, for their intoxicating effects, whether these effects are fully foreseen or not, cannot rely on the resulting intoxication as the foundation of a special defence of insanity at the time nor, indeed, can he plead diminished responsibility.

The second and alternative submission for the appellant was that in any event the trial Judge should have left to the jury the possibility of returning a verdict of guilty of culpable homicide because, it was said, there was evidence on which the jury would have been entitled to conclude that the appellant was intoxicated to such a degree that he was deprived of all capacity to form the "specific intent" which is of the essence of the crime of murder.

The argument for the appellant in support of this submission was necessarily founded upon the cases of H. M. Advocate v. Campbell 1921 J.C. 1 and Kennedy v. H. M. Advocate 1944 J.C. 171 in which it was said that, according to the law of Scotland, if a man accused of murder was shown to have been incapable, by reason of self-induced intoxication, of forming the intention to kill or do serious injury to the deceased, he will be guilty only of culpable homicide. According to these cases the laws of Scotland and England are the same on this matter and attention was drawn to the case of the D.P.P. v. Beard [1920] A.C. 479, the judgment in which has recently been explored and explained in the case of D.P.P. v. Majewski to which reference has already been made. Before us the correctness of the statements of the law to be found in Campbell and Kennedy was challenged by the Crown and fully debated, but before we come to examine these cases it is, we think, important to remind ourselves of the law as it clearly appeared to be when Campbell went to trial on 27th September 1920, and to notice certain differences between the laws of Scotland and England.

As we have already shown, impairment of the mental faculties of an accused person caused merely by self-induced intoxication, however gross the impairment may be, is not insanity in our law. Further, proof of the mere effects of such intoxication, whatever their degree, cannot in our law support a defence of diminished responsibility—a defence available only where the charge is murder and which, if it is established, can result only in the return of a verdict of guilt of the lesser crime of culpable homicide. In both branches, insanity and diminished responsibility, the attitude of the law of Scotland has accordingly been entirely consistent, and has remained true to the sound general rule enunciated by Hume and Alison that self-induced intoxication is no defence to any criminal charge, at least for an offence in itself perilous or hurtful. In these circumstances it would be surprising if our law were to admit proof of self-induced intoxication as a defence to a charge of murder in circumstances in which it could not be held that the criminal responsibility of the accused was in law diminished.

The law of England as we understand it was until the late 19th century at one with the law of Scotland in refusing to countenance self-induced intoxication as any kind of defence to a criminal charge and embarked upon the same search for a modification and mitigation of the law in those cases where the only penalty for the crime of murder was capital. In Scotland the search led to the recognition of the concept of diminished responsibility as early as 1867 in the case of H. M. Advocate v. Dingwall 5 Irv. 466—a concept which was only introduced into the law of England by statute in the latter half of this century. In England, it appears, the law took a different route and the formula adopted was that of permitting, where the charge was murder, a verdict of guilty of manslaughter to be returned where it was shown that the effects of self-induced intoxication had deprived the accused of all capacity to form the "specific intent" which had to be proved to establish the crime of murder [D.P.P. v. Beard ]. This relaxation was, it seems, applied to all crimes involving proof of "specific intent" as distinct from "basic intent" but to no others, and the rule in Beard which was conceived in the days of capital punishment has rightly been recognised as illogical. We have only to add that in crimes of "basic intent" we understand the law of England to be at one with the law of Scotland in refusing to admit self-induced intoxication as any kind of defence.

The next matters to be noticed before we proceed to an examination of the cases of Campbell and Kennedyare these. Our law has never recognised a distinction between "specific" and "basic" intent in crime. Further, the definition of the crime of murder in Scotland is not the same as the definition of that crime in the law of England. In England the crime involves "malice aforethought," a technical expression which requires proof of either the specific intention to kill or to do serious injury. In the law of Scotland, however, the crime of murder is constituted by any wilful act causing the destruction of life whether intended to kill or displaying such wicked recklessness as to imply a disposition depraved enough to be regardless of the consequences. Our definition of murder includes the taking of human life by a person who has an intent to kill or to do serious injury or whose act is shown to have been wickedly reckless as to the consequences.

The case of Cawthorne v. H. M. Advocate 1968 JC 32, where the charge was of attempted murder by a man who fired rifle shots at random into a room where he knew that there were several persons, is a good example of actings so wickedly reckless that if they resulted in the taking of life the crime would be murder. The charge of the trial Judge in that case was affirmed by the Court on appeal and the following passage appears in the opinion of the Lord Justice-General (Clyde) at p. 35:

"The crimes of murder and attempted murder are common law crimes in Scotland and I do not find it helpful to seek to draw analogies from alien systems of law where the rules may for various reasons be different. The issue must be determined by the rules applicable to Scots law. In our law murder is constituted by any wilful act causing the destruction of life. (Macdonald on the Criminal Law of Scotland (5th ed.), p. 89.) The mens rea which is essential to the establishment of such a common law crime may be established by satisfactory evidence of a deliberate intention to kill or by satisfactory evidence of such wicked recklessness as to imply a disposition depraved enough to be regardless of consequences. (See Macdonald in the same passage.) The reason for this alternative being allowed in our law is that in many cases it may not be possible to prove what was in the accused's mind at the time, but the degree of recklessness in his actings, as proved by what he did, may be sufficient to establish proof of the wilful act on his part which caused the loss of life."

Finally we must dispel any suspicion that what was said in Campbell and Kennedy was merely an echo of a passage in the charge of the Lord Justice-Clerk in M'Donald 2 White 517 in which he directed the jury that "if the means adopted were not of themselves likely to lead to bad results and if there were no malice aforethought then the fact that the man was in a drunken state may be considered in determining the question between murder and culpable homicide." The initial hypothesis presented to the jury is of crucial importance: (1) absence of malicious or criminal intent to kill; and (2) use of modes of assault not of themselves likely to lead to bad results. The case of M'Donald therefore lays down and professes to lay down no general principle of law and the direction is one related precisely to a particular combination of facts. It might indeed have been argued that without any evidence of drunkenness that combination of facts would have made a verdict of culpable homicide a proper one.

We come now to the case of Campbell. In that case the Lord Justice-Clerk was dealing with a charge of murder by violent blows of the fist. There was no evidence to support a contention that the accused was in any way suffering from mental disease or disorder causing total or partial alienation of reason related to the crime charged. The only alleged mitigating circumstance was the accused's intoxication at the time of the event. It was pleaded for the accused that his drunkenness was of such a degree as to warrant the jury in returning a verdict of culpable homicide. The report bears that "counsel for the Crown contended that the drunkenness of the accused did not reduce the crime from that of murder to culpable homicide. Reference was made to H. M. Advocate v. M'Donald and D.P.P. v. Beard ." It also appears that counsel for the accused founded on the passage in the charge in M'Donald which we have already examined. There is in the report no trace of any argument that Beard did not represent the law of Scotland and, in directing the jury without having had the advantage of a full debate or further examination of the relevant Scots authorities on the place of self-induced intoxication in our law, the Lord Justice-Clerk said this:

"If a man strikes and wounds another—and a fist may be just as dangerous, if it is sufficiently used as a weapon—if he strikes him in such a way and kills him there and then on the spot, with the intent to kill, that is murder. But it is also the law that, if a man proceeds to strike another fellow being, it may be without the intent to kill, but with the intent to cause serious injury, then, although he did not mean to kill, or had no intention of killing, if he struck with the intent to bring about serious injury and the result is that his victim died, then that too is murder. The question which you have to consider is whether—with the blows which this man undoubtedly inflicted upon this woman, his wife, who was six months gone in pregnancy at the time—he had the intention to cause her serious injury. If you think he was so drunk that he could not form any intention about it, you may reduce the crime to culpable homicide; the question for you is: Was he so drunk as to be incapable of forming any intention on the subject, or was there any other intention on the part of this man but to cause serious injury to the woman."

Later he referred to the case of Beard and said this:

"Quite recently there was a very important case decided in England, by the House of Lords, where this question came up as to what was the effect of drunkenness when a man had killed a fellow human being, and the case was considered of such importance that it was dealt with by eight Judges in the House of Lords. Two of them were Scotsmen, one being a Scottish lawyer, Lord Dunedin, and the other Lord Haldane, and one judgment was delivered expressing the views of the whole Court. On this matter there is no difference between the law of England and the law of Scotland. It would be most unfortunate indeed if, as to the effect of drunkenness, where injuries are due to the violence of a drunk person, there was such a difference; but there is no difference at all. The result of that case may be summed up thus: Insanity, of course, is a complete answer—to this effect, that the man or person who has committed a crime cannot be found guilty if he was insane at the time, even though the insanity is caused by drink; and he will be dealt with as an insane person. But so far as drunkenness was concerned, their Lordships said this, that evidence of drunkenness which renders the accused incapable of forming the specific intent required to constitute the crime—that is in this case the intention to kill or to do serious injuries—should be taken into consideration with the other facts proved in order to determine whether or not he has that intention."

From our examination of the charge as a whole and in particular the passages we have quoted it is plain that the Lord Justice-Clerk omitted to notice that Beard was a special case not involving a need to prove specific intent as that is understood by the law of England for by that law, differing from the law of Scotland, it was only necessary to show that the act of causing death was done in furtherance of rape. He omitted to notice also that the definition of murder in Scotland is not the same as that of the law of England and that the concept of "specific intent" is only intelligible if the crime may only be constituted by proof of actual intention to kill or do serious injury. Further he gave no reasons why what was said in Beardcoincided with the law of Scotland unless perhaps it was because two of the eight Judges were Scotsmen! Finally he did not appreciate that there was no trace in the law of Scotland before 1920 of self-induced intoxication being a recognised defence to a charge of murder, and that evidence of the effects of such intoxication, by itself, was not even admitted by our law to be a foundation for a plea of diminished responsibility. The charge accordingly contained for the first time a proposition of law contrary to the whole tract of previous authority on the subject, and inconsistent with the broad general principle upon which self-induced intoxication had always been treated in the law of Scotland. If according to our law the mens rea in murder may be deduced from the wicked recklessness of the actings of the accused, it is extremely difficult to understand how actings may lose the quality of such recklessness because the actor was in an intoxicated state brought about by his own deliberate and conscious purpose. In this connection the following passage from the speech of Lord Elwyn-Jones, L.C. in D.P.P. v. Majewski at p. 633, where he is dealing with all crimes in England save those requiring proof of specific intent, is both relevant and instructive:

"I do not for my part regard that general principle as either unethical or contrary to the principles of natural justice. If a man of his own volition takes a substance which causes him to cast off the restraints of reason and conscience, no wrong is done to him by holding him answerable criminally for any injury he may do while in that condition. His course of conduct in reducing himself by drugs and drink to that condition in my view supplies the evidence of mens rea, of guilty mind certainly sufficient for crimes of basic intent. It is a reckless course of conduct and recklessness is enough to constitute the necessary mens rea in assault cases: see R. v. Venna, per James, L.J. The drunkenness is itself an intrinsic, an integral part of the crime, the other part being the evidence of the unlawful use of force against the victim. Together they add up to criminal recklessness."

The case of Campbell was, however, approved in the later case of Kennedy, but here again it was apparently agreed by both prosecution and defence for the purposes of the argument that the law with regard to the effects of drunkenness upon criminal responsibility was accurately set out in Campbell. Kennedy involved a charge of murder by stabbing and the defence was that the verdict should be one of culpable homicide in respect of the accused's drunkenness which, it was maintained, had deprived him of the capacity to form the specific intent to kill or inflict serious injury. The presiding Judge refused to allow that plea to be considered by the jury on the ground that, in his opinion, there was no relevant evidence to support it. The appeal was concerned only with the question whether the judge was entitled to take the course he did. It is clear therefore that the appeal was conducted before the Full Bench of five Judges of eminence and long experience upon agreement and concession as to the applicability of the law as it was stated in Campbell's case and as to the applicability in Scotland of the ratio of Beard. This is expressly recorded in the Lord Justice-General's opinion. In particular there was no reference at all to, or examination of, the differences and distinctions between the elements which constitute the crime of murder in the criminal law of Scotland, and those which according to Beard constitute that crime in England. More important still there was no discussion or examination of the applicability to the law of Scotland of the distinction drawn in Beard's case between crimes of "specific intent," of which murder is apparently one, and all other crimes described as crimes of "basic intent." We have already pointed out how inappropriate that distinction is in any proper consideration of the crime of murder in the law of Scotland. In the result, notwithstanding the great weight which is normally to be accorded to any statement of the law by Lord Justice-General Normand and his distinguished colleagues, we are unable to find in Kennedy's case any more sound foundation for the law stated in Campbell. We have no doubt that the law was therein incorrectly stated, and that what was said in Beard's case as to the effect of self-induced intoxication in relation to a charge of murder, does not and never did represent the law of Scotland. There is nothing unethical or unfair or contrary to the general principle of our law that self-induced intoxication is not by itself a defence to any criminal charge including in particular the charge of murder. Self-induced intoxication is itself a continuing element and therefore an integral part of any crime of violence, including murder, the other part being the evidence of the actings of the accused who uses force against his victim. Together they add up or may add up to that criminal recklessness which it is the purpose of the criminal law to restrain in the interests of all the citizens of this country.

For the reasons we have given the learned trial Judge gave directions to the jury which were entirely in accordance with our law and which were in the circumstances properly given. We shall accordingly refuse the appeal.

We have already said that there was in any event no evidence of total alienation of reason to go before a jury and we have only to add that there was no evidence either of total incapacity to form the kind of "special intention" with which Beard'scase was concerned.