Director of Public Prosecutions v Eadon [2019] IESC 98 (20 December 2019)

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Judgment of Mr Justice Peter Charleton delivered on Friday 20 December 2019

1. Celyn Eadon, the appellant, was 19 years old when he killed his mother Nóirín Eadon at

their family home in Derrycrieve, County Mayo. On being arraigned in January 2014

before the Central Criminal Court, Carney J sitting in Castlebar, he pleaded guilty to

manslaughter. This plea still stands. At trial, the homicide and the accused’s responsibility

for it were not contested. Essentially, the jury were considering the facts in order to

search out the accused’s state of mind so as to determine whether the plea to

manslaughter properly met the fault of the accused or whether he should instead be

convicted of murder. The jury, making findings of fact on issues of diminished

responsibility and intoxication as partial defences to murder, rejected these defences and,

on 5 February 2014, returned a verdict of guilty of murder. That conviction was upheld by

the Court of Appeal; judgment of Edwards J of 15 May 2018. Leave to appeal to this Court

was granted on 16 April 2019 on two issues: intoxication as a defence to murder and the

adequacy of the judge’s charge on that defence. This judgment gives reason for

2. Celyn Eadon had a substance addiction problem for approximately five years prior to this

homicide. Apart from alcohol, he had been spending €400 a week on cocaine, crystal

meth, ecstasy, cannabis in various forms. He also consumed large quantities of alcohol,

which was where this terrible journey started. Despite this, he had not been violent to his

mother or younger brother prior to the day that he killed her. In statements to the gardaí,

the attack on his mother was explained by the accused in terms which indicated internal

turmoil and involved crop circles, demons and poison gas invading his home, and pursuit

by aliens. He claimed that he killed her with a knife because he “didn’t know whether it

was my mother”, that she “was a totally different person” and that she was replaced by

an imposter and was “mad”. She suffered several stab wounds, from which she died.

3. Before the jury, the accused called psychiatric evidence asserting that at the time of the

homicide his responsibility was diminished within the meaning of the Criminal Law

(Insanity) Act 2006. For a successful plea of diminished responsibility, the conditions set

out in s 6 must be fulfilled. These require the prosecution to prove that the accused

perpetrated the external element of the killing of another person, intending to kill that

person or cause that person “serious injury”, as s 4 of the Criminal Justice Act 1964

requires. Hence, the prosecution must prove murder. The essential elements of what

makes a killing unlawful remain as a burden to be proved beyond reasonable doubt by the

prosecution. For the accused to have the defence of diminished responsibility, he or she

must demonstrate a “mental disorder”, which in s 1 of the 2006 Act “includes mental

illness, mental disability, dementia or any disease of the mind”, but, most relevant to the

circumstances here, specifically “does not include intoxication”. Under s 6(1)(c), that

mental disorder need not be “such as to justify finding him or her not guilty by reason of

insanity” but the accused must demonstrate that his or her mental disorder “was such as

to diminish substantially his or her responsibility for the act”. The burden of

demonstrating clearly that the accused laboured under diminished responsibility, or was

insane at the time of the murder, rests on the defence as an evidential burden to the

standard of probability; The People (DPP) v Heffernan [2017] IESC 5. The full detail of

4. A consultant psychiatrist called on behalf of Celyn Eadon was of the view that his many

years of high ingestion of pharmaceuticals had damaged his brain function and thus

brought about a mental disorder which reduced his control over his actions and his

responsibility for killing his mother. The jury did not find that evidence convincing to the

requisite standard. That does not mean that the evidence was not honest, it only means

that they preferred the contrary evidence. Hence, the accused was left without diminished

responsibility as a defence and intoxication as a defence thus came to the fore. This

defence tends to be more complex in terms of applying it to a given set of circumstances

than, for instance, self-defence since most people sitting on a jury will appreciate that a

person under attack is entitled to use reasonable force to defend themselves.

Drunkenness as a defence, however, has always tended to be more policy based and

where the focus should lie requires not a lengthy, but an adequate, explanation from the

trial judge to the jury. This, as McKechnie J holds, the jury did not get.

5. As to the fundamental direction that grounds a judge’s instructions to a jury in a criminal

trial, Carney J cannot be faulted. He told the jury that the prosecution had to prove their

case, that the accused did not need to contribute to the evidence at the trial, that the

standard was to demonstrate that no reasonable doubt remained, and that this entailed

disproving any basis for a defence raised by the accused. Their task was to approach the

evidence shrewdly and to judge the case based on the evidence which they had heard,

taking into account any argument of counsel, but not mistaking any question to a witness,

or any statement in a speech by counsel, as evidence. He defined murder, in accordance

with s 4 of the Criminal Justice Act 1964, as an unlawful killing where the accused

intended to either kill the victim or cause the victim serious injury. In this context, an

unlawful killing is one where the accused is not acting in proportionate and reasonable

self defence, a matter which did not arise in this case. While, he said, a person is

presumed to intend the natural and probable consequences of their actions, the onus of

proving beyond reasonable doubt that the presumption had not been rebutted remained

at all times on the prosecution. Central to his directions on the defences raised by the

accused was the diminished responsibility claim. Carney J’s charge to the jury on that

issue is not appealed. As to intoxication, the trial judge told the jury that this could be a

“freestanding” defence apart from any issue as to brain damage from years of drug-

taking leading to diminished responsibility for killing, and that:

the voluntary taking of drink or drugs does not under our law form a defence or any

mitigation in one’s responsibility to society … that is the law. But it is of course that

situation that intoxication is part of the mix in relation to whether a person is

capable of forming the necessary intent [to kill the victim or to cause the victim

6. That direction was wrong. A person may be capable of intending to kill and yet not so

intend. An example would be that an individual becomes furious over derogatory remarks

made about his mother, he suppresses his anger, sees, but decides not to use, a nearby

kitchen knife, and walks away. A person may have a drunken ability to intend to kill and

yet may purposely engage their consciousness in order to murder someone. A drunken

intent is still an intent. An example would be that a person gets very drunk and becomes

unusually furious in consequence of an argument, picks up a brick and brings it down the

victim’s head, intending to cave in his skull. A person may kill but have no ability to

intend to do what was done, to take the last example, because his emotions are not just

loosened by the alcohol he has consumed but he has entered a state where his conscious

mind is no longer controlling his body to any extent. The problem is, as the trial judge

said in his charge to the jury, no one can see inside the accused’s mind. What the

accused intended is to be inferred from what others see and hear; the facts on the

ground, meaning the state of the victim’s body or the presence or absence of defensive

markings; any admissions made by the accused which explain his mental state at the

time; a prior declaration of intent; and the application of shrewdness and commonsense

7. But the key factual issue for a jury always is: did the accused intend to kill or cause

serious injury in striking the victim? It is not whether the accused was capable of acting

purposively but whether in dispatching the victim he did so with the specific purpose of

causing death or serious injury. Were it to be the case, referring now to the evidence

before the jury, that the accused, by reason of alcohol consumption, acted where his

mind was not engaged with his actions or were it to be the case that in consequence of

intoxication the accused believed that he was struggling with an alien from outer space

and so intended to kill or cause serious injury to a dangerous attacking and malign non-

human creature, the mental element of the crime would be missing. Hence, in those

circumstances, the action would be assault or manslaughter but not murder. In all such

examples, however, the true position is that the ability to intend to kill or cause serious

injury is only part, but can be a very important part, of the analysis. If someone is not

able to intend to kill or cause serious injury, then in striking a blow they did not commit

murder. If someone is capable of acting with the purpose of killing or causing serious

injury, but does not as a matter of fact have that intent, they did not commit murder.

Thus, it is not whether someone was incapable by reason of alcohol consumption of

forming any intent to kill or cause serious injury but, rather, the question is did they, as a

8. On this appeal, the Director of Public Prosecutions has pointed out that counsel for the

prosecution had correctly summarised the law on intoxication as a defence, stating to the

jury in the closing speech that the accused would not be guilty of murder but guilty of

manslaughter if, by reason of ingesting alcoholic drink and drugs, he did not intend to kill

or cause serious injury to his mother. Hence, the argument is that deficiencies in the

judge’s charge should be supplemented by what counsel said in closing the case and

9. A decade ago, counsel for both the prosecution and defence confined any mention of the

law to what was essential to whatever argument they wished to make. Thus, the nature

of what constitutes a reasonable doubt received mention, but was not elaborated upon.

What constituted robbery or murder was outlined, but not in such a way that counsel

10. That restraint is central to the proper division of responsibility, so that it is the trial judge

that gives directions and that is what a criminal trial requires. Essential to a trial “in due

course of law” under Article 38.1 of the Constitution is that there is a judge to act

impartially, to ensure that testimony is admissible, and the conduct of witnesses and of

counsel stay within the limits of decorum, to make legal rulings based on reason, to

instruct the jury as to their function, the burden and standard of proof, the legal elements

of the charges, any defences in respect of which the accused has adduced sufficient

evidence, and to summarise the essential facts and how inferences might be drawn from

these, while highlighting any essential points on which the verdict of the jury may hinge.

It is clear that while the trial judge’s charge should include a brief summary of the

prosecution and defence cases, and that he or she is entitled to comment on these, a

judge should not enter into advocacy when expressing a view and should state the

respective roles of trial judge and counsel so that the jury is aware that they alone are

the tribunal of fact and are unfettered by any apparent opinion expressed by the judge.

The jury are only bound by the judge’s directions on points of law. Any especial warning

relevant to the case should also be given, such as an accomplice warning, or any

necessary reference to an uncorroborated confession statement by the accused in

accordance with s 10 of the Criminal Procedure Act 1993. The authorities are clear that a

wide measure of appreciation should be given to the trial judge on any appellate analysis

as to the structure and form of the charge; Attorney-General v Murray [1926] IR 266, R v

Lawrence [1982] AC 510 per Lord Hailsham LC, The People (DPP) v Gleeson [2018] IESC 53,

paragraphs 8-9, Coonan and Foley, The Judge’s Charge in Criminal Trials (Dublin,

2008) chapter 2, and Archbold, Criminal Pleading, Evidence and Practice (66th edition,

11. As McKechnie J states, there should be no blurring of the role of counsel and the judge; or

of the judge and the jury. The judge assists the jury by pointing to relevant facts and by

giving a brief summary of the essential evidence, a concise statement of the prosecution

and defence cases and any pivotal points in the case. Usually these are one and the

same. The judge may read a note of the evidence to the jury, if they request that.

However, the judge is not assessing the facts and is not finding guilt or making

determinations of the weight of evidence in a jury trial. It is the jury who are collectively

the judges of fact. A jury does not hear legal argument; a judge does. A jury hears and is

bound to follow any legal direction from the judge. The judge is sworn to adjudicate on

law and, hence, it is his or her task to deliver a statement of the law to the jury in the

context of the issues in the case. A judge is a servant of the law, and as sworn, acts

without fear or favour, affection or ill-will towards any person; Article 34.6.1º of the

Constitution. The jury is sworn to give “a true verdict … in accordance with the evidence”;

Juries Act 1976 s 18. Counsel have no such function and should not trespass on either the

role of the trial judge or that of the jury. The duty of counsel for the prosecution and the

defence is to argue their respective cases. It is not the function of the trial judge to

contend for any particular scenario, nor is there a requirement for him or her to reiterate

what is obvious. The trial judge will have heard the entire case and must be presumed to

have an appreciation of the building blocks of what the prosecution allege and how this is

countered by the defence, if any evidence is adduced by the defence. Hence, the judge is

entitled to a measure of appreciation as to the manner in which it is felt right by him or

12. In contrast to the objective charge given by the trial judge on the standard of proof and

what was said about the meaning of what is a reasonable doubt, it is not appropriate for

counsel to give examples that stick in the mind of the jury as a nagging, but inaccurate,

counterweight to proper legal directions. It did not happen in this case, but reference has

been made in other cases to a reasonable doubt being the kind of shock that a parent

would feel on being woken up in the middle of the night and told that their son had just

been arrested for robbing a bank. Of course, a parent would not believe that such a thing

could be true, unless their child had a criminal track record; a fact that would, in any

event, usually never be disclosed to a jury. That example has nothing whatsoever to do

with a reasonable doubt. The function of finding fact exercised by a jury in a criminal trial

is objective, the jury are acting as part of the judicial function but only in relation to fact,

and no one with an emotional interest in a case should serve as a juror or judge. The

presumption of innocence is not a belief in the innocence of a close relative, but an open

mind that assumes nothing against the accused; unless, and until, the prosecution prove

a relevant fact beyond reasonable doubt. In that respect, the presumption of innocence is

like a blank sheet of paper upon which the jury may write proven facts, but may only

write proven facts, not supposition or conjecture; and then the jury must assess such

facts in the context of the argument of counsel as to the meaning of the facts, as to what

they do or do not amount to; and then the task of the jury is to decide if there is

sufficient proof to pronounce the accused guilty of the crime charged. If not, the verdict is

13. To accede to what the Director of Public Prosecutions has argued for on this appeal is to

invite both confusion on roles and would amount to the overturning of the essential

architecture of a criminal trial. Instead, counsel should leave legal directions to the trial

judge and confine argument to matters of fact with a view towards persuading the jury of

the validity of their respective cases or the weakness of whatever case has been made

14. At page 121 of his judgment in The People (DPP) v Reilly [2005] 3 IR 111, McCracken J

for the Court of Criminal Appeal, states that the law on intoxication “has been present in

the common law since before the foundation of this State and has been the basis of

numerous decisions, particularly in the realm of unlawful killings and unlawful assaults.”

Were the string of decisions from The People (Attorney General) v Manning (1955) 89

ILTR 155 to 312 to The People (DPP) v Murphy (Court of Criminal Appeal, unreported, 8

July 2003) to The People (DPP) v McBride [1996] 1 IR 312 to the Reilly case itself,

abrogated in favour of reasoning based on strict logic, then this would have to be “done

by the legislature.” While the common law can develop incrementally, where a

fundamental choice is to be made as between policy that completely alters the existing

law and the application of precedent, both the constitutional order and the requirements

of legal certainty necessitate that judges apply, rather than invent, the law. There is a

difference between gathering together a body of disparate cases applying negligence as

an ingredient of various torts and turning those precedents into a free-standing tort in

itself, as in Donoghue v Stevenson [1932] AC 562, or allowing inherent reliability and

trustworthiness as a general exception to the hearsay rule arising out of the myriad of

exceptions, as in Ulster Bank v O’Brien [2015] IESC 96, and a decision that turns existing

law subject to numerous analyses, including by the Law Reform Commission, on its head.

Such changes were made in other jurisdictions, rejecting the implication of mental state

in drunkenness in favour of an individualised approach, in R v Daviault [1994] 3 SCR 63

which was a common law development, or upon the application of the Canadian Charter

of Fundamental Rights and Freedoms in R v O’Connor (1980) 146 CLR 64.

15. As McCracken J stated, the law on intoxication pre-dates the foundation of the State and

was part of this jurisdiction’s inheritance of law under Article 50.1 of the Constitution. In

fact, the law continues to be as stated in the 26th edition of Archbold’s Pleading, Evidence

and Practice in Criminal Cases (London, 1922, Roome and Ross editors) at 19-20, despite

the reanalysis of the law in such English cases as R v Morgan [1976] AC 182 and Director

of Public Prosecutions v. Majewski [1977] AC 443. These cases were the ones approved in

Reilly but the true legal position was in fact stated in the 1922 edition of Archbold. There,

the editors first state the earlier law, which was that drunkenness “which produces a

perfect though temporary frenzy or insanity … was formerly held not to excuse the

commission of any crime” and thus an offender “under the influence of intoxication could

derive no privilege from a madness voluntarily contracted, but was regarded as equally

answerable to the law as if he had been in full possession of his faculties at the time”.

This, the former law, up to the English decision in Director of Public Prosecutions v Beard

[1920] AC 479, underpins the policy of the current law whereby some diminution in

culpability is enabled to those who do not specifically intend the result of their actions.

This means that the lesser included offence to the charge is the one of which they are

guilty; thus wounding with intent becomes wounding, and homicide with intent to kill

becomes manslaughter due to the lack of the consequential mental element.

16. Had the trial judge in this case simply quoted from the 1922 edition of Archbold, as

follows from the preceding passage, there would have been no appeal in this case:

“Evidence of drunkenness which renders the accused incapable of forming the specific

intent essential to constitute the crime charged must be taken into consideration with the

other facts proved in order to determine whether or not he had such an intent.” Hence, it

is not that the defence is incapacity to form an intent to kill or cause serious injury in a

homicide case, though if a person has no capacity to form such an intent he or she cannot

be guilty of murder, but rather the defence is that by reason of the consumption of

intoxicants that the accused, as a matter of fact, did not form that intent.

17. Were the common law to return to its origins in the Beard decision, or were it to have

been an Irish court with knowledge of the special defence of excessive self-defence in The

People (AG) v Dwyer [1972] IR 416 reducing murder to manslaughter, or the humane

decision of the House of Lords in R v Camplin [1978] AC 705 attributing the fixed

characteristics of the accused to the reasonable person test in provocation, it is possible

that the test that would have been applied might have related to the moral culpability for

murder: that murder being the most heinous crime, only those with the moral culpability

appropriate for conviction should be found guilty. While getting drunk is a fault, it is also

reasonable that voluntary intoxication, to the degree that the accused is no longer aware

of what he or she is doing so that they kill, does not carry the same degree of culpability

as a cold-blooded murder. McKechnie J, in his judgment, cites a range of other authorities

but all are to the same effect as regards the law in this jurisdiction. All of the options for

courts faced with this problem are comprehensively considered in Michael Dillon, The Law

18. That option of a Dwyer-type analysis was not what happened in Director of Public

Prosecutions v Beard or in Director of Public Prosecutions v. Majewski, where the House of

Lords held, for what were both policy reasons and through following the earlier precedent,

that the basic and specific test reasoning should continue. From the policy point of view,

there was good reason for not allowing voluntary intoxication to constitute a defence in

itself. This was not just because drunkenness is a voluntary action in itself which can lead

to uncharacteristic behaviour, but the alternative of finding fault in the accused getting

drunk, or high on drugs, in the first place may not always reach a just result. Certainly,

young people with no experience of drugs can ingest something with disastrous

consequences for other people, but that does not mean that they should have no criminal

responsibility. In an address to an international conference of the Judicial Studies

Institute in Dublin Castle in 1998, Dr Desmond Corrigan elucidated the connection

while drug users were responsible for 82% of burglaries, non-drug users were

responsible for the majority of detected crimes of violence including sexual

offences, murders and assaults. I would, however, dispute the label ‘non-drug

users’ in relation to violent crimes since research clearly shows that one drug is

implicated in far more crimes of violence than any other and that drug is alcohol.

Murdoch and his colleagues in an analysis of over 9,000 violent crimes from 11

different countries found that nearly two thirds of violent offenders were drinking at

the time of the crime. They report that it is now widely accepted that alcohol has a

direct and close-related effect on aggression in humans. Alcohol is a legal drug

subject to ‘controls and regulations’, yet this legislation has not reduced the

amount of crime due to alcohol nor has it reduced the police, judicial, or penal

resources required to deal with those drug related crimes. Consistently, annual

reports on crime show that alcohol-related offences outnumber other drug related

offences by 700%. Therefore, it cannot be claimed that legalisation will reduce

crime against the individual. There are risks of violence associated with controlled

drugs such as amphetamines and cocaine because of the paranoia resulting from

the use of these drugs, but most violence associated with drugs centres on

[alcohol] (quoted, chapter 25 of Charleton and McDermott on Criminal Law and

19. Regrettably, these were prescient words that may be considered in the context of the

current appeal. It is easy to attack the Majewski analysis on the basis that it is a

fundamental principle of criminal law that every crime which is not a regulatory offence,

one of absolute or strict liability, requires a mental element. Hence, assault can be

committed by recklessness but that is a state of mind requiring culpable awareness that,

for instance, putting acid into a hand dryer in a toilet may injure someone’s hands or

face. That mental state of recklessness could be argued to be as much a mental element

as an intent to kill since it is unlikely that someone takes a lethal weapon to a victim

without the purpose of killing or seriously injuring that person. In point of fact, in the first

example, the foresight from which recklessness is to be inferred might be more easily

deduced than the actions of a woman in a temper who picks up a knife on her abusive

domestic partner. Clarkson, in Understanding Criminal Law (2nd edition, London, 1983) at

p 499 illustrates this in the context of the then law of inadvertent recklessness as it then

This approach would have caused no problems if the law had simply stated that

murder was in a special position and drunkenness was a partial excuse thereto,

reducing liability to manslaughter. But instead, by adopting the broader stance,

that intoxication was a defence to all crimes of specific intention, the law was

thrown into confusion. Having developed this absurd and meaningless construct,

the law found itself having to define it. What was a crime of specific intent? The

judicial tale of attempts to define crimes as specific intent verges at times on the

theatre of the absurd (Beard, 1920; Gallagher, 1963; Bratty, 1963; Majewski,

1977) and cannot be recounted here. Suffice it to conclude that the cumulative

effect of these cases and Caldwell (1982) is as follows: Drunkenness is only a

defence to crime of specific intent. These are crimes that can only be committed

intentionally, and in which the mens rea extends beyond the actus reus. The

defendant must intend to do something more than that which is specified in the

20. And it is true, as many academic commentators argue, that Lord Birkenhead’s original

analysis in Director of Public Prosecutions v Beard can be made to take on a tortured

meaning and a life of its own. This emerges from Lord Simon’s discussion of what is

meant by crimes of specific and basic intent in R v Morgan at 216-7:

By ‘crimes of basic intent’ I mean those crimes whose definition expresses (or,

more often, implies) a mens rea which does not go beyond the actus reus. The

actus reus generally consists of an act and some consequence. The consequence

may be very closely connected with the act or more remotely connected with it; but

with a crime of basic intent the mens rea does not extend beyond the act and its

consequence, however remote, as defined in the actus reus. I take assault as an

example of a crime of basic intent where the consequence is very closely connected

with the act. The actus reus of assault is an act which causes another person to

apprehend immediate and unlawful violence. The mens rea corresponds exactly ...

On the other hand there are crimes of ulterior intent - ‘ulterior’ because the mens

rea goes beyond contemplation of the actus reus. For example, in the crime of

wounding with intent to cause grievous bodily harm, the actus reus is the

wounding. The prosecution must prove a corresponding mens rea (as with unlawful

wounding), but the prosecution must go further: it must show that the accused

foresaw that serious physical injury would probably be a consequence of his act, or

21. Essentially, however, this resolution between logic and policy has devolved from choices

made by the courts in the formulation of the common law. Prior to Director of Public

Prosecutions v Beard, it was doubtful if even automatism brought on by intoxication

afforded any excuse where the consumption of the mind-altering substance was

voluntary. After that, the law was interpreted, until Director of Public Prosecutions v.

Majewski, as requiring that the accused did not just not have malice aforethought for

murder, as it was then called, in consequence of voluntary intoxication but that he or she

could not so intend. In other words, incapacity was first of all irrelevant in consequence of

intoxication, then from Beard it became the sole test until finally, in Majewski, the test

became one of fact as to whether whatever capacity might remain in consequence of

intoxication was exercised so as to intend to kill or cause serious injury. Regrettably, this

22. A more basic question in relation to murder, which almost always, unless it is a poisoning

case, takes place due to an assault with a weapon, is whether the accused may properly

be convicted of assault notwithstanding that, by reason of his or her self-induced

intoxication, the act alleged to constitute the assault was not intended at all. The law, as

set out in The People (DPP) v Reilly, will not excuse the fundamental action of assault

though, if the intent to kill or cause serious injury is missing in fact, due to self-

administered mind-altering substances, it will reduce murder to manslaughter. The House

of Lords in Director of Public Prosecutions v Majewski answered that question in the same

way. Lord Salmon stated that logic in human affairs was an uncertain guide and a very

dangerous master, and indicated that although the rule adopted by the House of Lords

was illogical it was acceptable because the alternative was imperilling the safety of the

public peace. The House of Lords decision was a refinement of the rule stated in Beard,

that evidence of self-induced intoxication negativing the mental element is a defence to a

charge of a crime or crimes of specific intent but not to a charge of any other crime. Thus,

for an accused charged with the crime of basic intent, to adduce evidence of self-induced

23. Two other points might be useful to mention. Firstly, as the trial judge told the jury in The

People (DPP) v Reilly, and as explained earlier, a drunken intent is still an intent. Further,

it is clear what policy choice was made by the Oireachtas in the Criminal Law (Insanity)

Act 2006. This further constricts the courts in reanalysing the problem of drunkenness

and the mental element of crime in a way which resets the law to accord with an intent or

not, recklessness or not, test that would make the culpability of taking drink and drugs

depend on whether the accused, possibly very young like Celyn Eadon in this appeal,

foresaw, and thus might be inferred to have intended or to have been reckless, that

violent conduct would result from his indulgence of intoxicating spirits or substances. It is

clear from s 1 of the 2006 Act that intoxication is excluded from being considered as a

mental disorder. This is a clear policy choice made by the Oireachtas and was made in a

piece of legislation relating specifically to the effect of intoxication on criminal culpability.

Both diminished responsibility and the law as to the defence of intoxication therefore run

on parallel tracks. Even though capacity for control is diminished by alcohol consumption,

this is not a defence that may be run under the rubric of diminished responsibility as

provided for in the 2006 Act. Furthermore, being drunk and being violent leaves the

violence culpable. Any crime, such as rape or forms of robbery or theft, and intentional

assaults, is thus punishable. Intentional assaults done with the realisation that death or

serious injury will result remain a state of mind from which intention under s 4 of the

24. Hence, to use an extreme example, since murder may not, by many people, be easily

contemplated or carried out, to use alcohol to assist in the accomplishment of this act has

no effect on criminal liability. The best-known instance of this is A-G for Northern Ireland

v Gallagher [1963] AC 349. There, the accused suffered from a personality disorder and a

mental illness which manifested itself in periodic explosive outbursts, which, to his

knowledge and that of and all who knew him, erupted when he had consumed alcohol. On

the day of his release from a mental hospital he purchased a knife and a bottle of whiskey

and was seen cycling towards his former home. Later he arrived at a neighbour’s house

and said he had killed his wife, the greater part of the bottle of whiskey having been

consumed either before or after the killing or both. According to Lord Denning:

If a man, whilst sane and sober, forms an intention to kill and makes preparation

for it, knowing it is a wrong thing to do, and then gets himself drunk so as to give

himself Dutch courage to do the killing, and whilst drunk carries out his intention,

he cannot rely on this self-induced drunkenness as a defence to a charge of

murder, nor even as reducing it to manslaughter. He cannot say that he got himself

into such a stupid state that he was incapable of an intent to kill. So also when he

is a psychopath, he cannot by drinking rely on his self-induced defect of reason as a

defence of insanity. The wickedness of his mind before he got drunk is enough to

condemn him, coupled with the act which he intended to do and did do.

25. This case is the main illustration for the principle that a drunken intent is still an intent.

That emphasises that the true question for the jury where drunkenness is run as a

defence in a crime requiring a specific intent is whether the accused intended that

element of the crime. The second point concerns automatism. While the decision in R v

Lipman [1970] QB 152 has been much criticised by academic commentators in England,

the underlying logic, that voluntary intoxication causing a person to temporarily go out of

their mind does not excuse homicide, but reduces the offence to manslaughter, remains

sound. In Lipman, the accused strangled the victim, his girlfriend, on an LSD trip. His

evidence was that he did not know the victim was a human being but that, in terms of his

distorted consciousness, he believed that he was wrestling with snakes in the underworld.

Some commentators claim that what they describe as his complete absence of a mental

element was ignored by the Court of Criminal Appeal and that the judgment amounted to

a redrawing of the principles of criminal law. If one takes the principle, that argument

goes, that a crime cannot be committed without a mental element as beyond argument,

then the absence of a mental element cannot be used to justify a conviction for an act

perpetrated without the will of an accused while on a drugs trip. If, on the other hand, the

counter-argument runs, the use of such a drug is commonly known to cause aggression,

or to bring a person under its influence to behave aggressively, or perhaps to behave

unpredictably, such foresight in an accused may be evidence capable of being regarded

by a jury as amounting to a reckless disregard by the accused of the consequences of his

actions. The abuse of such a drug, if death results from it to another party at the hands of

26. Non-voluntary intoxication, as where a man slips pharmaceuticals into another man’s

drink at a party, with violent consequences, is treated of a different order than the kind of

conduct illustrated in The People (DPP) v Reilly. There the accused spent the night

drinking over several hours, only going to bed early in the morning. He had a knife in his

possession and during the night he got up and stabbed to death a sleeping baby in the

same room. The accused was found so asleep in the morning that throwing a bucket of

water over him was the only way to rouse him. He was found guilty of manslaughter.

Involuntary intoxication, however, has always been looked at differently to what

happened in that case. The Law Reform Commission has taken the view that involuntary

intoxication can give rise to a full defence to a criminal charge which may be committed

by intention, recklessness or criminal negligence; Law Reform Commission, Report on

Intoxication (LRC 51-1979) page 11. Intoxication offences of strict liability, for example,

drunken driving are, in the opinion of the Law Reform Commission, excluded from this

analysis, and this reasoning seems unimpeachable and to accord with the existing

27. In The People (DPP) v Murphy (Unreported, Court of Criminal Appeal, 8 July 2003), the

defendant was convicted of three counts of manslaughter and various counts of arson on

Innisboffin in County Galway and sentenced to 14 years imprisonment. The accused had

set fire to a house. The fire had killed three sisters. At the trial, there was evidence of a

motive relating to being excluded from a bar. The accused was on painkillers for a rib

fracture and had been drinking in two pubs whilst waiting for the ferry and, on arriving on

the island, he had spent the night drinking in a bar, which he had eventually been told to

leave. Witnesses had described his behaviour as strange and also described him as

showing signs of alcohol intoxication and some thought that he may have been drugged

as well. At trial, automatism was not raised but involuntary intoxication was pleaded as

an aspect of that defence. However, the jury did not act on that defence. The Court of

Criminal Appeal held that the trial judge had properly directed the jury on the issue:

The charge was along the lines, firstly, that the issue or hypothesis of involuntary

intoxication had been sufficiently raised and the prosecution had to negate it

beyond a reasonable doubt. As to the law on the topic itself it was said that “… The

law on this matter … seems to be that if one is so intoxicated, involuntarily or

innocently, to the extent that one doesn’t know what one is doing and one has no

control over one’s actions, that can be used as a defence … So the test is, does a

person who is innocently intoxicated, know what he is doing or have control over

his acts? Then he cannot avail himself of this defence notwithstanding that he is so

28. On the facts, the Court concluded that “it was plainly within the scope of the jury to be

satisfied that intoxication, whether voluntary or involuntary did not exist to the required

degree and/or that any intoxication was voluntary.” This issue was also considered in

McCracken J’s judgment in The People (DPP) v Reilly. According to the conclusion at p

120, if the question was whether or not voluntary intoxication in itself was a defence to a

criminal charge, “this court would have no hesitation in answering “no”.” But, as to

automatism, the court continued, making the entire passage worth quoting:

It should be made very clear what this Court is being asked to decide. The question

is not whether intoxication is in itself a defence to a charge of manslaughter, and

indeed if that were the question this Court would have no hesitation in answering

‘No’. Neither is the question whether automatism may ever be a defence to a

charge of manslaughter. This Court accepts that there are circumstances in which it

may be a defence and indeed this was clearly the direction given by the learned

trial judge to the jury in the present case. He emphasised that the jury should

acquit if there was a free standing situation where the accused was not in control of

himself. The issue is whether the jury could or should acquit if there was a situation

where the accused at the time of the death of [the baby] was in a condition where

he could not control himself or prevent the actions that led to the death of [the

baby] but where such condition was brought about by the accused’s excessive

consumption of alcohol. If those circumstances afford a defence to the accused,

then clearly the issue of whether the facts supported that defence should have been

29. In terms of future instructions to juries, it is very hard to improve on the direction of

Carney J in the Reilly case, where he was also the trial judge. This direction makes it clear

that voluntary consumption of alcohol or other intoxicants, such as drugs, cannot excuse

or lessen culpability for homicide. Involuntary consumption is a different issue, but that

has not come before the court in this case. Voluntary consumption of alcohol, whereby

the accused did not in fact intend to kill or cause serious injury, can reduce the crime of

murder to manslaughter. The culpability associated with killing another person by getting

oneself into such a state where there are predicted consequences of labile emotions and

violence, can be reflected in the sentence. But, that is not something that the jury should

be concerned with. This was the direction of Carney J in Reilly which he did not repeat in

So you acquit if he didn’t kill [the baby] or if there is a doubt about that. You acquit

if he wasn’t in control of his actions and couldn’t prevent himself doing what he did.

But that contemplates a freestanding situation of not being in control of himself. If

that situation came about through the voluntary consumption of alcohol you have

to look at the place of intoxication in the criminal law. By voluntary consumption of

alcohol I mean taking a drink when one chose to take it and had a free choice

about taking it or not. That contrasts with the situation where your drink is spiked.

The situation about drink is that intoxication is not a defence in the criminal law. It

is incapable of amounting to a defence but it is material to the question of intent. ...

Intoxication could prevent the accused person having the intent that is necessary to

sustain the crime of murder. If he didn’t have that intent, you would be concerned

with the crime of manslaughter. …You had a lot of expert evidence in relation to

things happening during sleep and if you do something that you have no control

over, say the epileptic or the diabetic in a hypo or a hyper as the case may be, if

they do something that they absolutely have no control over then they do not have

criminal liability for that. You must do something by having a free choice, even a

drunken free choice, to incur criminal liability for it. So we had evidence from these

experts in relation to the various conditions that can arise ... But I left it open to

you that if you found a free standing situation in which the accused had no control

over his actions, then he would not be criminally liable and he would be entitled to

a verdict of not guilty. But if that situation has come about because of his voluntary

consumption of alcohol then you look instead to the law of intoxication .... If you

think whatever condition arose in this case arose from the voluntary consumption

of alcohol then you look at the law of intoxication and that does not afford a

30. In the case under appeal, there was an incorrect direction by the trial judge on

intoxication mixing up a lack of capacity with a lack of intent. The above-quoted direction

made no such error and is a useful precedent, even in shortened form, since the second

part arose from a question from the jury. In the result of the present case, there should

be an order overturning the decision of the Court of Appeal and returning the prosecution

to the Central Criminal Court so that a decision can be made by the Director of Public

Prosecutions as to whether to retry the accused for murder or whether the existing plea

of guilty to manslaughter is acceptable in all the circumstances.

Result: Appeal Allowed

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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Director of Public Prosecutions v Eadon [2019] IESC 98 (20 December 2019) URL: http://www.bailii.org/ie/cases/IESC/2019/2019IESC98_0.html Cite as: [2019] IESC 98

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