Defences: Intoxication

• Intoxication - Relevant Factors:

  1. Was the Crime Committed one of Basic Intent or Specific Intent?
  2. Was the Defendant Intoxicated Voluntarily or Involuntarily?
• Was the Crime Committed one of Basic Intent or Specific Intent?

  • What crime the D has been charged with is important in deciding if they can use the defence or not.
  • Basic Intent
  • Specific Intent
• Basic Intent:

  • Mens rea includes recklessness (can be as well as intention)
  • Assault
  • Battery
  • ABH
  • GBH/ Wounding s.20
  • Unlawful Act Manslaughter
  • Gross Negligence Manslaughter
• Specific Intent:

  • Mens rea requires intention ONLY
  • GBH/ Wounding s.18
  • Murder
  • Theft
  • robbery
  • Burglary (s.9(1)(a))
  • Attempted Offences
• Was the Defendant Intoxicated Voluntarily or Involuntarily?

  • The court will also consider whether D was intoxicated voluntarily or involuntarily.
  • This asks whether D chose to get drunk/high.
• Voluntary Intoxication:

  • D has chosen to take an intoxicating substance. This can be by taking alcohol, illegal drugs or other intoxicants such as through sniffing glue. It can also occur where D knows that the effect of a prescribed drug will be to make him intoxicated.
• Involuntarily Intoxication:

  • D did not know he was taking an intoxicating substance. This may be where, for example, a soft drink has been 'laced' with alcohol or drugs. It also covers situations where prescribed drugs have the unexpected effect of making D intoxicated.
• Voluntary Intoxication - Specific Intent Crime:

  • Can use intoxication if it means no intention has been formed.
  • Can't use intoxication if the intent if formed before intoxication.
  • Can't use intoxication if intent is still formed whilst Intoxicated.
• Voluntary Intoxication - Basic Intent Crimes:

  • Can't use intoxication if recklessness of getting drunk satisfied the mens rea.
  • Court should ask if D would have realised the risk if sober.
  • Unless it was past intoxication leading to dependency or long term impacts.
• Involuntary Intoxication - Specific Intent Crime:

  • Can't use intoxication if drunken intent is still present.
  • Can use intoxication if no intention has been formed.
• Involuntary Intoxication - Basic Intent Crimes:

  • Can use intoxication as there is no reckless behaviour present.
• Voluntary Intoxication & Specific Intent Crimes:

  • Beard 1920
  • Sheehan & Moore 1975

  However, there is no defence where D has still formed the mens rea despite being intoxicated

  • Gallagher 1963
  • Coley 2013
• Beard 1920:

  • D raped and suffocated a 3 year old. He claimed he was too drunk to form the mens rea of murder.
  • Type of offence: Specific Intent
  • Outcome: "If he was so drunk that he was incapable of forming the intent required, he could not be convicted of a crime which was committed only if the intent was proved."
• Sheehan & Moore 1975:

  • D's threw petrol over a homeless man and set fire to him.
  • Outcome: D's did not have the mens rea, they were too drunk to have formed any so were not guilty.
• Gallagher 1953:

  • D had already decided to kill his wife but got intoxicated in order to give him the 'Dutch Courage' to carry out the murder.
  • Outcome: Guilty of murder as the intent was formed before the intoxication.
• Coley 2013:

  • Voluntary intoxication (cannabis) lead to a psychotic episode causing the D to stab his neighbour.
  • Outcome: Guilty of murder, intoxicated intent is still intent.
• Voluntary Intoxication & Basic Intent Crimes:

  • A basic intent crime is one where recklessness is enough to form the mens rea.
  • Includes:
  • Assault
  • Battery
  • ABH
  • GBH s.20
  • Manslaughter offences
• Voluntary Intoxication & Basic Intent Crimes:

  • General rule:
  • The Defence is not allowed. Getting intoxicated is reckless behaviour, meaning the mens rea is satisfied through D getting drunk/ taking drugs.
• Voluntary Intoxication & Basic Intent Crimes:

  • Are two exceptions to this:

  1. D would not have realised the risk if they had been sober.
  2. D's intoxication was due to long term intoxication (Such as alcohol dependency) or health issues caused by past intoxication.

  • Majewski 1977
  • Richardson & Irwin 1999
  • Harris 2013
• Majewski 1977:

  • D took a large amount of drugs over 48 hours period then went to the pub and drank alcohol. He started a fight with 2 others, then attacked the bartender and 3 police officers.
  • Outcome: Guilty of ABH
  • Rule: Voluntary intoxication is reckless and is no defence to a basic intent crime.
• Richardson & Irwin 1999:

  • D's and V were university friends who were all drunk. D's picked up V and held him over a balcony, causing V injury when he was dropped.
  • Outcome: Conviction overturned on appeal.
  • Rule: A jury should ask if D would have seen the risk if sober.
• Harris 2013:

  • D had previously been a heavy drinker. He stopped drinking and suffered mental disorder as a result. He set fired to his house after hearing voices telling him to do so.
  • Outcome: Defence allowed
  • Rule: An illness caused by D's own fault should be treated differently to someone who has become voluntarily intoxicated. If he was not aware his actions might endanger life then he could not form the mens rea.
• Involuntary Intoxication & Specific Intent Crimes:

  • Involuntary intoxication can include:
  • Unexpected side effects of drugs taken under prescription.
  • 'Sedative' drugs which have an unexpected effect on D
  • D being spiked by others, without D's knowledge
  • D being forced to drink under duress.
• Involuntary Intoxication & Specific Intent Crimes:

  • The Defence is only allowed if D did not form the mens rea whilst intoxicated.
  • Even if they were not aware of their intoxicated state, if D did have the mens rea for the crime thy will still be guilty.
  • Kingston 1994
  • Hardie 1985
• Kingston 1994:

  • Facts: D was drugged then invited to abuse a 15 year old boy for the purposes of blackmail.
  • Outcome: Guilty - defence not allowed
  • Rule: If D has the necessary mens rea when he committed the offence then he will be guilty. Involuntary intoxication will not be a defence even if D would not have committed the offence sober.
• Hardie 1985:

  • Facts: D took his girlfriend's sedative to calm down but it had an unusual effect on him and he set fire to a wardrobe.
  • Outcome: Defence allowed, D not guilty.
  • Rule: This is to be treated as involuntary intoxication as D was not aware of the effect the drug would have on him.
• Involuntary Intoxication & Basic Intent Crimes:

  • Here the defence is allowed
  • As D was not intoxicated voluntarily, there is no recklessness to for the mens rea.
  • This was decided in Hardie.
• Intoxicated Mistake:

  • If D is mistaken about a key fact because they are intoxicated, this can sometimes be taken into account by the jury:
  • R v Lipman 1970
  • Criminal Justice and Immigration Act 2008, s.76
• R v Lipman 1970:

  • D took LSD and hallucinated, believing he was being attacked by snakes. The 'snake' was his girlfriend beside him in bed, who he killed by stuffing bedsheets down her throat. He was not guilty of murder (but guilty of manslaughter).
• Criminal Justice and Immigration Act 2008, s.76:

  • If D is mistaken as to the amount of force required when acting in self-defence due to voluntary intoxication, this cannot be used as a defence.
• Intoxication - OUTCOME:

  • If successful, D will either:

  1. be able to walk free, or
  2. if there is a lesser offence available (e.g. manslaughter instead of murder), their charge will be reduced to the lesser offence (called "fall-back" offence)
• Evaluation of Intoxication:

  4 Main:

  1. Distinction between Basic Intent and Specific Intent Crimes is Illogical.
  2. Inconsistency on Fall-Back offences for Specific Intent crimes.
  3. Public Policy vs. Legal Principle
  4. Recklessness and Mens Rea
• Distinction between Basic Intent and Specific Intent Crimes is Illogical:

  • the law provides different set of rules for Basic Intent and Specific Intent offences, but his does not seem fair.
  • If there is no subjective mens rea there should be no liability (R v G and R 2003) regardless of the type of crime.
  • Majewski ignores this principle.
  • Is confusion about definition of Basic and Specific Intent offences as not all are clear (e.g. theft, burglary, sexual offences)
  • But, could be justified as courts trying to discourage reckless intoxication being used as excuse to commit crime.
• Inconsistency on Fall-Back offences for Specific Intent crimes:

  • This aspect is unfair and outcomes for defendants using the defence are inconsistent.
  • Where someone uses defence successfully for Specific Intent crime (e.g. murder), are 2 possible outcomes:

  1. D walks free
  2. D charged and punsihed with elsser, Basic Intent offence. Which of these is used depends on whether a lesser offence exists - seems unfair and inconsistent.

  • Examples:
  • Murder can be downgraded - Manslaughter
  • s.18 downgraded - s.20 OAPA
• Public Policy vs Legal Principle:

  • One issue with law of intoxication is that judges trying to balance public policy agaisnt legal principle, can make it difficult to find right outcome.
  • Public Policy says - judges, courts and government should do all they can t protect public.
  • Alcohol abuse is involved in 50% of crimes and is drain on NHS/Policing so courts have duty to discourage it.
  • However, legal principle argument = court should make sure D's aren't punished when they are not at fault.
  • Kingston case = with intoxication court more likely to support Public Policy arguments
• Recklessness and Mens Rea:

  • the rules of defence don't support coincidence rule which states that actus reus and mens rea for crime must coincide - must exist together at same moment in time (Fagan v MPC).
  • Rule from Majewski says voluntary intoxication amounts to recklessness an means D has mens rea seems to ignore this rule.
• Recklessness and Mnes Rea:

  • Decision to get drunk/high would have been made before D carried out crime.
  • D will not always foresee likely risk of harm when they get intoxication.
  • But, could be justified if seen as continuing act (Fagan) where intoxication is connected to D's actions once intoxicated, and rule justified.
• Reform of Intoxication:

  • because of all these criticisms, number of attempts have been made to change and improve (reform) law.
  • Butler Committee 1975 - proposed new offence of 'Dangerous Intoxication' with 3 year sentence if D manages to use intoxication as defence.
  • Law Commission Report 1993 - supported this idea of new offence called 'Criminal Intoxication' as well as getting rid of Majewski rule
  • Government Draft Bill 1998 - supported Majewski rule
• Reform of Intoxication - Law Commission 2009:

  • Proposed codifying the current case law with minor clarifications, such as getting rid of the distinction between Basic Intent and Specific Intent crimes.
  • Instead, it would need to be proven that D lacked intention for integral part of crime being committed.
  • However, none of these attempted reforms have been successful and law remains as it is.