Evaluation (Intoxication)

• Law of Intoxication


  The conflict between public policy and legal principle
• The defence of intoxication tends largely to reflect public policy and is pragmatic rather than principled
• There is a reluctance to allow D when voluntarily intoxicated to escape responsibility for any criminal offence
• Historically, there has been a tendency to focus on the rights of the victims rather than the rights of D
• s.76(5) Criminal Justice and Immigration Act 2008 indicates that D cannot rely on 'any mistaken belief attributable to intoxication that was voluntarily induced'

  
• s.5 Criminal Justice Act 1971 allows D a defence to a charge of criminal damage when D is voluntarily intoxicated and has made an honest if unreasonable mistake

  
• The law of intoxication usually appears to be unfair to D but not consistently so
• The Majewski rules do not allow a defence of intoxication for basic-intent crimes which require recklessness because D's voluntary intoxication itself is considered to amount to recklessness

  
• The Law Lords in DPP v Majewski 1977 rejected the claim that the direction of the judge to disregard evidence of the appellant's intoxicated state in determining whether he had the necessary intent contravened s.8 Criminal Justice Act 1967

  
• Section 8 of the 1967 Act was irrelevant, since that section dealt only with matters of evidence and the rule that a defendant could not excuse his/her conduct by relying on self-induced intoxication was a rule of substantive law

  
• There is lack of any clear definition between basic and specific intent crimes
• In Heard 2007, Lord Simon tries to define the difference between specific-intent and basic-intent crimes but refers to an 'elusive distinction' between them

  
• Rape in R v Fotheringham 1988 referred to 'recklessness' and therefore implies the offence was one of basic intent
• The new definition of the offence of rape in the Sexual Offences Act 2003 does not mention the word 'recklessness'
• It is uncertain whether the offence of rape post 2003 is specific or basic intent
• For specific intent offences, it is theoretically possible for D to escape liability but this rarely happens because of the fallback principle
• If D cannot be found guilty of murder, a specific intent crime, because of a lack of intention, D can still be found guilty of involuntary manslaughter, for which intention is not required
• The fallback principle, however, cannot work for theft because there is no lesser offence to fall back on
• If a defendant successfully claims s/he did not form mens rea for theft because s/he was too intoxicated, D will not be liable
• Sexual Assault under s.3 Sexual Offences Act 2003 is a basic intent crime for which voluntary intoxication affords no defence of intoxication

  
• D's inhibitions will usually be broken down when s/he suffers involuntary intoxication
• Kingston argued (R v Kingston 1994) that if he had not been made intoxicated, his inhibitions would not have been broken down
• The Majewski rules indicated that getting drunk was a reckless course of conduct
• The voluntary intoxication may have occurred hours before D commits the actus reus of the offence
• Recklessness in becoming intoxicated means that D takes a general risk of doing something stupid when becoming intoxicated