Intoxication

• Evaluation 1: no statutory definition

  Intoxication derives from Common law and so parliamentary intervention is much needed. Under the constitution of the separation of powers theory, parliament should be making the law and the judges should be applying the law. Judge-made law also goes against democracy as Parliament are voted in to make the law yet leaving to the judges to create the law.
• Evaluation 1: no statutory definition

  Common law also creates retrospective law and this is unfair as unlike statute law, there is no prior awareness of the law until it has come into force. However, judges are able to keep the law up to date and make decisions that are fit for purpose like in Richardson and Irwin.

  Reform proposal: The Law Commission in 1995 recommended codifying the existing law into a single Act of Parliament.
• AO1:

  • The defence of intoxication can apply where the D has consumed alcohol or drugs to the extent that he is no longer able to form mens rea and therefore where the d uses the defence of intoxication, he is arguing that intoxication negates his/her MR.
• voluntary intoxication:

  if the d is voluntary intoxicated the this can be a defence to specific crimes only and not basic intent crimes(Majewski)The difference between the two is that specific intent crimes have a higher form of MR whereas basic intent crimes have a lower form of MR. Examples of basic intent crimes include assault and GBH and examples of specific intent crimes include s18 GBH and murder.
• voluntary intoxication:

  • however Kingston provide that for specific intent crimes, intoxication can only be used as a defence, if the D was unable to form the Mr. If the defendant is not guilty of a specific intent crime because of his intoxication then he may be guilty of a lesser basic intent crime, if there is one (Lipman).
  • For basic intent crimes, Richardson b Irwin provided that Majewski was too harsh and it should be available as a defence for basic intent crimes.
• • if the D drinks to give him/her Dutch courage to commit the crime then this is not a defence even to a specific intent crime (Gallagher) and a D cannot rely on druken mistakes, for both specific and basic intent crimes.
• Involuntary intoxication:

  • so the D is unaware that they are consuming alcohol or drugs - Kingston, the D takes prescribed drugs but has an unpredictable effect - bailey, or the D takes non-prescribed drugs and has an unexpected reaction to drugs - Hardie, then the D may rely on the defence of involuntary intoxication
  • this defence can be used as a defence to both specific intent crimes and basic intent crimes (Majewski)
  • however, like voluntary intoxication, Kingston provides that it can only be used as a defence if the D was unable to form the mens rea.