Intoxication - General Defence
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The courts have created different rules for those D’s who have become involuntary or voluntary intoxicated. The courts also have applied different rules to those offences that require the MR of intention, specific intent crimes, and those that require a lesser level of MR, basic intent crimes, where recklessness is sufficient. If D is successful with the defence it results in an acquittal.
Watch the following video about the effect on society of drugs and alcohol:
Voluntary intoxication is where the defendant takes the drink or drugs of his own free will. Involuntary intoxication is where a person does not know he was taking alcohol or an intoxicating drug
Definition: A defence established by common law principals based on the in ability to form the MR of the criminal offence. The defence covers drink, drugs or other substances, e.g. glue sniffing.
Involuntary intoxication can arise where:
- The defendant’s drinks were spiked with alcohol or drugs such as where a drug is slipped into a soft drink or alcohol is added without the defendant’s knowledge
- The defendant takes drugs prescribed by his doctor in accordance with the instructions
- The defendant takes a non-dangerous drug, although not prescribed to him, in a non-reckless way. It then has an unexpected effect on the D.
R v Kingston (1994): Where the D’s drink was spiked by his friend and D was then allowed to sexually abuse a young boy. D argued the sexual abuse was involuntary. The House of Lords stated that involuntary intoxication was not a defence to a charge if it was proved that the defendant had the necessary intent when the offence was committed, even though he was not to blame for the intoxication. A loosening of the D’s inhibitions was not sufficient to negate the D’s mens rea for the crime.
R v Allen (2002): D was charged with buggery after an evening drinking and argued he didn’t realise the strength of the alcohol, so this made it involuntary intoxication. Where the defendant does not realise the strength of the alcohol or drug he has taken, it does not make the intoxication involuntary.
R v Hardie (1985): D took some valium for his anxiety and depression after falling out with his partner and threatening to leave her. The valium was not his prescription but the normal effect on a person would be to calm them down. However, D suffered from an unusual reaction to the drug as it made him more angry resulting in him setting fire to a wardrobe. D argued that the unexpected reaction to this drug made his actions involuntary.
It was held that where the defendant takes a non-dangerous drug or prescription drug the taking may be treated as involuntary and may therefore provide a defence if he does so non-recklessly and suffers from an uncommon reaction. The jury need to consider whether the drug has a recognised common reaction that is different from the D’s reaction. If the D’s reaction is uncommon this case be classed as involuntary intoxication. However, where the drug can be said to be dangerous, there may be recklessness in self-administering it, which would be the case when the drug was well known for causing the effects.
Specific Intent crimes
The courts have created different rules depending on whether the D is charged with a specific (one where the MR to be proved is intention only) or basic intent crime (one where the MR to be proved is is either intention or recklessness).
DPP v Beard (1920): Whilst D was voluntarily drunk he raped a 13 yr old and suffocated him to death by covering his mouth up during the rape. D argued he lacked the MR of murder due to the intoxication. It was held that if D is so drunk that incapable of forming the MR then they cannot be convicted of the offence.
Sheehan & Moore v R (1975): In revenge for a minor theft the two D’s, who were voluntarily drunk poured petrol of the V and set him on fire, killing him. D’s arguments were similar to Beard. It was held as the P could not establish specific intent for GBH S18 then they were not guilty of murder. However, the D’s were found guilty of the alternative basic intent crime of manslaughter, so where there is an alternative basic intent crime recklessness may be proved for this offence.
AG for NI v Gallagher (1963): D wished to kill his wife so in order to pluck the courage (Dutch courage) he drank a bottle of whisky before stabbing her to death. It was held that as he had formed the intention to kill her before he became intoxicated, he had no defence of intoxication.
Basic Intent crimes
Majweski v DPP (1977), D was voluntarily intoxicated in a pub and was refused alcohol. D got very aggressive and the police were called. The landlord tried to get D to leave but D attacked him and spat in his face. The HL held:
- Self-induced intoxication can only be raised as a defence to crimes of specific intent, but not to crimes of basic intent.
- The Majewski rule states that Self-induced (voluntary) intoxication is no defence to a crime of basic intent as the defendant’s actions in becoming intoxicated voluntarily is in itself reckless behaviour – he knows there is a risk he will behave badly or criminally, but goes ahead anyway.
- In otherwords, as long as the P can prove D was drunk at some time upto and including the offence this satisfies the MR of the offence.
Making a mistake as to the law in England cannot be used as a defence - ‘Ignorance of the law excuses no one’. However, where a person makes a mistake about the facts of the situation that cause a criminal offence to occur can be used as a defence. The jury will be asked to look at the facts as the D mistakenly believed them to be, even if the mistake is unreasonable.
R v Lipman (1970): D voluntarly took LSD which caused him to hallucinate and believe his girlfriend was a pack of snakes attacking him. He killed his girlfriend as a result but argued an intoxicated mistake meant he should not be guilty of murder. It was held that where the offence committed is a specific intent crime an intoxicated mistake can be considered by the jury even if the taking of the drugs is voluntary. However D would be guilty of manslaughter as taking the LSD was a reckless course of action.
Voluntary Intoxicated mistake allowed for criminal damage
There are some basic intent crimes created by parliament that have been held by the courts to be allowed the defence of intoxication, even where the D has made a mistake as to the facts of the situation. Section 5 of the Criminal Damage Act 1971 allows an honest belief that person would have consented as a defence whether or not the belief is justified. This includes intoxicated mistakes as to belief in consent. Parliament specifically requires the court to consider the D's actual state of belief even where voluntarily intoxicated
Jaggard v Dickinson: D was allowed to use this defence where he broke the wrong window of a house he thought was his friends, due to being voluntarily intoxicated as S5 has been interpreted to include mistaken beliefs. So the Majweski rules don’t apply to the offence.
Voluntary intoxicated mistake not allowed for self defence
For the defence of self-defence parliament has taken a different approach under Section 76(5) of the Criminal Justice and Immigration Act 2008. The act makes it clear that "D cannot rely on any mistaken belief attributable to intoxication that was voluntarily induced".
R v Hatton (2005): D drank 20 pints of beer and thought V hit him with long stick. V was found dead with blows from sledgehammer. D was not allowed to use the mistaken belief as to V using force when claiming self defence as was found guilty of murder.
R v O’Grady (1989): Where D was found G of manslaughter after mistakenly using excessive force against friend the mistaken belief was not allowed to be used for self defence.
- Now you have done the case notes and understand the law on intoxication click this link to test yourself on cases.
- Complete the blank revision summary table about Intoxication as a defence and email it to mark. Click here for Intoxication revision table activity.
Read the following problem question ( January 2012 Law 03 QP for the full exam paper) and write answer of no more than 3 A4 sidea of paper
Discuss the possible criminal liability of Adrian for the injuries to Ben. (25 marks)
Criticisms of the current defence of Intoxication and suggested reforms
There are a number of criticisms to make of the law:
- The distinction between specific and basic intent.
- Public Policy issues
- Mens Rea
- The relationship of intoxication to other defences.
- Involuntary intoxication
The distinction between specific and basic intent
The general law takes a subjective approach to mens rea. If there is no subjective mens rea there should be no liability as can be seen in the case of R v G and R (2003). For specific intent crimes the normal approach will be applicable.
The case of Majewski (1977) ignores this subjective approach for basic intent crimes. However, for basic intent crimes, which are normally high in volume, the moral questionability of getting drunk is appreciated and a pragmatic approach is adopted. Intoxication is ignored and mens rea is constructed. It is asked what the mens rea would be like if the person were sober.
The distinction therefore requires judges to decide whether each criminal offence is one of basic or specific intent. This seems not to be settled as can be appreciated from the appeal in the case of Heard (2007) where the court had to decide if the offence of sexual assault contrary to s3 of the Sexual Offences Act 2003 was one of specific or basic intent. It seems surprising that Parliament does not make it clear in drafting an Act.
There are also some bizarre anomalies – for example attempted rape is a crime that can be defended by a plea of intoxication, rape cannot.
Where the D is charged with murder or S18 he can use the defence of intoxication, even if voluntary, as these are specific intent crimes. If the D is found not guilty there are fallback offences of manslaughter and S20 for which the D is likely to be found guilty under the Majewski rules.
However for other offences there is often no fall back offence if a D is found not guilty of a specific intent crime which seems to allow a culpable D to have an unfair advantage if he is lucky enough to ‘choose’ such an offence, e.g. Theft.
Public Policy issues
Public policy means that no person, judge or government official can legally perform an act that tends to injure the public. With the defence of Intoxication this means the defence should protect the public from those who abuse drink or drugs through case law or legislation.
The law on intoxication as a defence is largely policy based. This is because:
- Intoxication is a major factor in the commission of many crimes; many offences are committed when D is in an intoxicated state. There is a need to balance the rights of the D, the V and society as a whole; if intoxication were always the defence then the V’s rights would not be protected.
- There is a conflict between public policy and legal principles. Public policy is based on public protection and the encouragement of good behaviour. Legal principles impose liability where there is fault and this fault must be voluntarily assumed or at least a deliberate risk taken.
Over the last 30 years public policy has become the main theme of law on intoxication not truly balancing the proof of fault on behalf of the D. For example parliament has enacted the Criminal Justice and Immigration Act 2008 that states for self-defence D cannot rely on ‘any mistaken belief attributable to intoxication that was voluntarily induced’. This ignores one of the key principles of criminal law that D must be proved to have the MR of the offence before proven guilty.
Some areas of the law on intoxication appear to be contrary to the normal rules on mens rea and actus reus. For basic intent crimes Majewski states that getting drunk is a ‘reckless course of conduct’ generating the mens rea, ignoring the principle that mens and actus must coincide. So the decision to drink several hours before D commits the AR of any offence generates the MR at that point, simply by becoming intoxicated. Even though the D has no idea at the time of drinking that he will commit and offence the intoxication is regarded as a reckless course of action for doing something ‘stupid’.
The relationship of intoxication to other defences
In the case of Richardson and Irwin (1999) the defendant students were messing around after drinking and held their friend over the balcony of his room. Unfortunately he fell and was severely injured. The court decided that the jury should consider the effect of alcohol on the consent to this horseplay. This seems at odds with other defences such as self defence, where cases such as O’Grady and Hatton have specifically excluded a mistaken belief as to the use of force for self defence.
In the defence of insanity, if the defendant’s drink or drug taking produces a disease of the mind he can be found insane under the M’Naghten rules. This was discussed in the early case of Davis (1881) and approved in both Beard (1920) and Gallagher (1963).
A final area where the law is in need of reform is where the D’s inhibitions are broken down by being made intoxicated involuntarily. The decision in Kingston 1994 makes the D guilty as he was held to have formed the MR. This ignores the fact that the D was not to blame for being intoxicated and such a D would not be guilty of a basic intent crime where the P relied on recklessness (Hardie 1984). This appears to be unfair to Ds in Kingston’s situation.
In 1975 the Butler Committee proposed the creation of a new offence of ‘dangerous intoxication’. The idea was that where the D was acquitted of a serious offence the D would alternatively be guilty of ‘dangerous intoxication’, with a maximum sentence of 3 years. This was aimed at balancing public protection and the D’s rights.
The Benefit of this change would be to deter members of the public from abusing drink or drugs rather than say with the Majweski rules unfairly allowing the P just to show the D was drunk as the MR of an offence, which goes against the general principle in criminal law that a D must be shown to have some awareness of his criminal actions before being found guilty of a crime.
However, this proposal was rejected, as the offence did not distinguish how serious the original offence had to be to trigger a charge.
In 1993 the Law Commission proposed that evidence of voluntary intoxication should be available for all offences on the issue of MR. This would allow the D to be acquitted if he did not have the necessary MR and effectively gets rid of the Majewski rules. A separate offence of ‘Criminal Intoxication’ similar to that suggested in 1975 was also proposed. The benefit would be the same as the 1975 proposals.
The idea was abandoned and in 1995 the Law Commission proposed codifying the present law as it stood, including the Majewski rules, which it felt operated ‘fairly, on the whole and without undue difficulty’.
In 1998 the Government issued a draft Offences Against the Persons Bill. This supported the rule in Majewski by stating the D could not rely on evidence of intoxication to negative recklessness.
The Law Commission has proposed a draft bill based on their report of January 2009. The proposals are:
1.Majweski rule: They approve of it, and even clarify it a little! Rather than providing the MR for the crime, they argue that D should be treated as “having been aware at the material time of anything which D would then have been aware of but for the intoxication”.
2.Specific Intent crimes: Well, they call this the “subjective fault element”, but essentially this confirms the current law. The prosecution has to prove the relevant state of mind.More importantly the proposed reform defines what a specific intent crime resolving the potential problems with courts being inconsistent in deciding this across a range of offences as seen in Heard. Specifc intent crimes would include Intention as to consequence, Fraud, dishonesty and Knowledge or belief as to something.
3.Drunken Mistakes: D’s mistake as to a belief should only be taken into account if he would have had the same belief if sober, even if the mistake was genuine, but this would apply to strict liability offences. This would resolve all the inconsistencies where a mistake is due to being drunk and this causes another defence. So instead of self defence currenlty not allowing the use of the defence where it is due to a drunken mistake but an intoxicated mistake as to consent being allowed as a defence all defences would apply the same rule, therefore striking a better balance between the rights of the D to argue a drunken mistake and the rights of society to be protected from those who commit crimes due alcohol abuse.
4.Involuntary Intoxication: Again, seems to confirm the current law (Kingston). It should be taken into account in establishing MR and any mistakes as to facts. They also come up with a ‘non-exhaustive’ list of the type of involuntary situations they think should be included. (What’s interesting is that this is interpreted quite widely!), eg Intoxicant administered without D’s consent, D takes an intoxicant under duress, D takes something he reasonably thinks isn’t an intoxicant, D takes something for a proper medical purpose (includes diabetics).This provides a much clearer framework for those belieivng they are involuntarily intoxicated instead of having to leave it upto a patchwork of cases to try and work it out.
5.Burden of Proof: The assumption is that D is sober, and even if he was intoxicated, that he was involuntarily intoxicated. If D is alleging that he was involuntarily intoxicated, then he has to prove it on balance of probabilities. There is a potential reverse burden of porof issue here similar to Insanity/DR based on the right of the D to be innocent until proven guilty as shown in the Human Rights Act Art 6. However, the lower standard of proof and the fact that D is likley to have any evidence of involuntary intoxication available rather than the P makes this reform understandable and at least clarifies the law compared to confusion with this issue looking at the complex web of cases.
However this bill has not been enacted and the law remains to be developed by case law. Click here for access to the full report.
Now try and complete the quiz on the criticisms and reforms on the defence of Intoxication.Click Here.
Evaluation Essay Assignment
Complete the following essay title using the plan below it and hand in/email your essay to Mark.
Write a critical analysis of any two of the general defence (insanity, automatism, intoxication, consent, self defence/prevention of crime). Include in your answer a consideration of any proposals for reform of one of your chosen defences (25)
Read the article about intoxication as a defence at this link.
Answer the questions on the attached sheet and email your answers to Mark. Click here for the work sheet.