Student 1406131
Number Count 1968
“The rules governing criminal liability where intoxication is concerned make little sense.”
In this essay I seek to make sense of the rules surrounding intoxication and criminal liability.
Intoxication is a significant factor in a high proportion of crimes and much research has been completed in this area. The question the law has had to react to is whether intoxication should act as a defence if either the person would not have committed the crime if they had not been intoxicated or if their intoxication was so severe that they could not have had the mens rea to commit the offence. This is a case where there is a clash between principle (no mens rea, no crime) and policy (protecting the public and deterrence) and it appears that policy has prevailed.
Lipman and Brennan are two cases which have raised the debate between principle and policy. Both cases resulted in the death of another person and intoxication was used as defence.
Intoxication does not only cover intoxication by alcohol. The defence also covers intoxication by drugs and other substances, those known to be harmful and those not considered normally harmful. Intoxication can be contrasted with other defences such as automatism, insanity and self defence, which are available for all offences. In the case of intoxication it is subject to a limitation in that it is not available for crimes of basic intent, only specific intent offences.
All crimes require both an actus reus (culpable act) and mens rea (the required mental state, either intent or recklessness) for a guilty verdict and if we examine the nature of the defence of intoxication in depth, we will discover that it is not a defence as such.
It is imperative to categorise crimes at this stage to show the difference between basic intent crimes and specific intent crimes as the rules governing both are different.
Specific Intent Offences
A specific intent offence is one which intention is a necessary condition of guilt, often described as when the mens rea goes beyond the actus reus in the sense that the offender has an ulterior purpose in mind. An example would be the aggravated offence of criminal damageor Murder.
In the case of specific intent offences the default basic principle always applies, the defendant is free to deny their mens rea for whatever reason so in these cases the question of whether the individual was intoxicated or not is relevant to the fundamental principles of criminal liability of whether the defendant formed the necessary mens rea for the offence in question. If it can be shown that he did not possess the necessary mens rea then they are not guilty.
The general rule on intoxication is that intoxication in itself is not a defence. If the mens rea is present then it is irrelevant whether intoxicants were also present, the defendant will be guilty. Mens rea is mens rea, intoxicated or not. Sheehan and Moore are the leading authority on this and this has been endorsed by the more recent case of Heard
As the default basic principle always applies with specific intent offences if intoxication is established as a defence as proof of no mens rea then the defendant must be found not guilty regardless of how the intoxication occurred, either voluntarily or involuntarily.
The exception would be the Dutch Courage Rule, a policy based rule, when a defendant deliberately gets themselves intoxicated to facilitate the offence. Gallagher refers and Lord Denning stated
“My Lord, I think the law on this point should take a clear stand. 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, not even as reducing it to manslaughter”
Basic Intent Offences
A basic intent offence is one where recklessness is a sufficient but not necessary condition of guilt. If the actus reus has been committed, the mens rea for the offence can be satisfied by proof of recklessness. An example of this would be the simple offence of criminal damage. As previously stated intoxication as a defence is not available for all crimes and cannot be pleaded in response to a basic intent crime.
For basic intent offences we then must establish if the defendant’s intoxication was voluntary or involuntary as the rules governing this differ.
Involuntary intoxication
The rules for involuntary intoxication are used to cover situations where the defendant is not aware that they are consuming an intoxicating substance, for example where a soft drink has been 'spiked' with alcohol or drugs. It is still essential to establish if the defendant had the necessary mens rea for the offence. If they did, then they will still be guilty of the offence. It would not be enough to simply show that the defendant became intoxicated involuntary.
The case of Kingston confirms this. Although it was accepted that the defendant had been involuntarily intoxicated in this case and his inhibitions broken down he still had the mens rea of the offence so was found guilty.
If the mens rea is absent through the involuntary intoxication then they must be found not guilty every time, the basic default position is resumed in that, no mens rea, no crime. R v Cole refers
If however the defendant is aware they are consuming any form of intoxicant then they will be tried under the rules of voluntary intoxication, for example if they are consuming an alcoholic drink but believe it to be weaker than it is they can not use the defence of involuntary intoxication. R v Allen refers
Voluntary Intoxication by alcohol and dangerous drugs
In contrast to involuntary intoxication voluntary intoxication is where the intoxication is self induced and is known to lead to “aggressive, unpredictable or uncontrolled” behaviour as quoted by Griffith LJ in Bailey When the defendant knows they are consuming an intoxicant, known to be dangerous the courts take the approach that, voluntarily drinking and becoming intoxicated, is reckless in itself. The House of Lords ruling in Majewski is the leading authority on intoxication and Lord Elwyn-Jones stated
“It is a reckless course of conduct and recklessness is enough to constitute the necessary mens rea” and “Self induced intoxication, however gross and even if it has produced a condition akin to automatism, cannot excuse crimes of basic intent such as assault.”
This principle was applied in relation to drugs in Lipman
Another question which is important to answer is whether the defendant appreciated and was aware of the risk. If the defendant would have been aware of the risk whilst sober then he is guilty, if the intoxication made no difference then he is not guilty. R v Richardson and Irwin refers. In this case two students dropped another student from a balcony on to the ground 12 feet below, during drunken horseplay. All parties had been drinking and the defence was such that there had been a belief that the victim was consenting. This would mean that the defendants would escape liability even though the incident was alcohol fuelled. This was accepted by the Court of Appeal. Clarke LJ said that the question was not what another person would have foreseen but what the defendants themselves would have foreseen had they been sober.
Voluntary Intoxication by non dangerous drugs
Dangerous drugs can include alcohol, hallucinogens (LSD), cocaine and amphetamines amongst others but sedatives or antidepressants are only considered dangerous if the context in which they are taken permit this.
If the defendant has consumed drugs that are not normally dangerous but their body reacts abnormally to these then we must resume the default position of no mens rea, no crime, therefore not guilty. Again if the mens rea is present then the defendant would be guilty.
The case of R v Bailey investigated both what is considered to be voluntary intoxication and also what is considered a dangerous drug. This case involved a diabetic male whose defence was he acted in automatism, caused by hypoglaecemia, due to the fact he had not eaten since consuming a non-dangerous drug insulin and hypoglaecemia was a known risk the Majewski principle could have been applied however it was not known that this would lead to dangerous behaviour so he was free to claim the defence of no mens rea.
If however it was known that a normally non-dangerous drug could lead to dangerous behaviour by the individual themself then it would revert to the principle of Majewski.
It has however been accepted by the courts that the statutory defence provided by Section 5 of the Criminal Damage Act 1971 in a charge of criminal damage is available even when a mistake has been made as a result of intoxication. Section 5 permits 'an honest belief that the person to whom the property belonged would have consented to the criminal damage', as a defence to a charge of criminal damage. Jaggard v Dickinson refers
This is in contrast to intoxication and self defence. The common law position, embodied in statute allows the force of self defence to be proportionate to your belief of the severity of the attack, even if this is a mistaken belief. This rule is altered when that mistake is induced by intoxication. This principle has been confirmed in a number of cases, O’Grady, O’Connorand has now been embodied in statute.
So in closing, the Majewski rule in intoxication can be considered contrary to the normal rules on mens rea and actus reus. The principle that the actus reus and mens rea must coincide is ignored in the Majewski rule in that a defendant is guilty of a basic intent offence because becoming intoxicated is ‘reckless conduct’ since the decision to become intoxicated could be made some time before the actus reus occurs. For example, in O’Grady the defendant had been asleep and only committed the offence a number of hours later. Normally for basic intent offences were recklessness is sufficient it has to be proved that the defendant knew there was a risk of a specific offence being committed. Majewski rule states that simply being intoxicated is reckless, yet at the time of getting intoxicated the defendant has no idea that he will actually commit an offence.
The law in this area is largely policy based and must be to protect victims of crime as intoxication is a major factor in a huge proportion of crimes and to allow it as an automatic defence would lead to a large number of defendants found not guilty simply because they were intoxicated.