1B.5.3 Intoxication

Question 1

Meaning of intoxication

Answer 1

Where the defendant was so intoxicated - by the drink, drug or other substance - that they were incapable of forming the mens rea of the offence.

Question 2

Intoxication flow chart

Answer 2

Question 3

Mens rea for voluntary intoxication

Answer 3

How can the defendant form mens rea if they are intoxicated?

Lipman (1970)

Question 4

Specific intent offences

Answer 4

These have intent only as the mens rea, e.g. murder, s18 OAPA 1861.

Question 5

Basic intent offences

Answer 5

These have recklessness as part of the mens rea, in addition to intent, e.g. manslaughter, s20 and s47 OAPA 1861, assault, battery, criminal damage.

Question 6

The defendant being found guilty or not depends on whether…

Answer 6

• The intoxication was voluntary or involuntary, and
• The offence charged is one of specific or basic intent

Question 7

What is voluntary intoxication?

Answer 7

Where the defendant:

• Has chosen to take an intoxicating substance
• Knows that the effect of taking a prescribed drug will be to make them intoxicated.

Case: R v Coley (2013)

Question 8

Is voluntary intoxication a defence to basic intent offences

Answer 8

No - because becoming intoxication is not a defence.

This is because becoming intoxicated voluntarily is considered a reckless course of conduct, and recklessness is enough to constitute the necessary mens rea. This can be seen in Majewski (1977).

Question 9

Majewski (1977)

Answer 9

Held: becoming intoxicated voluntarily is considered a reckless course of conduct, and recklessness is enough to constitute the necessary mens rea.

Question 10

Can a defendant use the defence of intoxication if they did not realise the strength of the intoxicant?

Answer 10

Yes - there could be a defence of intoxication if the defendant does not realise the strength of the intoxicant - e.g. where street drugs had been cut with other substances.

• Case: Allen (1988)

Question 11

R v Allen (1988)

Answer 11

Held: Intoxication based on mistaken strength is still voluntary. Therefore, the defence cannot be used for basic intent offences.

Question 12

Involuntary intoxication

Answer 12

This covers situations where the defendant did not know they were taking an intoxicating substance.

This may be where:
- A drink has been ‘laced’ or ‘spiked’ with alcohol or drugs.
- A prescribed drug has the unexpected effect of making the defendant intoxicated and the defendant does not realise its effect.

If the defendant was intoxicated through no fault of their own, they are allowed to argue that they did not form the mens rea, whether the offence is of specific of basic intent. If the prosecution can prove that they form did the mens rea, they will be guilty of the offence, but even if they would have committed it without being involuntarily intoxicated.

• Case: R v Kingston (1994).

Question 13

R v Kingston (1994)

Answer 13

The defendant was invited to a house where his drink was drugged by a man who wanted to blackmail him. He was then shown a 15-year-old boy who was drugged and unconscious in the room, and he was invited to abuse him. The defendant, who had paedophile tendencies, did so and was photographed by the blackmailer. He was convicted of indecent assault: if a defendant had formed the mens rea for an offence before becoming intoxicated, then involuntary intoxication could not be a defence.

Question 14

Intoxicated mistake

Answer 14

If the defendant is mistaken about a key fact because they are intoxicated, it depends on what the mistake was about as to whether or not there is a defence:

• There is a defence to a specific intent offence where the mistake is about something which means that the defendant did not have the necessary mens rea for the offence.
• Where the offence is one of basic intent, the defendant has no defence.

Question 15

O’Grady (1987)

Answer 15

After the defendant and the victim, who were friends, had been drinking heavily, they fell asleep.
The defendant claimed that he awoke to find the victim hitting him, so he picked up a glass ashtray and hit the victim with it, and then went back to sleep.
When he woke the next morning, he found that his friend was dead.
On a charge of manslaughter, the court said a defendant is not entitled to rely, so far as self-defence is concerned, upon a mistake of fact which has been induced by voluntary intoxication.

Question 16

Hatton (2005)

Answer 16

The defendant had drunk over twenty pints of beer. He and the victim went back to the defendant’s flat. In the morning he claimed he found the victim dead from injuries caused by a sledgehammer. He said he could not really remember what had happened but thought the victim had hit him with a five-foot-long stick and he had defended himself. He was convicted of murder.

The court held that the decision in O’Grady (1987) was not limited to basic intent offences, but also applied to specific intent offences. A drunken mistake about the amount of force required in self-defence was not a defence.

Question 17

Can intoxication be used as a defence if they were mistaken about the amount of force needed in self-defence?

Answer 17

No - this applies to crimes of both basic intent and specific intent.

Cases: O’Grady (1987) and Hatton (2005)

Question 18

Intoxication and mistaken self defence

Answer 18

s76 of the Criminal Justice and Immigration Act 2008 states that reasonable force may be used for the purposes of self-defence, defence of another or prevention of crime. However, s 76(5) says that this:
- “does not enable the defendant to rely on any mistaken belief attributable to intoxication that was voluntarily induced.”

The words ‘attributable to intoxication’ in s 76(5) are broad enough to encompass a mistaken state of mind:
- as a result of being drunk or intoxicated at the time
- immediately or after earlier drinking or drug- taking, so that, even though the defendant was not drunk or intoxicated at the time, the short- term effects could have triggered subsequent episodes or, for example, paranoia.

• Case: Taj (2018)

Question 19

Voluntary intoxication and specific intent offences

Answer 19

If the defendant is voluntarily intoxicated, this could mean they did not form the mens rea of the offence due to the intoxication.

Originally, the test set by Lord Birkenhead in DPP v Beard (1920) was:
- “If the defendant 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”.

Question 20

Lipman (1970)

Answer 20

D took LSD, thought he was being attacked by snakes, hit the victim twice then crammed sheets into her mouth, causing suffocation. D had no knowledge or intent to kill a reasonable creature under the King’s peace so no murder.

Question 21

Test held in Sheehan and Moore (1975)

Answer 21

The test of whether intoxication could be used for specific intent offences is:
- whether, because of intoxication, the defendant did not form the intent, irrespective of whether they were incapable of doing so.

This means that where there is an alternative basic intent offence, the defendant may be charged with both a specific intent offence and a basic intent offence - and it is then left to the jury to decide whether the defendant had the mens rea for the specific intent offence.
This was seen in the case of Lipman (1970).

Question 22

Sheehan and Moore (1975)

Answer 22

The defendants, in a drunken state, poured petrol over a homeless man and set light to the petrol, causing his death. It was decided that the relevant question was not whether the defendants were capable of forming the mens rea; it was whether they had in fact formed the mens rea - a drunken intent is still an intent.

It is for the prosecution to prove that the defendant had the intent. In this case, they were unable to do so and the defendants were convicted of unlawful act manslaughter.

Question 23

Dutch courage

Answer 23

Gallagher (1963) - No defence of intoxication if Dutch courage.

Lord Denning “The wickedness of the mind before he got drunk is enough to condemn him, coupled with the act which he intended to do.”

This is problematic because of the coincidence of mens rea and actus reus (Fagan v Metropolitan Police Commissioner)

Question 24

Gallagher (1963)

Answer 24

D killed wife but drank a bottle of whiskey for Dutch courage. Held: he formed intent before the actus reus. If D forms intention for specific intent crime before taking drink/drug then this is mens rea.

Question 25

Basic intent offences

Answer 25

Can the defendant form mens rea of either intention/recklessness to?

Yes – The act of getting intoxicated is the mens rea for basic intent offences, therefore intoxication cannot be used (Majewski).

Problem with this: Anybody who is drunk or drugged up automatically hold mens rea for any basic intent crime

Question 26

[Invol intox]

D has no awareness of ingesting drug

Answer 26

Can use intoxication as defence. e.g. If D was spiked, – no mens rea

But not if mistaken strength (R v Allen 1988) because that’s voluntary. e.g. drinking wine thinking it’s 9% but it’s 13%

Question 27

[Invol intox]

D takes drug as advised

Answer 27

Can use intox as defence

e.g. If D takes anti-depressant and it causes psychosis and she kills her friend. She is not at blame so defence of intoxication can be used and therefore no mens rea.

Question 28

[Invol intox]

D takes non-dangerous drug

Answer 28

Hardie (1985) D took Valium to calm him down – it caused a blackout and he set fire to a wardrobe. No foresight – no mens rea.

Kingston (1995) D had paedophilic urges. Was drugged - no knowledge - assaulted a boy. Said he couldn’t control urge.
As he was still aware actions were wrong, he had the mens rea (no defence of intoxication).