Comment on the law of Intoxication Flashcards
for what two main reasons is the law on intoxication as a defence largely policy based?
1) Intoxication is a major factor in the commission of many crimes and statistics suggest that half of all violent crimes are committed by a defendant who is intoxicated through drink or drugs
2) There is a need to balance the rights of the defendant and the victim; if intoixcation were always to be a defence, then victims rights would not be protected
There is conflict between public policy and legal principles. What is public policy based on?
on public protection and the encouragement of good behaviour
What do legal principles impose?
liability where there is fault
Over the past 30 years what has became the main theme in the defence of intoxication?
public policy
Where in the law can public policy be clearly seen?
self defence, defence of another and the prevention of crime
Parliament enacted s.76(5) of the Criminal Justice and Immigration Act 2008 to do what?
to state that D cannot rely on any mistaken belief attributable to intoxication that was voluntarily induced
IN what case is the area of law on intoxication contrary to the normal rules of mens rea?
DPP v Majewski
How is the decision in the case of DPP v Majewski an example of how this area of law on intoxication is contrary to the normal rules of mens rea?
as in this case the decision that D is guilty of a basic intent offence because getting drunk is a reckless course of conduct ignores the principle that the mens rea and actus reus must coincide; the decision to drink may be several hours before the actus red.
What case is an example of when D drank several hours before committign the actus reus?
O’Grady
Normally, in cases where recklessness is sufficient for the mens rea of an offence, how is it proven?
it has to be proved that D knew there was a risk of the specific offence being committed
Where was the point that Normally, in cases where recklessness is sufficient for the mens rea of an offence it has to be proved that D knew there was a risk of the specific offence being committed, discussed?
the Law Commission consultation paper in 1993
What did the Law Commissions consultation paper in 1993 discuss?
the point that Normally, in cases where recklessness is sufficient for the mens rea of an offence it has to be proved that D knew there was a risk of the specific offence being committed
What did the Law Commission in its 1993 consultation paper say regarding the case DPP v Majewski?
that the decision was arbitrary and unfair
What happened to the Law Commissions 1993 consultation paper which had criticised the case of DPP v Majewski saying that the decision was arbitrary and unfair?
it too wa criticised and by 1995 it had changed its opinion
What is a slight loop hole in the law with specific and basic intent crimes and the defence of intoxication where there are no ‘fall back’ offences such as murder and manslaughter?
this means that, for example, if D is charged with theft and successfully claims he had no mens rea because he was too intoxicated then he will not be guilty of any offence and will escape liability
What part of the law on involuntary intoxication possibly needs reform?
where the defendants inhibitions are broken down by being made intoxicated involuntarily
The decision in Kingston makes a defendant who is involuntarily intoxicated guilty if he forms the mens rea, however what does this ignore?
this ignores the fact that the defendant was not to blame for the intoxication. This could be seen as unfair
IN what year did the Butler Committee propose the creation of anew offence of ‘dangerous intoxication’ which was the idea that where the defendant was acquitted of a dangerous offence on the basis of being intoxicated, D could then be convicted of dangerous intoxication which would carry a maximum of 1 year impriosnment sentence for a first offence and 3 years for further offences
1975
Who proposed the creation of a new offence of dangerous intoxication which was the idea that where the defendant was acquitted of a dangerous offence on the basis of being intoxicated, D could then be convicted of dangerous intoxication which would carry a maximum of 1 year impriosnment sentence for a first offence and 3 years for further offences
the Butler Committee in 1975
What did the Butler Committee 1975 propose?
the creation of a new offence of dangerous intoxication which was the idea that where the defendant was acquitted of a dangerous offence on the basis of being intoxicated, D could then be convicted of dangerous intoxication which would carry a maximum of 1 year impriosnment sentence for a first offence and 3 years for further offences
What did the Butler Committee 1975 suggest would be the punishment under a conviction of their prposed new offence ‘dangerous intoxication’?
1 year maximum prison sentence and 3 years for further offences
What was the aim of the Butler Committee 1975 proposal for the creation of a new offence of dangerous intoxication which was the idea that where the defendant was acquitted of a dangerous offence on the basis of being intoxicated, D could then be convicted of dangerous intoxication which would carry a maximum of 1 year impriosnment sentence for a first offence and 3 years for further offences?
the aim was to balance public protection against the defendants rights. D would not be liable for the serious main offence and lengthy sentence but could be imprsioned for a relatively short period for the dangerous intoxication
What was the main argument against the Butler Committees 1975 proposal?
that it did not distinguish how serious the original offence way which meant that those who killed would have been treated in the same way as those who had committed an assault because of dangerous intoxication
What did the Law Comiison propose in 1993 regarding voluntary intoxication?
that evidence of voluntary intonation should be allowed for all offences on the issue of mens rea so that a defendant could be acquitted if he did not have the necessary mens rea, regardless of supposed reckless conduct which does not follow the normal rule of testing recklessness
What did the Law Commissison in 1993 propose for the new offence to be called?
criminal intoxication
The idea of majorly reforming the law on intoxaiction was abandoned by the law commission in 1995 and instead what did they suggest to do?
to codify the law as it stood with just some minor ammenedments
What happened to the proposed reforms under the 1995 proposal of the Law Commmission?
no action was taken
In what year did the Law Commission publish a report ;Intoxication and Criminal liability?
2009
What was the report called the Law Commission published din 2009?
Intoxication and Criminal Liability
What did the Law Commission propose in its 2009 proposal ‘Intoxication and Criminal Liability’ in its recent proposals?
1) that the distinction between voluntary and involuntary intoxication should be kept
2) the use of terms specific and basic intent should be abolished; instead offences should be categorised a those where mens rea is an integral fault elemtsn and those where it is not
What did the Law Commission propose in its 2009 proposal ‘Intoxication and Criminal Liability’ for voluntary intoxication?
1) there should be a general rule that where D is charged with an offence for which mens rea is not an integral fault elements, then D should be treated as being aware of anything he would have been of it had been sober
The law Commission in its 2009 proposal ‘Intoxication and Criminal Liability’ proposed that there should be a list of situations which would count as involuntary intoxication. They suggested that these should include what? (4)
spiked drubs
being forced to take an intoxicating substance
D reasonably believing that the substance was not an intoxicant
where a substance was taken for a proper medical purposes
