Defences: Intoxication

Question 1

What is involuntary intoxication?

Answer 1

Where the defendant has chosen to take an intoxicating substance and it can also occur when the defendant knows that the effect of a prescribed drug or other substance will make him intoxicated.

Question 2

DPP V Beard 1920?

Answer 2

Lord Birkenhead considered the situation where the defendant pleaded intoxication to deny malice aforethought for murder, he concluded that if he was rendered incapable or forming the intent to kill or cause GBH then he would not be guilty of murder but of manslaughter. Continuing he said where a specific intent is an essential element of the offence, evidence of a state of drunkenness rendering the accused incapable of forming such an intent should be taken into consideration in order to determine whether he had in fact formed the intent necessary to constitute the particular crime.

Question 3

R V Sheehan 1975?

Answer 3

The intoxicated defendants threw petrol over a tramp and set fire to him. It was held that they were too drunk to form the necessary intention and were convicted of manslaughter. It was held that where a defendant raises intoxication trying to show a lack of mens rea, the jury should be directed that ‘the mere fact that the defendant’s mind was affected by drink so that he acted in a way which he would not have done had he been sober does not assist him at all, provided that the necessary intention was there’. A drunken intent is nevertheless intent.

Question 4

Bratty 1963?

Answer 4

Denning said ‘specific intent crimes can only be committed intentionally, basic intent crimes can be committed recklessly.’

Question 5

DPP V Majewski 1977?

Answer 5

The defendant went on a 36 hour drink and drugs marathon. In the pub he assaulted a customer and a police officer in the execution of his duty, he was charged with a number of offences under both Section 47 and 20 OAPA 1861. His defence was that he was suffering from the effects of alcohol and drugs at the time and that his intoxication prevented him from foreseeing the consequences of his actions and therefore did not have the mens rea required. The defendant was convicted and appealed. Both the Court of Appeal and the House of Lords upheld his convictions. The House of Lords held that intoxication is available for crimes of specific intent and if successfully proved the defendant is then convicted of a lesser offence. But intoxication is unavailable for basic intent offences. The courts rationalise this by arguing that if a defendant is so reckless that he becomes so intoxicated that he doesn’t know what he is doing the recklessness needed for the mens rea of the crime is substituted by the defendants reckless behaviour in getting so intoxicated.

Question 6

What mens rea do crimes of specific intent require?

Answer 6

Intention.

Question 7

What are crimes of specific intent?

Answer 7

• murder
• Section 18 wounding with intent
• Section 18 GBH with intent
• theft, robbery, burglary and attempts

Question 8

What mens rea do crimes of basic intent require?

Answer 8

Intention or recklessness.

Question 9

What are crimes of basic intent?

Answer 9

• Involuntary manslaughter
• Rape
• Section 20 Wounding
• Section 20 Inflicting GBH
• Section 40 ABH
• Assault and battery.

Question 10

Is the defence of intoxication available for crimes of basic intent?

Answer 10

No.

Question 11

Lipman 1970?

Answer 11

Lipman and his girlfriend had taken LSD before falling asleep. As a result of drug induced hallucinations, the defendant thought he was at the centre of the earth being attacked by snakes. When he woke up he found his girlfriend dead because he had strangled her and stuffed a sheet in her mouth believing her to be one of the snakes attacking him. He was convicted of manslaughter, the Court of Appeal confirmed this decision. The intention of murder could not be established as he was ‘high’ on drugs at the time of the killing, but he could be guilty of manslaughter as this is a basic intent crime and intoxication is not available as a defence.

Question 12

R V Fotheringahm 1998?

Answer 12

Appealing against a conviction for rape it was held that an intoxicated mistake was no defence in rape. A baby-siiter aged 14 had fallen asleep on the parents bed. In a very drunken state the defendant went to bed, assuming it was his wife asleep he had sexual intercourse with her.

Question 13

R V Heard 2007?

Answer 13

The defendant had undone his trousers, took his penis in his hand and rubbed it up and down a police officers thigh. When he sobered up he claimed he could not remember anything and when he was drunk he sometime might ‘go silly and start stripping’. He was charged with sexual assault under Section 3 of the Sexual Offences Act 2003, the requires among other things that the defendant touched the victim intentionally. The defendant did not deny touching but said it was unintentional and he asked that evidence of intoxication be taken into account to support this argument. The trial judge ruled that the defendant’s behaviour demonstrated that the touching was intentional and therefore he had no defence. The Court of Appeal agreed with the trial judge and his conviction was upheld.

Question 14

What is involuntary intoxication?

Answer 14

It covers situations where a defendant becomes intoxicated without their knowledge or against their wishes. This could be where someone claims their drink has been ‘spiked’ with alcohol or drugs and it also covers situation where someone has an adverse reaction to prescribed drugs.

Question 15

What is involuntary intoxication a defence too?

Answer 15

Both specific and basic intent crimes.

Question 16

What are the four ways involuntary intoxication can occur?

Answer 16

• intoxicants taken without the defendant’s knowledge
• drugs taken under prescription
• drugs that have a soporific effect
• under duress

Question 17

R V Kingston 1995?

Answer 17

The defendant had paedophiliac and homosexual tendencies. He tried not to drink alcohol as he knew this lowered his levels of resistance. He was being blackmailed by an ex-business associate and was invited to visit a flat. A person hired by the blackmailers also lured a 15 year old boy to the flat and drugged him. The defendant was given coffee laced with drugs. While the boy was asleep the defendant was invited to sexually abuse the boy which he did and was photographed and tape-recorded carrying out the assault. The defendant claimed he could remember nothing about the event. The jury were directed that they could still find him guilty if ‘they were sure that despite the effect of the drugs that he had still formed the mens rea of the offence.’ He was convicted of indecent assault. The Court of Appeal quashed the conviction because he was behaving in that way due to the involuntary intoxication, However, the House of Lords disagreed and reinstated his conviction. They held that if the ‘defendant commits the AR of the crime and he had formed the MR prescribed by the offence for whatever reason he does have the necessary MR.

Question 18

R V Allen 1988?

Answer 18

It is very important that the defendant did not know they were taking an intoxication substance. Allen was given home-made wine and he did not realise it had a very high alcohol content. He got very drunk and carried out a serious sexual assault. He was found guilty and appealed. The appeal court concluded that the defendants drinking had been voluntary and the defendant being unaware of the strength of the wine did not matter.

Question 19

R V Bailey 1963?

Answer 19

Bailey was a diabetic and he struck his ex-girlfriend’s new partner over the head with an iron bar causing a 10 inch cut. He was charged under Section 18 OAPA 1861. He said he had taken his insulin but failed to eat afterwards and this triggered a loss of consciousness and therefore he had no mens rea. The trial judge said his conviction was self-inflicted and he was convicted. On appeal the Court of Appeal said that the trial judges direction was incorrect. It held that provided the intoxication was not due to alcohol or drugs intoxication could provide a defence to a crime of basic intent and providing that the defendant was not aware of the consequences of his actions, then it would be open to a jury to find him not guilty.

Question 20

R V Hardie 1985?

Answer 20

The defendant had taken some of his girlfriends Valium tablets following an emotional separation, the defendant experienced an adverse reaction and when he returned to her flat to collect some of her clothes he set fire to a wardrobe. He was charged with arson but he said he as unaware of what he was doing cause of the Valium. The jury were directed to ignore the effects of the Valium and he was convicted. However, the Court of Appeal quashed the conviction because the effect of the Valium was wholly different from the usual effect of the drug. The court also did stress that once an unexpected side effect occurs and the drug is taken again then the defence will be unavailable.

Question 21

AG for Northern Ireland V Gallagher 1963?

Answer 21

The defendant decided to kill his wife, he drank most of a bottle of whisky to give himself dutch courage and he then got a knife and stabbed her to death. He was found guilty of murder, he had the intent for murder despite being drunk. The House of Lords upheld the conviction, Lord Denning said ‘if a man whilst sane and sober forms an intention to kill and makes preparations for it knowing it is the wrong thing to do and then gets himself drunk so as to give himself dutch courage to do the killing and whilst drunk he carries out his intention, he cannot rely on this self-induced drunkenness as a defence to murder, not even as reducing it to manslaughter’.

Question 22

Intoxication and self-defence/mistake?

Answer 22

A defendant cannot use self-defence/mistake where the mistake is due to intoxication. Normally, the defendant can plead self-defence even when there was no actual attack as long as they genuinely believe they are under attack and the force they used was reasonable in the circumstances that the defendant genuinely believed them to be. This will not apply if the reason a defendant is mistaken is because they are voluntarily intoxicated.

Question 23

R V O’Grady 1987?

Answer 23

The defendant and his friend had been heavily drinking and fell asleep. The defendant said he awoke to find his friend hitting him so in self-defence he hit him with an ashtray. Next morning he discovered his friend was dead. The defendant was convicted of manslaughter and it was upheld by the Court of Appeal. It ruled that where the defendant was mistaken in thinking either that any force was necessary or the force used was reasonable and that mistake was caused by intoxication, then the defence would fail.

Question 24

R V Hatton 2005?

Answer 24

The defendant met a man at a club and both returned to the defendant’s flat. Next morning the man was found dead with sledge hammer injuries. The defendant said he could not remember what had happened because he had been very drunk but he had a vague memory of an argument and defending himself. The trial judge ruled that drunken mistake was not a defence, even to murder and the Court of Appeal upheld his conviction,

Question 25

Intoxication and insanity?

Answer 25

Where intoxication produces insanity then rules relating to insanity apply. Drunkenness is one thing and disease to which drunkenness leads to is another. As approved by the House of Lords in DPP V Beard 1920 and Gallagher 1963.

Question 26

Intoxication and automatism?

Answer 26

An act done in a state of automatism will negate criminal liability except where the state is self-induced. As in R V Lipman 1970 and R V Bailey 1983. In R V Sullivan 1984, Lord Diplock stated that the defence of automatism did not apply when self-induced by consuming drugs/alcohol.

Question 27

Intoxication and diminished responsibility?

Answer 27

The defence becomes more complicated when the defendant was intoxicated at the time of the killing. In certain circumstances, intoxication could bring the defendant within the scope of diminished responsibility if it is classed as a pre-existing medical condition. In R V Dietschmann 2003 the House of Lords said that a drunken defendant with mental abnormailities will not automatically be barred from pleading diminished responsibility. In Wood 2006, it was held that diminished responsibility is available if long-term alcoholism has caused brain damage.

Question 28

Advantages of the defence of intoxication?

Answer 28

• the defence is mainly driven by public policy, there is a fine line between the need to recognise a lack of full control at the time of the offence and a deterrent message about using intoxicating substances. Research shows that a significant number of crimes are committed by people under the influence of alcohol and/or drugs. Public policy frequently prevails over the legal principle that a person not in control may be reckless in becoming intoxicated, they often have not though of committing any offence, much less a particular offence and so a conviction seems to go against basic legal principles.
• developments in Canada: the rules in Daviault. Until this case the law on intoxication in both the UK and Canada was the same. However, in Daviault the Supreme Court in Canada held that the defence of intoxication could be available for a person charged with a basic intent crime, if the intoxication is so extreme as to produce a state of automatism. The burden of proof is on the defendant to prove this on a balance of probabilities. Expert evidence would be required. In Daviault there was a sexual assault following the consumption of a bottle of brandy and several beers.

Question 29

Disadvantages of the defence of intoxication?

Answer 29

• accused attitude to intoxication: no distinction is drawn between a person who intends to lose self-control and one who intends to do no more than social drinking but ends up drunk. On normal principles of criminal liability the first would seem more blameworthy than the second but both would be treated the same.
• Difficulties for juries: the state of the law at the moment can require juries to enter into a world based on fantasy and guesswork as to what might have happened if the defendant had not been intoxicated. Where the accused is charged with a crime of basic intent a jury have to disregard the intoxication when deciding whether they committed the offence.
• Inconsistency: the fall-back position allows the offender to be convicted of a similar lesser offence and this can act as a reasonable compromise. However, it also means that the offender is not punished according to the offence which has been committed. Also in some situations, there are no fall-back offence e.g. theft and in these situations the offender is acquitted. It then leads to a situation where it can be a complete defence to some crimes but not others, there is no logical reason for this.
• Constructing liability: in R V Kingston 1994 the only reason he committed the crime was because a third party removed his control mechanisms. But we also have to balance this with public policy and it ignores the strong link between alcohol and violence. Should drunken people be blamed more or less than their sober counter part for the same offence?
• In R V Richardson and Irwin 1999 there was an interesting development in the Court of Appeal when applying the rule from Majewski on voluntary intoxication to the basic intent crime of inflicting GBH. Both defendants and the victim were university students, after an evening’s drinking they returned to their accommodation and during the course of horseplay the victim was lifted over the balcony and dropped 10 feet to the ground. The defendants were convicted of inflicting GBH, a basic intent crime. The jury were directed to consider each defendant’s foresight of the consequences on the basis of what a reasonable sober man would have foreseen. Both were convicted but the Court of Appeal quashed their convictions. It said that the question should have been what those particular men would have foreseen had they not been drinking. So the rule seems to be that in basic intent crimes the jury should be directed to assume the defendant was sober and assess what they would have foreseen in that condition. This is still a hypothetical question but an improvement on the suggestion in Majewski that simply being drunk is automatically reckless.

Question 30

Reform of intoxication?

Answer 30

• a full defence of intoxication, allowing intoxication as a full defence on the basis that the accused lacks the necessary mens rea. This is the current position for Australia.
• creating a new offence of dangerous intoxication, this was originally suggested by the Butler Committee in 1975 and later recommended by the Law Commission in 1993. So where a jury found that the defendant had committed the AR of an offence but was so intoxicated they were unable to form the MR a jury could be directed to acquit the defendant but they could find them guilty of dangerous intoxication.
• The Law Commission 2009 proposals: the Law Commissions 2009 report ‘Intoxication and Criminal Liability’ included a draft bill proposing to put most of the common law rules on intoxication in order, to provide greater clarity. But the draft bill is very complicated and the distinction between specific and basic intent crimes would be retained although the terminology is changed. They would retain the distinction between voluntary and involuntary intoxication.
• a special verdict: it has been suggested introducing a special verdict that the offence was committed whilst the defendant was intoxicated. The defendant would be liable to the same potential penalty as if they had been convicted in the normal way. Sentencing could then reflect the harm done and take the intoxication into account where appropriate.

Question 31

Legal principle V public policy?

Answer 31

Intoxication is not a true defence unlike duress, it is no excuse to say that a defendant would not have acted as they did but for their intoxication. Instead, it is a means of putting doubt into the minds of juries as to whether the defendant formed the necessary mens rea. Intoxicants have an influence on a persons perception, judgement and self-control and the ability to foresee the consequences of their actions. In extreme cases someone can be rendered an automaton. This however, creates a dilemma for the law. Application of legal principles would mean many people being acquitted of offences because they were drunk. Public policy demands the opposite as it is based on public protection and the encouragement of good behaviour, this is perhaps why the public policy argument has prevailed.

Question 32

What is the evidential burden?

Answer 32

Evidence of intoxication is needed and the question of whether a defendant is intoxicated is a question of law for the judge.

Question 33

R V Groark 1999?

Answer 33

The defendant had apparently consumed 10 pints of beer before striking the victim in the face with a knuckleduster. He was charged with Section 18 OAPA wounding with intent to do GBH. At the trial he gave evidence that he knew what he was doing but that he had acted in self-defence. The trial judge did not direct the jury as to intoxication and he was convicted. The Court of Appeal dismissed his appeal because the defendant had not raised the defence and there was no obligation for the judge to do so on his behalf.