Evaluation of Intoxication Flashcards
Introduction [Paragraph 1]
The common law defence of intoxication has evolved on a case by case basis which arguably makes it fit for purpose. Legal principle suggests there should be a defence for those who commit crimes whilst impaired by alcohol, drugs or other substances. For public policy reasons the defence is restrictive as to not be an excuse for criminality.
There are problems such as specific and basic intent in voluntary intoxication. Arguably, intoxication is not a true offence as the defendant (D) is lacking one of the basic elements (mens rea) of the crime. Critics want urgent reform, but this has not happened.
Specific Intent Crimes (Vol) [Paragraph 2]
Voluntary intoxication is when D consciously chooses to be intoxicated. Drunken intent is still intent (Sheehan and Moore). For specific intent crimes, such as murder and s18 GBH, liability will drop to a lesser crime (Beard). In R v Lipman, D did not have the mens rea for murder because he had taken LSD, but was liable for manslaughter.
This can be seen as a good thing as D was not thinking as a sober person but was still liable of an offence. Critics say this does not help as few crimes require specific intent and theft does not have a lower, basic intent version making the law inconsistent and in need of reform.
Basic Intent Crimes [Paragraph 3]
If the crime is of basic intent, the law is clear that there is no defence (Majewski). As more crimes can be satisfied by recklessness, the defence meets public policy concerns by being strict. Although we all take risks, it shows that some cross into criminality.
However, critics say the law needs reform as it is unfair to punish those who lack the key element of a crime that allocates blame and justifies punishment, mens rea. Even worse, intoxication is often seen as an aggravating factor in sentencing. Furthermore, intoxication may have occurred some time before the offence where there was no thought of commission, which is unfair.
Dutch Courage [‘Paragraph’ 4]
If intoxication is used to gain courage to commit a crime, this is ‘Dutch Courage’ and intoxication is no defence (Gallagher). This is good and works well.
Involuntary Intoxication [Paragraph 5]
Involuntary intoxication occurs through no fault of D and intoxication can be a complete defence, making it very strict and hard to use. There must be no awareness of intoxication, which is hard to prove.
The case of Kingston shows inconsistency. Kingston argued he had been involuntarily intoxicated as his drink was drugged but he was convicted as his assault was intentional – drunken intent is still intent, a public policy argument. The Court of Appeal said D should have a defence as the intoxication was not his fault, a legal principle argument. The House of Lords restored the conviction, making it clear the public policy principle was superior. It was likely inevitable that public policy would prevail based on social paternalism but it raises uncomfortable issues and suggests reform is needed.
Soporific Drugs [Paragraph 6]
A strange situation arises with soporific drugs, as in Hardie. D raised involuntary intoxication at his trial but was convicted for voluntarily taking his partner’s out of date Valium tablets. The Court of Appeal allowed his appeal, saying the intoxication was involuntary because the tablets had an adverse effect. Arguably this is a good decision as a reasonable person would have thought the same as Hardie. However, it is reckless to take medication prescribed for someone else, especially if it is out of date, and a defence would be wrong. This heightens the need for reform to clarify issues such as this.
Reform Suggestions [Paragraph 7]
For reform, the Butler Committee recommended an offence of ‘dangerous intoxication’ while others say intoxication shouldn’t be a defence and it should be dealt with in sentencing.
Alcohol costs the NHS vast amounts of money each year but but it also generates lots in tax revenue and the licensing has large lobbying powers.
Critics say it would be hard to create a workable statute so sticking with what we have is good enough. The judiciary only occasionally comment that if the law is to be reformed than Parliament should act. In conclusion, the law probably needs reform but it is perhaps not urgent and unlikely to happen in practice due to Parliamentary inertia.
