Evaluation of Intoxication Flashcards
What are the four criticisms of intoxication
Distinction between Basic and Specific Intent Crimes is Illogical
Inconsistency on Fall-Back offences for Specific Intent Crimes
Public Policy vs Legal Principle
Mens Rea and Recklessness
Distinction between Basic and Specific Intent Crimes is Illogical - why is it a criticism - P-DEV-E
Different rules for basic and specific - unfair. If there is no subjective mens rea there should be no liability (R v G and R) regardless of the type of crime. Majewski ignores this principle. There is also confusion about the definition of Basic and Specific Intent offences as not all are clear.
Extra
However, this could be justified as the courts are trying to discourage reckless intoxication being used as an excuse to commit crime.
Inconsistency of Fall-back offences for specific intent crimes - why is it a criticism - P-DEV-E
Where someone uses the defense successfully for a specific intent crime (e.g. murder), there are two possible outcomes: either D walks free, or D is charged and punished with a lesser, Basic Intent offence. Which of these is used depends on whether a lesser offence exists - which seems unfair and inconsistent. An example would be that murder can be downgraded to manslaughter, whereas theft is a lesser offence so D walks free.
Extra
However, it could be argued that more commonly those offences with no fall-back charge are less serious property offences, whereas those with a fall-back charge are more serious violent offences, so the inconsistency could be justified as it ensure there is a plan B for the most serious offenders.
Public policy vs Legal Principle - why is it a criticism - P-DEV-E
Public Policy says that judges, courts and government should do all they can to protect the public (including Victims). Alcohol abuse is involved in 50% of crimes and also is a drain on NHS/Policing so courts have a duty to discourage it
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However the legal principle argument is that court should make sure D’s are not punished when they are not at fault (e.g. have no mens rea). Kingston case shows with intoxication the court is more likely to support the Public Policy argument
Recklessness and Mens Rea - why is it a criticism - P-DEV-E
Coincidence rule states that actus reus and mens rea for a crime must coincide - so it must exist together at the same moment in time (Fagan v MPC). However the rule from Majewski which says voluntary intoxication amounts to recklessness and therefore means D has the mens rea seems to ignore this rule. The decision to get drunk/high would have been made before D carried out the crime. Also D will not always foresee likely risk of harm when they get intoxicated.
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However, it could be justified if it is seen as a continuing act as the intoxication would carry on.
