Incapacity defence: Intoxication

Question 1

Source

Answer 1

Common law

Question 2

Which crimes is the defence available to?

Answer 2

The defence to all crimes which require mens rea (including murder), however it only results in a complete acquittal in limited circumstances

Question 3

Definition

Answer 3

Intoxication is described as a defence (excuse/justification). When raising their intoxication, D is saying that they could not form the required MR for the offence

Since one of the basic elements (MR) is missing they cannot be convicted

Can result in acquittal (rarely) or conviction of a lesser crime because D is incapable of forming MR.

Question 4

State and explain the two types of intoxication

Answer 4

Voluntary intoxication - occurs when a defendant consumes an intoxicant/intoxicating substance through choice

Involuntary intoxication - occurs when a defendant consumes an intoxicant involuntarily/ not through choice/unknowingly or if they take a prescription or soporific drug which has an unexpected effect on them

Question 5

What are the four elements that need to be proved?

Answer 5

Element 1 - D has taken an intoxicant recognised by the court

Element 2 - D must be extremely intoxicated, so intoxicated that they cannot form MR of the offence

Element 3 - Was D’s intoxication involuntary?

Element 4 - Was D’s intoxication voluntary

Question 6

Element 1: The D has taken an intoxicant recognised by the court

Answer 6

1) Alcohol (Sheenan and Moore, Beard, Majewski, Allen, Eatch)

2) Illegal recreational drugs (Lipman)

3) Prescription or soporific (sleep inducing/calming/sedative) drugs which are unexpected; where D has not taken them recklessly (Hardie/Bailey)

Question 7

Element 2: The defendant must be extremely intoxicated, so intoxicated that they cannot form MR of the offence

Answer 7

• D must not be able to form any MR al all (Beard confirmed this)
• D cannot rely on their intoxication as a defence, if they are still able to form
  any MR (Sheenan and Moore - judge said ‘a drunken intent is still an intention
• Loosing your inhibitions through intoxication is not enough, there must be a complete absence of mens rea (Kingston - D was invol intoxicated by a business competitor who laced his coffee with a disinhibiting drug and invited him to abuse a teen) Kingston - HOL ‘drugged intent is still an intent’

Question 8

Element 3: Involuntary intoxication

Answer 8

Usually a full defence to all types of criminal offences. But only if there is a complete absence of MR

Not intoxicated through choice

Courts have recognised that a defendant can be involuntary intoxicated
1. They became intoxicated through spiking/lacing (alcohol/drugs)

2. They became intoxicated through taking prescription drugs (correctly) but has an adverse/unexpected reaction to them
3. They became intoxicated by taking soporific drugs (Valium/anti-depressants/sleeping pills) for the right reasons but had an unexpected reaction to them (Hardie)

Question 9

Element 4: Voluntary intoxication

Answer 9

It includes…
1. Where D has chosen to consume alcohol/illegal drugs…

2. Where D has voluntarily consumed alcohol but did not know the strength of it - it is still voluntary and not involuntary intoxication (Allan)
3. Where D drank for Dutch Courage (get courage to commit the offence) but was extremely intoxicated when they committed it (AG for NI v Gallagher)

Question 10

Element 4: Voluntary intoxication (public policy)

Answer 10

Fall back will be applied and the defendant will instead be convicted of any related basic intent crime. D charged with murder who was extremely voluntarily intoxicated and could not form the MR, will be convicted of manslaughter instead

Question 11

List 5 specific intent crimes

Answer 11

Murder
s18 (OAPA 1861)
Theft
Robbery
Burgalry

Question 12

List 5 basic intent crimes

Answer 12

Manslaughter
S20 and S47 Offences
Assault
Battery
Rape

Question 13

Reform for intoxication

Answer 13

The Butler Committee suggested creating a new crime of dangerous intoxication as part of the reform, however some argue that drunkenness should not be a defence and should only be addressed at sentencing. Because of Parliament’s lethargy, there is no push for reform.

Although taxes and the licencing sector have significant lobbying strength, alcohol still costs the NHS a lot of money. Critics argue that it would be difficult to draft an appropriate law and that it would be sufficient to continue with the current one. The judiciary hardly ever mentions that Parliament should take action if the legislation has to be changed.

In conclusion, it is likely that the legislation needs to be changed, although it may not be urgent and unlikely to happen in real life.

Question 14

Evaluation: The rules are harsh

Answer 14

Some may argue that the rules of intoxication is perhaps harsh. By treating those who become inadvertently intoxicated (Allen) whose intention is to become dangerous and extremely antisocial. But on the other hand those who don’t know the strength or effect (Lipman) will open the floodgates as people will think that the more involuntary intoxicated you are, you will receive less blame.

• No clear test for which are basic and specific intent crimes
• These rules, especially needed in the 21st century are significant in order to protect society

Question 15

Evaluation: Public policy

Answer 15

Occasionally the law favours individuals over public policy. This is very rare but can happen.

EG Hardie - given the defence even though it was his girlfriends drugs that weren’t prescribed to him.

Against public policy and the law commission 2009 recommended this precedent. As it is unpopular and nor fit for purpose it gives out the wrong message

Question 16

Evaluation: Inconsistent

Answer 16

There are many arguments both for and against the Majewski rules on voluntary intoxication. The courts have consistently failed to provide a clear test to decide if a crime is one of specific or basic intent.

In the Majewski case, the Law Lords heard evidence from Lord Elwyn Jones, who stated that particular purpose crimes solely involved intent, but basic intent crimes also involved recklessness. Due to the lack of clarity, many contend that the law is unfit for purpose and ought to be changed.

More recently, the Court of Appeal stated in Heard (D rubbed penis on policeman’s thigh while highly voluntarily intoxicated) that a specific intent crime is one in which the offending has a purpose beyond merely performing the MR. Crimes are still categorised on an individual basis, nevertheless. There is no comparable fundamental intent criminal to theft; theft is a special intent crime. This implies that a defendant who stole while voluntarily intoxicated gets exonerated. This obviously leaves the law vulnerable to criticism and claims that it is unfair, contradictory, unreasonable, and unfit forpurpose.

Question 17

Evaluation: The law does not always treat voluntary intoxication differently to involuntary

Answer 17

This is a problem because;
- Kingston seems much less blameworthy then Gallager, and it may even be that Kingston had no control over his actions due to the intoxication and so lacked voluntary actus reus but because intoxication focuses on the mens rea, the defence failed.
- This makes it pointless to distinguish between types of intoxication for specific intent crimes.

However this can be positive because;
- If D still had the mens rea despite intoxication the intoxication is not really relevant anyway and so it should not matter how they were intoxicated.

Question 18

Evaluation: Some specific intent crimes do not have related basic intent crimes to reduce to

Answer 18

In lipman, intoxication stopped D having the mens rea for murder, but D could still be guilty of involuntary manslaughter because it was a basic intent crime with the same actus reus as murder.
But in theft, if D lacks the mens rea there is no basic intent crime with the same actus reus and so D would have to be totally acquitted.