Intoxication Flashcards
What type of defence is intoxication?
What is it used for? (jury)
Not a true defence (unlike duress)
= not an excuse to say D wouldn’t acted if not intoxicated
= means of putting doubt in jurors mind whether D performed necessary MR
What do intoxicants have the ability to do?
Influence a person’s perception, judgement, self-control + ability to foresee consequences of actions
How does the law approach the defence of intoxication?
= argument whether legal principle/ public policy should be applied in situation
Legal principle = D acquitted because they were drunk
Public policy = based on public protection + encouraging good behaviour
LAW NEEDS TO FIND BALANCE OF THE 2
(BUT public policy is usually favoured)
Who decides if the D was intoxicated?
Name a case that illustrates this point
Evidence = needed BUT
Whether D = intoxicated = question of law for the JUDGE
R v Groark (1999) - D drunk but pleaded self-defence, judge didn’t direct jury to intoxication, no obligation to do so
R v Groark (199)
D had apparently drunk 10 pints of beer before striking V in the face with a knuckleduster
Charged with wounding (s18 OAPA)
At trial D gave evidence that knew what he was doing, acted in self-defence
Trial judge didn’t direct jury to intoxication
D = convicted
CA dismissed appeal; D didn’t raise defence + = no obligation for judge to do so on his behalf
What is voluntary intoxication?
D has chosen to take intoxicating substance/ knows effects of prescribed drugs (or other substance) will make him intoxicated
How harsh is the current law on intoxication?
Name a case that illustrates this point
Fairly lenient
At 1 point intoxication wasn’t regarded as a defence at all
DPP v Beard (1920)
DPP v Beard (1920)
Whilst intoxicated D raped 13 year old girl
Put hands over her mouth to stop her screaming
Died of suffocation
D pleaded intoxication to deny malice aforethought
Lord Birkenhead: if D = rendered incapable of forming intent to kill/ GBH then he wouldn’t be G of murder but MS
What did Lord Birkenhead say in the case of DPP v Beard (1920)?
If a D = rendered incapable of forming the intent to kill/ cause GBH then he wouldn’t be G of murder but MS
- principle remains fairly unchanged, now firmly accepted that D doesn’t have to be incapable of forming intent, its enough that he in fact doesn’t do so
What case illustrates that a D can still be very drunk but form the necessary MR?
Describe this case
R v Sheehan (1975)
2 intoxicated Ds threw petrol over tramp + set him on fire, causing death
Ds = too drunk to form necessary intent - convicted of MS
If D acts in way wouldn’t have if sober, defence of intoxication doesn’t assist him at all
A DRUNKEN INTENT IS NEVERTHELESS AN INTENT
What did Lord Denning say in the case of Bratty (1963)?
‘Specific intent crimes can only be committed intentionally, basic intent crimes can be committed recklessly’
What is the leading case on voluntary intoxication?
Explain the case
DPP v Majewski (1977)
D went on 36 hour drug + drink binge
Assaulted customer + police officer in pub
Charged with no. of offences (s47, s20 OAPA)
Argued he was suffering from effects of drugs/ alcohol at the time, prevented him from foreseeing consequences, no MR
D convicted, CA + HL upheld convictions
What was held by the HL in the case of DPP v Majewski (1977)?
Intoxication = only available for specific intent crimes
If successfully proved D may be convicted of lesser offence
Defense = unavailable for basic intent crimes; if D = reckless to become so intoxicated he doesn’t know what he’s doing, has enough MR for crime that can be committed recklessly
Give 4 examples of specific intent crimes + cases
- Murder (Beard 1920)
- Wounding with intent, s18 (Bratty 1963)
- GBH with intent, s18
- Theft, robbery, burglary + attempts
Give 4 examples of basic intent crimes + cases
- MS (involuntary)
- Rape - Fotheringham 1988
- Wounding, s20 - Majewski 1977
- Criminal damage
What is the MR of specific intent crimes?
MR of intention only must be proved
What is the MR of basic intent crimes?
MR can either be intention OR recklessness
Why is intoxication not a defence for basic intent crimes?
Name the 2 cases that illustrate this
Because becoming voluntarily intoxicated = reckless
Recklessness = enough to constitute MR for basic intent crimes
Distinction between the 2 = VITAL!
- R v Lipman (1970)
- R v Fotheringham (1998)
R v Lipman (1970)
D + girlfriend had taken LSD before falling asleep
D had drug induced hallucination
Thought he was at the centre of the earth being attacked by snakes
Woke to find his girlfriend dead - strangled + stuffed sheets in her mouth, thought she was a snake
Convicted of MS
CA confirmed this decision - couldn’t establish intention for murder as high on drugs at time of killing, but could be G of MS (basic intent crime, no defence)
R v Fotheringham (1998)
Baby-sitter aged 14 had fallen asleep on parents bed
In very drunken state, D went to bed
Assumed it = wife asleep on bed + had sex with her
convicted of rape
Appealed against conviction, held intoxicated mistake was no defence to rape
The Majewski principle was illustrated in a more recent case
Name and describe this case
R v Heard (2007)
D undone his trousers, took his penis in his hand + rubbed it up + down police officer’s thigh
When sober, claimed couldn’t remember anything BUT he sometimes ‘went silly + can start stripping’
charged with sexual assault (s3 Sexual Offences Act 2003 - requires touching to be intentional)
CA agreed with trial judge + upheld conviction
Why is the distinction between specific + basic intent crimes so vital when it comes to the defence of intoxication?
= difference between if defence = available
Majewski: intoxication can be pleaded for specific intent crimes, if accepted D may be convicted of lesser offence/ fall back offence e.g. murder to MS
BUT intoxication = not available for basic intent crimes
Cts argue recklessness for MR can be substituted by D’s reckless behaviour in getting intoxicated
Do the rules laid out in Majewski apply to involuntary intoxication?
No
What situations does involuntary intoxication cover?
When someone becomes intoxicated without their knowledge/ against their wishes
e.g. having their drink ‘spiked’/ abnormal reaction to prescribed drugs
If a D is involuntarily intoxicated, are they automatically acquitted?
No
Can introduce the defence for both specific + basic intent crimes
If intoxication negates MR, D = entitled to an acquittal
What is the leading case for intoxicants taken without the D knowledge?
Describe the case
(IV intox)
R v Kingston (1995)
D had paedophiliac + homosexual tendencies, tried not to drink; knew lowered his resistance
D = being blackmailed + invited to visit a flat, 15 year old boy also lured to flat + drugged
D = given coffee laced with drugs
While boy = asleep, D = invited to sexually abuse him (photographed + tape recorded)
D claimed couldn’t remember anything about event
Jury directed: could find D G if they = sure that D still had MR despite drugs
Convicted of indecent assault
CA: quashed conviction, behaving as result of IV intox
HL: disagreed (still formed MR) reinstated conviction
D didn’t think boy was something else, he = aware of what he was doing, resistance levels were lowered
R v Allen (1988)
IV intox
D = given home-made wine, didn’t realise it had very high alcohol content
Got very drunk, carried out serious sexual assault
Found G + appealed
CA concluded, D’s drinking had been voluntary, D being unaware of strength didn’t matter
= very important that D doesn’t know that they’re taking intoxicating substance!
How were the jury directed in the case of R v Kingston (1995)?
They could find the D G if they were sure that the D still had the MR of the offence despite the effects of the drugs
What did the CA do in the case of R v Kingston (1995)?
What did the HL do in the same case?
CA: Quashed the D’s conviction of indecent assault
- behaviour was a result of IV intoxication
HL: Disagreed with CA, reinstated conviction
- Argued D still formed MR, D didn’t think that the boy was something else, he = aware of what he was doing, he just had lower resistance levels
What is vital in cases of IV intoxication?
What case illustrates this?
That the D didn’t know that they were taking an intoxicating substance
R v allen (1988) - home made wine
Drugs taken under prescription can amount to an intoxication defence, at the juris discretion
What case illustrates this?
Explain the case
R v Bailey (1983)
D struck ex-girlfriend’s new partner over head with iron bar, causing 10 inch cut
D = diabetic, said he’d taken insulin but failed to eat afterwards
= triggered loss of consciousness, therefore no MR
Trial judge: condition = self-inflicted + = convicted (s18 OAPA)
CA held: defence = available as long as the D = unaware of the consequences of taking the drug
How will a D be treated if the intoxication was caused by a drug that usually has a soporific effect?
Name a case that illustrates this
Treated as being IV intoxicated IF effect = completely different
Jury should be directed to consider whether taking such drugs was reckless
R v Hardie (1985)
R v Hardie (1985)
IV intox
D had taken some of his GF’s valium tablets following emotional separation, had bad reaction
Returned to her flat to collect clothes, set fire to a wardrobe
Charged wth arson
Said he was unaware of actions - valium
Jury = directed to ignore effects of Valium + = convicted
CA quashed conviction; effect of valium = wholly different from usual effect of drug
Ct stressed: once unexpected side effect occurs +drug is taken again, defence will be unavailable
What was stressed by the Cts in the case of R v Hardie (1985)?
Once an unexpected side effect occurs and the drug is taken again then the defence will be unavailable
What does English law say about using the defence of intoxication under duress?
English doesn’t have any case law
In USA = treated as voluntary intoxication
- persuasive precedent
Whether or not it will be V/IV in the UK has yet to be decided
What is Dutch courage?
Name a case that illustrates this
Where someone gets drunk to summon courage to do something
AG for Northern Ireland v Gallagher (1963)
AG for Northern Ireland v Gallagher (1963)
D decided to kill wife
Drank most of a bottle of whisky to give himself courage
Got knife + stabbed her to death
Found G of murder
D had intent for murder deposit being drunk
HL upheld conviction
Lord Denning: if D forms intention to kill whilst sober + kills using dutch courage, he cannot rely on self-induced drunkenness as a defence to murder, not even reducing it to MS
What did Lord Denning say in the case of AG Northern Ireland v Gallagher (1963)?
‘If a man = sober whilst forms intention to kill, makes preparations for it knowing its wrong + them gets himself drunks as to give himself dutch courage + then carries out the killing, he CANNOT rely on his self-induced drunkenness as a defence to murder
Not even to reduce it to MS’
Can a D use the defence of mistake/ self-defence if intoxicated?
D can normally plead mistake/ self-defence even if = no actual attack
As long as D genuinely believed they were under attack + used reasonable force
HOWEVER, won’t apply if reason for D’s mistake was due to D being VOLUNTARILY INTOXICATED
What case illustrates the law on intoxication and self-defence?
Explain the case
R v O’Grady (1987)
D + friend had been drinking heavily, fell asleep
D said he woke to friend hitting him
In self-defence D hit him in head with ashtray
Next morning discovered he was dead
Convicted of MS, upheld by CA
Ruled where D = mistaken in thinking that any force = necessary OR force used = unreasonable + mistake = caused by intoxication, defence will fail
Followed in case of R v Hatton (2005)
What case followed the ruling in R v O’Grady (1987)?
Explain the case
R v Hatton (2005)
D met man at a club, both returned to D’s flat
Next morning man = found dead, sledgehammer injuries
D said he couldn’t remember what had happened; very drunk BUT had vague memory of an argument + defending himself
Trial judge: drunken mistake = not a defence, even to M
CA upheld the conviction
Which Act confirms the ruling in R v O’Grady (1987)?
Criminal Justice + Immigration Act 2008
- mistaken belief caused by voluntary intoxication cannot give rise to self-defence
What does the law say on the use of intoxication + insanity defences?
Give 2 cases that illustrate this
Where intoxication produces insanity, rules relating to insanity apply
Drunkenness is one thing + drunkenness which leads to disease is another
Approved by the HL in: DPP v Beard (1920) + Gallagher (1963)
What does the law say on the use of intoxication + automatism defences?
What case was this stated in?
An act done in a state of automatism will negate criminal liability
EXCEPT where the state = self-induced
As stated by Lord Diplock in R v Sullivan (1984)
What does the law say on the use of intoxication + diminished responsibility defences?
(2 x cases + HL ruling)
Sometimes can bring a D within the scope of D.R if = classed as pre-existing medical condition involving intoxication (R v Tandy (1989))
HL: drunken D with mental abnormalities won’t automatically be barred from pleading DR
Wood (2006) - DM = available if long-term alcoholism has caused brain damage
What is the advantage of the defence of intoxication being public policy driven?
PP usually prevails over legal principle (D not in control + unable to form MR shouldn’t be convicted)
Research shows significant no. crimes = committed by intoxicated people
= Fine line between this + deterring people from using intoxicating substances
BUT D may become recklessly intoxicated without intention of committing ANY crime, seems to go against LP
USE CASE OF R v LIPMAN (1970) TO ILLUSTRATE ISSUES
What is a problem with the distinction between basic + specific intent crimes within this defence?
Distinction isn’t logical or consistently applied
Law asks: did D have required mental state to constitute MR?
One approach would acquitted all D’s unable to form MR
BUT = ISSUES WITH PUBLIC POLICY
What is a disadvantage of there not being a distinction between the D attitude towards the intoxication?
Currently no distinction
Both someone who INTENDS to loose self control + someone who only intends to drink socially but ends up drunk, WILL BE TREATED THE SAME
Normal principles of liability, 1st would seem MORE blameworthy than the 2nd
What is the difficulty of juries being involved in cases involving intoxication?
Current law asks juries to enter world based on guess work/ fantasy
- What MIGHT have happened if D not intoxicated?
HOWEVER, basic intent crimes they’re asked to DISREGARD intoxication completely when deciding if D committed the offence
Evaluation: How is there inconsistency within the defence of intoxication?
Fall back offences allow D to be convicted of similar, lesser offence
Can act as reasonable compromise
BUT also means D = not punished according to offence committed
ALSO some offences DON’T have fall back offence e.g. theft
In these situations, D = acquitted
Then means that it CAN be a complete defence to some crimes but not others
What is the difficulty in constructing liability in intoxication cases?
Name a case to illustrate this
In R v Kingston (1994) D only committed crime because 3rd party removed hi control mechanisms
Should drunk people be blamed more than sober people who have committed the same offence?
Ongoing debate - have to balance public policy
Why is the CA ruling in R v Richardson + Irwin (1999) so important to the rules on voluntary intoxication + the idea of constructing liability?
Describe the case
Both Ds + V = university students
After evening drinking all returned to accommodation
During course of horseplay, V = limited over balcony + dropped 10 feet to ground
Jury: directed consider Ds foresight of consequences based on reasonable sober man
Ds convicted s20 OAPA 1861, basic intent crime
CA quashed convictions: not Q of reasonable man but what Ds would’ve foreseen if sober
Rule: basic intent c, jury should be directed to assume D = sober + assess if would’ve foreseen consequences
Still hypothetical Q, but improvement on Majewski rules (drunk = automatically reckless)
How has the law on intoxication developed in Canada?
Name the case that changed this
Until case of Daviault law was same as UK
(sexual assault following consumption bottle of brandy + several beers)
Supreme Ct of Canada: defence could be available for D charged with basic intent offence IF intoxication = so extreme produces state of automatism
Burden of proof = D, prove balance of probabilities
Expert evidence = required
Name the case in Canada that changed the law on the defence of intoxication
Daviault
What are 4 suggestions of reforms to be made to the defence of intoxication?
- Complete defence; D lacks MR (as in Australia)
- New offence, dangerous intoxication
- Legislating CL rules of intoxication IOT make clearer
- Special verdict (committed whilst intoxicated)
Who suggested the creation of a new offence, dangerous intoxication?
Originally suggested by Butler Committee in 1975
Later recommended by Law Commission in 1993
Where jury found D committed AR but so intoxicated lacks MR, jury could be directed to acquit D BUT find them G of dangerous intoxication
What was proposed by the Law Commission in their 2009 report?
What was this report called?
Law Commission’s 2009 report ‘Intoxication + Criminal Liability’
Included drafting a Bill proposing to legislate common law rules on intoxication to make them clearer
BUT complicated to do, distinction between specific/basic intent would be same
Also keep difference between V /IV intoxication
Describe the suggested reform of a ‘special verdict’
‘Offence = committed by D whilst intoxicated’
D = liable for same potential penalty as if convicted normal way
(except if charge = M, then penalty = that of MS)
Sentencing could then reflect harm done + intoxication could be considered where appropriate
