Intoxication AO3 Flashcards
intoxication ao3 - intro
what is the main problem with the law of intoxication?
main problem - conflict between legal principle and public policy
- courts approach - don’t want to encourage people to drink or take drugs, nor do they want people comitting crimes whilst intoxicated and using the defence as an excuse
- if intoxication was always a defence the victim’s rights wouldn’t not be protected and justice would be denied
- legal principle suggests there should be a defence for those who commit crimes when their thinking is impaired due to alcohol, drugs or other substances and therefore can’t form the mens rea
intoxication ao3 - intro cont.
social paternaism and personal autonomy
the defence also demonstrates the competing interests of personal autonomy and social paternalism.
- some may argue that an adult has the option of spending as much of their own own money as they want on intoxicating substances.
- alternatively, others would say that excessive alcohol use, specifically drug consumption, is harmful to one’s health and well-being
william wilson emphasizes that ‘‘the present law on intoxication treads a fine line between social defence and the principles of responsibility’’
intoxication ao3 - vol/invol and specific/basic
Explain difference between voluntary and involuntary intoxication
Explain difference between specific and basic intent offences
* Law Commission 2009 - suggested that terms like specific intent and basic intent offences should be abolished and renamed to offences where “mens rea is an “integral element” and those where it is not”.
- This is good as it clearly intended to make the law clearer and simpler for laypeople, althought it may still cause confusion as some may find the concept difficult to understand
invol intoxication - test from beard
- AO1: Voluntary intoxication can negate the mens rea for a specific intent offence. If the defendant is so intoxicated that he has not formed the mens rea for the offence, he cannot be guilty. This rule comes from the case of DPP v Beard, and can also be seen in cases such as Sheehan and Moore and Lipman. In Sheehan and Moore the defendants were too drunk to have formed any intention to kill or cause GBH and in Lipman the defendant was reckless as he took LSD and so could be guilty of manslaughter.
- AO3? Beard is a landmark case which significantly changed the law of intoxication. Previously, voluntary intoxication was seen as an aggravating factor which was more in favour of public policy, now the approach is that if you did not form the mens rea then you can’t be guilty for a specific intent offence. The courts have shifted their view on voluntary intoxication in favour of legal principles over public policy.
intoxication ao3 - dutch courage
AO1 - Dutch courage is where a person forms the intention to commit a crime and then drinks to enable them to carry out the crime, they can’t then claim the intoxication prevented them from forming the mens rea. Gallagher - D had formed the intention to kill his wife by buying a knife and whiskey which he knew would make him aggressive.
- AO3 - Dutch courage being taken into account is a positive step for the law, however, the legal principle of Dutch courage interferes with the coincidence of the actus reus and mens rea. The intention to commit the crime and then carry it out may occur a large time distance apart.
- The courts have done this for public policy reasons, it is beneficial that they stopped people potentially exploiting the defence by using the intoxication as a cover.
intoxication ao3 - fallback offence
AO1 - The fallback principle is if there is a basic offence equivalent (fallback offence) then the courts will consider this offence instead e.g. murder falls back to manslaughter.
AO3 -
* Theft is a specific intent offence that does not have a fallback offence, this poses a massive problem as it essentially means that the defendant is able to get away with the crime with no further punishment.
- To address this problem the Butler Committee (1975) proposed the creation of a new offence named “dangerous intoxication”. The idea was that this could be used where the defendant was acquitted of an offence because he was intoxicated. The aim was to balance public protection with the defendant’s rights. However, it didn’t distinguish how serious the original offence was.
- The Law Commission (1993) proposed that voluntary intoxication should be available to all offences on the issue of mens rea. They also proposed a separate offence of “criminal intoxication”. However, both of these reform proposals were rejected despite the fact that they would address the issue of theft having no fallback offence and stop potential criminals from getting away with a crime. This means the law of intoxication is in need of reform as it is inconsistent
intox essay - majewski rule AO1
Intoxication is not a defence for voluntary intoxication and basic intent offences. DPP v Majewski (1977) said becoming voluntarily intoxicated would be considered a reckless course of conduct and would satisfy any offence where recklessness is enough for the mens rea.
intox essay - majewski rule AO3
- The decision around this case undermines the legal principle that mens rea and actus reus must coincide. The mens rea of getting drunk may occur even hours before the actus reus is committed.
- This makes the law inconsistent and uncertain as the coincidence of the actus reus and mens rea is crucial to prove for other offences yet it is not required for voluntary intoxication and basic offences.
- It also undermines the legal definition of recklessness, which is ‘’knowing there is a risk you will commit the offence but deciding to take that risk’’ according to the case of Cunningham. The defendant does not know there’s a risk that they will commit an offence when choosing to be voluntarily intoxicated, although the courts have done this for public policy reasons to prevent people from continuously abusing the defence.
- The Law Commission in 1993 severely criticised this point of law, saying it was ‘’arbitrary and unfair’’. Yet by 1995 their views had completely shifted to say that the present law operated ‘fairly, on the whole, and without undue difficulty’. Therefore the law should be reformed as it is inconsistent and uncertain.
intox AO3 - reform proposal
criminalisation
- A reform proposal which could be considered is complete criminalisation by making it illegal to get drunk, similar to prohibition in the USA.
- This is highly unlikely to happen as alcohol is prevalent in British culture, and public opinion would most likely not allow it.
- Alcohol also supports the economy as it is heavily taxed and goes towards important services such as the NHS and education which are necessary for society.
- This contrasts however with NHS costs, policing and the government’s agenda to counter anti-social behaviour.
intox AO3 - difficulties in proof
There are difficulties in proving mens rea in comparison to the actus reus.
It is hard to predict and present evidence of what the defendant may have truly intended, the defendant can easily say that they meant a completely different thing at the time.
People are also more likely to do careless things when they are intoxicated.
intox AO3 - difficult for juries
- Juries may also find it difficult to put themselves in the shoes of the defendant, as often the defendant may be suffering from problems such as alcoholism or addiction which individuals may not have experience with.
- Some jurors may not have even had alcohol or drugs so it would certainly be difficult for them to imagine what it would be like to be intoxicated let alone to the point where you cannot form the intention for a crime.
Clarkson and Keating quote (intoxication)
“there is a clash between principle and policy and, while the law has tried to achieve some sort of compromise, inevitably it has been policy that has prevailed”
