Intoxication essay Flashcards
What do statistics show?
That 1/2 of all violent crimes are committed while d is intoxicated
What does the law try to achieve
A balance between PP and LP
What is PP and LP
PP based on protection of the public and encouraging good behaviour and courts protecting innocent victims, while LP imposes liability where there is fault and must safeguards the rights of D
Which does the law on intoxication favour- PP or LP?
PP as it would be wrong to allow intoxication defence generally on the basis D could not foresee actions as would give rise to the proposition that the more intoxicated you become the stronger your defence
What does Glanville Williams say about the danger of allowing a defence to intoxication?
It would be inimical to the safety of all of use if the judge could announce that anyone could gain exemption from the criminal law by getting drunk
how has intoxication been developed
developed at the common law therefore has proved difficult to fund a cohesive and logical approach
Defence of BIC
in vol intoxication Majewksi no defence- it is reckless conduct to get intoxicated and recklessness is enough for the MR
Why has Majewski attached much criticism?
judicial efforts to square Majewksi with normal rules of fault are unconvincing, is it wrong of the HL to equate drunkeness with recklessness? In normal subjective recklesnsness, D must appreciate a specific harm, does an intoxicated D?
What is argued Hughes
Instead we should regard the rule as one of moral equivalence rather than automatically saying that by drinking D has the MR
What is the advantage of moral equivalence
argument is that allows D to be not found guilty where the risk is not foreseen when sober
Moral equivalence explains the outcome of what case
Richardson v Irwin: jury directed to ignore the effects of intoxication and instead were told to treat D as having been aware of any risk that he would have been while sober
Why is Richardson v Irwin the better approach
It would uphold the need to protect society as in most cases D would have foreseen the risk while sober, but automatically equating drunkenness to recklessness would not apply
Where was the ruling in Richardson approved
LC 2009 reccomedations
What did Sinister argued about vol BIC
we are yet to see a convincing argument that getting drunk is morally wrong because of the inherent risk of violence. Other risk creating activities do not become wrongs due to the unwarranted consequences they may have. It must be shown that D did have MR rather than equating MR because things turned out badly, the doctrine is morally illegitimate
Issue with the SIC/BIC divide
There is a lack of clarity surrounding the distinction between SIC/BIC. Intoxication requires offences to fit into a category without clear formula for doing so, and the categorisation takes place on a case-case basis therefore it is possible for inconsistency and error
Who criticised the SIC/BIC divide
Williams: lack of theoretical basis lead to confused applications in practices
Majewski and SIC/BIC
seemed to treat offences that satisfied through recklessness as BIC. Simon tried to be more specific to intent as to consequences were D must intend the consequence to come about as SIC, but this cannot be right as murder is clearly as SIC but do not need intent to kill
Heard and SIC/BIC
where the purpose goes beyond the AR- an ulterior intent. But this is more problematic than Majewski. He was convicted and appealed on the grounds that the judge was in error in ruling that sexual assault was a crime of basic intent since it requires an intention to touch. Therefore results in the conclusion that sexual offences are BIC
What does Smith and Hogan about the division
the distinction is a matter of policy rather than logic. However, how could a trail judge confidently classify. Despite this Smith and Hogan say both Majewksi and Heard are unattractive alternatives and the current law remains to be too uncertaib
What did the LC recommend
end to the dissection and apply a set of rules uniformly
Where has MAjewski been rejected
In other jurisdictions in favour of the logical application of the normal rules of fault O’Connor to allow a conviction where D was vol intoxicated and incapable if forming MR would be to define a new crime which would be best left to parliament
Where has inconsistency been created with statute in intoxication
S 8 CJA allows a court to take into account anything that might affect D’s state of mind when committing an offence, however Majewski doe snot allow a defence to intoxication for BIC where vol. However, it was said S 8 refers to only relevant evidence and intoxication is irrelevant for BIC. However in Aus/NEw zealand the jury may considered the effects of intoxication and has not lead to the feared increase in acquittalsaquittals
Issue of vol intoxiation
increased leniency however limited by dutch courage drinking to provide courage will not provide a defence, and use of the fall back principle, although theft is the exception
involuntary intoxication
would not be fair to say that D had chosen to take a risk associated with Vol intoxication therefore a less harsh view has been taken,
Unlikely intoxications
the view in Majewksi is that common knowledge that those who take alcohol or drugs may become aggressive or do unpredictable things.
Bailey
Where taken prescription drugs which have an unaffected impact treated as involved intoxication applied in Hardie.
Issue with Hardie
Is the subjective approach of Bailey too generous for someone like Hardie who should not have taken the drugs in the first place?
R v Kingston
too harsh? However approved by LC to be put on a statutory footing
Butler Reform
suggested an offence of dangerous intoxication which would be used where D was acquitted by way of intoxication and convicted with this offence max 3 years. However not adopted due to the sentence 3 years where for example someone kills
What did the LC propose in 1993
Similar offence of criminal intoxication
Sinister on criminal intoxication
D might be more fairly labelled where he is convicted of a stand alone intoxicated wrong doing offence rather than the crime corresponding to the AR he later commits/
How else supports an offence of intoxication
Williams but he argues that would need to examine how it would work. but thought it may be simpler and clear than the current rules, provide a fair label and held monitor the role played by intoxicants in crime
