Intoxication Evaluation Flashcards
Majewski rule - reform
Ignores the principle that the mens rea and actus reus must coinside.
A decision to become intoxicated can occur several hours before the offence is committed but they are still reckless for basic intent crimes.
Recklessness - reform
Recklessness that the law assigns to D when he gets intoxicated assumes at the time of intoxication D is taking a general risk of doing something criminal whilst under the influence. This is unfair because at the time of intoxication D may have no idea he is more likely to commit an offence let alone there was a specific crime being committed. Law commission consultation paper 1993 called this “arbitrary and unfair”
Specific intent reduced to basic intent - reform
Reducing a specific intent crime to one of basic intent when D is i voluntarily intoxicated (eg murder to manslaughter) is inconsistent as is D comits an offence where there is no ‘fall back’ offence like theft and successfully pleads intoxication he will be acquitted.
Involuntary intoxication - reform
Intoxicated involuntarily ( like Kingston) but the intoxication only reduces his inhibitions, he is still guilty. Unfair as he is not to blame for his intoxication.
Majewski rule - leave it alone
It is necessary to protect victims which should be the primary aim of criminal law rather than providing a defence for D who voluntarily get intoxicated.
LC report Majewski rule - leave alone
Law Commission proposal for changing the Majewski rule in 1993 in their consultation paper was met with severe criticism and by 1995 they had changed their mind saying the law operated “fairly, on the whole, and without under difficulty”
Specific intent to basic intent - leave alone
If there is a ‘fall back’ offence for some crimes, then surely it is right that if his mens rea meets this offence he should be found liable. If there is no fall back offence then D should be acquitted. The law can hardly be expected to ‘invent’ fall back crimes where they do not exist!
Fall back offences - leave alone
Fall back offences are far from being . ‘unfair’ this is entirely consistent with criminal law: If D has the necessary mens rea, he is criminally liable. The fact his inhibitions were reduced by involuntary intoxication is not relevant to his liability. More of an issue for a judge in sentencing, not for a jury in establishing guilt.
Law commission 2009 report
Intoxication and criminal liability set out current issues:
1. Whether D’s intoxication should be involuntary or voluntary
2. Whether involuntary intoxication should be relevant to the fault element in the definition of the offence
3. Whether voluntary intoxication should be relevant to the other defences where D’s state of mind may be relevant.
4. The test to be applied in cases where voluntary intoxication is not relevant to D’s criminal liability
Voluntary/involuntary
All intoxication substances treated similarly whether legal/illegal.
