INTOXICATION - INCAPACITY DEFENCE (paper) Flashcards
1
Q
definition
A
- common law defence available to all crimes that have MR
- highly controversial
- law recognises 3 intoxicated (alcohol, drugs and solvents)
- effect of raising the defence varies depends on (1) nature/type of intoxicant (2) the type of offence which D is charged with
- definitions - voluntary is where D takes intoxicating substances through choice
- definitions - involuntary intoxication is where D is intoxicated, unknowingly
2
Q
element 1 - type of intoxicant
A
- law recognises 3 main types; alcohol, drugs and solvents
3
Q
element 2 - intoxication must be extreme
A
- d’s intoxication must be so extreme that they were incapable of forming the required MR for the offence
- must be more than a little bit drunk and not able to recall what they did
4
Q
The Majewski rules on voluntary intoxication
A
- a defences to specific intent crimes
- never a defence for basic intent crimes, for allowing yourself to get so intoxicated in the first place is a ‘reckless’ course of conduct
- not knowing the strength of alcohol is volutary (Allan)
- voluntary intoxication and later spiked is a matter for the jury (Eatch)
- not knowing the effect of taking illegal drugs/having an unexpected reaction is voluntary intoxication (Lipman)
5
Q
The Majewski rules on involuntary intoxication
A
- has potential to be a defence for basic and specific intent crimes, if D has the complete absence of MR
- May be a defence if D has not been reckless In the same way they have asking tier medication (Bailey)
- CA decided that in Hardie when D took his GF’s prescription but for the right reasons (to calm down) but then had an unexpected reaction should be allowed the defence
6
Q
Drinking for Dutch courage
A
- if someone drinks for courage to do the crime, will not get the defence for any crime
- court treats it as a continuing act shown in Gallagher (knife, whiskey, killed wife)
7
Q
Intoxicated mistakes about self-defence
A
- If D makes an intoxicated mistake about SD they will have no defence for basic or specific intent crimes crimes, shown in Hatton and O Grady
8
Q
Effect of the defence
A
- varies
- intoxication rarely gives the defender a full defence
9
Q
Evaluation - intoxication is steeped in public policy
A
- adopted a public approach because intoxication lies behind the commission of many criminal offences
- been many concerns over it current rules on intoxication and called for reform for many years
- many concerns relate to the different treatment of defendants depending on off they have committed a basic or specific intent crimes
- the defence tends to reflect a clear public policy approach, rather than focusing on legal principles which often results in harshness and injustice
10
Q
Evaluation - there have long been calls to reform the defence
A
- in 1975 the Butler Committer suggested reform of the defence including the creation of a second defence (allowing yourself to become dangerously intoxicated) with a max sentence of 5 years.
- not adopted and we have still seen no major reform
- a review on the law on intoxication was produced in 2009 by the LC, hover no bill has been produced and the report remains left on a shelf
11
Q
Evaluation- the Majewski rules are in need of reform
A
- pose problems for MR
- say that a person who is so extremely voluntary intoxicated that if they are unable to form the MR they may be allowed the defence, but for public policy reason will be convicted of any lesser related basic intent crimes
- recklessness can be sufficient enough for the MR for any subsituted fall beck offences
- no exploration of D’s appreciation of the risk/knowing the risk of their action
- goes against s8 of crim justice act as it doesn’t allow intoxication to be taken into account for basic intent crimes
12
Q
Evaluation- the decision in Kingston
A
- seen as harsh and unfair
- D was found guilty even tough he was not responsible for his intoxication, the jury said he would have had the MR even without the intoxication, said “a drugged intent is still an intent”
- if their is any evidence that D is capable of forming the MR the defence will fail
- clearly illustrates the defence focuses on the victim rather than the defendant
13
Q
Evaluation - the decision is Hardie
A
- very different approach taken
- the courts decided that he was not reckless in taking someone else’s medication because e took it for the right reasons
- however many would argue taking someone else’s medication without knowing the effects of it is a reckless course of action
14
Q
R v Lipman (1970)
A
- defendant and his girlfriend took an LSD trip and he stuffed a sheet down her throat
- could not form MR, so he was not guilty of murder (specific intent crime) but was convicted on man slaughter (basic intent crime (basic intent crime which intoxication has no defence for)
15
Q
DPP v Majewski (1977)
A
- consumed large quantities of alcohol and drugs and then assault a landlord and the police (all basic intent crimes)
- he had formed the necessary men’s rea and therefore could not rely on intoxication
16
Q
Gallagher (1963)
A
- decedent decided to kill his wife and drank whiskey to give himself “Dutch courage”
- convicted of murder as he has the intent to kill before he became intoxicated
17
Q
R v Kingston (1994)
A
- defendant has paedophile tendencies and was drugged and filmed abusing a boy
- formed MR before assault so he was convicted
18
Q
R v O’grady (1987)
A
- man killed his friend after drinking, claiming he did so in missed self defence
- cannot rely on self defence because he was voluntary intoxicated
19
Q
R v Hatton (2005)
A
- D had drunk a lot and found vitamin dead, he though it was self-defence but could not remember the events
- drunken mistake about self-defence was not a defence
20
Q
R v Taj (2018)
A
- defendant drank heavily and came convinced a man was a terrorist
- the phase ‘attributed to intoxication’ was not confirmed to cases in which alcohol or drugs were still present in a dependents system, appeal failed
