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  • Intoxication is a matter of great debate.
  • The legal principle requires that defendants incapable of forming mens rea be acquitted, while public policy demands that they arn't.
  • A defendant can become intoxicated by means of alcohol or drugs.
  • The essence of the defence is that the defendant was so intoxicated that they were incapable of forming the mens rea of the offence that they are charged with.
  • The defendant that gets intoxicated and then does something that they would not do otherwise will not beable to rely on this defence.
  • As the effect of intoxication must be to render the defendant incapable of anticipating, any of the consequences of their actions the defence will only apply in limited circumstances, where intoxication was extreme.
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Elements of intoxication

Absence of mens rea

The defendant must show that the drugs or alcohol made them incapable of forming the mens rea of the relevant offence. If despite their intoxicated state, the defendant was still able to form the necessary Mens Rea, the defence will not apply.

Specific and basic intent crimes

Even if the defendant proves that they lacked Mens Rea, they can still be found liable for some crimes. The courts have also drawn a distinction between crimes and specific intent and crimes of basic intent.

Specific Intent crimes

A crime of specific intent is one where the Mens Rea is intention only. Example of specific intent crimes are: murder, s.18 Offences Against the Person Act 1861, theft, robbery or burglary.

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Elements of intoxication

Basic intent crimes

With basic intent crimes, the mens rea can include recklessness. Examples of Basic intent crimes are: Involuntary manslaughter, s.20 Offences Against the Person Act 1861, S.47 Offences Against Person Act 1861, assult, battery.

  • If the defendant is voluntarily intoxicated, they will not have a defence to a crime of specific intent, if they have been reckless.
  • Involuntary intoxication will provide a defence to basic intent crimes.
  • For most offences of specific intent, there is a similar basic intent crime.
  • If the defendant is not guilty of s.18 due to voluntary intoxication, they may be found guilty under s.20 instead.
  • However not all specific intent offences have a corresponding basic intent crime.

CASE: DPP v Majewski (1977)

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Burden and starndard of proof & Effect

Burden and standard of proof

  • The burden of proof rests with the defendant.
  • They must rpove some evidence of intoxication before the defence can be put through the jury.
  • It is then up to the prosecution to prove beyond reasonable doubt that despite this evidence, the defendant still formed the necessary mens rea.


  • This varies according to the type of crime the defendant is charged with and whether the defendant was voluntarily or involuntariy intoxicated.
  • If they were voluntarily intoxicated and capable of forming Mens Rea they they have a defence to specific intent crimes but not crimes of basic intent.
  • If they were involuntarily intoxicated and incapable of foriming mens rea, they will have a defence on both basic and specific intent crimes.
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Voluntary intoxication

  • If the defendant is incapable of forming the necessary mens rea, the defendant will have a defence to specific but not basic intent crimes.

'Dutch courage'

  • If someone deliberately gets intoxicated to give themselves courage to commit a crime, their intoxication will not be a defence to any crime, even to crimes that can be committed with a specific intention.

CASE: Attorney General for Northern Ireland v Gallagher (1963)

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Involuntary intoxication

  • The defendant was 'spiked' without their knowledge, and was therefore unaware that they were consuming drugs or alcohol.
  • The defendant took perscription drugs.
  • The defendant had an unexpected reaction to soporific drugs.

CASE: R v Hardie (1984)

  • If the defendant is involuntarily intoxicated, they will have a defence to both specific and basic intent crimes, as long as they did not form the required mens rea.
  • If despite an intoxicated state they will still be able to form mens rea, they will have no defence, even if the intoxication is involuntary.
  • In R v Sheehan and Moore (1975) it was stressed that 'a drunken intent is nevertheless an intent'.

CASE: R v Kingston (1994)

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Jordan Biddlecombe

Don't use these cards, there is a lot of confusion between voluntary and involuntary as well as basic and specific intent crimes. Unreliable.

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