Intoxication

Intoxication can be caused by alcohol, drugs or both. The essence is that D will have consumed an external substance(s) which is capable of affecting their ability to intend or foresee the consequences of their actions. It therefore operates as a means of putting DOUBT into the minds of the magistrates/jury as to whether D formed the necessary MR. It follows that if, despite the intoxication D nonetheless formed the necessary MR, then the defence is NOT AVAILABLE and D will be treated as simply having the AR and MR but also drunk.

This defence poses something of a problem for the law.

•  On the one hand, it can be argued that intoxicated people are not in full control of themselves, do not think rationally, and therefore should not be held as liable for their actions as they do not know exactly what they are doing.
•  On the other hand, there are obvious policy reasons for not allowing people to use intoxication to excuse their criminal behaviour.

For this reason, intoxication is only successful as a defence in a limited number of circumstances, and only where it means D lacked the MR for the offence. (The level of intoxication required for this is therefore high.)

But does it necessarily follow that if D, because of intoxication, failed to form MR, then he is automatically entitled to be acquitted, REGARDLESS of what he may have actually done whilst in that intoxicated condition? Logically the answer is yes, however, courts have decided that this logical conclusion would send out dangerous signals. As a matter of public policy there is a clear need to discourage anti-social behaviour caused by excessive drinking or drug consumption and not allow people to use intoxication as a defence as every crook would simply have a drink before committing a crime spree, and then, when arrested claim intoxication and be acquitted!

DPP v Majewski [1977] Lord Simon expressed concern that, without special intoxication rules, the public would be “legally unprotected from unprovoked violence where such violence was the consequence of drink or drugs having obliterated the capacity of the perpetrator to know what he was doing or what were its consequences.”

The result in England has been an uneasy compromise between the logical conclusion and public policy demands.

(Intoxication is no defence to crimes of SL as there is no MR to negate!)

D bears the evidential burden to provide evidence of intoxication before it can be left to the jury. Ds evidence must go to the degree of intoxication and not just to the fact of intoxication. It is then up to the prosecution to prove beyond reasonable doubt that despite this evidence D still formed the MR (therefore in line with Woolmington [1935]).    EFFECT OF DEFENCE: This varies depending upon the MR of the crime and whether D was voluntarily or involuntarily intoxicated.

VOLUNTARILY INTOXICATED AND INCAPABLE OF FORMING THE MR

• Defence for specific intent offences.
• No defence for basic intent offences.                                                                       * If D is charged with a specific intent offence that does not have a corresponding basic intent offence then intoxication can then provide a full defence. In most cases however there will be an alternative basic intent crime to convict D of so in this circumstance does not provide a defence. *

NVOLUNTARILY INTOXICATED AND INCAPABLE OF FORMING THE MR

• Defence for specific intent offences.
• Defence for basic intent offences.

This is where D has chosen to take an intoxicating substance commonly known to make people aggressive or out of control. (It is also classed as voluntary intoxication where D knows that the effect of a prescribed drug will be to make him ‘intoxicated’.) VOLUNTARY

INTOXICATION AND SPECIFIC INTENT OFFENCES:

Meade [1909]

Lord Coleridge J: “...if the mind at the time is so obscured by drink...and the man is incapable of forming the intent, it justifies the reduction of the charge from murder to manslaughter.”

Therefore, if D is so intoxicated that he is incapable of forming the MR of intention, D will have a defence to specific intent offences only (but not the basic intent (reckless) alternative). Therefore D will be NG of murder, but G of manslaughter.

If however the magistrates/jury are still convinced that D did form the MR, D will be G of the specific intent crime as drunken intent is still intent.

DPP v Beard [1920] Whilst drunk D ***** a 13 yr old girl, placed his hand over her mouth to stop her from screaming, pressing his thumb on her throat and she died of suffocation. D was charged with murder, and argued that he was too intoxicated to have formed the MR for murder. He was convicted. On appeal, Lord Birkenhead said: “If D was so drunk that he was so incapable of forming the intent required, he should not be convicted…” (i.e. Intoxication can be a defence to specific intent crimes.) Here however, the death resulted from a succession of acts (the **** and the act of violence causing suffocation) which could not be regarded independently of each other and thus D could not say that he did not know what he was doing. GUILTY OF MURDER.

The next case shows the successful use of intoxication against murder as Ds were so drunk they did not form the specific intent to kill or cause GBH. They were convicted of manslaughter:

R v Sheehan and Moore [1975]

Ds were drunk, threw petrol over a tramp, and set fire to him. They argued they were too drunk to have formed the MR for murder (intention to kill/ GBH) as they had no recollection of the events in question; and that in consequence they did not have the required intent or foresight for a murder conviction. Ds were convicted but appealed.

CA: "… the mere fact that Ds mind was affected by drink so that he acted in a way in which he would not have done had he been sober does not assist him at all, provided that the necessary intention was there. A drunken intent is nevertheless intent.” Here however, as Ds did not form the MR for murder, their intoxication was a defence to that offence, but not the basic intent alternative of UDA manslaughter.

There is one circumstance where intoxication will not even be a defence to an offence of specific intent. This is where a person gets intoxicated in order to summon up the courage to commit a crime.

Att.Gen for NI v Gallagher [1963] D decided to kill his wife. He bought a knife and a bottle of whisky. He drank a large amount of the whisky (to give him the courage to kill her) and got so drunk that he would have been incapable of forming the MR for murder. In this state, he slit Vs throat. HL held that drunkenness is no defence for a person who, being capable of forming an intention to kill, and knowing it would be legally wrong to do so, forms the intention to kill and then gets so drunk that when he does carry out the attack he is incapable of forming the intention.

Following Woolmington [1935], that there should only be liability for a criminal offence where D has committed both the AR and MR at the same time. HOWEVER we know that the courts will stretch this principle when public policy demands. The general application of ‘coincidence of AR and MR’ would actually result in acquittals in dutch courage cases as D would not be able to form MR at the time of performing the AR due to the intoxication. Public policy has however prevailed here as a person who forms MR initially, then negates it with intoxication in order to commit the (AR) offence is nonetheless liable.

Magistrates or the jury must consider whether D would have formed the MR had he been sober, i.e. would D have had a subjective awareness of the risk if sober? As only a fleeting awareness of risk will suffice for conviction, the answer often seems to be YES and thus:

Basic intent offence + voluntary intoxication = NO DEFENCE

The law is of the view that voluntarily becoming intoxicated is a reckless course of conduct and recklessness is enough to constitute the MR for basic intent offences. The policy considerations are clearly evident. D cannot argue that he failed to recognise a risk of harm because he was intoxicated as it is most likely that D would have realised the risk had he not been drinking. Otherwise, people would simply get drunk before a crime spree! (However, if there is evidence of factors which might cast doubt on whether D would have formed MR had he been sober, such as fatigue or illness, then these must be taken into account.)

DPP v Majewski [1977] D had consumed alcohol and drugs beginning on Sunday morning and continuing until Monday night. He was involved in a pub brawl and assaulted two people, smashed windows, and then attacked the police officers who tried to arrest him. D was convicted of 3 offences of assault occasioning ABH (s.47 OAP Act 1861) and three offences of assaulting a police officer in the execution of his duty. His defence was that he was suffering the effects of the alcohol and drugs and the time and was so drunk that he could not remember the incidents therefore could not have formed necessary MR. Ds convictions were upheld by CA and HL. 

Lord Elwyn-Jones LC: “self-induced intoxication… cannot excuse crimes of basic intent, such as assault..."If a man of his own volition takes a substance which causes him to cast off the restraints of reason and conscience, no wrong is done to him by holding him answerable criminally for any injury he may do while in that condition."

Thus Lord Elwyn-Jones LC did NOT regard this general principle as contrary to the principles of natural justice. However, DPP v Majewski [1977] is open to criticism because it replaces the MR of an offence with ‘abstract recklessness’ associated with becoming intoxicated. All drunken people will be walking around with the MR for all basic intent offences and thus will be liable if they happen to commit the AR whilst drunk!

The main concern with the defence is that viewing the reckless conduct of voluntary intoxication as sufficient MR for a basic intent crime conflicts with the general rule on criminal liability set down in Woolmington [1935] as generally, to be found guilty of an offence, D must be shown to have the particular/actual MR for that crime.

In the case of assault, D must be reckless as to causing apprehension of immediate unlawful force. In the case of battery, D must be reckless as to the application of unlawful force. The statement by Lord Elwyn-Jones in Majewski provides that being intoxicated is reckless and that is all the recklessness that is needed – not recklessness of ‘apprehension’ or ‘application’. The ‘fault’ element is supplied by reckless intoxication which then substitutes the particular recklessness the prosecution would need to prove for the particular crime.

Even though the law has clearly had to ‘bend the rules’ a little in these situations, it is being done in order to achieve a socially acceptable result. The alternative, allowing an intoxicated person a defence to such a crime, would be less satisfactory.

It follows therefore that if D was involuntarily intoxicated such that the prosecution cannot prove MR then D is entitled to be acquitted of both specific and basic intent offences. (D is not reckless in getting into the condition.) 3 situations where D will be treated as being involuntarily intoxicated:

• 1. LACED DRINKS: Where D was unaware that they were consuming the intoxicant. 
• 2. PRESCRIBED DRUGS: Taking drugs on prescription from a doctor is not regarded by the courts as reckless, so intoxication as an unexpected result of taking them will be a defence.
• 3. SOPORIFIC DRUGS: Where D has taken drugs that normally have a soporific effect, making the user relaxed or sleepy, they will be treated as being involuntarily intoxicated if they have an ‘opposite’ reaction to it.

The test for all of these is: DID D HAVE THE NECESSARY MR WHEN HE COMMITTED THE OFFENCE?

•  IF YES D IS GUILTY,  IF NO, D IS NOT GUILTY.

The law says that even though involuntarily intoxicated, if the magistrates/jury nevertheless feels that D has formed the necessary MR, he will not have a defence. 

R v Kingston [1994] D was an admitted paedophiliac with homosexual tendencies but was normally able to control his urges whilst sober and not act upon them. This unfortunately presented an opportunity for his former business associates to blackmail him. As part of the set-up, both D and a 15 year old boy were separately lured to a flat and drugged. While the boy fell asleep, Ds coffee was laced so that he was intoxicated, but not unconscious. D was then encouraged to indecently abuse the boy, which he did, and he was photographed and recorded doing so. D admitted that at the time of committing the assault, he had intended it and knew what he was doing, but argued that he would NOT have committed the offence if he had been sober. D was convicted as the prosecution had convinced the jury that despite being involuntarily intoxicated, D had enough appreciation of his surroundings to have formed MR whilst performing the AR.

CA: Allowed Ds appeal on the basis that D was not at fault in becoming intoxicated in the first place. Lord Taylor CJ: “...if a drink or a drug, surreptitiously administered, causes a person to lose his self-control and for that reason to form an intent which he would not otherwise have formed...the law should exculpate (exonerate) him because the operative fault is not his.”

Having had the conviction overturned, the prosecution then appealed to the HL who reversed the CA decision and reinstated the conviction. D was therefore guilty as he had enough appreciation of his surrounding to have formed the MR. INVOLUNTARY INTOXICATION WAS NOT A DEFENCE.

Therefore, involuntary intoxication only clears D of liability if it renders him incapable of forming MR but not if it caused him to commit an offence he would not have committed if sober.

This provision is quite tightly interpreted as where Ds soft drink has been laced without his knowledge IT IS CRUCIAL THAT D THOUGHT HE WAS CONSUMING A NON ALCOHOLIC DRINK. The mere fact that Ds alcoholic drink had a stronger effect than he expected is not enough to render the intoxication involuntary.

Allen [1988]

D had been given some homemade wine which he voluntarily drank. ‘Unknown’ to him it was particularly strong and he became extremely drunk and then carried out a serious sexual assault. CA upheld conviction as there was no evidence that Ds drinking was anything other than voluntary: he knew it was alcohol and he took the risks as to its strength. (Plus, it is common knowledge that homemade alcohol is often much stronger that the conventional pub strength.) To make intoxication voluntary only if D knew exactly what he was drinking, including in terms of strength, would severely undermine the public policy arguments as it would allow a D to escape liability simply because he failed to appreciate the strength of his drinks.

If D is already drinking, and that drink gets spiked it is up to jury to decide if it was the initial ‘voluntary intoxication’ that was to blame or the ‘additional substance’ that D has no knowledge of. Tricky!

In Majewski [1977] Lord Elwyn Jones LC specifically included those who take ‘drugs not on medical prescription’ within the scope of voluntary intoxication; by implication, therefore, we can say that those who do take drugs under medical prescription will be deemed involuntarily intoxicated (but arguably only when unaware of the side effects.)

3. SOPORIFIC DRUGS~Hardie [1984] D was upset as his girlfriend had told him to move out. He packed but before leaving took a valium tablet as he was very upset. During the course of the day he took more pills, moved some of his possessions out and returned that evening. Shortly after, he started a fire in the wardrobe in the bedroom. His defence was that he did not know what he was doing because of the valium. The jury convicted after being told to ignore the effects of the valium, but this was quashed on appeal.

CA: Self-induced intoxication from alcohol or drugs could not be a defence to ordinary crimes involving recklessness since the taking of the intoxicant was itself reckless behaviour (i.e. the Majewski rule.) BUT: The issue was whether the taking of valium had itself been reckless taking into account the fact that the drug was not unlawful in prescribed quantities, that D did not know the drug was likely to make him behave as he did, that he had been told it would do him no harm, and that the normal effect of the drug was soporific or sedative. CA quashed the conviction and involuntary intoxication was a defence in this situation.

If D is mistaken about a key fact because he is drunk, then it depends on what the mistake was about as to whether he has a defence or not. Where the mistake is about something which means D did not have the necessary MR for the offence, then for a specific intent offence, D MAY HAVE A DEFENCE. However, where the offence is a basic intent offence, intoxication is NO DEFENCE.

Lipman [1970]

D and his girlfriend (V) had taken LSD before falling asleep at her flat. LSD causes people to have hallucinations. D thought he was at the centre of the earth and being attacked by snakes. When he awoke he found his girlfriend was dead. He had strangled her and stuffed a bed sheet into her mouth believing she was a snake attacking him. D did not have the SPECIFIC INTENTION FOR MURDER as he thought that he was killing a snake; he did not intend to kill or cause harm to any human being. However he was guilty of involuntary manslaughter (basic intent offence) because he had voluntarily taken LSD. This was a “reckless course of conduct” and so he was guilty of manslaughter, even though he had made a mistake. Conviction upheld on appeal.

If the mistake is about another aspect, e.g. amount of force needed in self-defence, D will NOT have a defence. A drunken belief in the need to use force in self-defence is no defence.

O’Grady [1987] D and V had been drinking heavily and fell asleep in Ds flat. D claimed that he awoke when V began hitting him with a piece of glass. D then picked up a glass ashtray and hit V with it, then went back to sleep. He awoke the next morning to find that V had died. Conviction (for manslaughter) upheld by CA.

In O’Grady LCJ Lord Lane also stated that intoxicated mistake as to the amount of force needed in self defence was not a defence to a specific intent offence either. This was confirmed in Hatton [2005] (V behaved strangely, said he was SAS officer, struck martial arts poses, exhibited a hatred of homosexuals. D was convicted of murder.)

This has all now been confirmed in the CRIMINAL JUSTICE AND IMMIGRATION ACT 2008: S.76 states that reasonable force may be used for the purposes of self-defence/defence of another. However, s.76 (5) says that this “does not enable D to rely on any mistaken belief attributable to intoxication that was voluntarily induced.”

Specific Intent

If D has the MR he is still guilty. Drunken intent is still intent. Sheenan [1975]

If D has no MR for that crime, then his is not guilty. Beard [1920]

Basic Intent

The D is probably guilty of the offence. Becoming intoxicated may be deemed to be a reckless course of conduct Majewski [1977].

D will be deemed to have appreciated any risk he would have appreciated had he been sober.

Arguably there is little point in raising intoxication to basic intent offences. Lords in Majewski suggested that were D to do this a D would, in effect, be pleading guilty.

Specific Intent

If D has the MR at the time of committing the AR, he is guilty. Kingston [1995]

If D has no MR he is not guilty. Hardie [1985]

Basic Intent

If D has MR he is guilty. Kingston [1995]

The D has not been reckless in becoming intoxicated, so if he has no MR, he is entitled to be not guilty. Hardie [1985]

Specific Intent

If the mistake negates MR then D is not guilty. Lipman [1970].

If the mistake is about the need to defend oneself it is not a defence. D will be guilty. O’Grady [1987], Hatton [2005]

Basic Intent

Intoxication is a reckless course of conduct so D is guilty.