DEFENCES
Intoxication
Voluntary or Involuntary
Intoxication ?
Intoxication from what
substance?
How did it come about?
Voluntary Intoxication
External cause leading to
Lack of mens rea/negligence
Lack of awareness or mistake
S8 Criminal Justice Act 1967
A court or jury, in determining whether a person
has committed an offence, (a) Shall not be bound in law to infer that he
intended or foresaw a result of his action by
reason only of its being a natural and probable
consequence of those actions; but
(b) Shall decide whether he did intend or foresee
that result by reference to all the evidence,
drawing such inferences from the evidence as
appear proper in the circumstances
DPP v MAJEWSKI 1976
The distinction between specific and basic
intent cannot ‘in strict logic...be justified. But
this is the view that has been adopted by the
common law of England, which is founded on
common sense and experience rather than strict
logic.’
Per Lord Salmon
SPECIFIC AND BASIC INTENT
Definition 1
Specific intent: a crime where the mens rea goes
beyond what is stated in the actus reus
Basic intent: a crime where the mens rea does
not go beyond what is stated in the actus reus
Lord Simon in DPP v Morgan 1976 and Hughes LJ in Heard 2007
COMMON ASSAULT
AR: Applying unlawful force to V without V’s
consent
MR: Intending to apply unlawful force to V
without V’s consent or being reckless about
applying unlawful force to V without V’s
consent
COMMON ASSAULT
AR: Applying unlawful force to V without V’s
consent
MR: Intending to apply unlawful force to V
without V’s consent or being reckless about
applying unlawful force to V without V’s
consent
Basic intent
THEFT
AR: Appropriation of property belonging to
another
MR: Dishonest appropriation of property
belonging to another with intention of
permanently depriving the other of it
THEFT
AR: Appropriation of property belonging to
another
MR: Dishonest appropriation of property
belonging to another with intention of
permanently depriving the other of it
Specific intent
SPECIFIC AND BASIC INTENT
Definition 2
Specific intent: where the crime specifies only
intention as its mens rea.
Basic intent: where the crime is satisfied by
recklessness as mens rea.
Per Lord Elwyn-Jones in Majewski
COMMON ASSAULT
AR: Applying unlawful force to V without V’s
consent
MR: Intending to apply unlawful force to V
without V’s consent or being reckless about
applying unlawful force to V without V’s
consent
Basic intent
THEFT
AR: Appropriation of property belonging to
another
MR: Dishonest (intent) appropriation of
property belonging to another with intention
of permanently depriving the other of it
Specific intent
SPECIFIC AND BASIC INTENT
Apply definition 1 and definition 2 to:
S20 OAPA Wounding
S18 OAPA Wounding
Murder
Criminal Damage
Aggravated Criminal Damage
S20 OAPA - WOUNDING
AR: Conduct causing a wound
MR: Maliciously: Intending or being reckless
about causing some physical harm
S20 OAPA - WOUNDING
AR: Conduct causing a wound
MR: Maliciously: Intending or being reckless
about causing some physical harm
Def 1 = Basic Intent
S20 OAPA - WOUNDING
AR: Conduct causing a wound
MR: Maliciously: Intending or being reckless
about causing some physical harm
Def 1 = Basic Intent
Def 2 = Basic Intent
Bratty v AG for NI 1963 = Basic Intent
S18 OAPA - WOUNDING
AR: Conduct causing a wound
MR: Maliciously with intent to cause GBH or
resist arrest
S18 OAPA - WOUNDING
AR: Conduct causing a wound
MR: Maliciously with intent to cause GBH or
resist arrest
Def 1 = Specific intent
S18 OAPA - WOUNDING
AR: Conduct causing a wound
MR: Maliciously with intent to cause GBH or
resist arrest
Def 1 = Specific intent
Def 2 = Specific intent
Bratty v AG for NI 1963 = Specific intent
MURDER
AR: Conduct causing the death of HB UQP
MR: Intention to kill or intention to cause GBH
MURDER
AR: Conduct causing the death of HB UQP
MR: Intention to kill or intention to cause GBH
Def 1 = Basic intent
MURDER
AR: Conduct causing the death of HB UQP
MR: Intention to kill or intention to cause GBH
Def 1 = Basic intent
Def 2 = Specific intent
Beard 1920 = Specific intent
S1(2) Criminal Damage Act 1971
AR: Conduct causing damage to property
MR: Intentionally or recklessly causing damage
to property with intent to endanger life or
being reckless about endangering life
S1(2) Criminal Damage Act 1971
AR: Conduct causing damage to property
MR: Intentionally or recklessly causing damage
to property with intent to endanger life or
being reckless about endangering life
Def 1 = Specific intent
S1(2) Criminal Damage Act 1971
AR: Conduct causing damage to property
MR: Intentionally or recklessly causing damage
to property with intent to endanger life or
being reckless about endangering life
Def 1 = Specific intent
Def 2 = Basic intent
Caldwell 1981= Specific intent
DIFFICULTIES OF MAJEWSKI
Distinguishing specific and basic intent – legal
definitions, policy basis.
Specific Intent: Murder, s18 OAPA, theft,
attempted offences, aggravated criminal damage
Basic Intent: Manslaughter, assault, battery, s47
OAPA, s20 OAPA, rape, sexual assault, simple
criminal damage
DIFFICULTIES OF MAJEWSKI
Distinguishing specific and basic intent – legal
definitions, policy basis.
The impact of R v Heard 2007
‘It should not be supposed that every offence
can be categorised simply as either one of
specific intent or of basic intent’: per Hughes LJ
DIFFICULTIES WITH MAJEWSKI
Distinguishing specific and basic intent – legal
definitions, policy basis.
Does the intoxication establish proof of
recklessness?
DIFFICULTIES WITH MAJEWSKI
‘His course of conduct in reducing himself by
drugs and drink to that condition in my view
supplies the evidence of mens rea, of guilty mind
certainly sufficient for crimes of basic intent. It
is a reckless course of conduct and recklessness
is enough to constitute the necessary mens rea
for crimes of basic intent.......The drunkenness is
itself intrinsic, and integral part of the crime. Per
Ld Elwyn-Jones in Majewski p474
DIFFICULTIES WITH MAJEWSKI
Recklessness in what sense?
Contemporaenity?
Irrebuttable presumption – strict liability?
S.8 CJA
Why can intoxication negative specific intent but not
recklessness?
Note articles in core text chapter on intoxication & those
highlighted at the end of the slides for further critique
Alternative approach?
• Richardson v Irwin [1999] 1 Cr App R 932
• Drunk students hung a friend over a bridge as
a prank and he fell and suffered gbh?
• Ignore intox – but consider other evidence –
would they have foreseen the risk in the circs
if sober?
HEARD [2007]
•
•
•
•
S.3 SOA:
Intentional touching
No reasonable belief in consent
Intoxicated state
• Basic or specific intent crime?
VOLUNTARY INTOXICATION
“Exceptions”?
Jaggard v Dickinson [1981] QB 527
The appellant had been out drinking for the evening and became stranded
with no money or lift home. She went to a friend’s house and knocked on the
door. There was no answer, so believing her friend would consent in the
circumstances, she broke into the house. In fact the house did not belong to
her friend.
Guilty or not guilty – noting s.5 CDA?
See s.5(2) & 5(3) = unreasonable (drunken belief) will do if honestly held –
goes against general principles for basic intent crime and intoxication
Note also mistaken drunken belief in self –defence (later)
LESSER CHARGE
• Note that even if there is a defence to a
specific intent crime there is often a lesser
charge that can be substituted, which is a
basic intent crime, for which a defence of
intoxication will not normally apply.
DUTCH COURAGE
AG for NI v Gallagher [1963] AC 349:
D, an aggressive psychopath, killed his wife. He
had formed the intent and got drunk in order to
get the courage to commit the crime.
No defence (not even for specific intent crimes):
Continuing act with mens rea
INVOLUNTARY INTOXICATION
Kingston [1995] 2 AC 355:
D claimed that he had been surreptitiously drugged
before he committed acts of indecency.
Lack of mens rea or fault caused by involuntary
intoxication is defence to both specific and basic intent
crimes - but in Kingston he still had intent –
a drunken intent can still be intent
INVOLUNTARY INTOXICATION?
• Hardie [1985] 1 WLR 64
• D took some Valium sedatives, prescribed for his
girlfriend to calm his nerves. He blacked out and
during that time set fire to a bedroom wardrobe!
Charged with recklessly causing criminal damage
under s.1(2) CDA
• Is he guilty?
• Note possible automatism
Example Q
• Mike decides to steal from a wealthy widow, Suzanne, who
lives on a nearby street. He is nervous so he drinks heavily
before plucking up the courage to sneak in to Suzanne’s
house. He sees a light on in the bedroom but steels himself to
confront any occupants, with violence if necessary. He enters
via an open ground floor window and rummages around in
some drawers in the lounge hoping to find some valuables.
Because of his intoxicated state he is rather noisy and clumsy
and knocks over a vase. Suzanne comes downstairs and
shines a torch into the lounge. Mike rushes at Suzanne,
knocking her over, and then hurries back out of the open
window.
FURTHER READING
• Law Commission Report on Intoxication and
Criminal Liability (No 314)
• Williams, R., “Voluntary Intoxication – A lost
cause (2013) LQR 264
• Simester, A., “Intoxication is never a defence”
(2009) Crim LR 3