INTOXICATION AS A
DEFENCE
Mark Hage
5 Basic points on defence of
intoxication
• Covers, drink, drugs or other substances, eg glue
sniffing.
• Based on whether D formed MR of offence
• Results in acquittal if successful
• Different rules for voluntary and involuntary
intoxication
• Different rules for basic and specific intent crimes.
• If the D has become so intoxicated they lose all self
control then this becomes an automatic state. Such a
state can be classed as Involuntary and be a defence of
Non insane automatism.
Voluntary Intoxication and
Specific intent crimes
• Where D has chosen to take the intoxicating
substance or where D knows the effect of prescribed
drugs will make him intoxicated.
• Specific Intent crimes require specific MR of the
AR.
• DPP v Beard - If D is so drunk that incapable of
forming the MR then cannot be convicted of the
offence.
• Sheehan v Moore - D's v. drunk when the threw
petrol over tramp and set light to him. V died. Can
Intoxication be defence?
Voluntary Intoxication and basic
intent crimes
• Majweski - "It is a reckless course of
conduct (getting drunk) and recklessness is
enough to constitute the necessary mens
rea".
• Criticism: This ignores the principle
regarding the coincidence of AR and MR.
In this case MR takes place before AR. This
may be several hours before the incident.
Involuntary intoxication
• Situations where D has not known he has taken intoxicating
substance, e.g. spiked drink.
• This type of intoxication also covers the taking of drugs which
results in unexpected effects.
• Kingston: The test is did the D have the necessary MR for the
offence?
• If the answer is yes then involuntary intoxication is no defence.
• If the answer is no then involuntary intoxication may provide a
defence if P cannot show D had the required MR.
• Hardie: D took valium as he was feeling depressed. Unusually
the drug had the opposite effect and he set fire to a wardrobe.
Conviction quashed as the jury should have been allowed to
consider the defence as not a reckless course of action.
Intoxicated Mistake
• Where D makes a mistake as to a key fact because of intoxication it depends on
what the mistake was about as to whether it will mean D can have the defence or
not.
• Lipman: D took drugs and thought his girlfriend was a snake attacking him. D
killed her and was allowed to use defence of intoxication for the SI crime of
murder. However found G of Manslaughter as Basic alternate offence.
• SELF DEFENCE
• O’grady: As getting intoxicated is a reckless course of action Majweski rules
apply where intoxication voluntary and basic intent crime D defending himself
from.
• Hatton: D drank 20 pints of beer and thought V hit him with a stick. V was
found dead with blows from sledgehammer. CA affirmed O'grady and said rule
also applied to SI offences and level of force needed.
• Criminal Justice and Immigration Act 2008 S76(5): "D cannot rely on any
mistaken belief attributable to intoxication that was voluntarily induced”
• Bottom line is any mistake as to the need for force or the level of force used to
defence oneself will not be looked at where it is induced by intoxication.
Exception where Intoxicated belief allowed
• Intoxicated mistake is allowed for criminal damage ( a basic
intent crime) due to the interpretation of a statutory defence of a
belief in the owners consent to the damage.
• S5 Criminal Damage Act 1971 allows honest belief that person
would have consented as a defence whether or not the belief is
justified.
• Jaggard v Dickinson: The QBD has interpreted the act to include
intoxicated mistakes as to belief in consent, “Parliament
specifically required the court to consider the D's actual state of
belief" where D broke the wrong window of a house he thought
was his friends.
• This issue will figure prominently in problem solving in Law 04,
next exam.
Criticisms and reform
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Intoxication is a defence based on public policy.
This is because many offences are committed because of intoxication.
Therefore the defence seeks to balance the rights of the D, the V and society.
This does cause problems with legal principles, eg Majweski rules flout the
coincidence of AR and MR principle. Generally the courts have created rules to
deter potential D’s through harsh rules on the defence.
Recent changes to the the law on prevention of crime and mistaken use of force
(S76(5)) have emphasised parliament’s view that intoxication as a source of
criminal activity and should not be supported by this defence, clearly the judiciary
and law makers are speaking with one voice on this issue.
In 1993 the Majweski rules were criticised by the Law Commission.
However in 1995 the Law Commission supported the rules as “fair”.
Specific and basic intent crimes. Where D is NG of a specific intent crime there
is usually an alternate offence of basic intent. However where this isn't the case this
can lead to injustice, eg Theft. Why is this compared to say a charge of murder?
Involuntary Intoxication. Where D’s inhibitions are broken down by involuntary
intoxication Kingston states that as long as D has MR then still guilty. This ignores
the fact D is not to blame for intoxication in the first place.
Reform
• Butler Report 1975: Proposed a new offence of “dangerous
intoxication”. Would be used when acquitted of more serious
offence.
• 1993 Law Commission report:Evidence of Voluntary
intoxication should be allowed for all offences. This would mean
D could be acquitted if didn't have necessary MR, including for
basic intent crimes.Instead would have separate offence of
criminal intoxication.
• 1995 Law Commission report:Abandoned any changes proposed
in 1993. Suggested simply codifying the law as it stood including
Majweski rule.
• 1998 Government Draft offences Against the Person Bill: Stated
that intoxication could not be relied on to negative recklessness.
So far not enacted.
Complete Page5 Q1 – Andy. Apply Intoxication to
any V and any offence– 15mins
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Plan
Define Intoxication & what is successful use
Offence– Specific or Basic?
Invol intoxication – Key Case Apply
Vol Intoxication – Key case apply
Repeat.
Complete Page 6 Q4 – Leon. Apply Intoxication to
S18 & S20 on Michael – 15mins
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Plan
Define Intoxication & what is successful use
S18 – Specific or Basic?
Invol intoxication – Key Case Apply
Vol Intoxication – Key case apply
S20 – Specific or Basic?
Invol intoxication – Key Case Apply
Vol Intoxication – Key case apply